11 Mass. 271 | Mass. | 1814
The first question to be settled in this action is, whether the Court has jurisdiction by appeal in this particular pro
But the right of appeal to this Court does not depend altogether upon that statute, which seems to have been enácted rather with the view of regulating the preexisting right, and limiting it, in personal actions, to demands of a certain value, than of describing the cases only when it shall exist. For it is inconceivable that the legislature should have indulged litigating parties with a revision of their causes before the highest tribunal, when land of the least value, or a personal demand barely exceeding 100 dollars, should be in dispute, and refuse it where the personal liberty of the citizen was in question. Nor is it probable that actions of replevin for property of large amount, but wherein the damages for taking or detention may be small, were intended to be left to the ultimate decision of the Courts of Common Pleas without appeal; or that the party appealing was to be punished in costs, if his damages were found to be less than a hundred dollars, although the judgment may have determined his right to property worth many thousands.
The act establishing a Supreme Judicial Court within this com mon wealth gives cognizance to that Court of all pleas, real, personal, or mixed, and of all civil actions between party and party, &c., brought legally before the said Court, by appeal, review, writ of error, or otherwise.
The provision in the first act, giving the right of appeal in ah actions, remains also in full force, except so far as it may have been limited or modified by subsequent statutes ; and as there i» no statute taking away, either expressly or by strong implication, the right of appeal in the action de homine replegiando, or of re plevin of property, we must consider that provision still in force. This construction will relieve us from the necessity of supposizzg that the legislature had secured to parties the right of appealing in matters of inconsidei'able value, and deprived them of that right in matters of the highest moment.
It has already been determined, in this Court,
We must now consider the motion made at the Common Pleas to diszniss this action, because there was no legal service of the writ, and because the writ does not agree with the form prescribed in the statute.
If it were manifest, by the statute, that any officer other than the sheriff could perform the service, a designation of the officer thus authorized, although not making a part of the form of the writ as prescribed in the statute, could amount to nothing more than surplusage, which might be rejected. But as the statute conferring powers upon sheriffs and their deputies
[ * 277 ] * Can, then, a deputy sheriff by law make service of the writ de homine replegiando, which is provided by statute ?
Upon a critical inspection of the statute, we find that the sheriff is alone mentioned as the officer who is to execute the process The form of the process also, which contains a direction to the sheriff only, although not conclusive evidence of the intention of the legislature, may be considered as in some measure indicative of that intention. It is also found that, with the exception of a few processes, of which this of replevying the person is one, all the forms of writs and processes established by statute contain a direction to the sheriff or his deputies, and that in the statute of replevins there is a particular provision that, where the sheriff or his
It is to be presumed that the framers of these laws had their eye upon the distinction existing between those duties of the sheriff which are merely ministerial and those which partake in some measure of a judicial quality; having reference to the common law principle, that, in all the judicial parts of his office, the sheriff must act in proprio persona, and also in the execution of commissions particularly directed to him, but that all official acts merely ministerial may be performed by his under sheriff or deputy.
The cases which appear to have been selected by our legislature, as those which ought to be confided to the sheriff only, were sup posed in some degree (although some of them very slightly) to impose judicial authority upon him. *The [ * 278 ] process for recovery of damages. for flowing lands is an instance
. The process we are now considering is another in which the mandate is confined to the sheriff himself; and although it is not so obvious as in the other instances, that the legislature had regard to the judicial authority of the sheriff, yet even in this instance it will be found that some of the duty imposed by the statute upon the sheriff is clearly of a judicial nature. I refer to his obligation to
Upon the whole, therefore, we consider that the form of the process prescribed in this case, together with the whole purview of the statute, and the analogy to other statutes where the like provision is made, all show that the legislature intended that this process should be served by the sheriff only; except in cases where he may be a party, and then under the general provisions for such cases, by a coroner.
We can perceive great inconvenience resulting from this opinion, especially in large counties, where several causes of complaint may exist at the same time. This inconvenience applies also [ * 279 ] to all the other processes, as well as to this * de homina replegiando; but our duty is jus discere, not jus dare, and to leave to the legislature the removal of inconveniences.
The prayer of the defendant in this action, to have the plaintiff restored to his custody, cannot be granted. There is, in truth, no case before us upon which such an order can be passed. If the custody was legal, the defendant must take his own course to repossess himself, or he may resort to his action upon the bond, or to such other remedy as he shall be advised to; with respect to which we give no opinion, confining ourselves to the decision that an appeal in such case may be sustained in this Court, and that, for want of a legal service of the writ, tire action was properly dismissed at the Court of Common Pleas, and must now be dismissed from the docket of this Court,
Stat. 1782, c. 9.
Stat. 1782, c 11.
Stat. 1782, c. 14.
Stat. 1784, c. 42.
4 Mass. Rep. 107, Lamphear vs. Lamprey.
Purple vs. Clarke & Al. 5 Pick. 206.
Stat. 1783, c. 44.
9 Mass. Rep. 95.
Campbell vs. Stiles, 9 Mass. Rep. 217.— Commonwealth vs. Parker, 2 Pick 550 —Vide Brier vs. Woodbury, 1 Pick. 366.
Stat. 1789, c. 21, § 1.
Stat. 1783, c. 43, § 1.
Cro. Eliz. 294. — Dalt. Sher. 103, 104.
Stat. 1795, c. 74, § 2.
By the statute of 1786, c. 67, § 4, where one, aggrieved by the doings of a committee for laying out a highway, applies to the Sessions for relief, such application is to be heard by a new committee, or by a jury to be summoned by the sheriS or his d&puty.
Stat. 1784, c. 8, § 2.
Tappan vs. Bruen, 5 Mass. Rep. 193. — Lamphear vs. Lamprey, 4 Mass. Rep. 107. — Bemis vs. Faxon, 2 Mass. Rep. 141. — Rathbone vs. Rathbone, A Pick. 89.— Purple vs. Clarke, 5 Pick. 206. — Hemenway vs. Hicks, 4 Pick. 497. — Blood vs Kemp, 4 Pick. 179. — Davis vs. Mason, 4 Pick. 156.