37 Me. 29 | Me. | 1854
— The action is debt upon a judgment of the Court of County Commissioners rendered in the month of March, 1838. The suit was commenced on July 18,1851. The declaration contains four counts, the last of which is assumpsit. The pleas are nul tiel record, nil debet, and the statute of limitations. The first concludes with a verification, which is joined by a similiter without any replication. On the second an issue to the country is joined. To the third there is a demurrer and joinder.
If the case may be decided upon the third plea, it will not be necessary to notice the defects in the declaration and pleadings.
The statute of limitations, c. 146, § 1, requires that “ all actions upon judgments rendered in any court not being a court of record, except justices of the peace, in this State,” shall be commenced within six years next after the cause of action shall accrue.
If upon the facts reported, any action has accrued to the
The rights of the parties may depend upon a determination, that the Court of County Commissioners is or is not a court of record.
Whether a court be a court of record, does not depend upon the fact, that it does or does not keep a record of its proceedings, or that it is or is not required by law to do so.
All inferior courts, not being courts of record, cause their proceedings and judgments to be recorded, or should do so. The distinction between courts of record and courts not of record, is recognized in the statute. It is not a formal and technical one only, but most important rights and practical results arise out of it.
After final judgment in a court of record, proceeding according to the course of the common law, the only remedy for a correction of its errors is a writ of error. When it is not a court of record, or does not proceed according to the course of the common law, a writ of error will not lie. The remedy is by writ of certiorari. 29 Maine, 288; 15 Pick. 234. A writ of error is one of right, while a writ of certiorari is not. 8 Greenl. 292.
When the judgment of an inferior court is reversed upon error brought, the court of errors should render such judgment as the inferior court ought to have rendered. 1 Salk. 401; 2 Saund. 256; Com. Dig. Pl. 3, B. 20.
Upon a writ of certiorari, the Court can only quash the proceedings. It cannot render such judgment as the inferior court ought to have rendered. Drown v. Stimpson, 2 Mass. 445; Commonwealth v. Bluehill Turnpike, 5 Mass. 423; Hopkinton v. Smith, 15 N. H. 152.
If the Court of County Commissioners were to be considered a court of record, proceeding according to the course of the common law, a party aggrieved would of right
A court of record is one, which has jurisdiction to fine or imprison, or one having jurisdiction of civil cases above forty shillings, and proceeding according to the course of the common law. 1 Inst. 117, b, 260, a; Groenvelt v. Barwell, 1 Salk. 144; S. C. 1 Ld. Ray. 467; Same v. College of Physicians, 12 Mod. 388; 2 Saund. 101, a; Viner’s Ab. title Court, I.
It is insisted that the Courts of Sessions were courts of record, and their former jurisdiction having been conferred upon the Courts of County Commissioners, that those courts thereby became courts of record.
Courts of G-eneral Sessions of the Peace were established in each county in the Province of Massachusetts Bay, by the Act of 11 Will. 3, c. 1. These were superseded in that State by an Act passed on July 3, 1782, establishing similar courts. These courts were attended by a grand jury, and they had jurisdiction to punish offences by fine or imprisonment, and were therefore courts of record. Although powers were conferred upon them respecting highways, and other business in them respective counties, requiring proceedings not according to the course of the common law, they were not thereby deprived of the character of courts of record..
Judgment for the defendants.