Sayward v. Emery

• Decision Date: 01 August 1821
• Parties: SAYWARD v. EMERY
• Court: Maine Supreme Court

1 Me. 291

SAYWARD v. EMERY

Supreme Judicial Court of Maine, York

August, 1821

Scire facias against bail, originally brought before a Justice of the peace, and thence carried by appeal to the Circuit Court of Common Pleas; where, the pleadings before the Justice being waived, and oyer granted of the bail-bond, the defendant pleaded in bar of the action. This plea the Court on general demurrer, adjudged bad, and rendered judgment for the plaintiff; to which opinion the defendant filed exceptions and brought the action here by appeal, in the summary manner provided by Stat. 1817. ch. 185.

Appeal dismissed.

Wallingford for the defendant, being about to argue upon the matter of the plea, was stopped by the Court, who, after some consultation, were of opinion that the exceptions were irregularly filed and that the case was not within the provisions of the statute.

J Holmes, for the plaintiff.

WESTON J., PREBLE, J., MELLEN, C. J.

OPINION

WESTON J. The statute was made for the purpose of restricting appeals from the Common Pleas in certain cases therein specified; and the provisions of the fifth section are to be applied to those cases in which appeals lay before the statute was enacted, and in which the opinion of the Court does not appear of record. The present action, therefore, cannot be sustained here, it being not regularly brought before us.

PREBLE J. The sixth section of the statute expressly saves the right of any party to bring a writ of error, for any error appearing of record; and this right exists twenty years. Now the error here complained of, if such it be, appears in the record and not in the exceptions; and should we sustain the present application to this Court, either party, I apprehend, may still bring the case before us by writ of error. Nothing we can now do would be decisive of the cause. The summary mode prescribed by the statute seems to be intended to relieve parties from the cumbrous and expensive method of proceeding by exceptions under the statute of Westminster; and in my opinion should be limited to cases where exceptions may be filed by our common law. The present not being one of those cases, is improperly brought into this Court, and I am of opinion it ought to be dismissed.

MELLEN C. J. I am of the same opinion, and for the reasons already given. It is worthy of notice that the statute, in allowing this summary proceeding, refers to questions within the...