Inhabitants of Durham v. Inhabitants of Lewiston

Mellen C. J. On the facts appearing on the record in this cause, the question is whether the writ shall be sustained, or the plea adjudged good. The cause has been ably argued on both sides. One object of the plaintiff’s counsel has been to distinguish this case from that of Lewis & al. v. Webb 3 Greenl. 326, in respect to the constitutional authority of the legislature to pass the resolve in question and give it its intended operation. The soundness of that decision is not questioned ; but as the two cases in some respects were different, we have attentively listened to the arguments, that we might become satisfied whether there is any difference of such a character as to leave the present case unaffected by that decision ; and after mature consideration, we are all satisfied there is no such distinction. We therefore lay the resolve out of the case, and proceed to examine the other grounds on which it is contended that the writ may be maintained. And here, in the first place, it is contended, that upon a fair view of the decision of this court in Hobart v. Tilton 1 Greenl. 399, the writ in this case was entered in season, it being at the second term after the review was granted. That case presents two principles. There the writ was entered at the second term 144 after the review was granted, and a plea in abatement was filedi the court decided that the plea was good and abated the writ. Thus far that case is directly in point, and we are by no means disposed to disturb it. - But as the court had then been recently organized, they considered it proper, after having decided that the plea was good, to lay down the principle of the decision, with one limitation, in respect to future cases ; which was that in certain cases the court might, by a special order, passed at the time of granting the review, authorize the prosecution of the writ of review at the second term, when reasons existed, rendering such order necessary or proper. In the case before us no such order was passed or requested. After this decision, the law upon the subject was considered as settled, and the practice was conformed to it. The legislature has so considered it; and by the act of 1826, eh. 347 has enlarged the principle, and declared that a writ of review, in certain cases may be entered and prosecuted at the second term. We feel bound by our decision and this legislative recognition of its forc.e and effect. In the case of Hobart v. Tilton, after abating the writ for its irregularity, we received a new petition and granted a review, in the same manner as the Supreme Judicial Court of Massachusetts had done before ; so in this case, after the failure to enter and prosecute the writ of review at the first term, another application might have been made for a review ; as at that time the three years allowed by law for granting a review had not elapsed ; but no such application was made, and the reasons which have in argument been assigned in excuse for not suing out the writ of review and causing it to be served and entered in season, do not apply to the omission to renew the petition for review within the legal term. It is said that a doubt existed in the minds of counsel as to the power of the court to grant a review a second time, when a failure to-sue out the writ had occurred ; but we did grant a second review in Hobart v. Tilton, under our statute. We cannot on this account bend a principle of law ; nor can it be justice to the town of Lewiston for us so to do, even if it could be done consistently with settled principles. But it is in the last place contended that the writ maybe sustained upon the principles adopted by the court, in the 145 case of Clap v. Joslyn 1 Mass. 129. We cannot consider that, case as an authority or entitled to very great consideration. Clap applied for a review ; and it seems the court granted it without notice to Joslyn ; and when a writ of review was sued out and served, the defendant appeared and obtained a rule on the plaintiff to shew cause why it should not be quashed for want of notice ; the court, perceiving the dilemma in which the parties were placed by their premature decision, quashed the writ of review', though they protested that they were not obliged to quash it; they even said that the writ of review might he coil" sidere'd as an order of notice ; and yet they did not so consider it. It is difficult to see how such a principle could be sustained, as the statute of reviews requires a petition, hearing upon it, and a judgment, of court granting a review ; and then provides that after all this the petitioner shall sue out a writ of review in com mon form, to he served on the opposite party. We cannot adopt a course of proceeding so evidently opposed to the language and spirit of the law. Besides, experience has proved how important it is that courts of justice should observe regularity and consistency in those rules which are established for the government of matters of practice ; matters of frequent occurrence, and extensive operation in their effects. Rules are easily understood, though principies are oflen doubtful in their application. Upon a view of all the facts in this case and of the principles oi law applicable to them, we feel ourselves bound by our former decisions ; and we are unanimously of the opinion that the plea iu abatement is good and sufficient in law, and that the defendant!? must have judgment for their costs.