Hamblin v. County Commissioners of Barnstable , 82 Mass. 256 ( 1860 )

Bigelow, C. J.

This is a novel attempt to control and restrain the proceedings of an inferior tribunal, exercising quasi judicial powers, by means of a bill in equity. Under our practice, the more appropriate and efficient remedy in such cases would seem to be by certiorari, especially as this court now has power under Gen. Sts. c. 145, §§ 9,12, not only to issue an injunction pending an application for a certiorari, but also to enter such judgment as the court below should have rendered, or to make such order or decree in the premises as law and justice require. But it is unnecessary to determine whether the plaintiff has adopted a suitable mode of reaching and correcting an error in the doings "of the commissioners, because it is clear that he states no case in his bill, which entitles him to redress in any form of proceeding.

1. As to all matters alleged in the bill which relate to the proceedings before the commissioners on the application for a jury, and to the action of the sheriff in summoning and impanelling them, and in the hearing of the case before them, and upon the return and acceptance of their verdict by the court of common pleas, the plaintiff Hamblin has had full opportunity to be heard before the court of common pleas in the mode provided by law, and by taking exceptions to have the case determined by this court. Having omitted to take his objections seasonably, neither he nor his sureties on the recognizance for costs can now reopen the case and have a rehearing upon them in this proceeding or in any other.

2. The objections urged to the proceedings of the commissioners, in requiring the plaintiffs to pay on their recognizance the costs incurred by reason of the application for a jury, and the further objection to the authority of the commissioners to issue a warrant of distress, are clearly untenable. The jury by their verdict did not increase, but diminished the damages awarded by the commissioners to the plaintiff Hamblin, occasioned by the laying out of a town way through his land. He and his sureties on the recognizance were therefore liable to pay the costs and expenses of the trial before the jury, under Rev. Sts. c. 24, § 38. In the sense and within the meaning of the statute, he was the losing party, and consequently, according to the. conditions of the recognizance, the verdict was “ adverse to the petitioner.” Under such circumstances, if the costs incurred by reason of the application for a jury were not paid by the persons who entered into the recognizance, the commissioners, after giving due notice, are authorized by Rev. Sts. c. 24, § 43, to issue a warrant of distress against them therefore, with further costs of the notice and warrant.

3. No precise form of notice to the principal and sureties in the recognizance is required. All that is required is that the notice should be reasonable. In the present case the plaintiffs had full and ample notice, and all the proceedings were regular and according to law. The plaintiffs therefore show no equity.

Bill dismissed.