Valentine v. Norton , 30 Me. 194 ( 1849 )

Shepley, C. J.

— This writ of error has been sued out to procure the reversal of a judgment rendered at a term of this Court holden in this county in the month of September, 1848. By an agreement between the counsel the benefit of a motion to dismiss is reserved to the defendant in error without prejudice from the plea of in nullo est erratum.

A motion is accordingly made to dismiss the writ because there is a misjoinder of errors in law and of errors in fact. It is contended that the three first errors assigned are errors in law, and that the two last are errors in fact.

The two last errors assigned are in substance “ that by the record aforesaid it appears,” that fees for travel and attendance were taxed and allowed for the plaintiff after the defendant had been defaulted, and that like fees were taxed and allowed after the death of the original plaintiff, until the administratrix came in and took upon herself the prosecution of the suit. These are not assigned as errors in fact but as errors in law apparent upon the record. The motion is therefore overruled.

A writ of error may be maintained to obtain relief from an illegal taxation of costs. Field v. Turnpike Corporation, 5 Mass. 389; Waite v. Garland, 7 Mass. 453; Thomas v. Seaver, 12 Mass. 379. When such a taxation is apparent on inspection of the record, the error is one of law, when not so apparent, it is one of fact. In the present case the errors respecting costs are assigned as apparent of record, yet upon inspection of the record no such errors appear.

The counsel for the plaintiff in error contends, that a memorandum exhibiting the costs taxed and filed with the papers in the case, is to be regarded as a part of the record. Nothing is presented by the writ of error to a court of errors but a transcript of the record. Papers and documents filed in the case, but not incorporated into the record, constitute no part of it. Kirby v. Wood, 16 Maine, 81. No correction of the errors alleged to have been committed in the taxation of costs, could be made in this case by an assignment of them as errors in law.

The three first errors alleged are in substance, that the action appears of record to have been in form an action of tort, with a declaration asserting, that the plaintiff in error, acting as a deputy of the sheriff of the county of Penobscot, made a false return of service upon a precept to the injury of the original plaintiff. That during the pendency of that action the plaintiff died, and his administratrix was admitted to take upon herself the prosecution of the suit, and that judgment was rendered in her favor for damages and costs.

The question, whether that action survived, appears to have been presented to this Court at its session in this county in the month of June, .1841, and a decision appears to have been made, that it did survive. Whether the nature of the action was then well understood, or the importance of the question duly appreciated, it is now unimportant to inquire, for it becomes the duty of the Court to consider whether there be error in the record of the judgment as presented.

There can be no doubt, that such an action as is there described would not by the common law survive. By the statute then in force, c. 92, <§> 2, provision was made, that “ actions for malfeasance or misfeasance of any sheriff or of his deputies may be sued against the executors or administrators of such sheriff, in the same manner as if the cause of action survived against the executor or administrator at common law.” If the action by virtue of the provisions of the statute survived against the personal representative of a deceased sheriff, it must be considered as surviving in favor of the personal representative of the plaintiff, for it could not have been the intention to have it survive after the decease of one party and not survive after the decease of the other. Yet there are no words in the statute declaring that such an action shall survive to the personal representative of the deceased plaintiff. Such however has been the decision. Paine v. Ulmer, 7 Mass. 317. The sheriff being responsible for the acts of his deputies, who are by law liable to make compensation to him for any damages, which he may have been compelled to pay for their defaults, it would seem to be useless to require, that a circuitous course should be pursued attended by increased litigation to arrive at the result, that the deputies may be required to pay damages occasioned by their misfeasances not only to the person injured, but to his personal representative after his decease. If the design of the statute was to provide, that the cause of action in such cases should survive ; and such appears to have been its construction so far as it respects the plaintiffs in such suits, the provision, that such actions might be brought against the executors or administrators of the sheriff, might have been considered as only an affirmance of the common law; and it might have been also considered, that an action surviving by the provisions of a statute might by the common law, be prosecuted by or against the personal representative of a deceased party. If this were-an open question, it might be worthy of consideration, whether the statute might fairly receive such a construction.

The language of the statute already quoted is however an exact transcript from the second section of the act of Massachusetts passed on March 13, 1806; and that language had received a judicial construction before it was re-enacted in this state. Cravath v. Plympton, 13 Mass. 454. It was decided in that case, that it did not authorize such a suit to be maintained against the personal representative of a deceased deputy sheriff. If the action did not survive against the personal representative of one party, it could not in favor of the personal representative of the other party.

The principle has been adopted in this State, that the Legislature is presumed by the re-enactment of the same language to have sanctioned the judicial construction, which that language had before received. That language, so far as it respects this question, does not appear to have been varied on its re-enactment in the Revised Statutes, c. 104, >§> 18.

According to the construction, which that language has received, the original action did not survive, the judgment therefore rendered in favor of the defendant in error was erroneous, and it is reversed ; and judgment is to be entered in that action, that the suit abated by the death of the plaintiff.