Brown v. Dunlap ( 1871 )

The opinion of the Court was delivered by

Willard, A. J.

The Circuit Court has granted a new trial fox-error of law alone, and an appeal is taken from such order. The error which induced the granting of the new trial, was a ruling, excluding the defendants in action upon the case against him as a common carrier, from giving proof, tending to show that he did not occupy the situation of a common carrier to the plaintiff in the transactions out of which the action arose.

The ruling in question proceeded upon the idea, that under the operation of Rule 87, (Miller’s Comp.,) to the effect that “ all cases not provided for in any of the foregoing rules, shall be governed by the practice of the Court of Common Pleas at Westminster, so far as they are consistent with the laws of this State,” a rule adopted by the Court of Common Pleas at Westminster, in 1834, as follows— “ Action on the case” : “ In this form of action against a common carrier, the plea of not guilty shall operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or for the purpose for which they were received,” is operative in this State.

We have been unable to find any evidence that the rule in question has been recognized or applied in the practice of this State. But apart from the proof afforded by so long a course of practice under the 87th rule of its true construction, it is clear that it was not intended to operate so as to unsettle the rules of pleading theretofore of force in this State.

The Code of Eules, of which the 87th is part, did hot assume to make any alteration in the rules of pleading as established. A regulation of the character involved in the English rule lays entirely outside of the scope of the rules adopted for this State.

In order to render of force, under our 87th Rule, a rule of the English Court, it should appear, first, that it relates to a matter within the scope of the provisions of our own rules, and forming part of the subject treated of by them; second, that it was overlooked in the forming of our rules; and, third, that it is in harmony with our laws, using the term laws in an enlarged sense as embracing the established procedure of this State.

It is evident that the rule in question is not entitled to be so considered.

The order for anew trial was properly granted, and under Section 1 of the Code of Procedure, the respondent is entitled to judgment absolute in the action.

The appeal must be dismissed, and the cause remanded to the Circuit Court for such proceedings as may be required to render such judgment effectual.

Wright, A. J., concurred. Moses, C. J., absent at the hearing.