
    James Savage, Plaintiff in Error, versus Benjamin Gulliver.
    
      A writ of error does not lie upon a judgment of a justice of the peace, from which judgment an appeal lies to the Court of Common Pleas, nor upon a judgment of the Court of Common Pleas, where an appeal lies to this Court.
    A non-commissioned officer or soldier of the militia, for a default of appearing at a company muster, is liable to a fine of two dollars, and for a like default at a battalion or regimental muster, to a fine of four dollars, by statute of 1805, c. 114, and he is now liable to no other fines.
    This was a writ of error brought to reverse a judgment rendered by a justice of the peace. The original declaration was assvmpsit for money had and received, to the use of the original plaintiff, who is the plaintiff in error.
    The facts were agreed, before the justice, to be as follows: — The plaintiff had paid to the defendant the sum of [ * 172 ] * five dollars thirty-three cents, which the latter had demanded as clerk of a military company in Boston, in which the plaintiff was enrolled, that is to say, two dollars for a fine for his non-appearance at a muster of the company on the first Tuesday of May, 1807, and three dollars thirty-three cents for de ficiency of equipments at the same muster. The defendant agreed to take no advantage of the voluntary payment of the fines by the plaintiff, and the question referred to the justice upon the facts agreed, was whether the defendant had or had not a right to demand and receive the said fines. The justice rendered judgment against the plaintiff, who filed his bill of exceptions, from which the foregoing facts appear, and brought his writ of error to this Court.
    The defendant in error was defaulted ; and the Court calling on the plaintiff in error, who was an attorney of this Court, to suppor' his writ, he cited the statute of 1805, c. 114, <§> 6, which is in addition to the statute of 1793, c. 14, for regulating and governing the militia, &c. By the additional act, each non-commissioned officer and soldier, who shall unnecessarily neglect to appear at the time and place appointed for a battalion or regimental review or muster, armed and equipped according to the act of 1793, shall, in lieu of the fines noiv provided by law, pay, as a fine for each default, the sum oí four dollars, and at each company review or muster, for each default, the sum of two dollars.
    
    By $ 18 of the act of 1793, the requisite equipments of a non-commissioned officer and private are described, and he is ordered to be constantly provided with them. By <§> 19, if on a muster day, or at any other time of examination, he appears unprovided with such equipments, he shall pay a fine not exceeding twenty shillings, in proportion to the articles of which he shall be deficient, at the discretion of a justice, &c. By <§> 20, every person liable to do military duty, who neglects to appear, &c., armed, &c., shall pay, as a fine for such default, ten shillings; and every person who shall appear at any muster with his arms in an unfit condition, shall pay a fine of three shillings for each and every such default. By <§> 24, every captain is ordered to call his company together three days in each year, for discipline, and *once, on [ *178 ] the first Tuesday of May, for the express purpose of examining and taking an exact account, &c., at which time every article of equipment, &c., must be brought; and every person who shall on the said first Tuesday be absent, and shall not send his arms, &c., to be examined, shall be fined for every article not brought or sent, as is herein before directed, besides the sum of ten shillings for non-appearance, as aforesaid.
    By the act of 1793, the fine for non-appearance was the same at all reviews or musters, and a further penalty was inflicted for deficiency of equipments on the first Tuesday of May, if not at other times. Perpetual disputes arising from the disposition of the clerks of the military companies to demand fines, under the 19th § of that act for deficiency of requisite equipments, induced the legislature to make the new provision in the case contained in the law of 1805, c. 114, by which fines for deficiency of equipments are no 'anger to be demanded, in addition to fines for non-appearance. For each default in unnecessarily neglecting to appear, &c., armed and equipped, &c., the fine is now four dollars at a battalion or regimental muster, and two dollars at a company muster. The word default, by necessary construction, applies here as much to the neglect of arms and equipments, as to neglect of appearance: the w hole constitutes one offence, and is subject to one penalty by force of the words in lieu of the fines now provided by law, meaning all the fines m pari materia. It is very clear that the new fines are not intended to be added to the old ones. Yet the clerks of the companies, since the last statute, have demanded the newly-enacted penalties of four and two dollars for non-appearance, and also the penalties of the former act for deficiency of equipments, in lieu of which the new fines are imposed. So that for every default on the first Tuesday of May, they have demanded three dollars and thirty-three cents more than the law prescribes. The necessity of settling the true construction of the statute by the highest judicial authority will be very apparent, when it is considered that this extra penalty may amount, in the town of Boston alone, to a tax of three or four thousand dollars per annum.
    
    [ * 174 ] * Here the Court desired the plaintiff in error to show that a writ of error lies to this Court from a judgment of a justice of the peace, from which by law an appeal lies to the Court of Common Pleas
    On a subsequent day in the term, the plaintiff in error, in obedience to the foregoing suggestion of the Court, argued to the following effect: —
    1. It is observable that the statute of 1783, c. 42, describing the power of justices of the peace in civil actions, has no express words to that effect; it must, therefore, be by implication, that this Court is ousted of the power, which it might have exercised, had no appeal from such judgment of a justice been granted. His jurisdiction would then have resembled that of inferior courts of record in England, whose proceedings may be examined and corrected in the Court of King’s Bench by writ of error or certiorari. This Court has cognizance of all such matters as were cognizable by the Superior Court of Judicature, &c., under the provincial laws. The powers of that court are declared in the provincial act of 11 Will. 3, c. 3, to be as extensive as those of the Courts of King’s Bench, Common Pleas, and Exchequer, in England.
    
    2. The chief design of the statute, in giving an appeal from the judgment of a justice, was probably to give the party the advantage of a trial of the facts by a jury, for without such appeal the party could have brought error for matter in law. But in the present case, no trial by a jury was necessary, for the parties agreed on the facts ; and to have appealed to the Common Pleas would have been making a circuit to arrive at the object. “ Judgments,” says Sir Henry Hobart, “ are laws, when not to be reversed.” But if this question is to be definitely settled in the Courts of Common Pleas, it may happen-that we shall have different law in each county ot the state. If the decision of the Common Pleas would have given no more satisfaction than that of a justice of the peace, we ought not to be precluded from coming immediately to the fountain of law, without the special restriction of a statute. In Carter’s Reports, 222, Vaughan, C. J. of C. B., says, “ A writ of error out of an inferior court lies as properly here, as in the King’s Bench. *But generally writs of error for many years have not [ * 175 ] been brought here; the reason is matter of conveniency; because, if you bring a writ of error here, and the judgment is affirmed, yet it may be brought into the King’s Bench, and be there reversed; though, indeed, if a writ of error be brought here, we must proceed upon it. But no man will advise his client to bring it here, but rather into the King’s Bench, where it is final.”
    3. No question precisely similar to this can be found in the English books; for an appeal, as the word is used here, is not al lowed from any courts, whose proceedings follow the course of the common law. Facts may be as well ascertained by a jury in one court as in another. But any error of law may be shown to the King’s Bench, from the lowest court of record in the kingdom ; and that court cannot refuse cognizance thereof.
    4. Analogies of great weight are derivable from the practice ol the King’s Bench, in numerous instances of certiorari, of which that court will not be deprived, except by special and direct words of a statute.
    By the statute of 22 Car. 2, c. 1, <§> 6, commonly called the conventicle act, a strong presumption is raised, that the legislature intended to prevent the interference of the King’s Bench. But that court asserted their jurisdiction by certiorari to a justice, even after appeal, and a trial, verdict, and judgment by the Quarter Sessions, to whom only an appeal was granted by that statute. 
    
    The statute of 13 Elis. c. 9, had made orders of commissioners of sewers binding without the royal assent, and had also enacted that they should not be reversed but by other commissioners. Yet says Kelynge, C. J., in the King’s Bench,  “ It never was doubted but that this court might question the legality of their orders ; and you cannot oust the jurisdiction of this court, without particular words in acts of parliament. There is no jurisdiction that is uncontrollable by this court.”
    *The case of Rex vs. Whitebread, 
       taken in con- [*176 ] nection with the case of Rex vs. Abbot, reported at length in the margin of the principal case, strongly favors this notion of the jurisdiction of this court. In the first case, where there was no doubt of the intention of the legislature to take away, by statute of 6 Geo. 1, c. 21, the superintending process of certiorari by the King’s Bench, in cases under the statute of 12 Car. 2, c. 24, <§. 33, the court would not permit a certiorari to issue ; but the argument upon the necessity o.f an express restriction of their authority to award that writ is very complete. In the second case, Rex vs. Abbot, decided three years after, upon a statute of 11 Geo. 1, c. 30, $ 16, although the certiorari in parallel cases had been expressly taken away by a statute only one year before ; and although it was argued that there was no hardship in taking away the certiorari, for there is a remedy on the merits by an appeal from a conviction by justices to the Quarter Sessions, and, unless in matters of law or form, a defendant would have no redress, if a certiorari were allowed ; and, although the proceedings of the Quarter Sessions on the appeal might have been corrected in the King’s Bench, the court decided that the certiorari was not taken away. Lord Mansfield declares the old, established rule to be, “ that nothing but express negative words shall take away the jurisdiction of this court.”
    Let it be supposed that under the militia law of this commonwealth, which has provided that “ no appeal shall be allowed to either party from the judgment of a justice of the peace, upon any prosecution or complaint brought by any clerk of a company,” &c., an appeal had been allowed to military commissioners only, there to be finally determined ; from the above-cited decisions it seems that this Court wmuld not be deprived of their power of issuing a certiorari, any more than they now are by our present statute ; and that a party aggrieved might bring his case before this Court, without the intervention of the appellate jurisdiction. Yet it might be urged that justice might have been done, and the par- [ *177 ] ties satisfied with the judgment * of the Quarter Sessions in the English cases, or of the commissioners in the case supposed, and that this also might have been the result of an appeal to the Common Pleas in the present case.
    These instances are where statutory provisions have changed the order of proceeding; yet the higher courts of common law are not deprived of their superintending jurisdiction. But in the principal case, the proceedings pursued the forms of the common law, and, therefore, seem indisputably entitled to all the advantages of the common law, of which not the least is the superintendence of this Court over all inferior jurisdictions. If this Court cannot be ousted of this jurisdiction without special words ; if, in case no appeal from a justice’s judgment had been granted by statute, this Court would have controlled and corrected the erroneous judgment, —it seems equally empowered since the provisions of the statute granting appeals to the Court of Common Pleas. If it has cognizance, it ought, in the present case, to be exercised, or the meaning of the expression, that the writ of error is a writ of right, is exceedingly narrowed.
    The plaintiff in error, besides this argument, relied very much on the general tenor of the case of Mountfort vs. Hall, in error, 
       to confirm his opinion of the extent of the jurisdiction of this Court. That case was very fully argued, and carefully considered. The cause, indeed, turned upon the construction of a statute provision, taking away the right of appeal, in a certain case, from a justice’s judgment, which was alleged to be an unconstitutional provision. The whole Court,.however, supported the express meaning of the statute, and Sewall, J., said, “ This construction may be the more readily adopted, as any party aggrieved by a decision of a justice of the peace, or of any other court, upon a matter of law arising, and apparent upon the record or minutes of the Court, has another and more specific remedy, by writ of error or certiorari.”
    
    
      
      
        Rex vs. Moreley § Al. 2 Burr 1040. — 1 W. Black. Rep. 231, S. C.
    
    
      
       1 Mod. 45.
    
    
      
      
        Doug. 549.
    
    
      
      
        Ante, vol. i. 443.
    
   The opinion of the Court was afterwards delivered as fol lows by

* Parsons, C. J.

The proceedings of a justice of the [* 178 ] peace, in an action commenced before him, in which either party aggrieved at his judgment might have appealed to the Court of Common Pleas, have been brought before us by writ of error. We are satisfied that the writ issued improvidently, and for that cause must be quashed.

Titis Court, from the powers given it, has a general jurisdiction to correct errors in the proceedings of inferior courts, either by writ of error or by certiorari, according to the nature of those proceedings, in all cases where another remedy for the party aggrieved is not provided. From all judgments of a justice, where the party may appeal to the Common Pleas, and from all judgments of the Common Pleas, where an appeal lies to this Court, the remedy by appeal ought to be pursued. It is less expensive and more convenient than a writ of error ; and further relief may be granted on appeal than can be on a writ of error. On appeal, the cause of error may be removed by amendment; mistakes in fact on the merits may be corrected; neither of which can be done on error; and at the same time, an erroneous judgment below may be amended by the Court having appellate jurisdiction. The statute, in giving an appeal, has, in our opinion, taken away, by a reasonable implication, the remedy by error, unless in cases where the aggrieved party, without any loches on his part, could not avail himself of an appeal.

But if it appear on record that the plaintiff in error might have appealed, the Court will, ex officio, quash the writ; or the Court will quash it on a plea in abatement disclosing the plaintiff’s remedy by appeal. In this case, it appears on the record that the plaintiff in error might have sought his remedy by appeal to the Common Pleas. He cannot come to this Court per saltum, but he ought to have appealed, and if dissatisfied with the judgment of the Common Pleas, he might then have sued his writ of error.

As the point intended to be submitted to the Court is of general importance to the' militia, we will give our opinion upon it.

The eighteenth section of the statute of 1793, c. 14, declares what arms and equipments' each private soldier shall at all times [ * 179 ] be provided with. In the nineteenth, twentieth, * and twenty-fourth sections, penalties were imposed on the neglect of the soldier to appear on the parade, with his arms and equipments. If he neglected to appear, he was liable to a fine of ten shillings, and also to a fine of twenty shillings, if his arms and equipments were not on the parade. If part of them were there, then to a fine of such a part of the twenty shillings, as the articles of his arms and equipments absent were in proportion to the whole articles required; which proportion, from the nature of the equipments, it must have been difficult to ascertain. But the justice was bound to exercise his discretion. If the soldier appeared with his arms and equipments not in good order, he was to be fined three shillings; and perhaps a proportion of the twenty shillings for the articles not present. If he was absent, and his arms and equipments complete, he was then subject to a fine of ten shillings only. Sc that in every case where he was liable to a fine, he was liable tc more than one, except when all his arms and equipments were or the parade, and in good order.

To avoid this variety of fines, and perhaps to compel the personal appearance of the soldier on the parade, when he has no reasonable excuse, was the intention of the sixth section of the additional act. (Stat. 1805, c. 114.) By this section, for every default of appearance, armed and equipped, at a battalion or regimental muster, the soldier forfeits four dollars, and this sum is forfeited, whether he is present, not armed and equipped, or absent, and his arms or. equipments are, or are not, on the parade. But if the default be at a company muster, the penalty is only two dollars. And no other fines is he, in our opinion, liable to forfeit; and the justice’s discretion in the apportionment is taken away.  