A dissenting opinion was delivered by
W hitman C. J.The first question to be considered is, will exceptions lie in a case of this kind. If not, we cannot be at liberty to contravene the rules of law by entertaining them. Exceptions, in reference to matters not appearing of record, were first introduced by the statute of Westminster 2. (13 Ed. 1, ch. 31.) This statute authorized the taking of exceptions in all actions, whether real, personal or mixed, 2 Inst. *429427; and to all pleas dilatory, peremptory, prayers to be received, oyer of record# and deeds, challenge of jurors, and any material evidence offered, and overruled. Id. and 1 Ld. Raym. 486. These bills of exceptions were tacked to the record, and laid the foundation for a writ of error. But they were not considered as allowable, except in proceedings had according to the course of the common law; for error would not lie except in such cases. Groenvell v. Burwell, 1 Salk. 263; Melvin v. Bridge, 3 Mass. R. 305. In a proceeding under that statute a judgment could only be reversed or affirmed. If reversed, the plaintiff therein, to obtain redress, must begin de novo. It was certainly desirable that this inconvenience should be removed.
Accordingly a statute was enacted (ch. 185 of 1817,) in Massachusetts, Maine being then a part of that State, that any party, thinking himself aggrieved by any opinion, direction or judgment of any Court of Common Pleas in any matter of law, may allege exceptions to the same; and that the Supreme Judicial Court should “ have cognizance thereof, and consider and determine the same action in the same manner as they are authorized to do in respect to actions of law reserved in any of the modes prescribed by law, by any one Justice of the Supreme Judicial Court; and shall render judgment and issue execution thereon; or may grant a new trial at the bar of said Court as law and justice shall require.”
This language was very comprehensive, and ordinarily would seem to be sufficient to embrace every error supposed' to be committed by that Court. It was not limited or restricted by the use of the words “action” or “cause of action,” which if used, might seem to imply, that it should be confined to a common law proceeding; yet the generality of the operation has not been adjudged to be co-extensive with the literal import of the enactment. It not unfrequently happens that general terms used by the Legislature, must be taken in a comparatively limited sense. If it were not so, much mischief would sometimes ensue. Cases will arise, which will come within the letter of an enactment, and yet be foreign to *430what could have been in the contemplation of its authors. Various matters, decided in the Court <?f Common Pleas, have been held not to come within the purview of this statute. One class of which consisted of matters depending upon the exercise of powers confided necessarily to its discretion. Reynard v. Becknell, 4 Pick. 302; Whitney v. Thayer, 5 ib. 528 ; Gray v. Bridge, 11 ib. 189. Another class consisted of such actions as were manifestly intended to be confined to the jurisdiction of that court. Dean v. Dean, 2 Pick. 25; Gile v. Moore, ib. 386.
Mr. Justice Preble, in Sayward v. Emery, 1 Greenl. 291, says, the filing of summary exceptions “should be limited to cases where exceptions may be filed by our common law.” Mr. C. J. Mellen, in the same case, expressed his concurrence in the view taken by his associate. The same statutory provision was re-enacted in Massachusetts,' in 1820, c. 79, § 5; in reference to which Mr. Justice Morton, in delivering the opinion of the Court, in Endicott, pet’r. &c. 24 Pick. 339, admits, that the expressions of the statute are broad enough to cover all cases; yet he says, “ wo are of opinion that the right of alleging exceptions is confined to cases, where the proceedings are according to the course of the common law ; for in such cases only has this Court power to re-try the action.”
Since the separation of this State from Massachusetts the same enactment, and substantially if not precisely in the same terms, has been several times repeated. And in our Revised Statutes, c. 97, § 18, the language is, “ any party aggrieved by any opinion, direction or judgment of the District Court, in any matter of law, in a cause not otherwise appealable, may allege exceptions.” And if exceptions are sustained this Court (<§> 19) are to “ have cognizance of the same, as they may actions originally commenced” therein. This delegation of power, in this particular, is believed to be identical in substance with that contained in the previous statutes on the same subject. The word “ cause,” in § 18, was doubtless used as a synonym with the word “action,” in § 19. The Legisla*431ture are not supposed to be very precise or technical in the use of language. The subject matter seems to show, that in the use of these different terms they had the same thing in view.
The Revised Statutes have been enacted since the explanations in the cases cited had occurred; and the sections first quoted must be believed to have been enacted with a full understanding of the expositions, which had. been made ; and the makers of the law in question must be regarded as being content therewith. If not so, it is certainly inexplicable, that the enactment should have been so continued, without variation or- further explanatory provision. It is believed, that it is commonly, if not invariably, considered, when a statute is in the same terms re-enacted, after judicial construction has been expressly given to it, that the construction is adopted with it.
Whenever the District Conn may be vested with special powers, to be exercised without the intervention of a jury, and its proceedings therein are not in any event to be according to the course of the common law, and this Court is not specially authorised to execute the same powers, summary exceptions will not lie ; for this Court, in such case, upon sustaining exceptions, could not proceed to trial as if the prosecution had been originally commenced in it. In case of an application, like the one preferred in this instance, the powers delegated to the District Court are to be exercised by it in a good measure according to its discretion. No trial by jury, according to the course of the common law, can be had in reference to any part of the proceeding. By ^ 7 of the statute upon which this process is founded, that Court, in the county in which any of such kindred to be charged shall reside,” on due hearing, may apportion and assess “ such sum as they shall judge reasonable,” with costs, to be apportioned at their discretion among the respondents. By *§> 8, “ the said Court may further assess and apportion upon the said kindred, such weekly sum for the futuro as they shall judge sufficient,” &c. By § 9, “ the said Court, may further order with whom of such kindred, that may desire it, such pauper *432may live, and be relieved ; and for such time with any or either as they shall judge proper.” And by § 12, “ the said Court, may take further order, from time to time in the premises, upon application from any party interested,” &c. These powers are all special, and particularly confined to the District Court. The Supreme Judicial Court is not intrusted with any one of them ; and they are inappropriate to its general common law jurisdiction and modes of proceeding.
In the case, ex parte Pierce, 5 Greenl. 324, in which an appeal was claimed from the decision of the Court of Common Pleas, which this Court refused to sustain, it was, in addition to another reason for refusing to sustain it, said, “ that in this case moreover the statute contemplated further proceedings, from time to time, in the Court of Common Pleas, to increase or diminish the amount assessed, for which purpose it was necessary that the record should remain in that Court.”
By ■§> 16, of the same act, the overseers of the poor are authorized to apply to the District Court, “ in the county where their town is,” in reference to paupers bound out as apprentices or servants, against the master of such apprentice or servant, alleging abuse, ill-treatment or neglect; and the Court thereupon may discharge the person so bound or not; and award costs at their discretion “ as the complainants may appear to be justified by probable cause or not.” Again ; —by <§> 23 and 25, further powers of a similar character are conferred upon the District Court. In none of these instances could it ever have been intended, that exceptions should be taken so as to bring the applications into this Court, to be here proceeded in: and yet no reason is perceived why they should stand on a different footing from the cases before us.
In Gile v. Moore, 2 Pick. 306, it was held that summary exceptions would not lie in a process of-bastardy; and in Dean v. Dean, ibid. 25, that they did not lie in the case ot the acceptance or rejection of a report of referees, on a submission entered into before a justice of the peace. These two decisions were doubtless based upon the principle, that the proceedings in them were not according to the course of the *433common law; and also upon the position, that powers were conferred, particularly in the former, expressly to be executed by the Court of Common Pleas. They were, however, made in Massachusetts, since this State was separated from it, and are, therefore, not authoritative with us, although entitled to very great respect. But the law here was understood to be in conformity to them, until lately; and it may not be quite clear, that, upon the question being directly made to the Court, it would not now be so considered. Anterior to 1839, the process by certiorari had been resorted to, uniformly, to bring questions in a process of bastardy before this Court. Dennett v. Kneeland, 6 Greenl. 460; Tilson v. Rawley, 8 id. 163; Loring v. O’Donnel, 12 Maine R. 27. And in Cook, pet. &c. 15 Pick. 234, the Gourt say expressly, that where a writ of error will lie certiorari will not; and this is believed to be an undeniable proposition. A writ of error is suable at the pleasure of the party of record; but a certiorari only at the discretion of the Court. A party having a right to sue out a writ of his own mere motion, can have no right to apply to the Court for a writ, grantable only at their discretion, to accomplish one and the same object.
But in 1839, Kenniston & ux. v. Rowe, 16 Maine R. 38; and in 1840, in Bradford v. Paul, 18 id. 30; Woodward v. Shaw, id. 304; Low v. Mitchell, id. 372, all processes in bastardy, exceptions were taken and allowed; and the causes were brought into this Court. In neither does it appear, that it occurred to the counsel or the Court to consider of the propriety of such a procedure. The exceptions, however, in each case were overruled; and so it became less material to consider whether exceptions in such cases should be entertained or dismissed; and the Court were thereby relieved from considering what it would have become indispensable that they should do in case the exceptions were sustained; and how they should have disposed of the provisions, expressly requiring the proceedings, till the case had proceeded to judgment, to be in the Court below; and that the verdict, (c 131, § 10) there returned should be final. There has, therefore, *434been no decision upon a question raised, and directly presented to the Court, that exceptions could with propriety be allowed in such a case. And until such a question shall be made, so as to require a decision directly upon it, we may well abstain from any opinion upon the point. One thing we must admit, however, which is, that a certiorari could not with propriety have been allowed in the former cases, or that exceptions were erroneously allowed in the latter.
If it should be supposed, that the cases of the flowage of lands, under the act of 1821, c. 45, in which exceptions in several instances have been allowed in the Court below, and entertained in this Court, were analogous to the case at bar, it may well be replied, that the trial by jury, which is a common law proceeding, is there provided for, and an appeal expressly allowed from a decision in such cases, under certain circumstances, to this Court; so that a common law proceeding is contemplated therein ; and, when an appeal was allowable, it would bring with it every subsequent incident, which could take place under the process. There was in that act no indication, as in the one on which the case at bar is founded, that all the proceedings were to be confined to the Court below; and to a trial therein without a jury.
Besides; in two of those cases decided in this Court, viz. Burrell v. Morton, 3 Fairf. 345; and Jones v. Pierce, 16 Maine R. 411, the exceptions, as were those in the processes in bastardy, were overruled; and without any allusion to the question, as to whether they should have been allowed or not; and without reference to the decisions in Massachusetts, while we were a part of that State; viz. in Vandusen v. Comstock, 3 Mass. R. 184; Lowell v. Sprague, 6 id. 398; and Commonwealth v. Ellis, 11 id. 462, in which a process by certio-rari was adopted for a similar purpose. And in two others, viz. Seidensparger v. Spear, 17 Maine R. 123 ; and Rackley v. Sprague, id. 281, in this Court, exceptions had been taken, in reference to matters, in regard to which the statute clearly contemplates that this Court should have cognizance; and it is not apparent why the cases should not have come here by *435appeal; and why, for that reason, no exceptions should have been allowed.
On the whole, it seems to me very clear, that the exceptions in the case before us should be dismissed.