*75Dissenting opinion by
Shepley, C. J.— The decisions made in the cases of Jackson v. Hampden, 20 Maine, 37, and of Fogg v. Hill, 21 Maine, 529, giving a different construction to the Act of 1835, c. 165, § 6, as reenacted in R. S., c. 115, § 22, with additional enactments, were made by the Court, when composed of different members. The first decision was made by Weston, EmeRY and Shepley. The second was made by Whitman and Tenney ; Shepley being at the time otherwise employed, and having no knowledge of it. The first decision had not been published when the last was made. When these conflicting constructions were published, it was deemed expedient to have the Legislature interpose, to declare what the effect should be of such proceedings.
The Act approved on August 2, 1847, appears to have been designed to prevent the possibility of such a construction of the 22d § of c. 115, as would make an offer to be defaulted for a certain sum, an admission of the plaintiff’s claim.
To accomplish this effectually, the words “the sum so offered,” were stricken out, and the words “'the plaintiff’s-costs,” were inserted in place thereof, because from the words stricken out an inference might be drawn, that the claim was admitted, and the contest was limited to the amount to be recovered.
By the second section it was provided that the offer “ shall in no case be held as an admission of the cause of action, or of any promise or indebtedness on the part of the defendant ; nor shall such offer be used as evidence before the jury, on trial of the action.” The mischief to be provided lor explains the amended enactment. It was to prevent its being regarded as an admission of the cause of action. If the purpose of the amendment had been to do more, and to-destroy the whole effect of the offer, except for the recovery of costs, when not accepted, it would have been much easier to have declared simply, that an offer not accepted should *76have no effect upon the rights of the parties, except for the recovery of costs. This construction is now proposed.
By the Act of amendment, c. 115, § 22, had been so amended as to provide, that in actions against towns under the provisions of c. 25, § 89, the town might avail itself of “an offer of judgment in Court, for any specified sum as damages, as is by law provided in cases of contract.” By the proposed construction the whole effect of such an offer not accepted, will be upon the costs. The town can make it in all cases with entire safety, and place the plaintiff in a condition of double risk of costs by failing to maintain the action, and by failing to recover more than the amount offered. And such may be the result in cases of contract between individuals.
For what purpose does a trial take place, after an offer made of a certain sum, but to obtain a larger sum, if the suit can be maintained.
But the verdict, it is said, establishes the rights of the parties. The record shows not a verdict only, but the record of an offer made in writing to allow the plaintiff to have a default entered for a certain sum, and to have a judgment entered therefor. The right of the plaintiff to take a judgment for that amount, is by the record as clear as his right to take judgment upon the verdict, unless the statute as amended deprives him of that right. The jury might with great propriety be prohibited from receiving any information respecting the offer, when the question is, whether the plaintiff without any advantage from the offer can recover more, and yet he might be left in the enjoyment of his full rights upon the whole record after verdict. A verdict exhibits no clearer, and not so secure a right to judgment as the record of an offer in writing to be defaulted for a certain sum.
The provision, that the offer shall in no case be held as an admission “ of any promise or indebtedness on the part of the defendant,” when considered in connexion with the provision, that it shall not be an admission of the cause of *77action, is perceived to be another form of words, designed to secure with more caution the same effect and no other. To insist upon a construction according to the letter, would deprive the offer when accepted, of all validity as the foundation of a judgment. If “ in no case” it can be received as an admission of “ indebtedness on the part of the defendant,” the Court can no more render a judgment upon it, when accepted, than it can after a verdict.
The construction should be such as will remedy the mischief, which produced the amendment, and which will allow the offer to have the effect designed.
This is the construction, which was regarded as correct in the case of Boynton v. Frye, 33 Maine, 216.
It is very undesirable to have conflicting decisions respecting the construction of statutes, and a decision once made should not be overruled, especially by members composing but a minority of the Court as then or now organized.
It will be perceived, that there are now more members of the Court of opinion, that the case of Boynton v. Frye, was correctly decided, than there are known to be of a different opinion. I must, therefore, still regard that opinion as exhibiting the correct construction of the statute, although it receives in this case a different construction by a majority of those members of the Court, who can legally take part in this decision.