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and his securities thereupon, in the same manner that sheriff's are proceeded against, on their bonds.
“Sec. 4. It shall be the duty of the clerks of the county commissioners' courts of the several counties in this state, upon the execution and filing bond as aforesaid, by any justice of the peace, to make out a certificate of the execution and filing thereof, under the seal of his office, and transmit the same to the governor of this state, who shall thereupon issue a commission to said justice of the peace.
“ Sec. 5. Justices of the peace, who shall have given bond and received commissions under the provisions of this act, are authorized and empowered, and it is hereby made their duty, to receive money on all notes and demands which may have been placed in their hands for suit or collection, and also upon all judgments rendered by them prior to the issuing executions thereon; and upon the failure of such justice, after demand made, to pay over any money, by him collected or received as aforesaid, to any person entitled to receive the same, his, or her agent or attorney, such person may proceed against such justice in a summary way, either before a circuit court, or some other justice of the peace of the county in which such first mentioned justice may reside, by motion, upon giving to such justice five days' notice of the application, and recover the amount so neglected or refused to be paid, with twenty per cent. damages thereon, for such detention, and shall have execution therefor: Provided, That in all such cases, if the said justice shall pay or satisfy the amount claimed by the party prosecuting, with costs, under the direction of the court or justice, before final judgment, all further proceedings therein shall be stayed.”
By the statute of this state, justices of the peace are declared to be conservators of the peace. They are, also, charged with the execution of many statutes, by some of which they are constituted judges, and may examine, hear, and determine; as in cases of assault and battery, and forcible entry and detainer, &c.
And a very important and extensive jurisdiction has been conferred upon them, unknown to justices of the peace in England ; that is, to hold plea, and to hear and determine in a number of civil actions, and in actions for the recovery of penalties given by the statute. And this is for the ease of the people, and that they may have justice done them near at home, without being delayed and put to the charge and loss of time which necessarily attend a resort to the circuit courts.
The powers and duties of justices of the peace, under each of these three branches of jurisdiction, will be separately and more particularly noticed in the following parts of this treatise.
By the fifty-sixth sec. of the act of Feb. 3, 1827, “ The justices of the peace within this state shall have power to administer all oaths required by law, and not particularly directed to be otherwise administered; and where any person, who shall be required by law to take an oath, shall be conscientiously scrupulous against taking such oath in the usual form, such person may affirm ; which affirmation shall have the force and effect of an oath." Gale's Stat., 414.
Where proceedings are authorized to be had before a justice of the peace under any statute, against any person, it is necessary that the justice should notify such person of the proceedings against him, whether such notice is expressly required by the statute or not. It would be a violation of one of the first principles of justice and of judicial proceedings, to try and decide upon the rights of an individual, either civilly or criminally, without notice, and, consequently, without affording him an opportunity of defending himself. 1 Scam. Rep.,515.
In summary convictions, the party ought to be heard, and, for that purpose, ought to be summoned in fact; and, if the justice proceed against a person without summoning him, it would be a misdemeanor in him for which an information would lie. 1 Salk. Rep., 181. Str., 678.
By the fifty-first sec. of the act of Feb. 3, 1827, “ Any justice of the peace may appoint a suitable person to act as constable in a criminal or other case, where there is a probability that a person charged with any indictable offence will escape, or that goods and chattels will be removed, before application can be made to a qualified constable ; and the
person so appointed, shall act as constable in that particular case, and no other; and any temporary appointments so made as aforesaid, shall be made by a written endorsement, under the seal of the justice deputing, on the back of the process, which the person receiving the same shall be deputed to execute.” Gale's Stat., 412.
The appointment of a constable pro tem., by a justice of the peace, to execute process under this statute, must be made by endorsement upon the back of the process; and this endorsement may be regarded as the commission of the special constable, without which his execution of the process entrusted to him would be illegal and void. An appointment upon a separate and distinct paper is not in compliance with the statute. The statute specifies but two cases in which a justice is authorized to appoint a constable pro tem.; the one is, to execute criminal process, where the accused is likely to escape ; and the other is, to execute civil process, where the goods and chattels are about to be removed before application can be made to a qualified constable; and, in the latter case, as a prerequisite to the power of appointment, it must be shown that the goods and chattels are about to be removed. It is, also, manifest, that the process contemplated by the statute and which the justice is authorized to depute an
individual to execute, is not a summons to the individual, or other personal notice, but it is an execution or an attachment against the personal property about to be removed, in order to secure to a creditor the means of satisfying his demand. 1 Scam. Rep., 488.
By the fiftieth sec. of the act of Feb. 3, 1827, “If any justice of the peace, or constable, shall fail, refuse, or neglect to perform any duty appertaining to his office, when required, or shall refuse to act as such justice or constable, when required, he shall be deemed guilty of a palpable omission of duty, and, on conviction, shall be punished accordingly.” Gale's Stat., 412.
By sec. 110 of the criminal code, “ Every justice of the peace, constable, &c., who shall be guilty of any palpable omission of duty, or who shall wilfully and corruptly be guilty of oppression, malfeasance, or partiality in the discharge of his official duties, shall, upon conviction thereof, be fined in a sum not exceeding two hundred dollars; and the court shall have power, upon the recommendation of the jury, to add to the judgment of the court, that any officer so convicted shall be removed from office."
Under this statute, James L. Wickersham, Esq., was indicted, and the indictment charged that he took up certain estray animals, specifying the number and kind, and corruptly caused them to be appraised before himself, a justice of the peace. A jury trial was had, and verdict of guilty, upon which judgment of fine and removal from office was rendered, upon the recommendation of the jury. On motion for a new trial, one of the errors assigned was, that the indictment contained no indictable offence. On this point Mr. Justice Smith, in delivering the opinion of the court, says, “We are to enquire whether an act of an official character, done by a justice of the peace, with a corrupt intent, is an indictable offence, and whether the indictment charged the commission of such an act with such an intent. By the 110th section of the act relative to criminal jurisprudence, passed in 1833, it is expressly provided, that justices of the peace may, for corrupt acts of oppression, partiality, or malfeasance in office, be indicted, and, upon conviction, they shall be fined and removed from office upon the recommendation of the jury. From the provision of the act, it cannot be doubted that acts of misconduct by justices of the peace, done with corrupt motives, are indictable offences.”—Again, he says, “ The indictment is substantially good, although it might have been more formal and particular in setting ont, specifically, each illegal and corrupt act embraced in the general allegation of causing the animals to be corruptly appraised before himself.” 1 Scam. Rep., 128.
In the case of Jones, plaintiff in error, v. the People, an indictment was found against Jones as a justice of the peace, for refusing to issue a subpæna at the request of John King, who was arrested and brought before him on a charge of perjury. The indictment charged that the said Jones, justice of the peace, as aforesaid, refused to issue subpænas for and on behalf of the said John King, and immediately forced the said John King into a trial, (an examination,) and adjudged him guilty of said offence, and required him to enter into a recognizance for his appearance, &c. The indictment averred that, in so refusing to issue subpænas at the request of said John King, the said Jones was guilty of malfeasance in office, &c. The defendant moved the court to quash the indictment. The motion was overruled, and the defendant was found guilty. On error to the supreme court, Mr. Justice Brown, delivering the opinion of the court, says, “ The indictment attempted to charge Jones with malfeasance in office. To make this indictment good, it ought to have charged that the defendant wilfully and corruptly refused to issue subpænas. The offence is not set out in the indictment in the terms of the statute, nor in such a way as it can be understood. The court erred in overrulling the motion to quash the indictment.” Judgment reversed and the cause remanded. 2 Scam. Rep., 477.
Where a justice has jurisdiction, but proceeds erroneously, he is not a trespasser; but where he has not jurisdiction, he is. If magistrates were always held liable for every trivial mistake they commit in the performance of their various duties, few persons would be found willing to accept an office of so little profit and attended with such great risk. Breese's Rep., 144.
If a magistrate officiously and without any complaint on oath, or of his own knowledge, issue his warrant to apprehend a person, he will be liable in an action of trespass. Breese's Rep., 165. And a warrant for a felony, founded upon an affidavit which stated " That A. B. entered the enclosure of C. D. and carried off her grain,” is no justification to the justice who issued the warrant, as the affidavit contains no words importing a felony. The justice had no jurisdiction, and this is apparent both from the affidavit and warrant, and the officer who acts under-such process cannot thereby claim to be justified. Breese's Rep., 18.
When a justice acts without acquiring jurisdiction, he is a trespasser; but having once acquired jurisdiction, an error in judgment does not subject him to an action. He is entitled to the protection afforded to a judge of a court of record. 17 Johns. Rep., 145.
In the case of Mather v. Hood, 8 Johns. Rep., 36, it was held, by the supreme court of New York, that a justice was justified while acting within his jurisdiction under the statute to prevent forcible entries and detainers. They say that the decisions are uniform that the record is not traversable, because the justice, in making it, acts not as a minister but as a judge; and, according to settled principles of law, a record of such proceedings which is regular and correct upon the face of it, cannot be questioned or traversed in a collateral action. It is a full and complete bar to any suit against the magistrate.
The jurisdiction of a justice of the peace, it seems, is not questionable in suit before him, on the ground that he is not qualified to hold the office, when he is in office by color of right and exercising the duties thereof. Breese's Rep., 68.
The acts of officers de facto are often valid as far as they concern the public and the rights of third persons. 9 Johns. Rep., 135. An officer de facto is one coming into office by color of election, and all his acts are good until removed; and such officer can only be removed by information in the nature of a quo warranto; Breese's Rep., 68. 7 Johns. Rep., 550; or by proceeding under the statute authorising his removal.
By the seventh sec. of the act of March 1, 1833, “ No justice of the peace shall be permitted to appear as counsellor for either party, on the trial of any appeal from any judgment which he may have rendered.” Gale's Stat., 424.
By the tenth sec. of the act of Dec. 30, 1826, “ Any clerk, sheriff, justice of the peace, judge of the election, or other person, who shall fail, neglect, or refuse to perform any of the duties enjoined by this act, relative to elections or the delivery of statutes, dockets, books, or papers, shall, for any such failure, neglect, or omission, forfeit and pay for the use of the county, to be recovered by action of debt, in the name of the county commissioners, in any court having jurisdiction thereof, if a judge of the election, clerk, or sheriff, the sum of ten dollars ; and if a justice of the peace, the sum of one hundred dollars.” Gale's Stat., 401.
By the sixth sec. of the act of Jan. 13, 1829, “ When any justice of the peace shall resign his office, or remove from the county or district in which he was elected, it shall be his duty to deliver over his docket, and papers relating to the business transacted before him, to the nearest justice of the peace of his county, and to return to the office of the clerk of the county commissioners' court all copies of the statutes which he may have received from that office; and in case of the death of any justice of the peace, it shall be the duty of the person having possession of said docket, papers, and statutes, to deliver them over as aforesaid. And any person, who shall refuse or neglect to comply with the requisition of this section, shall forfeit and pay a sum not exceeding fifty dollars, to the use of any person who may sue for the same in any court having cognizance thereof." Gale's Stat., 418.