366 - CHAP. IX. Of judgments, costs, and filing transcripts, - CHAP. X. Of execution; of inquests, &c., and trial of the right of property; of garnishment; of the liability of constables and their securities; and of executions issu- ed by the clerk of the circuit court, - CHAP. XI. Of the removal of causes to the circuit court, 495 PREFACE. THE office of justice of the peace, as well as most of our civil institutions, has been borrowed from England; and the common law of that country, and the statutes made in aid thereof prior to the year 1607, with some few exceptions, are, by a statute of this state, made the rule of decision. The administration of public justice, to a great extent, in civil as well as in criminal cases, is committed to the hands of justices of the peace. So varied and extensive have become their powers and authority, that to become well informed in the law relative to their duties, seems to be an object worthy of their attention. Indeed, the well being and good order of society, as well as the preservation of our civil institutions, and the protection of the lives and property of the citizens, depend very much upon the intelligence and fidelity of these magistrates. It might seem convenient to the justices, were they at liberty to disregard the law and set up their own notions of right and wrong; but such a power cannot safely be intrusted to any individual, however exalted may be his standing for moral worth and integrity, however extensive may be his attainments in literature and science, and however profound may be his knowledge of the law. Every person acquainted with the world, and the course of judicial proceedings, is aware that the mind of a judge, when governed by no rules, may easily be biased in innumerable ways, although he may consider himself entirely disinterested between the parties. Kent, when chancellor of New York, said, "I shall certainly not presume to strike out into any new path with visionary schemes of innovation and improvement: via antiqua via est tuta. It would, no doubt, be, at times, very convenient and, perhaps, a cover for ignorance, or indolence, or prejudice, to disregard all English decisions as of no authority, and to set up as a standard my own notions of right and wrong. But I can do no such thing. I am called to the severer and more humble duty of laborious examination and study. It was Lord Bacon who laid it down as the duty of a judge, to draw his learning from books and not from his own head." As in the remedy consisteth very much the law, it concerns every well meaning justice who takes upon himself the responsibility of judging between individuals and determining their rights, to make himself acquainted with the rules of proceeding in the various matters and suits which may be brought before him. "That courts of justice should be conducted without rules, and should decide without established principles, is of all speculations the most wild and pernicious. To substitute, in the place of settled law, the whim, the caprice, the affection, the inclination, or, what nine times out of ten is the same thing, the conscience of the judge, is to unhinge the long established rules of personal rights and of property, and to launch into a deceitful, fluctuating, and dangerous sea, without a compass to steer our course, or a landmark to guide our way." It is said, by our supreme court, that the obvious intention of all the legislation with respect to proceedings before justices of the peace is, to simplify the proceedings and dispense with all form and technicality consistent with a fair trial of the causes upon their merits. It is presumed, however, that the legislature did not intend to dispense with any of the substantial forms necessary to be observed in the progress of a suit, and only that the proceedings need not be drawn and conducted with the technical accuracy required in courts of record. Were it otherwise, it would be necessary, when suitors resort to these courts to obtain redress or satisfaction for injuries done to their persons or property, to consult the caprice and inclination of the justice rather than the rule of law. But it is not supposed that the legislature intended to authorize such a departure from the known and established rules; for in most of the proceedings before justices of the peace, the rules by which they are to be governed are marked out with considerable exactness and precision. As yet, there is no treatise specially confined to the powers and duties of justices of the peace in this state; and many of the justices have not the means of acquiring such a knowlegde of their duties as to enable them to act with promptness and despatch. The number of copies of the statute laws of this state which have been published is so small, that it is with much difficulty they can be obtained, and, in some counties, even the public offices are not supplied with them. Many books have been published, both in England and in this country, which contain much valuable information; none of them, however, are practical guides for justices of the peace in this state, and but few of them would be willing to incur the expense of purchasing those books, and the statutes and the reports of the supreme court of this state, merely for obtaining the requisite information concerning their duties in the various branches of their jurisdiction. From these considerations, this work has been undertaken; and its object is, to furnish to justices of the peace a practical guide in most of the cases wherein they may be called to act. On account of the doubts and embarrassments which continually perplex and harass the greater number of justices of the peace while engaged in the discharge of their duties, the importance of any effort which may tend to render their path more plain and easy, will, undoubtedly, be appreciated. Any further apology seems to be superfluous; for every person in the least acquainted with judicial proceedings, is aware that accuracy, in every respect, cannot be attained in the practice of a court, so little of which has been settled by judicial decisions as that in the courts of justices of the peace in this state. In considering the office and the powers and duties of justices of the peace, First-Will be given, a brief account of the origin and office of justice of the peace in England; Second-Will be considered their election and office in this state. Their powers and duties will be more particularly noticed under the separate branches of their jurisdiction. |