PRELIMINARY REMARKS.

OF THE JURISDICTION AND POWERS, APPOINTMENT AND TENURE OF
OFFICE OF JUSTICES OF THE PEACE.

1

THE jurisdiction and powers of justices of the peace are derived
from statute provisions. Their powers and duties, both in civil and
criminal matters, are so particularly enumerated in our statutes, as to
leave very little, if any, occasion for recurring to the ancient English
statutes for guidance or information upon the subject; and perhaps
the enumeration itself may be construed to preclude such recurrence for
the purpose of infering any power not enumerated.2

Justices of the peace are nominated, and, with the advice and consent
of the Council, appointed by the governor of the State. Their tenure
of office, like that of all judicial officers in the State, is seven years.
They are subject, however, to removal by impeachment, or by address
of the Legislature to the Executive.

Justices are not unfrequently appointed with powers extending
throughout the State," but ordinarily for some one county only.

The office of justice of the peace is incompatible with any office
belonging to the executive department. Sheriffs, deputy sheriffs, con-
stables and coroners cannot, for example, exercise the powers properly
belonging to a justice of the peace."

In the following pages we shall first speak of the civil jurisdiction of
justices, and then, separately, of their criminal jurisdiction.

PART I.

OF THE JURISDICTION AND POWERS OF JUSTICES OF THE PEACE
IN CIVIL MATTERS.

CHAPTER I.

OF JUSTICES OF THE PEACE AS DISTINGUISHED FROM JUSTICES OF
THE PEACE AND OF THE QUORUM.

THE word used to distinguish justices of the peace from such of
them as are of the quorum, is taken from the commission issued in the
mother country to certain magistrates eminent for their skill and
discretion, one of whom [unus quorum] was required always to be
present when certain matters were to be inquired into ;' and justices
of the quorum are under our statutes, invested with certain important
powers denied to ordinary justices of the peace.

The examination of debtors under the laws for the relief of poor
debtors, is had before justices of the peace and of the quorum.*

Any two justices of the peace and quorum have power to admit to
bail persons committed, in certain cases."

Important powers, in the commitment, and in the release from con-
finement, of insane persons, is given to justices of the peace and of the
quorum, or to justices, one of whom shall be of the quorum."

4

Depositions, in actions not pending, to perpetuate the testimony of
witnesses, can be taken by justices of the peace and quorum only."
Jurisdiction in cases of forcible entry and detainer is, with certain
exceptions, given to justices of the peace and of the quorum.

It need hardly be added, that justices of the quorum are justices of
the peace, to whom, by their commissions, certain special powers are
given in addition to those of justices of the peace merely.

11 Black. Com. 351.

2R. S. 148, sec. 24.

R. S. ch. 171, sec. 22-Stat. 1850, ch. 152.

*R. S. ch. 173 stat. of 1848, ch. 33-stat. of 1847, ch. 79.
R. S. ch. 133, sec. 25.

2

CHAPTER II.

OF THEIR JURISDICTION AND AUTHORITY.

THE Constitution requires justices to qualify themselves by taking a prescribed oath or affirmation; and it is unlawful for them to act as such without so doing. Their judicial acts, however, will not for this cause be invalid;' it seems also, that a magistrate found acting as such will be presumed to have taken the requisite oaths."

The powers of justice of the quorum have already, in a general manner, been spoken of, and will in a subsequent chapter be more particularly treated. We shall confine ourselves in this chapter to a general enumeration of the civil powers of justices of the peace.

The jurisdiction of a justice of the peace is confined to the county for which he is appointed; but in all cases of scire facias against bail, or the endorsers of writs, or executors and administrators, and in all trustee processes, or original writs against two or more defendants, when a defendant or trustee resides out of the county where the proceedings are had, he may direct the writ or execution to any proper officer of the county where the defendant or trustee resides.' The action must, however, in the last named cases, be brought in the county where one of the defendants, or one of the trustees resides. Personal property may also be attached on a writ against a single defendant or seized in execution against a single debtor, in any county in the state.* And whenever any debtor, against whom judgment has been rendered, shall remove or be out of the county in which such judgment has been rendered, execution may be issued by the justice by whom the judgment was rendered, directed to the proper officers in any county.* It is commonly said in the law books, that nothing is to be presumed in favor of the jurisdiction of inferior magistrates-a rule of some value in cases of doubtful jurisdiction.

13 Barn. and Ald. Rep.

24 Cranch. 180.

3R. S. ch. 116, sec. 17-ib. eh. 119, sec. 5-act of 1842, ch. 10, sec. 3. *Act of 1842, ch. 10, sec. 1.

$Ib. sec. 2.

18 Maine 340.

I. OF THEIR JURISDICTION, GENERALLY, IN CIVIL ACTIONS.

Every justice of the peace, excepting those residing in any city or town in which a municipal or police court is established, the judge of such court not being interested in the suit, has power to hold a court within his county, and has original and exclusive jurisdiction of all civil actions, wherein the debt or damages demanded (or, in replevin, the value of the property claimed) does not exceed twenty dollars, excepting real actions, actions of trespass on real estate, actions for disturbance of a right of way, or any other easement, and all other actions wherein the title to real estate, according to the pleadings, or the brief statement filed in the case by either party, may be in question; and in prosecutions for penalities, though his town may be interested in the penalty.1

In the personal actions mentioned in the above exception, when the sum demanded does not exceed twenty dollars, justices have original jurisdiction, concurrently with the District Court."

When it shall appear, in either of the ways before mentioned, or, in replevin for beasts distrained or impounded when it shall appear in any way, that the title to real estate is concerned or brought in question, the case shall, at the request of either party, be removed to the District Court. The proceedings to be had in removing an action in such case will be noticed hereafter.

Actions for injuries done to real estate may be brought before a justice of the peace in the county where a defendant resides, notwithstanding the general rule that such actions must be brought in the county within which the real estate lies, and if title to real estate is in question, may be removed to the District Court for the same county."

II. OF THEIR JURISDICTION IN CIVIL PROCEEDINGS SPECIALLY
GIVEN.

Justices of the peace, as well as judges of Municipal and Police Courts, have power to compel, by capias, the attendance of witnesses duly summoned to attend in matters depending before them; to fine them at their discretion a sum not exceeding twenty dollars; and to commit them till such fine, and costs of capias and commitment, are paid.*

1R. S. ch. 116, sec. 1. 2Ib. sec.. 2.

310 Pick. 504.
4Stat. of 1847, sec. 1.

JURISDICTION AND AUTHORITY.

13

They have also power to compel them, by fine, to answer questions duly propounded to them, and to commit till fine and costs are paid.1

Every justice of the peace may issue writs of scire facias against executors or administrators, upon a suggestion of waste, after judgment against them; and also against bail taken in any civil action, and against endorsers of writs; and may enter judgment and issue execution, as any court might do in like cases.2 The nature and form of such writs are treated of in another part of this book.

In scire facias against bail, it is no bar to the process, that the debt and costs in the original judgment, when added together, exceed the sum of twenty dollars."

When any justice of the peace shall die, after having given judgment in a cause, but before such judgment is satisfied, any other justice for the same county may, on complaint of the creditor, cause the record of such judgment to be brought before him, and it shall be trancribed upon his own book of records. Such transcription, duly proved, becomes legal evidence in all cases, where an authenticated copy of the original might be received. Such justice may also issue execution on such transcribed record, in the same manner, (changing the form, as the circumstances shall require,) as if the judgment had been rendered by himself; but no execution can issue, in such case, after the expiration of one year from the time it was rendered, unless after scire facias.*

Any person, in whose possession the record of such judgment may be, who shall contemptuously refuse to produce the same, or to be examined respecting it, on oath, being duly summoned for that purpose by a justice of the peace, may be committed to prison by such justice, as punishment for the contempt, to be detained until he shall submit to such examination, and produce the record."

Every justice who may remove from the State, is required, before his removal, to deposit with the clerk of the courts in his county, all his records and papers, appertaining to his office, and is made liable to heavy penalties for neglecting so to do."

Any justice, whose commission has expired, and shall not be renewed, is authorised to issue and renew executions on any judgment by him rendered while in commission; and also to certify copies of judgments

1Stat. 1847, sec. 2.
2R. S. ch. 116, sec. 16.
R. S. ch. 118, sec. 13.

R. S. ch. 116, secs. 19, 20, 21, 22.

Ib. sec. 19.

Ib. sec. 23, 25.