101 employment, hooting at others taking their places, may be bound over to keep the peace.' Besides actual breaches of the peace, anything that tends to provoke or excite others to break the peace is an offense of the same denomination. Therefore challenges to fight, either by word or letter, or to be the bearer of such challenge, are punishable by fine and imprisonment, according to the circumstances of the offense.1°* To take surety of the peace means to require a person to bind himself, and, when expedient, to procure others also to bind themselves as sureties for him, in a penal bond, or recognizance, that he will keep the peace for a certain time toward the sovereign (in England), toward all his subjects in general, and in particular, toward the person who appears peculiarly to require this protection. In the United States, the bond is to the state. A justice of the peace or magistrate may, at his discretion, and without any application from any other person, although usually founded upon proof of the necessity, bind to keep the peace all persons who in his presence make an affray or threaten a breach of the peace, or contend with hot words, so as to give reasonable apprehension that a breach of the peace will follow, or go about armed with unusual weapons and armed attendants, or are brought before him for a breach of the peace, or are convicted of having forfeited former recognizances to keep the peace. This proceeding is in harmony with the means for preventing the commission of crimes and misdemeanors. Preventive justice is, upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice, the execution of which, though necessary, and in its consequences, a species of mercy to the commonwealth, is always attended with many harsh and disagreeable circumstances." The taking of the surety is regulated by statute. Although, as stated, it may be at the magistrate's own discretion, it is considered by many authorities to require a formal complaint in writing and upon oath, to justify the justice in issuing a warrant against the party 103 101 Bouv. Law Dict.; 11 Pa. Co. Ct. 481 (1892). 1024 Black. Comm. 150. 1034 Black. Comm. 251. complained of.10 106 105 In the United States, the proceeding may be brought in the name of the state without any relator,' and the justice can only require the accused to find sureties of the peace until the next court.' In England, the obligation is to the king, and the recognizance is usually certified to the next sessions, though it may be required for a limited time, according to the justice's discretion. If the condition. of the recognizance be broken by any breach of the peace, the recognizance becomes forfeited or absolute, and the parties and his sureties will be subject to suit for the sums in which they are bound.' 107 29. Recognizance for Good Behavior. - What has been said concerning recognizance for the peace is applicable to recognizance with sureties for good behavior. The latter includes security for the peace, and somewhat more.' 99109 108 The English statute authorizes justices "to bind over to the good behavior towards the king and his people all them that be not of good fame, wherever they be found; to the extent that the people be not troubled nor endangered, nor the peace diminished, nor merchants and others, passing by the highways of the realm, be disturbed nor put in the peril which may happen by such offenders.' Under the expression "that be not of good fame," it is held that a man may be bound to his good behavior for causes of scandal, against good morals, as well as against peace; as, for haunting bawdyhouses with women of bad fame, or for keeping such women in his own house; or for words tending to scandalize the government; or in abuse of the officers of justice, especially in the execution of their office. Thus, also, a justice may bind over all night walkers, eavesdroppers, reputed pilferers or robbers, common drunkards, and vagabonds.' 110 A recognizance for good behavior may be forfeited by the same means as one for surety of the peace, and also by some others, as, by going armed with unusual attendants, to the 104 23 Wend. (N. Y.) 638 (1840). 10566 Ind. 72 (1879). 1068 Mass. 78 (1811). 1084 Black. Comm. 256. 109 Ibid., citing Stat. 34 Edw. III. c. 1. 110 Ibid., p. 256. 1074 Black. Comm. 253; 4 B. & Ald. (Eng.) 487 (1821). terror of the people; by speaking words tending to sedition; or by committing any of the acts of misbehavior which the recognizance was intended to prevent, but not by giving fresh cause of suspicion of that which may never actually happen.' 111 In the United States, it is judicially declared that surety for good behavior "is either required after conviction for some indictable offense, in which case it forms part of the judgment of the court, and is founded upon a power incident to courts of record by the common law, or it is demanded by judges or justices of the peace out of court, before the trial of a person charged with an offense in pursuance of authority derived from a statute, made the 34th year of Edward III. . . . The natural meaning of the words 'persons not of good fame' seems to be those who by their general evil course and habits of life had acquired a bad reputation, and were supposed to be dangerous to the community. In process of time, however, the construction of these expressions has been extended far beyond their original meaning, and persons are now commonly held to find surety for good behavior who are not generally of ill fame, but have only been charged with some particular offense. . . The most that can be said with regard to recognizances for good behavoir is that they are demandable or not at the discretion of the judge. They differ from recognizances to keep the peace in two important features: (1) Surety for good behavior is more extensive in its nature than surety for the peace, and may be more easily forfeited and therefore should be exacted with great caution. (2) Surety of the peace is demandable of right by any individual who thinks himself in danger of bodily hurt, and will make the necessary oaths; but that principle has not been applied to surety for good behavior. . . . It will be most agreeable to the spirit of our constitution . . . to adopt it as a rule, not to demand surety for good behavior before conviction." 1114 Black. Comm., p. 257. 99112 1121 Binn. (Pa.) 101 (1804), citing Comth. v. Duane, by Tilghman, C. J.; 3 Phila. 509 (1859). 113 LIABILITY 30. A justice of the peace is liable for wrongful performance or non-performance of his ministerial acts. A party wronged or injured by any such misconduct in office on the part of the justice may bring an action for damages against the wrong-doer.' He is not by law entitled to the services of a clerk, and the duties of clerk of his own court devolve upon him. Refusal to perform such duties to the prejudice of any one will make him liable in damages to the party injured." Unless specially provided, a justice is allowed nothing for compensation of a clerk; nor is he allowed for office furniture, stationery, and the like." 115 It is only for ministerial acts that a justice can be held liable; for judicial acts he is not responsible. This rule is uniform in England and in the United States." Judicial acts are those which are to be done or not, as the judgment of the person required to do it dictates; they are such as are usually performed by a judge of a court. Ministerial acts are those which the law requires to be done, without reference to the judgment of the person required to do it, when certain circumstances exist; they are such as are of a clerical nature- similar to the official acts of a clerk of a court. The former are discretionary; the latter, imperative. An act is not the less ministerial because it requires the exercise of judgment in the preliminary task of determining whether all the facts exist which are the necessary basis of the ministerial act required to be done. To make an order or to adjudicate upon the guilt or innocence of an accused person, is a judicial act, depending altogether on the view which the magistrate in the exercise of his judgment takes 113 119 Ala. 518 (1898). 114 64 Vt. 203 (1892); 22 Ohio St. 317 (1872). 1159 Colo. App. 161 (1897). 116 166 Mass. 303 (1895). 1173 B. & C. (Eng.) 649 (1824); 66 Ga. 228 (1881); 65 Ind. 106 (1879); 107 Mass. 118 (1871). But the mere entering of the law and the facts of the case. upon the inquiry is ministerial; the law casts on him the duty of holding it; the discharge of that duty is, in fact, initiatory to the judicial proceeding, and the magistrate has no discretion to exercise as to whether he shall hold it or not."1 So, where an act deprives a successful plaintiff of costs, unless the judge certify that the case falls within a certain class, the grant or refusal of the certificate is a judicial act, for it rests entirely in the judge's discretion, turning on the view which he may take of a question of law or fact.' But when an act provides that if justices dismiss a complaint they shall grant a certificate of the dismissal to the applicant for it, the grant of it is a purely ministerial act, which it is imperative on them to perform as soon as it appears that the complaint was in fact dismissed." 121 120 119 For judicial acts, whether right or wrong, no action can be brought against a justice of the peace. The only question that can be raised in respect of judicial acts is that of jurisdiction of the parties, or of the subject of controversy. Where he acts fraudulently or maliciously, there exists a remedy by impeachment or by indictment for misconduct in office. Mistakes as to jurisdiction will, in general, render a justice liable.""" This exception to the general rule that a justice cannot be held liable for judicial acts has in some cases been challenged, as this class of judicial errors as well as any other can be corrected by appealing to a higher court. Where the question of jurisdiction of the justice is dependent on the existence of certain facts, before the justice can be held liable for a mistake as to jurisdiction, it must appear that he was acquainted with such facts. 123 Where the justice makes error of law, or commits mistakes in the course of a case trying before him, the party injured may obtain redress by appealing the case to a higher court, where such errors may be corrected. This is, in general, 1189 Cl. & F. (Eng.) 251, 263, 313 (1842). 12133 N. J. Law 134 (1868); 33 Ohio St. 12220 La. Ann. 444 (1868). |