justice of the peace, in which both parties interested, or either of the principal parties, and a person summoned as trustee, are inhabitants of, or resident in said town; also in all cases of forcible entry and detainer in said town.' The town court for the town of East Thomaston, has exclusive and original jurisdiction within the town, over all matters which justices of the peace may by law take cognizance of and exercise jurisdiction over; and of the action of forcible entry and detainer in like manner with justices of the peace and quorum; also concurrent jurisdiction with the District Court in all suits in which a defendant resides in that town, and the debt or damage sued for and claimed, does not exceed one hundred dollars." The Municipal Court for the town of Rockland has exclusive jurisdiction in all civil actions cognisable by a justice of the peace, in which either of the parties, or any person who shall appear of record as interested in any such suit, or any person who shall be named therein. as trustee, is a citizen of or resident in said town; and also in all cases of forcible entry and detainer in said town." The jurisdiction of the Police Court of the city of Gardiner is somewhat peculiar. It has concurrent jurisdiction with justices of the peace, in all matters, civil and criminal, under twenty dollars, within the county; and original and exclusive jurisdiction in all civil actions in which both parties interested, or in which the party plaintiff, and the person or persons summoned as trustees, shall be inhabitants of, or residents in said city of Gardiner, excepting all actions in which the Judge may be interested. The jurisdiction of this court is original and exclusive in all cases of forcible entry and detainer arising in the city. It may be presumed, that the Legislature did not intend to give the court exclusive jurisdiction in any case not cognisable by justices of the peace, that is, in civil actions in which the debt or damages demanded exceed twenty dollars.* The act of 1844, establishing town courts in such counties as, by vote of the people of the counties, approved of the same," is understood never to have been in force in any county, with the exception of that 1Act of 1849, ch. 110, sec. 2-ib. ch. 195, see. 3. Act of 1850, ch. 165, sec. 2. 2Act of 1849, ch. 128, sec. 1. 4Act of 1849, ch. 281, sec. 11. "Act of 1844, ch. 128. of Waldo; and in that county the jurisdiction of justices of the peace, in the trial of all civil cases, has been fully restored.' The acts passed at different times upon the subject of town courts are referred to in the notes.2 V. OF A DISQUALIFYING INTEREST. No justice of the peace can lawfully sit in a case, in which he may have a pecuniary interest; nor does it make any difference, that the interest appears to be trifling.3 Justices have no jurisdiction of actions in which either of the parties are related to them, either by consanguinity or affinity, within the sixth degree, inclusive, according to the rules of the civil law, or within the degree of second cousin, inclusive, unless by consent of the parties interested.* In prosecution for penalties, however, they have jurisdiction, if otherwise entitled, notwithstanding their town may be interested in the penalty. 1 Act of 1848, ch. 47. "Act of 1846, ch. 222, act of 1847, ch. 24, act of 1848, ch. 47, act of 1849, ch. 106, act of 1850, ch. 161. 329 Maine R. 531, 13 Mas. R. 324. CHAPTER III. OF THE LIABILITIES OF JUSTICES OF THE PEACE. A justice of the peace may become liable by reason of malfeasance or nonfeasance. 1. Civilly, at the suit of the party injured. 2. Criminally, to indictment. 3. To impeachment. 1. Civilly. The duties of a justice of the peace, which have been already enumerated, are divisible into two parts-judicial and ministerial. As his liability varies according to the nature of the acts done, or omitted to be done, whether judicial or ministerial, it becomes important to consider the distinction between them, and to lay down some rule for governing a magistrate in determining in which capacity he is called upon to act. The word judicial, which the courts have adopted, designates perhaps, as well as any definition, the acts of the magistrate to which it has been attached. A justice acts judicially, when he sits in judgment. on some matter submitted, by process, to his determination. It is necessary that there should be some matter in dispute, something to be proved or disproved, upon which he is to adjudicate. He must act not simply as a matter of course; neither is it enough that he exercises his judgment and discretion; for a ministerial act by no means excludes the idea of judgment and discretion-but an adjudication is essential to the judicial action of a magistrate. All other acts are ministerial.1 It will at once be perceived that the ministerial powers and duties of a magistrate are by far the more comprehensive of the two. They embrace all those enumerated in Chap. 2, § 2. And, in civil process, the justice acts judicially only when actually hearing and determining the matter in issue. Thus in all cases of initiatory process, such as original writs, summonses, subpoenas, &c., the affixing the proper signature and seal is a ministerial act.2 So, too, in issuing execution," Mass. Justice, 17, and cases there cited. 23 Pick. 407. 38 Mass. 79-2 John. ca. 49. and making up his record, he acts in the same capacity; and it was held by the court, in the case cited from the Maine Reports, that, therefore, the record might be completed by him after his commission had expired.' The liability of the magistrate varies according to the capacity in which he acts. The law is well settled, both in England and this country, that a judicial officer, acting honestly in a case where he has jurisdiction of the matter and of the persons, although he may mistake, or err in the execution of his authority, is not liable to the suit of the party prejudiced by his mistake of law.* To maintain a suit, therefore, against a magistrate, for maladministration by him while acting judicially, it is not enough to show the fact of the mistake; it is also incumbent on the plaintiff to show either that the unlawful act was done with a guilty intention, or that it was done in a matter coram non judice—without the jurisdiction of the court. It would seem needless to say that, if the unlawful act be proved to have been done with a guilty intention, it becomes a crime and misdemeanor; and that the shield, which the law throws over an honest magistrate, is removed from his person. The maxim that actus non facit reum, nisi mens sit rea, is true, transversely-malice vitiates every thing; and our courts, in all their decisions, lay it down as a fundamental principle, that, in order to avail himself of the protection of his office, the magistrate must have acted honestly. But if he act honestly, he must also act where both the matter and persons are within his jurisdiction, in order to avail himself of this defence. The question then arises,-What brings a matter within the jurisdiction of the magistrate? The action must be one of those already enumerated as within the jurisdiction of justices of the peace; because the jurisdiction and power of justices are derived from statute provisions.3 He must have jurisdiction of the parties. As to what gives jurisdiction of the parties, see chapter V. "Of where the writ must be made returnable." The writ must state the names of the parties, the time and place of return, the magistrate, the cause of action, and the amount of damages; 12 Fair. 380. 348 Maine 28. 23 Wils. 121-S Bing. 78-5 Mass 559-10 Mass. 357-1 N. H. 88-11 John, 121-17 John.145. and the direction must be to the proper officer. It must also bear the signature and seal of the magistrate. Service should It must also appear to have been properly served. be made by the proper officer, and in the manner prescribed by statute; and a return should be made by the officer, showing such service. If all these preliminary proceedings be correct, and the magistrate do not have a disqualifying interest, he will obtain a jurisdiction of the cause which will protect him in case of an honest mistake of law; unless he shall forfeit it by some subsequent act. What may be such act can, perhaps, be better illustrated by examples. On Thus-In most of the counties in this State, it is the custom for the magistrate to keep the court open an hour after the time of the return, for the defendant to enter his appearance; and, if the defendant does not appear within the hour, to default him. such a custom it was held, in Connecticut, that when the defendant appears during the hour, the justice not being present, and the justice returns after the hour has expired, and the defendant has gone away, then the justice cannot default the defendant and give judgment against him, and is liable in an action of trespass for so doing, his proceedings being coram non judice.1 This case has been recognized as law in Massachusetts." And the court, in the same case, recognize the rule of law to be this, viz.: "That a party, summoned to appear at a certain designated hour, who shall duly appear at the time named, and after the expiration of one hour from that time, if no proceedings are had in relation to the matter, in consequence of the absence of the magistrate, or of the party at whose instance the summons was issued, shall not be liable to be proceeded against in his absence." See post (Default.) And generally, when a justice of the peace renders judgment and issues execution after his jurisdiction has ceased, as by his not being present at the time and place of trial, or by plea of title in trespass quare clausum, he is liable in trespass to the defendant." So, too, in criminal proceedings, if the magistrate proceed unlawfully in issuing process, (as by issuing a search warrant without a previous 112 Conn. 384. 23 Met. 568. 317 Maine, 413. |