The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024686408 &£(/.* / i Cornell University Law Library THE GIFT OF Arthur... J......0o.l.d.e.r. f .....J.r... .C.Qrnell...Law....S.c.h.o.o.l....Clas.3....D.f... 19.5.6. Date.March.. 10...... .1.95.5 Cornell University Library KFM 520.K55 3 1924 024 686 408 ~&ftztf Entered according to Act of Congress, in the year 1851, by BENJAMIN KINGSBURY, JR., In the Clerk's Office of the District Court of Maine. PREFACE This work is intended to be what the title page sets forth — a guide to Justices of the Peace for the State of Maine. Since, however, there is no part of the whole body of the law, to which a magistrate may not, in the exercise of the functions of his office, have occasion to refer, nothing short of a book embracing that whole system of law can be a perfect guide in all possible magisterial transactions. The limits of these sheets then, necessarily confine us to a somewhat outline view of the powers and duties of justices. For more detailed information upon the topics of which they treat, recourse must be had to "the Books" at large. We trust, however, that "The Justice of the Peace" will be found, for ordinary purposes, a safe, convenient, and sufficient guide to those for whose use it is more especially designed. It is now ten years since the appearance of any publication of this description. The many important changes which have occurred in the statute law of the State during that time would have been of itself sufficient justification to the publishers for this issue. A slight examination of our labors will, however, as we trust, show that these labors have had other purposes in view than such as have reference to recent legislation upon the matters here treated. It may be noticed that we make no allusion to the militia law of the State. It seemed to us that, in the present state of the law and of public opinion upon that subject, justices would rarely, if ever, be called upon to administer what remains of what was the militia system in Maine. "We have therefore preferred to occupy the room at our dispo=;el with matter of mere evident practical value. VI PREFACE. Our own experience has led us to the belief that justices are most frequently embarrassed by the want of appropriate forms of proceed- ings. We have, therefore, aimed to furnish as many forms as is con- sistent with the main design we have had in view. The form we have adopted in the body of " The justice," for a com- plaint under the " Act for the suppression of drinking houses and tip- ling shops" has been approved by good authority. Some judicial rulings, made since these pages were put to press, have, however, induced us to add another in accordance with those rulings, which is deemed preferable. It will be found in an addendum. We have, with the permission of the publisher, taken "The Massa- chusetts Justice" as our model. So far as the comparative condition of the law of this State and Massachusetts would permit, we have made the freeest use of the matter of that excellent treatise ; and indeed have not hesitated, in many cases, where the doctrine or form was applicable to our own practice, to adopt both the substance and language of what we there found. The aim of the author has been to prepare a useful and valuable work, and not an original one. Indeed, the nature of the case hardly admits of any higher claim on his part, than to the faithful, patient, and careful labor of a compiler. Portland, January 1, 1852. CONTENTS. OF THE JURISDICTION AND POWERS, APPOINTMENT AND TENURE OF OFFICE, OF JUSTICES OF THE PEACE. PART I. OF THE JURISDICTION AND POWERS OP 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, 10 CHAPTER II. Of their Jurisdiction and authority, 11 I. Of their Jurisdiction, generally, in Civil Actions 12 II. Of their Jurisdiction in Civil Proceedings specially given, 12 III. Of the General Powers and Duties of Justices of the Peace, other than those already enumerated, 15 IV. Of Municipal, Police and Town Courts, and how far theCivil Jurisdiction of Justices of the Peace is abridged thereby, ... 18 V. Of a disqualifying interest, , 20 CHAPTER III. Of the Liabilities of Justices of the Peace, • 21 CHAPTER IV. Of the Various Modes of Commencing Proceedings, ... 26 CHAPTER V. Of the Writ, 27 I. Of the Form of the Writ 27 II. Of the Direction 28 III. Of the Date, 29 IV. When and where writs must be made returnable 30 V. Of the Indorsement of Writs, 32 VI. OftheParties 83 VII. Of the Declaration, 34 CHAPTER VI. Of the Service and return of the Writ, 35 I. Of the Service, 35 II. OftheReturn, 40 VI CONTENTS. CHAPTER VII. Of the Return Day of the Writ and Proceedings before Trial, 41 I. Entry, 41 II. Complaint for Costs, 41 III. Default, 41 IV. Absent Defendants, 42 V. Appearance, 43 VI. Pleadings and Motionsto dismiss, 43 VII. Proceedings where title to Real Estate is in question, and in Re- plevin for beasts distrained or impounded where the damages demanded exceed twenty dollars, or the property in the beasts is in question, and their value exceeds that sum 44 VIII. Amendment, 46 IX. Bills of Particulars, 50 X. Set-off, 51 XI. Offer to be defaulted, and Tender, 54 XII. Death, Marriage, &c. of a Party, 56 XIII. Bankruptcy, 5S XIV. Continuance, 58 CHAPTER VIII. Of the Course of the Trial, and of Witnesses, 60 CHAPTER IX. Of the Judgment, 70 I Pleas in Abatement, and Motions to Dismiss, 70 II. Default, 70 III. Nonsuit, 71 IV. Trial, 71 V. Tender and offer to be defaulted 71 VI. In Other Matters, 73 CHAPTER X. Of Appeal, Recognizance, Execution and Certiorari, - - - - 16 I. Appeal and Recognizance, 76 II. Of Execution, 73 HI. Of Certiorari, 81 CHAPTER XI. Of the Fees of the Justice, and of Costs in Civil Actions, - - 83 I. Fees of Justices of the peace, 83 II. Of the Taxation of Costs, 85 CHAPTER XII. Of Proceedings in Special Cases, 95 I. Trustee Process, 95 II. Of Scire Facias, 108 III. Forcible entry and detainer 114 IV. Replevin of Beasts and chattels, 117 V. Goods forfeited and lost Goods, 1 18 VI. Poor Debtors, 120 VII. Proceedings in cases of Insane Persons, &c 134 VIII. Proceedings on Complaints for liastardy, 139 IX. Proceedings in Penal Actions, 142 CONTENTS. Vll CHAPTER XIII. Of Miscellaneous Proceedings, -. 143 I. Depositions , 150 II. Of receiving the Acknowledgement of Deeds, and proving execution where a party refuses to Acknowledge, 150 III. Of reference of disputes, 153 IV. Recognizance for debt 154 V. Of Watch and Ward, 155 VI. Demanding licenses of pedlars, 156 VII. Solemnizing Marriages, 156 VIII. Warrant for abating nuisances, , 159 IX. Proceedings in cases of infection 160 X. Proceedings in removing paupers, 162 XI. Of admitting persons to bail, 163 PART II. OP JUSTICES IN CRIMINAL MATTERS ; THEIR POWER AND PROCEEDINGS. CHAPTER I. Their Jurisdiction and Authority, 165 I. Final Jurisdiction, 166 II. Initial Jurisdiction, 168 III. How far abridged by Municipal, Police and Town Courts,. . . . 169 CHAPTER II. Of the Complaint and Warrant, 172 I. Complaint, 172 II. Of the Warrant, 178 CHAPTER III. Of the Service and Return of the Warrant, 188 I. Of the Service, 188 II. Of the Return, 202 CHAPTER IV. Arraignment, Pleadings, Trial, and Witnesses, 203 I. The Arraignment, 205 II. The Pleadings 206 III. The Nature and Admissibility of Evidence, 210 IV. OftheTrial, 217 CHAPTER V. Of Conviction, Sentence, Appeal, and Recognizance, - - - 219 I. Conviction, 219 II. Of the Sentence, 220 III. Of Appeals and Recognizances, 230 CHAPTER VI. Of Bail, and recognizing Witnesses, - 235 I. When and by whom Bail should be taken, 235 II. How Bail should be taken, and the amount to be required 240 III. The disposition to be made of the Recognizance, after it is taken 241 CHAPTER VII. Of the Commitment, -.....----•-- 243 I. In what Cases a Commitment may be ordered, 243 II. To what place the Party shall be committed 243 III. The Requisites of a Mittimus, 244 ■yiu CONTENTS. CHAPTER VIII. Of the Fees of the Justice, and Taxation of Costs, - - - - 246 I. Of the Fees of the Justice 246 II. Of the Taxation of Costs, 247 CHAPTER IX. Of certifying Process, returning Recognizances, accounting for Costs, &c. ."""." 251 I. Certifying Process and returning Recognizances, 251 II. Of accounting for Fines, Forfeitures, and Costs, 252 paet in. FORMS AND PRECEDENTS. CHAPTER I. Forms in Civil Proceedings, 253 CHAPTER II. Forms in Criminal Proceedings, --.- 279 I. General Forms, 279 II. Forms and precedents for complaints, &c. within the final juris- diction of Justices 295 III. Forms and precedents for complaints, &c. not within their final Jurisdiction, 336 APPENDIX. Miscellaneous Forms, 369 ADDENDUM. Additional form of complaint for keeping liquors with intent to sell, in vi- olation of the Act of 1851, 384 PRELIMINARY REMARKS. OF THE JURISDICTION AND POWERS, APPOINTMENT AND TENURE OF OFFICE OF JUSTICES OF THE PEACE. The jurisdiction and powers of justices of the peace are derived from statute provisions. 1 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 ofinfering 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 sherifls, con- stables and coroners cannot, for example, exercise the powers properly belonging to a justice of the peace. 3 In the following pages we shall first speak of the civil jurisdiction of justices, and then, separately, of their criminal jurisdiction. M3 Maine, 23. *1 Mass., 498. 'Const., act 3, sec. 2 — ib. art. 4, sec. 11 — 7 Greenl. 14 2 PART I. OF THE JURISDICTION AND POWERS OF JUSTICES OF THE PEACE IN CIVIL MATTERS. CHAPTER I. OF JUSTICES OF THE PEACE AS DISTINGUISHED FKOM 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. 2 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. 6 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. *1 Black. Com. 351. S R. S. 148, Bee. 24. 3 R. S. ch. 171, sec. 22— Stat. 1850, ch. 152. 4 R. S. ch. 173— stat. of 1848, ch. 33— stat. of 1847, ch. 79. >R. S. ch. 133, eec. 25. 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 wfll be presumed to have taken the requisite oaths. 2 The powers of justice of the quorum have already, in a general man- ner, been spoken of, and will in a subsequent chapter be more particu- larly 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 pro- ceedings are had, he may direct the writ or execution to any proper officer of the county where the defendant or trustee resides. 3 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. 5 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. 6 '3 Bam. and Aid. Rep. H Cranch. ISO. 3 R. S. ch. 116, sec. 17— ib. ch. 119, Bee. 5— act of 1842, ch. 10, aec. 3. 4 Act of 1842, ch. 10, see. 1. »Ib. sec. 2. «18 Maine 340. 12 JUSTICE OF THE PEACE. 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. 8 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, notwith- standing 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. 4 !R. S. ch. 116, sec. 1. 3 10 Pick. 504. J Ib. sec. 2. 4Stat. of 1847, Bee. 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. 3 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. 5 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. 6 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 >8tat. 1847, sec. 2. «R. S. eh. 116,secs. 19, 20, 21, 22. 2 R. S. ch. 116*,sec. 16. *Ib. see. 19. 3 R. S. clu 118, sec. 13. «Ib. sec. 23, 25. 14 JUSTICE OF THE PEACE. tendered by him ; but this power is limited to two years from the time his commission expires. 1 When any woman, being pregnant with a child, which, if born alive, may be a bastard, or who having been delivered of a bastard child, shall accuse any man of being the father thereof before any justice of the peace, and request a prosecution against the person accused, such justice shall take her examination, on oath, respecting the person accused, and the time and place, when and where the child was begotten, and all such other circumstances, as he may deem useful in the discovery of the truth ; and the said justice may issue his warrant for the apprehension of such person, who, being brought before the justice issuing the warrant, or any other justice, may be required to give bond, with sureties, to the complainant, conditioned for his appearance at the next district court to be held in the county in which the complainant resides, and for abiding the order of the court thereon ; and, refusing or neglect- ing to give such bond, shall be committed to the goal of the county of the justice, until such bond be given. 8 When any personal property has been forfeited for any offence, and no special mode is prescribed for recovering the same, a libel may be filed, if the property does not exceed in value twenty dollars, before a justice of the peace of the county where the offence has been committed, and such justice shall try and decide the cause, and make such decree therein, as the law requires.* When such property is seized, and persons claiming the same propose to give bond with a view, under the provisions of the statute, to have the same restored to them, the value is to be ascertained by appraisers appointed by a justice of the peace, if the parties cannot agree ; and if no person claims the property so seized, appraisers may be appointed by a justice of the county, to ascertain the value of such property, which value shall be the rule for deciding, where the libel shall be filed. 4 When the finder of lost goods, exceeding the value of ten dollars, would make legal disposition of them, he may procure from a justice a warrant, directed to proper persons, by whom such goods are to be appraised under oath. If after such proceedings are had, no owner »R. S. ch. 116, sec. 28. 3 R. S. ch. 132, sec. 119. *R. S. ch. 131. 4ft. seca. 3, 4. JURISDICTION AND AUTHORITY. 15 appear -within one year, the goods, certain deductions being first made, belong to the finder. If the owner appear within one year, the goods, or their value, are to be restored to him, the finder being first allowed charges, and reasonable compensation, to be liquidated by some justice in the county, if the parties do not agree. 1 III. OF THE GENERAL POWEKS AND DUTIES OF JUSTICES OF THE PEACE, OTHER THAN THOSE ALREADY ENUMERATED. Every justice may adjourn his court, by proclamation, from time to time, as justice may require, and in case of inability of a justice to attend, the cause may be continued by another justice for the county. 2 Justices of the peace may arrest any person disturbing them in the actual execution of their office ; but the power to commit for contempt is incident to courts of record alone. 3 No justice shall be of counsel for either party, or give advice to either party, in a suit before him. 4 Every justice shall keep a fair record of his proceedings. 6 Every justice of the peace may administer oaths in all cases in which an oath may be required, unless a different provision is made by law. 8 Justices are held to render an account of, and pay over all fines and forfeitures, received by them upon convictions and sentences before them, whether accruing to the State or county, to the treasurer of the county, and if accruing to the town, to the treasurer of the town, within six months after receiving the same. In case of neglect, they forfeit double the amount, to be recovered by the treasurer of the county or town, as the case may be. 7 Every justice of the peace may issue subpoenas for witnesses in civil actions, pending in the Supreme Judicial Court, District Court, or before County Commissioners, himself, or any other justice, referees, or auditors. 8 Any justice may issue summonses for witnesses to appear before any Judicial Court, or before himself, or any other justice, in any criminal case, but not for witnesses on the part of the State, except to appear »R. S. sees. 15, 16, 17. S R. S. ch, 116, sec. 19. a R. S. ch. 116, sees. 13, 14. «R. S. ch. 170, sec. 12. 3 10 Johns., 393—21 Me., 550—4 Bl. Com. 284. ?R. S. ch. 152, sees. 20, 22. 4 R. S. ch. 116, sec. 15. 8 R. S. ch. 116, sec. 12— Ib.-ch. 115, sec. 71. 16 JUSTICE OF THE PEACE. before himself, without the consent of the attorney general or county attorney. 1 Upon complaint of the overseers of the poor of any town, any justice of the peace, not an inhabitant of their town, may, by warrant of removal, cause to be removed, any person actually chargeable, as a pauper, to the place where such person is found, but in which he has no lawful settlement, to the place of his lawful settlement, if he have any within this State. 2 Upon complaint of said overseers, any justice may, by warrant, cause any pauper having no lawful settlement within the State, to be sent and conveyed, at the expense of the town, to any other State, or to any place beyond sea, where he belongs, if the justice thinks proper, if he may be conveniently removed ; but if he cannot be so removed, he may be sent to, and relieved, and employed in the house of correc- tion or work-house, at the expense of the town. 3 Any justice of the peace may take depositions, to be used in any pending cause, he not being interested in such cause, nor being, nor having been, counsel or attorney in the same. 4 Any justice of the peace may take the acknowledgment of deeds, to be made by the grantors, or by one of them, or by the attorney execut- ing the same. 5 When a grantor shall refuse to acknowledge his deed, upon applica- tion of the grantee or any person claiming under him, any justice of the peace of the county where the land lies, or where the grantor resides, may summon the .grantor to appear before him, and it being made to appear by ±he testimony of the subscribing witness, that he saw such deeds duly executed by the grantor, the justice shall certify upon the deeds, or in a paper annexed thereto, proof of the execution of the same, whereupon such deed may be recorded in theregistry of deeds, in the same maner as if the deed had been acknowledged in the usual form. 6 Every justice of the peace, appointed for any particular county, and in which he resides, may solemnise marriages in such county, where either of the parties resides, and every justice appointed for each and every county in the State, may solemnise marriages in any county where either of the parties resides. 7 »R. S. ch. 170, sec. 11. *Ib. ch. 91, sees. 16, 17. 3 Ib. ch. 32, sees. 35, 3«, 37, 38,39, 41, 42. «R. S. ch. 91, sees. 20, 21, 22, 23,24. 3 Ib. ch. 32, sec. 47. 7 Ib. sec. 1L «Ib. ch. 132, sec. %. JURISDICTION AND AUTHORITY. 17 Justices of the peace may appoint appraisers of property, in a variety of cases. Justices of the peace may require hawkers and pedlers to exhibit their licenses at any and all times, and the refusal to exhibit the same is, in case of prosecution, deemed conclusive evidence of not having such licence. 1 Whenever, for want of sufficient by-laws for the purpose, or of officers duly authorised, or from any other legal impediments, a legal meeting of any corporation cannot be otherwise called, any justice of the peace in the county, where it is desirable to hold such meeting, or where such corporation is established, if it be local, may cause a meeting of such corporation to be called, and may preside therein till a clerk shall be chosen, if there be no officer present whose duty it maybe to preside. 2 He may also, upon application to him for that purpose, call meetings of towns, proprietors of aqueducts, mills, private ways, or bridges, of land lying in common, or of distinct pieces of land inclosed and fenced in one common field, of persons proposing to become incorporated as a parish or religious society, or for the purpose of erecting a meeting- house, or of forming associations for literary or scientific purposes, or for purchasing lands for a burying ground. 3 Acknowldgements of recognizances for the payment of debts, of agreements to refer controversies, which may be the subject of a per- sonal action, and of certificates required to be made by persons forming " limited partnerships," may be taken by justices of the peace.* • Justices of the peace may, on complaint, by their warrant directed to the proper officer, or any other person, cause persons coming into the State from places out of the State where any infectious and malignant distemper is known to exist, to be removed out of the State. s So, baggage, clothing, or goods of any kind, suspected to be infected with any malignant contagious disorder, may be secured, under warrant from a justice of the peace, and convenient houses or stores impressed and taken up for their safe keeping. 6 Travelers, passing into the State from infected places in adjoining States or provinces, may be licensed by a justice to travel hi the county of such justice. 7 ^tat. of 1846, ch. 200, sec. 6. 4 R. S. chs. 137„ 45, 138. 2 R. S. ch. 76, sees. 8, 9. S R. S. ch. 21, sec. 3. 3 R. S. chs. 85, 86,18, 23,25, 5, 84, 83, 29, 19. «Ib. sees. 7> 8. 3 tR..S..ch.21,sec. 5. 18 JUSTICE OF THE PEACE. Any two justices may, by warrant under the direction of the select- men of towns, cause to be removed, or separate accommodations to be provided for, infected persons. 1 Justices resident in any town, together with the selectmen of such town, have power to direct and order suitable watches to be kept in the night and in the day. 2 IV. 03? MUNICIPAL, POLICE AND TOWN COURTS, AND HOW FAB, THE CIVIL JURISDICTION OF JUSTICES OF THE PEACE IS ABRIDGED THEREBY. Municipal and police courts have from time to time been established by the Legislature in many of the principal cities and towns of the State. Such courts have, generally, concurrent jurisdiction, under similar restrictions and limitations, with justices of the peace, over all such matters, within their county, as such justices exercise ; also, in cases of forcible entry and detainer, with justices of the peace and quorum ; and exclusive jurisdiction when both parties interested, or the plaintiff and a person sued as trustee, are inhabitants of the city or town where the court is established ; and of all violations of the by-laws thereof Justices of the peace are, generally, by the acts establishing such courts, forbidden, excepting in the absence of the Judge and Recorder of such courts, or incase of a vacancy in the office of Judge, to take cogni- zance of, or exercise jurisdiction over, any crime or offence, or in any civil action, wherein the Judge is not a party or interested. 3 " All the power and jurisdiction given justices of the peace by any laws of the United States, they are not prohibited from exercising, in places where such courts are established. In the city of Bangor, the Police Court, and in the city of Augusta, the Municipal Court, have exclusive jurisdiction in all cases of forcible entry and detainer arising in said cities ; and in all civil actions, if otherwise cognisable by a justice, in which both parties interested, or in which the plaintiff and the person or persons summoned as trustee, shall be inhabitants of or residents in said cities.* The Municipal Courts in the towns of Saco and Brunswick, have exclusive jurisdiction in all civil actions, if otherwise cognisable by a *R. S. ch. 21, sec. e. =R. S. ch. 98, sec. 15— ib. ch. 116, sec. 1. a R. S. ch..31, sec. 2. "Ib. sees. 30,31, act of 1849, ch. 224, sec. 11. JURISDICTION AND AUTHORITY. 19 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. 1 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. 2 The Municipal Court for the town of Rockland has exclusive juris- diction 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. 8 The jurisdiction of the Police Court of the city of Gardiner is some- what 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. 4 The act of 1844, establishing town courts in such counties as, by vote of the people of the counties, approved of the same, 6 is understood never to have been in force in any county, with the exception of that •Act of 1849, ch. 110, sec. 2— ib. ch. 195, see. 3. 3 Act of 1850, ch. 165, sec. 2. 2 Act of 1849, ch. 128, sec. 1. 4 Act of 1849, ch. 281, sec. 11. *Act of 1844, ch. 128. 20 JUSTICE OF THE PEACE. of "Waldo ; and in that county the jurisdiction of justices of the peace, in the trial of all civil cases, has been fully restored. 1 The acts passed at different times upon the subject of town courts are referred to in *he notes. 2 V. OP 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. 4 In prosecution for penalties, however, they have jurisdiction, if other- wise entitled, notwithstanding their town may be interested in the penalty. 6 iAct of 1848, ch. 47. »29 Maine R. 531, 13 Mas. R. 324. s Act of 1846,"ch. 222, act of 1847, ch.-24, 4 Ib., R. S. ch. 1, sec. 3, rule xxii. act of 1848, ch. 47, act of 1849, ch.106, 5 R. S. ch. 116, sec. 1. act of 1850, ch. 161. 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. Crim- inally, 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 min- isterial. 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 per- haps, 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 neces- sary 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 judi- cial action of a magistrate. All other acts are ministerial. 1 It will at dice be perceived that the ministerial powers and duties of a magistral? 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 casej^ffirinitiatory process, such as original writs, summonses, subpoenal HP; the affixing the proper sig- nature and seal is a mimsteriaJ^S^So, too, in issuing execution,' 1 Mass. Justice, 17, and cases tfiere cited. 2 3 Pick. 407. 3 8 Mass. 79—2 John. ca. 49. 22 JUSTICE OF THE PEACE. 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 he completed by him after his commission had ex- pired.' 1 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 judi- cial 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. 2 To maintain a suit, therefore, against a magistrate, for maladminis- tration 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 nonjudice — without the jurisdiction of the court. It would seem needless to say that, if the unlawful act be proved to hare been done with a guilty intention, it becomes a crime and misde- meanor ; 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 fun- damental 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 juris- diction 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 ; *2 Fair. 380. =3 Wils. 121—3 Eing. 78—5 Mass 559—10 Mass. =48 Maine 28. 357—1 N. H. 88—1 1 John, 121—17 John.145. LIABILITIES OF JUSTICES OF THE PEACE 23 and the direction must be to the proper officer. It must also bear the signature and seal of the magistrate. It must also appear to have been properly served. Service should 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 exam- ples. 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. On 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. 2 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 expira- tion 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 claasum, he is liable in trespass to the defendant. 3 So, too, in criminal proceedings, if the magistrate proceed unlawfully in issuing process, (as by issuing a search warrant without a previous n2 Conn. 384. ' -Z Met. 563. 3 17 Maine, 413. 24 JUSTICE OF THE PEACE. oath,) however honest he may have been in his error, he is liable personally for the injury resulting from the act. 1 But when a magistrate errs ministerially, the law interposes no defence between him and the consequences of his error, however hon- est might have been his motives. It presumes him to be acquainted with his duty ; and as it leaves to him, in this capacity, nothing upon which to adjudicate, it requires him to follow strictly the path of that duty, and holds him responsible for the consequences of all error in judgment, as well as all malicious malfeasances. Thus, if a justice of the peace issue execution against the body of a defendant who is by law privileged from arrest, and the defendant is arrested, he is liable to an action for false imprisonment. 2 And where a justice issued execution in two or three hours after he had rendered judgment, he was held liable to the party against whom such execution issued, and who. was imprisoned thereon, in an action of trespass. 3 II. CRIMINALLY. Whenever a justice of the peace acts partially or oppressively, from a malicious or corrupt motive, he is liable to be indicted for misbeha- vior in his office. 4 It has been held in England, that a justice is not liable civilly and criminally both ; but that the party injured ought to make his election directly, in which mode to prosecute, and before he enters the criminal complaint. 6 It is specially provided by the statutes of this State, that if any attorney, justice of the peace, sheriff, deputy sheriff, coroner or con- stable shall loan or advance, or promise to loan or advance any money, or shall give or promise to give day of payment of any money due on any demand, left with him for collection, or shall give or promise any valuable consideration, or shall become liable, in any manner what- ever, for the payment of money or other thing, or shall become surety for another for such payment, or shall request, advise, or procure another person to become responsible, or to be surety as aforesaid, with intent thereby to procure any account, note, or other demand, for the n3 Mass. 288. °10 Mass. 356. 2 2 John. Ca. 49. *I5 Wend. 278, 4 Bl. Com. 141,and n. 'Burrows, 720. JURISDICTION AND AUTHORITY. 25 purpose of making a profit to himself from the fees arising from the col- lection thereof, by a suit at law, he shall be punished by a fine not exceeding five hundred dollars, nor less than twenty dollars ; or the like sum or penalty may be recovered of such offender by action. 1 So, if any person shall, corruptly and wilfully, demand and receive of another, for performing any service or official duty, for which the fee or compensation is established by law, or shall receive security for any greater fee or compensation than is allowed and provided for the same, he shall be punished, on indictment and conviction, by a fine not exceeding thirty dollars for each offence ; or he shall forfeit a sum, not more than thirty dollars for each offence, to be recovered by action of debt. No indictment or action for such offence shall be sustained, however, unless commenced within one year after the commission of the offence.' So, if any judicial officer shall corruptly accept any valuable consid- eration or gratuity whatever, or any promise to make the same, or to do any act beneficial to such officer, under the agreement, or with the understanding, that his decision, opinion, or judgment, shall be given in any particular manner, or upon the particular side of any question, cause or other proceeding, which is or may by law be brought "before him in his official capacity, he shall forfeit his office, be forever disqual- ified to hold any public office, trust or appointment under this State, and shall be punished by imprisonment in the State prison, not more than ten years, or by fine, not exceeding five thousand dollars, and imprisonment in the county jail not more than one year. 3 If any person shall falsely assume to be a justice of the peace, and shall take it upon himself to act as such, or require any one to aid or assist him in any matter pertaining to the duty of any such office, he shall be punished by imprisonment in the county jail, not more than one year, or by fine not exceeding four hundred dollars. 4 Every justice of the peace who may remove from the state, shall before his removal, deposit with the clerk of the Judicial Courts in the county, for which he was commissioned, all the records and papers appertaining to his office, and neglecting so to do, shall forfeit and pay one hundred dollars, to be recovered on indictment. 5 J R. S ch. 158, sec. 16. 4 Ib. sec 28. 2 Ib. sec. 17. *R. S. ch. 116, sees. 23, 25. 3 Ib. sec 7. 4 26 JUSTICE OF THE PEACE, III. TO IMPEACHMENT. Every person holding any civil office under this state, may be removed by impeachment for misdemeanor in office ; and every person holding any office, may be removed by the governor, -with the advice of the coun- cil, on the address of both branches of the legislature. But before such address shall pass either house, the causes of removal shall be stated and entered on the journal of the house in -which it originated, and a copy thereof served on the person in office, that he may be admitted to a hearing in his defence. 1 The house of representatives has, by the constitution, the sole power of impeachment. 2 The senate has full power to try all impeachments. Their judgment, however, does not extend farther than to removal from office, and disqualification to hold or enjoy any office of honor, trust, or profit, under the state. But the party, whether convicted or acquitted, is nevertheless liable to indictment, trial, judgment and punishment accord- ing to law.' CHAPTER IV. OF THE VARIOUS MODES OF COMMENCING PROCEEDINGS. Civil proceedings are commenced before justices of the peace by writ, complaint, libel, or petition. It sometimes becomes important to ascertain what is the actual commencement of a suit, as in case of tender pleaded, or statute of limitations. The sueing out of the writ is the commencement of the action, unless such a construction will not accord with the truth and justice of the case. But the writ must be filled up with an actual intention of service, and not merely to be used if necessary. If, then, the writ be sued out with a bona fide intention of having the same served, it is a commence- ment of the action, which will save a demand from the effect of the statute of limitations, or of a tender. But the date of a writ is not conclusive as to the time when it was made, and the true time when it was issued may be settled by actual proof of the fact. 4 •Const, art a. sec. 5. 'Const, art. iii. (part second) sec. 7. 2 Const. art. iv. (part first) sec. 8. 4 15 Mass. 364— 17 Pick. 412—21 Pick. 242—1 Pick. 204—7 Green. 373. CHAPTER Y. OF THE. WRIT. In most cases before justices of the peace, suits are commenced by writ. I. OF THE FOKM OF THE WRIT. The forms of writs are established by the sixty-third chapter of the law of eighteen hundred and twenty-one, which is declared by the revised statutes to be still in force ; but alterations may be made by the Supreme Judicial Court or District Court, when necessary to adapt them to changes in the law, or for other causes, but all such changes shall be subject to the final control of the Supreme Judicial Court, which may, by general rules regulate such changes for said Courts, or for justices of the peace. 1 The initiatory proceedings of all processes to be commenced by writ, must be in one of the following forms : 1st. By original summons ; 2dly. By capias or attachment ; 3dly. By summons and attachment. The nature of these writs will be explained in the present chapter. When we reduce writs to three classes, it will not be understood that all writs of a particular class are necessarily alike. An action of assumpsit, an action in tort, an action of replevin, and a writ of scire facias may all be writs of original summons. The precept will be alik§ in all of them, and the mode of service. 1. Original Summons. This writ simply directs the officer to summon the defendant to appear. It is the original summons ; i. e. there is no other summons for the defendant, as there is in most cases where property is directed to be attached, when a separate summons is >R. S. ch. 114, seel— R. S. ch. 116, sec. 6. 28 JUSTICE OF THE PEACE. issued, directed to the defendant. All actions may be commenced by this writ, though there are none which must be. And in practice it is but little used, both because the direction to attach is usually printed in the blanks, and because of the inconvenience arising from the differ- ence, excepting in cases where corporations are defendants, and in some other cases, in the mode of service on the defendant. 2. Capias or Attachment. The precept in this writ is "to attach the goods or estate of the defendant, and for want thereof to take his body." This form of writ is recognised by the revised statutes as the proper one in all cases where it is desired to attach the property of the defendant, or to arrest his body. If property is attached, then a sepa- rate summons is left with the defendant, and the writ becomes a summons and attachment. If the defendant is arrested, it becomes a capias. 1 3. Summons and Attachment. By the revised statutes, the original writ may be framed either to attach the goods or estate of the defendant, and for want thereof to take his body ; or it may be an original su mm ons, either with or without an order to attach the goods or estate. 2 The form most in use is that of the summons, with an order to attach goods or estate. In actions against corporations, and in other cases where goods or estate are attached, but in which the defendant is not liable to arrest, the writ and summons may be combined in" one. 8 It is proper in all cases in which the defendant is not liable to arrest, viz : where the defendant is a corporation, sheriff, executor or admim- istrator, where the demand is under ten dollars, and in cases where the debtor is free from arrest under the provisions of the poor debtor laws. The summons and attachment is a proper form of writ in all cases, where an arrest is not expected to be made, though it is said the capias or the capias and attachment should be used in all cases where the plaintiff has an election of arresting the body or attaching property, and intends to do one or the other. 4 II. OF THE DIRECTION. » The writ must be directed to a sheriff, deputy sheriff, coroner, or constable. The usual practice is, to direct it to all who may serve it. X R. S. ch. 114, sees. 23, 24. 3 Ib. sec. 25. ^Ib. see. 23. 4 Howe'sPr. 60. OF THE WRIT. 29 Some direction is necessary to the officer by whom it is to- be served though the want of such direction may be supplied, as a matter of form, by the court. 1 /Sheriffs and Deputy Sheriffs. All processes issued by a justice of the peace may be served and executed by sheriffs or deputy sheriffs, unless the sheriff or any of his deputies be a party to the same. 2 But such sheriff or deputy may serve any writs or precepts, in cases- where a town, plantation, parish, religious society, or school district, is a party or interested, though he may at the time be a member of the corporation interested. 3 Coroners. "Where the sheriff of the same county for which a coroner is appointed, or any of the deputies of such sheriff, shall be a party to any writ or precept, the same must be served, unless served by a constable, by a coroner. And this provision includes cases of precepts, in which a town, plantation, parish, religious society, or school district is a party or interested, though such coroner may at the time, be a member of the corporation interested. 4 When the office of sheriff in any county may be vacant, any coroner of such county shall have the like power to execute and return all writs and precepts, which are by law appointed to be served and returned by the sheriff or his deputies, until another sheriff shall be appointed and legally qualified. 5 Constables. Constables are authorised to serve upon any person in the town to which they belong, any writ or precept in any personal action where the damage sued for and demanded does not exceed one hundred dollars, including all precepts in actions in which the town, in which he may reside, is a party or interested. 6 As he has no authority beyond these statutes, it is said that a consta- ble has probably no power to serve the process of forcible entry and detainer.'' III. OF THE DATE. A writ should be dated on the day that it is in fact issued for ser- vice. 8 »11 Mass. 276 »Ib. sec. 61. *R. S. ch. 1 04,sec. 19,60. «Ib. sec. 34. »R. S. ch. 104, sec. 20. 7 Mass. Justice, 27. 4 Ib. sec. 60. 'Howe'sPr. 98. SO JUSTICE OF THE PEACE. IV. WHEN AND WHERE WRITS MUST BE MADE RETURNABLE. When. There is no particular day on which justice actions must be made returnable. Custom, in the absence of law, has in many counties fixed upon the Saturday of each week for this purpose. Be it when it may, if the day of the week and of the month are each stated, care must be taken that both are correct, as a variance would be fatal. 1 Nor could the error be amended, unless the defendant should appear. 8 Where. All actions and suits before justices of the peace may be heard and determined, either at their own dwelling-houses, or offices, or at any other suitable place, and their writs and processes shall be made returnable accordingly.' This provision of statute is of course to be regulated by the general principle that writs can be made returnable only within the precinct of the magistrate issuing them. It may be proper therefore, in this connec- tion, to consider in what cases a matter is brought within the jurisdiction of a magistrate, so as to be cognizable by him. 1st. In case of Individuals. — In case the plaintiff and defendant both reside in one county, the writ must be made returnable there, except as hereinafter mentioned. If the action be brought against two or more defendants, residing in different counties, it may be brought in the county where either of the defendants resides ; and the writ and execution, in such case, shall be directed to and executed by the proper officers in each of such counties accordingly ; but if there be but one defendant, such action must be commenced in the county where he resides. 4 In case of trustee process, the writ must be made returnable in the county where one of the trustees resides. 6 And if the trustee is discharged, or the action is discontinued as to him, the action shall Still proceed, although the principal defendant does not reside in the county where it is brought, unless it appear by plea in abatement, that such trustee was collusively included in the writ, for the purpose of giving the court, in such county, jurisdiction ; provided there was legal service on the principal defendant. 6 Ill ^T I 26 " " Stat - of ,842 > ch - JO, sec. 3. II l' C \ 9 , 3 ,\ 6R " S - ch - 119 > s ec. 88. 3 K. b. ch. 114, sec. 29. «Ib. sec 96. OF THE WRIT. 31 On all "writs returnable before a justice of the peace, or municipal or police court, and on execution issued by such justices or courts, personal property may be attached in any county in the State, provided such writs or executions are directed to the proper officer. 1 • When the goods of any person, not being an inhabitant of the State, and having no agent or attorney within the same, have been attached in any action before a justice of the peace, the justice may order such notice to the defendant as justice may require, and such order having been complied with, the defendant shall be held to answer to such suit, as in cases where service is made in the usual form. 2 In all cases of scire facias against bail, or the endorser of a writ, or executors or administrators, where the defendant resides out of the county where the proceedings are had, the writ or execution may be directed to any proper officer of the county where the defendant resides. 3 In local actions, although the cause of action may grow out of an injury done to real property not within the county of the magistrate, justices of the peace in the county where the defendant lives have jurisdiction. 4 All actions of debt, founded on judgment for damages and costs, or for costs only, rendered by any court of record in this state, may be brought in the county where the same was rendered, or in the county in which either of the parties to such judgment or his executor or administrator may reside, at the time of bringing such action. 5 2ndly. In case of Corporations. When both parties are towns, par- ishes or school districts, the action shall be brought in the county, in which either of the parties shall be situated. 6 Where the action is between a town, parish, or school district, and any other corporation, or a natural person, it shall be brought either in the county in which the plaintiif corporation is situated, or natural person lives, or in which the defendant corporation shall be situate, or natural person lives. 7 When one of the parties is a corporation of any other description than above named, the action may be brought in any county, in which such corporation shall have an established place of business; or if 'Stat, of 1842, ch. 10, gee. 1. 5 R. S. ch 114, sec. 4. 2 Stat. of 1844, ch. 86. 6 Ib. sec. 11. 3 R. S. ch. 116, sec. 17. 7 R. S. ch. 114, sec. 12. 4 15 Maine, 188. 32 JUSTICE OF THE PEACE. either party is a natural person, the action may be brought in the county in which he lives. 1 3dly. In case of Counties. Any local or transitory action against the inhabitants of a county, in their corporate capacity, may be com- menced and tried, either in the county where the plaintiff lives, or in the county against which the action shall be brought. 2 Any action commenced hy a county, may be brought in the county where the defendant lives, unless he is an inhabitant of that county ; in which case the action may be commenced in any adjoining county. 3 When any corporation shall be a party, in any action commenced by or against a county, it shall be commenced or tried in any adjoining county. 4 Any such action against the inhabitants of a county, by a plaintiff belonging to such county, may be commenced and tried in such county, or in any adjoining county, at the plaintiff's election. 5 Any local or transitory action, by one county against another, may be commenced and tried in any adjoining county. 6 4thly. In penal actions. When any forfeiture is recoverable in a civil action, the same shall be brought in the county in which the offence was committed, unless a different provision is made in the statute imposing the same : and 'if on the trial it shall not appear, that it was committed in the county where the action is brought, the verdict shall be in favor of the defendant. 7 V. OF THE INDORSEMENT OF WRITS. All original writs, and writs of scire facias, shall, before entry of the same in court, be indorsed by some sufficient person, who shall then be an inhabitant of the State, when the plaintiff shall not be an inhab- itant of the State ; and if pending the suit, the plaintiff shall remove from the State, he shall, on motion of the defendant, or any other party to the suit, be required to procure an indorser. 8 When there shall be more than one plaintiff, and any one of them is an inhabitant of the State, no indorser shall be required, except by special order of Court, on motion of the other party. 9 »R. S. ch. 114, sec. 13. «Ib. sec. 10. 2 Ib. sec. 6. Tib. sec. 14. 3 Ib. sec. 7. alb. sec. 16. 4 Ib. sec. 8. 91b. sec. 17. *Ib. sec. 9. • OP THE WRIT. S3 Every indorser of a writ is made liable, in case of the avoidance or inability of the plaintiff, to pay all such costs as shall be adjudged against the plaintiff; provided the suit therefor shall be brought within one year after the original judgment. 1 If, pending any suit, any indorser should, in the opinion of the Court, be deemed insufficient, it may require that a new indorser should be furnished, who is sufficient, the defendant consenting that the name of the original indorser should be struck out ; and the new indorser, so furnished, shall be liable for all costs, from the beginning of the suit, in like manner as if he had been the original indorser. 2 If the plaintiff shall, in any case, fail to procure such new indorser, according to the order of Court, at the time appointed, the action shall be dismissed, and the defendant shall "recover his costs. 3 The want of an indorser to an original writ must be taken advantage of in abatement, either by plea or motion ; but it cannot avail the defendant after pleading in chief. 4 The statute prescribes no particular form in which the indorsement must be made. The usual practice is for the indorser to write his name apon the back of the writ ; and it is sufficient if he simply write the initials of his Christian name, giving the surname at length.* When a person places his name upon the back of a writ, no liability to pay costs is incurred thereby, unless it is done according to the pro- visions of the statute. If a stranger to the suit, for example, voluntarily puts his name upon the back of a writ, when the statute does not require it and vests the Court with no authority to order it, such person would not be liable as indorser. 8 The question has been raised whether, where a minor resides within this State, and his guardian or next friend resides without the State, the writ must be indorsed. It has never received a judicial decision, but the late Judge Howe of Massachusetts, gives it as his opinion that in such case the writ must be indorsed. 7 VI. OF THE PARTIES. Plaintiffs. The action should be brought in the name of all the parties having a legal interest ; and, in general, in actions ex contractu, *R. S. ch. 114, sec. 18. »11 Pick. 66. s Ib. sec. 19. «26 Maine, 40. 3 Ib. sec. 20. 'Howe's Pr. 111. *3 Green, 216. 5 34 JUSTICE OF THE PEACE. the nonjoinder of a party who should have been co-plaintiff, is ground for a nonsuit. But in the case of executors, assignees, and others serving jure representationis, and in all cases in action ex-delicto, the defendant, if he would avail himself of the omission, must plead it in abatement. 1 Defendants. In actions ex contractu, all jointly liable should be joined as defendants ; but if there be an omission, the defendants named in the writ can only take advantage by a plea in abatement : and in actions for torts, in general, no advantage can be taken of the nonjoinder of a defendant. 2 VII. OP THE DECLARATION. Every writ must contain a declaration, consisting of one or more counts, containing the plaintiff's cause of action. This is a part, and necesary part of the writ, and therefore if a writ be made without a declaration, it is fatal, and cannot be amended by filing a count, because there is nothing to amend. 3 » 1 Chitty on PI. 7, 13, 51. 32 Pick. 423, 4. H Chitty on PI. 24, 74. CHAPTER VI. OF THE SERVICE AND RETURN OF THE WEIT. It has been already laid down, that unless the writ fee properly served, and a return made showing such service, the justice fails to obtain any jurisdiction, and his proceedings are not only void, but he is personally responsible for them, unless, in some cases, the defendant shall waive the objection. It is important, therefore, for the magistrate, both to know what is a proper service and return, and whether in each case brought before him, such service and return have been made. i. of the service. W hen. No person shall serve or execute any civil process, from midnight preceding to midnight following the Lord's day ; but such service shall be void, and the person serving or executing such process, shall be liable in damages to the party aggrieved, in like maimer as if he had no such process. 1 The writ must be duly served not less than seven, nor more than sixty days, before the day therein appointed for trial. 2 In actions against counties, towns, parishes, religious societies and all other corporations, the writ must be served thirty days before the sitting of the court to which the same is made returnable. 3 Upon whom. The writ should be served, in case of individuals, upon all the defendants, and in case of trustees, upon all the trustees, within the jurisdiction. 4 Corporations. When a suit is brought against a county, the sum- mons shall be served by leaving an attested copy thereof with one of the county commissioners, or with their clerk ; and in all suits against the inhabitants of any town, parish, religious society, or school district, by leaving aGopy with the clerk, or one of the selectmen, or assessors >R. S. ch. 114, art. v. 3 R. S. ch. 114, sec. 44. a R. S. ch. 116, sec. 6. 4 16 Mass. 303. 36 JUSTICE OF THE PEACE, of the corporation sued, if there be such officer; if not, with any member of such corporation. In suits against aft other corporations, the summons shall be served by leaving a copy of it with the president, or clerk, cashier, or treasurer, or any general agent or director, as the case may be, of the corporation sued ; if there be no such officer or agent found within the county where such corporation is established, or where its records or papers are required by law to be kept, such copy may be left with any member of the corporation. 1 How. It has already been seen that there are but three general kinds or classes of writs known in our practice. The service of each of them will be considered in this chapter. 1. Original Summons. In all cases where the process is by original summons, as against executors, administrators, guardians, and in all other civil actions, wherein the law does not require a separate summons, the service, by the proper officer, will be sufficient, either by reading the writ or original summons to the defendant, or by giving him in hand, or leaving at his dwelling house or place of last and usual abode, a certified copy thereof. Writs against towns, however, and other corporations must be served by copy, as stated above. If the defendant was never an inhabitant of the State, or has removed there- from, then the copy shall be left with his tenant, agent, or attorney. 2 If a defendant, whose goods have been attached upon a writ, not being an inhabitant of the State, has no agent or attorney within the same, the magistrate may order such notice to him as justice may require. 3 2. Capias or attachment. The precept in this case commands the officer to attach the goods or estate of the defendant, and for want thereof to take his body. If the first alternative of the precept is followed, the writ is a writ of capias and attachment, if the last, it is a capias.* But when the plaintiff has once made his election how the writ shall be served, and service has been made, he shall be bound by it. Thus, where the body of the defendant was taken on the writ, and afterwards property was attached on the same writ, the court said it was clear that by law an officer could not take both body and estate ; that when he had X R. S. oh. 114, sec. 41. 3 Act of 1844, ch. 86. 2 Ib. sec. 27. »5 Pick. 386. SERVICE AND RETURN OF THE WRIT. 87 taken the body, the ■writ became functum officio, completely executed, and no further prociiedings could be had thereon by the officer, except to complete his return. 1 And where property was attached, and afterwards the defendant was arrested, but before the last day of service summons was served on the defendant, and the officer returned service by attachment and summons, and made no mention of arrest, held that the service was good, as the arrest was void. 2 By "arrest" is to be understood to take the party into custody. It is so used in works of authority. An arrest is the begining of impris- onment, when a man is first taken and restrained of his liberty by power or color of a lawful warrant. 3 If service be made by arrest, and the arrest be void, either because the defendant be exempt from arrest, or for any other reason, and no other service be made on the defendant, the writ should be dismissed for want of proper service, unless he appears, and waives the objection ; for service not having been made according to law, the whole service is void, and the defendant has received no legal notice to appear and answer to the suit of the plaintiff. It is not lawful to arrest, on mesne process, in any case where, after judgment, the body of the debtor is not liable to be taken in execution. 4 No person shall be arrested in any civil action, on mesne process or execution, on 'the fourth day of July, or on the day of the annual fast or thanksgiving. 5 On the day of any military training, inspection, review, or election, no officer whose duty it may be to attend, and no soldier who is enrolled as such, and shall have been duly notified to attend on said days, shall be arrested on mesne process or execution. 6 All persons are liable to be arrested, unless specially exempted. 7 The constitution of the United States provides that senators and rep- resentatives in congress shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to, and returning from the same. »3 Mass. 561. »R. S. ch. 114, sec. 101. M 3 Mass. 73. «Ib. sec. 102. 3 1 Met. 504. 'Howe's Pr. 142. a 5 Green. 291. 58 JUSTICE OF THE PEACE. The constitution of Maine provides, that the senators and represen- tatives shall in all cases, except treason, felony, or*breach of the peace, be privileged from arrest during their attendance at, going to, and returning from each session of the legislature. 1 Electors are also, with the same exception, privileged from arrest on the days of election, during their attendance at, going to, and return- ing therefrom. 2 So a juror, or a party, or one commanded by due process of law to attend as a witness, is free from arrest while attending, or going to or from court, or a reference. 5 And it is said that any party whose duty brings him to court is in the same manner privileged from arrest.* A writ of protection, in such cases, may be issued by the court, but this is not essential, excepting so far as it serves to give notice to the officer. 5 A poor debtor, after discharge under the act for the relief of poor debtors, is free from arrest for the same debt, unless he shall, having disclosed property on his examination, transfer, conceal, or otherwise dispose of the same, or refuse to deliver the same to the proper officer, so that the hen of the creditor cannot be enforced, or unless he shall wilfully disclose falsely in respect thereto. b And generally, as before stated, a debtor cannot lawfully be arrested on mesne process, where after judgment, his body is not liable to be taken on execution. 7 If in any of these cases an arrest be made, or if one be made on a precept not containing the command to take the body, the arrest is void, and, as we have already said, if no other service be made on the defendant, the writ should be dismissed for want of proper service, unless he appears and waives the objection. 8 Before any arrest can be made upon mesne process, in any suit brought on any contract, or on any judgment founded on a contract, the creditor, his agent, or attorney, must make oath before a justice of the peace, to be certified upon such process, that he has reason to believe, and does believe, that such debtor is about to depart and reside beyond the limits of the State, and to take with him property or means 'Const, art. iv. (part first) sec. 8. s 6 Mass. 264. s Const. art. ii. sec. 2. 6R. g. c h. i 4 g j secs . 32 3A 47 48. a 3 Mass. 288— 6 Mass. 264. '5 Green. 291. *3 Mass. 288—2 Wend. 257. »2 N, H. 46a SERVICE AND RETURN OF THE WRIT. 39 exceeding the amount required for his own immediate support, and that the demand in said process, or the principal part thereof, amounting to at least ten dollars, is due him. 1 In all actions not founded on contract, or on a judgment on such contract, the original process or writ shall run against the body of the defendant. 2 3d. Summons and Attachment. The revised statutes provide that the writ in civil actions, commenced before a justice of the peace, shall be a summons, a capias and attachment. The capias and attach- ment is in practice, however, a summons and attachment, in cases where the debtor is not arrested, and is to be served, in such cases, by delivery, by the proper officer, to the defendant, of a separate summons, or by leaving the same at his dwelling house or place of last and usual abo^e.' In actions against corporations, and in other cases where goods or estate are attached, but in which the defendant is not liable to arrest, the writ and summons may be combined in one, in which case the service is by reading the writ or original summons to the defendant, or by giving bim in hand, or leaving at his dwelling house or place of last and usual abode, a certified copy thereof. 4 If the defendant was never an inhabitant of the State, or has removed there- from, the same rule is to be observed as in case of original summons, before referred to. When the service of a writ is defective or insufficient, by reason of some mistake of the officer, or of the plaintiff, as to the place where, the time when, or the person with whom the summons or copy should have been left, the court may, if they think proper, order a new summons to be issued and served, in such manner as they may direct ; and such service shall be as effectual, as if made and returned on the original writ. 4 When the name of a defendant is not known to the plaintiff, the writ may issue against him by a fictitious name ; and if duly served, it shall not be abated for that cause. 6 Trustee Process. When a trustee process is issued by a munici- pal or police court, or a justice of the peace, the writ may contain a direction to attach proper*" of the principal defendant in his own hands, »R. S. ch. 148, sec. 2. 4 R. S. ch. 114, sees. 25, 26. s Ib. sec. 9. 5 Ib. sec. 48. 3 R. S. ch. 116, sec. 6— ch. 114, sec. 24. «Ib. sec. 49. 40 JUSTICE OF THE PEACE. as well as in the hands of the person named as trustee, and is to be served by reading the writ to the defendant and trustees, or by giving them in hand, or leaving at their last and usual place of abode a copy thereof; and this will be a sufficient service on the principal, whether any trustee is holden or not. 1 II. OF THE RETURN. It is the duty of the officer, serving any precept, to make seasonable return of the same, with his doings thereon, to the magistrate where it is made returnable. He must certify upon the back, a particular state- ment of the manner in which he made the service, and it is not sufficient that he return generally that he made the service according to law, but he must state the manner in which it was done, that the parties may be informed of their rights, and that the court may judge of the officer's proceedings. And unless such return be made, the case is not prop- erly before the magistrate, and he can exercise no jurisdiction over it ; though in many cases of irregularity in service of writs, a general appearance and especially a plea to the action, is a waiver of any exception to the jurisdiction. 2 The return is conclusive evidence of the fact stated in it, and the magistrate cannot admit evidence aliunde to contradict or control it. 1 After the writ is served, no alteration should be made in it, either by the officer who serves it, or by the attorney. 4 And such an alteration makes the writ abateable.* l R. S. ch. 119, sees. 3, 87— ch. 114, 3 11 Wend. 51. sec. 26. *9 N. H. 257. 2 2 Pick. 535. »2 Conn. 377, 23 Maine, 74. CHAPTER VII. OF THE RETURN DAT OF THE WRIT AND PROCEEDINGS BEFORE TRIAL. I. ENTRY. The action should be entered on the return day of the writ, at the time and place mentioned in the writ. The entry should also be made before the magistrate personally, and not before any clerk, or other person in his absence, the words of the precept being peremptory, and the statute not authorizing any delegation of authority. When the action is entered, the magistrate should make in his docket a minute of the names of the parties, under which should be minuted such orders and judgments as may be from time to time made in the case. A ■ II. COMPLAINT FOR COSTS, It is provided by statute that if the plaintiff shall fail to enter and prosecute his action, or if on trial he shall not maintain his action, the defendant shall recover judgment for his costs, to be taxed by the justice. 1 If, therefore, the plaintiff does not enter his action, the defendant may make his complaint to the justice, setting forth the facts, and praying for judgment for his costs. III. DEFAULT. If any person duly served with process, shall not appear and answer thereto, his default shall be recorded, and the charge in the declaration shall be considered as true. 2 And the magistrate may thereupon, and also when the action is on trial maintained, proceed to render the judgment against him. The *R. "S. ch. 116, sec. 8. 2 Ib. sec. 7. 6 42 JUSTICE OF THE PEACE. custom prevails in most, if not in all the counties in this State, to wait one hour after the hour of the return, in order that the defendant may appear, and then, if he has not appeared, to give judgment against him on default. It has been decided in Connecticut, that such a custom is as much a part of the unwritten law as any part of the common law. 1 )( The Supreme Court of Massachuestts seem inclined to adopt the same rule, though they say that they do not think there is any inflex- ible rule, that every case of the kind then before them (disclosures under the poor debtor laws) should be proceeded in within the hour appointed, and that, at the moment the hour expires, there is a dis- continuance of all cases not then brought before the consideration of the magistrate. 2 The same doctrine, that the justice is bound to wait the hour before finally disposing of the case, has been recognized in New York. 3 And the same courts have gone farther and said, that the magistrate is not obliged then to dispose of the case, but may, at his discretion, extend the time for either party to come in and prosecute or defend. 4 This last question has also arisen in New Hampshire, and it has there been decided that a trustee appearing after the hour has expired, but on the same day, and denying his liability, is entitled to have the default taken off. 5 So that the rule seems well settled that the justice is not obliged to dispose of the matter within the hour, though the plaintiff may request it ; but it is always within his discretion, and it may be his duty, to wait longer for an appearance. IV. ABSENT DEFENDANTS. When the goods of any person, not being an inhabitant of the State, and having no agent or attorney within the same, have been attached in any action before a justice of the peace, said justice may order such notice to the defendant as justice may require ; and such order being complied with, and proof of such notice being made to the satisfaction of the justice, the defendant is held to answer to such suit as in cases where service is made in the usual form. 6 »12 Conn. 390. *U Wend. 51. s 3 Met. 568. *9 N. H. 257. 3 20 Johns. 309. »Acts of 1844, ch. 86. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 43 This statute makes no provision as to the mode in -which the fact of the absence from the State shall be brought to the knowledge of the magistrate. Ordinarily it will appear, either by the officer's return upon the writ, or by the description of the defendant in the writ, but, of course, may be shown in any other way. The form of notice is not prescribed by statute. It has usually been given in the higher courts, by publishing a copy of the order in some public newspaper ; but, where the amount involved is so small as to come within the jurisdiction of a justice of the peace, unless the parties request otherwise, if the place of residence of the defendant be known to the magistrate, a copy of the order sent to him by mail complies with the spirit of the statute, and is attended with less expense. For the form of such notice to absent defendants, see the forms at the close of the work. V. APPEARANCE. An appearance by the defendant, at the time and place for the return of the writ, or if the action be continued, at the time and place to which it is continued, prevents a default. This appearance may be made, either by the defendant personally, or by attorney. The magistrate should minute on his docket the day of the appearance, and if by any other person than the defendant, the name of the attorney. An appearance may be general or special. As the effect -of a general appearance is to waive technical objections, the magistrate should be careful, where the appearance is special, to note that it is so. VI. PLEADINGS, AND MOTIONS TO DISMISS. In all cases, excepting those in which title to real estate comes in question, the general issue must be pleaded. 1 The proceedings where title to real estate is brought in question will be treated of in a subse- quent division of this chapter. The form for a plea of the general issue will be found among the forms in civil proceedings. The more common practice is to write the plea upon the back of the writ, the plaintiff joining issue, upon the same paper, in the brief form, "and the plaintiff likewise." If the plea is written upon a separate *R. S. ch. 116, sec. SO. 44 JUSTICE OF THE PEACE. paper, it is usually enclosed in the wit. It will be found convenient to note upon the back of the plea, and upon all papers filed in the cause, what the paper is, the cause in which, and the time when it is filed. When it is provided in the statute that the general issue shall be pleaded in all, excepting certain excepted cases, it is not intended to exclude such pleas and motions as go to defects in the plaintiff's writ or proceedings, and which are generally waived by pleading the general issue. The more common forms of them are those of motions to dismiss the action, and pleas in abatement. The former can only be entertained, when the matter of exception is apparent upon the face of the proceedings, or more plainly, when the magistrate may have infor- mation of the defect, without proof of facts apart from the papers before him. When it is necessary to bring before him some matter of fact not apparent in the record and proceedings, a plea in abatement must be filed 1 Demurrers are not often resorted to before magistrates. When, however, a party is willing to admit the facts alleged in the declaration of the plaintiff, or in the plea of the defendant, but at the same time desires to deny that the facts so admitted are sufficient to sustain the action, or the answer to the action, as the case may be, he may have that question tried by filing a demurrer to the declaration or plea. A form for a demurrer will be found in a subsequent chapter of this work. VII. PROCEEDINGS WHERE TITLE TO REAL ESTATE IS IN QUESTION, AND IN REPLEVIN FOR BEASTS DISTRAINED OR IMPOUNDED, WHERE THE DAMAGES DEMANDED EXCEED TWENTY DOLLARS, OR THE PROPERTY IN THE BEASTS IS IN QUESTION, AND THEIR VALUE EXCEEDS THAT SUM. When in any action pending before a justice of the peace, it shall appear, by the pleadings, or the brief statement filed in the case by either party, that the title to real estate is concerned or brought in • question, the case must, at the request of either party, be removed to the District Court, to be there tried in the same manner, as if it had been originally commenced in that court. 2 U Met. 508. »R. S. ch. 116, sec. 3. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 45 The title to real estate cannot be said to be brought in question, in the sense intended by the statute, when it is not put in issue by the pleadings, and cannot be affected by the judgment. For example, in an action of assumpsit to recover compensation for the use of certain real estate, if the defendant pleads the general issue, and files a brief statement, in which he denies that the plaintiff had any title to the real estate, and alleges that he occupied under one who had title, the title is introduced in a collateral manner, and is used only to prove or disprove the issue, and is not put in issue by the parties. 1 The party requiring the cause to he removed, shall recognise to the other party, in a reasonable sum, with sufficient surety or sureties, with condition to enter the action at the District Court, next to be held in the same county ; and if he fail so to recognise, the justice shall hear and decide the cause in like manner, as if no such request had been made to remove the cause. 2 If no request be made by either party, the magistrate will, of course, proceed to try the cause, upon the issues presented by the pleadings. In actions of replevin, against the impounder or finder of beasts, distrained or impounded, in order to recover any penalty of forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for any damages, alleged to have been done by them, when it appears that the sum demanded for the penalty, forfeiture, or dama- ges, exceeds the sum of twenty dollars, or that the property of the beasts is in question, and that their value exceeds twenty dollars, or that the title to real estate is concerned or brought in question, the case shall, at the request of either party, be transferred to the District Court ; provided the party requesting such transfer, shall recognise in such reasonable sum as the justice shall order, to enter the action at the next term of the court, to which the action is transferred, and prosecute the same with effect, and to pay all intervening damages and costs. 3 Although the statute does not, in terms, require that, in actions of replevin, the title to real estate must appear, by the pleadings, to be brought in question, yet it is rather to be presumed, that the legislature intended the same course of proceedings should be had in this kind of action, as in others, where the title to real estate is brought in question. W Maine, 85. 3 R. S cb. 130, sec. 7. 2 R. S. ch. 116, sec 4. 46 JUSTICE OF THE PEACE. It is said by the Supreme Court of Massachusetts, in commenting upon a somewhat similar statute, that it is not strictly correct to say, that the jurisdiction of the justice is nullified as soon as the plea of soil and freehold is filed; but that he still retains the power to act on a motion to waive the plea or amend it, or to amend the declaration. 1 VIII. AMENDMENTS. It is provided by the revised statutes, that no summons, writ, decla- ration, plea, process, judgment, or other proceedings in courts of justice, shall be abated, arrested, or reversed,Jbr any kind of circum- stantial errors or mistakes, when the person and case may be rightly understood by the court, nor for want of form only, and which by law might have been amended ;■ and that all such errors, imperfections and defects, may, on motion, be amended by either party, on such terms as the court may direct. 2 It is further provided, that in all actions, when there are two or more defendants, the plaintiff may amend the writ, by striking out the names of one or more of them, on paying him or them their costs up to that time ; and that in any action or contract, express or implied, the plaintiff may, on motion, amend his writ, by inserting therein the names of any other person or persons, as defendants, and the court may order a copy of the writ, and the order of the court thereon indorsed, to be served on such additional defendant, and his property to be attached in the same manner as in case of original writs ; and on return of such service and attachment, if any shall be made, such additional defendant or defendants shall be deemed parties to the suit, and may plead to the action accordingly. 8 It was frequently difficult to determine, at common law, in many cases, whether a declaration in trespass, or trespass on the case, was the proper form of action. The distinction between these modes of declaring is now abolished by statute, and it isprovided that the decla- ration shall be equally good and valid, whether the same shall be in form the one or the other.* If a writ has been lost or destroyed by accident, it is provided by statute that the plaintiff may be allowed to file a new writ corresponding, x 19 Pick. 419. 3ft. S. ch.115, sees. 11, 12. ^R. S. ch. 115, sees. 9, 10. *lb. sec 13. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 4T as near as may be, with the one so lost or destroyed, when the action may be proceeded in in the same manner as if the original Afrit had been preserved. The fact of the loss may, in such case, appear to the court by affidavit of the plaintiff, or otherwise. 1 The statutes have now placed the whole subject of amendments on so liberal a ground, that much of the old learning is entirely done away with, and the power of amending has almost become co-extensive with the capacity of making mistakes. Yet, as there must' be some limit to this power, we shall consider the authority of justices to amend mis- takes. 1st. In the parties ; 2d. "Writ ; 3d. Return ; 4th. Declara- tion ; 5th. Pleadings ; 6th. In other matters. It may be laid down as a well settled rule, that, where there is no statute on the subject, the granting of amendments is a matter wholly within the discretion of the court. 2 The magistrate will therefore, where an amendment is prayed for, first look to see whether any statute makes it obligatory on him to grant the motion. If he finds none, he will then exercise his best judgment and discretion, looking to the situation of the parties, and the justice of the case. And he should make it his universal rule, not to grant such motions on an ex parte hearing, where there is an appear- ance on the other side. 1. Parties. In regard to defendants, the power of striking out from the writ a part of the defendants, and discontinuing as to them, and the terms on which it shall be done, and likewise the power and mode of bringing in new defendants after the entry of the action, are regulated by the statutes cited above. It only remains to add, that where in an action on a contract, a part of several defendants are de- faulted, and the rest appear, and defend successfully, the plaintiff cannot take judgment against the defaulted defendants. Where, how- ever, a defence can be made by one or more of the defendants, which admits the making of the original joint contract, but shows matter of personal exemption or discharge, as in case of coverture or infancy, or discharge in bankruptcy, but which leaves the other contracting party liable to the performanoe of the contract, such party may have a sepa- rate judgment against the plaintiff, and the plaintiff a valid judgment against the other defendant. 3 T Act3 of 1848, ch. 57, sec. 1. no Pick. 281. 2 3 Green.. 183. 48 JUSTICE OF THE PEACE. The name of a new plaintiff cannot be inserted, nor that of a plaintiff stricken out. 1 2. Writ. Amendments of the writ in matters of form are allowed without costs. In matters of substance, amendments are not to be allowed without terms. 2 It is said, that if a wrong writ be issued, as a capias against an executor or a corporation, or an illegal service made, as property attached, or the body arrested on an original summons, no amendment will be allowed, as none could set it right, the whole proceeding being void ; 3 but in the case cited from 15 Maine Keports, 400, the process was by original summons, and an illegal service was made by leaving a separate summons, and yet the court granted, on terms, an amend- ment, by which the writ was changed to a writ of attachment. The teste if a writ may be amended, without terms. 4 The seal has been held to be matter of substance, and so is said to be the indorsement. 6 The direction of the writ to the officer may be amended, when the writ has been properly served. 6 The ad damnum may, before judgment, be increased or diminished, or where no damages have been laid in the writ, a sufficient sum may be inserted. 7 The date of the writ is amend- able. 8 "Where a writ purports to issue from one court, it cannnot be amended by inserting the proper words of a writ issuing from another court 9 The return day, it seems, cannot be amended. 10 3. The Return. The question oftentimes comes before a magistrate, how far an officer may be allowed to amend his return, after entry of the action. When the officer has minutes from which either to com- plete, alter, or amend his return, so as to make a correct return, he may be allowed to amend it, even though some years after the entry of the action, and though his own term of office may have expired, and the parties to the suit shall be bound by it. But if the amendment will alter or affect the rights of third persons, who are not parties to the suit, it ought not to be allowed, or, if allowed, will not avail as against such-third persons. 11 »2 Green. 120—7 Pick. 62. T 6 Green. 307—15 Maine, 431. 2 15 Maine 400. no, Pick. 297. 3 Maine Justice, 77. "23 Pick 110. 4 15 Maine, 431. i
5 Wend. 72. *6 Green.106. 2 4 Met. 455. o 2 6 Maine, 444. 3 6 Green. 415. '20 Maine, 301. ♦Howe's Pr. 382. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 51 plaintiff is bound by it. It may, and should be ordered, when the plaintiff fails to set forth his cause of action -with sufficient distinctness for the defendant to know what he is summoned to answer to. In actions of assumpsit on notes of hand and book accounts, nothing is more common than for the plaintiff to declare in the general counts alone, which give the defendant no intimation of the cause of action. The magistrate may require a bill of particulars on motion of the defendant, and refuse to proceed with the cause until the plaintiff com- plies with the order. 1 After the bill of particulars is furnished, the plaintiff cannot, upon trial, contradict it, or give evidence of any demand not contained it, unless specially declared or on some count in the declaration. 2 A bill of particulars is, however, amendable, in the discretion of the court." x. SET-OFF. When there are mutual debts or demands between the plaintiff and defendant in any action, one demand may be set-off against the other. 4 The defendant shall file a statement of his demand on the return day of the writ, notice of which should be entered by the justice on his docket, under the action. 5 The demand of the defendant shall be as certain in substance, as would be required in a declaration, and the court may allow amend- ments thereof, when deemed proper. 6 No demand can be set off unless it is founded upon a judgment or contract ; but the contract maybe either expressed or implied. 7 No demands can be set-off unless for the price of real or personal estate sold, or for money paid, money had and received, or for services done, .or unless it be for a sum liquidated, or one that can be ascertained by calculation. 8 No demand can be set-off, not originally payable to the defendant in his own right ; unless it has been assigned to the defendant, with notice to the plaintiff of the assignment before the action was commenced, or the plaintiff shall have at any time previously agreed to receive it 'Howe's Pr. 410, 418. e Ib. sec. 25— Act of 1847, ch. 20. 'Colby's Pr. 203. 6R. g. c h. n 5> sec. 26. 'Colby's Pr. 105. ?Ib. sec. 27. 4 R. S. ch. 115, sec. 24. »Ib. sec. 28. 52 JUSTICE OF THE PEACE- in payment, or part payment of his demand, or to pay the same to the defendant. 1 If the demand set-off is founded on a bond or other contract having a penalty, no more shall he set-off than the sum equitably due. 2 The set-off is allowed in all actions founded on demands, which could themselves be the subject of set-off according to law, and in no others. 3 If there are several plaintiffs, the demand set-off shall be due from them jointly ; and if there are several defendants, the demand set-off shall be due to them jointly ; but when the person, with whom a contract is made, has a dormant partner, and a suit is brought on such contract, by or against the partners jointly, any debt due to or from the person, with whom the contract was made, may be set-off in like manner, as if such dormant partner had not been joined in the suit. 4 If the demand, in which the action is brought, has been assigned, and the defendant had notice of the assignment, he is not allowed to set-off any demand that he may have acquired against the original creditor after such notice. 5 When an action is brought by one person in trust, or for the use of another, the defendant may set-off any demand against the person, for whose use or benefit the action is brought ; and in actions by executors and administrators, demands againt the testators or intestates, which belonged to the defendant at the time of their death, may be set-off in the same manner as if the action had been brought by the deceased. In this latter case, if a balance is found due the defendant, the judg- ment therefor shall be in the same form, and have the same effect, as if the suit had been originally commenced by the defendant, unless the estate of the deceased is insolvent, in which case no judgment shall be rendered for the defendant, but the statute provides that the same shall be certified by the clerk of the court ; (and in actions before a magistrate, he would not refuse to give his certificate in like manner) and the same shall be laid before the commissioners on such estate, as other claims of creditors are. 6 In actions against executors and administrators, and trustees and others in their representative character, the defendants may set-off demands belonging to their testators or intestates, or those whom they >R S. ch. 115, sees. 29, 30. *Ib. sees. 33, 34. s Ib.. sec. 31. »Ib. sec. 35. 3 Ib. sec. 32. «R. S. ch. 115, sees. 36, 37, 38, 39. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 53 represent, in the same manner as the persons represented •would have been entitled to set-off the same, in an action against themselves. 1 In actions brought by or against executors, administrators or trustees, or others in their representative character, no demand can be set-off, that is due to or from such executors, &c, in their own right. 2 All cases of set-off may be tried upon the issue joined, without any further plea ; and in all actions, except assumpsit, when an issue to the country is not otherwise joined, the defendant may plead that he does not owe the sum demanded by the plaintiff, which shall be deemed a good plea or general issue, for the purpose of trying the merits of the cause ; and the plaintiff shall be entitled to every ground of defence against such set-off, of which he might have availed himself by any form of pleading, in an action brought against him on the same demand.' The statute limiting personal actions, if apphcable to the set-off, shall be applied in the same manner, as if an action thereon had been commenced at the time when the plaintiff's action was commenced.'' If no balance is found due to either party, judgment is to be entered ■ accordingly, without costs to either party ; if a balance is found due the plaintiff, judgment is to be rendered therefor. When a balance is found due from the plaintiff, judgment shall be rendered therefor in favor of the defendant, with costs ; but no judgment shall be rendered against the plaintiff, when the demand for which the action was brought had been assigned before the commencement of the action, nor for any balance due from any other person than the plaintiff; and in no case shall judgment be rendered for the defendant for more than twenty dollars., exclusive of costs. 6 After a demand has been filed in set-off, the plaintiff shall not be allowed to discontinue his action, unless by consent of the defendant." If the defendant is deprived of the benefit of the set-off, by the non- suit, or other act of the plaintiff, he may commence a new action thereon within six months from the time of the determination of the original suit, notwithstanding his demand would be barred by the provisions of the statute of limitations. 7 >R. S. ch. 115, sec. 40. sib. sees. 45, 46, 47. s Ib. sec. 41. 6 Ib. sec. 48. 3 Ib. sees. 42, 43. T R. S ch. 146, sec. 26. *R. S. ch. 115, sec. 44. 54 JUSTICE OF THE PEACE. When an action is brought in this State by any person who is not an inhabitant thereof, or who cannot be found therein to be served with process, he shall be held to answer to any action brought against him by the defendant ; provided the demand in the two cases be of such a nature, that the judgment or execution in the one case can be set-off against the judgment or execution in the other. If there are several defendants in the original action, each of them shall be author- ised to bring such cross action against the original plaintiff; and upon recovering judgment therein, he may be allowed to set-off his judgment in that which may be recovered against himself and his co-defendants, in like manner as if the latter judgment had been against himself alone. The writ in such cross action may be served on the person, who appears as attorney of the plaintiff in the original action ; and in the cases mentioned, the court may order such continuances as justice may require for the defence of either of the actions, or for setting off the demand as above mentioned. 1 XI. OFFER TO BE DEFAULTED, AND TENDER. In an action founded on judgment or contract, the defendant may offer and consent, in writing, to be defaulted, and that judgment maybe entered against him for a specified sum as damages ; and the same shall be entered on record, and the time when the offer was made ; and if the plaintiff shall proceed to trial, and recover no greater sum for his debt or damages, up to the time when the offer was made, the defendant shall recover his costs of the plaintiff, from the time of such offer, up to the time of trial ; and such costs shall be set-off against the sum so offered, and judgment shall be rendered, and execution issued for the balance for either party, which way soever the case may be. 2 Any person, after the commencement of a suit against him, and before the entry thereof in court, shall have the same right to tender pay- ment of the amount due, to the plaintiff or his attorney in the action, as before the commencement of the suit. 3 In all cases of tender both before and after action brought, the defen- dant, if he would avail himself of it, must bring it into court, with what is called a prfffert in curia ; that is, he must deposit it with the *R. S. ch. 114, sees. 74, 75, 76, 3 Act of 1841, ch. 1, Bee. 19. 2 R, S. ch. 115, sec. 22. [RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 55 magistrate, proffering it is a full satisfaction of the plaintiff's demand. He -will also at the same time pray that his costs may be taxed, and offer to pay them. 1 Unless such a profert be made, the previous tender -will avail the defendant nothing. Such a profert may also be made without a previous tender. When, however, acts are to be performed by each party to a contract at the same time, and one tenders money in performance of his part, and brings his action to recover damages on failure of the other party, he is under no obligation to bring the money into court. 2 If the plaintiff fails to recover more than the defendant pays into court, the defendant takes costs from the time of the payment into court, if there were no previous tender, otherwise from the time of the tender. The payment of money into court is an admission of the cause of action as set forth in all the counts, unless specially made ; and where there is a bill of particulars, it is an admission of all the items, unless specifi- cally applied. But it is within the discretion of the court to apply this rule, or not, as justice may require. 3 » An offer to be defaulted is not an admission of the contract as stated in the plaintiff's declaration. 4 It hardly need be said that a tender after action brought and before it is entered, can be made so as to avail the defendant only in actions on contracts. 6 Nothingxbut gold and silver coin is a good tender. 7 But, if a plaintiff does not object to bank notes at the time of the tender, they are considered as good, being themselves money 67 The act of Congress of 1843 provides that the following coins shall pass current as money, within the United States, and be receivable by weight, for the payment of all debts and demands, at the rate following : The gold coins of Great Britain, of not less than nine hundred and fifteen and a half thousandths in fineness, at ninety four cents and six tenths of a cent per penny weight ; and the gold coins of France of not less than eight hundred and ninety nine thousandths in fineness, at ninety two cents and nine tenths of a cent per pennyweight ; the Spanish »17Mass. 392. 5 17 Pick. 369. 2 15 MaiDe, 61. "Const. U. S. 3 5 Pick. 290. '9 Pick. 542. 4 20 Maine 37. 56 JUSTICE OF THE PEACE. pillar dollars, and the dollars of Mexico, Peru, and Bolivia, of not less than eight hundred and ninety-seven thousandths in fineness,* and four hundred and fifteen grains in weight, at one hundred cents each ; and the five franc pieces of France, of not less than nine hundred thous- andths in fineness, and three hundred and eighty four grains in weight, at ninety three cents each. 1 In all actions of trespass upon lands, wherein the defendant by his plea or brief statement, disclaims all right, title and interest in the land upon which the trespass is alleged to have been committed, and declares that the trespass was involuntary, or by negligence or mistake, and that he had tendered or offered sufficient amends therefor, before the action was commenced, or brings money into court to satisfy the dam- age the plaintiff has sustained, with costs ; if upon trial it appear, that such trespass was involuntary, or by negligence or mistake, and the jury shall not assess greater damages for the trespass than the money tendered or brought into court therefor, the defendant shall recover of the plaintiff his reasonable costs. 2 » XII. OATH, MARRIAGE, AC. OF A PARTY. In case of the death of either party in any action, the executor or administrator of the deceased, if the cause of action survive, may become a party to such action, such death being suggested upon the record ; and the surviving party may cause the executor or atlminis- trator of the deceased party, to be served with notice from the court, fourteen days before the sitting of the court to which the same is returnable, to appear and prosecute, or defend such action, as the case may be ; and upon refusal or neglect of such executor or administra- tor, so to appear and become a party to the suit, the court may enter up judgment upon the nonsuit or default, as the case may be, in the form prescribed in actions by or against executors and administrators. 3 Whether the cause of action survive or not, depend, generally upon whether it is upon contract or for tort, the former surviving, the latter, generally, not.* Acts on torts survive, when the estate of the "Acts of Congress of March 3,1843, and °R. S.ch.115, sec. 81. 18 Jan. 1837. «4 Mass. 480—1 Pick. 71. 5 Act of 1841, sec. 19. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 57 deceased received some gain, or his personal property was injured by the wrong. 1 Actions in favor of or against any sheriff, coroner, or constable, to enforce any right, or for any act done by virtue of any precept, directed to either of said officers, in case of the death of any such officer, and no administration granted upon his estate, at the expiration of three months from the time of such death, may be prosecuted or defended by the party for whose interest such officer acted, by such party entering his own appearance, and giving such security for costs, as the magistrate may direct. 2 No action, brought by any public officer in his official capacity, shall abate by reason of the death of the plaintiff; but such action may be prosecuted by his successor in office, to the uses for which the action was originally commenced ; and the court before which such action may be pending, may order such amendments of the process, and such notices to the said successor, as may be necessary. 3 Persons under sentence of death, or imprisonment for life, and confined in the State prison in pursuance of such sentence, are to be treated, so far as their property is concerned, as if their death had taken place at the time of such imprisonment.* If any person who is summoned as a trustee in his own right, shall die before the judgment, if any, recovered by the plaintiff, shall be fully satisfied, the goods, effects and credits in his hands at the time of the attachment, shall remain bound thereby, and his executors and administrators shall be liable therefor, in like manner as if the writ had originally been served on them. If the person so summoned shall die before judgment in the original suit, his executor or administrator may appear voluntarily, or may be cited to appear, in the same manner as is provided in the case of a common defendant in a common action ; and the further proceedings shall then'be conducted in the same man- ner as if the executor or administrator had been originally summoned as a trustee, except that the examination of the deceased, if any had been taken and filed, shall have the same effect as if he were living. If in such case, the executor or administrator shall not appear, the plaintiff, instead of suggesting the death of the testator or intestate, »21 Pick. 250. 3 R. S. ch. 115, sec. 120. s Act of 1848, ch. 59. 4 Act of 1848, ch. 80. 8 58 JUSTICE OF THE PEACE. may take judgment against him by default or otherwise, as if he were living, and the same proceedings shall, in such case, be had, as if the executor or administrator had himself been .adjudged trustee. If the executor or administrator be discharged upon scire facias, he may recover costs or not at the discretion of the court. 1 If any action or suit be brought by an unmarried woman, either alone or jointly with others, and she be married before final judgment, her husband may, on his own motion, be admitted as a party to prosecute the suit with her, and with the other plaintiffs, if there be any, in like manner as if he had originally joined in the suit. 3 If during the pendency of any action, either party shall become insane, the action may be prosecuted or defended by his guardian, in like manner as if it had been commenced after the appointment of the guardian ; or the court may appoint a guardian for the suit, as the case may require. 3 XIII. BANKRUPTCY. When an action shall have been brought against any person, if he, upon his own application, shall have been declared bankrupt by a decree of the District Court of the United States, during the pendency of said action, neither he nor his assignee shall be entitled to recover costs in said action ; nor in any action, where the defendant shall rely upon his certificate of discharge in bankruptcy as a matter of defence, and where the said certificate was obtained after the commencement of the suit, shall such defendant recover costs against the plaintiff till after the said certificate shall be obtained, pleaded and produced in court. 4 XIV. CONTINUANCE. Every justice may adjourn -his court in all cases, civil or criminal, on trial before him, to any other time or place, as occasion shall require. It is the practice, in some of the counties of this state, to make the writs returnable on the Saturday of each week, and to continue as a matter of course to the Saturday of the next week, if the defendant »R. S. ch. 119, seca. 44, 45, 46, 47, 48, =Ib. sec. 86. 49- 4 Act of 184-!, ch. 115— actof 1848, ch. 2 R. S. ch. 115, sec. 82. 60. RETURN DAY OF WRIT AND PROCEEDINGS BEFORE TRIAL. 59 appears. Where such practice prevails the justice ought not to drive either party to trial, although the other party may be ready with his witnesses, unless a notice has been served by the party ready for trial, upon the other party, that he shall insist upon trial at the return-day of the writ. Such notice should be served a reasonable time before the return day. And in all cases where absent defendants, other parties, or executors, or administrators are to be cited in, the action must be continued. The magistrate has, however, no right to order a continuance prior to the return-day of the writ. And if the action has once been con- tinued, he has no right to order a further continuance, before the day arrives to which the first continuance was made. 1 «17 Maine, 413. CHAPTER VIII. OF THE COURSE OF THE TBIAL, AND OF WITNESSES. The proeedings which have been thug far considered are preliminary only to the actual trial. Their office is to assist in forming the issue which the parties are to join. When the "issue is determined, the parties are ready for trial, and no alteration should be made in it after the trial has commenced. The party assuming the affirmative is to open the case. Ordinarily the plaintiff is the affirming party, and as such, the burden of proof being upon him, he has the opening and closing. It is hardly possible under the present form of pleading, that any exception to this rule can occur before a justice of the peace. And it makes no difference whether the issue be one in law or fact ; the rule is the same. The plaintiff having stated his case, and what he expects to prove, next proceeds to call his witnesses, and put in his evidence. The evidence may be of two kinds — written, or parol. In case of written evidence, if it be private writings, he will be prepared with the necess- ary proof of their execution, which must be put in before they can be admitted ; and if it be a deposition, it must be taken in the mode prescribed by law. OF WITNESSES. A treatise upon the various kinds of evidence, and the manner in which each particular issue must or may be proved, cannot be expected within the limits t>f this book. Its plan will not permit more than an outline view of the subject. 1. All witnesses are competent, unless, 1st. They are parties to the record ; 2d. Are interested in the suit ; 3d. Are deficient in under- standing ; 4th. Have been convicted of some infamous offence ; or, 5th. Should be exeluded on grounds of public policy. COURSE OF TRIAL AND OF WITNESSES. 61 I. The general rule is that a party to the record in a civil suit, cannot be a witness, either for himself, or for a co-suitor in the cause. 1 And this rule also extends to the case of members of corporations, parties to the record. 2 The only exceptions known in our law to this rule are, 1st. The provision in the revised statutes, that in all suits at law, wherein any county, town, plantation, parish, school district, public corporation, charitable, religious, or literary incorporated society, or any mutual fire insurance company, may be a party, or interested in the event of the suit, any inhabitant or member of any such corpora- tion shall be admitted as a competent witness ; provided he has no other interest therein than as such inhabitant or member. s 2d. The provision of the Revised Statutes that in case of trustee process, where the trustee in his answer discloses an assignment, and the assignee is summoned in to defend, upon trial, between the attaching creditor and the assignee, the principal defendant may be examined as a witness for either party, if there is no other objection to his competen- cy, except his being a party to the original suit. 4 3d. The rule admitting the suppletory oath of a party to original entries. If it shall appear to the court, on the oath of the party offering the books, that it is not the book of original entries of his daily transactions in business ; or that it is not free from fraudulent practices ; or that the entries were not made at or about the time of the goods delivered, and the services performed ; or that the entry was not made for the purpose of charging the debtor with the debt ; or that there have been altera- tions, additions, or erasures since the time of the original entry ; or that the articles therein charged were not actually delivered, and the services actually performed ; or that the sums charged and claimed have not been paid, then the magistrate will reject the books ; as, in order to bring himself within the exception to the general rule, and make himself a witness in his own cause, the plaintiff must strictly comply with the letter of the law. 6 «1 Green. Ev. § 329. 4 R. S. ch. 119, sec. 39. 2 Ib. § 331, 332, 333, *1 Green. Ev. § 118, and note. 3 R. S. ch. 115, sec. 75. 62. JUSTICE OF THE PEACE. It is not necessary to establish the opposite of all these propositions, that the evidence may be admitted ; but if any one of them should appear in the course of the examination of the plaintiff the evidence must be rejected. The books of a plaintiff, accompanied by his oath, are insufficient to prove a charge for money paid, if the sum charged exceed $6.67.' If the articles charged appear, from the inspection of the book of accounts, to be such as ordinarily could not have been delivered with- out the assistance of a third person, the oath of the party will be rejected, on the ground that better proof can probably be had. 2 And, generally, where, from the nature of the case, better evidence can be had, the oath of a party is not allowed. 3 4th. In any action brought to recover money or goods lost in gaming, if the plaintiff shall offer to make oath, that the money or goods were lost by gaming with the defendant, as alleged in the decla- ration, judgment shall be rendered for the plaintiff, unless the defendant make oath that he did not obtain the same, or any part thereof, by gaming.* 5th. In actions on contracts, in which is reserved usurious interest, the debtor, or any one of them, if there are two or more, may, if the creditor be alive, come into court, and swear to the fact of the usurious reservation ; whereupon he shall be discharged from the payment of it, unless the creditor, or, if there be two or more, one of them, will swear, that he has not directly or indirectly, wittingly taken or re- ceived more than the legal rate of interest. 8 6th. The affidavit of a party as to the loss of a paper, in order to exclude any presumption that he may have it in his possession, or know where it is. s The affidavit of a party for the purpose of procur- ing a continuance of an action, arresting a debtor, of a creditor to his petition to defend a suit in which an attachment has been made prior to that in a suit in which he is plaintiff, is also received. 7 7th. In actions against common carriers for the loss of baggage by the carrier, the plaintff 's oath is allowed to prove the contents of the trunk, or other thing, containing his wearing appareL The principle, HO Maine 9. 5 R. S. ch. 69, sec. 3— Act. of 1846, ch. 2 14 Maine, 208. 192. H Mass. 455. <8 Pick. 277— lb. 390. *R. S. ch. 35, sec. 3. *R. S. ch. 148, sec. 2— lb. ch. 115, sec. 114. COURSE OF TRIAL AND OF WITNESSES. 63 in a case in which there was proof that the trunk had been broken open and rifled of its contents, has been applied to articles other than •wearing apparel. 1 The rule -which we have been considering is only, that parties to the record shal not be allowed to testify in their own favor, and shall not be compelled to testify against themselves. If, however, they choose voluntarily to do the latter, it seems they may be allowed so to do, not, however, without the consent of all the parties to the record. 2 "When one of several defendants is defaulted, he may be made a witness for the others in torts, but not in action on contracts. 3 And in all cases, the party shall not be permitted to have the benefit ■of his own oath, except where the oath is administered in court. His deposition, therefore, in any of the foregoing cases, cannot avail him. 4 11. Akin to the objection that the witness is a party to the record, is the objection that he is interested ; and much that has already been said under the former head may be repeated under this. But one may fee a party to the record, and yet have no interest in the event of the suit, having a bond of indemnity ; and nothing is more common than for persons other than the parties to the record to be interested in the suit. A party to the record can never be a witness, unless he comes within some of the exceptions, while the objection to the admissibility of a witness on the ground of interest may be removed. It must be some legal, certain, and immediate pecuniary interest in the event of the suit, however small. It must be real, and not merely apprehended, or honorary. It may be a direct interest in the result of the suit, or an interest in some subsequent suit, in which the record in this may be used as evidence. 6 In civil suits, interested witnesses may testify in the following cases: 1. When, being otherwise interested, they are made competent by statute. 2. The ease of agents, carriers, factors, brokers, or servants, when called to prove acts done for their principals, in the course of their employment. 3. The case of a witness whose interest has been acquired after the party has become entitled to his testimony. 6 *26 Maine,458— 1 Maine, 27—1 Green. Ev. 4 2 Pick. 57. § 348, and note. *1 Green. Ev. § 386. 2 Ib § 354. Hh. § 411. 3 1 Green. Ev. §355,357. 64 JUSTICE OF THE PEACE. All the exceptions to the general rule in case of parties to the record, may be repeated under this head. Where a witness is produced to testify against to interest, the rule •does not apply, nor where he is equally interested o*ti both sides. The rule disqualifying a witness on the ground of interest, extends to the wife of an interested witness, where her evidence tends to dis- charge the husband from his liability. 1 III. If it be alleged that the witness be a person deficient in understanding, as an insane person, or an idiot, or a young child, it is the duty of the presiding magistrate to question him in order that he may ascertain whether his mind be indeed too imbecile to comprehend ihe nature of an oath, and feel its binding force. And if he shall be satisfied that this is the case, he will refuse to admit his testimony. IV. The conviction of an infamous crime is a disqualification. It is a difficult point to determine precisely the crime which will render the perpetrator infamous. The rule is stated to be that the offence must be one "implying such a dereliction of moral principle, as carries with it a conclusion of a total disregard to the obligations of an oath." Treason, felony, and the crimen falsi are considered to be infamous offences. 2 Felony, under our law, includes murder, rape, arson, robbery, burglary, maims, larceny, and every offence punishable with death, or by imprisonment in the State prison. 3 The crimen falsi includes forgery, and every species of fraud and deceit. 4 Infamy does not, how- ever, disqualify a person from taking the poor debtor's oath. 5 But no person shall be deemed an incompetent witness, by reason of having committed any crime, unless he has been convicted thereof in this State ; but the conviction of any person, in any court without the State, of a crime which, if he had been convicted thereof within this State, would render him an incompetent witness here, may he given in evidence to affect his credibility. 15 V. Rules of public policy sometimes disqualify. Thus, an attorney shall not be compelled on the stand to divulge the secrets of his client, confided to him professionally. And a wife cannot testify in a suit to which the hushand is a party. *2 Pick. 308. M Green. Ev. § 373. *1 Green. Ev. § 373. *R. S. ch. 148, sec. 40. 8 R. S. ch. 167, sec. 2. «R. S ch. 133, sec. 44. COURSE OF TRIAL AND OF WITNESSES. 65 And, indeed, this last rule is carried so far, as we have already seen, that the wife of an interested witness is excluded. And a party to a negotiable note is not an admissible witness to impeach the note. 1 * 2. Mode of restoring the Competency of a Witness. When a witness is once disqualified by being a party to the record, his incom- petency cannot be removed. So where the incompetency arises from his want of understanding, or from the rule of public policy, he can be restored to his competency only by the happening of events, which can hardly take place during the course of a trial. Where interest is the disqualifying circumstance, he may be restored by a proper release, given before the testimony has closed, or by a bona fide assignment, without recourse, of all his interest in the suit. What is such a release, depends, of course, on the nature of each suit. If any person shall be disqualified to testify' in any suit, by reason of having indorsed the original writ or process, or of being a surety in the recognizance of the appellant, or in a replevin bond, he may be discharged by order of the court, so as to be sworn as a witness, provided another sufficient indorser or surety be substituted in his stead, to be liable in like manner and to the same extent, as he would have been. 2 A full pardon of one convicted of an infamous offence will restore his competency; a remission, merely, of the remainder of the punishment does not restore his competency. 3 The fact of the pardon may be proved by a certified copy from the office of the Secretary of State. If the objection be deficiency of understanding, or conviction of an infamous crime, it should be taken before the witness is sworn. 4 And, in the last case, the party objecting must be prepared with the record of the conviction to prove the fact. 5 But the objection on the ground of interest may be taken at any time in the course of the examination, when the facts to sustain the objection have come out. 6 And that, although there has been an unsuccessful attempt to prove it. 7 x 10 Maine, 247. 6 17 Mass. 515. s l Green. Ev. § 392, and note. 6 13 Mass. 381. 3 24 Pick. 277. '6 Green. 364. "Howe's Pr. 254. 9 66 JUSTICE OF THE PEACE. If the fact of interest was known to, or the knowledge of it within the reach of, the party against whom he is called upon to testify, the witness must be objected to before he is sworn and examined, or the objection will come too late. 1 Proof that a witness has confessed himself interested is not sufficient to disqualify him. But where it is proved that the party by whom the witness is introduced, has acknowledged him so interested, he ought not to be sworn. 2 The mode of proving the interest of a witness is either by his own examination, or evidence aliunde. After making his election, the party objecting must proceed in the manner he has chosen, except that, where the evidence aliunde is rejected as inadmissible, his right to examine the witness again revives, and that he may introduce evidence aliunde to show a fact neither stated nor denied by the witness on his own examination. 3 These objections all run to the competency of the witness, and, if sustained, operate to entirely exclude his testimony. There are other objections which, although they admit the testimony of the witness in the case, go to affect its credibility, as that the witness is a common prostitute, 4 entertains certain religious opinions, 5 that different state- ments have been made by the witness out of court, that the character of the witness for truth and veracity is bad, and similar objections in regard to character, &c, which it would be impossible to enumerate. It is not necessary that the witness should be present when his character is impeached. 6 As to the manner of administering oaths to witnesses, the statutes provide, that the deponent shall hold up his hand, unless he is a person who believes that an oath is not binding, if it is not taken in his accus- tomed manner. 7 The usual form of oath is, "You swear that the evidence you shall give in the cause now in hearing, shall be the truth, the whole truth, and nothing but the truth — so help you God." But all persons are to be sworn, according to the peculiar ceremonies of their own religion, or in such manner as they may deem binding on their own consciences. 8 *8 Pick. 392. 617 Mass. 160. =8 Mass. 488. ?R. S- ch. 115, sec. 73. =1 Green. Ev.§ 423. n Green. Ev. §371— R. S. ch. 133, 4 14 Mass. 388. sees. 52, 53. "Laws 1847, ch. 34— R.S. ch.115, sec. 72. COURSE OF TRIAL AND OF WITNESSES. 67 Every person conscientiously scrupulous of taking an oath, is requir- ed to make affirmation as follows : " I do affirm under the pains and penalties of perjury ;" which is deemed of the same force and effect as an oath. 1 The court in ascertaining whether the form in which the oath is administered is binding on the conscience of the witness may inquire of the witness himself; and the proper time for making this enquiry is before he is sworn. An oath is binding, in whatever form, if adminis- tered in such form and with such ceremonies as the person himself may declare binding. Though the proper time for making inquiry of the witness as to the proper form of oath to be administered to him is before he is sworn, yet, if he is sworn in the usual form, without making "any objection, he may be afterwards asked, whether he thinks the oath binding upon his conscience. 2 In all cases of preliminary examination, as for the purpose of proving the execution of instruments, and also where a party is offered to prove original entries, the magistrate will swear or affirm the witness to make "just and true answers to such questions as shall be put to him relative to the matter in hearing." When the witness is ignorant of the English language, the court will order an interpreter to be first sworn, "truly to interpret between the court and the witness." The oath should then be administered to the witness in English, and interpreted to him by the sworn interpreter, as it is pronounced by the court. 3 OF RECORD EVIDENCE. The records and proceeding of any court of another State, or of the United States, are admissible in evidence in all cases in this State, when authenticated by the attestation of the clerk, prothonatory or other officer, having charge of the records of such court, with the seal of such court annexed. 4 The constitution of the United States provides that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and power is given to congress to pre- scribe the manner in which such acts, records and proceedings may be X R. S. ch. 115, sec. 74. "4 Masa. 81—5 Mass. 225. H Green. Ev. § 371. *R. S. ch. 133, sec. 45. 68 JUSTICE OF THE PEACE. proved, and the effect thereof. 1 The law of congress prescribing the man- ner in which such records must be proved, requires that the judge; chief justice, or presiding magistrate shall certify that the attestation of the clerk or other recording officer is in due form. 2 The printed copies of all statutes, acts and resolves of the State, whether of a public or private nature, which shall be published under the authority of the government, shall be admitted as sufficient evidence thereof in all courts of law, and on all occasions whatsoever. 3 Printed copies of the statute laws of any other of the United States; or of the territories thereof, if purporting to be published under the authority of the respective governments, or if commonly admitted and read as evidence in their courts, shall be admitted in all our courts of law, and on all occasions, in this State, as prima facie evidence of such laws.* The unwritten law of any other of the United States, or of the terri- tories thereof, may be proved as facts by parol evidence, and the books of reports of cases, adjudged in their courts, may also be admitted as evidence of such law. 6 The existence, and the tenor or effect, of all foreign laws, may be proved as facts, by parol evidence ; but if it shall appear that the law in question is contained in a written statute or code, the court may, in their discretion, reject any evidence of such law, that is not accompanied by a copy thereof. 6 Copies of the records of the courts of our own State, duly attested, are admissible in evidence.' The protest of any foreign bill of exchange, or promissory note or order, duly certified by any notary public, under his hand and official seal, is made legal evidence of the facts stated in the same. 8 Official registers, or books kept by persons in public office, in which they are required by statute, or by the nature of their office, to write down particular transactions, occurring in the course of their public duties, and under their personal observation, are admissible in evidence. 9 When the books themselves are produced, they are received without further attestation. But they must be accompanied by proof 1 Const. U. S. art. re. sec. 1. . 5 Ib. sec. 48. 2 Act of 1790, ch. 38— Act of 1804, ch. «Ib. sec. 49. 409. '16 Maine, 18. °R. S. ch. 133, sec. 46. 8 R. S. ch. 44, sec. 12. *Ib. sec. 47. 91 Green. Ev. § 483. COURSE OF TRIAL AND OF WITNESSES. Q9 that they come from the proper depository. Where the proof is by copy, an examined copy, duly made and sworn to by any competent ■witness, is always admissible. Such witness may be either the person appointed by law to furnish copies, or, it seems, any officer having legal custody of the book, and whose duty it is to keep the original. 1 OF THE POWER TO COMPEL THE ATTENDANCE OF WITNESSES. Until recently, justices of the peace have had no power to compel the attendance of witnesses in actions pending before themselves ; but now, if any person duly summoned and obliged to attend as a witness in any cause or matter pending before any justice of the peace, or judge of any municipal or police court, shall fail so to do, without any reasonable excuse, such person shall not only be liable to the aggrieved party for all damages by him sustained by such default, but such justice, or judge, shall have power to issue a capias, directed to the proper officer, to apprehend such witness, and bring him before such justice or judge, and to fine him at discretion, not exceeding the sum of twenty dollars, and order him to pay the costs of such attachment, and commit him until the same and all costs attending such commit- ment shall be paid. If such witness, being present before such justice or judge, shall refuse to answer such questions as may be propounded to him under the direction of such justice or judge, he may fine such witness at discretion, not exceeding twenty dollars, and commit him until the same and all costs are paid. 2 The form for a capias to com- pel the attendance of a witness will be found in a subsequent part of this volume. The plaintiff having opened his case, and put in his evidence, and the defendant having cross-examined the plaintiff's witnesses, the de- fendant next proceeds to open his own case, and put in his evidence, the plaintiff, in his turn, having the same right of cross-examination. The plaintiff then puts in his rebutting testimony, and if the defendant has any still farther in reply, he follows with it ; after which the closing arguments are made, first for the defendant, then for the plaintiff. The magistrate will then, upon the issue thus joined, and the facts thus presented, proceed to render his judgment in the case, according to his best knowledge of the law. U Green. Ev. § 485. 'Act of 1847, ch. 9. CHAPTER IX. OF THE JUDGMENT. The judgment is the disposition -which the magistrate makes of the matter before him, and may be either interlocutory, (as upon a motion to dismiss, that the motion be not granted,) or final. If the disposition of the case is taken out of the hands of the magistrate, whether by the act of the parties, as by entering " neither party," (by which is meant that neither party will prosecute or defend further,) or by act of law, as when it appears that the title to real estate is concerned, or in reple- vin that the damages demanded exceed twenty dollars, or property in the beasts is in question and their value exceeds twenty dollars, and one party requests the removal of the action, he will render no judg- ment, but simply enter the facts in his record. The judgment varies according to the nature of the action, and of the determination itself. I. PLEAS IN ABATEMENT AND MOTIONS TO DISMISS. The judgment on these, if for the plaintiff, is interlocutory, unless issue is taken on a question of fact, in which case it is final. 1 If for the defendant, it is final in all cases — that the writ be abated, or the action dismissed. As to when costs are given, and when not, see chapter on costs. II. DEFAULT. If any person duly served with process, fail to appear and answer thereto, his default shall be recorded, and the charge against him in the declaration shall be taken to be true ; and upon such default, and also when the plaintiff maintains his action upon trial, the justice shall award and enter judgment for such sum, not exceeding twenty H8 Maine, 320. OF THE JUDGMENT. 71 dollars, as he shall upon inquiry find the plaintiff is entitled to recover, ■with costs. In actions where the damages are liquidated or certain, this may be done from the contract produced, or the plaintiff's bill of particulars. Where they are unliquidated or uncertain, there must be an ex-parte hearing for that purpose. In entering judgment on default, the magistrate -will look well to it that the cause of action which may be filed by the plaintiff in his bill of particulars corresponds with his declaration, as that, for instance, he do not file a claim in tort, under a declaration in assumpsit. « III. NONSUIT. Judgment is given upon nonsuit when the plaintiff fails to prosecute his action. This includes also the judgment on a complaint for costs by the defendant, where the plaintiff fails to enter the action. In either case it is a judgment only for costs. IV. TRIAL. If the plaintiff enters his action, and the defendant appears, and the parties proceed to trial, then judgment will be rendered on the issue joined, and the facts proved, whether in favor of the plaintiff, or of the defendant. And the justice should render his judgment only on the facts legally proved. He has no right to make himself a witness, and take int& consideration, in forming his opinion, facts within his own cognizance, but of which there is no evidence in the case. 1 If he find for the plaintiff, he will assess damages, for which he will give judgment, as also for costs. If he find for the defendant, he will give judgment for costs alone, unless, in case of set-off filed, he shall find that the balance of account is in favor of the defendant, in which case he will give judgment for such balance with costs. V. TENDER, AND OFFER TO BE DEFAULTED. In all cases of tender pleaded and proffered, and of offer to be default- ed, the plaintiff may, as we have already seen, elect whether" he will accept the tender, or offer, or proceed with his action. UO Johns. 250. 72 JUSTICE OF THE PEACE. If the profert be made upon a previous tender, and the plaintiff elect to accept the tender, costs will be taxed up to the time of the tender, which should be paid into court by the defendant, who may then take judgment against the plaintiff for costs from the time of the tender to the time of the judgment. If there be no previous tender, and the plaintiff elect to accept the sum proffered, costs should be taxed up to the time the money is brought into court, and then paid by the defendant, and " neither party''' entered in the action. Because in theory the defendant is supposed to tender cost, as well as debt, and if the plaintiff accepts the sum ten- dered in full satisfaction, there remains nothing upon which to render judgment. If, however, the plaintiff elect to proceed with his action, he does it at his peril. And if the magistrate shall find that no more is due than the sum proffered, he will render judgment for the defendant' for costs from the time of the tender, if a tender has been made, or from the time of the profert. 1 But if the justice is satisfied that the tender is too small, he should render judgment for the plaintiff for the overplus, however small, and his costs. But he should not render judgment for a less sum than the amount proffered, unlesss the defendant show some fraud or deceit practised upon him. 2 When the defendant has proffered without a previous tender a certain sum as the full amount of damages, and has prayed that his costs may be taxed by the court, but has not paid in his costs, and the plaintiff elects to proceed with his action, and the magistrate finds that no more is due than the sum tendered, the question has been raised whether the plaintiff is entitled to his execution for the costs up to the time of the profert. The question is yet an open question, the rule of practice being unsettled. It may, however, be avoided, by having the costs in all cases taxed up to the time of the tender, and requiring them to be paid in before any disposition is made of the action ; which may un- doubtedly be done. When an offer is made to be defaulted, the offer is, as we have seen, for a specified sum as damages. If the offer is accepted, judgment is 1 5 Mass. 369— Howe's Pr. 406. 2 Hovre's Pr. 407. OF THE JUDGMENT. 73 rendered for such sum as damages, and for costs up to the time when it was made. If the offer is not accepted, and the plaintiff proceed to trial, and recover no greater sum for his debt or damages, up to the time when the offer was made, the defendant recovers his costs from the time of such offer, and they are set off against the sum so offered. VI. IN OTHER MATTERS. In replevin for beasts distrained or impounded, the judgment for the plaintiff is for damages and costs ; for the defendant, for such sum, as shall be found to be due from the plaintiff, for the penalty or forfeiture, or for the damages for which the beasts were impounded, together with all the legal fees, costs, and expenses, incurred by reason of the distress, and also the costs of the action of replevin ; or, instead of such judgment, the justice may in his discretion enter judgment for a return of the beasts to the defendant, to be held by him for the original purpose, irrepleviable by the plaintiff, and for the defendant's damages for the taking thereof by the replevin, and for his costs of the suit. 1 In replevin for goods unlawfully taken, or unlawfully detained, the judgment for th,e plaintiff is for damages and costs ; for the defendant for a return of the goods, with damages for the taking thereof by the replevin, with his costs, and a writ of restitution thereupon accordingly. 3 If the goods when replevied were taken in execution, or if they were attached, and judgment be afterwards rendered for the attaching credi- tor, and if in either case, the service of the execution be delayed by means of the replevin, the damages to be assessed for the defendant, in case of a judgment for a return, shall not be less than twelve per cent by the year on the value of the goods, for so long time as the service of the execution shall be delayed. 3 Li forcible entry, the judgment for the plaintiff is possession of the demanded premises and costs ; for the defendant costs. The forms of the various judgments will be found in the 'subsequent chapter on records. When any person is adjudged to be a trustee in the original suit, it shall not be necessary to specify in the judgment the sum for which he is chargeable ; but if, upon a writ of scire facias against him, it shall >R. S. ch. 130, sec. 4. 3 Ib. sec. 16. 2 Ib. sees. 15, 11. 10 74 JUSTICE OF THE PEACE. appear that he is chargeable as a trustee, the sum, for which he is char- geable, shall be expressed in the judgment. 1 When an executor or administrator is adjudged a trustee in that capacity, the judgment is against the goods and effects of the deceased in his hands. 2 In case of the death of the defendant, pending the suit, and the suggestion of the fact, the magistrate cannot give judgment till after issuing a citation. 3 If the executor or administrator shall not appear, at the time men- tioned in the citation, after the same has been served upon him, accord- ing to the order of court, he shall be nonsuited, or defaulted, and judgment may be rendered against him ; but in such case, not having taken upon himself the prosecution or defence of the suit, he shall not be personally liable for any costs of the action, but judgment shall be rendered for such costs against the estate of the deceased in his hands. 4 When a judgment for costs shall be rendered against an executor or administrator, in an action commenced by or against him, or in any action commenced by or against the testator or intestate, -wherein the executor or administrator has appeared and taken upon himself the defence of the action, he shall be personally liable for c*osts ; but in the latter case only for costs after he took upon himself the prosecution or defence. When the judgment against the executor or administrator is for costs only, the execution shall be awarded against his body, goods and estate, as if it were his own debt ; when for debt or damages, and costs also, an execution for the debt shall be awarded against the goods and estate of the deceased in the hands of the executor or administra- tor, and another execution for the sum due for costs, against the goods of the executor, and also his body, as if it were his own debt. 5 In case of scire facias on suggestion of waste against an executor or administrator, the judgment, if he do not appear after due notice, is against him personally, for the amount of the waste, if it can be ascer- tained. 6 In actions of trespass on property, if the magistrate is satisfied the trespass was committed wilfully, a record is to be made by him of that fact, and when execution issues, a memorandum is to be made on the >R. S. ch. 119, aec. 72. 4 Ib. sees. 13, 14. 2 Ib. sec. 49. *Ib. sees. 2, 3, 4. 3 R. S. ch. 120, sec. 13. «Ib. sec. 6. OF THE JUDGMENT. 75 margin, that the judgment was rendered for a trespass committed wilfully. 1 A judgment can never be awarded by a justice for more than twenty dollars, exclusive of costs. As to cases in which judgment may be rendered for costs, and for rules for taxation of costs, see chapter xi. *R. S. ch. 115, sec. 109. CHAPTER X. OF APPEAL, RECOGNIZANCE, EXECUTION, AND CERTIORARI. I. APPEAL AND RECOGNIZANCE. Ant party aggrieved by the judgment of a justice of the peace, may appeal to the next District Court in the same county, and may enter such appeal at any time within twenty four hours, Sundays not includ- ed, after the judgment is rendered by the justice ; in which case, no execution shall issue, and the case shall be entered, tried, and determined in the District Court in like manner as if it had been commenced there. 1 The appellant shall, before the allowance of his appeal, recognize with sufficient surety or sureties to the adverse party, if required by him, in a reasonable sum, with condition to prosecute his appeal with effect, and to pay all such costs, as may arise after the appeal. 2 The appellant shall produce at the District Court a copy of the rec- ord, and of all the papers filed in the case, except that when depositions, or other written evidence or documents, are filed, the originals shall Be produced at the District Court instead of copies ; and if the appellant shall fail to produce such papers, and enter and prosecute his action, the court may, on the complaint of the adverse party, affirm the former judgment and costs." It has been holden, on a statute of Massachusetts similar in its word- ing, in regard to appeal from the Court of Common Pleas to the Supreme Judicial Court, that the right of appeal given must be confined to cases of final judgment, and should not be extended to any interlocutory judgment. 4 And therefore that a refusal to receive a plea in abatement, or dismiss an action cannot be appealed from. 5 But an order whose effect is to terminate the suit may be appealed from, as an order dismissing an action. 6 1 R. S. ch. 116, sec. 9. 4 5 Mass. 194. =Ib . sec .10. 54 Mass. 1 07—4 Pick. 89. aib. sec IK «11 Mass. 275, 276. OF APPEAL, RECOGNIZANCE, EXECUTION AND CERTIORARI. 77 When an action commenced before a justice has been defaulted, no appeal lies to the District Court. 1 In trustee process, either the trustee or plaintiff may appeal. 2 In replevin, either party may appeal from the final judgment of the j ustice, as in other civil actions. 3 In forcible entry and detainer, either party may appeal from the judgment of the justice, upon issue joined, the plaintiff recognising as in other cases of appeal, and the defendant to pay all intervening dam- ages and costs, and also such reasonable intervening rent for the premises, as such justice shall adjudge, in case his judgment shall not be reversed on such appeal. If the defendant files a brief statement of title in himself, or some other person under whom he claims the prem- ises in question, he is required to recognise in the same manner, excepting that the condition to pay rent, is to be to pay reasonable intervening rent ; and the plaintiff is also, in such case, required to recognise, Tritli the usual conditions. If in this last case either party refuses to recog- nise, the justice shall enter judgment, as, in case of nonsuit or default, against the party so neglecting or refusing. 4 As to the mode of claiming the appeal, and entering into recogni- sance, it is sufficient to say, that the appellant appears at any time ■within twenty-four hours after judgment, with his sureties, before the justice, claiming his appeal, and the justice, if satisfied with the sureties, thereupon verbally takes their recognizance for the entry and prosecu- tion of the appeal, and such other condition as may be. It is not necessary, however, that the party appealing should personally enter into recognisance. If done by sureties, it is equivalent to doing it " with sureties." 5 The magistrate will transcribe at length the original recognizance, (a form for which may found hereafter,) which is carried up with the papers to the appellate court ; and will transcribe also a copy of the recognizance into his records. ' He will also certify his fees on the copies, for recognizance, copies, and for travel for returning the papers to court, making each charge separately. The amount of these items may be found in the chapter on Fees and Costs. '28 Maine, 102. 4 R. S. ch. 128, sec. 4. s 12 Pick. 414—28 Maine, 455. 6 4 Maine, 62. 3 R. S. ch. 130, sec. 6. 78 JUSTICE OF THE PEACE. II. OF EXECUTION. Executions are either original or alias executions. I. Of original execution. When it may be issued and made returnable. It is not usual for magistrates to issue execution till twenty four hours, Sundays not included, after judgment. In a case, however, where the judgment is on default, there is nothing to prevent the issuing execution immediately upon judgment ; for in such cases, as we have seen, the defendant cannot appeal, and there seems to be no provision of law requiring delay in the issuing execution excepting that which gives the defendant twenty four hours for entering his appeal. 1 No first execution can be issued after the expiration of one year, from the time judgment is entered, unless where the defendant, being an inhabitant of the State, is absent therefrom, and it does not appear that he had actual notice of the suit, or has returned to the State, in which case the court may enter judgment on default ; but execution cannot issue on such judgment within one year after such default, unless the plaintifF shall give bond to the defendant, with one or more sureties, in a sum equal to double the amount of the damages and costs, with condition to repay said amount to the defendant, if the judgment shall be reversed upon review. 3 Executions issued by a justice of the peace shall be made returnable in three months from the day they wore issued. 3 1. Of the form of the execution. The issuing of execution is, as we have already seen, a ministerial process, and therefore the mag- istrate will look well to it, for his own protection, that he conforms to the letter of the law. It should agree with the judgment, in all respects. 4 Where there are two or more plaintiffs or defendants, and one or more of them dies after judgment, and before execution, execution may be had for or against the survivors. But as the execution must agree with the judgment, it must be sued out in the joint names of all the plaintiffs or defendants, unless a motion be made to the court for the change, in which case it may issue in the name of the survivor. 5 l R. S. ch. 116, sec. 9—28 Maine, 102. 4 2 Conn. 462. S R. S. ch. 115, sec. 104. »9 Mass. 18, 19, 1«0— 2 Sannd. 72, K. 3 Ib. sec. 103. OF APPEAL, RECOGNI2ANCE, EXECUTION AND CERTIORARI. 79 But when a single plaintiff or defendant dies, there is no authority to issue execution, and the proper course is, to resort to a 'writ of scire facias, which may he had by or against his personal representatives. 1 And so in case of the marriage of a feme sole plaintiff after judg- ment and before execution. 2 If for a debt, it should be for the amount found due, and interest from the time of rendition of judgment, and if for any thing else, for the matter adjudged ; and in all cases of judgment for costs, the justice ought personally to examine the taxation, that it be not too large. If execution be issued against those privileged from arrest or imprisonment, on civil process, the command to take the body should be stricken out ; or if the judgment is for less than ten dollars, or the defendant has successfully disclosed before final judgment, upon the same debt; 3 and to this point, the magistrate should give most particular attention, as for every illegal arrest made under such command, he is personally respon- sible. We have already considered, in a former chapter, who are and who are not exempted from arrest, to which we refer. Too much can hardly be said, of the necessity of great care in the performance of this part of a magistrate's duty. This is the final man- date which is to carry into execution the behests of the law ; and deserves more attention and care, than, we fear, has been often given to it. The execution may be directed to any officer who might serve the original writ, and should, like an original writ, bear the seal as well as the signature of the justice. When he has signed the execution, the justice should preserve some memorandum of it, if for no other reason, at least to guard him against issuing an alias after the time for one has run out. Perhaps the most convenient form for doing this is to enter in his docket the amount of the debt and damage, the amount of the costs, and of the writ of exe- cution, and the date of the execution ; and also to make a minute of the same on the back of the original writ, thus — Damages, - - - $ Costs, - - - - $ Execution issued, 185 . U6 Mass. 193,— R. S. ch. 120, sec. 10. 'R. S. ch. 148, sees. 2, 15, 32. s 2 Sauud. 72, k. 1. 80 :; JUSTICE OF THE PEACE. A magistrate must sometimes issue two separate executions in the same suit — thus, in the case of an executor or administrator -who has taken upon himself the defence of a suit, when the judgment is for debt or damages, and for costs also, an execution or for the debt damages shall be awarded against the goods and estate of the deceased, in the hands of the executor or administrator, and another execution, for the sum due for costs, shall be awarded against the goods and estate of the executor or administrator, and also against his body, as if it were for his own debt. 1 So, too, in case of tender, it may be that there shall be execution against both plaintiff and defendant. In actions for trespass on property, we have before stated, that it is the duty of the magistrate to inquire and determine whether the trespass was committed wilfully. If the magistrate so determines, a mem- orandum is to be made by him on the margin of the execution, that the judgment was rendered for a trespass committed wilfully. 2 If a magistrate is called upon, under the provisions of statute, to issue execution on a record of a deceased justice, brought before him and transcribed upon his own book of records, the form of execution must be changed from the usual form, by the justice, as circumstances shall require. 3 So if he shall have occasion to issue execution against persons or property out of his own county. 2. Of alias executions. An alias, or pluries execution may be issued within three years next after the day, on which the last preced- ing execution was returnable, and not afterwards. 4 If not issued within that time, the plaintiff must sue out scire facias, or, what is more common and convenient, bring an action of debt upon the judgment. 5 No alias execution should be issued, till the return of the preceding one." If the preceding execution has been put into an officer's hands, it should appear, by his return that it is "wholly unsatisfied," or " satisfied in part only," as the fact may be ; and if it has never been put into an officer's hands, that fact, as well as the fact whether it has been satisfied at all, and if so, for how much, should appear either by a certificate of the plaintiff himself, or of the attorney employed by him in the suit. 6 *R. S. ch. 120, sec. 4. 4 R. S. ch. 115, sec. 105. 2 R. S. ch. 115, sec. 109. S R. S. ch. 115, sec. 106. 3 R. S. ell. 116, sees. 19, 20, 21, 22. "Howe's Pr. 275, 276. OF APPEAL, RECOGNIZANCE, EXECUTION AND CERTIORARI. 81 The execution, we have said, should follow the judgment. Therefore it follows, that when an alias issues, it should issue for the amount without interest or the unsatisfied judgment ; or for the balance remain- ing after deducting the amount received from the amount of the judg- ment, when the judgment has been satisfied in part, without interest either on the judgment or payment. Whenever a magistrate issues an alias, he should make a memoran- dum, similar to the memorandum made when the original execution is sued out. It will be convenient, in this connection, to point out the manner of issuing execution upon the records of deceased justices. Whenever any justice shall die, after having given judgment in a cause, but before such judgment is satisfied, it is in the power of any justice of the peace of the same county, on complaint of the creditor, to issue a summons to the person, in whose possession the record of such judgment is, directing him to bring to him the same record ; and if such person shall contemptuously refuse to produce the same, or to be examined respecting it on oath, the justice may commit him to prison, as punishment for the contempt, until he shall submit to such examination, and produce the record. 1 When such record is produced, the justice should transcribe it upon his own book of record, returning the original to the person producing it. 2 On such transcribed record, the justice may issue execution, in the same manner as if judgment had been rendered by himself, changing the form as circumstances may require ; but no such execution shall issue after the expiration of one year from the time the judgment was rendered, unless after scire facias. 3 Any justice, whose commission has expired, and shall not be renewed, is authorised to issue and renew execution on any judgment by him rendered while in commission ; but this power continues for two years only after his commission shall have expired. 4 III. OF CERTIORARI. When a magistrate acts in processes out of the course of the common law, and no appeal is given to the party aggrieved, he may have, upon *R. S. ch. 116, sec. 19. 3 Ib. sec. 22. J Ib. sec. 20. 4 Ib. sec. 28. 11 82 JUSTICE OF THE PEACE. his showing sufficient cause, for the more complete furtherance of jus- tice, a writ of certiorari issuing from the supreme judicial court, directed to the magistrate by whose decision he feels himself aggrieved, commanding him to certify and return the records in the cause. With the cause which may or may not be sufficient for the issuing of this writ, or with the proceedings under it, we have nothing to do. Our only object is, to point out the course which the magistrate is to pursue when he finds himself thus made a party to the suit in which he before sat as judge. The writ of certiorari not being a writ of right, before issuing it the court will order notice to the adverse parties to appear and show cause why it should not issue. The justice will remember that, though the nominal party on the record, he has no interest in the suit, and is neither bound nor ought to take upon him- self the defence of the case. It is a matter immaterial to him, whether his judgment is to stand or fall. If on this preliminary hearing, the court are satisfied that the writ should issue, they will issue a writ directed to the justice, commanding him to distinctly and openly send to them the record and process in the case, with all things touching them, under his seal, together with the writ of certiorari, at a time therein mentioned. It then becomes the duty of the justice to obey the precept of the writ, which he will do by annexing a certified copy of the record, of- the original writ or complaint, and also of every paper filed in the case, to the writ of certiorari, and making return on said writ, under his seal, that by virtue of the pre- cept within the same, he thereby returns the writ of certiorari, together with certified copies of the record and process in the case, and all things touching them. After this he has performed all his duty, and his connection with the case ceases. He should proceed no further with it. CHAPTER XL OF THE FEES OF THE JUSTICE AND OF COSTS IN CIVIL ACTIONS. I. FEES OF JUSTICES OF THE PEACE. For every blank writ of attachment and summons thereon, or origi- nal summons, ten cents. For every subpoena, for one or more witnesses, ten cents. For the entry of an action, or filing a complaint in civil causes, including filing of papers, swearing of witnesses examining, allowing and taxing the bill of costs, and entering up the judgment and recording the same, thirty cents. For the copy of a record, or other paper, at the rate of twelve cents a page. For a writ of execution, fifteen cents. Taking a recognizance to prosecute an appeal, including principal and surety, twenty cents. For taking a deposition, affidavit, or disclosure of a trustee, in any cause not depending before himself, twenty cents ; for writing the same, with the caption, and for the notifications to the parties and witnesses, at the rate of twelve cents a page.* For taking a deposition in perpetual memory of the thing, the same fees to each justice, as in taking other depositions. Administering an oath in all cases, except on a trial or examination before himself, and to qualify town or parish officers, and a certificate thereof, twenty cents, whether administered to one or more persons at the same time. Taking the acknowledgment of a deed, with one or more seals, pro- vided it be done at one and at the same time, and certifying the same, seventeen cents. Granting a warrant of appraisement in any case, and swearing appraisers, thirty two cents. *Theword "page" shall mean two hundred and twenty-four words. R. S. ch. 151, sec. 23. 84 JUSTICE OF THE PEACE. Recognizance of debt and recording, forty two cents. Drawing a rule for submission to referees, and acknowledging the same, thirty three cents. Writ to remove a nuisance, thirty three cents. Calling a meeting of any corporation, fifty cents. For an examination of a debtor, under the laws for the relief of poor debtors, fifty cents ; for interrogatories proposed by the creditor or his attorney, and answers, to be paid by the creditor; twelve cents a page. For travel on any official duty, at the rate of fifty cents, for every ten miles, in going and returning. In all cases, where the attendance of two or more justices is required, each of them shall be entitled to the fees prescribed for all services rendered by him personally. 1 Except when otherwise expressly provided, the fees of the judge of any municipal or police court, shall be taxed in the same manner, and at the same rate, as the fees of justices of the peace, so far as appli- cable. And whenever any such judge shall receive a stated salary for his services from the treasury of the county he shall account under oath to the treasurer of said county, for all fees accruing to him in said capacity, towards his salary. 3 In all cases where no other rule is provided, the allowance to public officers for any copies, which they are by law required to furnish, shall be at the rate of twelve cents a page, including the attestation of the same ; for affixing an official seal to the same, when necessary, twenty five cents more. a In cases of appeal to justices under the acts relating to insane persons, the justices deciding an appeal, are entitled to receive for their services two dollars a day, and ten cents a mile for travel, to be paid by such party as they may determine ; and in cases where, under said acts, they have original jurisdiction, they shall charge the same fees as they would by law be entitled to charge on a criminal examination, to be paid by the city, town, or person liable in the first instance to pay for committing to and support in the hospital. 4 1 R. S. ch. 151, sec. 1. 3 Ib. sec. 23. *Ib. sec. 2. 4 Act of 1847, ch. 33, sec. 17. FEES OF JUSTICES AND COSTS IN CIVIL ACTIONS. 85 For certifying and solemnizing a^ marriage, one dollar and twenty- five cents. 1 In all cases, not expressly provided for, the fees of all public officers, for any official service, shall be at the same rates, as are prescribed above for like services. 2 It may be well to state here, that in all cases carried from before a justice of the peace, or municipal or police court, to a higher tribunal, all depositions and other original papers, excepting the writ, complaint, summons, citation or other process by which the action is commenced, and the return of notice by the officer or other person serving the same, and the pleadings, shall be certified by the justice, recorder, or clerk, and carried up without leaving copies, unless for special reasons otherwise ordered by the court, having the original jurisdiction. 3 Every officer, whose fees are regulated by law, is required to keep a printed or legibly written list and description of such fees, exposed to public view in his stated place of business, if he have one. And every officer, upon receiving such fees, shall, if required by the person paying the same, make out a particular account of such fees in writing, specifying for what they accrued, upon pain of forfeiting to the party paying such fees, treble the sum paid. 4 II. OF THE TAXATION OF COSTS. 1. When recoverable. In all actions, the party prevailing is entitled to his legal costs. 5 So if a plaintiff fails to enter and prosecute his action, the defendant has judgment for his costs. 6 When a writ is abated or dismissed, the defendant, as the prevailing party, is entitled to costs, unless in some cases, the action is dismissed, or the writ abated, for want of jurisdiction. 7 Where a writ is bad on the face of it, and it is manifest that the court has no jurisdiction, so that the proceedings may be quashed on motion, no costs are allowed. 8 But it must be a clear case, where no judgment would be rendered although the defendant should not appear. In all cases where the want of jurisdiction does not manifestly and clearly appear on the face »R. S. ch. 151, sec. 19. S R- S. ch. 115, sec. 56. 2 Ib. sec. 25. 6 R. S. ch. 116, sec. 8. 3 Ib. sec. 24. '6 Pick. 364. *Ib. N secs. 26, 27. 8 23 Pick. 111. 86 JUSTICE OF THE PEACE. of the writ, and the question of jurisdiction is a fair subject of discus- sion, and for the decision of the court, the defendant is entitled to costs. 1 "When costs are recoverable in case of tender or bringing money into court, or offer to be defaulted, has been considered under the head of " Tender," &c. When a demand has been filed by the defendant in set-off, if no balance is found due either party, neither-recovers costs ; if a balance is found due defendant, he recovers his costs. 2 When a plaintiff shall, at the same court, and at the same term, bring divers actions against the same party, which might have been joined in one, or shall bring more than one suit upon a joint and several contract, he shall recover costs in only one of such actions, unless the court shall certify, that there was good cause for commencing them. 3 When a judgment for costs has been rendered against a plaintiff, on nonsuit or discontinuance, and a second suit for the same cause shall be brought before the costs of the former suit shall have been paid, the court shall, on the same being made to appear, stay all proceedings until such costs shall be paid, and may dismiss the suit, unless they are paid at such time as the court shall appoint.* No costs are allowed the plaintiff in an action upon a judgment, on which an execution might, at the time of commencing such action,- have been issued and duly served on the judgment debtor ; but this provision does not apply to a trustee process, founded on such judgment. 8 Costs may be imposed or withheld, in the discretion of the court, as a condition of granting an amendment or continuance. 6 When a suit is brought in the name of the State, but for the use and benefit of any private person, his name and place of residence are re- quired to be indorsed on the writ, and if the suit is not maintained, judgment for defendant's costs shall be rendered against such person, and execution issued in like manner as if he were plaintiff on record.' 2. Against whom. In an action by an infant plaintiff sueing by his next friend, if the defendant prevails, he will be allowed costs against the infant. 8 »5 Met. 240—7 ib. 591. *Ib. sec. 96. 2 R. S. ch. 115, sees. 45, 46. «Ib. sec. 98. 3 Ib. sec. 93. lb. sec. 90. 4 Ib. sec. 89. 81 Pick. 275. FEES OF JUSTICES AND COSTS IN CIVIL ACTIONS. 87 When an action is brought for the recovery of a debt, and the defendant has been or shall be summoned as the trustee of the plaintiff, if the amount disclosed by the trustee shall be equal to the sum recov- ered in the action, the trustee shall be liable to no costs in such action, subsequent to the service of the trustee process upon him. 1 As to costs by and against executors and administrators, see pre- vious pages. In actions ex contractu, the plaintiff must prevail against all the defendants, to entitle him to costs against any. And if the defendants prevail, they take joint judgment, if there be more than one, against the plaintiffs jointly. 2 But in actions ex delicto, it has been the invariable practice to allow several costs, whether part or the whole be acquitted, whenever the defendants plead severally. 3 3. Special proceedings- — Trustee process. When any person, summoned as a trustee, before a justice of the peace, appears at the return day, or at a subsequent day, the parties having agreed thereto, and submits himself to examination upon oath, and shall thereupon be discharged, he shall be allowed his legal costs. If, on such disclosure, he shall be adjudged trustee, he may retain the amount of his costs. 4 When the plaintiff discontinues his suit against the principal or trusteet he trustee shall be allowed his costs. 5 When the debt recovered against the principal shall be a less sum than five dollars, the trustee shall be discharged, unless the judgment be so reduced by means of a set-off fded in the case. 6 The action may be brought in any county in which any trustee, named in the writ, resides ; and if brought in any other county, the action will be dismissed, and the trustee shall recover his costs. 7 After service on the principal defendant, further service may be made upon any trustee, if the service be afterwards made upon the principal, but no costs shall be taxed for the plaintiff in such case, ex- cept for that last made. 8 When one is adjudged trustee for specific articles, he has a lien upon them for his costs. 9 a R. S. ch. 119, sees. 13, 14. 6 Ib. sec. 93. s 10 Pick. 281. 'lb. sec. 88. 3 1 Pick. 458. »Ib. sec. 6. 4 R. S. ch. 119, sees. 42, 90, 91. 9 Ib. sec. 18. s Ib. see. 92. 88 JUSTICE OF THE PEACE. If any person, belonging to the county in which the writ is made returnable, being summoned as trustee, shall neglect to appear and submit to examination on the return day, and having no reasonable cause to the contrary, he shall be liable to all costs afterwards arising in the suit, to be recovered and paid out of his own goods or estate, if judgment be rendered for the plaintiff ; unless recovered out of the goods or effects in the hands of the trustee, and belonging to the prin- cipal. 1 When several trustees, resident in the county, where the action is pending, being summoned, shall neglect to appear, the judgment for costs shall be rendered against them jointly. 2 If the person summoned as trustee is out of the State at the time the writ is served upon him, and if he appear at the first sitting of the court after his return, he shall be allowed for his costs and charges in the same manner as if he had appeared at the return day. 3 When the plaintiff does not support his action against the principal, eosts will be awarded against him, in favor of such persons summoned as trustees, severally, who have appeared and submitted to examination on oath ; and several executions will issue accordingly.* In case of discontinuance of the suit by plaintiff, no costs are to be awarded the trustee, unless he comes into court, and declares he had no property or credits of the principal in his hands, and submits him- self to examination on oath. 5 If a person is adjudged trustee, in the original suit, on default, and a writ of scire facias is sued out against him, the court shall render judgment against him for costs only, if, on examination on scire facias, he shall appear not to be chargeable. If he had been examined in the original suit, the court is authorized to render such judgment on scire facias, as law and justice require, upon the whole matter appearing on the new examination in the latter process. 6 If any trustee, who has been defaulted on scire facias, shall have been examined in the original suit, judgment shall be rendered on the facts stated on his disclosure, or proved at the trial ; but if it appear, that such person paid and delivered the whole amount, for which he »R. S. ch. 119, sec. 22. 4 Ib. sec. 25. Hb. sec. 23. *Ib. sec. 26. »Ib. sec. 25. «Ib. sees. 78, 79. FEES OF JUSTICES AND COSTS IN CIVIL ACTIONS. 89 was chargeable as trustee, on the execution, issued on the original judgment, he is not liable for any costs on the scire facias. 1 If any person, summoned as trustee, shall have been prevented from appearing in the original suit, by absence from the State, or for any other reason deemed sufficient by the court, and a default be entered against him, he shall not be liable for any costs on the scire facias ; but, on his disclosure, the court may allow him his reasonable costs and charges, to be retained or recovered in like manner as if he had ap- peared in the original suit. 2 If, during the pendency of an action, the defendant is summoned as the trustee of the plaintiff, and before final judgment is rendered in the first suit, the defendant in that suit shall be adjudged trustee in the other, and shall pay thereon the money demanded in the first suit, or any part of it, the fact shall be stated on the record of the first suit, and judgment therein shall be rendered for the costs due to the plain- tiff, and for such part of the debt or damages, if any, as shall remain due and unpaid. 3 If a person, summoned as trustee, dies before judgment in the orig- inal suit, the plaintiff may take judgment against him by default, as if he were living, and his executor or administrator shall pay, on the execution, the amount which he would have been liable to pay the principal defendant. If the executor or administrator does not volun- tarily so pay, the plaintiff may proceed against him by writ of scire facias, in which case, if he is discharged, he may recover costs or not, at the discretion of the court. 4 The costs for trustees are to be taxed in the same manner, as for parties in civil actions, where issue is joined for trial. 5 Bail. When bail is taken on mesne process, and there shall be a return on the execution issued on the judgment, that the principal is not found, the justice may issue scire facias thereon against the bail, and if no sufficient cause is shown to the contrary, he may render judg- ment for the debt and costs recovered, with interest from the time judgment was rendered against the principal. 8 If the bail shall at any time before final judgment in the original suit is rendered, or upon the return of the scire facias and before final »R. S. ch. 119, sec. 77. 4 Ib. sees. 46, 47. 2 Ib. sec. 86. 5 Ib. sec. 16. »Ib. sec. 66. 6 R. S. ch. 118, sec. 13. 12 90 JUSTICE OF THE PEACE. judgment thereon, bring the principal before the justice, and procure the attendance of an officer, to receive the principal, the justice shall make a record of such surrender, and shall order him into the custody of the officer — and on payment of costs arising upon the scire facias, the bail shall be fully discharged. The officer in such case shall be allowed the same fees as for arresting and committing the defendant on mesne process. 1 The officer holding the execution against the principal, having notified the bail personally, or by leaving a notice by him signed, at the usual place of abode of the bail, if living in his county, at least fifteen days before the expiration thereof} and certified that he cannot find the principal debtor, nor property -wherewith to satisfy the execu- tion, is entitled to receive of the bail the usual fee for the service of a writ, and for travel from the dwelling-house of the officer to the dwell- ing-house of the bail. The officer shall minute in his notice the amount of the fees, whieh the bail shall pay in twenty days, unless, one day at least before the execution is returnable, the bail shall produce and deliver to the officer the principal debtor. 2 4. Of the mode of taxing costs.. In practice, the bill of costs is made out by the party prevailing, or his attorney. The magistrate ■will, of course, carefully examine it, before making up judgment and issuing execution. If any party wishes to be heard in costs, he gives the magistrate verbal notice, the magistrate entering upon his docket, " defendant," or "plaintiff," as the case may be, "to be heard in costs." The magistrate then fixes upon a time for the hearing, and gives the parties notice. The plaintiff's costs consist, if he'prevail, of charges for — 1. The writ ; 2. service ; 3. entry ; 4. travel of plaintiff; 5. attendance of plaintiff; 6. trial of issue ; 7. fees of witnesses, for subpoenas and service of the same ; 8. depositions; 9. copies; 10. travel of justice; 11. recognizance to prosecute an appeal. The defendant's costs consist of the same charges, with the excep- tion of those for writ, service, entry and issue. 1. Writ. For the writ, together with the declaration, parties and magistrates are forbidden, under penalties, to charge more than fifty- iR. S. ch. 118, sees. 14, 15. 2 Ib. sec. 3. FEES OF JUSTICES AND COSTS IN CIVIL ACTIONS. 91 seven cents 1 . In addition to the writ, it has been a generally prevailing practice to charge for a poioer, the practice originating, it is said, in the custom of filing a power of attorney in each case. Such a charge is now, however, forbidden by statute. 2 2. Service. For the service of an original summons or scire facias, either by reading the same or by copy, or for the service of a capias or attachment with summons, on one defendant, twenty-five cents ; if served on more than one defendant, then twenty-five cents more for each defendant upon whom the process is served. If the officer, by the written direction of the plaintiff, his agent or attorney, shall make a special service of any writ of attachment by attaching property, he shall receive therefor fifty cents, including the summons thereon ; or, if by taking the body on a capias, he shall be allowed fifty cents for each defendant on whom such writ shall be so served. When the officer is by law directed to leave a copy, in order to complete the service, or shall give a copy of any precept upon demand thereof, he may charge at the rate of twelve cents a page ; which, in the latter case, shall be paid by the party demanding the copy. For a bail bond and writing the same, including principal and sureties, to be paid by the person admitted to bail, and taxed for him if he should prevail, twenty cents. For travel for the service of any writ, or other process, when not otherwise expressly provided by law, four cents a mile, the travel to be computed from the place of service to the court, or place of return, by the usual way ; but if the distance between those places be more than fifty miles, only one cent a mile is allowed for all travel exceeding that distance. Only one travel is allowed for any one pre- cept; but if the same be served on more than one person, the travel may be computed from the place of service most remote from the place of return, with all further necessary travel in serving such precept. For travel across any toll bridge or ferry, actually passed in serving any precept, the sum by law payable at such bridge or ferry, for a man and horse ; for travel by water to or from any island, or crossing any river where no ferry is established, a reasonable charge may be allowed. 3 Extra expenses are frequently allowed officers for service of precepts ; and it is understood that courts have discretionary authority 'R. S. ch. 151, sec. 28. 'lb. sees. 4, 5, 7. >Ib. sec. 13. 92 JUSTICE OF THE PEACE. to do so. 1 No charge for service, travel or expenses paid, can by law be allowed, unless the items thereof be expressly stated, and the amount of each. 2 3. Entry. Thirty cents is allowed the justice for this service, in- cluding filing of papers, swearing witnesses, examining, allowing and tax- ing the bill of costs, and entering up judgment, and recording the same. 3 4. Travel of plaintiff. Thirty three cents for every ten miles travel is allowed the plaintiff. Costs for travel shall be taxed in all cases, according to the distance of the plaintiff, or his attorney, which- ever may be nearest to the place of trial ; and when the action is in the name of an indorsee, such costs for travel shall be taxed according to the distance of the attorney, payee, or indorsee, whichever shall be nearest to the place of trial ; and no costs for travel shall be allowed for more than ten miles distance from any justice, municipal or police court , unless the plaintiff recovering costs, shall actually travel a great- er distance, or the adverse party, if he recover costs, shall, by himself, or his agent, or attorney, travel in fact a greater distance, for the special purpose of attending court in such cause. 4 When an aggregate corporation is entitled to costs, the travel shall be computed from the place where it is situated, if it is local in its nature ; otherwise from the place where its business is usually transacted, not exceeding forty miles travel, unless the agent of the corporation shall travel a greater distance to attend court. 5 And when the action is continued at the plaintiff's request, the defendant not appearing, but one travel shall be taxed, unless the defendant shall in writing agree to a continuance. 6 5. Attendance of plaintiff. No plaintiff shall be allowed more than three day's attendance, when the defendant is defaulted, unless the defendant shall have appeared and made answer to the plaintiff's suit - 7 nor shall more than one day's attendance be taxed for the plain- tiff, in any action which shall be continued at his request, where the defendant does not appear, unless the defendant shall in writing agree to a continuance of the action. 8 6. Trial of issue. Eighty cents is the sum allowed for this service. 3 12 Green. 221. 6 Act of 1842, ch. 35. =R S. ch. 131, sec. 4. 7 R- S. ch. 151, sec. 13. 31b' sec 1. 8Act of 18-42, ch. 35. *1\>. sec. 13. 9 R- S. ch. 151, sec. 1. S R.S. ch. 115, sec. 97. FEES OF JUSTICES AND COSTS IN CIVIL ACTIONS. 93 7. Fees of witnesses, fyc. Witnesses before justices are allowed fifty cents a day for attendance, and four cents for each mile travelled, going to and returning from the place of trial. 1 For every subpoena for one or more witnesses, ten cents is allowed. 2 For service of the same twenty-five cents, and if by copy, twelve cents for each page ; the officer may also charge four cents a mile for actual and necessary travel, the usual way to the place of service, with all sums actually paid by him for boat hire, and crossing any toll bridge or ferry, in making service. 3 Costs are not to be taxed for a witness who has not certified his travel and attendance ; but it is not necessary that he shall have been'examined, nor that he be subpoenaed, though the magistrate may disallow charges for witnesses, when he is satisfied they are un- necessarily summoned or unfairly taxed. 4 8. Depositions. The costs of taking depositions are paid by the party requesting their taking, and are taxed by him in his bill of costs. The justice taking the deposition is allowed fifty cents for travel, as on any official duty, at the rate of fifty cents for every ten miles travel, going to and returning from the place where the deposition is taken, twenty cents for taking the deposition, for writing the same, with the caption, and for the notifications to the parties and witnesses, at the rate of twelve cents a page. The fees of the officer for service of notices are the same as for serving subpoenas, and those of witnesses the same as those in other cases before justices. The justice taking the deposition must certify his own fees, those of the deponents, and of the officer serving the notifications. 5 If a party takes a deposition for precaution merely, and makes no use of it in the cause, the deponent being present at the trial, he does not tax it in the bill of costs. 6 The expenses of executing a commission to take a foreign deposition will be allowed, in whole or in part, in the discretion of the court. 7 9. Copies. The fees for copies filed in the case should be certified by the officer making them, and may be taxed in the bill of costs. Twelve cents for a page of two hundred and twenty- four words is the proper sum to be allowed, with twenty-five cents for affixing an official seal, when necessary to be affixed. 8 1 R. S. ch. 151, sec. 12. S R. S. ch. 151, sec. 1. 2 Ib. sec 1. "11 Pick. 536. 3 Ib. sec. 4. 7 6 Pick. 375. 4 15 Pick. 79—11 lb. 241. 8 R. S. ch. 151, sees. 23, 25. 94 JUSTICE OF THE PEACE. 10. Travel of justice. For travel by a justice on any official duty, he is allowed at the rate of fifty cents for every ten miles, in going and returning. 1 11. Recognizance to prosecute an appeal. For taking a recog- nizance, twenty cents is allowed. 2 The magistrate should certify on the bill of costs that it has been examined and allowed by him. In case of appeal this is important, as the appellate court is to be governed by his certificate. And the party appealing, as well as the party in whose favor judgment is given, should cause his costs to be taxed and certified ; though, if this is not done, it is not within the province of the magistrate to suggest it. *R. S. ch. 151, sec. 1, s Ib. #* CHAPTER XII. OP PROCEEDINGS IN SPECIAL CASES. I. TRUSTEE PROCESS. When it may be used. This is a writ of summons and attach- ment, given by statute for the purpose of reaching goods, effects and credits of the principal defendant, in the hands of the trustee, which could not be reached by the ordinary process. All personal actions which could by law be commenced before a justice of the peace, except actions of detinue, replevin, actions on the case for malicious prosecu- tion, slander by writing or speaking, and actions for assault and battery, may be commenced by this process. 1 The judgment in it is twofold ; first, charging or discharging the trustee ; and secondly, for the plaintiff or defendant. The effect of it is, if the plaintiff prevails, and the trustee is charged, that the goods, effects and credits of the principal defendant, in the hands of the trustee, are sold to satisfy the plaintiff's execution. Against what principal defendant. The writ may run against either individuals or corporations, as principal defendants, and may run into any county for the purpose of being served on the defendant. 2 Against what trustee. All corporations, except counties, towns, school districts, and parishes, may be summoned as trustees, and the writ served upon them as other writs on such corporations ; and they may answer by attorney or agent, and make disclosures, which shall be signed and sworn to by such agent or attorney. 3 Individuals, never inhabitants of the State, providing the process is served upon them in a mode prescribed by law, are liable to be adjudg- ed trustees ; and the writ may be made returnable in the county, in which either the plaintiff or the principal defendant lives.* Foreign corporations, though doing business in the State, and having agents here, are probably not liable to trustees process, though there 1 R. 8. ch. 119, sec. 1. 3 R. S. ch. 119, sec. 8. 2 R. S. ch. 116, sec. 17. 4 Ib. sec. 12. 96 JUSTICE OF THE PEACE. is some reason for supposing them to be so liable, especially (under a recent law of the State) insurance companies. 1 Executors and administrators are subject to the trustee process. 2 The plaintiff, as before stated, may, before or after service on the principal, insert the names of any trustees, but if names are inserted after, a new service must be made on the principal at the expense of the plaintiff. 3 Of charging the trustee. Service on the trustee binds all goods, effects, or credits of the principal defendant entrusted and deposited in his hands or possession, to respond the final judgment in the action, in like manner as goods or estate when attached by the ordinary process*. If any supposed trustee shall come into court on the return day of the writ, and submit himself to examination on oath, after having in writing declared that, at the time of the service of the trustee process upon him, he had not any goods effects or credits of the principal in his hands or possession, he shall be entitled to his costs in the same manner as in civil actions, where issue is joined for trial.* If the plaintiff desires to examine the supposed trustee, he proposes interrogatories in writing, which are answered in writing by the sup- posed trustee. The disclosure, when completed and subscribed by the trustee, must be sworn to in open court, or before some justice of the peace. 6 If a person, summoned as trustee, does not come into court, and declare that he had no property or credits of the principal in his hands, when the writ was served upon him, and submit himself to examination on oath, the court shall not award costs in his favor, though the suit be discontinued. Where, however, the plaintiff does not support his action against the principal, costs are to be awarded to all trustees, who have appeared and submitted to examination on oath. 7 If a person, summoned as trustee, shall admit that he has in his hands goods, effects or credits of the principal, or shall wish to refer that question to the court upon the facts, he may make a statement of such facts as he deems material, and submit himself thereupon to a further examination on oath ; and such statement and further examination, if any, shall be sworn to, as above stated. 8 13 Met. 564— Act of 1846, ch. 186. 6 Ib. sec. 16. S R. S. ch. 119, sec. 49, 43. 6 Ib sec. 90. "lb. sec. 6. 7 Ib. sees. 25, 26. 4 Ib. sec. 4. 8 Ib. sec. 32. PROCEEDINGS IN SPECIAL CASES. 9V If the supposed trustee, having been duly summoned, neglect to appear and answer to the suit, he shall be defaulted, and be thereupon adjudged trustee. The answers and statements, sworn to by any person summoned as a trustee, shall be considered as true, in deciding how far he is charge- able, until the contrary is proved ; but either party may allege, and prove other facts, not stated nor denied by the supposed trustee, which may be material in deciding that question. 1 And the trustee may make the affidavit of a third person, though that person be interested, a part of his answer, provided he swear that he believes it. 2 Doubts often arise, as to whether proposed questions are proper, and require an answer. It is a matter entirely within the discretion of the magistrate to determine whether the proposed question is pertinent, and relates to new subjects of inquiry, not already answered. The rule is positive that the trustee shall not be required to submit himself to a cross examination ; and when he has once answered a ■question, he shall not be obliged to repeat his answer. The plaintiff is bound to take his answers under oath as truth, and can neither impeach his character nor contradict his testimony. What the trustee may have told other persons, or said on former occasions, is immaterial, and not a proper subject of inquiry. 3 Neither is the trustee bound to disclose statements of other persons ; but he may do so if satisfied of their truth. 4 Neither is he bound, against his choice, to set up the statute of frauds, to avoid his contract with the principal defendant. 5 A trustee is not bound to disclose matter having a tendency to charo-e himself criminally ; 6 and it has been said that he is not bound to disparage his own title to real estate. 7 The better rule, however seems to be that no interposition should be made by the court unless the interrogatory is plainly immaterial, or has a tendency to charge him criminally. 8 A disclosure by a trustee that the writ in the action was not served on him, or that the service was defective, cannot be received to contra- !R. S. ch. 119, sec. 33— Act of 1842, 4 12 Pick. 383. 821 pi c k 186 ch. 31, sec. 15. 6 18 Pick. 372. 2 12 Pick. 383. «5 Pick. 447. 3 21 Pick. 25—3 Met. 299. '13 Mass. 104. 13 98 JUSTICE OF THE PEACE. diet the return of the officer ; and if the trustee suffer thereby, he must look to the officer for his remedy. 1 A trustee may file additional answers after the examination has closed, the plaintiff thereby acquiring the right to put further interro- gatories. 2 Where a person shall be adjudged trustee for specific articles in his hands, he shall have a lien upon the same for his costs ; and the officer who shall dispose of the same on execution, shall pay the trustee the amount due him for costs, and deduct such amount from the pro- ceeds of the sale, and account to the creditor for the balance. The amount of the trustee's costs should be indorsed on the execution, in such case by the justice, as evidence of the lien. 3 Whenever, by the terms of the contract between the trustees and the principal, any mode of ascertaining the value of the property to be delivered to the officer, shall have been pointed out, it is the duty of the officer, on the application of the trustee, to notify the principal debtor, previously to the delivery, that the value may be thus ascer- tained, as far as it may affect the performance of the contract. In other cases, the value of the property, as between the principal and trustee, is to be estimated and ascertained by the appraisal of three disinterested men, one to be chosen by the trustee, one by the officer, and one by the principal, if he see fit ; if he neglect or refuse, the officer is to appoint two of such appraisers ; and they shall be duly sworn to appraise the same ; and the officer, justice, and appraisers shall certify their respective doings on the execution. 4 When a part of such goods and articles shall be taken on execution, the trustee may deliver the residue to the principal, or tender the same to him, within thirty days after satisfaction of the execution, as he might have delivered the whole. 5 A creditor may have the benefit of the trustee process, though he has committed his debtor on the execution, provided that he, within seven days after the service of the process, discharge the body of the debtor from prison, by a written direction to the jailor, stating the occasion and reason of the discharge. 6 MON.H. 104. 4 Ib. sec. 53. 2 3 Met. 299. 5 It>- sec. 54. SR. S. ch. 119, sees. 18, 51. e Ib. sec. 56. PROCEEDINGS IN SPECIAL CASES. 99 When any person, summoned as trustee, shall in his disclosure state that he had, in his possession, at the time of service on him, property not exempt by law from attachment, but that the same was mortgaged, pledged, or delivered to him by the principal, to secure the payment of a sum of money due to him, and that the principal has a right to redeem the same, the justice shall order and decree that, on payment or tender of such money by the plaintiff to the trustee within such time as the justice shall order, and while the right to redeem subsists, the trustee shall deliver over the property to the officer, to be held and disposed of in like manner as if it had been attached on mesne pro- cess ; and in default thereof, that he shall be charged as trustee of the principal defendant. 1 If, by the disclosure, it appear that the property in the hands of the supposed trustee was mortgaged, pledged, or subject to a lien to in- demnify him against any liability, or to secure the performance of any contract or condition, and that the principal has a right to redeem the same, the justice may order and decree, that upon the discharge of such liability, or the performance of such contract or condition by the plaintiff, within such time as the justice shall order, and while the right of redemption subsists, the trustee shall deliver over the property to the officer, to be held by him as before mentioned. 2 It is the duty of the officer, selling on execution any personal prop- erty delivered to him as aforesaid, after deducting the fees and charges of sale, to pay the plaintiff the sum by him paid or tendered to the trustee, or applied in the performance of the contract or condition, or to the discharge of the liability, and the interest from the time of such payment, tender or application, to the time of sale ; and so much of the residue as may be required therefor, he shall apply in satisfaction of the plaintiff's judgment, after paying the trustee his legal costs. If a balance remain, it is to be paid to the debtor. " The trustee is not prevented from selling the goods in his hands, for the payment of the sum for which they are mortgaged, pledged, or otherwise liable, at any time before the amount due to him is paid or tendered as before mentioned ; provided such sale is authorized by the terms of the contract between him and the principal defendant. 4 »R. S. ch. 119, sec. 58. 3 Ib. sec. 61. "Ib.sec. 60. «Ib. sec. 62. 100 JUSTICE OF THE PEACE. When any person, who has been adjudged trustee in the original action, shall not, on demand of the officer holding the execution, pay over and deliver to him the goods, effects and credits in his hands, and the execution is returned unsatisfied, the plaintiff may sue out a 'writ of scire facias against the trustee, from the justice who rendered the judgment, to show cause why judgment and execution should not be awarded against him for the sum remaining due on the judgment against he principal defendant. 1 No person shall be adjudged a trustee, in either of the cases follow- ing, to wit ; First, by reason of having drawn, accepted, made, or indorsed any negotiable bill, draft, note, or other security, except in the cases where he may have in his possession goods, effects or credits of the principal defendant, which he holds under a conveyance, fraudulent and void as to creditors of the defendant ; Secondly, by reason of any money or other thing, received or col- lected by him, as a sheriff or other officer, by force of an execution or other legal process, in favor of the principal defendant in the foreign attachment, although the same should have been previously demanded of him by the principal defendant ; Thirdly, by reason of any money in his hands as a public officer, and for which he is accountable, merely as such officer, to the princi- pal defendant ; Fourthly, by reason of any money or other thing due from him to the principal defendant, unless it is, at the time of the service of the writ on him, due absolutely and without depending on any contingency; Fifthly, by reason of any debt due from him on a judgment, so long as he is liable to an execution on the judgment ; Sixthly, by reason of any amount due from him to the principal defendant, as wages for his personal labor, for a time not exceeding one month ; Seventhly, where service was made upon him by leaving a copy, and before actual notice of such service, or reasonable ground of belief that the same has been made, he shall have paid the debt due to the principal defendant, or given his negotiable security therefor f Eighthly, when before a municipal or police court, or a justice of the peace, the debt received against the principal shall be a less sum than *R. S. ch. 119,. sec. 74. s Ib. sec. 63. PROCEEDINGS IN SPECIAL CASES. 101 five dollars, unless the sum claimed be reduced to that sum by a set- off filed in the case. 1 Whenever an action is brought for the recovery of a debt, and the defendant has been, or shall be, summoned as a trustee of the plaintiff, the action shall be continued to await the disclosure of the trustee, unless the court shall otherwise order ; and if the defendant shall be adjudged trustee, the disclosure and the proceedings thereon may be given in evidence on the trial of the action between the trustee and his creditor. If the amount disclosed shall be equal to the sum recovered in the action, the trustee shall be liable to no costs subsequent to the service of the trustee process upon him. The intervention of the trustee process does not prevent the plaintiff from recovering his costs against the principal debtor, excepting as above stated. 2 If, during the pendency of an action, the defendant is summoned as the trustee of the plaintiff, the first suit may nevertheless proceed so far as to ascertain what sum, if any, is due from the defendant. The court may then continue the action for judgment, until the termina- tion of the trustee suit, or until the attachment therein shall be dissolved by the discharge of the trustee, or by satisfaction of the judgment otherwise. If the first suit be not continued, and judgment be rendered therein, the defendant shall not afterwards be adjudged a trustee on account of the demand recovered against him, so long as he is liable to an execution on the judgment. If before final judgment is rendered in the first suit, the defendant in that suit shall be adjudged trustee in the other, and shall pay thereon the money demanded in the first suit, or any part of it, the fact shall be stated on the record of the first suit, and judgment therein shall be rendered for the costs due to the plaintiff, and for such part of the debt or damages, if any, as shall remain due and unpaid. 3 Any money or other thing, due to the principal defendant, may be attached before it has become payable, provided it be due absolutely and without any contingency, as before mentioned ; but the trustee shall not be compelled to pay or deliver it, before the time appointed therefor by the contract.* If any person, who is summoned as a trustee, shall have in his pos- session any goods, effects or credits of the principal defendant, which »R. S. ch. 119, sec. 94. 3 Ib. sees. 64, 65, 66. 2 Ib. sees. 13, 14, 15. 4 Ib. sec. 67. 102 JUSTICE OF THE PEACE. he holds under a conveyance that is fraudulent and void as to the credi- tors of the defendant, he may be adjudged a trustee, on account of such goods, effects and credits, although, the principal defendant could not have maintained an action therefor against him. 1 Every trustee shall be allowed to retain or deduct out of the goods, effects and credits in his hands, all his demands against the principal, of which he could have availed himself, if he had not been summoned as trustee, whether by way of set-off on a trial, or by the set-off of judg- ments or executions, between himself and the principal ; and he shall be liable for the balance only, after the mutual demands between him and the principal are adjusted. 2 In the demands, mentioned in the preceding section, to be adjusted between the trustee and the principal defendant, there should not be included, on either side, any claim for unliquidated damages for wrongs or injuries. 3 Any debt or legacy due from an executor or administrator, and any other goods, effects or credits, in the hands of an executor or adminis- trator as such, may be attached in his hands by the process of foreign attachment. 4 What are goods, effects and credits. "When the answer of the trustee is completed, it becomes the province of the magistrate to determine whether he had such goods, effects, or credits in his hands or possession at the time of the service upon him of the original writ, and should be charged therefor. The rule is universal, that where the trustee once admits that he has had goods, effects or credits of the principal defendant in his hands, he is chargeable, unless he clearly discharges himself. 5 This process manifestly contemplates two distinct classes of cases, in which a debtor may avail himself of it to secure his debt, by attach- ing property in the hands of a third person ; the one, where the trustee has in his possession, or under his control, by goods or chattels liable by law to be attached on mesne process, by ordinary writ of attachment ; the other, where the trustee is debtor to the principal defendant, and owes him money, either due and payable presently, or existing as a debt at the time of the attachment, though payable at a future day. 6 »R. S. ch. 119, sec. 69. 4 Ib sec. 43. 2 Ib. sec. 70. 6 5 N. H. 178. 3 Ib. sec. 71. «5 Met. 264. PROCEEDINGS IN SPECIAL CASES. 103 1. Goods and effects. It is necessary that the goods and effects, the property of the principal defendant, should be in the possession of the trustee, or so within his control that they could be turned out on execution. 1 Thus a consignee is not chargeable as trustee until he has accepted the consignment, and received the goods. 2 The possession must be actual, not constructive. 3 They must also, as general rule, be so situated that they cannot be come at to be attached by ordinary process. Thus, if the person hold- ing them claims a hen upon them, or holds under a fraudulent convey- ance from the debtor, or under a mortgage, or as pledgee, he may be summoned as the trustee of the debtor. 4 And when the trustee makes answer, the question of the validity of such sale, mortgage, conveyance, pledge or lien comes in issue, wheth- er the trustee can hold the property for his own claim, and virtually make a set-off between them. The lien must be a bona fide one, created either by contract or custom, and not arising simply from a balance of account. The general rule is thus laid down by the Supreme Judical Court of Massachusetts ; "If the party who is summoned as trustee has a mere naked possession of the goods, without any special property or lien ; if the principal debtor is the owner, and has a present right of possession, so that he might lawfully take them out of the custody, or authorize another to take them out of the custody, of the present holder, they would be liable to be attached as the property of the general owner, by an officer under the common process of attach- ment, if he could have access to them, and no right of the trustee would be violated. But if the officer cannot have access to the goods, so as to take them into custody ; if they are secreted by the trustee, or if the trustee sets up pretended claims and rights of possession, so that the creditor and officer cannot safely take them out of the custody of the trustee, and require the answer and disclosure of the trustee, as to the grounds of his claim to the property and possession, then he may be summoned as trustee ; and if it shall subsequently appear, on his dis- closures, that he had only such naked possession, without any hen or right of possession, then the goods stand charged in his hands, till l B Pick. 31—1 5 Maine, 86. 4 Cush.Tr. Pr. part 1 , ch. 2— R. S. ch. 119, 2 16 Mass. 343. sec. 69. 3 4 Mass.235— 5 Pick. 31—1 6 Mass. 344. 104 JUSTICE OF THE PEACE. judgment and execution ; and lie has no greater right to charge these goods with a debt of his own, by way of set-off, than he would have had, if the good had been taken into custody by the officer at the time of service." 1 And in case of an assignment of property in trust for the payment of debts, under the statutes regulating that subject, the assignee may, after the expiration of six months from the publication of notice of the assignment, be made trustee, where there is a surplus in his hands. 2 So a lessee of personal property may be made trustee. 3 2. Credits. The statute here affects another -species of property from that last considered, and accomplishes its purpose in an entirely different mode. The only question is, whether the trustee owed the principal debtor any thing at the time of the service of the original writ upon him, and if it appears that he did, he is held liable to pay it to his creditor's creditor, instead of paying it to the debtor himself. 4 To determine this question, the magistrate will take into considera- tion the nature of the debt, whether absolute or conditional ; whether in the form of a judgment, negotiable note, account, or otherwise ; what claims, liens, or rights of set-off the trustee may have upon or against it, whether it is barred by the statute of limitations, or affected by the statute of frauds ; by whom and to whom it is payable, whether by the trustee alone or with some other jointly, and whether to the principal defendant alone, or with some other jointly; whether the claim has been assigned by the principal defendant, if an assignment is disclosed ; and whether legal process has been commenced to recover the same of the trustee, if such process is disclosed. For the same grounds of defence are open to the trustee in this process which would have been open to him in a suit by the principal defendant ; and if he is eharged, the judgment in this suit is to protect him against a future suit by the principal defendant for the same matter pro tanto. The debt must be a debt for money or other thing due absolutely, and not upon a contingency, but if it be due in presenti, it is attacha- ble, though payable infirtiiro.* It must neither be in the form of a promissory note or judgment. It should also be due to the defendant 1 5 Met. 265, 267. 4 5 Met. 265. 2 Act of 1850, ch. 113, sec. 5. 6 R. S. eh. 119, seca. 63, 67. »Cush Tr. Pr. § 57. PROCEEDINGS IN SPECIAL CASES. 105 or defendants, and not to him or them jointly wit'n others not parties to the suit. 1 The rule is otherwise, however, in regard to the trustees themselves. A disclosure of an indebtedness to one of several defendants charges the trustee. 2 In the case of a partnership, one or more partners residing without the State, it is sufficient to serve the process on one of the partners, in order to hold the funds of the principal debtor in the partnership's hands. 3 But the demand must not be one due from the trustee as a public officer, sheriff, or guardian to ward. The trus- tee has a right to avail himself of all legal hens and rights of set-off, and also of all legal defences which he might have against the principal defendant. 4 If legal process be commenced against him by the prin- cipal defendant for the recovery of the same demand, and judgment recovered before the question of charging or discharging him is settled, he is entitled to be discharged. 4 And an assignment of the demand by the principal defendant, made in good faith, before an attachment by trustee process, though without notice to the debtor, would give the assignee a title preferable to that of the attaching creditor ; and such assignment, being seasonably made known to the trustee, and being disclosed by him in his answer, would also entitle him to a discharge. e And when the debt of the trustee is one drawing interest, he is not chargeable with interest after summons, unless it appears affirmatively that he was not then ready to pay. 7 Of facts neither stated nor denied. Either party may allege and prove any other facts, not stated nor denied by the supposed trustee, that may be material in deciding the question. 8 The magistrate should always remember that a party can be allowed to go into the proof only of matters that are neither stated nor denied by the trustee. That no evidence aliunde can be received to contra- dict, aid, or explain the trustee's answer, is the law both by statute and & long current of decisions. 9 But when the trustee is ignorant of any fact, and so states in his answer, a party may then go into the proof. But it is presumed that it should first appear affirmatively in the answer, that the trustee neither states nor denies the alleged fact. »6 Mass. 271. 6 4 Met. 598. a 13 Maine, 420. *18 Maine, 332. =16 Mass. 299. »R. g. cn . H9, sec. 33. 4 5 Met. 266. »12 Pick. 386. *R. S. ch. H9, sec. 65. 14 106 JUSTICE OF THE PEACE. Of an assignment disclosed. When it appears, by the answers of any person summoned as a trustee, that any effects, goods or credits in his hands are claimed by a third person, in virtue of an assignment from the principal debtor, or in some other way, the justice may permit such claimant, if he see cause, to appear and become a party to the suit, and maintain his right. 1 The assignment, in such case, may be in writing or by parole.* Should such claimant not appear voluntarily, notice may be issued and served upon him, in such manner as the justice may direct. 3 If any such claimant shall appear, as before provided, he may be admitted as a party to the suit, so far as it affects his title to the goods, effects or credits in question, and may allege or prove any facts, not stated nor denied by the supposed trustee, and such allegations shall be tried and determined, in the manner before provided. 4 Upon any trial, between the attaching creditor and any othar person claiming the same effects, in the manner before mentioned, the princi- pal defendant may be examined as a witness for either party, if there is no other objection to his competency, except his being a party to the original suit. 6 If such assignee, having been duly notified, shall not appear in person or by attorney, the assignment shall have no effect to defeat the plaintiff's attachment. 6 It is too late to summon in the assignee after the case has been argued and presented to the court. 7 All testimony relating to the additional allegations of any party in such trial, shall be given by depositions taken and filed in the usual manner. 8 Proceedings in case of death or marriage of trustee. If any person who is summoned as trustee in his own right, die before judg- ment, if any, recovered by the plaintiff, shall be fully satisfied, the goods, effects and credits, in his hands at the time of the attachment, are held thereby, and his executors or administrators shall be liable therefor, in like manner, as if the writ had been originally served on them. 9 »R. S. ch. 119, sec. 35. 6 Ib- sec. 38. 2 8 Pick. 280. 717 Maine, 401. =R. S. ch. 119, sec. 36. 8 tt>. sec. 40. «Ib.sec.37. »Ib. sec.44. s Ib. sec. 39. PROCEEDINGS IN SPECIAL CASES. 107 If the person shall die before judgment in the original suit, his executor or administrator may appear voluntarily, or may be cited to appear, in the same manner as is provided in case of death of a defendant in a common action ; and the further proceedings shall then be conducted in the same manner as if the executor or administrator had been originally summoned as trustee, except that the examination of the deceased, if any had been taken and filed, shall have the same effect as if he were living. 1 If, in such case, the executor or administrator shall not appear, the plaintiff, instead of suggesting the death of the testator or intestate, may take judgment against him by default or otherwise, as if he were living ; in which case, if the executor shall not voluntarily pay the amount in his hands, the plaintiff may proceed by writ of scire facias agamstjnm. 2 If any person, against whom execution shall issue as trustee, shall not be living at the expiration of the thirty-days after final judgment, within which it is required by law that demand be made on the trustee, demand may be made upon the executor or administrator. 3 In the cases we have been speaking of, execution is not to be served on the goods or estate of the executor or administrator, nor on Ms person, but he is liable to the plaintiff in like manner, and to the same extent, as he would have been to the' principal defendant, if there had been no trustee process. 4 Where a feme sole, summoned as a trustee, marries before judgment, it is not necessary to cite in the husband, but he is bound by the judgment which may be rendered. 5 In what county trustees may he required to appear. We have already seen, that the action must be brought in the county where one of the supposed trustees fives. If the trustee be a corporation, the residence of the corporation is in the county in which it has its estab- lished or usual place of business, or in which it shall have held its last annual meeting, or shall usually hold its meetings. 6 The statute of 1842, permitting actions to be brought in any county where one of a number of defendants live, is understood to permit actions to be brought in any county in which any trustee lives. 7 *R. S. ch. 119, sec. 45. 6 5 Green. 443. 2 Ib. sees. 46, 47. 6 R. S. ch. 119, sees. 5, 88. 3 Ib. sec. 48. 'Act of 1842, ch. 10—12 Maine, 17. 4 Ib. sec. 49. 108 JUSTICE OF THE PEACE. When a trustee, at the time the writ is served upon him, dwells in any county, other than that where the writ is returnable, the justice is required, in case of his discharge, to allow him, in addition to his legal fees, a reasonable compensation for his time and expenses in appearing and defending himself. 1 A person summoned as trustee, resident out of the county where the suit is pending, is not liable for any costs. 8 Nor is such person required to appear in person in the original suit, or in a suit on scire facias ; but he may appear by attorney, and declare whether he had any goods, &c. of the principal in his hands ; and thereupon offer to submit himself to examination on oath. If the plaintiff proceed no further, such declaration shall be considered as true. If the plaintiff think proper to examine him upon oath, the answers may be taken before a justice of his own county. 3 It may be well to add, in this connection, that in the case last men- tioned, the justice ought to proceed with the action, although the trustee is discharged, and although neither plaintiff nor defendant reside in his county, unless it appear by plea in abatement, that the trustee was collusively included in the writ for the purpose of giving the court jurisdiction. 4 If, after a judgment has been rendered in a trustee process, the defendant removes out of the county, the justice may issue execution against the trustee, directed to the proper officer of any other county, where he may be supposed to reside. 6 For proceedings on. scire facias against trustee, see SCIRE facias. II. SCIRE FACIAS. A scire facias is a judicial writ, founded on some matter of record, as a recognizance, judgment, &c. requiring the person against whom it is brought to show cause why the party bringing it should not have the benefit of such record. 6 It can issue only from the court having the record on which it is founded. 7 Every justice of the peace may issue scire facias against executors or administrators, upon a suggestion of waste, after judgment against iR. S. ch. 119, sec. 21. 5 Ib. sec. 95. 2 Ib. sec. 24. "Howe's Pr. 67. =Ib. sees. 27, 28, 29. 7 23 Pick. 110. «Ib. sec. 96. PROCEEDINGS IN SPECIAL CASES. 109 them ; and also against bail, taken in any civil action, and indoreers of ■writs ; and enter judgment and issue execution, as any court might do in like cases. 1 In all cases of scire facias against bail, or the indorser of a writ, or executors or administrators, and in all trustee processes, when the defendant resides out of the county -where the proceedings are had, the writ or execution may be directed to any proper officer of the county ■where the defendant resides. 2 Every such writ of scire facias shall be served, not less than seven days, nor more than sixty, before the time when it is returnable. 3 We shall speak of this process as it lies : 1. On judgments. 2. On recognizances. 3. Against trustees. 4. Against bail. 5. On the death of parties. 6. On the marriage of a feme sole plaintiff or defen- dant. 7. Against executors or aiiministrators on suggestion of waste. 1. On judgments. If a creditor neglect to sue out execution within the time prescribed by law, he may sue out a writ of scire facias against the debtor to shew cause why execution of the judgment should not be done ; and if, after due notice, no sufficient cause be shown, the court shall award execution for the amount due on the judgment.* There are other cases, perhaps, in which a justice of the peace may issue scire facias on a judgment, but as debt or scire facias may be sued out in them, at the election of the creditor, and as the former is, in practice, much- more convenient, the latter remedy may be consid- ered, with us, out of use. 5 2. On recognizances. The statutes of Maine jaake no provision for scire facias on recognizances ; and as the remedy by action of debt is obviously preferable, the magistrate will hardly have occasion to apply that under consideration. 3. Against trustees. We have had occasion to allude to this process as applicable to trustees, but it is necessary, in this connection to describe it with some detail. When any person who has been adjudged a trustee in the original action, shall not, on demand of the officer holding the execution, pay over and deliver to him the goods effects and credits in his hands, and such execution shall be returned unsatisfied, the plaintiff may sue out *R. S. eh. 116, sec. 16. 4 R. S. eh. 115, sec. 106. 5 Ib. sec. 17. 'Colby's Pr. 97. 3 Ib sec. 18. 110 JUSTICE OF THE PEACE. a writ of scire facias against such trustee, before the justice that rendered the judgment, to show cause why judgment and execution should not be awarded against him, and his own goods and estate, for the sum remaining due on the judgment against the principal defen- dant 1 . If the trustee has not been examined in the original suit, judgment, in case of default, shall be rendered against him for the whole sum remaining due on the judgment against the principal. 8 WHn there is more than one defendant in such writ of scire facias, and 'they are all defaulted, not having been examined in the original suit, joint or several judgments may be entered up, according to the circumstances of the case, and execution issued in common form. 3 If any trustee, who has been defaulted on scire facias, shall have been examined in the original suit, judgment shall be rendered on the facts stated in his disclosure, or proved at the trial, for such part, if any shall remain in his hands, of the goods, effects or credits, for which he was chargeable as trustee, or so much thereof as shall be then due and unsatisfied on the judgment against the principal defendant ; but if it shall appear that such person paid and delivered the whole amount thereof on the execution, issued on the original judgment, he shall not be liable for any costs on the scire facias.* If the trustee appears and answers to the scire facias, and if he had not been examined in the original suit, he shall be liable to be examin- ed, in the same manner, as he might have been in that suit ; and if on such examination he shall appear not to be chargeable, the court shall render judgment against him for costs only, if resident in the county where the original process was returnable ; but if not resident in such county, then he shall not be liable to costs, nor shall he recover any costs. 8 If he had been examined in the original suit, the court may require or permit him to be examined anew, in the suit on the scire facias, and in such case, he shall be permitted to prove any matter proper for his defence, on the scire facias ; and upon the whole matter appearing upon such examination and trial, the court shall render such judgment as law and justice shall require. 6 iR. S. ch. 119, sec. 74. 4 Ib. sec. 77. 2 Ib. sec. 75. *Ib. sec. 78. 3 Ib. sec. 76. 6 Ib. sec. 79. PROCEEDINGS IN SPECIAL CASES. Ill If on a writ of scire facias against a trustee, it shall appear that he is chargeable as trustee, the sum for which he is chargeable shall be expressed in the judgment. 1 If the trustee had not appeared and answered to the original suit, he is liable to costs on scire facias. 5 When a mortgagee or pledgee has been summoned as trustee of the mortgagor or pledgor, and the court has ordered, that on payment to him of the money due him, he shall deliver over to the officer the property in his hands, and it shall appear, on scire facias against him, that he has refused to comply with the order of court, the court shall enter up judgment against him for the amount of the sum due and returned unsatisfied on the execution, if there appear to be in his hands such an amount of the property mortgaged, over and and above the sum received by such mortgagee or pledgee ; but if not, then for the amount of said property, so exceeding the said sum ; which amount of excess shall, on the trial of the scire facias, be determined by the court. 3 If a person, summoned as trustee, is bound to deliver to the princi- pal defendant specific articles, and shall not deliver them to the officer holding the execution, or so much of them as may be necessary to satisfy the execution, the creditor may have his remedy on a scire facias. 4 If the executor or administrator of a trustee, after being charged shall not voluntarily pay the amount in his hands, the plaintiff may proceed against him, by a writ of scire facias, in like manner as if the judgment in the first suit had been against the executor or administra- tor himself as trustee. 6 If, after final judgment against an executor or administrator, for any certain sum due from him as trustee, he neglects to pay the same, the original plaintiff in the trustee process shall have the same remedy for recovering the amount, either upon a suggestion of waste, or by a suit upon the administration bond, as the principal defendant in the foreign attachment would have had, upon a judgment recovered by himself, for the same demand, against the executor or administrator. 6 4. Against bail. A bail bond.is a bond given to the officer serv- ing the original writ, conditioned that the defendant shall appear and J R. S. ch. 119, sec. 72. 4 Ib. sec. 52. ! Ib. sec. 89. 6 Ib. sen. 47. 3 Ib. sec 59. «Ib. sec. 50. 112 JUSTICE OF THE PEACE. answer to the plaintiff in the suit, and that he shall abide the final judgment of the court thereon, and shall not avoid. This bond is returned and filed -with the writ, and is so far a matter of record that the creditor may take out a writ of scire facias thereon in his own name. 1 And that, although the amount of debt and costs exceed the amount to which the jurisdiction of the justice is otherwise limited. 2 When bail is taken on mesne process, in an action triable before a justice, and there shall be a return on the execution issued on the judg- ment, that the principal is not found, the justice may issue scire facias thereon against the bail, to be served seven days before trial ; and if no sufficient cause is shown to the contrary, he may render judgment for the debt and costs recovered, with interest thereon from the time the judgment was rendered against the principal. 3 If the bail shall, at any time before final judgment in the original suit is rendered, or upon the return of the scire facias and before final judgment thereupon, bring the principal before such justice, and pro- cure the proper officer to receive the principal, such justice shall make a record of such surrender, and shall order him into the custody of the officer ; and he shall commit the principal to jail ; then, on payment of the costs arising on the scire facias, the bail shall be fully dis- charged. 4 When the principal is so surrendered, after final judgment in the original action, the bail shall deliver to the officer a copy of the entry of the surrender, which entry the justice is required to make, attested by the justice. 8 If the principal is surrendered before final judgment in the original suit, the bail shall deliver the officer a copy of the original writ, with the return indorsed thereon, attested by the justice. 6 No such action shall be maintained against any person as bail, unless the writ of scire facias be served on him, within one year after the rendition of final judgment against the principal. 7 The defendants in such action may plead either jointly or severally, that they never became bail, as alleged in the writ, and shall thereup- »R. S. oh. 118, sec. 13. »Ib. sec. 16. »Ib. 6 Ib. sec. 17. sib. 7 Ib. sec. 8. 4 Ib. sec. 14 PROCEEDINGS IN SPECIAL CASES. 113 on be entitled to every ground of which they could have availed them- selves, upon a plea that the bond is not their deed, if an action of debt had been brought on the bond ; or they may show any special matter of discharge, filing a brief statement thereof, as by law provided. 1 Filing a new count, which does not appear by the record to be for the same cause of action as the counts- in the writ when it was served, will discharge the bails. 2 Unless judgment be rendered on the original counts only. 3 If the principal die before the return of the execution, the bond is saved, for it has become impossible, by inevitable accident, for the bail to surrender him. But the dearth of the principal at any time after the execution shall be returned unsatisfied, and non est inventus indorsed thereon, will not discharge the bail. 4 And it will not avail the bail to show that the principal died before the execution was actually returned to the magistrate, if his death were after the return day of the execution, and after return was endorsed upon it. 4 Or that the principal, on the day when judgment was rendered against him, was too sick to be removed without endangering his life, and so remained until after the return day of the execution, when he died. 6 An enlistment in the service of the United States is no defence in scire facias against bail. 7 So the discharge of the principal under the bankrupt or insolvent law, before the bail are fixed, entitles them to an exoneratur without a surrender. 8 So if the principal be one exempted from arrest by some involuntary change of circumstances since the arrest on mesne process. 9 Otherwise where the change is the voluntarily act of the debtor. 10 The bail are bound by the return of the officer as to the facts there stated. If it be not true, their remedy is by an action against the officer for a false return. 11 5. On the death of parties. If the plaintiff or defendant die after judgment, his executor or administrator must sue out scire facias before he can have execution. 12 1 R. S. ch. 1 18, eec. 9. T 1 3 Mara. 93. s 14 Pick. 177. »1 Mass. 292. 3 Ib. » 13 Mass. 94, 95. *2 Mass. 485. i°Ib. *4 Pick. 120. H17 Mass. 601. « 4 N. H. 29. 15 "Howe's Pr. 70. 11A JUSTICE OF THE PEACE. Unless there be two or more plaintiffs or defendants, and one or more of them die after judgment and before execution, in which case execution may be had for or against the survivors. 1 If any executor or administrator shall die or be removed, after judgment is rendered, either for or against him, a scire facias may be sued out, either by or against the administrat or de bonis non, and after due service thereof, a new execution may be issued accordingly upon such judgment, in like manner as it may be done by or against an orig- nal executor or administrator, in case of the death of his testator or intestate, after a judgment rendered for or against him, except only, that the judgment against the first executor or administrator for costs, for which he was personally liable, shall be enforced only against his ex- ecutor or administrator, and not against the admmistrator de bonis non. 1 6. On the marriage of a feme sole plaintiff or defendant. The general principle is, that where a new person is to be benefited by or charged by the execution of a judgment, there ought to be a scire facias to make him a party to it. Therefore if a feme sole plaintiff marry- after judgment and before execution, there must be scire facias to execute the judgment.' If a feme sole defendant marry, however, after judgment, and before execution, no scire facias is necessary, unless the plaintiff wishes execution against the husband as well as the wife. 4 7. Against executors or administrators on suggestion of waste. When an execution against an executor or administrator, for a debt due from the estate of the deceased, is returned unsatisfied, the credi- tor may sue out a scire facias, upon a suggestion of waste, against the executor or administrator, and if the defendant shall not appear and show sufficient cause to the contrary, after due service of the writ, execution shall issue against him for the full amount of the original judgment and interest thereon, not exceeding, however, the full amount of the waste, if it can be ascertained. 5 TTT . FORCIBLE ENTRY AND DETAINER. The process of forcible entry and detainer, originally applicable to peculiar cases, in which the element of force existed, has, by more »9 Mass. 18— lb. 160. 4 5 Green. 443. S R. S. ch. 120, see. 8. 5 K- S. ch. 120, Bee. 6. 'Howe's Pr. 70. PROCEEDINGS IN SPECIAL CASES. 115 recent statutes, been extended to almost all, if not all, cases of unlawful refusal to quit any lands or tenements. The revised statutes provide, that any justice of the peace and of the quorum, in the county in which he resides, shall have jurisdiction of all cases of forcible eutry and detainer, except those arising in a town or city therein, in which a municipal or police court is, or may be established. Such municipal and police courts have also concurrent jurisdiction with justices of the peace and quorum in cases arising in the counties in which they may be established. 1 Complaint may be made to the proper magistrate or court, in writing and on oath of any unlawful and forcible entry into lands or tenements, or of any unlawful and forcible detainer, or of any unlawful detainer, of the same ; whereupon a warrant under hand and seal, is issued, directed to the sheriff or his deputy, or a constable of the town or city where the person charged resides, to summon him to show cause why judgment should not be rendered against him. The sum- mons is to be served by reading the same in his presence and hearing, or by delivering him a copy, or leaving it at his last and usual place of abode, seven days, at least, before the day set for trial. 2 On return of such service, in case of non-appearance and default of the party charged, or his failing to show sufficient cause, judgment is rendered against him for possession of the premises, and the justice, or court, issues a writ of possession to remove him. 3 Should the defendant plead not guilty to the complaint, and file a brief statement of title in himself, or some other person under whom he claims the premises in question, the justice is thereupon to order him to recognize to the complainant, with sufficient sureties, in such sum as the court may order, to pay all intervening damages and costs, and reasonable intervening rent for the premises. The complainant must also be required to recognize to the defendant, with sufficient sureties, in a reasonable sum, conditioned to enter the action at the next district court, and prosecute the same to final judgment, and pay all costs adjudged against him ; and if either party refuses so to recognize, judgment is to be entered, as in case of nonsuit or default, against the party so neglecting or refusing. 4 »R. S. ch. 128, sees. 1, 6. 3 R. S. ch. 128, sec. 3. / 2 Ib. sec. 2— Acts of 1849, ch. 48. 4 Ib. sec. 4. 116 JUSTICE OF THE PEACE. So, either party may appeal from the judgment rendered, upon issue joined, to the next district court, recognizing, as aforesaid, to pay such costs as may be adjudged against him ; but if the defendant appeals, he is to recognize to pay such reasonable intervening rent for the premises, as the justice, or court below, shall adjudge, in case his judgment shall not be reversed on such appeal. 1 We have remarked that recent legislation had extended the process of forcible entry and detainer to almost all, if not all, cases of unlawful detainer of real property. The Revised Statutes made the process applicable to tenants, whose estate in the premises is determined, and who unlawfully refuse to quit the same after thirty days' notice in writing given by the lessor for that purpose, provided they shall not have been in quiet possession of the premises three whole years, next preceding the filing of such complaint." The proviso in the section quoted has now been repealed ; 3 and further legislation has provided that the process may be maintained, although the relation of landlord and tenant does not exist between the parties. 4 A subsequent statute still further provides, that the process of forcible entry and detainer may be used in all cases against any lessee, who holds under a written agreement, and against any other person holding under said lessor [lessee] at the expiration of the term named in the written agreement, or when said term is forfeited by any breach of condition in said written agreement of said lessee, and also against a disseizor of lands, without having given any notice to quit to said lessee or person holding under him or said disseizor : provided the said lessor shall so proceed within seven days from the expiration of the term, or the breach of the same as aforesaid.' It is sometimes a matter of some nicety to determine, in particular cases, who is, and who is not a disseizor. The general rule, at com- mon law, seems to be, that it shall depend upon the election of the owner, whether an interference with his title shall constitute a dissei- zin. 6 For further information upon this point, we must content our- selves with reference to the work mentioned in the note, and the cases iR. S. ch. 128, sec. 4. *Acts of 1849, ch. 98. 2 Ib. sec. 5. 6 Acts of 1850, ch. 160. sActs of 1847, ch. 4. "lBurrow, 110. PROCEEDINGS IN SPECIAL CASES. 117 there cited. 1 Any person who has actually ousted the complainant, or withheld from him the possession of the premises, would probably be considered, in this state, for the purposes of the process in question, a disseizor. 2 It is to be observed, that the proviso in the statute of 1850, does not extend to process instituted against a disseizor, but only to that of lessor against lessee. Whether a lessee, after his estate is determined by demand of rent by the lessor and nonpayment, is to be considered under this statute a disseizor, or whether he is to be treated as a lessee merely, may not be clear. If he may be treated as a disseizor, in such case he is entitled to no notice, and may be proceeded against immediately upon demand of rent, and refusal to pay. If, on the other hand, he is even, after demand and refusal of payment, still in the position of lessee, he will be entitled (unless complained against within seven days) to the thirty days' notice mentioned in the Revised Statutes, chapter one hundred and twenty-eighth. The statute leaves the case of tenants at will untouched. A tenant at .will is a person who holds under a verbal lease, and is entitled to such time to quit, after notice, as is equal to the interval between the days of payment of rent f or in case of nonpayment of rent, to thirty days' notice. Such notice determines his estate, after which he must have thirty days' notice under the forcible entry and detainer act of 1841. At least, so is understood to have been the decision of the Supreme Court of this State in the recent case of Smith v. Rome, in Cumber- land county. A tenancy at will may also be determined by its own limitation. For example, the death of the lessor, or a conveyance by the lessor, so determines it.* In such case the tenant is entitled to thirty days' notice after such determination. A tenant at sufferance is entitled to no notice to quit. 5 IV. REPLEVIN OF BEASTS AND CHATTELS. Any person, whose beasts are distrained or impounded, in order to recover any penalty or forfeiture, supposed to have been incurred, by their going at large, or to obtain satisfaction for any damages, alleged U Hilliard onReal Property, 86. 4 21 Maine, 114—3 Met. 351. 2 R. S. ch. 145, sec. 10. *2 Met. 29—25 Maine, 287. 'R. S. ch. 95, sees. 19, 20. 118 JUSTICE OF THE PEACE. to have been done by them, may maintain a writ of replevin against the impounder or finder therefor, to be sued out and prosecuted before any justice of the peace for the county, in the form prescribed by law. 1 The writ shall be sued out, served and returned, and the cause shall be heard and determined, in like manner as is provided in the case of other civil actions before a justice of. the peace, except as otherwise prescribed. 1 The writ shall not be served, unless the plaintiff or some one in his behalf, shall execute and deliver to the officer a bond to the defendant, with sufficient sureties, to be approved by the officer, in a penalty double the value of the property to be replevied, with condition to prosecute the replevin to final judgment, and to pay such damages and costs, as the defendant shall recover against him, and also to return the said property, in case such shall be the final judgment ; such bond to be returned with the writ for the use of the defendant. 3 For the judgment in this action, see the chapter on Judgments. For the right of appeal, see the chapter on Appeals. For the mode of transferring the action to the District Court, when the sum demanded exceeds twenty dollars, and in other cases, see chapter vii. When any goods of a value not exceeding twenty dollars, shall be unlawfully taken, or unlawfully detained from the owner, or the person entitled to the possession thereof, or when any goods of that value, which are attached on mesne process, or taken in execution, are claimed by any person other than the defendant in the suit, in which they are so attached and taken, such owner or person may cause them to be replevied by process from a justice of the peace. 4 For the judgment in this action, see the chapter on Judgments. V. OF GOODS FORFEITED, AND OF LOST GOODS. 1. Of goods forfeited. When any personal property shall be forfeited for any offence, and no special mode is prescribed for recover- ing the same, any person entitled thereto, in whole or in part, may seize and keep the same until final judgment, unless they are restored on the bond as hereafter mentioned.* *R. S. ch. 130, sec. 1. 4 Ib. sees. 8, 9. '-.. s Ib. sec. 2. *R. S. ch. 132, sec. 1. =Ib. sec. 3. PROCEEDINGS IN SPECIAL CASES 119 If the person claiming the same, for himself or another, shall give bond, with sufficient surety or sureties, to the party seizing, to pay the appraised value thereof, when, and if the same shall be decreed for- feited, then the same shall be restored to such owner or claimant. 1 The value shall be ascertained by the appraisement of three disinter- ested men, mutually chosen by the parties ; or if they cannot agree, by a justice of the peace of the county. * If no person claims the property after it has been so seized, the party seizing shall cause an inventory and appraisement of the same to he made by three disinterested persons, under oath, appointed by a justice of the peace of the county, which value shall be the rule for deciding, where the libel shall be filed. 3 When the property seized shall not exceed the value of twenty dollars, the party seizing shall, within twenty days after seizure, file a libel before a justice of the peace of the county where the offence was committed, stating the cause of seizure, and praying a decree of for- feiture. The justice is thereupon to make out notice to all persons, to appear before him, to show cause why such decree should not be passed. Such notice must be posted up in two or more public places in the county, seven days at least before the day of trial. And such justice shall, at the time fixed by him for trial, try and decide the cause, and make such decree therein as the law requires. 4 Either party may appeal to the next district court for the same county, recognizing as in other cases of appeal. 5 Depositions, duly taken, may be used in these cases.' 2. Of lost goods. Any person finding any money or goods, of the value of three dollars, or more, the owner whereof is unknown, is required, within ten days, to give notice of the same, in writing, to the town clerk of the town in which they are found, and to cause a notifica- tion thereof to be posted up in some public place in the same town ; and if there be any public crier in the town, he shall also cause the same to be cried publicly therein on three several days. 7 If the money or goods be of the value of ten dollars, or more, the same is required to be cried, and notice given by posting as above mentioned in two towns adjoining, in addition to ths requirement above." >R. S. ch. 132, Bee. 2. *Ib. sec. 10. 2 Ib. sec. 3. 6 Ib. sec. 12. 3 Ib. sec. 4. Ub. sec. 13. *Ib. sees. 5, 9. »Ib. sec. 14. 120 JUSTICE OF THE PEACE. Every finder of lost goods, of the value of ten dollars or more, shall also, ■within two months after finding, and before using the same to their disadvantage, procure from the town clerk or a justice of the peace, a warrant directed to two persons, not interested, except as inhabitants of the town, to be appointed by said clerk or justice, return- able within seven days from the date, into the town clerk's office, to appraise the goods under oath. 1 If the owner of such lost goods or money appear within one year after notice given to said clerk as aforesaid, and shall give reasonable evidence of his right thereto to the finder, he shall have restitution of the same or the value ; allowing and paying all necessary charges, including a reasonable compensation to the finder for his trouble ; to be liquidated and adjudged by some justice in the county, if the owner and finder do not agree. 2 If no owner appear, within one year, as aforesaid, such money or goods shall remain to the finder, he paying one half the value, all necessary charges deducted; to- the treasurer of the town : and in case of the neglect of the finder, then to pay the same on demand, after converting the same to his own use, the same may be recovered in an action, to be brought by said treasurer in the name of the town. 3 If the finder shall neglect to give notice, and cause the goods to be advertised and cried, he forfeits the value of the goods, one half to the use of the town, and one half to the person sueing for the same ; and is besides responsible to the owner for the value of the goods.* VI. POOR DEBTORS. 1. Of arrest and disclosure on mesne process. In all actions not founded on contract, or on a judgment on such contract, the origi- nal writ or process shall run against the body of the defendant, and he may thereon be arrested and imprisoned, or he may give bail. 5 No person can be arrested on mesne process, in any suit brought on contract, or in judgment founded on contract, except as follows : Any person, whether a resident within this State or not, may be arrested and held to bail, or committed to prison on mesne process, on any contract, express or implied, when the sum demanded amounts to ten »R. S. ch. 132, see. 15. 4 Ib. sec. 18. s Ib. sec. 16. »ft. S. ch. 148, sec. 9. »Ib. sec. 17. PROCEEDINGS IN SPECIAL CASES. 121 dollars, or on a judgment founded on contract, when the debt originally recovered and still remaining clue, is ten dollars or more, exclusive of interest on such judgment, Avhen he is about to depart and reside beyond the limits of the State, with property or means exceeding the amount required for his immediate support ; provided that the creditor, his agent or attorney, shall make oath before a justice of the peace, to be certified by such justice on such process, that he has reason to believe, and does believe, that such debtor is about to depart and reside, and to take with him property or means as aforesaid ; and that the demand in said process, or the principal part thereof, amounting at least to ten dollars, is due him. 1 On the arrest or imprisonment of any debtor, by virtue of the pro- visions last mentioned, he may, on request of the officer or jailor who has him in custody, be taken before two disinterested justices of the peace and quorum, to disclose the actual state of his affairs. 2 Such justices are to be selected, one by the debtor, one by the creditor, his attorney or agent, if the same can be conveniently done, otherwise by the officer having such debtor in charge, or if he be at large, by the sheriff, or any deputy, constable or coroner, who might legally serve the precept on which he is arrested, as the case may be ; and such officer may also select, in case the parties or either of them decline so to do. In case said justices, so selected, do not agree, they may select a third, and a majority shall decide ; and if said justices are unable to agree on a third, he may be selected by the officer as before mentioned. 3 The justices must reside in the town where the disclosure is made, or in an adjoining town. 4 The parties will be considered as " declining " to select, when they omit to appear and make selection. 5 If the creditor neglects, refuses, or unreasonably delays to select, the justice selected by the debtor may adjourn once, if he deems it necessary, but not exceeding twenty four hours, (Sundays excluded,) to enable the debtor to procure the attendance of another justice. 6 It is not necessary that the court should be organized at the precise *R. S. ch. 148, sees. 1, 2. 4 lb. 2 Ib. see. 3. s 23 Maine, 489. 3 Ib. sec. 46— Acts of 1844, ch. 88. 6 Acts of 1846, ch. 215. 16 122 JUSTICE OF THE PEACE. hour appointed, or even within an hour thereafter. A liberal construc- tion is given to the statute in this particular. 1 When a third justice has been called in to act with the others he should act until the final decision is made. 2 When the creditor selects a justice, it is his duty. to procure his attendance at the time and place appointed for the disclosure. 3 Previous to such disclosure, the debtor must give due notice to the creditor, his agent or attorney, of his intention, and of the time and place for attending to said disclosure ; and that such creditor, agent or attorney, may be present and select one of the justices, and be heard thereon ; which notice shall not be less than one day for every twenty miles travel, exclusive of Sunday. 4 If the debtor shall, at the time and place appointed, make to the satisfaction of the justices, a full disclosure of the actual state of his affairs, and of all his estate, property, rights and credits, in possession, expectation or reversion, and answer all proper interrogatories in regard to the same, and shall sign and offer to make oath to the truth of his disclosure and answers, before such justices, they shall adminis- ter to him such oath, and may hear such further and proper evidence, as may be offered upon either side. 8 The justices shall have power to adjourn, from time to time, if they shall see cause ; and if either of them shall not be present at such adjournment, the other may adjourn to another time, but no such adjournment, or adjournments, shall exceed three days in the whole, exclusive of Sunday. 6 On such examination, the justices may discharge such debtor from arrest and imprisonment, or remand him into the custody of the jailor or other officer, as the case may require ; and in case of such discharge, no execution issuing on the judgment in such suit or process, shall run against the body of such debtor. 7 All attachable property, disclosed by such examination, or so much thereof as the creditor may designate, to satisfy his demand against the debtor, shall be held as attached from the time of such disclosure, and until thirty days after final judgment, as in other cases of attachment. 8 126 Maine, 101. 6 Ib. sec. 5. 2 27 Maine, 551. 6 Ib sec. 6. =Acts 1848, ch. 85, sec. 1. 7 Ib. sec. 7. *R. S. ch. 148, sec. 4. s Ib. sec. 8. PROCEEDINGS IN SPECIAL CASES. 123 "Whenever any person shall be served with an original writ or other mesne process founded on contract or judgment, as before stated, in any other manner than by arrest of the body, such person may, at any time before final judgment, appear before any court or justice, before whom such writ or process may be pending, or before a disinterested commissioner or commissioners, to be appointed by such court or justice, and submit himself to examination ; and such court, justice, or com- missioner shall, after giving like notice of the time and place of hearing, as has been before stated, then and there proceed to take the disclosure of such person ; and the like proceedings shall be had before such court, justice, or commissioner, as is provided, as aforesaid, when they are had before two justices of the peace and quorum, and with like effect. 1 On the whole examination, the said court, justice, or commissioner may adjudge and determine, (providing the debtor shall not refuse to assign and deliver property disclosed by him, and which cannot be come at to be attached, as is mentioned on a subsequent page of this divis- ion,) that the execution on the judgment, which the plaintiff may recover in such suit, shall run against the property only of the defend- ant, or otherwise, as justice may require, on the facts so disclosed and proved ; and all attachable estate or property so disclosed is, from the time of such disclosure, held attached. 2 If the property so disclosed be real estate, the said court, justice or commissioner, as the case may be, shall deliver to the plaintiff a certi- ficate thereof, stating the names of the parties and the amount of the claim in the writ, which the plaintiff shall cause to be filed with the register of deeds for the county or district where the real estate is situated, within five days after the date thereof. If personal property liable to attachment be disclosed, on application of the plaintiff, stating that he is apprehensive that said property may be removed or concealed, so as to render it impracticable to seize the same on execution, the justice, before whom the suit is pending, may issue an order, under his seal, directing any officer authorized to serve processes in such suit, to take such property into his custody and hold the same, as if originally attached. 3 1 R. S. ch. 148, sec. 10. 3 Ib. sees. 12, 13. ! Ib. sec 11. 124 JUSTICE OF THE PEACE. At any time before or after the return day of any such writ or process as is last mentioned, the parties to the suit may, pursuant to any agreement by them made in writing, appear before any justice of the peace and of the quorum, in the county where the suit is pending ; and the defendant shall make the same disclosures and submit to the same examination and proceedings as are above described, when had before a commissioner, and the record of the same shall, before final judgment, be returned to the court or justice before whom the suit is pending, and the like proceedings shall be had by such court or justice, as if the disclosure had taken place before a commissioner, duly appoint- ed for the purpose. 1 If no disclosure and examination be had before final judgment, or if the result of such disclosure and examination be adverse to the defend- ant's right to exemption from arrest, the execution which may issue against him on, final judgment, shall run against his body. 2 If on the disclosure and examination of any debtor, made pursuant to the provisions before mentioned, before final judgment, it appears that the debtor possesses or has in his power, or has, with intent to protect the same from his creditors, assigned, or secreted, or otherwise disposed of, any bank bills, notes, accounts, bonds, or other contracts, or other property not exempted by any statute from attachment, but which cannot be come at to be attached, from its nature or otherwise, such debtor, if under arrest, shall not be released, nor, in any case, shall his person be exempted from arrest on any execution to be issued on the judgment to be recovered in such suit, unless the debtor shall assign and deliver to such person, as the examim'ng magistrates, or court, or commissioners shall appoint, all such property, or so much thereof, as such magistrates, or court, or commissioners may adjudge to be sufficient security for the creditor ; to be held by such person, under the direction of the court er justice, before whom the suit shall be pending, in trust for the parties, in order that the same may be applied as is provided when such property is disclosed on execution. 3 When any person shall be arrested or imprisoned on mesne process, in any civil action, he may be released by giving bond to the plaintiff, as is provided by chapter one hundred and forty-eight, section sixteen, of the Revised Statutes. iR. S. ch. 148, sec. 14. 3 Ib. sec. 16. s Ib.. sec. 15. PROCEEDINGS IN SPECIAL CASES. 125 The justices, who are to approve such bond, are to be selected in the same manner as those who may approve a bond taken on execution ; and in case of disagreement the same proceedings are to be had. 1 2. Of arrest and disclosure after judgment. No persoil can be arrested on any execution, issued on any judgment in any suit, founded on any contract, express or implied, where the debt is less than ten dollars, exclusive of costs, or on any suit founded upon any prior judgment or contract, where the amount of the original debt remain- ing due is less than ten dollars, exclusive of costs ; and the form of the process is to be varied accordingly. 2 In all other cases, except where express provision is by law made to the contrary, executions shall run against the body of the judgment debtor ; and he may be arrested and imprisoned thereon, for the pur- pose of obtaining a discovery of his property, wherewith to satisfy the same, as subsequently stated. 3 Any debtor, arrested or imprisoned on execution, issued on any judgment in a civil suit, may give bond to the creditor in execution, as provided in the twentieth section of chapter one hundred and forty- eight of the Revised Statutes.* The justices who, in case the creditor does not approve in writing the sureties in such bond, may approve the same, are now required to be selected in the same manner as justices, before whom the disclosure is to be made, are selected; and in case of disagreement, the same proceedings are to be had, as in case of disagreement between the .. latter. 5 Any debtor, arrested or imprisoned on mesne process or on execu- tion, in any civil suit, who shall have given bond to the creditor conditioned that he will, within the time mentioned in the bond, cite the creditor before two justices of the peace and of the quorum, and submit himself to examination, and any person, being in prison by force of any execution in a civil suit, may mate application in writing to any justice of the peace of the county, in which he is arrested or imprisoned, claiming to have the privilege and benefit of the oath prescribed by the twenty-eighth section of chapter one hundred and »Act of 1848, ch. 85, sec. 6. 4 Ib. sec. 20. 2 R. S. ch. 148, sec. 18. 6 Acts of 1848, ch. 85, sec. 6. 3 Ib. sec. 19. 126 JUSTICE OF THE PEACE. forty eight of the Revised Statutes ; or, if the debtor be imprisoned, the keeper of the jail shall, if requested by the debtor, make such application in his behalf. 1 The justice is thereupon to appoint a time and place for the examina- tion of the debtor, and to give notice thereof to the creditor, by a citation under his hand and seal, which notification is to be served and returned by any officer who is qualified to serve any civil process between the parties. 2 The notification must be served on the creditor by reading it to him, by leaving an attested copy at his last and usual place of abode, or by giving him in hand an attested copy, fifteen days at least before the time appointed for the examination, if the creditor be alive and within the state ; otherwise it shall be served in like manner on the person who was his attorney in the suit, the executor or administrator of a deceased creditor, or some known authorized agent ; and if no such representa- tive can be found in the State, a copy of the notification shall be left in like time with the clerk of the court or justice of the -peace, from whom the execution issued. 3 If the demand has been assigned by the creditor, or by operation of law, and the debtor has notice of such assignment, it would be prop- er, and probably necessary, to give notice to the assignee.* Where there is more than one creditor, notice to any one, being within the state, is sufficient for all. 5 If the creditor be a corporation aggregate, the notification may be served on any individual upon whom service of any original writ or summons may be made, as mentioned at page 36 of this volume, or upon the attorney of the corporation in the suit ; but the time when snch service is to be made is the same as that required to be made upon an individual creditor." The examination of the debtor is to be had before two disinterested justices of the peace and of the quorum for the county, and the justices have like power to adjourn as is provided in case of disclosur on mesne process. 7 It is the duty of the justices to examine the notification and return, and if they deem the same correct, (their decision upon this question iR.. S. ch. 148, sec. 21. *R- S. ch. 148, sec. 58. 2 Ib. see. 22. 'lb- sec. 55. »Ib. sec. 23. 7 Ib. sec. 24. *22 Maine, 400. PROCEEDINGS IN SPECIAL CASES. 127 being conclusive, ) they are to examine the debtor on his oath, concern- ing his estate and effects, and the disposal thereof, and his ability to pay the debt for -which he is committed ; and they shall also hear any other legal and pertinent evidence, that may be adduced by the debtor or creditor. 1 The creditor may propose to the debtor any interrogatories pertinent to the inquiry, and they shall, if required by the creditor, be proposed and answered in writing, and the answers shall be signed and sworn to by the debtor ; and the creditor may have a copy of the interrogatories and answers, certified by the justices, on paying therefor the same fees as for a deposition of the same length. 2 If, upon such examination, and the hearing of such evidence, the justices shall be satisfied that the disclosure is true, and shall not discover any thing thereby inconsistent with his taking the oath set forth below, they may proceed, after due caution to him, to administer the same. 3 It will be observed, that the oath required to be taken covers very broad ground, comprising not only property at the time belonging to the debtor, but any property disposed of, since the contracting of the debt, with intent to defraud any of the creditors of the debtor ; so that if the debtor has conveyed property, even for the purpose of defraud- ing creditors other than the creditor in the execution upon which he is disclosing, he cannot be permitted to take the oath. 4 The oath to be administered is as follows : " I, , do solemnly swear," (or "affirm," as the case may be,) "that I have not any estate, real or personal, in possession, reversion or remainder, except the goods and estate expressly exempted by statute from attachment and execution, and whatever property I have now disclosed ; and that I have not since the commencement of this suit, or the time when the debt, or cause of action, or any part thereof, on which this suit was brought, was contracted by me, directly or indirectly, sold, loaned, leased, or otherwise disposed of, or conveyed or entrusted to any person or per- sons, whomsoever, all or any part of the estate, real or personal, whereof I have been the lawful owner or possessor, with any intent or design to secure the same, or to receive or expect any profit, advan- *R. S. ch. 148, sec. 25—27 Maine, 153. 3 Ib. sees. 27, 31. Hb. sec. 26. 4 24 Maine, 509. 128 JUSTICE OF THE PEACE. tage or benefit therefrom, to myself or others, with an intent or design to defraud any of my creditors. So help me God ; " (or, " this I do under the pains and penalties of perjury," if the debtor affirms.) 1 If from the disclosure of the debtor, it appear that he possesses, or has under his control any bank bills, notes, accounts, bonds, or other contracts, or any property not exempted expressly by statute from attachment, but which cannot be come at to be attached, and if the cred- itor and debtor cannot agree to apply the same in part or in full dis- charge of the debt, the justices shall appraise and set-off such property, or enough of the same to satisfy the amount of the debt, costs and charges ; and the creditor or his attorney, if present, shall have the right to select the property to be so appraised. If the creditor will accept the same, it may thereupon be assigned and delivered by the debtor to the creditor, and applied in satisfaction of his demand, in whole or in part, as the case may be. If any particular article of property thus appraised and set-off, and necessary and convenient to be applied in satisfaction of the execution, should exceed the amount or balance due thereon, and not be divisible in its nature, the creditor shall have a right to take the same, on advancing to the debtor the overplus, or securing the same to the satisfaction of the justices. 2 If the creditor be absent, or shall not then conclude to accept the same, the debtor shall deposit with the justices an assignment in wri- ting to the creditor, of all the property thus appraised and set-off ; and the justices shall make a record of such proceedings, and cause the property so disclosed to be safely kept and secured for the term of thirty days thereafterwards, to be delivered to the creditor, with the assignment aforesaid, on his demanding the same within that time. If not so demanded, they shall be returned to the debtor. 3 The justices are not authorized to make out a certificate of dis- charge, until such property, so disclosed, has been disposed of or secur- ed ; nor is the creditor required to request that such disposal be made, or to accept an assignment other than according to the statute.* After a dmini stering the oath to the debtor, and after the proper- ty disclosed, as just mentioned, shall have been duly secured, the justices shall make out and deliver to the debtor, a certificate under their hands and seals in the form following : 6 »R. S. ch. 148, sec. 28. 4 27 Maine, 97. 2 Ib. sec. 29— Acts of 1848, ch. 85, sec. 5. 6 R. S. ch. 148, sec. 31. 3 R. S. ch. 148, sec. 30. PROCEEDINGS IN SPECIAL CASES. 129 " STATE OF MAINE. , SS. To the sheriff of the county of , or his deputy, and to the keeper of the jail at ," (or, " to any coroner," or " con- stable, " as the case may require.) rnace on ' ' We, .the subscribers, two disinterested justices of the peace ace' on and of the quorum, in and for said county of , hereby L seal. J certify that , a poor debtor, arrested on a certain execu- tion issued by" (here insert the name and style of the court, or of the justice of the peace, and the amount of the judgment, and date of the judgment and execution,) " and committed to the jail at afore- said," (or "enlarged on giving bonds to the creditor," as the case maybe,) " hath caused , the creditor, to be notified according to law, of his the said debtor's desire of taking the benefit of the one hundred and forty-eighth chapter of the Eevised Statutes of this State, entitled, " of the relief of poor debtors," that in our opinion he is clearly entitled to have the oath, prescribed in the twenty-eighth section of said chapter, administered by us, and that we have, after due caution to him, administered said oath to him. Witness our hands and seals, this day of ; in the year 18 — . , ) Justices of the peace — , \ and of the quorum. Whenever any debtor in execution shall disclose before two justices of the peace and of the quorum any real estate liable to be levied upon by virtue of such execution, the justices are required to give the cred- itor a certificate thereof, stating therein the names of the parties, and the amount of the execution ; and the creditor shall have a hen on such real estate for thirty days thereafter ; provided he shall file said certi- ficate as is provided in case of disclosure of real estate on mesne pro- cess, as before stated. 1 If the debtor shall disclose any personal estate, liable to be levied upon by said execution, the creditor shall also have a hen thereon, or so much thereof, as the justices in their record shall judge to be neces- sary, for the term of thirty clays ; and if the debtor shall transfer, conceal, or otherwise dispose of the personal property, so disclosed or iR. S. ch. 148, sec. 33. 17 130 JUSTICE OF THE PEACE. designated, within the thirty days, or suffer the same to be done, or if he shall refuse to surrender the same on the demand of any proper officer, having an execution on the same judgment, the debtor shall receive no benefit from the certificate of the justices, and is also subject to other penalties. 1 If, on the examination of a judgment debtor, ■who has given bond on mesne process, such debtor shall not entitle himself, in the opinion of the justices, to the benefit of the poor, debtor's oath, and if it appear that said debtor, at the time of such examination, has any real or per- sonal estate liable to attachment or levy under execution, or that he has property such as has been before described as property •which cannot be come at to be attached, the said debtor shall by the justices be permitted to go at large, upon the bond given at the time of his arrest, during the thirty days in which the creditor's lien shall exist on the property disclosed ; and during that term the creditor may arrest the debtor on execution, or enforce his lien on the property disclosed. 2 The bond taken by an officer should be returned with the execution ; and the creditor is entitled to receive it, on filing a copy with the jus- tice. 3 No debtor is to be precluded from taking any oath, under the act for the relief of poor debtors, on account of his having been convicted of any crime, or being otherwise disqualified to testify as a witness in judicial proceedings ; and nothing contained in said act, except in case of fraudulent disclosure, or fraudulent concealment of property dis- closed, can prevent any debtor, who shall fail to obtain his discharge, from obtaining a certificate for that reason, at a future examination for the same debt.* If any debtor fail in his application for a discharge from arrest or imprisonment, the creditor recovers his costs, to be taxed as in actions before a justice of the peace ; and the justices shall award the same, and issue execution accordingly. 5 3. General provisions, applicable to certain specified cases of arrest and imprisonment. Any person arrested or imprisoned by virtue of any warrant for the collection of any public tax shall be 3R. S. ch. 148, sec. 34. *Ib. sec. 40. 2 Ib. sec. 36. 5 Ib. sec. 41. 3 Ib.sec.38. PROCEEDINGS IN SPECIAL CASES. 131 entitled to the privileges of the act for the relief of jx>or debtors, and subject to the obligations of the same in all respects, as if arrested or committed on execution for debt, and for all the purposes of notice and other proceedings relating to the discharge from arrest or imprison- ment of the person taxed, the assessors of the town, plantation or parish, by whom such warrant was issued, shall be regarded as the creditors. 1 In such case, the oath is to be varied by substituting for the words " commencement of the suit," or " the time when the debt or cause of action, or any part thereof, on which this suit was brought, was contracted by me," the following, " assessment of the tax for which I have been arrested," and for the words, "any of my creditors," the following, " any town, plantation or parish." And the certificate of discharge is also to be changed by substituting the words, "a warrant for taxes," for "execution," and "assessors" for " creditors." 2 Whenever any constable, collector, or deputy sheriff shall be arrest- ed, or committed to jail, for default, on account of any taxes committed to him to collect, such constable, collector, or deputy sheriff, is subject to the provisions of the poor debtor act, and has the privileges thereof, and in all proceedings under said act, in such case, the assessors of the town, plantation or parish, assessing such taxes, are to be deemed the creditors, and corresponding verbal alterations are to be made in the oath and certificate aforesaid. 3 Whenever, in pursuance of law, in the trial of any action of trespass upon property, any court, or jury, or justice, shall have determined that such trespass was committed wilfully, and the court or justice shall have made a record of the fact, and the same shall have been noted on the margin of any execution on such judgment, and the judg- ment debtor shall be arrested thereon, he shall be committed to prison, and shall not be entitled to give any of the bonds, provided in the poor debtor act, for the liberation of his person ; and if, in such case, such person shall apply to take the oath prescribed by said act, it is forbid- den to issue notice to the creditor, until at least thirty days after the commitment of the debtor.* »R. S. ch. 148, see. 50. s Ib. sec. 53. ! Ib. sees. 51, 52. *Ib. sec. 54. 132 JUSTICE OF THE PEACE. Any creditor may discharge his debtor from arrest or imprisonment on execution by giving to the officer making the arrest, or by leaving with the keeper of the prison, a written permission for the debtor to go at large, and the body of the debtor shall ever thereafter be exemp- ted from arrest or imprisonment on the same debt ; and the officer having the debtor in custody is required, at any time after such release, or at any time after his release in any of the modes provided by the poor debtor law, to indorse upon the execution a certificate of the fact and the cause thereof. 1 The execution is, in such case, to be enforced in the same manner as if it no longer run against the body, and when renewed, is to be altered accordingly. And whether such indorsement is made, or not, the judgment may be enforced as a judgment against the goods and estate only. 2 The judge of any municipal or police court, within his county, has the same powers, and is made subject to the like duties and obligations, under the act for the relief of poor debtors, as any justice of the peace and quorum in the same county. 3 4. Proceedings in suit on bonds. The Revised Statutes provide, that if the debtor fail to fulfil the condition of his bond, judgment in any suit upon it shall be rendered for the amount of the execution and costs, and fees of service, with interest on the same, against all the obligors ; and that a special judgment shall also be rendered against the principal debtor for a further sum equal to the interest on the same, at the rate of twenty per cent, by the year, after the breach of the bond. 4 A subsequent statute provides, that in all actions commenced in the superior courts, if it shall appear, that prior to a breach of any of the conditions of such bond, the principal therein had been allowed by two justices of the peace and of the quorum, to take, and had taken before such justices, the oath prescribed in the poor debtor act, the damage shall be assessed by the jury, if such be the request of either party ; but if no such request be made, then by the court ; and that the amount assessed shall be the real and actual damage and no more ; and that any legal evidence upon that point may be introduced by either party. 6 iR. S. ch. 148, sees. S9, 60, 61. 4 Ib. sec. 39. 2 Ib. sees. 60, 61. s Acts of 1848, ch. 85, sec* 2. a Ib. sec. 62. PROCEEDINGS IN SPECIAL CASES. 133 The new judgment operates, in such case, to discharge, pro tanto, the execution, or warrant. 1 If the verdict or judgment be, that the creditor has sustained no damage, no costs are to be allowed to either party. 2 The same statute provides, that "in all such actions commenced before a justice of the peace, or municipal judge, or town judge, the amount which the plaintiff may recover shall be the real and actual damage, which has been sustained by breach of the conditions of the bond and no more." 3 If the bond is broken by reason of the irregular organization of the court, it has been decided that, under the second section of the act just referred to, providing no damage has been occasioned to the creditor, the action on the bond must fail ; and that the breach of the bond is no damage, if the debtor had no attachable property.* 5. Disclosure of debtors to the State. Any person committed to jail on any execution, warrant of distress, or any other final civil pro- cess, for a debt, penalty, or costs due to the State, may, by application to the jailer having him in custody, avail himself of the provisions of law for the benefit of poor debtors. 6 Upon such application, it is the duty of the jailor to apply in writing to a justice of the peace in behalf of the debtor, and the justice is required to issue a notification, directed to the county attorney for the county for which the commitment is made. The notification is to be served and returned, and like proceedings thereupon are to be had, as in cases where notice is served on individual creditors or their attor- nies. 6 The justices are to make the oath and certificate conform to the case. 7 6. Disclosures under the bastardy act. When a person, who has been adjudged to be the father of a bastard child, shall have remained ninety days in jail, without being able to comply with the order of court, he may be liberated by taking the poor debtor's oath, in the same manner as persons may who are committed on execution. The notification, in such case, must be served on the complainant, if living, »Acta of 1848, ch. 85, sec. 3. *R. S. ch. 148, sec. 70. a Ib. «Ib. 3 Ib. sec. 4. 7 Ib. sec. 72. 4 30 Maine, 457. 134 JUSTICE OF THE PEACE. and also on the clerk of the town where the child, of which the debtor has been adjudged the father, has its legal settlement, if in this State. 1 VII. PROCEEDINGS IN CASES OF INSANE PERSONS, &C. It is made the duty of parents to send their insane children, and guardians their insane wards, being minors, to the insane hospital, with- in thirty days after the attack of insanity, if they are able to pay for supporting them there ; but no parent, guardian, or friend, is debarred from committing such insane person to any other hospital for the insane, if so committed within thirty days of the attack of insanity. 2 All insane persons not sent to the hospital by parents or guardians as above stated, are made subjects of legal examination. The mayor and aldermen of cities, and the selectmen of towns are, in their several cities and towns, made a board of examiners, whose duty, upon complaint in writing of any relative of such insane person, or of a justice of the peace or quorum in the town where such insane person or persons reside, is to inquire into the condition of every insane person in their cities and towns and adjacent plantations, so soon as the existence of such case shall come to their knowledge ; and they are authorized and required to call before them such testimony as shall be necessary to a full understanding of the case ; and if it appear to them that the person is insane, and they shall be of opinion that the comfort and safety of the patient or others interested will be promoted by a residence in the insane hospital, it shall be their duty to send such person forthwith to that institution, accompanied with a certificate stating the fact of insanity, and alno the city or town in which the patient resided, was commorant or found, at the time of arrest and examination, ordering the superintendent to receive and detain him in his care, until he shall become of sound mind, or be otherwise discharg- ed by order of law, or by the superintendent or trustees. And it is the duty of the superintendent to receive all patients legally sent to the hospital, unless the number exceed the accommodation provided by the State. 3 In all cases decided by the mayor and aldermen or selectmen as aforesaid, the right of appeal is allowed to any corporation or individ- »R. S. ch. 131, sec. 12. »Ib.sec. 8. a Acts<£ 1847, ch, 33, sec. 7. PROCEEDINGS IN SPECIAL CASES. 135 ual who may deem themselves or the patient injured by the decision of the mayor and aldermen or selectmen, whether the same shall have been for or against the fact of insanity, or committal. The person or persons elaiming such appeal must make application therefor in writing to the mayor and aldermen, or selectmen, as the case may be, within five days from the time when the decision is made known, stating their wishes, and naming a justice of the peace and of the quorum on their part, residing in the same city or town, or one adjoining, to sit and hear the appeal, specifying the time and place for the hearing, which place shall be in the same city or town in which the insane person resides, or one adjoining, and the time within three days of that of making the request ; and the appellant shall notify and procure the attendance of said justice, if in his power, and if not, another shall be substituted in his place. The mayor and aldermen, or selectmen, shall select another justice of the peace and of the quorum to sit with that selected by the appel- lant, and they two have power to call before them such testimony as they may deem proper, and to hear and determine all matters brought before them touching the premises ; and if they shall find the person insane, they shall say so ; and if they are of opinion that he will be more comfortable or safe to himself or others, they are to give an order under their hands for his conveyance to, and detention in the insane hospital, until he shall become of sound mind, or be otherwise legally discharged. It shall be certified in such order that the person named in it is insane, and also in what city or town such person was residing, com- morant, or found at the time of arrest and examination. 1 If the mayor and aldermen of any city, or selectmen of any town, shall refuse or neglect to examine and decide on any case of insanity, existing in their respective towns or cities, complaint may be made by any relative of such insane person, or by any other respectable person, to two justices of the peace, one of which shall be of the quorum, and said justices shall, as soon as may be, sit in some place within said city or town, or one adjoining, and hear and decide on the case ; and they are empowered and required to call before them such testimony as they shall deem proper, and they are to inquire into and determine, •Acta of 1847, ch. 33, sec. 9— Acts 1848, ch. 79. 136 JUSTICE OF THE PEACE. both as to the insanity, as well as all other matters touching the case — and if they find the person insane, they shall so decide ; and if in their opinion, the patient would be rendered more comfortable and safe to himself and others, by a residence in the hospital, they shall, by an order under their hands, send him to the hospital, and they shall certify the fact of insanity, and also in what city or town he resided, was commorant, or found, at the time of the arrest and examination, and direct detention of the patient in the insane hospital until he shall become of sound mind, or be legally discharged. 1 All commitments'made to the insane hospital by the judges of courts, by the mayor and aldermen or selectmen, or by justices, in conformity with any law of the State, must be accompanied by a certificate re- specting residence as above, at the time of the original arrest, which certificate shall also state whether the patient was ordered to the hospi- tal on the first or any subsequent process ; and such certificate is made sufficient evidence to render such city or town liable for the expense of committing to, and supporting in the insane hospital such insane person, in the first instance. 2 When the friends of the patient or others shall have filed the neces- sary bond with the treasurer of the hospital, and the patient or his friends are no longer able to support him, new action may be had in the case, in the same manner, and before the same tribunal, as if he had never been admitted to the hospital, with a view to make cities or towns liable to his support ; and no city or town is so liable, unless such new action is had. 8 When any insane person shall have been in the insane hospital six months, any friend or person liable for his support, or any city or town supporting such patient, if they consider him unreasonably detained, may apply to two justices of the peace and quorum, whose duty it shall be to inquire into the case, and to summon before them, in the town of Augusta, such testimony as they may deem proper ; and their decis- ion and order shall be binding upon the parties. The justices shall tax the legal costs, and determine who shall pay them. Such appli- cation, or appeal, if unsuccessful, shall not be again resorted to, until the expiration of another six months.* i Acts of 1847, ch. 33, sec. 10. 3 Ib. 2 Ib.sec. 11. 4 Ib. sec. 12. 'PROCEEDINGS IN SPECIAL CASES. 137 No insane person shall be committed to, or remain in any jail or house of correction in this State, by the provisions of any law of the State, for a longer time than may be necessary to make provision for him in the insane hospital. 1 When any person shall be charged with a criminal offence, any judge of the court before whom he is to be tried, on notice that a plea of insanity will be made, or when such plea is made in court, may, if he deems proper, order such person into the custody of the superin- tendent of the insane hospital, to be by him detained and observed, until the further order of court, in order that the truth or falsehood of the plea may be ascertained. 2 The mayor and aldermen of cities, selectmen of towns, and justices of the peace, sitting, and deciding any of the cases before mentioned, are required to keep a record of their proceedings, and to furnish a copy to any person interested, who may call and pay for the same. 3 The justices deciding an appeal, are entitled to receive for their services two dollars a day, and ten cents a mile for travel, and they are to determine which party shall pay the same. And in all cases in which justices have original jurisdiction, they shall charge the same fees as they would by law be entitled to charge in a criminal examina- tion, to be paid by the city, or town, or persons liable in the first instance to pay for committing to and support in the hospital. 4 Whenever the justices above mentioned order a commitment to the insane hospital, it is made the duty of the mayor and aldermen of the city, or the selectmen of the town in which the insane person resides, or of such other person as the justices may direct, to cause said order to be complied with forthwith, at the expense of said city or town. And said justices shall decide the amount of the expense of said com- mitment, and certify the same, after the service has been performed. 8 When any person, indicted for any crime, and acquitted by reason of insanity, or any person who has been arrested by legal process to answer for any crime or offence, against whom the grand jury has omitted to find an indictment for the same reason, has been committed by the court to prison, or the insane hospital, any justice of the su- 1 Acts of 1847, ch. 33, sec. 14. 4 Ib. s Ib. sec. 15. sib. sec. 18. 3 Ib. sec. 17. 18 188 JUSTICE OF THE PEACE. preme court, or district court, or any two justices of the peace and of the quorum, -within and for the county where such person is kept, may discharge him from confinement, on'satisfactory proof, that his going at large will not be dangerous to the safety of the citizens and peace of the State. 1 Upon application of any friend of such insane person, to any justice of either of said courts, or to two justices of the peace and of the quo- rum within and for the county in which such person is confined, he or they may commit such person to the custody of such friend, such applicant first giving bond, with sufficient sureties, to the judge of probate for said county, conditioned for his safe keeping and for the payment of all damages, which any person may sustain by reason of the acts of such insane person ; such bond to be approved by the justi- ces of the court, or by said two justices. 8 Any justice of either of said courts, or any two justices of the peace and quorum within such county, may, on application in writing of the overseers of the poor of the town chargeable with the maintenance of such insane person, order him to be delivered to Buch overseers, if it shall appear that such town has provided a safe and convenient place for keeping him. 3 If the mayor and aldermen of any city, or the selectmen of any town, shall refuse or neglect to inquire and decide within three days after notice, as provided in the eighth section of the act of eighteen hundred and forty seven, on any case of insanity which may exist in their respective cities or towns, or if the justices to whom any appeal shall be made, shall not decide upon such appeal within three days from the time appointed for the hearing thereon, then, in either case, complaint may be made to two justices, and proceedings thereon shall be had as provided in the tenth section of said act. 4 The authority given by said act to the judge of any court to order any person charged with a criminal offence, and alleged to be insane, into the custody of the superintendent of the insane hospital, may be exercised in case of any such person, who is committed to jail by any justice of the peace, or judge of a municipal or police court, on such a charge, as well as in case of any such person, who is committed to »R. S. ch. 173, sec. 3. '!}>■ sec ;?- a , _„ "Ib.sec. 4. • *Actsofl848, oh. 79. PROCEEDINGS IN SPECIAL CASES. 139 answer to an indictment found ; and such authority may be exercised in vacation, or in term time, at the discretion of the court. 1 All the provisions mentioned in this division apply as well to idiots, persons non compos, and persons lunatic or distracted, as to insane persons. 2 IX. PROCEEDINGS ON COMPLAINTS FOE BASTARDY. When any woman, being pregnant with a child which, if born alive, may be a bastard, or who has been delivered of a bastard child, shall accuse any man of being the father thereof, before any justice of the peace, and request a prosecution against the person accused, such jus- tice shall take her examination, on oath, respecting the person accused and the time and place, as correctly as either can be described, when and where the child was begotten, and all such other circumstances, as he may deem useful in the discovery of the truth. 3 Such justice may issue his warrant for the apprehension of such person, directed to the sheriff of any county, in which the person ac- cused is supposed to reside, accompanied by such accusation and exam- ination.* When such person is brought before such justice, or any other justice, he may require him to give bond, with sufficient sureties, in such reasonable sum as he shall order, to the complainant, conditioned for his appearance at the next district court to be held in the county in which the complainant resides, and for abiding the order of court thereon. 5 If the person accused refuse or neglect to give such bond, the jus- tice is required to commit him to the jail of the county of such justice, until bond is given. 6 The complaint, it will be observed, may be made to any justice of any county, but the trial in the district court is to be had in the county where the complainant resides. It was not necessary under the statute of eighteen hundred and twenty one, in which the language of the Eevised Statutes is substan- tially employed, that the complainant should allege, in her complaint •Acts 1848, ch. 79. 4 Ib. sec 2. 2 R. S. ch. 1, sec. 3. Hb. sec. 3. 3 R. S. ch. 131, sec. 1. «Ib. sec. 4. 1*0 JUSTICE OF THE PEACE. before the magistrate, that the accused she putative father during her travail. 1 If the complainant be under the age of twenty one years, she need not act by guardian. 2 If the mother marry before prosecution, the husband should join in the complaint. 3 The statute of limitations is no bar to a prosecution under the bas- tardy act. 4 The form of complaint may be as follows, though it is not necessary that the accusation and examination be separate instruments : 5 " To any justice of the peace for the county of C. Complains A. B. of, &c, and shows that she has been delivered of a bastard child, [or is pregnant with a child, which, if born alive, may be a bastard,] and desires to institute a prosecution against C. D. whom she accuses of being the father of said child." To this follows the examination to be annexed to the complaint, as follows : "The voluntary examination and accusation of A. B. &c, taken on oath before me, E. F. a justice, &c, who saith that she has been delivered, &c. [or is pregnant, &c] and accuses C. D. of, &c. of being the father of said child, and that he did beget her with child in P., in the county of C, on or about the day of at, &c. to wit : [here insert such circumstances as the justice shall think necessary for the discovery of the truth of the accusation] and prays that a warrant may issue against the said C. D., and that he may beheld to answer this accusation,- and further dealt with thereon according to law. A.B. Taken, signed and sworn to this day of A. D. 185 Before me; E. F. just, peace." Form of a warrant, which may be directed to the sheriff of any county in which the person accused is supposed to reside : B " STATE OF MAINE. Cumberland, ss. [x. s.] To the sheriff of the county of Whereas A. B. of, &c. by her accusation and examination hath ^G^.460 M8Maine,304. iSZltl 2 - « R . S .ch. 1 31 J sec.2. PROCEEDINGS IN SPECIAL CASES. 141 declared," &c. [setting forth the accusation] "and hath prayed process against the said C. D. You are hereby required forthwith to apprehend the said C. D. [if in your precinct] and to bring him before E. F. Esq., a justice, &c. to appear and answer to the said accusation, and to do such other matters and things as he may be by law required. Given under my hand and seal," &c. If the justice shall order the party accused to find sureties, the bond may be of the form following : " Know all men by these presents, that we, C. D. of, &c. as principal, and G. H. and J. S. of, &c. as sureties, are indebted to A. B. of, &c. in the just sum of to the payment of which we hereby bind ourselves, our executors and administrators. Witness our hands and seals. Dated, &c. The condition of this obligation is such, that whereas the said A. B. hath, on her examination taken before E. F. Esq. a justice, &c. on the day, &c. accused the said C. D. of being the father of a bastard child of which she hath been delivered [or "of a child of which she is pregnant and which if born alive," &c] "and the said justice hath issued a warrant against the said C. D. to answer to said accusation, and the said C. D. hath appeared and answered to the same, and the said justice hath required him, the said C. D., to give bond with sufficient sureties to appear and answer to said complaint at the next district court, to be holden, &c. and to abide the order of court thereon : Now if said C. D. shall appear and answer to said complaint at said term of court, and shall abide the order of court thereon, then this obligation shall be void : otherwise," &c. Form of the mittimus for commitment : "STATE OP MAINE. Cumberland, ss. [l. s.] To the keeper of the jail in said county. Whereas A. B. of , hath, on her examination taken, &c. accus- ed C. D. of , of being the father, &c, and a warrant hath been issued by me against the said C. D. to answer to the said accusation, and the said C. D. hath appeared and answered to the same, and hath been required to give bond with sufficient sureties, &c. and hath not yet given such bond : 142 JUSTICE OF THE PEACE. You are hereby required to receive said C. D. into your custody in said jail, and him there safely to keep until he shall give such bond, or be otherwise discharged by due order of law. Given under my hand and seal," &c. The accusation and examination must accompany the warrant. 1 X. PROCEEDINGS IN PENAL ACTIONS. The law attaches to the committing or omission of many acts, not in themselves morally wrong, a forfeiture, for the public good. These offences, where the remedy to be applied is the action of debt, and the forfeiture does not exceed twenty dollars, come properly within the civil jurisdiction of justices of the peace. 2 The various acts which are the subject of forfeitures must be sought in the statutes of the State. The limits of this book will not permit their enumeration here. Generally, the remedy in each particular ease is pointed out by the statute creating the offence, whether by action of debt, complaint, or indictment ; and also the person or body, in whose name the proceed- ings are to be had, as well as the person, &c, to whose use the amount recovered is to be applied. All penalties may be recovered by action of debt where no other form of- action or proceeding is prescribed in the statute, inposingsuch penalties. 3 All fines and forfeitures, imposed as a punishment for any offence, or for a violation or neglect of any duty imposed by statute, where no other appropriation thereof is expressly made by law, shall accrue to the State ; and all such given or limited by law, in whole or part to the use of the State, may be recovered by indictment in the district court, when no other mode is expressly provided. 4 Another general rule in these cases is, that the action can be brought in the name of no person or corporation, unless such person or corpo- ration is by some statute provision expressly or by implication author- ized to sue for the same. 5 It seems, that where a penalty is given wholly to one or more per- JR. S. ch. 131 , sec. 2. 4 R- S. eh. 162, sees. 13, 14. 2R S. ch. 116, sec. 1. '1 Met. 232. 3fi. S. ch. 115, sec. 21. PROCEEDINGS IN SPECIAL CASES. 143 sons, such person or persons -will be considered to be, by implication, authorized to sue for it in his or their own name. 1 When any forfeiture is recoverable in any civil action, the same must be brought in the county in which the offence was committed, unless a different provision is made in the statute imposing the same ; and if on trial, it does not appear, that it was committed in the county where the action is brought, the verdict is to be for the defendant." U Met. 334 >R. S. cfi. 114, sec. 14 CHAPTER XIII. OF MISCELLANEOUS PROCEEDINGS. I. DEPOSITIONS. 1. Repositions in causes pending. Depositions may be taken to be used in all civil suits or causes, petitions for partition of land, libels for divorce, prosecutions for the maintenance of bastard children, petitions for review, and in trials before arbitrators, referees and county commissioners, in cases of libel for forfeited goods, in prosecutions before courts martial, and in cases of contested elections. 1 Any justice of the peace, and any notary public, may take deposi- tions, to be used in any pending cause, he not being interested in such cause, nor being, nor having been, counsel or attorney in the same. 2 No suit, petition, libel, or prosecution, is considered as pending, till the writ, petition, libel or other process, shall have been duly served upon the respondent, or such notice, as is required by law, or ordered by the court, shall have been duly given ; and no deposition can be used in the trial of any such cause, unless the notice required by law shall have been duly given to the adverse party. 3 Depositions to be used in pending actions may be taken for either of the following causes : 1. When the deponent is so aged, infirm, or sick, as not be able to attend court, or at other place of trial ; 2. When the deponent resides out of, or is absent from the State ; 3. When the deponent shall be bound to sea on a voyage, or is about to go out of the State by sea or land, before the session of the court, where the deposition is to be used, and not expected to return in season to attend the trial ; 4. When the deponent lives more than thirty miles from the place of trial, or when he resides in any city, town or place other than that iR. S. ch. 132, sec. 12— lb. ch. 16, sec. 119— S H>- see. 2. lb, ch. 133, sees. 1, 24. a It>. see. 3. MISCELLANEOUS PROCEEDINGS. 145 in lyhich the trial is had, provided, in the latter case, the deposition shall not be used, nor the cost of taking taxed, if a party objecting to its use summon the deponent to appear at the trial, and he be present so that his testimony can be taken orally. 1 5. When the deponent is confined in prison, and such imprisonment shall be continued, until after trial of the cause. 2 6. As to " allegations additional" made by a party claiming, under an assignment, property attached in trustee process. 3 On application of either party to a justice of the peace, or notary public, for the purpose of procuring the deposition of a -witness, such justice or notary may issue a summons to the deponent to appear before him at a designated place and time, to give his deposition ; and also issue notice to the adverse party, to be present at such time and place, if he should see fit ; or such notice to the adverse party may be made returnable before any other justice or notary. 4 The notification to the adverse party must be served on him or his attorney, by reading the same to him in his presence and hearing, or by giving to him, or leaving at his last and usual place of abode, an attested copy thereof; and the service may be made by a sworn officer, or by any other person, and proved by his affidavit. 5 No person is, for the above purpose, to be considered the attorney of another, unless he has indorsed the writ, or indorsed his name on the summons left with the defendant, or appeared for his principal in the cause, or given notice in writing that he is attorney of such adverse party. 6 When there are several persons, plaintiffs or defendants, a notice served on either of them shall be sufficient. 7 The justice or notary may give verbal notice to the adverse party. 8 No written notice (and probably no verbal notice) is valid, unless the adverse party be allowed between the service of the notice and the time appointed for taking the deposition, time for him to travel from his usual place of abode to the place of caption, not less than at the rate of one day for every twenty miles travel, exclusive of Sunday. 9 'Acts of 1849, ch. 123. s Ib. sec. 6. S R. S. ch. 133, sec. 4— Acts of 1842, ch. «Ib. sec. 7. 31, see. 16. 7 Ib. sec. 8. 3 R. S. ch. 119, sec. 40. 8 Ib. sec. 10. 4 Acts of 1849, ch, 119— R. S. ch. 133, "lb. sec. 9— Actsof 1842,ch. 81, sec.17. sec. 5. 19 146 JUSTICE OF THE PEACE. Whether a notice of less than one day is sufficient, where the distance from the place of caption to the residence of the adverse party is less than twenty miles, may be considered an open question. The impres- sion among the members of the legal profession, so far as we are acquainted with it, is that such a notice is sufficient. The notice to the adverse party, if in the State, must be, in sub- stance, as follows : " , ss. To , of , in the county of . Greeting : Whereas A. B. of , has requested, that the deposition of- may be taken to be used in an action of pending between you and the said A. B., and the of in , and the day of , at of the clock in noon, are the time and place appointed, for said deponent to testify what he knows relating to said action ; you are hereby notified that you may be present and put such questions, as you may think fit. Dated this day of 18 . » Justice of the Peace." 1 The justice of the Peace or notary public, when requested, is also to issue a summons to the deponent, in substance as follows : " , ss. To C. D. of , in the county of . Greeting : Whereas A. B. of , in the county of , has requested me to take your deposition, to be used in an action, now pending between him and E. F. of — — , ihShe county of , and the of in the town of , and the day of , at of the clock j n the noon, are the time and place, appointed to take the same deposition ; you are therefore required, in the name of the State of Maine, then and there to appear, to testify what you know, relating to said action. Dated this day of in the year Justice of the peace." This summons may be served, and the service of it proved, as described in the case of the notification to the adverse party. 2 Witnesses may be compelled to attend and give their depositions, in like manner, and under the same penalties, as when summoned to >R. S. ch. 133, sec. 11. *B>- sec - 12 - MISCELLANEOUS PROCEEDINGS. 147 attend as -witnesses in court, without regard to the distance of their place of abode from the place of caption ; but no witness can be com- pelled to travel, for the purpose of giving his deposition, more than thirty miles. 1 The mode of proceeding to compel the attendance of witnesses may- be found at page sixty nine of this volume. The deponent being in attendance, must be first sworn, or affirmed, to testify the truth, the whole truth, and nothing but the truth, relating to the cause or matter for which the deposition is to be taken ; and he is then to be examined, first by the party producing him, on verbal or ■written interrogatories, and then by the adverse party, and by the justice, or the parties, afterwards, if they see cause. 2 The deposition is to be written by the justice or notary, or by the deponent, or by some disinterested person in the presence and under the direction of the justice or notary ; and after it has been carefully read to, or by the deponent, it shall then be subscribed by him. 3 The interrogatories to the deponent may be written by the party or his attorney, being no part of the "deposition." 4 The justice or notary, the deposition being completed, makes out his certificate, and annexes it to the deposition. He should carefully state in such certificate the following facts : 1. That the deponent was sworn according to law, and when ; 2. By whom the deposition was written ; 3. If it was written by the deponent, or some disinterested person, he must name him, and that he wrote it in the presence and under the direction of the justice or notary ; 4. "Whether the adverse party was notified to attend ; 5. Whether he attended, or not ; 6. The cause in which the deposition is to be used, and the names of the parties thereto, the meaning of " cause" being rather the name of the action, than the kind or nature of the particular action ; 5 7. The court or tribunal in which such cause is to be tried ; 8. The place and time of trial ; 9.- The cause of taking the deposition. 6 »R. S. eh. 133, aec.13. 4 25 Maine, 243. Hb. sees. 15, 38. *28 Maine, 22. 3 Ib. sec. 16. 6R, s. C h. 133, sec. 17. •^S JUSTICE OF THE PEACE. The form of certificate may be as follows : ss 185—. The aforesaid deponent was first sworn according to law, on the day of 185 — to the aforesaid deposition, by him subscribed this day ; the same was written by , in my presence, and under my direction ; the adverse party was notified to attend and did attend. This deposition is to be used in an action, in which the said is plaintiff and the said , defendant, now pending in the court, within and for said county of , and there to be heard and tried on the day of , A. D. 185— ; and the said deponent [here state the reason] is the cause of taking the same deposition. Justice of the peace. Justice' s fees — Deposition - - 20 Writing two pages - 24 Travel, 50 Officer's " Service of notifications Deponent's" Travel two miles - - 16 Attendance one day - 50 The deposition must be delivered by the justice to the court or referee, before whom the cause is to be tried, or be enclosed and sealed up by him, and directed to such court or referees, to be kept sealed, till opened by their order. 1 The direction may be thus : ' ' To the hon. the district court for the district, (or the Supreme Judicial Court) next to be holdcn, &c, (or to J. M. &c, referees,.) the deposition of E. F. to be used in an action now pending, &c, taken and sealed up by me the day of A. D. 185 — . Justice of the peace." Objections to the competency of a deponent, or to the propriety of any questions proposed to him, or answers given by him, will, of course, be written down by the magistrate at the request ff any party. 2. Depositions in perpetuam. When any person wishes to per- petuate the testimony of any witness, to be used in the trial of any cause pending, or afterwards commenced, he may make a statement in writing, under oath, briefly setting forth; in substance, his title, inter- est, or claim in, or to the subject, to which the desired testimony iR. 8. ch. 133, sec. 18. MISCELLANEOUS PROCEEDINGS. 149 relates, and the names of all persons who are supposed to be interested therein, and the name of each -witness proposed to be examined. Such statement is to be delivered to any judge or register of probate, notary public, clerk of the supreme court, or justice of the peace and quorum, requesting the person selected to take the deposition of such witness. The person so selected, shall cause notice to be given of the time and place of taking such deposition, to all persons named in the state- ment as interested, such notice to be given and proved as in case of taking depositions in actions pending. 1 The deponent is to be sworn and examined, and the deposition written, read and subscribed in the same manner as depositions taken to be used in actions pending ; and the person taking such deposition is to annex to it a certificate, under his hand, at the time of taking it ; and that it was" taken in perpetual remembrance of the thing ; and is to insert in such certificate the name of the person at whose request it was taken, and of all those who were notified to attend, and of such as did attend. 2 The statement, deposition and certificate must, within ninety days after taking it, be recorded in the registry of deeds of the county, where the land or any part of it lies, if the deposition relates to real estate f and if not, then in the county where the parties, or some of them, reside. 3 Justices of the peace and of the quorum have power to compel the attendance of persons summoned to appear before them to give then- depositions to be used in any cause pending in this or any other State, or to perpetuate their testimony, and also to compel them to depose, being brought before them. When the summons has been served and returned, and proof of ■ service is entered upon the summons, and his legal fees tendered to the witness a reasonable time before the day appointed for taking his deposition, and he shall refuse to attend, the justice may adjourn the time of taking the deposition to a future hour or day, such as may be convenient, and issue a capias, directed to a proper officer, to apprehend such witness, and bring him before him at the time and place to which the adjournment was ordered.' 4 »R. S. ch. 133, sees. 25, 26. 3 Ib. sec. 28. 2 Ib. sec. 27. *Ib. sec. 36. 150 JUSTICE OF THE PEACE. The form for a capias will be found among the forms in civil pro- ceedings in this volume. If the -witness, being brought before the justice, shall refuse to depose and answer such question, as may be propounded to him by either of the parties interested, under the direction of the justice, he may commit him to the prison of the county for contempt, in like man- ner as the superior courts might commit a witness refusing to testify in open court. 1 Mortgagees, and persons claiming under them, may be compelled to give their depositions in perpetuam, in certain cases, in relation to the amount due on the mortgage, and the condition of it ; and justices of the peace have the same power, in such cases, as in taking other depositions in perpetuam. 2 The form of the "statement" above refered to may be as follows : "STATE OF MAINE. Cumberland, ss. To A. B., a justice of the peace and of the quorum within and for said county : The statement of W. A. S. of "W. &c. respectfully shows that [here set forth his title, claim or interest, &c] that he is desirous of perpetuat- ing the evidence of E. L. E. respecting it, and that W. F. is the only person known to him to be interested, or by him supposed to be interest- ed, in the subject matter about which he is desirous of perpetuating the evidence of the witness aforesaid. "Wherefore said W. A. S. requests you, the said justice, to take the deposition of said E. L. E., to be pre- served in perpetual remembrance of the thing, to fix the time and place therefor, and to notify said W. F. thereof, and to take such other measures as the law in such cases may require. Dated, &c. Cumberland, ss. 185 — . Sworn to before me, E. F, just, peace." II. OF RECEIVING THE ACKNOWLEDGEMENT OF DEEDS, AND PROVING EXECUTION WHERE A PARTY REFUSES TO ACKNOWLEDGE. The fact of the acknowledgment of a deed must always appear on the face of it, and cannot be proved by parol evidence. 3 iR. S. ch. 133, sec. 37. °R- S. ch. 91, sec. 24. a Ib. sec. 43. MISCELLANEOUS PROCEEDINGS. 151 This is usually done by a certificate thereof at the foot of the deed, in the following form : C , ss. A. D. 18 — . Then personally appeared the above named F. H. D., and acknowledged the above instrument to be his free act and deed before me. C. D. B., justice of the peace. Where the execution is by attorney, the form should be varied thus : Then personally appeared the above-named Gr. H. D. [the attorney,] and acknowledged the foregoing instrument to be the free act and deed of said H. D. [the principal.] If it be a corporation, thus : • Then personally appeared the [name of the corporation,] by J. F. its agent, and acknowledged, &c. It sometimes becomes the duty of a justice to take the acknowledge- ment of deeds conveying lands in other States. In many States, but not in Maine, the wife, if she executes the deed, is to be separately and privately examined respecting the free execution of the deed. The certificate may show that fact thus : Then personally appeared the said C. J. G., who was examined by me separately and privately, and apart from her husband, and acknowl- edged, &c. By our statutes, the acknowledgement of one of several joint grantors is sufiicient. 1 We are not aware whether this provision extends to other States or not. The safest way is, in all cases of deeds of land out of the State, to take the acknowledgment of all the grantors. If any grantor refuses to acknowledge his deed, the grantee, or person claiming under him, may leave with the register of deeds a true copy thereof; and such copy, so left in his office, is taken to be a caution to all persons for forty days, and during that time it has the same effect as recording the deed. 2 If any grantor shall refuse to acknowledge his deed, the grantee, or any person claiming under him, may apply to any justice of the peace in the county where the land lies, or where the grantor resides, who may summon the grantor to appear at a certain time and place before the said justice, to hear the testimony of the subscribing witnesses to the deed ; which summons shall state the date of the deed, the names •R. S. ch. 91, see. 16. 2 Ib. sec. 20. 152 JUSTICE OF THE PEACE. of the parties thereto, and of the subscribing witnesses, and shall be served seven days before the time assigned for proving the deed. 1 The application to the justice may be in the form following : "To A. B., a justice, &c. Respectfully shows J. M. &c. that on the day, &c. W. A. S. executed and delivered the deed herewith filed, in the presence of the subscribing witnesses thereto, [and if there are mesne conveyances add, and that he claims under the same] and now refuses to acknowl- edge the same. "Wherefore he prays that a summons may be issued to the said "W. A. S. to appear at a certain time and place before your honor, to hear the testimony of the subscribing witnesses to said deed." The summons may be in the following form : " STATE OF MAINE. C. SS. [l. s.] To W. A. S. &c. Whereas J. M. has applied to me, stating that a deed dated the day of 18—, the names of the parties to which deed are of in the county of , grantor, and of in the county of , grantee, and the names of the subscribing witnesses , was duly executed and delivered in the presence of the subscribing witnesses thereto, [and, if the fact be so, that he claims under the same] and that you, the said W. A. S., refuse to acknowledge said deed, and it appearing to my satisfaction that such statement is true, you are therefore summoned to appear before me at, &c. on, &c. at o'clock, &c, then and there to hear the testimony of the subscribing witnesses to said deed, and show cause if any you have, why the due execution of said deed should not be proved. Given, &c. G. W.R., justice of the peace." At such hearing, it being made to appear by the testimony of such witnesses, that they saw such deed duly executed by the grantor, and such being satisfactory to such justice, he shall so certify thereon, and in his certificate shall state the presence or absence of the grantor, as the fact may be. 2 The certificate may be as follows : ss. &c. J. M. of, &c. having made application to me stating, &c. [set forth the application and prayer,] and a summons having been »R. S. ch. 91, sec. 21. "lb. sec. 22, MISCELLANEOUS PROCEEDINGS. 153 thereupon issued and duly served upon the said W- A. S. to appear at a certain time and place therein mentioned, to hear the testimony of the subscribing -witnesses to said deed, and show cause, if any he had, why the due execution thereof should not be proved, I thereupon proceeded at the time and place appointed to hear the testimony of J. H. H., one of the subscribing -witnesses, [and other evidence] and the due execution of said deed was then and there proved to my satisfaction. The said W. A. S. was [or was not] present at said hearing. G-. W. R. justice of the peace. No deed made since July 31, 1841, can be proved in the manner above stated, if it has not, at least, one subscribing witness. 1 An acknowledgement of a deed cannot be made before the grantee of the deed. 2 The acknowledgement of a deed may be made before any justice of the peace in the State, or any justice of the peace, magistrate or notary public within the United States, or any commissioner appointed for that purpose by the governor of this State, or before any minister or consul of the United States, or notary public in any foreign country. 3 ni. OF REFERENCE OF DISPUTES. All controversies, which may be the subject of a personal action, may be submitted to one or more referees, as follows ; 4 The parties may appear, personally or by attorney, before a justice of the peace, and there sign and acknowledge an agreement, in sub- stance, as follows : " Know all men by there presents that , of , in the county of , and of , in the county of have agreed to submit the demand, made by the said , against the said , which is hereunto annexed" (and "all other demands between the par- ties," as the case may be,) "to the determination of ; the report of whom, (or the major part of whom) being made within one year from this date, to the district court for the said county of , the judg- ment thereon shall be final. And if either of the parties shall neglect to appear before the referees, after proper notice given to them of the >Ib. sec. 23. 3R. S. ch. 91, sec. 17. *20 Maine, 413. 4 R. S. ch. 135, sec. 1. 20 l&J JUSTICE OF THE PEACE. time and place appointed by the referees for tearing the parties, the referees may proceed in his absence. " Dated this day of , in the year . This agreement, having been subscribed by the parties, is to be acknowledged by them, or their attorneys, as their voluntary act, before the same or any other justice. 1 The acknowledgement may be as follows : C , ss. , 185—. Then the abovenamed , and , (or the abovenamed per- sonally, and the said , by the said , his attorney, as the case may be,) appeared, and acknowledged the above instrument by them signed, to be their voluntary act. Before me, , Justice of the peace." If all demands between the parties are submitted to the decision of the referees, no specific demand need be annexed to the agreement. 2 If a specific demand only is submitted, the same shall be annexed to the agreement, and signed by the party making it ; and such demands are required to be stated in such a manner as to be readily understood and be as certain, in substance, as the case will admit. 3 Neither party has power to revoke the submission, without the con- sent of the other. 4 The parties may, if they are so disposed, agree upon the time when the report shall be made, and vary the form accordingly. 5 The acknowledgement of the parties to the submission may be taken by either of the referees, if he is a justice of the peace- IV. RECOGNIZANCES FOE DEBT. Any person, capable of binding himself by a common bond, may enter into a recognizance, in the manner hereinafter mentioned, for the payment of any debt that he may owe, • and may thereby subject his person, goods and estate, to be taken in execution for such debt. 7 The recognizance may be taken before any justice of the peace, and must be in substance as follows : "I A. B. of , in the county of , do owe unto CD., of _. , in the county o'f , the sum of , to be paid to the .RS.ch^sec.2. JJJ.-ML "!: m.S.ch. 137, seel. *Ib. sec. 5. MISCELLANEOUS PROCEEDINGS. 155 said C. D. on the day of ; and if I shall fail of the payment of said debt, at the time aforesaid, I will and grant that the said debt shall be levied of my goods and chattels, lands and tenements, and in want thereof, upon my body. In testimony whereof, I have hereunto set my hand and seal, this day of in the year ."* Such recognizance, being signed, sealed, and acknowledged before the justice, and his certificate thereof signed by him, is to be delivered to the creditor or conusee ; and the justice is to make and keep a record of the recognizance. 2 If the debt is not paid at the time appointed, and the creditor desires an execution upon the recognizance, he may deliver the same to the clerk of the district court of the county, in which the same was taken. and the clerk is to record the same, and place the original on the court files. 3 The magistrate has nothing further to do with the proceeding. V. OF WATCH AND WAKD. The justices of the peace resident in any town, together with the selectmen of any town, have power from time to time to direct and order suitable watches to be kept, nightly, in such town, from such hour in the evening, as they shall appoint, until sun rising in the morning ; also wards to be kept in the day time and evening, whenever they shall think such watches and wards necessary. Such justices and selectmen may designate the time, place and number of persons to be employed in any such watch and ward ; and they may give orders in writing accordingly, signed by a major part of such justices and selectmen, directed to any constable of the town, requiring him from time to time to warn such watch and ward, and to see that all persons so warned, attend and perform their duty in the manner required ; and in the warning thereof to take care that some able householders, or other sufficient persons, be joined in each watch and ward. 4 Every male person, of the age of twenty one years, and upwards, being able of body, or having estate sufficient to hire a substitute, and not being a minister of the gospel, is, when duly warned, liable to watch and ward in his town, either in person or by a sufficient substi- »R. S. ch. 137, sec. 2. 3 Ib sec. 4. 2 Ib. sec. 3. *R. S. ch. 31, sec. 2. 156 JUSTICE OF THE PEACE. tute, unless such person reside more than two miles from the place where the watch and ward is kept. 1 Whenever the said justices of the peace and selectmen shall think fit to walk by night, to inspect the order of the town, wherein they dwell, or shall depute any portion of their number for that purpose, such of the constables and watchmen are required to attend them, or said deputation, as they may require so to do ; and they are to obey their lawful commands. 2 VI. DEMANDING LICENSES OF PEDLARS. The Statute of 1846, ch. 200, $ 5, provides that every hawker and pedlar, whenever his license is demanded of him by a justice of the peace, shall forthwith exhibit the same. After making such demand, the justice should make a minute thereof in his book of records of justice proceedings, something in the manner following: "0. — ss. A. D.185 — , I this day demanded of , a hawker and pedlar, his license, which he forthwith exhibited, [or which he neglect- ed and refused to exhibit.] Attest, A. B., justice of the peace." VII. SOLEMNIZING MARRIAGES. In performing this branch of the duties of his office, the first question which arises to the magistrate upon parties presenting themselves for the ceremony is, whether they have a right by law to be married ; because there is a heavy penalty when a justice wilfully unites persons, contrary to law. Marriage is entirely forbidden in the following cases : No man shall marry his mother, grandmother, daughter, grand- daughter, step-mother, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's daughter, wife's granddaughter, sister, brother's daughter, sister's daughter, father's sister, or mother's sister. 3 No woman shall marry her father, grandfather, son, grandson, step- father, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother, brother's son, sister's son, father's broth- er, or mother's brother. 4 iR. S. ch. 81, Bee. 1. 3 R- s - ch - 87 = sec - *• "lb. sec. 10. *»>• sec - 2 - MISCELLANEOUS PROCEEDINGS. 157 No white person shall intermarry with any negro, indian, or mulat- to ; and no insane person or idiot is capable of contracting marriage.' All marriages contracted while either of the parties has a former wife or husband living, are void, unless the former marriage shall have been dissolved by a decree of divorce. 2 All persons resident in this. State, intending to be joined in marriage, must have their intentions published at three public religious meetings, on different days, at three days' distance, exclusively, at least, from each other, in the city, town or plantation, where they respectively dwell ; or have such intentions posted up by the clerk of such town or plantation, fourteen days, in some public and conspicuous place therein, and deliver a certificate of such publishment, under the hand of the town or plantation clerk, to the minister or justice of the peace, solem- nizing the marriage." When a male under twenty-one years, or a female under eighteen years of age, is to be married, the consent of the parent, guardian, or other person, having the care and government of such party, if within the State, shall be first obtained. 4 If the parties, or either of them, live in a town or place, where there is no clerk, publishment must be made, as above directed, in the adjoining town or plantation, and a certificate of such clerk must be obtained before marriage. 5 When the justice is satisfied that the parties have a right to be married, it is his duty to proceed with the ceremony. No particular form is prescribed by law, and it would undoubtedly be sufficient if the parties were to make the mutual engagement in the presence of the justice, he assenting in his official character. 6 Custom has farther prescribed certain contracts to love upon the one side, and to obey on the other. But, as such promises would be implied from the very nature of the engagement, the magistrate may omit them altogether, and simply receive their mutual promises to accept each other as wed- ded wife, and lawful husband. After this, he should pronounce them to be husband and wife, which completes the ceremony. 7 >R. S. ch. 87, sec. 3. Mb. sec. 8. s Ib. sec. 4. «7 Mass. 54. 3 Ib. sec. 6. nb. 4 Ib. sec. 7. 158 JUSTICE OF THE PEACE. Every justice of the peace, and minister of the gospel commissioned to solemnize marriges, is required to keep a record of all marriages solemnized by him, and within one year after the date of each marriage, to make a return to the clerk of the town or plantation, in which the marriage is solemnized, certifying the names of the parties so married by him, and the place or places of their residence, and the date of the marriage ; and for any neglect to comply with this requisition, such justice or minister forfeits the sum of fifty dollars, one half to the use of the county, and the other half to the person suing for the same.' Every justice appointed for any particular county, and in which he resides, may solemnize marriages in such county, where either of the parties resides ; and every justice appointed for each and every county in the State, may solemnize marriages in any county where either of the parties resides. 2 For knowingly and wilfully joining persons in marriage contrary to the provisions above mentioned, the justice or minister so doing shall forfeit the sum of one hundred dollars ; and every justice or minister, against whom recovery of such fine may be had, is forbidden from joining any persons in marriage afterwards f and if after being so forbidden, such justice or minister shall join any persons, in marriage, on conviction thereof upon indictment, he shall be punished by con- finement to hard labor in the State's prison for a term not exceeding five years, or by fine not exceeding one thousand dollars." Any person not authorized to marry, who shall join persons in marriage, is subject to like punishment. 6 If parties are joined in marriage by persons unauthorized, but pro- fessing to be authorized, the marriage is valid, providing the marriage is consummated with a full belief on the part of the persons married, or either of them, that they have been lawfully married. 6 When the banns of matrimony between any persons are forbidden, and the reasons assigned in writing by the person forbidding, and left with the town or plantation clerk, he is forbidden to issue his certifi- cate, until a decision is made by two justices of the peace of the same county, approving the marriage, after due notice to, and hearing of, all concerned ; providing the person forbidding the banns, shall, within iAetofl846.ch.190. nb. sec. 15. 2R. S. ch. 87, sec. 11. «. ,„ , . *Ib. sec. IS. 3 Ib. sec. 14. MISCELLANEOUS PROCEEDINGS. 159 seven days after filing his reasons, procure the decision of such justi- ces, unless they shall certify that further time is necessary for the purpose, in which case a certificate is to be withheld, until the expira- tion of the certified time. The clerk is to govern himself by the decision of the justices ; and if the decision be against the person forbidding, he is to pay all costs to the persons -whose marriage he has forbidden ; and the justices are to enter judgment therefor, and issue execution accordingly. 1 VIII. WARRANT FOR ABATING NUISANCES. When upon indictment, complaint, or action, any person may be adjudged guilty of a nuisance, the court, or magistrate, before whom such conviction may be had, no appeal being made, may, in addition to the fine imposed, if any, or to the judgment for damages and costs, for which a seperate execution is to issue, order that said nuisance be abated, or removed at the expense of the defendant ; and after inquir- ing into and estimating, as near as may be, the sum necessary to defray the expense of such abatement, a warrant therefor may be issued substantially in the form following : "STATE OF MAINE. C. , ss. To the sheriff of our said county of C, or either of his deputies ; Greeting : [l. S.] Whereas, by the consideration of me, , a justice of the peace within and for said county, at a court held at , within said county, on the day of 185 — , 0. D. ,of , was, upon indictment, (or complaint, or action in favor of E. F., as the case may be,) adjudged guilty of erecting, [causing, or continuing] a certain nuisance, being a building in said , and for — — , (or fence, or other thing, describing particularly the nuisance and place,) which said nuisance was ordered by me to be abated and removed : You are therefore commanded forthwith to cause said nuisance to be abated and removed ; and also to levy of the materials by you so removed, and of the goods, chattels and lands of the said C. D., a sum sufficient to defray the expense of removing and abating the same, not to exceed the sum of dollajs, (the sum estimated by the magistrate,) S R. S. ch, 87, sec. 9. »R. S. ch. 164, sec. 9. 160 JUSTICE OF THE PEACE. together -with your lawful fees, and thirty three cents more for this writ. And, for want of such goods and estate to satisfy the sums aforesaid, you are commanded to take the body of the said C. D., and him commit unto our jail in P. in said county, and there detain him till he pay the sums aforesaid, or be legally discharged. And make return of this warrant, with your doings thereon, within thirty days. Witness my hand and seal this ■ day of , 185 — . Justice of the peace." Instead of issuing the said warrant, the justice may order the same to be stayed, upon motion of the defendant, and upon his entering into recognizance, in such sum, and with such surety, as the justice may direct, in case of indictment, to the State, or, in case of a com- plaint, or action, to the plaintiff, conditioned, either that the defendant will discontinue said nuisance, or that, within a time limited by the justice, and not exceeding six months, he will cause the same to be abated and removed, as either shall be directed by the justice : and upon his default to perform the condition of the recognizance, the same shall be deemed forfeited, and the justice, upon being satisfied of such default, may forthwith issue such warrant, and scire facias on such recognizance. 1 These proceedings apply to the erecting, causing, or continuing nuisances, as described in the chapter of the Revised Statutes referred to in the note, or at common law, where the same has not been modi- fied or repealed by statute, whether the same be a common and public nuisance, or a private nuisance, being one that is an injury to particu- lar individuals only; and the party injured may proceed, by complaint, or action on the case for recovery of damages, as well as, in appropriate cases, by indictment. 2 IX. PROCEEDINGS IN CASES OF INFECTION. When any infectious or malignant distemper is known to exist in any place out of the State, the selectmen of any town in the State may, if they see cause, and by giving public notice in such town, in such mode as they may find convenient, , require all persons coming from such place out of the State, to inform one of the selectmen, or the clerk of iR. S. cb. 164, sec. 10. 2 R- B- <*• 164 > secs - X > 8 - MISCELLANEOUS PROCEEDINGS. 161 such town, of their arrival, and from what place. And any person who is required so to give notice, may be prohibited by the selectmen from going to any part of such town where they may judge^ it unsafe for the inhabitants for him to go. If he shall not choose to comply with such prohibition, it is his duty, unless disabled by sickness, forth- with to depart from the State, in such manner and by such way, as the selectmen shall direct ; and in case of neglect or refusal, any justice of the peace in the county, on complaint of either of said select- men, may, by his warrant to the proper officer, or other person named in said warrant, cause such person to be removed out of the State. 1 Justices of the peace for counties bordering upon any adjourning State or province, where there are supposed to be places infected, may licence persons coming into the State from such places to travel in the State. 2 Any two justices of the peace may, if need be, make out a warrant, directed to the sheriff of the county or his deputy, or to any constable, requiring him, under the direction of the selectmen of the town, where any person infected with contagious sickness may be, to remove such person ; or to impress and take up convenient houses, lodging, nurses, attendants and other necessaries, for the accommodation, safety and relief of the sick. 3 Whenever, on the application of the selectmen of any town, it shall be made to appear to any justice of the peace, that there is just cause to suspect that any baggage, clothing, or goods of any kind, found within such town, are infected with any malignant, contagious distem- per, such justice shall, by warrant, directed to the sheriff or his deputy or to any constable, require him to impress so many men as said jus- tice shall judge necessary, to secure such infected articles, and to post said men as a guard over the house or place where such articles shall be lodged. The said justice may also, by said warrant, if it- appear to him necessary, require the said officers,' under the direction of the said selectmen, to impress and take up convenient houses or stores, for the safe keeping of such infected articles, and the same to cause to be removed to such houses or stores, or otherwise detained, until, in the opinion of said selectmen, they shall be freed from infection.* 1 R. S. ch. 21, sees. 2, 3. 3 Ibsec. 6. 5 Ib. sec. 5. «Ib. sees. 7. 8. 21 162 JUSTICE OF THE PEACE. The provisions before mentioned are extended to organized planta- tions, and the assessors of such plantations are required to do the duties of, and have the same powers as, the selectmen of towns in their towns. 1 X. PROCEEDINGS IN REMOVING PAUPERS. Persons actually chargeable to the places wherein they are found, but in which they have no lawfully settlement, may be removed to the places of their lawful settlement, if they have any within the State. 2 In order to effect such removal, and also to recover the expenses incurred for the relief of such persons, the overseers may apply, by complaint, to any justice of the peace in their county, not an inhabitant of their town ; and the said justice is authorized to issue his summons, to be served as other civil processes may be, upon the inhabitants of the town, where the person's settlement is alleged to be, and also upon the party, whose removal is contemplated, and upon such witnesses as he may see fit. The said justice may examine the party to be removed, under oath, and may compel his attendance for that purpose, by war- rant, if he see cause. He shall hear his objections to such removal, and for good causes may continue the process, one or more times, not exceeding three months in all, and after due examination and hear- ing, whether the town summoned appears or not, shall proceed to give judgment for or against the complainants, and make record thereof. 3 In such cases, costs shall be awarded in favor of the prevailing party, except that, in case of default, the town summoned shall not be entitled to costs ; and the record shall state the determination of the justice, as to the town where the party intended to be removed has his legal settlement, and as to his removal, and whether for being actually chargeable, and the damages for expenses incurred by said town making complaint, and also the estimated expenses of removal, if such removal shall be ordered, in addition to the costs above mentioned.* Upon judgment of removal, the justice, within three months and not afterwards, may issue his warrant of removal, directed to the sheriff of the county or his deputy, the constable of the town where the pau- per is to be removed, or to any individual by name, or to all or any of SI* &£« Act 9 184 6 ,ch.2n. ^. S .ch.3 2)S ec.S6. MISCELLANEOUS PROCEEDINGS. 163 thetQ, to be served ; also requiring the overseers of the town to which Such person is to be sent, to receive and provide for him, as an inhabi- tant of that town, a copy of which warrant is to be served on some one or more of said overseers. 1 The justice may also award execution, as in other cases, for the damages, costs, and estimated expenses of removal; and the execution may be directed to any officer in the county qualified to serve execu- tions in civil actions. 2 Either party, in such cases, may appeal, including the pauper ; but the latter must enter into the usual recognizance. 3 Depositions may be used in these proceedings for any cause author- ized in other civil actions. 4 The process shall not abate, so far as respects the damages and costs, by the death of the pauper, pending the suit. 6 Upon the complaint of the overseers of any town, any justice of the peace may, by warrant directed to, and to be executed by any consta- ble, or any other person therein designated, cause any pauper, having no lawful settlement in this State, to be sent and conveyed, at the expense of the town, by land or water, to any other State, or to any place beyond sea, where he may belong, if the justice thinks proper, and if he may be conveniently removed. 6 Intemperate poor may be sent to the house of correction by any justice, on complaint of the overseers. 7 Any justice may, on complaint of a majority of the overseers of any city or town, cause to be detained and sold, by warrant duly issued, vessels, whose masters have not complied with the provisions of section 56 and 59, chapter 132, of the Kevised Statutes. The above provisions apply to cities and their officers, as weli as to towns. 8 XI. OP ADMITTING PRISONERS TO BAIL. In all cases where any person has been adjudged guilty by a verdict of a jury, of any offence punishable by confinement in the State pris- on, such person can be admitted to bail only by the justice of the court who presided at the trial, or by some magistrate especially *R. S. ch. 32, sec. 37. S R. S. ch. 132, sec. 41. a Ib. sec. 38. «Ib. sec. 47. 3 Ib.sec. 39. 7ib. sec. 49. *Ib. sec. 41. sjb, sec. 60. 164 JUSTICE OF THE PEACE. appointed by said justice, or either of the justices of the supreme judicial, or district courts, who may inquire into" the case, and admit such person to bail. 1 Any two justices of the peace and quorum for any county, on application of any prisoner, committed for a bailable offence, with the exception just mentioned, or tor not finding sureties to recognize for him, may inquire into the case, and admit such person to bail. 2 Bailable offences are such as have not been denominated capital offences since the adoption of the constitution of this State. 3 The justices, in such case, may issue a writ of habeas corpus, and cause the person proposing to give bail, to be brought before them for the above purpose. 4 The form of a writ of habeas corpus issued by justices may be as follows : " STATE OF MAINE. [l. s.] C. , ss. To A. B. of : Greeting : [l. s.] We command you, that the body of CD., in our prison, at , under your custody, [or by you imprisoned and restrained of his liberty, as the case may be] as it is said, together with the day and cause of his taking and detaining, by whatsoever name the said C. D. shall be called or charged, you have before us, two justices of the peace and quorum for said county, at , in our said county, imme- diately after the receipt of this writ, to do and receive what we shall then and there consider concerning him in this behalf. Witness our hands and seals, this day of , 185 — . , ) Justices of the peace , \ and quorum." Any person committed for not finding sureties, or refusing to recog- nize, as required by the court or magistrate, may be discharged by any judge or justice of the peace, on giving such security as was required, 5 subject to the provisions of the statute of 1850, before quoted. In all cases of recognizance or bail, full memoranda should be made in the docket. And if the condition be for an appearance at a higher court, the original recognizance, properly attested, with the fees certified thereon, should be sent up to that court and a copy transcrib- ed into the records of the magistrate. *Acte of 1850, ch. 152. *R- S. ch. 140, sec. 35. 2 R. S. ch. 171, sec. 22. ( R. S. ch. 169 sec. 13. aCoDst., amendments, Art. ii. PART II. OF JUSTICES IN CRIMINAL MATTERS— THEIR POWER AND PRO- CEEDINGS. CHAPTER I. THEIR JURISDICTION AND AUTHORITY. The local magistracy was originally established for the conservation of the public safety and tranquility, and its criminal jurisdiction has consequently always been very comprehensive. The civil power was conferred on it subsequently. Justices of the peace have power to cause all laws, made for the preservation of the public peace, to be kept, and in the execution of that power, may require persons to give security to keep the peace, or for their good behavior, or both. The justices shall cause to be arrested on proper complaint, all persons found within their counties charged with any. offences, and all persons who, after committing any offence within the county, shall escape out of the same. They shall also examine into all treasons, felonies, high crimes, and misdemeanors, and commit or bind over, for trial, all persons who appear to be guilty thereof. They may also try all offences within their jurisdiction, committed within their respective counties, and sentence all persons convicted thereof, according to law, notwithstanding there may be a penalty accruing, in whole or in part, to their own town. 1 Justices of the peace, as conservators of the peace, may, on view, without any warrant in writing, command the assistance of any sheriff, deputy sheriff, constable, and of all other persons present, for the pur- pose of suppressing any affray, riot, assault or battery, within their county, and arrest all who are concerned therein. 2 *R. S. ch. 170, sees. 6, 7. 3 Ib. sec. 1. 166 JUSTICE OF THE PEACE. Every justice of the peace, within his county, may punish by fine, not exceeding ten dollars, all assaults and batteries and other breaches of the peace declared criminal by any statute or town by-law, when the offence is not of a high or aggravated nature, and cause to be stayed and arrested all affrayers, rioters, disturbers, and breakers of the peace, and all who go armed offensively, to the terror of the people, and such as utter threatening speeches, or are otherwise disorderly and dangerous. 1 When the offence is of a high and aggravated nature, the persons charged may be committed or bound over for trial to the court, by law having jurisdiction of the case. 8 Any justice may issue summonses for witnesses to appear before any judicial court or before himself, or any other justice, in any crim- inal case ; but not on the part of the State, except to appear before himself, without the consent of the attorney general or county attor- ney. 3 He may issue warrants to search houses or places for property stolen, embezzled, or obtained by false tokens or pretences, or for counterfeit coins, bank bills, or other writings, or for any tools, ma- chines, or materials used for the above purpose, or for dead bodies unlawfully disinterred, carried away, and concealed, or for persons, when such search is authorized bylaw.* Also for intoxicating liquor. 6 The criminal jurisdiction of justices is divisible into two classes : 1. Those cases in which they have final jurisdiction ; 2. Those which are only commenced by them, and must be passed up for trial to a superior court. The justice has equal authority to act in both classes. In the first his power extends to conviction, sentence and punishment. In the second he has no power, when satisfied of the guilt of the accused, to punish, or make a final disposition of the matter ; but can only bind over, or commit to prison, to await a trial at a higher tribunal. I. FINAL JURISDICTION. . This is confined strictly to those cases enumerated by the statute. »R. S. ch. 170, sec. 2. *Ib. see. 13. a Ib. Bee. 5. *Acts of 1850. »Ib. sec. II. JURISDICTION AND AUTHORITY. 167 The rule of law is imperative that he cannot transcend the limits of the written authority. 1 Justices have complete and final jurisdiction in the following cases : I. Issuing search warrants. 2 II. Requiring sureties for keeping the peace. 3 III. He may also have jurisdiction for the prosecution, trial, and sentencing to punishment, subject to the right of appeal, of any person charged with the following offences : 1. Drunkenness. 4 2. Profanity. 6 3. Yiolation of the statutes with regard to the Lord's day, and disturbance of public worship in certain cases. 6 4. Gaming. 7 5. Selling spirituous and intoxicating liquors unlawfully. 8 6. Larceny, by stealing of the property of another any money, goods, or chattels, or any bank note, bond, promissory note, bill of exchange, or other bill, order, or certificate, or any book of accounts respecting money or other things, or any deed or writing, containing a conveyance of real estate, or any valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, or any instrument of writing whereby any demand, right, or obligation shall be created, increased, extinguished or diminished, if the property stolen shall not be alleged to exceed the value often dollars. 3 7. Receiving stolen property, in all cases where the justice would have jurisdiction of the larceny. 10 8. Malicious mischief and wilful trespasses, when the value of the property taken or carried away, or injury occasioned thereby, is not alleged to exceed ten dollars, except for maliciously killing or injuring horses or cattle, injuring dams, canals, machinery, ponds, fire engines, bridges, roads, booms, rafts, vessels and other things specified in the Revised Statutes, chapter 162, sections one to four. 11 9. Assaults and batteries and other breaches of the peace declared MMass.641— Davis's Just. 35— Thach- 6 Ib. sees. 23—31. er's Crim. Cas. 113, 114. 7 R. S. ch. 35, sec. 8. 2 R. S. ch. 170, sees. 13,14,15,16. « Acts of 1851, ch.l. s Ib. sec. 4. 9R. g. c h, 156, see. 15. *R. S. ch. 160,sec. 36— Ib.ch. 178,gec. 10. i°Ib. *R. S. ch. 160, sec. 22. »R. S. ch. 162, sec. 15; 168 JUSTICE OF THE PEACE. criminal by any statute or town lav, not of a high and aggravated nature. 1 10. In penal actions where express authority is given by the stat- ute creating the offence, to prosecute for and recover the same in a suit before a justice of the peace, or when the amount or value of the fine or penalty sought to be recovered does not exceed twenty dollars, not- withstanding his town may be interested in the penalty. 8 11. Any justice of the peace may commit to the house of correc- tion, to be there kept and governed according to law, and to the rules and orders thereof, all rogues, vagabonds, and idle persons going about in any town or place in the county begging, or persons using any subtile craft, juggling, or unlawful games or plays, or, for the sake of emolument, feigning to have knowledge in physiognomy, palmistry, or, for the like purpose, pretending that they can tell ■destinies or for- tunes, or discover where lost or stolen goods may be found ; common pipers, fiddlers, runaways, common drunkards, common night walkers, pilferers; persons wanton or lascivious in speech or behaviour, com- mon railers or brawlers, such as mispend what they earn, and do not provide for themselves or their families. 3 When doubts arise as to jurisdiction in any of the preceding cases it may be determined by this rule : When the court has not the right to inflict the whole punishment for the offence which the statute prescribes, the cognizance belongs to another tribunal, because, where the punishment is left to the discretion of the court, it is the duty of the justice to exercise that discretion in every case, and to inflict the whole punishment whenever, in his judgment, the offence requires it. 4 II. INITIAL JURISDICTION. This term is very comprehensive. It embraces all crimes and mis- demeanours, and all coming within the statute meaning of the word "offences." ^ In addition to statuteWences, the initial jurisdiction extends over the shadowy ground between matters cognizable by the civil and criminal tribunals, and comprehends all offences accompanied with violence, known at common law, whether codified by statute or not. 5 iR. S. ch. 154, sec 35-ch. 170, sec. 2 'Thatcher's Criminal Cases, 208 2 Ib. ch. 116, sec. 1. sl Mas3 - 59_ 2 M 888 - 534— 8 NH> 203 ' »Ib. cb. 178' sec. 9. JURISDICTION AND AUTHORITY. 169 The following list contains the principal offences coming -within the initial jurisdiction of justices. Most, if not all, will be found in the Revised Statutes, or in the laws of the United States : 1. Treason. 2. Murder and manslaughter. 3. Duelling. 4. Mayhem. 5. Rape. 6. Aggravated assaults, with intent to kill, rob, commit rape, &c. 7. Extortion. 8. Kidnapping. 9. Poisoning food. 10. Arson and other burnings. 11. Burglary and housebreaking. 12. Stealing. 13. Embezzlement. 14. Cheating, obtaining money under false pretences, and like offences. 15. Maiming and destroying cattle. 16. Malicious trespasses of an aggravated nature. 17. Forgery and counterfeiting. 18. Perjury and subornation of perjury. 19. Bribery and embracery. 20. Escapes. 21. Falsely assuming to be a magistrate. 22. Compounding offences. 23. Officers taking reward for omitting duty. 24. Administering unauthorized oaths. 25. Riots. 26. Adultery. 27. Polygamy. 28. Gross lewdness and fornication. 29. Concealment by mother of the death of a bastard child. 30. Keeping a house of ill fame. * " 31. Selling or exhibiting obscene.prints. 32. Incest. •*•"' 33. Sodomy. 22 170 JUSTICE OF THE PEACE. 34. Disturbing religions worship in certain cases. 35. Violations of sepulture. 36. Injuring tombs. 37. Cruelty to animals. 38. Selling corrupt food, liquors, or medicines. 39. Lotteries. 40. Conspiracy. 41. Violations of laws in regard to elections. 42. Maintenance. 43. Piracy, and other offences against the United States laws. 44. Abortion. 45. Abductions. 46. Theatrical exhibitions without license. 47. Violations of statutes as to fisheries. 48. Other misdemeanors and breaches of the peace. It is often difficult for the justice to decide in cases of breaches of the peace; and of assault and battery, whether they are, or are not, within his final province. The intention, the degree of malice, the amount of violence, the effect upon the parties injured, and the other attendant circumstances, must be carefully considered. Any justice before whom a prisoner is brought, may associate another magistrate with him in performing the duties before mention- ed ; but, no fees shall be allowed him. 1 III. HOW FAR ABRIDGED BY MUNICIPAL, POLICE, AND TOWN COURTS. For the general powers of these courts, reference is made to chapter one, section four, of this volume. The courts therein mentioned, except where the judge is interested, exercise jurisdiction over all such matters and things, within the county, as justices of the peace may exercise. "*• The municipal courts^fiPortland, Bath, Augusta. Saco and Brans- wick, have jurisdiction ^jshnple larcenies, when the property stolen does not exceed twenty dollars in value; and exclusive jurisdiction of all offences against the by-laws of those cities and towns. 2 The police court of Bangor has concurrent criminal jurisdiction 'K. S. ch. 171, sec. 23. 2 R- S. ch. 98, sees. 5,21— Acts of 1849, ch. 224, sec. 11. JURISDICTION AN* AUTHORITY. 171 with justices of the peace, in all matters, where the penalty is wider twenty dollars, within the county, and original and exclusive jurisdic- tion of all offences against the by-lawi of the city. 1 The municipal court for the town jof Rockland has exclusive juris- diction over all offences committed within the limits of the town, by law cognizable by justices of the peaqfe ; and original jurisdiction, con- current with the district court, over crimes, offences and misdemeanors committed in the town, which are punishable by fine not exceeding one hundred dollars, and by imprisonment in the county jail not exceeding three months. 2 ) The police court of Gardiner has concurrent jurisdiction with justi- ces of the peace in all criminal matters under twenty dollars, within the county of Kennebec, and origina and exclusive jurisdiction of all violations of the by-laws of the city. 3 , The town courts in the county of ~\ faldo have like jurisdiction in all criminal causes as justices of the pea ee. They may take cognizance of simple larcenies, when the value Df the stolen property does not exceed twenty dollars, and have excli .sive jurisdiction of all offences against the by-laws of their towns. Justices of the peace in the above c [ties or towns, who shall exercise any criminal jurisdiction, except under the authority of the United States, or when the judge of the court is a party or interested, are liable to fine. >R. S. ch. 98, sees. 29, 32. 3 Acts of 1850, ch. 166, sec. 2. 3 Aets of 1849, ch. 281, sec. 11. CHAPTER II. OF THE COMPLAINT AND WARRANT. I. COMPLAINT. The complaint is the application made to the justice, informing him of the crime committed, and requesting process. It is the foundation of all proceedings, is required by law, and, in practice, is generally- reduced to technical form by the magistrate himself, from the rough story of the complaint. It should be made to a magistrate of the county where the offence is alleged to have been committed. Accessories before and after the fact may be complained against, indicted, tried, and punished in the same county in which the principal feleon may be tried. 1 Where the offence is begun in one county, and completed in another, jurisdiction attaches in the latter. 8 Any offence committed on the boundary between any two counties, or within one hundred rods of the same, may be alleged in the indict- ment or complaint to have been committed, and may be prosecuted and punished, in either county. 3 The complaint must be upon oath, and expressed with reasonable precision, directness and fullness, that the person complained of may be fully prepared to meet, and, if he can, to answer and repel it. 4 \ Where the proceedings^^ Magistrate are final, he has the right to demand technical and ^^■ao|ccuracy ; but where they are merely initial; the magistrate llHo right to quash the complaint for infor- Complaints should, as l|Bs practicable, describe accurately, the person, the offence, and thejShe, the time, and the manner, in which 1 R. S. ch. 167, sec. 5. ^^ 4 16 Pick. 213—1 Chitty's Criminal 2 2 Rusaell on Crimes, 217-18. . Law, 170. *R. S. ch. 166, sec. 4. s 16 Pick. 213—1 Fair. 473. JURISDICTION AND AUTHORITY. 173 it was committed. The ingle of making these allegations will be shown in considering— 1. The parties; 2. The offence. 1. The parties. The names of the parties should be stated accu- rately, with the residence, and proper description, and a, misnomer is fatal. But junior is no part of the name. 1 If, however, the name of the person is unknown, or he refuse to state it, he may be described by marks and indications, such as dress, size, manners, scars, lameness, and the like ; but it must be sufficiently clear to identify him. Des- cribing a woman, charged with keeping a house of ill-fame, as "the wife of C. D.," is a mere description of the person, and is not necessa- rily fatal. 8 The place of residence should be stated as accurately as circumstan- ces will allow, and the name of the party injured, if known. 2. The offence. The time and place of the acts that constitute the body of the wrong, should be set forth. But although it is necessary to allege a certain time, where that time does not enter into the nature of the offence, it may be laid at any period before the filing of the complaint. 3 In complaints for offences of mere omission, or nonfeasance, gener- ally, time and place need not be alleged, unless it be an omission to do a particular act at a particular time or particular place — in which case, the time or place becomes a material part of the averment. The facts, circumstances, and intent constituting the offence must be described with particularity and certainty. 4 The object of the rule requiring particularity is threefold-— First, to apprize the defendant of the precise nature of the chjHjSkmade against him : Secondly, to enable the court to determine whether the facts constitute an offence, and render proper judgment thereon : And thirdly, that the judgment may be a bar to any future prosecution for the same offence. 5 There are, however, classes of cases to which this rule does not apply. ■Whenever the crime consists of a series of acts, they need not be specially described, for it is not each or all of the acts themselves, cut the practice or habit which produces the principal evil and consti- tutes the crime. n Pick. 388—15 Pick. 7, 9—10 Mass. 3 3 Pick. 29. 203, 205. *4 Chitty's Cr. L. 227. s l Met. 152. H3 Pick. 363. 174 JUSTICE OF THE PEACE. Thus, it is sufficient to charge a person ■with being a common bar- rator, or common scold. And it is not necessary to set forth any particular acts of barratry or of scolding, for it is the general practice, and not the particular act, -which constitutes the offence. So it is sufficient to charge a person generally with keeping a house of ill fame, a disorderly house, or a common gaming house. 1 The several acts may be indicted and punished separately, but the keeping the house is a distinct offence, and as such liable to punishment. When an act is made penal, with certain exceptions aud limitations embraced in the same clause of the statute, so as to be descriptive of the offence intended to be punished, it is necessary to state in the indict- ment that the act was done, and to negative those exceptions and qual- ifications, and that the precise statute offence cannot otherwise be described and specified. 2 Because, if all the facts alleged in the complaint may be true, and yet the defendant be not guilty, ^he complaint is not sufficient. But where the exception is only a graduation of punishment to differ- ent degrees of the same species of offence, and the complaint seta forth the character of the offence as to its aggravation with sufficient distinct- ness, and thus indicates the punishment to be awarded, the complaint is not objectionable on the ground that no criminal offence is charged. It is not like those cases where every averment contained in the indict- ment may be true, and yet the defendant be guilty of no legal offence. 8 Thus, a complaint for a violation in Massachusetts of what was known as " the fifteen gallon law" of that State (1838, ch. 157,) must aver a sale of a " less quantity than fifteen gallons," and an averment that the "defendant "did sell one pint" is not sufficient. Because, if fifteen gallons were sold, it would be true that one pint and many pints were sold. 4 ! Averments of immaterial facts may be rejected as surplusage, and need not be proved at the trial, unless they contain matters of descrip- tion. 8 Surplusage'is an averment not contradicting other averments in the complaint, not descriptive of the identity of the charge, or of any thing essential to it, and not tending to show that an offence was committed. 6 » Davis's Free, of Indictments, 140, 198. 4 23 Pick. 280. ^23 Pick. 279—20 Pick. 362-3—2 Pick. 6 1 Met. 260—20 Pick.364— 15 Mame 476. 139—1 Met. 26S. «3 Stark. Ev. 1529. »l Met. 263-4. JURISDICTION AND AUTHORITY. 175 In cases of larceny, the value of the articles taken should be set forth. 1 The intent should be alleged, and where an evil intent accompany- ing an act is necessary to constitute such act a crime, the intent must be not only alleged but proved. But where the act is in itself unlaw- ful, the law infers an evil intent, and the allegation of such intent is merely matter of form. 8 No indictment or complaint shall be quashed, nor judgment thereon be arrested or affected, by reason of the omission or misstatement of the title, occupation, estate, or degree of the defendant, or of the name of the city, town, or county of his residence ; nor by reason of the omission of the word " feloniously," or of the words " force and arms," or of the words " against the peace," or the omission to charge any offence to have been committed, contrary to the form of the statute or statutes ; provided, that such omission or misstatement do not tend to the prejudice of the defendant. 3 When written instruments form part of the gist of the oflence, they should be set out in full, introduced by words to this effect, " of the tenor following " or the like. If two distinct charges be set forth in the same complaint, it will be fatal for duplicity.* Where, however, two crimes are of the same nature and necessarily so connected that they may, and when both are committed must con- stitute but one legal offence, they should be included in one charge. Familiar examples of these are, assault and battery and burglary. An assault and battery is really but one crime. The latter includes the former. A person may be convicted of the former, and acquitted of the latter, but not vice versa. They must therefore be charged as one offence. So in burglary, where the indictment charges a breaking and entry with intent to steal, and an actual stealing, the jury may acquit of the burglary and convict of the larceny, but cannot convict of the burglary and larceny as two distinct offences. The latter is merged in the former, and they constitute but one offence. 8 A charge of " an endeavor to seduce, entice, and stir up to commit mutiny," and "an endeavor to seduce, entice, and stir up to commit traitorous and mutinous practice," is not bad, because the endeavor, »6 £ 464 42 MaSS - 16SM -8 Met - 247. ,p,\,„ "20 Pick. 361. 3 K. S. ch. 172, sec. 38. 176 JUSTICE OF THE PEACE. though a conclusion from an infinite variety of facts and circumstances, is but a conclusion of fact, is itself a fact, admitting of no definition or description. So if an indictment charge that the defendant did presume to be a common seller, &c, and did sell, &c, but one offence is charged. 1 There must be no material allegations repugnant to each other. As to the joinder of several defendants in one complaint, the general rule seems to be that, " where the same evidence, as to the act which constitutes the crime, applies to two or more, they may be jointly indicted. Nor is it an objection that the fact proved against two or more, constitutes a distinct species of legal and technical offence. As where a wife, acting with a third person, maliciously takes the life of her husband. It is murder in the one, petit treason in the other ; yet they may be indicted together. So where the same evidence proves one guilty as principal, and another as accessory before the fact, in felony, they may be jointly indicted." 2 Where several defendants are so joined, they are not entitled of right to be tried separately, but they may be tried jointly or separately in the discretion of the court. " It must follow, from what has been already said, that a warrant cannot be issued on a complaint setting forth that the complainant " has probable cause to suspect" that the defendant is guilty of a certain crime or offence, if the offence complained of is within the final jurisdiction of the magistrate, unless the statutes confer such authority by express language. But where the jurisdiction is only initial, the rule is otherwise, because suspicion being a good ground to warrant the magistrate to commit or hold to bail, it follows, that it is sufficient to constitute the substantive matter and principal averment in the com- plaint, upon which the warrant is granted. 4 Neither does the rule apply to search warrants, for they must necessarily be based on sus- picion. 5 What disqualifies a witness, is a question of no minor importance. This point we have considered at some length in chapter viii, page 60, of this volume, and to that we refer. We may say here, however, that it is well settled that the justice may refuse to issue a warrant on *17 Maine, 154—9 Met. 569. *16 Pick. 215. *2 Met. 191. »Ib. 3 16 Maine, 293. COMPLAINT AND WARRANT. 177 a complaint, where he has final jurisdiction, if he is satisfied that the charge is the result of malice and corruption. Accessories. Offenders may be complained against as accessories before or after the fact. There can be accessories only to felonies. In misdemeanors, all parties concerned are principals. The term " felony" in this connection, is construed to include murder, rape, arson, robbery, burglary, maims, larceny, and every offence pun- ishable with death or by imprisonment in the State prison. 1 Every person who shall aid and abet in the commission of any felony, or who shall be accessory thereto before the fact, by counselling, hiring, or otherwise procuring the same to be committed, shall be punished in the same manner, which is or shall be prescribed for the punishment of the principal felon. 2 Every person, who shall commit the above crime may be indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction, or he may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been convicted, or shall or shall not be amenable to justice ; and shall, in the last mentioned case, be punished in the same manner, as if convicted of being an accessory before the fact. 3 Every person not standing in the relation of husband or wife, parent or child, to the principal offender, who shall harbor, conceal, maintain, or assist any principal felon, or accessory, before the fact, to any felony, knowing him to be such, with intent that he shall avoid or escape from detection, arrest, trial, or punishment, shall be deemed an accessory after the fact, and shall be punished by imprisonment in the State Prison, not more than seven years, or in the county jail not more than one year, and by fine not exceeding one thousand dollars ; but, in no case, shall such punishment exceed the punishment to which the prin- cipal felon on conviction would have been liable. 4 Every person, who shall be accessory after the fact to any felony, may be indicted, tried and sentenced in any court or county, having jurisdiction of the principal offence, whether the principal felon shall or shall not have been convicted, or shall or shall not be amenable to justice. 6 'R. S. ch 167, sec 2. Mb. sec. 6. ,1*11 •R.S.ch.m.sec.r. 23 1T8 JUSTICE OF THE PEACE. In cases against accessories, either before or after the fact, if the principal felony be committed in one county, and the offence of being accessory thereto be committed in another, the last mentioned offence may be indicted, tried, and punished in either of said counties-. * No person shall be prosecuted for any offence, except treason, mur- der, arson or manslaughter, unless the indictment shall be found within six years after the offence shall have been committed ; provided, that the offender shall not flee from justice, and that no other limitation for the prosecution of such offender is limited by law ; but any period, during which the party charged was not usually and publicly resi- dent within this State, shall not be reckoned as a part of the six years. 2 No person shall be indicted and convicted of treason or misprision of treason, unless the indictment shall be found within three years next after the commission of the treason. 3 Prosecutions for malicious trespass, mentioned after the fourth section of chapter 162, of the Revised Statutes, must be commenced within four years from the time the offence was committed- 4 II. OF THE WARRANT. When the complaint is made to the justice, if it shall appear to him, from the. examination of the complainant and other witnesses, that the offence alleged has been committed, and that there is reason for believ- ing the person charged to be guilty, he shall issue a warrant, stating the substance of the charge, and requiring the officer, to whom it is directed, forthwith to arrest the person accused, and bring him before such justice, or -some other magistrate of the county, to be dealt with according to law ; and in the same warrant, may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination. 6 We have previously stated that justices have the power, under the statute, without a warrant, to order the arrest of persons engaged in any affray, riot, assault or battery actually committed within his pres- ence or view, and within his county. This authority arises from the neccessity of the case ; but there should be no final commitment, until a formal complaint be made and a warrant issued. »R. S. ch. 167, sees. 5, 7. 4 R. S. ch. 162, sec. 14. s Ib. sec. 15. e R. S. ch. 171, sec. 2 — lb. ch. 170, sec. 3. =R. S. ch. 153, sec. 5. COMPLAINT AND WARRANT. 179 Warrants are of two kinds ; — those issued to arrest an offender on a charge of a direct offence, and search warrants, which are more in the nature of a proceeding in rem — that is — for the discovery of property. The requisites of both are in many respects the same, and we shall first consider the general requisites of all warrants, and then what is peculiar to search warrants. All warrants should issue in the name of the State. The county should also be mentioned, that it may appear on the face of the pro- ceedings that the court has jurisdiction. They should be directed to all officers competent to serve them, that, in failure of any particular officer, there may be no failure of justice. But in no case should one be directed to private individuals, as they have no authority to serve it. 1 The officers are, the sheriff of the county, or his deputies, or any constable of any town within said county. It should also be under the hand and seal of the magistrate, and dated the day it issues. It should describe the party to be apprehended, and in this should follow the complaint. In the allegation of the crime, the statute requires that it should recite the substance of the accusation ; and for this purpose it is better for an inexperienced magistrate to recite the allegations in the complaint verbatim, varying of course the time, and tenses. It should also, we think, set forth an adjudication on the complaint, that it appears to the magistrate that the crime has been committed. In this state it is •customary to append the warrant to the complaint, referring to that for the particulars of the offence charged. The legality of this mode has been settled both in this State and Massachusetts. 2 In all cases where the magistrate is called upon to issue warrants, he should as in civil cases, make a memorandum of the fact, andJfall subsequent proceedings. in the case, in a docket kept for th^^rapse. Search warrant. This is a warrant, directing the officer to Jmh a certain place or places specified in the warrant, for certain goofs or articles, which there is cause to believe are therein concealed ; and, in practice, is often the foundation for future criminal proceedings against the party suspectedof the concealment. ^ H Mass. 488. 5 25 Maine, 490-8 Met. 327-8-2 Met. 329. 180 JUSTICE OF THE PEACE. The constitution of Maine provides that the people shall be secure in their persons, houses, papers and possessions from all unreasonable searches and seizures ; and that no warrant to search any place, or seize any person or thing, shall issue 'without a special designation of the place to be searched, and the person or thing to be seized, nor without probable cause, supported by oath or affirmation. 1 The statutes are in conformity with this provision of the constitu- tion. 2 * The power of the magistrate to issue search warrants is strictly con- fined to the cases in whieh the authority is delegated by statute, Justices may, within the limits of their jurisdiction, issue warrants to search any house or place, for personal property stolen, embezzled, or obtained by false tokens or pretences, or for forged and counterfeit coins, bank bills, or other writings, or for any machines, or materials, used or designed for making the same, or for any dead body, unlawfully disinterred, carried away and concealed. 3 They may also issue search warrants for any female who has been enticed to a house of ill-fame ; for obscene books, pamphlets, prints, pictures or other things; for gambling implements ; 4 for intoxicating liquors ; 5 and for gunpowder. 6 All search warrants should be directed to the sheriff of the county, or his deputy, or to any of the constables of a town, or to any other per- son by name, commanding such officer to search the house or place where stolen property, or other things, for which he is required to search, are believed to be concealed ; which place and property, or things to be searched for, shall be designated and described in the warrant ; and to bring such stolen property, or other things, when found, and the persons, in whose possession the same shall be found, before the magistrate who issued the warrant, or before some other magistrate or court, having cognizance of the case. 7 Such warrant shall not authorize the person executing it to search any dwelling house in the night time, unless the justice shall be satis- fied that it is necessary in order to prevent the escape or removal of the person or property to be searched for, and unless such authority shall be distinctly expressed and given in the warrant. 8 »Con8t., Art. 1, see. 5. 'Acts of 1850, S R. S. ch. 170, sec. 14. 6 R.S. ch. 34, sec. 5. OR. S. ch. 170, sec. 13. T R. S. ch. 170, sec. 15. 4 R. S. ch. 160, sees. 18,20,[39. »Ib. sec. 16. COMPLAINT AND WARRANT. 181 When any officer, in the execution of a search -warrant, shall find any stolen or embezzled property, or shall seize any of the other things, for which a search is allowed by the provisions of this chapter, all the property and things so seized shall be safely kept, by the direction of the court or magistrate, so long as shall be necessary, for the purpose of being produced or used as evidence on any trial ; and as soon as may be afterwards, all such stolen and embezzled property shall be restored to the owner thereof, and all the other things, seized by virtue of such warrant, shall be burnt or otherwise destroyed, under the direction of the court or magistrate. If any person shall make oath before any justice of the peace that he has probable cause to suspect, and does suspect, that any house or building is unlawfully used as a common gaming house, for the pur- pose of gaming for money or other property, and that idle or dissolute persons resort to the same for that purpose, whether they be known to the complainant or not, such justice shall issue his warrant for the search of the gambling implements there used ; and if found there, or any of them, for the apprehension also of the keeper of such house or building. 1 Every custom house officer, who shall have cause to suspect a con- cealment of any goods, subject to duties, in any particular dwelling house, building, or other place, shall, upon application to a justice of the peace, be entitled to a warrant, to enter such house or place in the day time only, to search for such goods, and if such shall be found, to seize and secure the same for trial. 2 If any three persons, voters in the town or city where the complaint shall be made, shall before any justice of the peace or judge of a munici- pal or police court, make complaint under oath or affirmation, that they have reason to believe, and do believe, that spirituous or intoxicating liquors are kept or deposited, and intended for sale, by any person not authorized to sell the same, in said city or town, under the provisions of the act of 1850, in any store, shop, warehouse or other building or shall in said city or town, said justice or judge shall issue his warrant of search to any sheriff, city marshal or deputy, or to any constable, who shall proceed to search the premises described in said warrant, and if «R. S. ch. 160, sec. 39, *ij. S. Laws, 1799. 182 JUSTICE OF THE PEACE. any spirituous or intoxicating liquors are found therein, he shall seize the same, and convey them to some proper place of security, where he shall keep them until final action is had thereon. But no dwelling house in which, or in part of which, a shop is not kept, shall be searched, unless at least one of said complainants shall testify to some act of sale of intoxicating liquors therein, by the occupant thereof, or by his consent or permission, within at least one month of the time of making said complaint. 1 The statutes require, as before stated, as exact descriptions of the place to be searched and the property to be seized, as the nature of the case will permit. Thus under a warrant to search the house of Thom- as Sanford, the house of Thomas Sanford and Company cannot be searched. 2 So of the property, a general description, as " goods, wares, and merchandize," without any specification of their character, quality, number or weight, or any other circumstance tending to distinguish them, cannot be such a particular description as the constitution and statutes require. 3 But in the same case the court further say, that in the ease of smuggled goods it may be difficult to describe them with minuteness ; nor could this be required. But it would not be difficult to mention the kind of goods to be searched for, or at least to describe them as having been taken out of some certain vessel ; so that the officer who should undertake such a search might not conceive himself at liberty to rifle the house, and disturb the arrangements of the family occupy- ing it. 4 Of requiring sureties for keeping the peace. Justices of the peace have power to cause all laws made for the preservation of the public peace, to be kept ; and in the execution of that power, they may require persons to give security to keep the peace, or for their .good behavior, or both. 5 Any justice of the peace, on complaint made to him that any person has threatened to commit an offence against the person or property of another, shall examine the complainant on oath, and also any witnesses *Acts of 1850, ch. 1, sec. 11. 4 13 Mass. 289. 2 13 Mass., 289. »R. S. ch. 169, sec. 2. 'lb. COMPLAINT AND WARRANT. 183 who are produced, and reduce the complaint to writing, and cause the complainant to subscribe the same. 1 If there should appear to the justice on such examination that there is just cause to apprehend and fear the commssion of such offence, he shall issue a warrant under his hand and seal, containing a recital of the substance of the complaint, and commanding the officer, to whom the same may be directed, forthwith to arrest the person complained of, and bring him before such magistrate or court having jurisdiction of the cause. 2 When the person complained of is brought before the magistrate, he may be required, after his defence has been heard, to enter into a recog- nizance with sufficient sureties, in such sum as shall be ordered, to keep the peace towards all the people of the State, and especially towards the person requiring the security, for such term as the magistrate may order, not exceeding one year, but shall not be bound over to any court unless he is also charged with some specific and other offence, for which he ought to be held to answer at such court. 3 If the person complained of shall comply with the order of the justice, he shall be discharged." If the person shall refuse or neglect to recognize, the justice shall commit him to the county jail during the period for which he was required to find sureties, or till he shall so recognize ; and the justice shall state in the warrant the cause of commitment, and also the time and sum for which security was required. He shall also return a copy of the warrant to the district court, next to be holden in the same county, and such court shall have cognizance of the case in the same manner, as if the party accused had appealed to said court. 5 When the justice, on examination, shall not be satisfied that there is just cause to fear the commission of any such offence, he shall imme- diately discharge the party complained of; and if he shall judge the complaint unfounded, malicious, or frivolous, he may order the com- plainant to pay the costs of prosecution, who shall thereupon be answerable to the justice and officer for their fees, as for his own debt. 6 When the person complained of is required to give security for the peace, or for his good behavior, the justice may further order that X R. S. ch. 169, sec. 3. Mb. sec. 6. 'J- 9ec - 4 - *Ib. sec. 7. 3 Ib. sec. 5. «Ib. sec . s. 184 JUSTICE OF THE PEACE. the costs of prosecution, or any part thereof, shall be paid by such person, vrho shall stand committed until such costs are paid, or he is otherwise discharged. 1 Any person aggrieved by the order of such justice of the peace, in requiring him to recognize as aforesaid, may, on giving the security required, appeal to the next district court in the same county. 2 When an appeal is taken, the justice shall require such -witnesses, as he may think necessary, to recognize for their appearance at the court appealed to. 3 If the appellant shall fail to prosecute his appeal, his recognizance shall remain in full force, as to any breach of the condition, -without an affirmation of the judgment or order, and stand as a security for any costs which may be ordered by the court to be paid by the appellant. 4 Any person committed for not finding sureties, or refusing to recog- nize, as required by the justice, may be discharged by any judge or justice of the peace, by giving such security as was required.* Every recognizance, taken pursuant to the foregoing provisions, shall be transmitted to the district court on or before the first day of the next ensuing term, and shall there be filed by the clerk, as of record. 6 Whoever, in the presence of any justice shall make any aflray, or threaten to kill or beat another, or commit any violence against his person or property, or shall contend, with hot and angry words, to the disturbance of the peace, may be ordered, without process or any other proof, to recognize for keeping the peace, or being of good beha- vior, for a term not exceeding three months, and, in case of refusal, may be committed to prison as before directed. 7 Any person, going armed with any dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault on himself or any of his family or property, may, on the complaint of any person having cause to fear an injury or breach of the peace, be required to find sureties for keeping the peace for a term not exceeding one year, with the right of appeal as before provided. 8 !R. S. ch. 169, sec. 9. «Ib. sec. 13. 3 Ib. sec. 10. «Ib. sec. 14. =Ib. sec. 11. Ub.iec. 15. 4 Ib. sec. 12. »Ib*ec. 16. COMPLAINT AND WARRANT. 185 In a suit on such recognizance, if a forfeiture is found or confessed, the justice, on petition, may remit the penalty, or such part of it as he may think proper, on such terms as he may think right. 1 Any surety in a recognizance may surrender the principal, in the same manner as if he had been bail for him in a civil cause, and on such surrender shall be discharged from all liability for any act of the princi- pal after such surrender, which would be a breach of the recognizances ; and, upon such surrender, the principal may recognize anew with suffi- cient surety or sureties for the residue of the term, before any justice of the peace, and shall thereupon be discharged. 2 Of persons demanded by other States. Whenever any person shall be found within this State, charged with any offence committed in any other State or territory, and liable, by the constitution and laws of the United States, to be delivered over upon the demand of the executive' of such other State or territory, any justice authorized to issue warrants in criminal cases, may, upon complaint under oath, setting forth the offence and such other matters as are necessary to bring the case within the provisions of law, issue a warrant to bring the person so charged before the same or any other court or magistrate within the State, to answer to such complaint, as in other cases. 3 If on the examination of the person charged, it shall appear to the court or magistrate that there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the executive,, he shall, if charged with an offence bailable by the laws of this State, be required to recognize, with sufficient sureties, to appear before such court or magistrate at a future day, allowing a reasonable time to obtain the warrant of the executive, and to abide the order of the court or magistrate ; and if such person shall not so recognize, he shall be committed to prison, and be there detained until such day, in like manner as if the offence charged had been committed within this State ; and if the person so recognizing shall fail to appear, according to the condition of his recognizance, he shall be defaulted, and the like proceedings shall be had, as in the case of other recognizances entered into before such court or magistrate ; but if such person shall be charg- ed with an offence not bailable by the laws of this State, he shall be >R. S. ch. 169, sec. 17. 'Acts of 1846, ch. 193, sec. 1. J Ib. sec. 18. 24 186 JUSTICE OF THE PEACE. committed to prison, and there detained until the day so appointed for his appearance before the court or magistrate. 1 If the person, so recognized or committed, shall appear before the court or magistrate, upon the day ordered, he shall be discharged, unless he shall be demanded by some person authorized by the -warrant of the executive to receive him, or unless the court or magistrate shall see cause to commit him, or to require him to recognize anew, for his appearance at some other day ; and if, when ordered, he shall not so recognize, he shall be committed and detained as before ; provided, that whether the person so charged shall be recognized, committed or discharged, any person, authorized by the warrant of the executive, may at all times take him into custody, and the same shall be a dis- charge of the recognizance, if any, and shall not be deemed an es- cape. 2 The complainant, in such case, shall be answerable for all the actual costs and charges, and for the support in prison of any person so committed, to be paid in the same manner as by a creditor for his debtor committed on execution ; and if the charge for his support in prison shall not be so paid, the jailer may discharge such person, in like manner as if he had been committed on an execution. 3 Of the power to dismiss proceedings. When criminal process has been instituted to bring an offender to justice, public policy generally requires that it should not be terminated by any understanding be- tween the complainant and the accused, but that it should be pursued until withdrawn by the proper authority, representing the State. But where the process, though in form in the name and behalf of the State, is yet in fact and effect a civil preventive remedy, designed for the protection of an individual, when the necessity for the remedy has ceased, and the complainant no longer desires the protective shield, the magistrate may, and indeed should, all parties consenting, take no further cognizance of the matter. 4 A complaint that the defendant has threatened to commit an offence against the person or property of another, and a warrant thereon, is a proceeding of this nature. If in such -a process, before the magistrate has adjudged sureties of the peace to be necessary, or has required them at the hands of the lActe of 1816, ch. 193, sec. 2. 3 Ib. sec. 4. =11). sec. 3. 4 1 Fair. R., 332. COxMPLAINT AND WARRANT. 187 accused, lie lias succeeded in quieting and allaying the apprehensions of the complainant, and, friendly relations being established between them, the complainant intimates his wish to withdraw the process afforded for his benefit, and the magistrate permits it, the court say, they are not aware that the dignity, honor, or policy of the law is impaired by such a course. The process has done its office. The benign purpose of the law has been answered. And in accordance with this view of the subject, the prosecuting officer of the government never does, in practice, press the accused further, when advised that the complainant is satisfied. 1 Any person committed or recognized to answer to a charge of assault and battery, or other misdemeanor, for which the party injured may have B remedy by civil action, except where the offence was committed by or upon a sheriff, or other officer of justice, or riotously, or with a felonious intent, if the party injured shall appear before the magis- trate, who made the commitment or took the recognizance, and acknowledge in writing that he has received satisfaction for the injury, the magistrate, in his discretion, may, on payment of all costs, discharge the recognizance, or supersede the commitment, by an order under his hand ; and may also discharge the recognizances of all the witnesses taken in the case.* n Fair, 332. 2R. S. ch. 171, sec. 25. CHAPTER III. OP THE SERVICE AND RETURN OF THE WARRANT. I. OF THE SERVICE. Every -warrant properly contains two precepts. The first requires the officer forthwith to arrest the party complained against, and the second requires him to summon the complainant and such other wit- nesses as may be, to appear and give evidence before the justice who issued the warrant, or before some other court or magistrate. By " arrest" is to be understood, to take the party into custody. It is so used in works of authority. An arrest is the beginning of impris- onment, when a man is first taken and restrained of his liberty by power or color of lawful warrant. 1 It is said that no manual touching of the body, or actual force, is necessary to constitute an arrest. It is sufficient if the party be within the power of the officer, and submit to the arrest. 2 But if he be not taken into actual custody, it will not amount to arrest ; for mere words will not, in this respect, be of any avail. 5 And it is better that the person making the arrest should in all cases touch the body, as that has, in some States, been held to be necessary. 4 The exemptions which exist in civil cases here cease to operate. Thus a married woman, when she has committed an offence for which she is subject to punishment,, is liable to be apprehended.* We shall speak first OF ARRESTS WITHOUT- WARRANTS. These may be made by the magistrate himself; by officers qualified to serve warrants, such as sheriffs, deputy sheriffs, and constables ; by n Met. 504. 4 2 N. H., 318. 2 Met. and Per. Dig. 234,and cases cited. *1 Ch. Cr. L.> 12. 11 Chitty, 39. SERVICE AND RETURN OF WARRANT. 189 other officers, who act as conservators of the peace, viz., coroners and watchmen ; or by private persons ; the respective rights and liabilities of the parties varying in each instance. The power of a magistrate, as such, to arrest without warrant, is confined to cases of violence, committed within his actual presence. 1 The rule of law is strict that no person can, in general, be taken into custody, without warrant, for a mere misdemeanor unattended with violence, as perjury or libel. 2 And no private person can arrest without warrant for a mere breach of the peace, after it is over. 3 1. Arrest by private persons. Where a felony has been actually committed, a private person, acting with a good intention, and upon information that amounts to a reasonable and probable ground for suspicion, is justified in apprehending without a warrant the suspected person, in order to carry him before a magistrate.* But such an arrest, made upon a suspicion which afterwards appears to be unfounded, is good cause for an action for false imprisonment, although a felony had been actually committed. 5 Evidence, in such suit, of a reasonable suspicion of the plaintifl having been guilty of felony, is admissible in reduction of damages. This law has been denied in some of the State courts in this country ; and it has there been held that if an innocent person has been arrested on suspicion by ej. private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested. 6 The following have been said to be sufficient causes for suspicion : First — Common reputation. But it seems that it ought to appear upon evidence, in an action brought for such arrest, that such fame had some probable ground. Second — Living a vagrant, idle, and disorderly life, without Jayjng any visible means to support it. Third— Being in company with one known to be an offender, at the time of the offence ; or generally at other times keeping company with persons of scandalous reputations. •R. S. ch. 170, sec. 1. *4 Bl. Com., 293, n. 16. *Ch. Cr. Law, 15. Mb.— \ Dong. 59. 3 2 N. H., 318. «3 Wend. 350—6 Bing., 316. 190 JUSTICE OF THE PEACE. Fourth — Being found in such circumstances as induce a strong presumption of guilt ; as coining out of a house 'wherein murder has been committed, with a bloody knife in one's hand ; or being found in possession of any part of goods stolen, -without being able to give a probable account of coming honestly by them. Fifth — Behaving one's self in such manner as betrays a conscious- ness of guilt ; as where a man being charged with treason or felony says nothing to it, but seems tacitly by his silence to own himself guilty ; or where a man accused of any such crime, upon hearing that a warrant is taken out against him, absconds. This suspicion must exist in the breast of the person arresting ; and no causes of suspicion whatsoever, let the number and probability of them be ever so great, will justify the arrest of an innocent man, by one who is not himself induced by them to suspect him to be guilty. A private person, -who has apprehended another for treason or felony, may deliver the prisoner into the hands of an officer, or he may carry him to any jail in the county ; but the safer course seems to be, to cause him, as soon as convenient, to be brought before some justice of the peace, by whom the prisoner may be examined and bailed or com- mitted to prison. Where a private person has apprehended another, assisting in an affray, he may lawfully detain him till the heat is over, and then deliver him to the officer. If a man be found attempting to commit a felony in the night, any one may apprehend him, and detain him until he be carried before a magistrate. 1 2. Arrests by officers. If a private individual has this power to arrest offenders without warrant, of course it lies in an officer. And the chief difference between his power and duty and that of a private person, seems to be that he has greater authority to demand the assis- tance of others, and is liable to a severer penalty for any neglect of duty, and that he ought to bring the party suspected before a justice of the peace, in order to be examined. 2 Another difference seems to be that a private person cannot, of his own accord, arrest a person, except upon his own suspicion, and not upon report, or the suspicion of another, whereas an officer may, if a felony has been committed by some one, lawfully apprehend a supposed offender on the information of others, without any positive charge, or iChitty'sCrim.Law,^ *1 N. H. 53. SERVICE AND RETURN OF WARRANT. 191 his own knowledge of the circumstances on which the suspicion is founded. And an officer may justify an imprisonment, without war- rant, on a reasonable charge of felony made to him, although he after- wards discharges a prisoner without taking him before a magistrate, and although it turn out that no felony was committed by any one. 1 It is the duty of every sheriff, deputy sheriff, constable, city marshal and his deputies, watchmen, and police officer, to arrest and detain, until a legal warrant for his apprehension can be obtained, every per- son found violating any law of the State, or any legal ordinance or by- law of their city or town. 2 If any officer, in the exercise of this power, shall act wantonly, or oppressively, or shall detain any offender, without warrant, longer than such time as may be reasonably necessary to procure a legal warrant, such officer shall be liable to pay all such damages as the person detained shall suffer thereby. 3 Whenever it shall be the duty of any officer to make oath to any complaint before any magistrate, it shall be sufficient for him to swear that the facts set forth in the complaint are true according to his know- ledge and behalf. 4 3. Ar?-ests by magistrates. The right of a magistrate to arrest without warrant has already been partially considered. He has a double power in relation to the arrest of felons ; one upon complaint of other persons, the other primitive and original in himself. He may command any person verbally to arrest a felon, and such command is said to be a good warrant without writing ; but if the felony or other breach of the peace be done in his absence, then he must issue his war- rant in due course of law to apprehend the malefactor. But this power is to be exercised only for the purpose of arrest, to prevent the prisoner escaping beyond the reach of his authority ; and when this danger is over, a regular complaint should be instituted as the foundation of legal process. If any persons, to the number of twelve or more, any of them being armed with clubs or other dangerous weapons, or if any persons, to the number of thirty or more, whether armed or not, shall be unlawfully, riotously, or tumultously assembled in any city or town, it shall be the '1 Ch. Cr. L. 20, 21. =Ib. sec. 2. 2 Acts of 1848, seel. 4 Ib. sec. 3. 192 JUSTICE OF THE PEACE. duty of the mayor and of each of the aldermen of such city, and of each of the selectmen and constables of such town;- and every justice of the peace living in Such town, and also of the sheriff of the county and his deputies, to go among the persons so assembled, or as near to them as may be with safety, and, in the name of the State, to command all . persons, so assembled, immediately and peaceably to disperse ; and if the persons so assembled, shall not thereupon immediately and peace- ably disperse, it shall be the duty of each of said magistrates and officers to command the assistance of all persons then present, in arrest- ing and securing in custody the persons so unlawfully assembled, so that they may be proceeded with, according to law. 1 If any person shall refuse to assist in arresting the persons so unlawfully assembled, or shall refuse immediately to disperse upon being commanded so to do, as mentioned in the preceding section, he shall be deemed one of such unlawful or riotous assembly, and shall be punished by fine and imprisonment. 2 If any such magistrate or other officer, having notice of any such unlawful or tumultuous assembly, in the city or town where he dwells, shall refuse or neglect immediately to execute his duty in relation thereto, he shall be punished by a fine, not exceeding three hundred dollars. 8 If any persons, so riotously or unlawfully assembled, shall, upon command as aforesaid, refuse or neglect to disperse without unneces- sary delay, any two of the magistrates or officers before mentioned, may require the aid of a sufficient number of persons, inarms or other- wise, and shall proceed in such manner as they may judge expedient, to suppress such riotous or tumultuous assembly, and to arrest and secure the persons composing the same, that they may be proceeded with according to law.* When an armed force shall be called out, as provided in the preced- ing section, they shall obey such orders for suppressing such unlawful and riotous assembly, and for arresting and dispersing the persons engaged therein, as they may receive from the governor, or any judge of a court of record, or the sheriff of the county, or from any two of !R. S. ch. 159, sec. 5. s Ib. sec. 7. 2 Ib. sec. 6. *Ib.sec.8. SERVICE AND RETURN OF WARRANT. 193 the magistrates or officers mentioned in the fifth section of chapter 159, of the Revised Statutes. 1 If, by reason of any efforts made, as before mentioned, to suppress such riotous and unlawful assembly, or arrest and secure the persons composing the same, who have refused to disperse, though the number remaining be less than twelve, any such persons, or any persons pres- ent as spectators or otherwise, shall be killed or wounded, the said magistrates and officers and all persons acting with them by the order or direction of the governor, or any judge, sheriff, magistrates or offi- cers, shall be'held guiltless and justified in law ; and if any of said magistrates or officers, or persons acting by such order or direction, shall be killed or wounded, all persons, so unlawfully or riotously assembled, and all other persons who, when commanded or required, shall have refused to aid and assist the said magistrates or officers, shall be held answerable therefor.* All courts of record have authority to order the commitment of any person present in court, charged with crime, or any one guilty of a contempt of court. The sheriff or other officer is obliged to obey the order without writing, as the prisoner knows for what offence he is committed. If the officer is called upon to justify the imprisonment, he may obtain from the clerk a copy of the record. 3 Justices of the peace have no power to commit for contempt, unless given by statute. In Maine no such power is given, but it is presumed that any wilful disturbance of their courts, which prevents the pro- gress of a trial, would be a sufficient breach of the peace to authorize the arrest and punishment of the offender or offenders. When any witness shall refuse to recognize, with or without sureties, as required for his appearance before the justice or a higher court, he may be committed to prison to remain till by law discharged. 4 3. What protection the person making arrests without warrant may have in acts of violence. "We have already seen that where persons forming riotous and tumultuous assemblies refuse to disperse, the magistrate and officers, and other persons acting under their orders, shall be held guiltless and fully justified in law for the results of their legal action. >R. S. ch. 159, sec. 9. 3 2 Mass. 553. 2 Ib. sec. 10. «R. S. ch. 171, sec 20. 25 194 JUSTICE OF THE PEACE. How fax a private individual would be justified in acts of actual vio- lence in the apprehension of a felon, or one guilty of breaking the peace, there may be some doubt. If he has the right to arrest, he certainly ought to have the right to use sufficient force for that purpose, as otherwise his power would amount to nothing at all. An officer undoubtedly may use any force necessary for making the arrest ; and it is said that killing an officer will be murder, though he •has no warrant, and was not present when the felony was committed, but takes the party on a charge only ; and though that charge does not, in terms, specify all the particulars necessary to. constitute a fel- ony. 1 It is a much more delicate matter to determine when doors may be broken to arrest a felon, without warrant. It is a familiar boast of the common law that every man's house is his castle ; and, in accordance with the principle of this maxim, no officer can justify a forcible entry to a house for the purpose of execut- ing civil process. But this protection fails a presumed offender as against a criminal process. There appears to be a difference here also between the right of a private person, and the right of an officer, to break doors. Where a felony is committed in the view of a private person, he may justify breaking open doors upon following the felon, and if he kill him, provi- ded he could not otherwise take him, the act is justifiable ; and if he be killed in endeavoring to make such, arrest, it is murder in the parties resisting. But he cannot justify breaking open doors to apprehend another on probable suspicion of felony, and if he do, and either party be killed in the attempt, it is manslaughter, and no more.* But an officer has more extended power. He may not only break open a door to take a felon, but, where a felony has been committed, and he has reasonable cause to suspect that any one be the offender, he may break down doors to apprehend him. And, further, doors also may be broken down by an officer where a felony has not yet been committed, but likely to be so, in order to prevent it. 3 Upon the whole, it seems to be the better opinion that a private person, in order to justify breaking open doors without a warrant, must in general prove the actual guilt of the party arrested ; and that »Chitty'sCrim.Law,22. »Ib. 23. Mb. 17. SERVICE AND RETURN OF WARRANT. 195 it will not suffice to show that a felony has been actually committed by another person, or that reasonable ground of suspicion existed ; but that an officer, acting bona fide on the positive charge of another, will be excused, and the party making the accusation will alone be liable. But the breaking an outer door is, in general, so violent, obnoxious and dangerous a proceeding, that it should be adopted only in extreme Cases, where an immediate arrest is necessary. 1 And it is doubtful whether admittance should not be first demanded in all cases. It certainly should in the case of a misdemeanor.* It is proper, though hardly necessary, to observe, that all the privi- ileges attendant on private dwellings, relate to arrests before indict- ment ; for there is no question whatever that, after indictment found, a criminal of any degree may be arrested in any place, and that no house is a sanctuary for him. OF ARRESTS UNDER WARRANTS. Before entering upon this subject it may be proper to observe that when the officer is once entrusted with the precept, he should proceed immediately to execute it. The provisions of law in this respect are stringent. If any officer, authorized to serve process, shall wilfully and corrupt- ly refuse to execute any lawful process to him directed, requiring him to apprehend or confine any person charged with or convicted of an offence, or shall wilfully and corruptly delay or omit to execute such process, whereby such person shall escape, he shall be punished by imprisonment in the county jail, not more than one year, or by fine not exceeding one hundred dollars. 3 The whole duty of the officer is to serve the precept, and make due return. He has no power to become a party to an amicable adjustment of difficulties, and no justification or excuse can be imagined for an officer who wilfully disobeys the warrant. Where the court has jurisdiction of the offence charged in the complaint, and the warrant is in legal form, and is directed to the officer, it is not for him to inquire into the regularity of the proceedings of the court that issued the warrant ; and he cannot be considered as a trespasser for acting under it. 4 'Ch. Ck. L.,. 54— 13 Mass. 289. »R. S. cb. 158, sec. 20. s Ch. Cr. taw, 53. *8 Met. 328. 196 JUSTICE OF THE PEACE. Chief justice Shaw, of the supreme judicial court of Massachusetts, says : "As a general rule the officer is bound to see that the process which he is called upon to execute, is in due and regular form, and issues from a court having jurisdiction of the subject. In such case he is justified in obeying his precept, and it is highly necessary to the due, prompt and energetic execution of the commands of the law that he should be so. It is incomprehensible, says Lord Kenyon, in Belk v. Broadbent, 3 T. It. 185, to say that a person shall be considered as a trespasser who acts under the process of the court. Tarlton v. Fisher, 2 Doug. 671, was trespass for assault and false imprisonment of a certified bankrupt. Some doubt arose upon the statute, that such person shall not be liable to be arrested. But it was held that though the debtor might have a supersedeas to the execution, yet that till superseded, it was a justification ; and even after supersedeas, though .trespass would he against the party, it would not lie against the sheriff. And this is stated to be the settled practice. The inconvenience would be very great if the law were otherwise. " On an execution against a corporation styled the president, directors, and company of a turnpike, the officer arrested and committed one of the proprietors. [4 Mass. 232.] Here indeed he was held liable, because the plaintiff was not named nor described in his precept ; the corporate name not being the description or designation of any natural person whatever. But Parsons C. J. there affirms the general rule, and illustrates it by reference to an executor or administrator not liable to arrest. 'If,' says he, 'an execution should illegally issue against the body of an executor or administrator, on a judgment against the estate of the deceased, the officer might be justified in arresting the body of the executor or administrator, as he did not mistake his pre- cept, which issued from a court having jurisdiction.' The same rule was recognized in Sanford v. Nicholas, 13 Mass. 288, where Parker C. J. says it will not do to require of executive officers, before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execu- tion of legal process. "If the plaintiff in such case has any remedy, it is not against the officer, who has simply executed the regular precept of a court having SERVICE AND RETURN OF WARRANT. 197 jurisdiction, but by applying for his discharge out of custody, or by an action on the case against the party who thus wrongfully armed the officer with power to arrest him, upon the ground of its being, on his part, a malicious arrest." 1 It is now clear that in all cases doors may be broken open, if the offender cannot otherwise be taken, under a warrant for treason, felony, suspicion of felony, or actual breach of the peace, or to search for stolen goods. And if, in the attempt to execute a lawful warrant by breaking into the house of a felon, after a previous demand of admit- tance, the officer be killed by the party attempting to resist, it will be murder in all concerned ; and if, on the other hand, he unavoidably kill any of the parties opposing him, the homicide will be justifiable, because in furtherance of justice. And even where there is some error in the process which does not affect the justice of the case, the coni- plection of the offence of the party resisting will not be varied. 2 But the officer should, in all cases, as a precautionary measure, demand admittance first. This right to break doors extends to the house of a third person, if the offender fly to it for refuge ; and, in such case, such house may be broken open after the usual demand. But then it is said, it is at the peril of the officer that the party, against whom he has obtained the warrant, be found there ; for otherwise he will be a trespasser, and when the officer, after obtaining admittance, is locked in, or otherwise prevented from retiring, he may lawfully break out by any means in his power, whether he be engaged in executing civil or criminal pro- cess. And the sheriff may break open the door of a house to rescue his deputies unlawfully detained within it. And when once an officer has entered a house, either upon civil or criminal process, he may, after ineffectually demanding entrance, break open any inner door that obstructs his progress. 1 * When arrests may be made. A person may be apprehended in the night as well as the day.* The exemption from arrest by statute in civil proceedings " from midnight preceding to midnight following the Lord's day," 5 does not affect processes against offenders for treason, felonies, or breaches of 3 'L Me ' 25 T 7 - „ 4 1 N. H. 346-Ch. Cr. L.13. «u £ n L -' 55, * R - S ch - 114 > B ™- 104. 198 JUSTICE OF THE PEACE. the peace ; so 'that warrants against any persons charged with any crimes whatever, may be lawfully served on that day. Warrants, if made returnable at any particular time, become dead when that time has expired ; and any action after that time, had under them, is illegal and void. But if no time is specified within which an officer shall return his process, it continues in force until it is fully executed and obeyed. Where arrests may be made. An important branch of the law, under this head, has already been treated of, while considering the right to force dwelling houses to arrest offenders. It remains to con- sider only how far an officer's authority extends. When a person against whom a warrant has been issued for an alleged offence, committed in any county, shall, before or after issuing the warrant, have removed or escaped from or be out of the county, the sheriff or deputy, to whom the warrant is directed, may pursue and apprehend the party charged, in any county in the State ; and may for that purpose, command aid, as in his own county, and convey him into the county in which the offence was committed. 1 Where the offence charged in the warrant is not punishable with death or imprisonment in the State prison, the person arrested, if he shall request it, may be carried before any justice in the county in which the arrest was made, for the purpose of entering into a recogni- zance, without any trial or examination, and it shall be the duty of the officer so to carry him. 2 If the magistrate in the county where the arrest was made, shall refuse to let to bail the person arrested and brought before him, or if no sufficient bail be offered, the person, having him in charge, shall take him before some magistrate of the county in which the warrant was issued, to be proceeded with according to law. 3 When the offence charged is punishable with death, or by imprison- ment in the State prison, the officer making the arrest in some other county, shall convey the prisoner to the county where the warrant was issued, and he shall be proceeded with according to law.* Every person arrested by warrant for any offence, where no provision is made for his examination thereon before any other justice of the 1R. S. ch. 171, sec. 3. »Ib. sec. 6. s Ib. sec. 4. *Ib. sec. 7. SERVICE AND RETURN OF WARRANT. 199 peace, must be brought before the magistrate who issued the warrant ; or, if he be absent or unable to attend, before any other magistrate of the same county ; and the warrant, with a proper return thereon, signed by the person who made the arrest, must be delivered to the magistrate. 1 Of commanding assistance. If any person, being required in the name of the State, by any sheriff, deputy sheriff, coroner or con- stable, shall neglect or refuse to assist any of them in the execution of their office, in any criminal case, or in the preservation of the peace, or the apprehending and securing any person for a breach of the peace, or in any escape or rescue of persons arrested on civil process, he shall be punished by imprisonment in the county jail, not more than thirty days, or by fine not exceeding fifty dollars. 2 If any justice of the peace, upon view of any breach of the peace, or any other offence proper for his cognizance, shall require any person to apprehend and bring before him the offender therein, the person who shall refuse or neglect to obey, shall be punished as above pro- vided. 3 A verbal request for assistance is sufficient, and the aid or assistant, acting under such request, would be under the same protection of the law as the sheriff himself. 4 Neither is it necessary that the officer should be in sight at the time an arrest is made by his aid ; provided, it be believed they were both pursuing one business or object ; and an arrest by the aid or assistant under such circumstances would be to all intents and purposes as valid, as if the same had been made by the sheriff personally. 6 The officer making the arrest should bring the prisoner before the magistrate as soon as may be reasonably and conveniently done. If he is guilty, he should be put in a situation to meet the reward for his offences without delay; and if innocent, he is entitled to be discharged, without being unreasonably detained on an unjust charge. But if the time be unseasonable, as at or near the night, whereby he cannot attend the justice, or if there be danger of a rescue, or the party be ill, and unable at present to be brought, he may, as the case •lb. sec. 8. «13 Maas. 321. 2 R. S. ch. 158, sec. 26. »Ib 3 Ib. 200 JUSTICE OF THE PEACE. shall require, secure and detain him till the next day, or until it may be reasonable to bring him. 1 When an arrest has been made without warrant, the officer may, in some instances, take the party's word for his appearance before the magistrate ; and in practice, where the charge is of a trifling nature, and the defendant is of good repute, officers take upon themselves the responsibility of so doing. 2 If an officer, having arrested a party under a warrant, suffer him to go at large, under a promise to surrender himself and find sureties, the better opinion is that he can afterwards arrest him on the same process. 3 And it is clear that, where the prisoner has escaped from the officer, without any consent on his part, the officer is justified in retaking him. 4 This right of retaking also extends to the case where the person arrested is rescued. And in both, the justice may also grant a fresh warrant, reciting the former proceedings, the escape or rescue, and directing the apprehension of the offender. 5 A rescue signifies a forcible setting at liberty, against law, of a per- son duly arrested. It is necessary that the rescuer should have knowledge that the person whom he sets at liberty has been appre- hended for a criminal offence, if he be in the custody of a private person ; but if he be under the care of an officer, then he is to take notice of it at his peril. If any person shall convey into jail, or other place of confinement, any disguise, instrument, arms, or other thing, proper or useful to aid any prisoner in making his escape, and with intent to facilitate the eseape of any prisoner, there lawfully detained for any criminal offence, whether such escape be effected or attempted, or not; or shall, by any. means, aid or assist any such prisoner to escape, whether such escape be effected or not ; or shall forcibly rescue any prisoner, held in custody for any criminal offence, he shall be punished, when such prisoner was imprisoned or in custody for any felony, by imprisonment in the State prison not more than seven years ; and when such prisoner was impris- oned or in custody for any offence, not a felony, by imprisonment in iChitty's Cr. L. 59—10 Wend. 514. 4 Ib. 60. 'Chitty'e Cr. L. 59. »Vo. 62. 'lb. SERVICE AND RETURN OF WARRANT. 201 the county jail, not more than one year, or by fine not exceeding fire hundred dollars. 1 When the party accused is already in custody on a civil action, he may be there charged criminally, by leaving with the jailer, or officer in whose custody he may be, the warrant from the justice. The officer, on the termination of the civil imprisonment, takes the party before the justice of the peace, by whom he is examined, dis- charged, bailed or committed, as on an original accusation. 2 When the party is already in jail on a criminal charge, and fully committed for trial, the examination may be had at the jail, or at some convenient place near thereto, where the party may be present with the jailer. And it should in no event be conducted in the absence of the party, as he has the right, in a matter affecting his liberty, to be personally present at the hearing and examination. 3 Search warrants. In the service of these, as of all other warrants, the officer will be protected in all legal acts under a warrant proper upon its face, though it may have been illegally issued. 4 But he will look well to it that it contains a particular description of the property to be searched for, and the place to be searched, as else the precept will not avail him in defence of a suit against him for acts committed under it . 5 In the execution or service of search warrants, the following principles seem to be established : 1. That the warrant should be served in the day time, unless in cafie of necessity, and upon positive proof. 2. That the complainant should accompany the officer, in order to identify the goods. 3. If the doors are open, the officer may enter the suspected house, with his assistants, whether the goods are there or not. 4. If the doors are shut, the officer, after demand and refusal, may break them. 5. If, upon trial, it appears to the justice that the goods were stolen, he should lodge them in the officer's hands, who should keep them safely until the court. If the goods were not stolen, they should be returned to him from whose possession they were taken. »R. S. ch. 158, sec. 25. *13 Mass. 288. 2 I)av. Just. 81. 41b 289 =Ib. 82. 26 202 JUSTICE OF THE PEACE. 6. If the possessor knew not that they were stolen, he should be discharged as an offender, and recognized as a witness. II. OE THE KETURN. Every person arrested by -warrant for any offence, where no pro- vision is made for his examination thereon before any other justice of the peace, shall be brought before the magistrate who issued the war- rant ; or, if he be absent or unable to attend, before any other magis- trate of the same county ; and the warrant, with a proper return thereon, signed by the person who made the arrest, shall be delivered to the magistrate. 1 The officer, who shall arrest any person, charged as principal or accessory in any larceny, or with buying, receiving, or concealing stolen property, shall secure the property alleged to have been stolen, and shall be answerable for the same ; and shall annex a schedule thereof to his return ; and upon conviction of the offender, the stolen property shall be returned to the owner. 2 As in civil proceedings the return is made upon the back of the writ, so in criminal it is made upon the back of the warrant. The return, being the legal evidence of the service, is alike necessary in both. And in both it should state generally the mode of service, be signed by the officer, and a certificate of his fees be also annexed. iR. S. ch. 171, sec. 8. 2 R. S. ch. 156, sec. 14. CHAPTER IV- ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. The Revised Statutes have made certain many points of practice formerly considered doubtful. But it is manifestly impossible to reduce into a statute minute directions as to the whole course of proceedings, the various pleadings and issues which may arise, the effects of different pleas, the admissibility of witnesses, the kind of evidence required, and the credit to be attached to the various shades and classes of testimony. Every person arrested by warrant for any offence, where no provision is made for his examination thereon before any other justice of the peace, must be brought before the magistrate who issued the warrant ; or if he absent or unable to attend, before any other magis- trate of the same county; and the warrant, with a proper return thereon, signed by the person who made the arrest, must be delivered to the magistrate. 1 Any magistrate may adjourn an examination before himself, from time to time, not exceeding ten days at one time, and may take the recognizance of the party accused, with sufficient sureties, for his person- al attendance for the purpose before such magistrate ; but if the party is charged with a capital offence, he must be committed to prison in the mean time. 2 If the party so recognized do not appear, at any time appointed, before the magistrate, for further examination, the magistrate shall record the default, and certify his recognizance, with the record of the default, to the district court ; and the like proceedings shall be had thereon, as on a breach of the condition of a recognizance for appearance before the court. When such person shall fail to recognize, he may be committed to prison by an order from the magistrate, stating, in a summary manner, !R. S. ch. 171, 6 ec. 8. 3R. g, C h. Hi sec . 10 . J Ib. sec. 9. 204 JUSTICE OF THE PEACE. the offence with which he is charged, that he committed him for further examination on a future day, named in such order ; and on the day appointed, he may be brought before the magistrate, by his verbal order to the same officer by whom he was committed, or by a written order to a different person. 1 When a person, charged with the commission of an offence, is brought before a magistrate, he shall first examine under oath the complainant and witnesses to support the prosecution, in presence of the party charged, as to all pertinent facts. 8 Afterwards the witnesses for the prisoner shall be sworn and exam- ined, and he may be assisted by his counsel in the examination, and in the cross-examination of the complainant and his witnesses. 3 The witnesses against and for the prisoner may be examined, each one separately from all the others ; and the magistrate may keep the witnesses for the prisoner separate from those against him, during his examination, according to his sound discretion. 4 When the magistrate may think it necessary, he shall reduce to writing the testimony of any witness, and require him to sign it. s If, on examination, it shall appear on the whole evidence, that no offence has been committed, or that there is not probable cause for charging the prisoner with an offence, he shall be discharged. 6 But if it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner to be guilty, and if the offence be bailable by such magistrate, and sufficient bail be offered, it shall be taken, and the prisoner discharged ; but if the offence is not bailable by the magistrate, or no sufficient bail be offered, the prisoner shall be committed to prison to await a trial. If the offence charged be within the jurisdiction of such justice, he may proceed to try the same, and award sentence thereon. 7 We shall now consider 1. The arraignment. 2. The pleadings. 3. The nature and admissibility of evidence. 4. The trial. »R. S. ch. 171, sec. 11. 'lb. sec. 15. 2 Ib. sec. 12. «Ib. sec, 16. »Ib. sec. 13. 'lb. sec. 17. 4 Ib. sec. 14. ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. 205 I. THE ARRAIGNMENT. The arraignment consists of three parts : 1. Calling the prisoner to the bar by his name ; 2. Reading the complaint to him distinctly in English, that he may understand the charge ; 3. Demanding of him ■whether he is guilty or not guilty. The magistrate first calls upon the prisoner by his name, to be sure of his identity, requiring him to rise, and hearken to the complaint brought against him. The prisoner should then rise, and listen to the reading of the complaint, which is accordingly read to him by the mag- istrate, clearly and distinctly. The magistrate having finished reading the complaint, demands of the prisoner, " What say you to this complaint 7 Are you guilty or not guilty]" In doing this, if the offence be one of any magnitude, he should caution the prisoner against making any confessions or admissions which may prejudice him on his trial, and perhaps might sometimes go so feir as to advise him against such a course. If the prisoner plead to this that he is guilty, no trial of course follows. The magistrate enters in his docket that the prisoner appears, is arraigned, and pleads guilty. He then proceeds to impose the sentence of the law upon the offence, a minute of which is likewise made in the same place. When any person, indicted for any crime or offence, shall stand mute and make no answer to the charge, the court shall order the plea of not guilty to be entered, and the same proceedings shall be had, as if he pleaded not guilty. 1 The prisoner may also impliedly confess his guilt by pleading nolo contendere — which means that he is unwilling to contend with the State and throws himself on the mercy of the court. It is discretion- ary with the court to receive it or not. The advantage which a party obtains by such an answer is, that he is not stopped from pleading not guilty to an action for the same facts, as he would be upon a plea of guilty. 2 If he receives the plea, the magistrate will enter it in his docket, and 1R. S. ch. 172, sec. 16. =9 Pick. 207. 206 JUSTICE OF THE PEACE. will proceed to sentence him ; of which sentence, as of all other pro- ceedings, he will enter the proper minutes. If the party do not plead guilty, or stand mute, or confess and throw himself on the mercy of the court, but one other course is left him, namely — to plead in defence, either by taking measures to dismiss the proceedings, pleading specially matter in bar, or generally that he is not guilty. II. THE PLEADINGS. These form the issue which the State is to join with the defendant, and which, of course, are preliminary to the hearing and examination. In ordinary cases no plea is put in except the general plea of "not guilty." But as a party is entitled to all the pleas and matters of defence before a justice for an offence within his jurisdiction, that he is by law entitled to in a trial in the higher courts, it has been thought advisable to devote a few words to the mode of forming the various issues in criminal proceedings. It may in this connection be remarked that when, in the course of a suit from any cause, a party is placed in such a situation that justice cannot be done in the trial, without the aid of the information to be obtained by means of a specification or bill of particulars, the court has power to direot such information to be seasonably furnished, and in an authentic form ; and that such an order may be effectual and accom- plish the purpose intended by it, the party required to furnish a bill of particulars, must be confined to the particulars specified. 1 This rule applies as well to civil as criminal proceedings, and the remarks upon bills of particulars in a former part of this treatise may be referred to in this connection. 8 Such a bill of particulars constitutes no part of the record, and is not open to demurrer. 3 Pleas may be — 1. Pleas to the jurisdiction of the justice ; 2. De- murrers ; 3. Pleas in abatement. 4. Pleas in bar. Besides these there may be motions to quash, which are of the same nature and governed by the same rules as motions to dismiss in civil proceedings. When a motion to dismiss can be entertained is considered in a pre- vious part of this volume. 4 It is there said that it can be entertained only 115 Pick. 331. °H Pick. 435. "See Page 50. 4 See Page 44. ARRAIGNMENT, PLEADINGS TRIAL, AND WITNESSES. 207 ■when the matter of exception is apparent upon the face of the proceed- ings, or, more plainly, -when the magistrate may have information of the defect, without proof of facts apart from the papers before him. The same rule prevails in criminal proceedings. If, for instance, it appears in complaint; for a petty larceny before a magistrate in the county of Cumberland that the offence was committed within the county of York, and more than one hundred rods from the boundary, and the fact appears by the complaint itself, it may be taken advantage of by a motion to quash the complaint. A correct practitioner will reduce to writing all motions to quash, pleas in abatement, demurrers, pleas to the jurisdiction, and special pleas in bar, upon each of which, as upon all papers, the magistrate should, as in civil proceedings, note the day of the filing, and attest the same, and should also, as in every thing else done in the case, minute in his docket what has been done. A plea to the jurisdiction may be made where a justice undertakes to try and decide upon an offence of which he has no cognizance, and may be made without answering to the complaint. A demurrer admits, for the time, the truth of the matter alleged, and denies that it constitutes in law an offence. The demurrer puts the legality of the whole proceedings in issue, and compels the court to examine the validity of the whole record. When once a demurrer is filed, the defendant cannot withdraw it without the consent of the complainant, or at least without the permission of the court. The judgment on a demurrer in felonies, if for the State, is that the defend- ant answer over ; in misdemeanors, a conviction. A demurrer is seldom resorted to in criminal practice. 1 When a plea in abatement, or other dilatory plea to an indictment, is offered, the court may refuse to receive it, until the truth of it shall be proved by afiidavit, or other evidence. 2 Pleas in bar have been divided into — 1. A former acquittal ; 2. A former conviction ; 3 .Matter of record, pardons, &c. ; 4. Not guilty ; 5. Special pleas. The first two pleas are founded on the principle that no man shall he placed in peril of legal penalties more than once on the same accu- sation. 3 •Chitty's Crim. Law, 439—444. =Ch. Cr. Law, 434. *R. S ch. 172, sec. 27. 208 JUSTICE OF THE PEACE. No person can be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law ; nor shall private property be taken for public use, without just compensation. 1 The essence of a plea of former acquittal is that the defendant has been acquitted of the same offence in due form, by a court competent to make a final disposition. 8 The general rule laid down in the books is that the previous complaint or indictment must have been one on which the defendant could have been legally convicted, upon which his life or liberty was not merely in imaginary but in actual danger, and consequently in which there was no material error. 3 The test formerly in determining whether a former acquittal, admitted to be for the same offence, could be pleaded in bar, was, whether in fact the party pleading had before been put in jeopardy. And, where the indictment was deficient in form or substance, and no judgment could be rendered on it, because it was to be deemed a nullity, wholly inoperative and void, and upon which no judgment could be rendered, it was said that here the party, not having been put in jeop- ardy by the first arraignment, could not offer the acquittal in bar to a second indictment for the same offence. 4 The plea of a former acquittal or former conviction must be on a prosecution for the same identical act and crime. It must therefore appear to depend upon facts so combined and charged as to constitute the same legal offence or crime. It is obvious, therefore, that there may be great similarity in the facts, where there is a substantial legal difference in the nature of the crimes ; and on the contrary there may be considerable diversity of circumstances, where the legal character of the offence is the same. 5 »Const. U. S. Amendments, Art. v.— 3 Ch. Cr. L., 454 Const, of Maine, Art. 1, sec. 8. 4 12 Pick., 502. 2 11 N. H., 156. *Ib. 503. ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. 209 In considering the identity of 'the offence, it must appear by the plea that the offence charged in both cases was the same in law and in fact. The plea will be vicious, if the offences charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact. But it is not necessary that the charges in the two indictments should be precisely the same ; it is sufficient if an acquittal from the offence charged in the first indictment virtually includes an acquittal from that set forth in the second, however they may differ in degree. 1 The true test to determine whether an acquittal or conviction upon one indictment is a good bar to another has been declared as follows ; " Unless the first indictment were such as the prisoner might have been convicted upon, by proof of the facts contained in the second indict- ment, an acquittal on the first indictment can be no bar to the second." 2 When the plea is found against the defendant, he will be put to plead again to the indictment, or complaint, and the trial will proceed as if no previous proceedings had passed. 3 It hardly need be said that a former conviction, procured by fraud of the defendant, is no bar to a subsequent prosecution for the same offence. 4 Besides these, the defendant may plead any other special matter in law, or he may plead the general issue, that he is not guilty. This last is generally done verbally ; the others should be done in writing, the magistrate minuting on the back the day of the filing, and attesting the same as in civil proceedings. And it may be observed that the defendant cannot plead both special matter in bar, and the general issue, because duplicity is not allowed in pleadings. 5 When the defendant has any special matter to plead in abatement or bar, as a misnomer, a former acquittal or conviction, &c, he should plead it at the time of the arraignment, before the plea of not guilty. 6 And when he once has pleaded, he is bound to abide by the defence which he has chosen, and cannot, as a matter of right, withdraw it, in order to rely on another. But a plea of not guilty may be withdrawn in order to confess the complaint. And the court may allow the defendant, as a matter of favor, to withdraw the plea of the general issue, H2 Pick. 503. H N. H. 257. "lb. 6 1 Ch. Cr. L. 472. =13 Mass. 460. «Ib. 435. 27 210 JUSTICE OF THE PEACE. and object to the jurisdiction before -which the trial is to proceed. So leave will, in some cases, be granted to the defendant to •withdraw a plea, and enter a demurrer in its place ; and by leave a demurrer may be withdrawn. 1 III. THE NATURE AND ADMISSIBILITY OE EVIDENCE. 1. Witnesses. In a former part of this work, we have treated of the nature and admissibility of evidence in civil proceedings, the method of restoring the competency of witnesses, the mode of adminis- tering the oath, and the power of compelling the attendance of witness- es. The general principles are the same in both civil and criminal proceedings. The constitution of the United States provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and just trial ; to be confronted with the witnesses against him ; and to have compulsory process for obtaining witnesses in his favor. 2 It also provides that no person shall be compelled, in any criminal case, to be a witness against himself. 3 The same provisions are incorporated into the constitution of Maine. 4 As the rights of the accused are protected, so are those of witnesses. It is a well understood rule of law that, in no event, can a witness be obliged to testify to any facts which tend to criminate himself. It sometime happens that a witness tries to screen an offender, by refus- ing to answer pertinent questions, because the answer will criminate himself. When such is the case, the magistrate will remember that the answer must be one disclosing some matter involving a direct crim- inal accusation against the witness. It is not enough that it will involve him in pecuniary loss or injure his reputation, if it do not expose him to a criminal prosecution, or subject him to a penalty or forfeiture. 5 But if the fact to which he is called upon to testify would thus subject him to a penalty or forfeiture, or expose him to a criminal prosecution, he is not bound to answer it. And he is not only not compelled to answer such a question, but he will also be protected in refusing to disclose any fact, if a full account of his knowledge of such ■Ch. Cr. Law, 436-7. 4 Const. of Maine, sec. 6. a Const. U. S. Amend. Art. 6. *22 Pick. 476. »Ib. Art. 5. ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. 211 •fact would so expose him.' But if he voluntarily state a fact, he is bound to state how he knows it, though in so doing he may expose himself to a criminal charge. 2 A witness was called to prove the fact of his poverty, to which he spoke fully. _ He was then inquired of whether he had not property to a considerable amount some years previous, which he admitted. He was then asked how said property had been disposed of, to which he replied, that he could not disclose without subjecting himself to prose- cution for a crime. Held that he might claim privilege. 3 The court are the judges of the tendency of the inquiry. And if the magistrate is satisfied that the question proposed has a tendency to charge the witness criminally, he will not compel an answer.* But although no person can be compelled to furnish evidence against himself, no species of testimony is more common in criminal proceed- ings than confessions or admissions of the prisoner. Such confessions or admissions should be taken with caution. Their value depends on the supposition that they are both deliberate and voluntary. For, besides the danger of mistake from the misapprehen- sion of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope and fear to make an untrue confession. The case of the Boons in Vermont, is a familiar instance of a deliberate confession of guilt by two innocent men, made in the hope of thereby saving themselves from an unjust punishment. Misjudging friends advised them to this course, to avoid a certain eonviction on strong circumstantial evidence ; and one of them barely escaped the severest penalties of the law, by the return of the man, supposed to be murdered, before the day of the execution. The zeal, too, which so generally prevails to detect offen- ders, especially in cases of aggravated guilt, and the strong disposition, in the persons engaged in the pursuit of evidence, to rely on slight grounds of suspicion, which are exaggerated into sufficient proof, togeth- er with the character of the persons necessarily called as witnesses in cases of secret and atrocious crime, all tend to impair this species of '9N. H. 110. »9 N. H. 110. 2 4N. H. 562. *21Picft. 186. 212 JUSTICE OF THE PEACE. evidence, and sometimes lead to its rejection where, in civil proceedings it would have been received. 1 Confessions are divided into two classes— -judicial and extrajudi- cial. Judicial confessions are those which are made before magistrates or in court, in the due course of legal proceedings. And it is essential that they be made of the free will of the party, and with full and perfect knowledge of the nature and consequences of the confession ; and o this kind is the plea of guilty. 2 When the party is brought before the magistrate, he should be cau- tioned that he is not bound either to accuse himself, or confess his guilt, and that any confession or admission of that nature may be pro- duced in evidence against him on his trial. And at all events, no improper influence, either by threats or promises, ought to be employed ; for, however slight the inducement may have been, a confession so obtained cannot be received in evidence. 3 So too, he should be careful that he be not imposed upon by collu- sive confessions. An illustration in point is given in Davis's Justice. Two brothers committed a robbery, and fled. The younger brother, who was innocent, in order to favor their escape, when examined, dropped hints amounting to a constructive admission of his guilt ; on this he was committed to prison, and the pursuit of his. brothers dis- continued. On his trial he proved an alibi, and obtained an easy acquittal; and in, the mean- time the actual felons escaped with their plunder. Extra-judieal confessions are those which are made elsewhere than before a magistrate or in court ; this term embracing not only explicit and express confessions of crime, but all those admissions of the accused from which guilt may be implied. All confessions of this kind are receivable in evidence, being proved like other facts, to be weighed by the magistrate. 4 A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers ; but a confession forced from the mind by the flattery of hope, or by the l l Green, on Ev., sec. 214 and note. 3 Davis's Just. 107. 2 Ib. sec. 216. *1 Green, on Ev., sec. 216. ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. 213 torture of fear, comes in so questionable a shape, when it is to be con- sidered as the evidence of guilt, that no credit ought to be given to it, and therefore it is rejected. 1 But where a verbal confession is made, under hopes of pardon, or of mercy, or of favor held out as inducements, and those hopes are realized, and the prisoner makes a second confession, voluntarily, and not induced by any persuasion or external influence, though the evi- dence of the verbal confession would be excluded on the principle above stated, yet the written confession may be used in evidance, because the motive supposed to have induced the first confession, being removed, must have ceased to operate. 2 And whenever it appears that the influence of the promises or threats had been wholly done away with before the confession was made, the confession will be received. 3 If the party has made his calculation of the advantages to be derived from confessing, and thereupon confesses, there is no reason to say that it is not a voluntary confession. It seems that, in order to exclude a confession, the motive of hope or fear must be directly applied by a third person, and must be sufficient, in the judgment of the court, so far to overcome the mind of the prisoner, as to render the confession unworthy of credit.* Greenleaf on Evidence thus illustrates the rule under consideration : Where the prosecutor said to the prisoner, " Unless you give me a more satisfactory account, I will take you before a magistrate," evi- dence of the confession was thereupon rejected. It was also rejected where the language used by the prosecutor was, " If you will tell me where my goods are, I will be favorable to you ;" — where the constable who arrested the prisoner said, "It is of no use for you to deny it, for there are the man and boy who will swear they saw you do it;" — where the prosecutor said, " He only wanted his money, and if the prisoner gave him that, he might go to the devil if he pleased ;" — and where he said he should be obliged to the prisoner if he would tell all he knew about it, adding, " If you will not, of course we can do noth- ing," meaning nothing for the prisoner. So, where the prisoner's superior officer in the police said to him, " Now be cautious in the UO Pick. 490. n Green, on Ev., sec. 22-1. 2II >- *Ib. sec. 220, n. 5. 214 JUSTICE OF THE PEACE. answers you give me to the questions I am going to put to you about the watch," the confession was held inadmissible. 1 Though it is necessary to the admissibility of the evidence that the confession should have been made voluntarily, yet it is not necessary that it should have been the spontaneous act of the prisoner. It will be received though it were induced by spiritual exhortations, whether of a clergyman or any other person ; by a solemn promise of secrecy, even confirmed by an oath ; or by reason of the prisoner's having been made drunken ; or by promise of some collateral favor, having no reference to the criminal charge ; though deception may have been practised, if the deception did not hold out inducement to make a false confession ; and even though it were drawn out by questions. 2 In the proof of confessions it is material that the whole of what the prisoner said should be put in. The statement of the prisoner may have been limited. Qualifications may have been annexed to it, either entirely removing his guilt, or materially qualifying its degree. Sound reason, good law, and common humanity, terms it is hoped not at all opposed to each other, alike point out such a course as absolute- ly necessary. Much that has been said on the subject of confessions, applies only to direct confessions by the prisoner of his guilt. We have seen that there may also be implied confessions. A familiar instance of this is the finding of stolen property in the place where the prisoner directed a search. This is strong presumptive proof that he concealed it there, and as such is pertinent evidence to the issue. The confirmation of the statement makes it proper to inquire whether he confessed that it was concealed there, and whether it was there found. But the inquiry is limited at this point ; and it would not be proper to go into the inquiry whether he confessed that he concealed it there. And as the admissibility of the evidence rests on the confirmation of the story, if the search proves ineffectual, no proof either of the confession or the search will be received. 3 The confessions of an accomplice are sometimes offered in evidence. These partake more of the nature of the admissions of a partner or agent. As in civil cases, when once the fact of an agency or partner- l l Green, on Ev., sec. 221. 3 Ib. sees. 231-2. 2 Ib. sec. 229. ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. 215 ship is established, the acts and declarations of one, in furtherance of the common business, are deemed binding on the other, so in cases of conspiracy, riot, or other crimes, when once the conspiracy or combi- nation is established, the acts or declarations of each in the prosecution of the enterprise, are binding on all. But the rule ceases with the combination, and acts made after the termination of the partnership in crime, whether by the success or abandonment of the enterprise, are inadmissible. 1 These confessions, however, are to be taken with great caution, and must be corroborated by other evidence, as the accomplice usually anticipates some advantage to himself by the confession. In this connection it may be well to state certain provisions of the Revised Statutes relative to the admissibility of evidence in certain criminal cases. In prosecutions for forging or counterfeiting any notes or bills of the banks of the State, or for uttering, publishing, or tendering in payment as true, any forged or counterfeit bank bills or notes, or for being possessed thereof with intent to utter and pass the same as true, the testimony of the president or cashier of any bank may be dispensed with, if he resides out of the State, or more than forty miles from the place of trial ; and any other person acquainted with the signature of such officers, or having knowledge of the difference between the true and counterfeit bills of such bank, may be admitted as a witness, to prove that the same are forged or counterfeit. 2 In prosecutions for forging, altering, or counterfeiting any public security, issued under the authority of the United States, or of any State or territory, or for uttering and publishing the same, or being possessed thereof with intent to utter and pass the same, the certifi- cate under oath of the secretary of the treasury, or treasurer of the United States, or of the secretary or treasurer of any State or territo- ry, on whose behalf such security purports to be issued, of the tenor of the true bill of credit or other public security alleged to be forged or altered, shall be admitted in evidence. 3 In the act for the suppression of drinking houses and tippling shops passed June 2, 1851, it is provided that the prosecutor or complainant may be admitted as a witness in the trial. 4 •lb., sec. 223. 31b. sec. 11. S R. S. ch. 157, sec. 10. «Acts of 1851. 216 JUSTICE OF THE PEACE. The same rule in regard to parties to the record prevails in criminal as in civil proceedings. They are not suffered to testify in their own favor, nor are they compellable to furnish evidence against themselves ; where, therefore, two were indicted for uttering a forged note, and the trial of one was postponed, it was held that he could not be called as a witness for the other.* The rule ceases to operate when the witness offered ceases to be a party to the record. After one of several defendants has been convic- ted by his own confessions or otherwise, and the conviction does not make him incompetent, there seems to be no good reason why he should not be allowed to testify for or against the other defendants ; for, after conviction, he is no longer a party to the issue. 2 A distinction in the proof required of the commission of offences within the final, and those within the initial, jurisdiction of a magistrate should be noticed, before proceeding further. Undoubtedly, in matters within his final jurisdiction, the same strictness of proof is neccessary as in criminal proceedings in higher courts. The presumption of law is in all cases in favor of the inno- cence of a man till he is proved guilty. But the same strictness of proof is not required, where the magis- trate has no right to exercise final jurisdiction over the offender. If, in such case, it manifestly appears either that no crime was committed, or that there are no circumstances connecting the prisoner with its commission, unquestionably it is the duty of the magistrate to dis- charge him. The justice is merely to satisfy himself that "there is probable cause to believe the prisoner guilty." 5 2. Proofs. No evidence is admissible, which does not tend to prove or disprove the issue joined. Evidence is divided into — 1. Prima facie. 2. Conclusive. 3. Direct. 4. Circumstantial. »10 Pick. 57. *R. S. ch. 171, sec. 17. 2 Ib. ARRAIGNMENT, PLEADINGS, TRIAL AND WITNESSES. 217 Prima facie evidence is that which raises the degree of probability in favor of the hypothesis, but -which can, nevertheless, be rebutted. Conclusive evidence, on the other hand, tends to exclude any other hypothesis than the one attempted to be established. Direct evidence is the testimony of those who speak from their own actual personal knowledge of the thing to be proved. It differs from circumstantial evidence, in that the proof applies immediately to the fact to be proved, without any intervening process, and is therefore called direct or positive testimony. 1 Circumstantial evidence is evidence not directly proving or disprov- ing the allegations, but proving some other matters from which the truth or falsehood of the allegations is to be inferred. It is allowed, not because it is necessary, but because it is capable of the highest degree of moral certainty. The following principles have been said to be essential to the validi- ty of circumstantial evidence : First. The circumstances from which the conclusion is to be drawn should be fully established. Second. All the facts should be consistent with the hypothesis. Third. The circumstances should be of a conclusive nature and tendency. Fourth. The circumstances should, to a moral certainty, exclude every hypothesis but the one proposed to be proved. Fifth. Circumstantial evidence ought in no case to be relied upon, where direct or positive testimony is withheld wilfully by the prose- cutor. IV. OF THE TRIAL. The arraignment is preliminary to the trial. When this is complet- ed, the plea put in, and the issue joined, the counsel for the State, if any appears, opens the case on the part of the government, stating what he expects to prove, and calling his witnesses, who are to be sworn and examined. If no counsel appears for the government, the presiding magistrate will himself put such questions as may be neces- sary to elicit the truth, guarding carefully against exhibiting or per- mitting himself to feel any bias, either in favor of the State or the accused. U Green, on Ev., sec IS. 28 218 JUSTICE OF THE PEACE. As in civil proceedings, so here, each party has in turn the right of cross examination. We have already seen that a magistrate may, •while examining a witness, exclude all other witnesses from the place of examination ; and that he may also, if requested, or if he see fit, direct the witnesses for or against the prisoner to be kept separate, so that they cannot converse with each other, until they shall have been examined. 1 We have also seen that he may, if he see fit, reduce the evidence to Writing, and cause it to be signed by the witness. 2 After the witnesses for the government have been examined and cross examined, the defendant opens his case, stating the grounds of his defence, and what he expects to prove. He then calls his witnesses, who are in their turn subjected to a cross examination. If the government has any rebutting testimony, it is put in, in this stage of tho case. But evidence merely additional to what has been already offered; should not be received in rebutter. If the defendant has any thing farther to offer, he follows with it in reply. When the evidence is all in, the counsel have the right, if they see fit, to com- ment upon it, to which comments the magistrate will give such weight as they deserve. He will then adjudicate upon the facts and the law presented in the issue, applying each to the other, and remembering that the burden of proof is upon the government, if the offence be one within the final jurisdiction of a magistrate, to prove the guilt of the accused beyond all reasonable doubt, and if the offence be one beyond his final jurisdiction, at least to raise a reasonable suspicion connecting the party on trial with the commission of the alleged offence. ^See Page 204. 3 Ib. CHAPTER V. OF CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. I. CONVICTION. The remarks which follow, in this chapter, are applicable alone to offences within the final jurisdiction of a magistrate. In offences beyond that, he has no authority to convict or sentence, and, of course, there can be no appeal. t No person charged with any offence against the law, shall be pun- ished for the same, unless he shall have been duly and legally convicted thereof, in a court having competent jurisdiction of the cause and person. 1 When any person shall be legally convicted of any offence, for the punishment of which no provision is made by statute, the court shall award such sentence as is conformable to the common usage and prac- tice in this State, according to the nature of the offence, and not repugnant to the constitution. 2 All imprisonments for a less term than one year shall be in the county jail or house of correction. 3 Whenever it is provided, that an offender shall be punished by imprisonment and a fine, the court may sentence him to either of .these punishments without the other, or to both. 4 Every court, before whom any person shall be convicted of an offence, not punishable by death or confinement in the State prison, may, in addition to the punishment by law prescribed, require such person to recognize to the State with sufficient sureties, in a reasonable sum, to keep the peace or be of good behavior, or both, for a term not exceeding two years, and stand committed till he shall so recognize. 5 'R. S. ch. 167, sec. 1. "R. S. ch. 168, sec. 4. *R. S. ch. 168, sec. 1. *Ib. sec. 5. 3 R. S. ch. 167, sec. 11. 220 JUSTICE OF THE PEACE. II. OF THE SENTENCE. We purpose now to consider, in this connection, the degrees of pun- ishment 'which may be awarded to the various offences already shown to be within the final jurisdiction of a magistrate. Drunkenness. Any person, who shall be guilty of drunkenness, by the voluntary use of intoxicating, liquor, shall, for the first offence, be punished by a fine not exceeding five dollars; and for any like offence, committed after the first conviction, shall be punished by a fine not exceeding ten dollars, or by imprisonment in the county jail or house of correction, not more than three months ; but no prosecution therefor shall be commenced after three months from the commission ' of the offence. 1 Vagabonds and public disturbers. Any justice of the peace may commit to the house of correction, to be kept, employed and governed, according to the rules and orders thereof, all rogues, vagabonds and idle persons, going about in any town or place in the county begging, or persons using any subtile craft, juggling, or unlawful games or plays, or, for the sake of emolument, feigning to have knowledge in physiognomy, palmistry, or, for the like purpose, pretending that they can tell destinies or fortunes, or discover where lost or stolen goods may be found ; common pipers, fiddlers, runaways, common drunk- ards, common night walkers, pilferers, persons wanton or lascivious in speech or behavior, common railers or brawlers, such as misspend what they earn, and do not provide for themselves or their families. 2 Persons convicted of any of the aforesaid offences, may be committed to the house of correction for a term not exceeding thirty days. 3 If any person shall ride with a naked scythe, sharpened and hung in a sneath, on the highways, or in any lanes, streets or alleys, he shall forfeit two dollars. 4 If any persons, to the number of three or more, between sun setting and sun rising, being assembled together in any of the streets or lanes in any town, shall have any kind of imagery, or pageantry, for a public show, whether armed or disguised, or requiring or receiving money, or any thing of value on account of the same, or not, they iK. S. ch. 160, sec. 36. 3 Ib. sec. 10. *K. S. ch. 178, see. 9. 4 R- S ch. 31, sec. 11. CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 221 shall forfeit the sum of eight dollars each, or be imprisoned for a term not exceeding one month. 1. If any person shall set fire to any pile of combustible stuff, or be in any wise concerned in causing or making a bonfire in any street or lane, or any other part of any town, such fire being within ten rods of any house or building, he shall, for each offence, forfeit the sum of eight dollars, or be imprisoned for a term not exceeding one month. 2 Profanity. If any person, arrived at years of discretion, shall profanely curse or swear, upon being convicted thereof, on complaint before any justice of the peace, he shall be punished by a fine, not exceeding two dollars ; and for a subsequent offence of the like kind, committed after a previous conviction, by a fine not exceeding five dollars ; provided the complaint be made within twenty days after commission of the offence. 3 Violation of the Lord's day, and disturbing public worship. If any person on the Lord's day, or at any other time, shall wilfully interrupt or disturb any assembly of people for religious worship, within the place of such assembly or out of it, he shall be punished by imprisonment in the county jail not more than thirty days, or by fine not exceeding ten dollars.* If any person shall sell or expose to sale, within one mile from any assembly of people met for religious worship, during the time of such meeting, any refreshments or any kind of merchandise, or exhibit any shows or plays, or aid in any horse racing, gaming or other sports, whereby such meetings shall be disturbed, he shall be imprisoned in the county jail not more than thirty days, or by fine not exceeding ten dollars. 6 If any person shall, on the Lord's day, within the walls of any house of public worship, behave rudely or indecently, he shall be punished by fine not exceeding ten dollars, or by imprisonment in the county jail not more than thirty days. 6 If any person shall, on the Lord's day, keep open his shop, work- house, or warehouse, or travel, or do any work, labor, or business on that day, works of necessity or charity excepted, or use any sport, game or recreation, or be present at any dancing, public diversion, l R. S. ch. 31, sec. 12. 4 Ib. sec. 23. Hb. sec. 13. *Acts of 1848, ch. 53, sec. 1. a R. S. ch. 160, sec. 22. «R. S. ch. 160, sec. 25. 222 JUSTICE OF THE PEACE. show or entertainment, encouraging the same, he shall be punished by a fine not exceeding ten dollars. 1 If any innholder, or other person, keeping a house of public enter- tainment, shall, on the Lord's day, suffer any persons, not being travelers, strangers or lodgers in such house, to abide and remain in his house, yard, orchard or field, drinking, or spending their time idly or at play, or in doing any secular business, works of necessity or charity excepted, he shall be punished by a fine, not exceeding four dollars for every person so suffered to abide and remain ; and upon any subsequent conviction, he shall be punished by a fine not exceeding ten dollars for each offence ; and, upon a third conviction, he shall also be incapable of holding a license ; and every person so abiding, drink- ing, and spending his time, shall be punished by a fine, not exceeding four dollars, for each offence. 8 For the purposes of the provisions of the two preceding sections, the Lord's day is construed to include the time between the midnight pre- ceding, and the sun setting of the same day. 3 If any person, on the evening preceding or following the Lord's day, shall be present at any dancing or other public diversion, except concerts o'f sacred music, or shall then use any sport, game or recrea- tion, or if any innholder or keeper of a public house, shall then suffer to abide and remain in his house or places appurtenant, any persons drinking, or spending their time idly or at play, such persons, not being travelers, strangers or lodgers in such house, shall be punished by a fine not exceeding three dollars. 4 No person, who conscientiously believes that the seventh day of the week ought to be observed as the sabbath, and actually refrains from secular labor and business on that day, is liable to the before mentioned penalties for performing secular business and labor on the Lord's day, provided he disturbs no other persons. 5 The complaint for violations of the Lord's day must be made within six months next after the commission of the offence. 6 Gaming. If any person shall play at cards, dice, or billiards, or with any other implements used in gaming, in any tavern or house of entertainment, or in any of the out houses, yards, gardens or appen- iR. S. ch. 160, sec. 26. *Ib. sec. 29. »R. S. ch. 160, sec. 27. 6 It>. sec. 30. »Ib. sec. 28. «Ib. sec.Sl. CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 223 dages of the same, or shall, in any of the houses aforesaid, expose to view any of such implements, or shall he seen sitting at any table therein, -with any of such implements before him, and shall be convict- ed thereof, he shall pay a fine, not less than one, nor more than ten dollars, to the use of the town where the offence was committed. 1 If any person shall, for money or other thing, play in any house, shop, or other place resorted to for the purpose of gaming, or bet on any person so playing, he shall pay a fine of not less than one dollar nor more than twenty dollars ; to be recovered on complaint before a justice of the peace, or before the district court^ on indictment. 8 If any person shall commit the above offence any where, he shall receive like punishment, except that, when it is on complaint before a justice, the fine shall not exceed ten dollars.' Violations of the act " for the suppression of drinking houses and tippling shops." If any person, by himself, clerk, servant or agent, shall at any time sell any spirituous or intoxicating liquors, or any mixed liquors, part of which is intoxicating, in violation of law, he shall pay on the first conviction, ten dollars and the costs of prose- cution, and shall stand committed until it be paid ; on the second conviction he shall pay twenty dollars and the costs of prosecution, and stand committed until it be paid ; on the third and every subsequent conviction, he shall pay twenty dollars and the costs of prosecution, and and shall be imprisoned in the common jail, not less than three months, nor more than six months ; and in default of the payment of the fines and costs prescribed for the first and second convictions, the convict shall not be entitled to the benefit of chapter one hundred and seventy five of the Revised Statutes, until he shall have been imprisoned two months ; and in default of payment of the fines and costs provided for the third and every subsequent conviction, he shall not be entitled to the benefit of said chapter one hundred and seventy-five of the Revised Statutes, until he shall have been imprisoned four months. And if any clerk, servant, agent, or other person in the employment or on the premises of another, shall violate the provisions of the law, he shall be held equally guilty with the principal, and, on conviction, shall suffer the same penalty. 4 »R. S. ch. 35, sec. 6. »R. S. ch. 160, sec. 38. 3 Ib. sec. 8. *Act of 1851, Bee. 4. 224 JUSTICE OF THE PEACE. Any forfeiture or penalty arising under the preceding section, may be recovered by an action of debt, or by complaint before any justice of the peace, or judge of any municipal or police court, in the county where the offence was committed. And the forfeiture so recovered shall go to the town where the convicted party resides, for the use of the poor. 1 If any three persons, voters in the town or city where the complaint shall be made, shall, before any justice of the peace or judge of any municipal or police court, make complaint that they have reason to believe, and do believe, that spirituous or intoxicating liquors are kept or deposited, and intended for sale, by any person not authorized to sell the same, in said city or town, in any store, shop, warehouse or other building or place in said city or town, said justice or judge shall issue his warrant ofsearch to any sheriff, city marshal or deputy, or to any constable, who shall proceed to search the premises described in said warrant ; and if any spirituous or intoxicating liquors are found therein, he shall seize the same, and convey them to some proper place of security, where he shall keep them until final action is had thereon. But no dwelling house in which, or in part of which, a shop is not kept, shall be searched, unless at least one of said complainants shall testify to some act of sale of intoxicating liquors therein, by the occu- pant thereof, or by his consent or permission, within at least one month of the time of making said complaint. And the owner or keeper of said liquors, seized as aforesaid, if he shall be known to the officer seizing the same, shall be summoned forthwith before the justice or judge by whose warrant the liquors were seized, and if he fails to appear, or unless he can show by positive proof, that said liquors are of foreign production, that they have been imported under the laws of the United States, and in accordance therewith, that they are contained in the original packages in which they were imported, and in quanti- ties not less than the laws of the United States prescribe, they shall be declared forfeited, and shall be destroyed by authority of the written order to that effect of said justice or judge, and in his presence, or in the presence of some person appointed by him to witness the destruc- tion thereof, and who shall join with the officer by whom they have been destroyed, in attesting that fact upon the back of the order, by •Act of 1851, sec. 5. CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 225 authority of which it was done ; and the owner or keeper of such liquors shall pay a fine of twenty dollars and costs, or stand committed for thirty days, in default of payment, if in the opinion of the court said liquors shall have been kept or deposited for the purposes of sale. And if the owner or possessor of any liquors so seized shall set up the claim that they have been regularly imported under the laws of the United States, and that they are contained in the original packages, the custom house certificates of importation and proofs of marks on the casks or packages corresponding thereto, shall not be received as evidence that the liquors contained in said packages are those actually imported therein. 1 If the owner, keeper or possessor of liquors, seized under the provis- ions of this act, shall be unknown to the officer seizing the same, they shall not be condemned and destroyed until they shall have been adver- tized, with the number and description of the packages as near as may be, for two weeks, by posting up a written description of the same in some public place, that if such liquors are actually the property of any city or town in the State, and were so at the time of the seizure, and were purchased for sale by the agent of said city or town, for medicinal and mechanical purposes only, in pursuance of the provisions of this act, they may not be destroyed ; but upon satisfactory proof of such own- ership, within said two weeks, before the justice or judge by whose authority said liquors were seized, said justice or judge shall deliver to the agent of said city or town an order to the officer having said liquors in custody, whereupon said officer shall deliver them to said agent, taking his receipt therefor upon the back of said order, which shall be returned to said justice or judge. 2 Nothing contained in the above act is to be construed to prevent any chemist, artist or manufacturer in whose art or trade they may be neces- sary, from keeping at his place of business such reasonable and proper quantity of distilled liquors as he may have occasion to use in his art or trade, but not for sale. 3 It shall be the duty of any mayor, alderman, selectman, assessor, city marshal, deputy or constable, if he shall have information that any intoxicating liquors are kept or sold in any tent, shanty, hut or •Act of 1851, sec. 11. 31b, sec. 13. 2 Ib. sec. 12. 29 226 JUSTICE OF THE PEACE. place of any kind for selb'ng refreshments in any public place on or near the ground of any cattle show, agricultural exhibition, military muster, or public occasion of any kind, to search such suspected place, and if such officer shall find upon the premises any iatoxicatingdrinks, he shall seize them, and arrest the keeper or keepers of such place, and take them forthwith, or as soon as may be, before some justice or judge of a municipal or police court, with the liquors so found and seized ; and upon proof that said liquors are intoxicating, that they were found in possession of the accused, in a tent, shanty or other place as aforesaid, he or they shall be sentenced to imprisonment in the county jail for thirty days, and the liquor so seized shall be destroyed by order of said justice or judge. 1 Larceny. Every justice of the peace, in his proper county, shall have concurrent jurisdiction of larcenies committed by stealing of the property of another, any money, goods or chattels, any writ, process or public record, any bond, bank note, promissory note, bill or ex- change, or other bill, order or certificate, or any book of accounts respecting money, goods, or other things, or any deed or writing, con- taining a conveyance of real estate, or any valuable contract in force, or any receipt, release or defeasance, or any instrument or writing whereby any demand, right or obligation, shall be created, increased, extinguished or diminished, when the property alleged to have been stolen shall not exceed in value ten dollars. 2 Receiving stolen property. Every justice has concurrent juris- diction over the offences of buying, receiving or aiding in concealing any stolen money, goods, or other property, knowing the same to have been stolen, where the alleged value does not exceed ten dollars." In the above cases of larceny and receiving or concealing stolen property, the punishment is graduated as follows ; for the first of- fence, a fine not exceeding ten dollars, and imprisonment in the county jail not more than two months ; for the second offence, a fine not exceeding twenty dollars, and imprisonment in the county jail not more than six months.'* Embezzlement. If any officer, agent, clerk or servant of any incorporated company, or if any clerk, agent or servant of any person >Act of 1851. sec 14. 3 R. S. ch. 156, sees. 10, 15. J R. S. ch. 156, sees. 1,15. 4 Ib. sec. 15. CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 227 or copartnership, except apprentices and other persons under the age of sixteen years, shall embezzle and fraudulently convert to his own use, or shall take and secrete, with intent to convert to his own use, without the consent of his employer or master, any money or property of another, which shall have come to his possession, or shall be under his care by virtue of such employment, he shall be deemed, by so doing, to have committed larceny, and shall be punished accordingly. 1 By carriers and others. If any carrier or other person, to whom any money, goods, or other property, which may be the subject of larceny, shall have been delivered to be carried for hire, or if any other person, who shall be intrusted with such property, shall embezzle or fraudulently convert to his own use, any such money, goods, or other property, either in the mass, as the same were delivered, or otherwise, and before the same shall be delivered at the place, or to the person where and to whom, they were to be delivered, he shall be deemed, by so doing, to have committed larceny, and be punished accordingly. 2 Malicious injuries and wilful trespasses. Justices of the peace have jurisdiction of the following offences, where the property destroyed or the injury occasioned by the trespass, shall not be alleged to exceed the sum of ten dollars, in which case the punishment shall be by fine not exceeding ten dollars, or imprisonment in the county jail not more than thirty days : s 1. Any person who shall maliciously or wantonly, cut down or destroy, or, by topping, girdling, or otherwise, injure any fruit tree, or other tree or shrub, not his own, standing or growing for ornament or use ;* or 2. Maliciously or wantonly break down, mar, deface or injure any fence, belonging to or enclosing lands not his own, or throw down or open any gate or bars, not his own, and leave the same down or open ; s or 3'. Maliciously or wantonly injure, destroy, or sever from the land of another, any produce thereof, or any thing attached thereto ; 6 or 4. Wilfully and maliciously take down, injure or remove any monument erected, or any tree marked as a boundary of any tract of »R. S. ch. 156, sec. 6. *Ib. sec. 5. s Ib.sec.7. *Ib. sec.6. =>R. S. ch. 162, sec. 15. «Ib. sec. 7. 228 JUSTICE OF THE PEACE. land or of any town, or shall destroy, deface^ or alter the marks of any such monument or tree, made for the purpose of designating such boundary, or injure or deface any milestone or guide-board, erected on any public way, turnpike, or railroad, or shall maliciously or wantonly remove, deface, or injure any sign board, or break, or remove any lamp, or lamp-post, or extinguish any Tamp on any bridge, street, way, or passage ;' or 5. Wilfully commit any trespass, by cutting down or destroying any timber or wood, standing or growing on the land of another, or by carrying away any kind of timber and wood, being on such land, or by digging up or carrying away any earth or stone, or by taking and carrying away from such land any grass, hay, corn, grain, fruit, or other vegetables, or carrying away from any wharf or landing place any goods whatever, in which he has no interest ; 2 or 6. Wilfully commit any trespass by entering upon the garden, orchard, or improved land of another, with intent to take, carry away, destroy or injure the trees, shrubs, grain, grass, hay, fruit, or vegetables there being ; 3 or 7. Wilfully enter, pass over, or through any garden, yard, or other improved field, after having been expressly forbidden so to do by the owner or occupant ;* or 8. Wilfully or maliciously injure, destroy, or deface any building or fixture attached thereto, not having the consent of the owner there- of, or destroy, injure or secrete any goods or chattels, or valuable papers of another. 5 Fireworks. If any person sell, offer for sale or give away any fireworks, such as crackers, squibs, or rockets, or shall set fire to, or throw the same in any town or city, without license, he shall be punished by a fine not exceeding ten dollars. 6 Breaches of the peace. Every justice of the peace may punish by fine, not exceeding ten dollars, all assaults and batteries, and other breaches of the peace, declared criminal by any statute or town by-law when the offence is not of a high and aggravated nature. 7 Shows. If any person shall, for money or other valuable article, »R. S ch. 162, sec. 8. Mb. sec. 13. 2 Ib. sec. 9. «R. S. ch. 163, sec. 3. "lb. sec. 11. 7 R. S. ch. 170, sec. 2. *Ib. sec. 12. CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 229 exhibit any images or pageantry, sleight of hand tricks, puppet show or circus, or any feats of balancing, wire-dancing, personal agility, sleight or dexterity, or theatrical performances, without a license, he shall pay, for every such offence, a sum not exceeding one hundred dollars nor less than ten dollars. 1 Violating city ordinances. Cities have power to establish, from time to time all such rules and orders as the municipal government of such cities may deem necessary and expedient, for the due regulation, in such cities, of omnibusses, stages, hackney-coaches, wagons, carts, drays, hand-carts and all other vehicles, whatever, used and employed wholly or in part in said cities, whethe by establishing their rates of fare, prescribing their routes and places of standing, or in any other manner whatever, and whether such vehicles are used for business or pleasure, or the conveyance of passengers or freight, and whether by horse power or otherwise. 2 Such cities may annex penalties for the breach of any of the ordinan- ces, rules and orders, provided for in the preceding section, not to exceed twenty dollars for any one offence, which penalties may be recovered, for the use of said cities, by complaint before the municipal courts of said cities, or any justice of the peace, where no such court is established. 3 Truant children. Any town is authorized to make all needful provisions and arrangements concerning habitual truants, and children between the ages of six and fifteen years, not attending school, without any regular and lawful occupation, and growing up in ignorance ; and may also make all such ordinances and by-laws respecting such children as shall be most conducive to their welfare, and the good order of such town ; and there shall be annexed to such ordinances, suitable penal- ties, not exceeding for any one breach, a fine of twenty dollars : provided, that said ordinances and by-laws shall be approved by the district court for the district, and shall not be repugnant to the laws of the State. 4 The several towns a^iiling themselves of the provisions of the pre- ceding section, must appoint, at their annual meeting, three or more persons, who alone shall be authorized to make the complaints, in every 'Act of 1847. »lb. *Act of 1850. 4Act of 1850, ch. 193, Art. 1 , sec. 14. 280 JUSTICE OF THE PEACE. case of violation of said ordinances or by-laws, to the justice of the peace, or other judicial officer, who by said ordinances shall have jurisdiction in the matter, which persons, thus appointed, shall alone have authority to carry into execution the judgments of said justices of the peace or other judicial officers. 1 The justices of the peace, or other judicial officers, in all esses, at their discretion, in place of the fine, are authorized to order children, proved before them to be growing up in truancy, and without the benefit of the education provided .for them by law, to be placed for such periods of time as they may judge expedient, in such institution of instruction or house of reformation, or other suitable situation, as may be provided for the purpose 2 Disturbing schools. If any person, whether he be a scholar or not, shall enter any school house or other place of instruction, during or out of school hours, the teacher or any of the pupils being therein, and shall wilfully interrupt or disturb the teacher or pupils by loud speaking, rude or indecent behavior, signs or gestures ;«sr if any person shall wilfully interrupt a school by prowling about the building, by mak- ing noises, or by throwing missiles at the school house, or in any wise disturbing the school, he shall pay a fine of not less than two, nor more than twenty dollars, to be recovered by complaint before any justice of the peace, or by indictment and conviction in the district court. 3 III. OF APPEALS AND RECOGNIZANCES. Any person aggrieved at the sentence of any justice of the peace or judge of a municipal or police court, may appeal therefrom to the next district court, to be holden in the same county ; and -the justice or judge shall grant the appeal, and order him to recognize in a reasonable sum, not less than twenty dollars, with sufficient sureties, for his appearance, and for prosecuting his appeal ; and he shall stand committed till the order is complied with. 4 He shall be held to produce a copy of the whole process, and of all writings filed before the justice, at the district»court. s Any person aggrieved by the order of any judge of a municipal or *Act of 1850, ch. 193, Art. 1, sec. 13. *R. S. ch. 170, sec. 8. *Ib. sec. 16. *Ib. sec. 9. "lb. Art. 10, sec. 13U CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 231 police court, or justice of the peace, in requiring him to recognize with sureties for keeping the peace, may, on giving the security required, appeal to the next district court in the same county. 1 When an appeal is so taken, the magistrate shall require such ■witnesses as he may think necessary, to recognize for their appear- ance at the court appealed to. s The provisions for appeal in the act passed hy the legislature of eighteen hundred and fifty one, entitled " An act for the suppression of drinking houses and tippling shops," are as follows : If any person, by himself, clerk, servant or agent, shall be convict- ed of selling any spirituous or intoxicating liquors, or any mixed liquors, part of which is intoxicating, in violation of law, and shall claim an appeal, he shall, before the appeal shall be allowed, recognize in the sum of one hundred dollars, with two good and sufficient sureties, in every case so appealed, to prosecute his appeal, and to pay all costs, fines and penalties that may be awarded against him, upon a final disposition of such suit or complaint. And before his appeal shall be allowed, he shall also, in every case, give a bond with two good and sufficient sureties, running to the town or city where the offence was committed, in the sum of two hundred dollars, that he will not, during the pendency of such appeal, violate any of the provisions of the act. And no recognizance or bond shall be taken in cases arising under the act, except by the justice or judge before whom the trial was had. The forfeiture for all bonds and recognizances, given in pursuance of this act, shall go to the town or city where the offence was committed, for the use of the poor ; and if the recognizances and bonds mentioned in this section shall not be given within twenty-four hours after the judgment, the appeal shall not be allowed ; the defendant in the mean time to stand committed. 3 If any person claiming any liquors, seized under this law, shall appeal from the judgment of any justice or judge by whose authority the seizure was made, to the district court, before his appeal shall be allowed, he shall give a bond in the sum of two hundred dollars, with two good and sufficient sureties, to prosecute his appeal, and to pay all fines and costs which may be awarded against him. 4 »R. S. ch. 169, sec. 10. =Act of 1851. 2 Ib. sec. 11. 4ji J] 232 JUSTICE OF THE PEACE. It shall be the duty of any mayor, alderman, selectman, assessor, city marshal or deputy or constable, if he shall have information that any intoxicating liquors are kept or sold in any tent, shanty, hut or place of any kind for selling refreshments in any public place on or near the ground of any cattle show, agricultural exhibition, military muster, or public occasion of any kind, to search such suspected place, and if such officer shall find upon the premises any intoxicating drinks, he shall seize them, and arrest the keeper or keepers of such place, and take them forthwith, or as soon as may be, before some justice or judge of a municipal or police court, with the liquors so found and seized ; and upon proof that said liquors are intoxicating, that they were found in possession of the accused, in a tent, shanty or other place as aforesaid, he or they shall be sentenced to imprisonment in the county jail for thirty days, and the liquor so seized shall be destroyed by order of said justice or judge. 1 If any person arrested and sentenced as aforesaid, shall claim an appeal, before his appeal shall be allowed, he shall give a bond in the sum of one hundred dollars, with two good and sufficient sureties, that he will prosecute his appeal and pay all fines, costs and penalties which may be awarded against him. 2 In this State the right of appeal, both in criminal and civil cases, when it exists at all, is given and regulated by statute. In prosecut- ing an appeal, certain things are to be done by the court appealed from, and certain things by the court appealed to, and the same law regulates both. And when rightly understood and applied, if it re- quires the one to receive, it requires the other to allow the appeal. 8 If an appeal is well taken and prosecuted, it vacates and supersedes the judgment appealed from, and places the case within the jurisdiction of the appellate court, to be proceeded in almost, if not entirely, in the same manner as if it were an original proceeding in the appellate court. But if the appeal is not well taken and prosecuted, if it is not in a case allowed by law, or if allowed upon terms and conditions pre- by law, and these are not complied with, the proscribed ceeding itself is nugatory and void, and stands wholly unaffected by such claim of appeal. 4 'Act of 1851. s 22Pick. 12. 2 Ib. 4 Ib. CONVICTION, SENTENCE, APPEAL AND RECOGNIZANCE. 233 The court appealed to, and not the court appealed from, is to judge, in the last resort, whether the party had a right of appeal or not. This obviously results from the relation which these courts, acting under one and the same system of laws, bear to each other, and is necessary to prevent the appellate court from being ousted of its jurisdiction, in a case where the law intended to confer it. If, there- fore, the court appealed from, through mistake of the law, or other- wise, declines or refuses to allow an appeal, when the appellant is by law entitled to it, and this is made to appear to the appellate court, they will entertain the appeal, notwithstanding such disallowance, and the judgment of the lower court will be thereby vacated. 1 So, on the other hand, if the court below allow the appeal, whereby law it ought not to be allowed, the appellate court will dismiss the appeal. 2 No time is fixed within which the security shall be furnished, but the appeal is made to " the district court next to be held in the same county ;" and therefore it must follow that the sureties should appear and recognize before that time. The appeal is from the conviction, not from the sentence. And the provision that the party shall be in custody until he recognize, or be sentenced, carries a manifest implication, that he is to be sentenced in default of a recognizance. 3 When the magistrate finds the defendant guilty of the offence, and an appeal is claimed, he shall be required to recognize as herein before provided. If the sureties are in court, and the magistrate is satisfied of their responsibility, the recognizance may at once be taken, the conusors acknowledging themselves indebted to the State in a sum not exces- sive, conditioned that if the defendant appears at the appellate court and prosecutes his appeal, and abides the sentence of court thereon, and in the meantime keeps the peace, and is of good behavior, and complies with such other provisions as the law requires, which will be found in the forms at the close, then the recognizance shall be void. If the sureties be not in court, the statute requires that the mag- istrate should commit the appellant to abide the sentence of court 122 Pick. 12. 316 Pick. 11. 2 Ib. 30 234, JUSTICE OF THE PEACE. until such recognizance be entered into. For this purpose the mag- istrate should make out a mittimus, reciting every thing necessary to show his authority to issue it, and requiring the officer to commit, and the jailor to receive the prisoner, and keep him till such sureties are furnished, or he he discharged by order of law. The recognizance, when taken, should state in substance all the proceedings which show the authority of the magistrate to take it. CHAPTER VI. OF BAIL AND KECOGNIZING WITNESSES. The subject of bail has been partially considered in the chapter next preceding. In this chapter we propose briefly to examine, 1st. When and by -whom bail should be taken. 2d. How it should be taken, and the amount to be required. 3d. The disposition to be made of the recognizance after it is taken. "We shall also speak of recognizing witnesses, and the duties of a magistrate thereon. I. WHEN AND BY WHOM BAIL SHOULD BE TAKEN. Bail is a delivery of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance, he being supposed to continue in their friendly custody, instead of going to prison. 1 What are bailable offences, and of witnesses recognizing. If it shall appear to the justice, on examination of the accused, that an oifence has been committed, and that there is probable cause to believe the prisoner to be guilty, and if the offence be bailable by such magis- trate, and sufficient bail be offered, it shall be taken, and the prisoner discharged ; but if the offence is not bailable by the magistrate, or no sufficient bail be offered, the prisoner shall be committed to prison to await a trial. 2 Whether the prisoner be admitted to bail or committed, the justice shall order such of the witnesses against the prisoner as he may deem material, to recognize to appear and testify at the next court having cognizance of the offence, and in which the prisoner shall be held to answer. 3 When the magistrate shall be satisfied there is good cause to believe that any such witness will avoid and not perform the condition of his own recognizance, unless other security be given, he may order such 'Chitty's Cr. L. 93— Davis's Just, 122. 3 Ib. sec. 18. 2 R. S. ch. 171, sec. 17. 236 JUSTICE OF THE PEACE. ■witness to recognize, -with surety or sureties, for his appearance at court. 1 When any such witness shall refuse to recognize, with or without surety, as required, he may be committed to prison to remain till by law discharged. 2 Any person may recognize for the appearance at court, as a wit- ness, of a married woman or a minor, or the justice may, in his dis- cretion, recognize such married woman or minor, in a sum not exceeding twenty dollars; which shall be vaM, notwithstanding the disability of coverture or minority. 3 Any two justices of the peace and quorum for any county, on appli- cation of any prisoner committed for a bailable offence, or for not finding sureties to recognize for him, may inquire into the case, and admit such prisoner to bail ; subject however, to the exceptions mentioned at page 163 of this volume. 4 If the party, for whom a writ of habeas corpus is sued out, is impris- oned and detained for any offence which is bailable, he shall be admitted to bail, if sufficient bail be offered ; and if not, he shall be remanded, with an order of the court or justice, expressing the sum in which he shall be held to bail, and the court at which he shall be bound to appear ; and any justice of the peace may, at any time before the sitting of the court, bail the party pursuant to such order. 5 Where the offence charged in the warrant is not punishable with death or imprisonment in the State prison, the person arrested, if he shall request it, may be carried before any justice of the county in which the arrest was made, for the purpose of entering into a recogni- zance, without any trial or examination, and it shall be the duty of the officer so to carry him ; and the justice may take a recognizance from the person arrested, with sufficient sureties, for his appearance at the next conrt, or before any justice of the peace having cognizance of the offence in the county where the same is alleged to have been committed ; and thereupon the party arrested shall be discharged. 6 The magistrate having so taken the recognizance of the party charged, shall certify that fact on the warrant, and deliver the same with the recognizance, to the person who made the arrest ; and it »R. S. ch. 171, sec. 19. 4 Ib. sec. 22. 2 Ib. sec. 20. S R. S. ch. 140, sec. 17. °lb. sec. 21. «R. S ch. 171, sec. 4. BAIL AND RECOGNIZING WITNESSES. 237 shall be his duty to cause the same to be delivered, without delay, to the clerk of the court before which the person accused was recognized to appear. 1 If the magistrate, in the county where the arrest was made, shall refuse to let to bail the person arrested and brought before him, or if no sufficient bail be offered, the person having him in charge shall take him before some magistrate of the county in which the warrant was issued, to be proceeded with as hereinafter mentioned. 2 "When the offence charged is punishable with death, or by imprison- ment in the State prison, the officer making the arrest in some other county, shall convey the prisoner to the county where the warrant was issued, and he shall be proceeded with in the manner directed in the following section. 3 Every person, arrested by warrant for any offence, where no pro- vision is made for his examination thereon before any other justice of the peace, shall be brought before the magistrate who issued the warrant ; or if he be absent or unable to attend, before any other magistrate of the same county ; and the warrant with proper return thereon, signed by the person who made the arrest, shall be delivered to the magistrate. 4 Any magistrate may adjourn an examination before himself, from time to time, not exceeding ten days at one time, and may take the recognizance of the party accused, with sufficient sureties, for his personal attendance for the purpose, before such magistrate ; but if the party is charged with a capital offence, he shall be committed to prison in the mean time. 5 If the party, so recognized, shall not appear at any time appointed be- fore the magistrate, for further examination, the magistrate shall record the default, and certify his recognizance, with the record of the default, to the district court ; and the like proceedings shall be had thereon, as on a breach of the condition of a recognizance for appearance before the court. 6 When such person shall fail to recognize, he may be committed to prison by an order from the magistrate, stating, in a summary manner, the offence for which he is charged, and that he committed him for 'R. S. ch. 171, sec. 5. 4 Ib. sec. 8. *Ib.sec.6. 5 Ib. sec. 9. *Ib. sec. 7. «Ib. sec. 10 238 JUSTICE OF THE PEACE. further examination on a future day, named in such order ; and on the day appointed he may be brought before the magistrate, by his verbal order to the same officer by whom he was committed, or by a written order to a different person. 1 If, upon the examination of the person charged with any offence committed in any other State or territory, and liable by the constitu- tion and laws of the United States to be delivered over upon the demand of the executive of such other State or territory, it shall appear to the court or magistrate that there is reasonable cause to believe that the complaint is true, and that such person may be lawfully demanded of the executive, he shall, if charged with an offence bailable by the laws of this State, be required to recognize, with sufficient sureties, to appear before such court or magistrate at a future clay, allowing a reasonable time to obtain the warrant of the executive, and to abide the order of the court or magistrate ; and if such person shall not so recognize, he shall be committed to prison, and be there detained until such day, in like manner as if the offence charged had been committed within this State ; and if the person so recognizing shall fail to appear, according to the condition of his recognizance, he shall be defaulted, and the like proceedings shall be had, as in the case of other recogni- zances entered into before such court or magistrate ; but if such person be charged with an offence not bailable by the laws of this State, he shall be committed to prison, and there detained until the day so appointed for his appearance before the court or magistrate. 2 If the person, so recognized or committed, shall appear before the court or magistrate, upon the day ordered, he shall be discharged, unless he shall be demanded by some person authorized by the warrant of the executive to receive him, or unless the court or magistrate shall see cause to commit him, or to require him to recognize anew, for his appearance at some other day ; and if, when ordered, he shall not so recognize, he shall be committed and detained as before ; provided, that whether the person so charged shall be recognized, committed or discharged, any person, authorized by the warrant of the executive, may at all times take him into custody ; and the same shall be a discharge of the recognizance, if any, and shall not be deemed an escape. 3 iR. S. ch. 171, sec. 11. s Ib. sec. 4. 2 Act of 1847, ch. 193, sec. 2. BAIL AND RECOGNIZING WITNESSES. 289 The foregoing are the various statute provisions on this subject. It will be seen that a magistrate may be called upon to take recogni- zances in criminal proceedings in the following cases. 1. The recog- nizance of a party appealing from his decision in a matter within his jurisdiction ; 2. The recognizance binding a party over, where the alleged offence is not one within his final jurisdiction ; 3. The recog- nizance for the future appearance of a party for further examination ; 4. Admitting prisoners to bail, where the proceedings are not had before himself ; 5. Recognizing witnesses; 6. Recognizing persons accused of offences committed in other States ; 7. He has the further authority to require sureties for keeping the peace, and for good beha- vior, in which case the obligation should be entered into by a recogni- zance. The duties of a magistrate in the first and fifth cases above enume- rated have alreadv been sufficiently considered. The remarks which follow in this division of the present chapter apply more particularly to the second, third and fourth divisions ; admitting prisoners to bail, where the offence is one beyond the final jurisdiction of a justice of the peace, and requiring sureties for the future appearance of a party for further examination. No person before conviction is bailable for any of the crimes, which have been denominated capital offences, since the adoption of the con- stitution, where the proof is evident and the presumption great, whatever the punishment of the crimes may be. 1 All other offences are bailable. A justice of the peace has no authority to bail an offender, who has absconded after conviction and before sentence, and who has been apprehended upon a new warrant during the vacation, although the offence for which he was originally committed was bailable. This point was decided upon demurrer, by the supreme court of Massachusetts. The case was, one Otis was bound over upon a charge of forgery, which, by the laws of that State, is a bailable offence. He was tried and convicted; but before sentence was passed upon him he absconded and forfeited his recognizance. Several years afterwards he was brought back into that State by virtue of a warrant from the supreme executive, as a fugitive from justice. He was carried before a magistrate, who admitted him to bail, and he was recognized anew to x Const. of Maine, Amend. Art. 2. 240 JUSTICE OF THE PEACE. appear at the next term of the court in which his conviction was had, to receive sentence. He did not appear ; and upon a scire facias to recover the penalty of the recognizance, and demurrer to it, the court decided that the magistrate had no authority in such a case to admit him to bail ; but that it was his duty to commit him, where he would remain in custody until the next term of the court, when and where he would regularly receive his sentence. 1 II. HOW BAIL SHOULD BE TAKEN, AND THE AMOUNT TO BE KEQUIKED. Bail in criminal proceedings is taken by a recognizance, which is an obligation of record, entered into before a magistrate duly authorized for that purpose, conditioned to prosecute an appeal, or to appear for further examination, or to appear at a higher court, as the case may be. The party need not sign the recognizance, but the record thereof is made out by the justice who takes it, and is subscribed by him. It is a matter of record as soon as taken, though not made up at once, but only entered in his book. 2 A recognizance is taken verbally. The party appears before the magistrate with his sureties, if any are required, and acknowledges himself to be bound to the State in such sum as may be required, with such conditions as the provisions of the statute may demand. The amount of the bail is a matter entirely within the discretion of the court. It is provided by the constitution of the United States, that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 3 The constitution of Maine makes similar provisions. 4 But while the magistrate should studiously avoid requiring an amount at least looking oppressive upon the prisoner, he should equally remember that the State has also rights, which he is commissioned to enforce. A magistrate has not only no right to refuse to take bail, but he .has no right to delay taking it. And such delay is an offence at the common law, against the liberty of the subject, and for which the magistrate is liable in damages to the party injured.* He should look well to the means and character of the sureties to ■H9 Pick. 140-141. 4 Const. Maine, Art. 1, sec. 9. s Chitty'a Cr. L. 90. *Davis's Just. 123. 'Const. U. S. Amend. Art. 8. BAIL AND RECOGNIZING WITNESSES. 241 be required. They should be sureties in fact, and not mere men of straw ; and if the justice is not satisfied as to their ability to meet the proposed liability to the fullest extent, or if he is ignorant of the persons offered, it is his duty to inquire into the pecuniary condition of the sureties offered, and, if necessary, examine the sureties them- selves. It is said that if, after inquiry by a magistrate upon the oath of the sureties, he finds he has been deceived, he may require fresh and better sureties, and may commit the party on his refusal ; for that insufficient sureties are no sureties. An attorney is not prohibited from being surety for his client in a criminal case. A married woman cannot be bound by recognizance, except as a witness, 1 because the recognizance is not capable of being estreated. A minor cannot be accepted as a surety, with the above exception, 2 or enter into a recognizance as principal, because he cannot bind himself during his minority. Where, however, such persons are witnesses, it is specially provided that any person may recognize for their appearance, or the magistrate may, in his discretion, recognize such married person or minor, in a sum not exceeding twenty dollars, which shall be valid, notwithstand- ing the disability of coverture or minority. 3 The recognizance itself should in all cases show, in the condition, the cause of taking it.* The principle that every thing necessary to give jurisdiction to an inferior magistrate should appear on the face of the proceedings, has been often commented upon. It is important that it should be borne in mind in all acts of official duty. It is not sufficient, that the recognizance mentions generally the crime of which the prisoner is accused. It should mention the particular crime for which he is bound over to take his trial. Thus, if he is to be tried for larceny, it is said that it ought to be so specially stated in the con- dition of the recognizance; and the name of the person upon whose com- plaint he is charged, ought also to be mentioned in the recognizance. III. THE DISPOSITION TO BE MADE 01? THE RECOGNIZANCE AFTER IT IS TAKEN. Appeals. The person appealing shall produce a copy of the whole process, and of all writings filed before the justice, at the district court. 5 l R. S. ch. 171, sec. 21. <4 Mass. 643—9 Mass. 520—16 Mass. .i°- 447—2 Green, on Ev. 62. Xb - „ 5 R. S. ch. 170, sec. 9. 31 242 JUSTICE OF THE PEACE. Binding over. All examinations and recognizances, taken by a magistrate, pursuant to the provisions of the one hundred and seventy- first chapter of the Revised Statutes, shall be certified and returned to the county attorney, or clerk of the court before which the party charged is bound to appear, on or before the first day of its session ; and in case of neglect of such justice, he may be compelled, by rule of court, and, if it be disobeyed, by attachment for contempt. 1 Recognizance for further examination. If the person recogniz- ed for further examination, shall not appear at any time appointed before the magistrate for further examination, the magistrate shall record the default, and certify his recognizance, with the record of the default, to the district court; and the like proceedings shall be had thereon, as on a breach of the condition of a recognizance for appear- ance before the court. 2 Recognizance where the proceedings are not had before the magistrate taking the recognizance. The proper course to be pursued in such cases seems to be well settled and distinctly marked out, in several cases in the reports. The case of Johnson vs. Ran- dall, 3 decided in Massachusetts, assumes the rule to be, that justices of the peace, taking recognizance for the appearance of the party at another tribunal, must return them to the court where the principal recognizor is to appear, and, if defaulted there, by reason of non-ap- pearance before such tribunal, that court, in case it has not jurisdiction to issue scire facias, and render judgment thereon, to such other court as has further jurisdiction thereon. Recognizances of witnesses. These are to be returned to the same court at which the witnesses are bound to appear.* Recognizances for keeping the peace, and for good behavior. Every recognizance for keeping the peace and for good behavior, shall be transmitted to the district court, on or before the first day of the next ensuing term, and shall there be filed by the clerk, as of record. 5 >R. S ch. 171, sec. 24. 4 R. S. ch. 171, sec. 24. "lh. sec. 10. 'R. S. ch. 169, sec. 14. 3 7 Mass. 340. CHAPTER VII. OF THE COMMITMENT. The order for the commitment is analagous to the execution in civil proceedings, and is termed a mittimus. In treating of this subject we shall consider — I. IN WHAT CASES A COMMITMENT MAY BE ORDERED. At the risk of retracing ground already travelled over, we shall recapitulate, in this connection, the several classes of cases in which it is the duty of a magistrate to order commitments in criminal proceed- ings. It has already been seen that, -where an offender is convicted before a justice of the peace of an offence within his final jurisdiction, or pleads guilty to the charge, unless the party takes an appeal, it becomes the duty of the magistrate to award the sentence the law provides for the offence. When this is done, if a commitment be ordered, he issues his mittimus, commanding the officers, to whom it is directed, to carry into effect the judgment which he has ordered. It has also been seen that if the offence is not one within his final jurisdiction, and is not bailable, or, if bailable, bail is not furnished, it is then his duty to commit. A mittimus may also be issued for the commitment of witnesses refusing to recognize. Parties required to recognize with sureties to keep the peace, may be committed if they refuse to comply with the order. II. TO WHAT PLACE THE PARTY SHALL BE COMMITTED. The statute expressly provides, in regard to certain offences, that the person offending shall, on conviction, be committed to the house of correction for the county. 1 There shall be erected, or otherwise provided by the county com- missioners, in every county within this State, at the charge of such l R. S. ch. 178, sec. 9. 244 JUSTICE OF THE PEACE. county, a fit and convenient house or houses of correction, with con- venient accommodations, to be used and employed for the keeping, correcting, and setting to work of rogues, vagabonds, common beggars, idlers and disorderly persons, and all other offenders who may be com- mitted thereto, in due course of law. 1 No convict shall be sentenced to the State prison for a less term than one year ; all imprisonments for a less term shall be in the county jail or house of correction. 2 The sheriff of each county has the custody and charge of the jail or jails therein, and must keep the same personally or by deputy. 3 The jails are to be used — First, for the detention of persons charged with offences, and duly committed for trial ; Secondly, for the detention of persons who may be duly committed to secure their attendance as witnesses, on the trial of any criminal cause ; Thirdly, for the confinement of persons committed pursuant to a Sentence, upon conviction for an offence, and of all other persons duly committed for any cause authorized by law ; Fourthly, for the detention of prisoners committed under the authority of the United States. Where the prisoner is arrested in a different county from that in which the offence was committed, and is taken before a magistrate in the county where the arrest was made, for the purpose of being let to bail, and bail is refused, or no sufficient bail be offered, the magistrate has no authority to order a commitment ; but the person having him in charge must take him before some magistrate of the county in which the warrant was issued. 4 III. THE REQUISITES OP A MITTIMUS. It has been said that a commitment need not be drawn with the same precision as an indictment : yet it has also been said by eminent authority, that it is very important that it should be framed with accuracy, or the party may, though prosecuted for a felony, be discharg- ed out of custody, or if he escapes, the officer may not be punishable. »R. S. ch. 178, sec. 1. 3 R. S. ch. 104, sec. 23. *R. S. cb. 167, sec. 11. 4 R. S. ch. 171, sec. 6. THE COMMITMENT. 245 The requisites of a commitment may be stated as follows : 1. Every final commitment must be in -writing, under the hand and seal, and show the authority of the magistrate, and the time and place of making it. A magistrate, however, may by parol order a party to be detained a reasonable time, till he can draw out a formal commitment. Every mittimus should recite the cause of complaint on •which it is founded. 1 2. It should be made in the name of the State, being signed by the justice as a magistrate, holding a commission under the authority thereof. 3. The direction is double ; first to the sheriff, or his deputies, or to any constable of such towns as may be, commanding them to take the body of the party, and forthwith to carry and deliver the same to the keeper of the prison ; and to the latter, commanding him to receive the same, and safely to keep him till duly discharged. 4. It should describe the prisoner by his name and surname, if known ; and if not known, then it may suffice to describe the person by his age, stature, complexion, color or hair, and the like, and to add that he refuses to tell his name. 5. It is necessary to set forth the particular species of crime alleged against the party, with convenient certainty. The reasons given for this are, to be able to hold the sheriff liable for an escape, that jailers may have the means of making proper returns, and because the court, before whom the prisoner is removed by habeas corpus, ought to discharge or bail him. 6. The mittimus should point out the place of imprisonment, and not merely direct that the party should be taken to prison. 7. With respect to the time and mode of imprisonment, it may be observed that the commitment should have an apt conclusion, such as, to detain the party " until he shall be discharged by due course of law." These words alone are proper where the party is committed for an offence not bailable ; but where he is committed for want of sure- ties, it is usual to direct the jailer to keep the prisoner " in his said custody for want of sureties, or until he shall be discharged by due course of law." But where the commitment is in the nature of pun- ishment, the time of imprisonment must be stated. ■4 Mass. 495. CHAPTER VIII. OF THE PEES OF THE JUSTICE AND TAXATION OF COSTS. I. OF THE FEES OF THE JUSTICE. These are regulated by statute, and are as follows : Receiving a complaint, and issuing a warrant in criminal cases, fifty cents. 1 Entering a complaint in a criminal prosecution, swearing witnesses, rendering judgment and recording the same, examining, allowing and taxing the costs and filing the papers, seventy-five cents. 2 For every subpoena for one or more witnesses, ten cents. 3 For a mittimus for the commitment of any person on a criminal accusation, twenty-five cents.* For travel, in the performance of any official duty, at the rate of fifty cents for every ten miles, in going and returning. 8 One travel only being allowed for returning papers to court at the same term. 6 And in all cases, where the attendance of two or more justices is required, each of them shall be entitled to the fees prescribed for all services rendered by him personally. 7 For administering an oath, in all cases, except on a trial or exami- nation before himself, and a certificate thereof, whether administered to one or to more persons, at the same time, twenty cents. 8 For a copy of a record, or other paper, at the rate of twelve cents a Recognizing persons charged with crimes, for "their appearance at the supreme or district court, and for certifying or returning the same, with or without sureties, twenty-five cents, to be paid by the person so recognizing. 10 iR. S. ch. 151, sec. 1. «Ib. s Ib. 7 Ib. »Ib «Ib. •lb.. 9 lb. »Ib. »°Ib. FEES AND TAXATION OF COSTS. 247 For the trial of an issue, eighty cents. 1 For a recognizance to prosecute an appeal, including principal and surety, twenty cents. 2 Except -when otherwise expressly provided, the fees of the judge of any municipal or police court, whether in civil or criminal proceedings, must be taxed in the same manner, and at the same rate, as the fees of justices of the peace. For further particulars relative to the subject of justices' fees, the reader is referred to page 83, of this volume. II. OF THE TAXATION OF COSTS. Where several warrants are issued by any justice of the peace, against one or more defendants, when only one warrant is necessary, no more costs shall be allowed therefor to the justice, than for one complaint and warrant. 4 When a party, accused before a justice, has been ordered to recog- nize to answer before any court, having jurisdiction of the offence, and the grand jury on examination of the evidence before them, shall not find an indictment against such party, the justice will not be entitled to any fees for his services in the case. 5 In no case can a justice tax other or greater fees than are expressly allowed by law. 6 Justices, before whom any criminal 'prosecution may be pending, cannot allow any .charge for aid, or other expenses of the officer, in serving the warrant in such case, other than the stated fees for the officer's service and travel, unless, after examination of the officer under oath, and on such other testimony as they shall think proper, they find reasonable cause to justify such additional charges. 7 When a justice shall issue any summons for a witness, at the request of any person prosecuted in a criminal suit, it shall be so expressed in the summons ; and the witness shall thereby be required to appear and give evidence, upon condition that such party pay him his legal fees. 8 . No costs shall be allowed by a justice for the benefit of any com- plainant, whether as an officer, witness, or in any other capacity; •R. S. ch. 151, sec. 1. *Ib. Bee. 2. J Ib. «Ib. »Ib. sec. 2. Hi. sec. 3. *R. S. ch. 152, sec. 1. »Ib. sec. 6. 248 JUSTICE OF THE PEACE. provided that a police officer or constable duly qualified, and acting under the authority of a town, or complaining in cases where, by particular authority of law, it is made his duty to complain, may be allowed his fees as an officer. 1 When any person shall have been summoned as a witness in more than one criminal prosecution before a justice of the peace, on the same day, he shall be allowed pay for travel and attendance, only in such one prosecution as the justice may direct; and in no case shall he be allowed more than one travel at the same time. 2 If any person, convicted of any offence before any justice of the peace, be ordered to pay the costs of prosecution as part of his sentence, and shall comply with such order, the justice may retain his own fees, and pay over the other fees to the officer, witnesses and other persons thereto entitled. 3 If such fees, other than the justice's, be not called for within one year, they shall be forfeited to the use of the State, and the justice shall pay over the same to the county treasurer, within such time and under such penalty, as the statute provides.* Whenever a party accused shall be acquitted by any justice of the peace ; or, being convicted, shall not be sentenced to pay costs ; or, being sentenced to pay costs, shall not pay them ; the county commis- sioners may examine and correct all such bills of costs, and order the same paid out of the county treasury ; 5 except that, whenever any justice, or any individual interested in the bill of costs, shall be one of the commissioners, the district court held in the same county shall have exclusive cognizance of the matter. 6 In all criminal prosecutions, which are carried up by appeal from the decision of a justice, or where the party accused is committed or required to recognize for his appearance to any court, the costs shall be taxed and certified, with the papers to the court. 7 If the justice, upon examination of one complained against for the purpose of having sureties of the peace, shall not be satisfied that there is just cause to fear the commission of any such offence, he shall imme- diately discharge the party complained of: and if the magistrate shall . »R. S. ch. 152, sec. 7. *R. S. ch. 152, sec. 1. 2 Ib. sec. 8. «Ib. sec. 13. 3 Ib. sec. 10. 7 Ib. sec. 14. ♦lb. sec. 11. FEES AND TAXATION OF COSTS. 24$ judge the complaint unfounded, malicious or frivolous, he may order the complainant to pay the costs of prosecution, who shall thereupon be answerable to the magistrate and officer for their fees as for his own debt. 1 , » When the person complained of is required to give security for the peace, or for his good behavior, the court or magistrate may further order that the costs of prosecution, or any part thereof, shall be paid by such person, who shall stand committed until such costs are paid, or he is otherwise legally discharged. 8 The complainant, against one accused of having committed a crime in another State, shall be answerable for all the actual costs and charges, and for the support in prison of any person so committed, to be paid in the same manner as by a creditor for his debtor committed on execution, and if the charge for his support in prison shall not be so paid, the jailor may discharge such person, in like manner as if he had been committed on an execution. 3 The fees to be taxed in a criminal process, before a justice of the peace, are — 1st. Those of the justice ; 2d. Those of the witnesses ; 3d. Those of the officer and his assistants. The justice's fees are, 1. Receiving complaint and issuing warrant ; 2. Subpoena ; 3. Entry, judgment, recording, &c. ; 4. Trial ; 5. Re- cognizances ; 6. Mittimus ; 7. Copies ; 8, Travel. The officer's fees are, 1. Service ; 2. Travel ; 3. Summoning wit- nesses ; 4. Travel for same ; 5. Conveyance of prisoner ; 6. Attend- ing court ; 7. Aid, &c. In addition to these, there are the fees of the witnesses. Witnesses fees. Each witness is entitled to fifty cents a day for attendance, and four cents for each mile's travel, going out and return- ing home. 4 In taxing the bill of costs, the name of each witness must be sepa- rately mentioned ; and the amount of his fees carried out against his name. And it is not sufficiently correct to carry out the amount of a witness' fees, without stating the number of miles he has travelled, and of the days he has attended. iR. S. ch. 169, sec. 8. 'Act of 1847. ch. 193, sec. 4. 2 Ib. sec. 9. *R. S. ch. 151, see. 12. 32 250 JUSTICE OF THE PEACE. Officer's fees. For the service of a warrant, the officer shall be entitled to fifty cents. 1 For each aid, necessarily employed in criminal cases, including expenses,»one dollar per day, and in that proportion for a longer or shorter time ; and four cents a mile for travel in going out and return- ing home. 2 For travel for the service of any warrant, four cents a mile, the travel to be computed from the place of service to the court or place of return, by the usual way ; but if the distance between those places be more than fifty miles, only one cent a mile shall be allowed for all travel exceeding that distance. Only one travel shall be allowed for any one precept ; but if the same be served on more than one person, the travel may be computed from the place of service most remote from the place of return, with all further necessary travel in serving such precept. 3 For travel across any toll bridge or ferry, actually passed in serving or returning any precept, the sum by law payable at such bridge or ferry for a man and horse : for travel by water to, or from any island, or crossing any river where no ferry is established, in making service of a warrant, the court, where the process is returnable, may allow a reasonable charge. 4 For the service of a subpoena, twenty-five cents, unless in special cases, when the justice may increase the fee to what he may judge reasonable. 5 For attending court and keeping the prisoner, seventy-five cents for every twelve hours, and in that proportion for a greater or less time. 6 No charge of any officer for service, travel or expenses paid, must be allowed, unless the items be expressly stated, and the amount of each. 7 The statute makes no provision for the expenses incurred by the conveyance of prisoners. But it has nevertheless, we believe, been customary to allow such charges, where necessary and reasonable. l R. S. ch. 151, sec. 4. 'lb. s Ib. «Ib. »Ib. *Ib. 'lb. CHAPTER IX. OF CERTIFYING PROCESS, RETURNING RECOGNIZANCES, ACCOUNTING FOR COSTS, &C. I. CERTIFYING PROCESS AND RETURNING RECOGNIZANCES. If the party, recognizing for further examination, shall not appear at the time appointed, before the magistrate, for such further examina- tion, the magistrate shall record the default, and certify his recogni- zanee,"with the record of the default, to the district court ; and the like proceedings shall be had thereon as on a breach of the condition of a recognizance for appearance before the court. 1 All examinations and recognizances, taken by a magistrate pursuant to the provisions of the one hundred and seventy first chapter of the Kevised Statutes, should be certified and returned to the county attor- ney, or clerk of the court, before which the party is bound to appear, on or before the first day of the session ; and, in cases of neglect of such justice, he may be compelled by rule of court, and, if it be diso- beyed, by attachment for contempt. 11 Every order by a magistrate discharging recognizances shall be filed in the ofiice of the clerk of the court at which the party and the witnesses were bound to attend ; and every order, suspending the commitment of the party charged, shall be delivered to the keeper of the jail, and shall, if so filed and delivered, and not otherwise, forever bar all remedy by civil action, for such injury. 3 Every recognizance, for keeping the peace, shall be transmitted to the district court on or before the first day of the next ensuing term, and shall there be filed by the clerk, as of record. 4 When the justice has determined to require the prisoner to find bail, and bail is furnished, the first thing to be done is, to make a full record of the proceedings, because a copy of the record should be sent up with the other proceedings. This record should contain a complete statement of the proceedings. He should also make out at length th »R. S, ch. 171, sec. l(h »Ib. sec. 26. Ib ' se& - 24 - 4 R. S. ch. 169, sec. 14. ' 252 JUSTICE OF THE PEACE. original recognizance, which is to be sent up, and copy the same into his book of records. If the recognizance taken is for appearance before another magis- trate, it should be certified to that court, because justices of the peace, taking recognizances for the appearance of a party before another tribu- nal, must return them to the court where the principal recognizer is to appear, and if defaulted there, by reason of non-appearance before such tribunal, that court, in case it has not jurisdiction to issue scire facias and render judgment thereon, -will certify all the previous pro- ceedings, including the taking of the recognizance and the default thereon, to such other court as has further jurisdiction thereon. 1 II. OF ACCOUNTING FOR FINES, FORFEITURES AND COSTS. Every justice of the peace shall be held to render an account of, and pay over all fines and forfeitures, by him received upon convictions and sentences before him, -whether accruing to the State or the county, to the treasurer of the county ; and, in cases where they accrue to the town, to the treasurer of the town, within six months after he shall have received the same. In case of any neglect, he must forfeit, in each instance, double the amount, to be recovered in the name of the county or town treasurer, as the case may be. 2 All costs, imposed by justices of the peace, and accruing to the State, must be paid into the county treasury. 3 Tho justice should keep his official accounts with scrupulous accu- racy. Errors may and undoubtedly do often occur, from a neglect of the magistrate to keep his accounts with the same care which he would feel compelled to observe in his dealings with other men. It is necessary also that he should make his returns promptly, otherwise he may involve himself in serious and embarrassing liabilities, besides incurring the risk of having his commission withdrawn. The time prescribed is limited to six months. The better way would be to make the returns as soon as practicable after the fines and forfeitures are received. 19 Met. 409. "lb. sec. 27. 3 R. S. ch. 152, sec. 22. PART III. FORMS AND PRECEDENTS. CHAPTER I. FORMS IN CIVIL PROCEEDINGS. I. WRITS. ( Original Summons.) 1 STATE OF MAINE. C — , ss. To the sheriff of the said county of C — , or either of r , his deputies, or the constables of the towns within the said "• "■' county, or to any or either of them, . Greeting. In the name of the State of Maine, you are required to summon and give notice unto A. B. of, &e. (if he may be found in your precinct) to appear before me, 0. W. H. Esquire, one of the justices of the peace for the county aforesaid, at in P — , on the day of at of the clock in the noon ; then and there to answer unto C. D. of, &c. in a plea, &c. To the damage of the said plaintiff (as he says) the sum of twenty dollars, as shall then and there appear, with other due damages. And of this writ, with your doings therein, you are to make true return unto myself at or before the said day of . ",' Dated at P — , aforesaid, the day of , in the year of our Lord one thousand eight hundred and . 0. W. H. {Capias, or Attachment.) 2 STATE OF MAINE. C — , ss. To the sheriff of the said county of C — , or either of r L g 1 his deputies, or the constables of the town of W — , within the said county, or to any or either of them, Greeting. In the name of the State of Maine, you are required to attach the goods or estate of A. P». &c. to the value of dollars, and for want thereof to take the body of the said A. B. (if he may be found in your precinct) and him safely keep, so that he may be had before »R. S. ch, 114, Bee. 1. *Ib. 254 JUSTICE OF THE PEACE. me, C. W. H. Esquire, one of the justices of the peace for the county aforesaid, at in on, &c. [As before.] {Summons when Goods are attached.) 1 STATE OF MAINE. r L g i C— , ss. To T. P. of D., in the county of C— , [addi- 1 " J tion.] Greeting. In the name of the State of Maine, you are commanded to appear before me, J. D. Esquire, one of the justices of the peace for the county aforesaid at , in B. on the day of , at of the clock, in the noon, to answer unto E. L. of M. [addition] in a plea of ; which plea the said E. L. hath commenced to be heard and tried before me ; and your goods or estate are attached to the value of for security to satisfy the judgment which the said E. L. may recover upon the aforesaid trial. Fail not of appearance at your peril. Dated at B. aforesaid, the day of , in the year of our Lord . J. D. (Trustee Writ.)* STATE OF MAINE. W — , ss. To the sheriff of the said county of W — , or either of r -I his deputies, or the constables of the town of W — , within the *■ ' '-' said county, or to any or either of them, Greeting. In the name of the State of Maine, you are required to attach the goods or estate of A. B. of, &c. to the value of twenty dollars, and summon the said defendant (line may be found in your precinct) to appear before me, F. H. D. Esquire, one of the justices of the peace for the county aforesaid, at my office, in W — , on, &c. then and there to answer to C. D. of, &c. In a plea, &c. To the damage of the said plaintiff (as he says) the sum of twenty dollars, which shall then and there be made to appear with other due damages. And whereas the said plaintiff says that the said defendant has not in his own hands and possession, goods and estate to the value of twenty dollars, which can be come at to be attached ; but has en- trusted to, and deposited in the hands and possession of E. F. of, &c. trustee of the said defendant, goods, effects, and credits, to the said value : You are commanded therefore to summon the said trustee (if he may be found in your precinct) to appear before me, the justice aforesaid, at the time and place aforesaid, to show cause, if any he have, why execution, to be issued upon such judgment as the said plaintiff may recover against the said defendant in this action, (if any) should not issue against, his goods, effects,, or credits, in the hands and possession of the said trustee. Hereof fail not, and- make due return of this writ, and of your doings therein, unto myself, at or before the said time and place of trial. Dated, &c. F. H. D. iR. S.ch. 114, sec. 1. Mb. FORMS IN CIVIL PROCEEDINGS. 255 (General Counts in Assumpsit usually inserted in the Blanks.) In a plea of the case, for that the said defendant, on the day of the purchase of this writ, being indebted to the plaintiff in the sum of twenty dollars, according to the account annexed, and in the sum of twenty dollars for so much money then before that time had -and received by the defendant to and for the use of the plaintiff, and for the sum of twenty dollars for so much money before that time, lent and accommodated by the plaintiff to the defendant at his request, and also in the sum of twenty dollars for so much money before that time laid out and expended by the plaintiff, for the use of the defendant, and at his request, in consideration thereof promised to pay the said several sums of money to the plaintiff on demand ; yet he has never paid the same, nor any part thereof. (Scire Facias) 1 STATE OF MAINE. W — , ss. To the sheriff of our county of W — , or his deputy, or to r i any constable, &c. Greeting. ' ' ■■* Whereas C. M. of, &c. before me, E. R. a justice, &c, at a justice's court holden before me at W — , on, &c. by the consideration of me the said justice, recovered against L. C. of, &c. the sum of debt or damage, and also for costs and charges of suit in that behalf expended ; whereof the said L. C. is convict, as to us appears of record ; and although judgment be* thereof rendered, yet the execu- tion for the said debt or damage and costs doth yet remain to be made, whereof the said C. M. has made application to me to provide remedy for him in that behalf. Now to the end that justice be done, you are hereby commanded to make known unto, the said L. C. that he be before me the said justice, at, &c. on, &c. to show cause (if any he has) wherefore the said C. M. ought not to have his execution against him the said L. C. for his debt or damage and costs aforesaid, and further to do and receive that which our said court shall then consider ; and there and then have you this writ, with your doings therein. Herein fail not. Dated, &c. E. R. (Forcible Entry and Detainer.) STATE OF MAINE. W — , ss. To A. B., Esquire, a justice of the peace and of the quorum within and for said county : C. D. of, &c. complains against E. E. of, &c, that said E. F., on the day of , having before that time had lawful and peacea- ble entry into the lands and tenements of the complainant, situated in , and whose estate in the premises was determined on the *R. S. ch. 114, Bee. 1, 256 JUSTICE OF THE PEACE. day of , then did, and still does unlawfully refuse to quit the same ; although the complainant avers, that he gave notice in writing to said thirty days before the making of this complaint to quit the premises. Made at aforesaid, this day of , 18 — . CD. W — , ss. A. D. 18 — . Then the said — made oath that the above complaint, by him signed, is true. Before me, Justice of the peace. The above form is intended to be used in a case where the relation of landlord and tenant exists, and where notice is required to be given. In other cases, the form must be changed to meet the particular cir- cumstances. {Form of warrant upon the above.) STATE OF MAINE. W— , ss. To the sheriff, &c. I- -J Whereas , of , in said county has complained to *■ '-l me the subscriber, a justice of the peace and of the quorum within and for said county, against of , that said on the day of , 18 — , having before that time had peaceable and lawful entry into the the lands and tenements of the complainant, situ- ated in , and whose estate in the premises was determined on the day of 18 — , then did, and still does unlawfully refuse to quit the same ; although the complaint avers that he gave notice in writing to said thirty days before the day of the making of his complaint, to quit the premises. You are therefore commanded, that you summon the said , if he may be found in your precinct, to appear before me, at in said , on the day of 18 — , at of the clock, in the noon, to shew cause, if any he have, why judgment should not be rendered and a writ of possession should not issue against him for the possession of the lands and tenements aforesaid, with costs of suit. And have you there this writ, &c. {Replevin when cattle are impounded.) 1 STATE OF MAINE. W — , ss. To the sheriff of our county of W — , or his deputy, or r -.to either of the constables of the town of W — , in said county, L L - SJ Greeting. We command you, that you replevy [here insert a description of the beast or beasts impounded] belonging to P. D. of W — ;, [addition] now distrained or impounded by S. P. of W — , [addition] in the com- *R. S. ch. 114, sec. 1. FORMS IN CIVIL PROCEEDINGS. 257 mon pound in said W — , (or in such other place as they may be restrained) and them deliver unto the said P. D. Provided, the same are not taken and detained upon mesne process, warrant of distress, or upon execution, as the property of the said P. D. and summon the said S. P. to appear before J. S., one of our Justices of the peace for our said county, at his dwelling-house in W — , on the day of at of the clock in the noon, to answer unto the said P. D. in a plea of replevin, for that the said S. P., on the day of at a place called A. in W- -, aforesaid, unlawfully took and impounded the said , and the same unjustly detained to this day, to the dam- age of the said P. D., as he saith, the sum of dollars, as shall then and there appear, with other due damages : Provided, he, the said P. D. shall give bond, with sufficient surety or sureties, to the said S. P. in , being double the value of the said beasts, to prosecute his said replevin to final judgment, and to pay such damages and costs as the said S. P. shall recover against him, and also to return the said in case such shall be the final judgment. And of this writ, with your doings hereon, and the bond you shall take, you are to make return to our said justice, on or before the said day of , at o'clock in the — noon. Witness J. S. our said justice, at W — , in said county, this day of , Anno Domini, 18 — . J. S. justice of the peace. ( Writ of replevin for goods.) 1 STATE OP MAINE. r L g -I W — , ss. To the sheriff of our county of , or his Dep- •- ' '- 1 uty, or to any constable in any town in said county, Greeting. We command you that you replevy the goods and chattels following, viz. (here enumerate, and particularly describe them) belonging to of now taken and detained by of , and them deliver unto the said — — , provided the same are not taken and de- tained upon mesne process, warrant of distress, or upon execution, as the property of the said , and summon the said , that he appear before me, A. B. Esquire, a justice of the peace within and for said county, at my dwelling house, in on the day of 185 — , at of the clock, in the noon, to answer unto the said in a plea of replevin; for that the said , on the day of , at said , unlawfully and without any justifia- ble cause, took the goods and chattels of the said as aforesaid, and them unlawfully detained to this day ; To the damage of the said , as he says the sum of dollars. Provided he, the said. , shall give bond to the said , with sufficient surety or sureties, in the sum of dollars, being twice the value of the said goods and chattels, to prosecute the said replevin 5 R. S.ch. 114, sec. 1. 32 258 JUSTICE OF THE PEACE. to final judgment, and to pay such damages and costs as the said shall recover against him, and also to return and restore the same goods and chattels, in like good order and condition as when taken, in case such shall be the final judgment ; and have you there this -writ, with your doings herein, together with the bond you shall take. "Witness, A. B. Esquire, at the day of in the year of our Lord one thousand eight hundred and fifty- A. B. Justice of the peace. II. SUBP03NA. STATE OF MAINE. W— , ss. To A B. of W— , Greeting. You are hereby required, in the name of the State of Maine, to make your appearance before , to give evidence of what you know relating to an action or plea of then and there to be heard and tried between plaintiff, and defendant. Hereof fail not, as you will answer your default, under the pains and penalty in the law in that behalf made and provided. Dated at the day of in the year of our Lord one thousand eight hundred and fifty- III. COMPLAINT FOR COSTS. To A. B., a justice, &c. Complains 0. D. of,&c. against E. F. of, &c. for that he, the said C. D. was summoned at the suit of the said E. F. to appear before your honor this day of, &c, at, &c, but the said E. F. has failed to enter his said action, and prosecute the same, but has discontinued the same. Wherefore the said C. D. prays judg- ment for his costs in this behalf sustained. IV. ABSENT DEFENDANT. {Notice.) STATE OF MAINE. W — , ss. At a justice's court holden at W — , before J. C, one of the justices, &c. A. D. 1846. E. W. et al. PFffs. vs. W. 0. Deft. In a plea of [set forth the declaration] as appears by the writ in this action. And now it appearing to said justice that said defendant at the time of the service of this writ was not an inhabitant of this State, and had no agent or attorney within the same ; ordered that notice be given to said defendant to appear at a justice's court to be holden, &c. or his default will be recorded, and judgment thereof rendered against him, and that said notice be given by forwarding to said defendant by mail at — , in the State of N. H., an attested eopy of this order days at least before the day of said court. J. C, justice of the peace. FORMS IN CIVIL PROCEEDINGS. 259 V. MOTION TO DISMISS. W— , ss. At a justice's court, &c. A. B. vs. CD. And now the defendant comes and moves to dismiss said action, because he says, [Insert the cause.] By his attorney, &c. VI. MOTION TO AMEND. W — , ss. At a justice's court, &c. A. B. vs. CD. And now the plaintiff comes, and moves to amend his writ by inserting, &c. or, by striking out, &c. VII. LOSS OF WRIT. {Affidavit of Attorney.} W — , ss. At a justice's court, &c. A. B. vs. C D. I, J. S. of, &c. an attorney and counsellor at law, do depose and say, that I believe, and have no doubt, that the instrument hereto annexed, marked A, is a true and exact copy of the original writ in the above action. Said writ was made by me, and this copy has been made from the minutes in my docket, made at the time it was sued out, which are full and distinct. And I do further say, that said original writ has been lost without fault or design on my part. J. S. Sworn to before me, J. D. justice, &c. {Affidavit of Officer.) I, E. E. of, &c. a deputy sheriff, &c. do depose and say, that I believe and have no doubt that the return, marked B, on the annex- ed instrument, marked A, is a true and exact copy of the return of the original writ in this action. It is made out and completed from my minutes, made at the time of the original service. E. E. dep. sheriff. Sworn to before me, J. D. justice of the peace. The affidavit of the plaintiff may be made in the same form with obvious changes. VIII. OFFER TO BE DEFAULTED. W— , ss,.- At a justice court, &c. ; A. B. vs. C D. And now %'ffrid C. D. this day of , offers and consents to be defaulted/ and that judgment may be entered against him for a 260 JUSTICE OF THE PEACE. specified sum as damages, to wit, for the sum of dollars ; and prays that this offer may be entered on record, and the time when the same is made. C. D. IX. MOTION FOR LEAVE TO PAY MONEY INTO COURT. W — , es. At a justice court, &c. A. B. vs. C. D. And now the said C. D., by his attorney, moves for leave to bring in the sum of dollars, and that unless the plaintiff accept the same, in full discharge of the damages claimed against him, the said C. D., the sum so brought in may be paid out of court to the plaintiff or his attorney, and the amount thereof be stricken out of the declaration, and no evidence thereof be given at the trial ; and that if the plaintiff shall elect to receive said sum, in full discharge of the damages claim- ed by him, he may be ordered to tax his costs, that the defendant may pay the same. E. F., defendant's att'y. X. PLEA OF GENERAL ISSUE, IN ASSUMPSIT. W — , ss. At a justice court, &c. A. B. vs. C. D. And the said C. D., by his attorney, , comes and defends the wrong and injury, when, &c, where, &c. and saith that he never prom- ised in manner and form as the said A. B. has in his declaration alleged against him, and of this he puts himself upon the country. By , deft's. attorney. XI. PLEA OF ABATEMENT IN ASSUMPSIT. W — , ss. At a justice court, &c. A. B. vs. C. D. And the said C. D. prays judgment of the said writ and declaration, because he says that the said several supposed promises in the said declaration mentioned, if any such were made, were, and each of them was made jointly with one G. H., who is still living, and residing at , and not by the said C. D. alone ; wherefore, inasmuch as the said G. H. is not named in the said writ or declaration, together with the said C. D., he, the said C. D., prays judgment of the said writ and declaration, and that the same may be quashed. By his attorney, E. F. XII. GENERAL DEMURRER TO DECLARATION. W — , ss. At a justice court, &c. A. B. vs. C. D. And now the said C. D. says, that the said declaration of the plain- tiff is not sufficient in law, and thereof prays judgment, and for his costs. By his attorney, E. F. FORMS IN CIVIL PROCEEDINGS. 261 XIII. SUMMONS TO ADMINISTRATOR OF PLAINTIFF, DECEASED, TO COME IN AND PROSECUTE. W— ) ss . To the sheriff of our county of W— , or his deputy, or to either of the constables of the town of W— , in said county, [*-• S -J Greeting. In the name of the State of Maine, you are commanded to summon C. B. of W — , in said county, gentleman, as he is administrator of the estate of C. S. late of said W— , deceased (if he may be found in your precinct) to appear before me J. S., a justice of the peace in and for said county, at a justice court to be holden, &c* to prosecute a suit commenced by the said C. S. in his life time against one C. N. of W — , aforesaid, painter, which is now pending before me as such justice, wherein the said plaintiff declares as follows, to wit : In a plea, &c. [setting forth the declaration] to the damage of the said plaintiff as he therein says, the sum of twenty dollars. Hereof fail not, &c. Dated, &c. J. S. justice of the peace. XIV. SUMMONS TO ADMINISTRATOR OF DEFENDANT TO COME IN AND DEFEND. [Same as last to *. Continue as follows :] Then and there to answer unto C. S. of, &c, and to take upon himself as such administrator, the defence of an action now depending before me, wherein the said C. S. is plaintiff, and the said C . N. is defen- dant, commenced in the life-time of the said defendant, and wherein the said plaintiff declares as follows, to wit, " In a plea, &c." To the damage, &c. [As before.] In case of insanity and marriage, vary the above forms. XV. MOTION OF THE HUSBAND TO BE JOINED IN -CASE OF MARRIAGE OF FEME SOLE PLAINTIFF. ' W — , ss. At a justice court, &c. A. B. vs. C. D. And now J. N. comes and shows that since the commencement of this action the plaintiff hath intermarried with him, and is now his lawful wife, and prays to be allowed to be joined with her, and prose- cute this suit to final judgment. 16. CAPIAS FOR WITNESS. STATE OF MAINE. W— , ss. To the sheriff, &c. or to any constable, &c. [l. s.] ^ ereas an ^tion ^ now pending and on trial before me 1 , A. B. a justice, &c. wherein C. D. is plaintiff and E. F. is defend- ant ; and it has been made to appear to me, the said justice, that G. H. or, &c. has been duly summoned to appear before me as a witness in 262 JUSTICE OF THE PEACE. said suit in behalf of said C. D., and has been tendered [or paid] his legal fees therefor ; and the said C. D. hath not so appeared, and hath thereby committed a contempt of this court ; you are hereby command- ed to take the body of the said C. D. (if he may be found in your precinct) and bring him forthwith before me, the said justice, to answer to the said charge of contempt, and also to give evidence of what he knows relative to the plea in said suit. Hereof fail not, and make due return, &c. Given, &c. A. B. justice of the peace. 17. JUDGMENT. (See Forms for Records.) XVIII. APPEALS. (See Forms for Records.) XIX. GENERAL RECOGNIZANCE. STATE OE MAINE. • W — . ss. Be it remembered that on the day of in the year, &c. personally appeared before me, J. S. Esquire, one of the justices of the peace in and for the county of W — , A. B. as principal, and C. D. and E. E as sureties, and acknowledged themselves to be jointly and severally indebted unto G. H. in the sum of , to be levied on their several goods or chattels, lands or tenements, and for want thereof, upon their bodies, to the use of the said A. B. if default be made in the performance of the condition here under written. The condition of the above-written recognizance is such, that if the above named A. B. shall prosecute with effect an appeal by him made from a judgment given by me the said justice against him at a court held before me at, &c. on, &c. in favor of the said G. H. for the sum of and costs of suit, taxed at and shall pay all such costs as may arise after said appeal : Then the above-written recognizance to be void, otherwise to abide in full force. J. S. justice, &c. Fees, $0,20. XX. CONDITION OF RECOGNIZANCE OF DEFENDANT APPEALING IN FORCIBLE ENTRY, WHEN PLAINTIFF CLAIMS RENT DUE. The condition of this recognizance is such, that if the above named A. B. shall enter and prosecute with effect an appeal made by him from a judgment given by me, the said justice, against him at a court, &c. in favor, &c. and shall pay all intervening costs, and such reason- able intervening rent for the premises as such justice shall adjudge, in case his judgment shall not be reversed on such appeal. J£ a brief statement of title in himself is filed by the defendant, the recognizance is to pay all intervening damages and costs, and reasona- ble intervening rent for the premises. FORMS IN CIVIL PROCEEDINGS. XXI. EXECUTIONS. STATE OF MAINE. \f— ss. To the sheriff of our county of W— , or either of his deputies, or the constables of the town of W— , within our said L L ' S -J county, or any, or either of them, Greeting. Whereas A. B. of, &c. on the day of , before F. H. D. Esquire, one of the justices of the peace for our county aforesaid, recovered judgment against C. D. &c. for the sum of dollars and cents, debt or damage, and dollars and cents, for charges of suit, as to us appears of record, whereof execution remains to be done :* We command you, therefore, that of the money of the said debtor, or of his goods or chattels within your precinct, at the value thereof, in money, you cause to be levied, paid, and satisfied unto the said cred- itor the aforesaid sums, being dollars and cents, in the whole, with interest from the time the said judgment was rendered, and also that out of the" money, goods or chattels of the said debtor, you levy cents more for this writ,f together with your own fees. [If the judgment debtor is liable to arrest, add the following : And for want of such money, goods, or chattels of the said debtor, to be by him shown unto you, or found within your precinct, to the accep- tance of the said creditor, for satisfying the aforesaid sums, — we com- mand you to take the body of the said debtor and him commit unto our jail in W — : And we command the keeper thereof, accordingly, to receive the said debtor into our said jail, and him safely to keep until he pay the full sums above mentioned, with your fees, or that he be discharged by the said A. B., the creditor, or otherwise, by order of law.] Hereof fail not, and make return of this writ, with your doings therein, unto our said justice, within three months next coming. Wit- ness our said justice, at W — , the day of in the year of our Lord one thousand eight hundred and . {Trustee Execution for Plaintiff.) [As before to * ] And whereas, by the consideration of the same justice, execution was likewise awarded for the same sums against the goods, effects, and credits of the said C. D. in the hands and possession of E. F. of, &c. trustee of the said C. D., as to us appears of record whereof execution remains to be done. We command you, therefore, that of the money of the said debtor, or of his goods or chattels in his own hands and possession, and of the goods, effects and credits of the said debtor in the hands and possession Jyie) tmert™" "' ^ ^^ ^ ^^ " Md & an d there con^ered by me the said justice, that the J said C. D. should recover against the said A. B. the sum of , being the amount due for the penalty or forfeiture on said beasts [or the damages for which said beasts were impounded,] and the fur ther sum of being the legal fees, costs, charges and expenses incurred by reason of said distress, and for charges of suit as to us appears of record, whereof execution remains to be done ' We command you therefore, &c. [As before.] (Execution for Plain-tiffin Forcible Entry.) STATE OP MAINE. W_ 'd SS ' f T ° ^ Sheriff ° f ° Ur C ° Unty af W_ - or either of h is <"> wEerei A. B. of fa. on the — day of -JS?** R H. D. Esquire one of the justices of the peace for our Suntv aforesa,d, recovered judgment against C. D. of, &c. for tL possS of certain prenuses described in his writ, to wit &c. and for' EZ l^l r st a b| e do°n f e SU,t ' " to USaPPearS ° f reCOrf ' ^-eof exec" ofSrSS A 1 *? 6 ' ? atJ r ? rtlwith deliTCr P^sion prermses^to said A. B. and we further command you, therefore, 266 JUSTICE OF THE PEACE. that of the money of the said debtor, or of hia goods or chattels •within your precinct, at the value thereof in money, you cause to be levied, paid, and satisfied unto the said creditor the aforesaid sum, being dollars and cents, in the whole : and also that out of the money, goods, or chattels of the said debtor, you levy cents more for this writ, together with your own fees. And for want of such money, goods, or chattels of the said debtor, &c. [As before.] XXII. SUMMONS TO PERSON HAVING RECORD OP DECEASED JUSTICE. 1 STATE OF MAINE. W — , ss. To A. B. of in the said county, r 1 Greeting. *■ ' ■■* Whereas it has been made to appear to me, E. H., a justice &c. that 0. D. late of — , in his life-time awarded judgment in favor of, &c. against, &c. for &c. and that said judgment remains unsatisfied ; and the said has applied to me to transcribe the record of said judg- ment to my book of records ; you are hereby required to appear before me at, &c. and then and there have and produce the said record of said judgment, or submit yourself to an examination on oath as to the place where it may be found. Hereof, &c. E. H. justice of the peace. XXIII. RETURN OF A WRIT OF CERTIORARI. W — , ss. To the justices of the S. J. 0. &c. In obedience to the , -. within precept, I hereby return certified copies of the record, v 1 - s f the original writ [or complaint] and of every paper filed in the case of, &c. and all things touching them, together with this writ of certiorari. A. B. justice, &c. XXIV. SUMMONS TO 1 ASSIGNEBOF GOODS, ETC. IN HANDS OF TRUS- TEE, TO APPEAR AND MAINTAIN HIS RIGHT. STATE OF MAINE. "W— , ss. To the sheriff, &c. Greeting. N Whereas C. D. of, &c. has sued out a writ before me J. S. a (*" S- ) justice, &c. against A. B. of. &c. andE. F. his trustee, which has been duly served and entered, and whereas the said E. F. has ap- peared, and made answer, according to law, touching the goods, effects- and credits of said A. B. in his hands or possession, and it appearing by said answer that said goods, effects and credits are claimed by G. H. of, &c, by force of an assignment from said A. B., dated, &c. You are hereby directed to notify the said G. H- thereof (if he be •Ante p. 81. FORMS IN CIVIL PROCEEDINGS. 267 within your precinct) that he may appear at, &c. on, &c. if he see cause, and maintain his right under said assignment. And you will serve said notice by delivering to said G. H. an attested copy of this order, or by leaving a like copy at his last and usual place of abode, days before the day of his appearance. Witness my hand and seal, &c. Hereof fail not, &c. J. S. justice of the peace. XXV. LIBEL OP GOODS SEIZED. 1 To A. B. a justice, &c. The libel of C. D. shows that he has seized, &c. [setting forth the goods] because, &c. [giving the reason.] Wherefore he prays for a decree of forfeiture of the same according to the provisions of [mentioning the number of the statute referred to.] Dated, &c. {Notice to Persons Interested.) W — , ss. To all persons interested in [setting forth the goods] The libel of C. D. this day filed with me A. B. justice, &c. shows that he has seized said goods, because, &c. and prays for a decree of forfeiture of the same, according to the provisions, &c. You are therefore hereby notified thereof, that you may appear before me, the said justice at, &c. on, &c. then and there to show cause, if any you have, why said goods should not be decreed forfeited. ( Writ of Restitution.) STATE OF MAINE. W — , ss. To the sheriff of our county of W — , or either of his , 1 deputies, or the constables of the town of W — within our *■ ' '' said county, or any, or either of them. Greeting. Whereas E. E. of &e. on the day of , before me, A. B. Esquire, one of the justices of the peace for our county aforesaid, recov- ered judgment against C. D. of, &c. for the restitution of the fol- lowing goods, the property of the said E. F., by the saidC. D. groundlessly seized, and without probable cause, and also for the sum of dollars and cents, damage, in that behalf sustained, and dollars and cents, for charges of suit, as to us appears of record, whereof, execution remains to be done. We command you therefore, that you forthwith restore to the said E. P. the said goods ; and we further command you, that of the money of the said debtor, or of his goods or chattels within your precinct, at the value thereof in money, you cause to be levied, paid, and satisfied unto the said credi- tor the aforesaid sums, being dollars and cents, in the whole ; and also that out of the money, goods, or chattels of the said debtor ^Ante p. 119. 268 JUSTICE OF THE PEACE. you levy cents more for this writ, together with your own fees. And for want of such money, &c. XXVI. APPLICATION TO TAKE POOR DEBTOR'S OATH. 1 To , Esquire, one of the justices of the peace, within and for the county of . Whereas I, the undersigned, , of , in said county of , have been arrested by force of an execution which issued on a judgment obtained against me before , within and for the county of , on the day of , A. D. 185 — , in favor of , for the sum of dollars and cents damage, and costs of court, taxed at dollars and cents, , and have given the bond required by law and referred to in the twenty-eighth section of the one hundred and forty-eighth chapter of the Revised Statutes of the State of Maine. Now therefore, I, the undersigned, claim the benefit of said statute, and request you, the said Justice, to cite the said creditor to appear before two justices of the peace and of the quorum, at the office of , in , in said county of , on the day of , A. D. 185 — , at — of the clock in the — noon, at which time I will submit myself to examination, and take the oath or affirmation as prescribed in the twenty-eighth section of the chapter above referred to, if allowed by the said justices, and the said creditor may be then and there present and object, if he shall see cause. Dated at , this day of , A. D. 185 — . STATE OF MAINE. [l. s.] W — , ss. To — , of. &c. in the county of , Greeting. In the name of the State of Maine, you are hereby notified of the desire of the above named debtor, as expressed in the foregoing appli- cation ; and you are hereby cited to appear before two jststices of the peace and quorum (if you shall see cause,) at the, time and place, and for the purposes mentioned in the foregoing application. Given under my hand and seal, at said , this day of in the year of our Lord one thousand eight hundred and . J. S., justice of the peace. W , ss. Having examined the above notification and return, and duly cautioned the said , we have administered to him the oath [or affirmation] allowed in the act above referred_to ; and made out a certificate thereof in the form therein prescribed. , ) Justices of the peace- , ) and of the quorum. (Selection of Justices.) 1 To . You are hereby selected by me, , the within named debtor, to take the disclosure according to the within citation. 'Ante p. 120. 'ft. FORMS IN CIVIL PROCEEDINGS. 269 To . You are hereby selected by me , the within named creditor, to take the disclosure according to the -within citation. Poor Debtors Oath, and Certificate of Discharge. I j do solemnly swear, [or affirm, as the case may be] that I have not any estate, real or personal, in possession, reversion or remain- der, except the goods and estate expressly exempted by statute from attachment and execution, and whatever property I have now disclosed ; and, that I have not, since the commencement of this suit, or the time when the debt, or cause of action, or any part thereof, on which this suit was brought, was contracted by me, directly or indirectly sold, loaned, leased, or otherwise disposed of, or conveyed or entrusted to any person or persons, whomsoever, all or any part of the estate, real or personal, whereof I have been the lawful owner or possessor, with any intent or design to secure the same, or to receive or expect any profit, advantage or benefit therefrom, to myself or others, with an intent or design to defraud any of my creditors. So help me God, (or " this I do under the pains and penalties of perjury," if the debtor affirms.) STATE OF MAINE. [l. s.J W — , ss. To the sheriff of our county of , or his dep- [l. s.] uty, and to the keeper of the jail at , in said county : We the subscribers, two disinterested justices of the peace and of the quorum, in and for said county of , hereby certify that , a poor debtor, arrested on a certain execution issued by , begun and holden at , within and for the county of , on the day of , A. D. 185 — , on a judgment recovered by , against him for the sum of dollars cents, debt or damage, and dollars cents for costs of suit, which judgment is dated the day of , 185 — , and execution dated the day of -, 185 — , and committed to the jail at , aforesaid, [or enlarged by giv- ing bonds to the creditor, as the case may be] hath caused — , the creditor, to be notified according to law, of his, the said debtor's desire of taking the benefit of the one hundred and forty-eighth chapter of the Revised Statutes of this State, entitled, " of the relief of poor debtors ;" that in our opinion he is clearly entitled to have the oath, prescribed in the twenty-eighth section of said chapter, administered by us ; and that we have, after due caution to him, administered said oath to him. Witness our hands and seals, this day of , in the year 185 — . , / Justices of the peace , \ and of the quorum. XXVII. APPOINTMENT OF APPRAISERS OF LOST GOODS. STATE OF MAINE. r L g -I W — , ss. To A. B. andC. D., &c. E. F. having represent- *■ '* ed to me that he is the finder of, &c. lost goods, [or stray 270 JUSTICE OF THE PEACE. beasts] and the same appearing to me to be true, you are hereby ap- pointed to appraise on oath at their true value, said goods [or beasts.] When you have performed that service, you -will return this warrant into the town clerk's office for the town of W — , in said county, within seven days next coming. Given, &c. F. H. D., justice of the peace. Annex the certificate of the oath. XXVIII. LIBEL OF BEASTS IMPOUNDED. STATE OP MAINE. C , ss. To A. B., a justice of the peace within and for said county, Esquire. 0. P., pound keeper of the town of P — , in said county, represents, that on the day of , 185 — , C. D. of , in said county, committed to the pound in said town [here describe the beasts] taken up in the highway (or in the enclosure or possessions of said C. D. as the case may be) in said , as estrays, and that the said C. D. demands the sum of dollars as damages, and the charges, fees and costs attending the impounding the same ; and that the said 0. P. forthwith posted, and kept posted for three days, at his dwelling house, and in two other public places, in the same town, advertisements, by him subscribed, stating the name of the impounder or finder, the time and cause of impounding, and a brief description of the beasts, and noti- fying the owner to pay what is legally and justly demandable, and to take the beasts away, [and also gave the like public notice by the town crier, if there be one in the town] and also caused a copy of such adver- tisement to be inserted in the , a newspaper printed in said coun- ty. The owner of said beasts, not having within twenty days next after the posting and publishing such notice, appeared and claimed said beasts, and paid what is legally demandable, the said 0. P., in the name and in behalf of said C. D., the impounder, prays that a decree of forfeiture may be made by said justice, and that said beasts may be disposed of according to law. Dated, &c. 0. P. This proceeding is not to be had, if the value of the beasts does not exceed five dollars. 1 {Decree of Forfeiture.") STATE OF MAINE. C — , ss. To the sheriff of our county of •, or his deputy, or any constable of the several towns in the same county, Greeting. , , Whereas C. D. of within the county of through his l L " S 'J agent, 0. P., pound keeper, by the consideration of our justice court, holden at , on , by :, Esquire, a justice of the peace within and for said county, obtained a decree for the sale of the •Acts of 1845, ch. 140. FORMS IN CIVIL PROCEEDINGS. 271 following [here insert a description of the property, as in the libel] with costs, taxed at , "as to us appears of record, whereof execu- tion remains to be done ; we command you, therefore, to make sale of the same, in manner prescribed by law for the sale of goods and chat- tels, in satisfaction of executions ; and after deducting your lawful fees, you will pay over the residue to the said pound keeper, and take his receipt, thereon, for the same. Hereof fail not, and make due return, with your doings therein, within thirty days. Witness &c. XXIX. FORMS FOR CALLING MEETINGS OF CORPORATIONS, WHEN NO PERSON IS DULY AUTHORIZED, 4C. 1 Application. To A. B. a justice, &c. The application of C. D., E. F. and G. H., members of, &c.,a corporation duly established by law, shows that there is no person duly authorized to call or preside at a legal meeeting thereof, by reason of, &c. Wherefore they pray that a warrant may be issued to the said C. D., directing him to call a meeting of said corporation, to be held at, &c. — on, &c. — by giving such notice as has previously been required by law, and also directing him to preside at said meeting until a clerk shall be duly chosen and qualified. Dated, &c. Warrant. STATE OF MAINE. Il si C— ' ss- To C - I) - &c - C - D - E F ' and G - H ' of > &c - *- ' '■' having made application to me, A. B., a justice, &c, stating, &c. and praying, &c. You are hereby commanded to call a meeting of said corporation to be holden, &c. [here insert the purposes of the meeting, and directions for the notice required by law.] And you will preside at said meeting until a clerk shall be duly chosen and qualified. Given, &c. A. B. justice of .the peace. XXX. OF ORGANIZING CORPORATIONS, &C. 1. Propi'ietors of distinct Fields enclosed in common? To F. H. D., a justice, &c. The application of A. B. and C. D. shows that they are proprietors with E. F, G. H., I. J. and J. S., of several distinct lots or pieces of land, enclosed in one common field, and are desirous of organizing themselves and of holding regular meet- ings from time to time for the purpose of managing their common concerns, according to the statute in that behalf provided. »R. S. ch. 76, sec. 8. 2 R. S. ch. 29, sec. 16. 272 JUSTICE OF THE PEACE. Wherefore they pray that a warrant may be issued, directed to the said A. B., commanding him to call a meeting of said proprietors to be holden, &c. for the following purposes, to wit : Dated, &c. Warrant. STATE. OF MAINE. C — , SS. [l. s.] To A. B., &c. Whereas, &c. [setting forth the applica- tion] you are hereby directed to call a meeting of said proprietors to be holden, &c. for the purpose aforesaid. Given, &c. F. H. D., justice of the peace. 2. Proprietors of Lands, Sfc. held m Common. 1 The application is by five or more, proprietors of lands, [or wharves] &c. held in common, and is for the purpose " of forming them- selves into a corporation." The warrant is to be directed to one of the applicants, should recite the application, and direct him " to call a meeting of all said proprietors to be holden, &c." "for the purpose of forming themselves into a corporation." 3. Proprietors of Libraries? The application is by five or more " proprietors of a Ibrary in the town of W., in common with," &c. [at least seven] and is for the pur- pose of " forming themselves into a society, or body politic, for the purpose of holding, preserving, increasing, and using such library." The warrant should recite the application, and be directed to one of the applicants, requiring him " to call a meeting of said proprietors to be holden, &c. for the purpose, &c." 4. Proprietors of Aqueducts? To F. H. D. a justice, &c. The application of A. B. &c. shows that they have associated, by an agreement in writing, to become the propri- etors of an aqueduct for the purpose of conveying fresh water into [or within] the town of W — , in said county, [or the proprietors of funds for establishing an aqueduct, &c] by the name and style of , and that they are desirous that a meeting of said proprietors should be holden, &c. for the following purposes, to wit, &c. according to the statute, &c. Wherefore they pray that a warrant may be issued, directed to said A. B. requiring him to call such meeting. The warrant should follow the application. 'R. S. ch. 85, sec. 1. 3 R. 9. ch. 83, see. 1. 3 R. S. ch. 84, sec. 1. FORMS IN CIVIL PROCEEDINGS. 278 5. Private Ways and Bridges. 1 The application of A. B., C. D. and E. F. shows that they are pro- prietors in common with, &c. of a private way [or bridge] in the town of W. in said county, and are desirous of calling a meeting of said proprietors to be holden, &c. for the purpose of organization and doing such other business as may then and there be done, according to the statute in such behalf provided. Wherefore they pray, &c. The warrant follows the application. 6. Parishes. 2 To C. W. H., a justice, &c. (If the parish be incorporated already.) The application of A. B., C. D., E. F., G. H. and J. S. shows that they are qualified voters of an incorporated parish in the town of W. in said county, called, &c, and that the assessors of said parish unreas- onably refuse to call a meeting of the parish (or to insert an article requested, in the warrant for calling a meeting, as the case may be) though duly requested so to do. Wherefore they pray that a warrant may issue, directed to one of the applicants herefor, requiring him to warn the qualified voters of said parish to meet at , on , to act upon the following mat- ters and things, to wit, &c, according to the statute in that behalf provided. The warrant follows the application. 7. Mode of calling a meeting to form a Parish. 1 To C. W. H. a justice, &c. The undersigned, each of the age of twenty one years or more, desirous of becoming an incorporated parish or religious society, a majority of them residing in said county, request that you will issue your warrant to one of them, directing him to noti- fy the other applicants to meet at some proper place to be expressed in such warrant, to be held on the day of , 18 — , for the above purpose. The warrant follows the application, expressing also the place of meeting. XXX. CALLING TOWN MEETINGS. 4 Warrant. STATE OF MAINE. r L g I W. ss. To any constable of the town of W. in said county. Whereas A. B.'&c. (ten or more) legal voters of said town have made application to me, C. D. a justice, &c. showing that the selectmen of said town have unreasonably refused to call a meeting of »R. S. ch. 25, sec. 107. 3 Ib. sec. 1. 2 R. S. ch. 18, sec. 7. *R. S. ch. 5, sees. 2, 3,4,5. 35 274 JUSTICE OF THE PEACE. the inhabitants of said town qualified to vote in town affairs, and such appearing to me to be the case, you are hereby directed to summon the inhabitants of said town of W. qualified to vote in town affairs, to assemble at the town hall in W. on, &c. then and there to act upon the following articles, to wit. Given, &c. XXXI. OF FORMING LIMITED PARTNERSHIPS. 1 A. B. and C. D. both of W. in the county of W. as general part- ners, and E. F. of S. in the county of H. as special partner, have formed a partnership under the name and firm of A. B. & Co. for the purpose of transacting, &c. in said town of W. to commence &c. and to terminate, &c. The said E. F. has contributed $ capital to the common stock. A. B., C. D., E. F. The acknowledgment to be taken by the justice in the usual form. XXXII. JUSTICE RECORDS. STATE OF MAINE. W — , ss. At a court held before me, C. W. H., Esquire, one of the justices of the peace, within and for said county, at my office in W — , in said county r on the day of , in the year, &c. B. S. F. of, &c, plaintiff, vs. W. F. B. &. N. F. both of, &c, defendants, and J. G. of, &c. trustee. In a plea of, &c. [setting forth the declaration] (if a complaint,) in a complaint wherein the said F. complains &c. ^[setting forth the com- plaint] as by writ on file, dated, &c. will more fully appear, on the day of, &c. the plaintiffs appeared and entered their action. The defendants also appeared by A. B. their attorney. {If it appears that title to Real Estate is concerned.) As it appears that the title to real estate is concerned or brought in question in this action, and the plaintiff [or defendant] requests to have the same transferred to the district court next to be holden' &c. and has recognized, as the law directs, to enter the same in said court, therefore all proceedings before me are stayed, and said action is trans- ferred to the district court at said term, according to law. {Pleas in Abatement.) Judgment for Plaintiff that the Defendant answer over. The defendant appears for this purpose only, by A. B. his attorney, and files his plea in abatement as follows, &c. And upon the said plea, >R. S. ch. 44, sec. I. FORMS IN CIVIL PROCEEDINGS. 275 after hearing all matters and things concerning the same, it appears to me that the writ in this action ought not to be quashed* ; and it is therefore ordered that the said defendant answer over to the action. For the Plaintiff, final. [As before to *] It is therefore con- sidered "by me, the said justice, that the said B. S. F. recover against the said W. F. B. and N. F. the sum of debt or damage, and charges of suit, and execution is awarded therefor against, &c. For the Defendant. It appears to me that the writ in this action ought to be quashed. It is therefore considered by me, the said justice, that said writ be quashed, and that said W. F. B. and N. F. recover of the said B. S. F. the sum of for their costs of suit in this behalf sustained. And execution is awarded, &c. {Motion to Dismiss.) Judgment for Plaintiff. The defendant appears by A. B., his attorney, and files a motion to .dismiss this action, because he says, &c, and upon the said motion, after hearing all matters and things concerning the same, it appears to me, the said justice,* that this action should not be dismissed. Judgment for defendant. [As before to*] That this action should be dismissed. It is therefore considered by me, the said justice, that this action be dismissed, and that the said W. F. B. and N. F. recover, &c. {Non-suit.) And now the defendant [again] appears, and the plaintiff does not appear further to prosecute this suit. Wherefore, it is considered by me, the said justice, that the defendant recover of the plaintiff his costs of suit, taxed, &c. (Default.) And now the defendant does not appear, but makes default : Where- upon it is considered, &c. (Amendment.) The plaintiff, by leave of court, amended his writ by adding a new count as follows, to wit ; &c, as by motion on file appears. (Set-off.) The defendant files his account against the plaintiff in set-off, as by set-off on file more fully appears. ( Trustee answers and is charged.) And the said J. G. came into oourt and submitted himself to an examination on oath, as by the interrogatories on file appears. Where- 276 JUSTICE OF THE PEACE. upon he was adjudged to be a trustee of said defendant. [If judg- ment be given for the plaintiff in the suit, add.] It is therefore considered by me, the said, justice, that said B. S. F. recover, &c, and execution is awarded therefor against the goods, effects and credits of said defendant, in the hands of said trustee, as well as against the body and goods of said defendant. ( Trustee discharged, ,) Whereupon it was adjudged that he is not a trustee of said defend- ant, and it is considered by me, the said justice, that the said J. G. recover of the said B. S. F. his costs taxed, &c. ( Continuance. ) And said action is continued to, &c. {Discontinuance as to one Defendant.) And the plaintiff discontinues his case so far as relates to the said N. F. {Notice to absent Defendant.) It appearing that the defendant in this case was without the State, so- that no service of the writ in this action could be made on him, and that he had no agent or attorney residing in the State, it is ordered that notice be given, &c. {Death of party suggested.) It is suggested that the defendant hath deceased, and said action is continued, &c. that the plaintiff may summon in his administrator to defend. {Administrator comes in.) And now, on this, &c. A. B., administrator of the estate of said de- fendant, comes in and takes upon himself the trial of said suit. {Issue and Trial; Judgment for Plaintiff.) Said defendant for plea now saith, &c. ; and jaf this puts himself on trial before said magistrate, by A. B. his attorney ; and the plaintiff doth likewise by C. T>. his attorney. And upon the said issue, after hearing all the matters and things concerning the same, it appears to me that the said W. F. B. did promise, (or is guilty) in manner and form as the plaintiff hath there- of declared against him. It is therefore considered by me, the said justice, that the said B. S. F. recover of the said W. F. B. for his debt or damage in that behalf sustained, and his costs of suit taxed at ; and execution is awarded therefor against the goods and effects of the said W. F. B., and for want thereof, against his body. FORMS IN CIVIL PROCEEDINGS. 277 {Judgment against Executor, who appears.) And execution is awarded for the said amount of debt or damage against the goods and estate of the said W. F. B. in the hands of the said A. B. as his executor. Execution is also awarded for the amount of the said costs against the proper goods and estate of the said A. B., and, for want thereof, against his body. {Profert.) The defendant now brings into court, and tenders to the plaintiff, the gum f i n full satisfaction of the cause of action declared on in the writ in this action, and prays that the costs of suit may be taxed , as appears by the tender on file in the case. And said sum is accep- ted by the plaintiff, but only in part satisfaction. {Appeal.) From which said judgment against him the said "W. F. B. appeals to the district court next to be holden, &c. and recognizes with suffi- cient sureties to prosecute his said appeal with effect, and pay all such costs as arise after the appeal. Attest, C. W. H., justice of the peace. Here should follow on the record an attested copy of the original recognizance. {Judgment and Appeal in Forcible Entry.) And upon the issue, &c. it appears, &c. that the said W. F. B. is guilty, &c, and that the plaintiff is entitled to possession of the premises demanded in said writ. It is therefore considered by me, the said justice, that the said B. S. F., recover possession of said premi- ses, and also his costs, &c. against the said W. F. B. From which said judgment, &c. [If future rent be claimed, a statement may be put in at this stage of the case, unless claimed in the writ, which may be thus recorded.] And thereupon the said B. S. F. makes a claim in writing, which is filed in the case, and is of the tenor following, &c. Whereupon it is considered, &c, [setting forth the proper recogni- zance in such case.] {Replevin of beasts ; Judgment for Return.) And upon the issue, &c. it appears to me, &c. that the said beasts were lawfully taken and distrained. It is therefore considered by me, the said justice, that the same beasts be returned and restored to the said W. E. B. to be held by him, irrepleviable by the plaintiff, and that the said W. F. B. recover, &c! 278 JUSTICE OF THE PEACE. (Scire facias.) In an action of scire facias, wherein the said B. S. F. sets forth, &c. [setting forth the writ] as appears more fully by the writ on file. And the plaintiff appears and enters his action. And the defendant appears by A. B., his attorney, and for plea, saith, &c. And the plaintiff doth likewise by his said attorney. [Hearing and judgment as before, according to the facts.] CHAPTER II. FORMS IN. CRIMINAL PROCEEDINGS. I. GENERAL FORMS. 1. Complaint. STATE OF MAINE. C — , ss. To A. B,,of ,Esq., one of the justices of the peace in and for the county of C — : C. D., of , in said county, on the day of , in the year of our Lord one thousand eight hundred and fifty — , in behalf of said State, on oath complains, that [on, &c. at, &c. the following goods to wit.; one silver watch of the value of twenty dollars, of the goods and chattels of the said C. D. then and there in the possession of the said C. D. being found, were feloniously taken, stolen and carried away, against the peace of the State, and contrary to the form of the statute in such cases made and provided ; and the said C. D. hath probable cause to suspect and doth suspect that E. F. of, &c. did feloniously take, steal and carry away the goods and chat- tels aforesaid.] [If the offence be within the final jurisdiction of the magistrate, instead of that between the brackets, insert as follows :] That E. F. &c. heretofore, to wit ; on, &c. at, &c. one silver watch of the value of five dollars of the goods and chattels of him the said C. D". then and there in the possession of said C. D. being found, feloniously did steal, &c. against the peace of the State and contrary to the form of the statute in such cases made and provided. C. D. C — , ss. On the day of aforesaid, the said C. D. makes oath, that the above complaint, by him signed, is true. Before me, A. B., justice of the peace. 2. Warrant. STATE OF MAINE. C — , ss. To the sheriff of our county of C — , or either of his dep- II s 1 ut ' es ' or to an y consta kle of the town of , within said 1 ' ' J county, Greeting. 280 JUSTICE OF THE PEACE. Whereas C. D., of , in said county, on the day of , A. D. 185 — , in behalf of said State, on oath complained before me, one of the justices within and for said county, that [here describe as in the complaint.] Therefore, in the name of said State, you are commanded to appre- hend, forthwith, the said E. F., if he may be found in your precinct, and him bring before me, A. B., one of the justices of the peace for said county, or some other justice of the peace within and for said county, to answer to the complaint aforesaid. You are also alike commanded to summon the complainant and G. H. and J. S., as witnesses to appear and give evidence touching the matter of said complaint, when and where you have the said E. F. Given under my hand and seal at aforesaid, this day of , in the year of our Lord 185 — . A. B., justice of the peace. 3. Recognizance of a Party for further Examination. STATE OF MAINE. C — , ss. Be it remembered that on the day of, &c. E. F. of, &c. as principal, and J. M. and R. S. as sureties, personally appeared before me, A. B., Esquire, one of the justices of the peace for the said county of C — , and acknowledged themselves to be sever- ally indebted to the State of Ma'ine, in the sum of dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of the said State, if default be made in the performance of the condition here under written. The condition of the above written recognizance is such, that where- as, C. D. hath complained against said E. F., for that, &c. and a warrant has been duly issued thereon, and the said E. F., hath been brought before me on said warrant to answer said complaint, and I have this day adjourned the examination [or trial] of the said E. F, to, &c. at, &c. ; now if the said E. F., shall personally appear before me at, &e. on, &c, then and there to answer to such matters and things as shall be objected against him on the behalf of said State, then the above written recognizance to be void and of none effect : otherwise to abide in full force, power and virtue. Attest. A. B. justice of the peace. 4. Mittimus for not so Recognizing. STATE OF MAINE. ' C — , ss. To .the sheriff of the county of C — , his deputies, and the -, constables of the town of , in said county, and the keeper |L. S.J f t jj e comm on jail at , in the county of C — , Greeting. Whereas, E. F. of, &c. has been this day brought before me, A. B., one of the justices of the peace in and for said county, by virtue of a warrant issued against him on the complaint of C. D., who therein, POEMS IN CRIMINAL PROCEEDINGS. 281 upon oath, says, that, &c. [setting out the complaint] and whereas I hare adjourned the said examination of the said E. F. to, &c. at, &c. and have ordered the said E. F. to recognize in the sum of, &c. for his appearance at such time and place ; and the said E. F. hath not so recognized. You, the said sherifls and constables, are, therefore, here- by required, in the name of the State of Maine, to take the said E. F. and him carry to the jail for said county, and him deliver to the keeper thereof, together with this warrant. And the said keeper is alike required to receive the said E. F. into his custody in said jail, for want of sureties until the said day, &c. or until he be otherwise discharged by due course of law. Given under my hand and seal at &c. this day of in the year, &c. A. B. justice of the peace. If the same officer who committed the party is required to bring him up, the order may be given verbally. If not, it should be in writing. 5. Order for bringing the Prisoner up for further Examina- tion. C — , ss. To the keeper of the State's jail in the said county of C — , Greeting. You are hereby required, forthwith, to bring E. F., a prisoner in your custody, before me, the subscriber, one of the justices of the peace for the said county of C — , at my dwelling house, in said . [or at my office, &c] for further examination. A. B. justice of the peace. 6 . Subpama for Defendant 's Witnesses. C — , ss. To J. K., of, &c. Greeting. E. F., &c. brought before me on the complaint of C. D. having requested me to grant a summons for your attendance at his examina- tion on said complaint : You are hereby required, in the name of the State of Maine, upon payment of your legal fees, to make your appearance before me A. B., a justice, &c. at my office in , in said county, forthwith, to give evidence of what you know relating to said complaint. - Hereof, fail not, as you will answer your default under the pains and penalties by law in that behalf made and provided. Dated at — — , aforesaid the day of in the year of out Lord, &c. A. B. justice of the peace, 7. Capias for a Witness, STATE OF MAINE. C — , ss. To the sheriff, &c. or to any constable, &c. Greeting. [l. s.] "Whereas E. F. has been brought before me, A.B., a justice &c. on the complaint of C. D., &c. ; and whereas, at the request of 36 282 JUSTICE OF THE PEACE. Said C. D., I granted a summons to J. K. of, &c. requiring him to appear, &c. ; and it has been made to appear to me that due service thereof has been made, and the fees of the said J. K. paid (or ten- dered) and the said J. K. hath not appeared, and hath thereby com- mitted a contempt of this court. You are hereby required to take the body of the said J. K. (if he may be found in your precinct) and forthwith bring him before me, the said justice, to answer to the said charge of contempt, and to give evidence of what he knows relating to said complaint. Hereof fail not, and make due return, &c. Given, &c. A. B. justice of the peace. 8. Commitment of Witness for refusing to give Evidence. STATE OF MAINE. C — , ss. To the keeper of the State's jail in , &c. Tl s 1 Greeting. L ' J Receive into your custody the body of J. K. herewith sent you, brought before me. A. B. Esquire, one of the justices, &c. For that he, the said J. K. having knowledge that a certain larceny was committed of the property of one C. D. on the day of last past, at, &c. and touching which the said J. K. can give material evi- dence, hath refused to be examined on oath respecting the same, the said J. K. therefore, you are safely to keep in your said custody, until Be shall submit to be examined touching the said larceny, or shall be discharged by due course of law ; and for so doing this shall be your sufficient warrant. Given under my hand and seal this day of in the year of our Lord one thousand, &c. A. B. justice of the peace. 9. Examination of the Complainant. C — , ss. to wit. The information of C. D. of in the said county, taken upon oath before me, A. B . Esquire, one of the justices &c. on the — — day of in the year, &c. in the presence and hearing of E. F., charged before me by C. D. of , [state the offence as con- tained in the information or complaint] which said C. D. on his oath aforesaid, before me the said justice, in the presence and hearing of the said E. F. saith that [here state the evidence fully.] Taken before me the day and year above mentioned. A. B. justice of the peace. 10. Examination of the Prisoner. C — , ss. to wit. The examination of E. F. of taken before me one of the justices &c. on the in the year, &c. the said E. F. being charged before me by C. D. of &c. he the said E. F. upon his exam- FORMS IN CRIMNAL PROCEEDINGS. 283 iiiation now taken before me saith, that, [set forth the substance of prisoner's statement] E. F. [Prisoner's signature.] Taken before me the day and year above mentioned. A. B., justice of the peace. 11. Record of an Order to Recognize. STATE OF MAINE. C — , ss. At a court held before me, A. B., Esquire, one of the justices, &c. at my office in , in said county, on this day of , in the year of our Lord one thousand eight hundred and . State, on complaint of C. D. vs. E. P. The complaint, under oath, of C. D., shows that heretofore, to wit : on the day of , the following goods, to wit : one silver watch of the value of twenty dollars of the goods and chattels of the said C. D., then and there in the possession of the said 0. D. being found, was feloniously taken, stolen, and carried away, against the peace of the State, and contrary to the form of the statute in such case made and provided, and the said C. D. had probable cause to suspect, and did suspect that E. F. of, &c. did feloniously take, steal, and carry away the goods and chattels aforesaid, as by complaint on file, dated, &c. more fully appears : Whereupon, it appearing that such an offence had been committed, a warrant was duly issued by me, the said justice, according to law. On the day of , the said E. F. was brought before me, and said complaint was read to him, and, being asked whether he was guilty or not guilty, he then said he was not guilty, and the examina- tion was thereupon adjourned to, &c. And the said E. F. recognized with sureties for such further examination (or was committed to prison for want of recognizance for, &c.) On the day of, &c. after hearing divers witnesses duly sworn to testify the whole truth, and fully understanding the defence of the respondent, and it thereupon appearing to me that there is probable ground to believe that the said E. F. is guilty of the offence charged upon him in said complaint, it is therefore considered and ordered by me the said justice that the said E. F. recognize to the State in the sum of with sureties in the like sum, for the appearance of the said E. F. at the district court next to be held, &c. And the said E. F. enters into such recognizance (or the said E. F. not offering suffi- cient .bail, is committed to prison for trial.) A. B., justice of the peace. 12. Bill of Costs. C--, ss. State, on complaint of C. D. vs. E. F. Before A. B., Esquire, a justice of the peace in and for said county the day of , A. L\, 185—. J 284 JUSTICE OF THE PEACE. Costs. Receiving complaint and issuing warrant. - $0 50 Subpoena, - _...- 10 Travel to the place of trial; - Entry, swearing witnesses, Judg't, Recording, &c. 75 Trial, 80—2.15 Recognizances, ------ Mittimus, 25 Copies, 1 00 Travel in returning papers to court, Witnesses. G. H. four miles, one day, - - - 82 J. S. eight miles, one day, ... 114 — l,9(j Officers' Fees. Service of "Warrant, ----- o 50 Travel miles, - - - Summoning Witnesses, - Travel for do. .... Conveyance of prisoner miles, Attending court, 12 hours, - - - 75 Aid— 12 hours, 1 00 6 hours, 50 Attest, A. B. justice of the peace. 13. Recognizance for appearance at the District Court. STATE OF MAINE. C — , ss. Be it remembered, that on this day of A. D., 185 — , E. F., G. H., and I. J., personally appeared before me, A. B., Esquire, one of the justices of the peace within and for the county of C — , and acknowledged themselves to be severally indebted to the State of Maine in the sums following, viz ; the said E. F. as princi- pal, in the sum of dollars, and the said G. H., and I. J. as sureties for the said principal, in the like sum of dollars, to be levied upon their goods, chattels, lands, or tenements ; and in want thereof, upon their bodies, to the use of the said State, if default be made in the performance of the condition following : — to wit : The condition of this recognizance is such that, whereas the said E. F. principal in this recognizance, is now before me, the said justice, arrested on a warrant issued upon the complaint of C. D. of in said county, charging the said principal with [setting forth the com- plaint,] and whereas, after the examination of the evidence in support of said complaint, it appearing to me that there is probable cause to believe the said E. F. guilty, the said E. F. was thereupon ordered by me, the said justice, to recognize with sureties in the sum of FORMS IN CRIMINAL PROCEEDINGS. 285 dollars, for his personal appearance before the district court, to be holden at , within and for the county of C , on the Monday of to answer further to the aforesaid charge. Now if the said B. F., shall personally appear at the district court to be holden at within and for the county of on the - Mon- day of , then and there to answer to said charge, and shall abide the order of said court, and shall also in like manner personally appear at any subsequent term of said court, to which the same may be contin- ued, if not previously surrendered and discharged, and so from term to term, until the final decree, sentence or order of the court thereon, and shall abide such final sentence, order or decree of the court, and not depart without leave, then this recognizance shall be void — other- wise shalf remain in full force and virtue. A. B., justice of the peace. 14. Mittimus for not Recognizing, STATE OF MAINE. C— , ss. To the sheriff of the said county of C^— , or his deputy, ., , or any constable of the town of , in said county, and the I 1 " S 'J keeper of the jail in our said county, Greeting. Whereas E. H., of, &c. has been this day brought before me, A. B., one of the justices of the peace within and for said county, by virtue of a warrant issued against him, on the complaint of C. D., who there- in, upon oath, says that [setting forth the complaint,] and whereas it appears to me, upon the testimony of the said C. D. and divers other persons, duly sworn to give testimony touching the premises, that there is probable cause to believe the said E. F. guilty of the charges alleged against him, as set forth in said complaint ; for which offence it has been ordered by me, the said justice, that the said E. F, recog- nize, &c. and the said E. F. hath not so' recognized, but fails and refuses to comply with said order. You, the said sheriffs and consta- bles, are, therefore, hereby required to take the said E. F., and him deliver into the custody of the keeper of our said jail, together with this warrant. And the said keeper is alike required to receive the said E. F. into his custody, in said jail, and him there safely keep until he comply with said order, or be otherwise discharged by due course of law. Givfcn under my hand and seal, at ', aforesaid this day of "in the year of our Lord one thousand eight hundred and A. B., justice of the peace. 15. Recognizance of Witnesses. STATE OF MAINE. C — , ss. Be it remembered, that on the &c, in the year of our Lord one thousand eight hundred and , G. H. and J. K, both of, &c, 286 JUSTICE OF THE PEACE. as principals, and R. S. and M. N. as sureties, all of , in said county, personally appeared before me, A. B., Esquire, one of the justices of the peace for the said county of , and acknowledged themselves to be jointly and severally indebted to the State of Maine in the sum of dollars, to be levied on their goods or chattels, lands or tenements, and in want thereof upon their bodies, to the use of the said State, if default be made in the performance of the condi- tion hereunder written. The condition of the above-written recognizance is such, that if G. H. and J. K. shall personally appear before the justices of the district court next to be holden at , within the said county of C , on the Monday of next ; then and there to testify on behalf of said State upon the complaint of one CD., made upon oath before me the said justice, against one B. F., wherein said C. D. charges said B. F. with feloniously stealing, &c. their testimony hav- ing been deemed by me to be material, then the above written recogni- zance to be void and of none effect ; otherwise to abide in full force, power and virtue. A. B., justice of the peace. 16. Commitment of witnesses for not Recognizing. STATE OF MAINE. — , ss. To the sheriff of the said county of C — , or his deputy, j- , or any constable of the town of , in said county, and the ■• ' "J keeper of the jail in our said county, Greeting. . Whereas E. F. of , is this day brought before me, one of the justices of the peace within and for said county, by virtue of a warrant issued against him, on the complaint of C. D., who therein, upon oath, says that [setting forth the complaint] on which said complaint the said E. F. has been ordered to recognize for his appearance at the district court, next to be holden, &c. ; and whereas it appears to me, that the testimony of G. H. and J. K., &c. is material against the said E. F., and the said G. H. and J. K. have been ordered by me to recognize for their appearance at said term of court to testify on be- half of said State upon said complaint, and have refused so to do : You are, therefore, hereby required to take the said G. H. and J. K., and them deliver into the custody of the keeper of our said jail, together with this warrant. And the said keeper is alike required to receive the said G. H. and J. K. into his custody, in said jail, and them there safely to keep until they comply with said order, or be otherwise discharged by due course of law. Given under my hand and seal, at , aforesaid, this day of in the year of our Lord one thousand eight hundred and . A. B. justice of the peace. FORMS IN CRIMINAL PROCEEDINGS. 287 17. Record of Conviction.. STATE OF MAINE. C— S3. At a court held before me, A. B., Esquire, one of the justices assigned to keep the peace within and for said county, at my office in , in said county, on this day of in the year of our Lord one thousand eight hundred and . State, on complaint of C. D. vs. E. F. The complaint under oath of C. D. shows that, heretofore, to wit ; on, &c. at, &c. said C. D. one silver watch of the value of five dollars of the goods and chattels of him the said C. D., then and there in the possession of said C. D., being found, feloniously did take, steal and carry away, against the peace of the State, and contrary to the stat- ute in such cases made and provided, as by complaint on file, dated, &c. more fully appears ; whereupon, it appearing to my satisfaction that such an offence had been committed, a warrant was duly issued by me the said justice against the said E. F., according to law. On this day aforesaid, the said E. F. is brought before me, and the said complaint is read to him : and being asked whether he is guilty or not guilty of the offence therein charged upon him, saith that he is not guilty, but after hearing divers witnesses duly sworn to testify the whole truth, and fully understanding the defence of said respondent, it is considered by me the said justice that he is guilty of the offence charged against him. It is therefore ordered by me, the said justice, that he the said E. F. forfeit and pay the sum of dollars, to and for the use of this State, and costs of prosecution taxed at, &c. and that he stand commit- ted until this sentence be performed, from which said conviction the said E. F., appeals to the district court, next to be holden at , in and for said county on, &c. and recognizes with sureties to appear at said term of court and there prosecute his appeal and abide the sentence of the court thereon, and in mean time to be of the peace and be of good behaviour,' &c. [as in No 18 below,] [or is committed to abide said sentence until he shall recognize to the State in the sum of with sureties to appear, &c.} Attest, A. B. justice of the peace. 18. Recognizance for prosecuting an appeal. STATE OP MAINE. C — , ss. Be it remembered that on the day of in the year of our Lord one thousand eight hundred and , E. F., of &c. as principal, and G. H. and I. J. as sureties, personally appeared before me, A. B., Esquire, one ot the justices of the peace for the said coun- ty of C — , and acknowledged themselves to be severally indebted to the State of Maine. in the sums following, viz. the said E. F., as prin- cipal, in the sum of dollars, and the said G-. H., and I. J., as 288 JUSTICE OF THE PEACE. sureties in the sum of dollars, to be levied on their goods or chat- tels, lands or tenements, and in want thereof upon their bodies, to the use of the said State, if default be made in the performance of the Condition hereunder written. The condition of the above recognizance is such, that whereas the said E. F., has been this day brought before me, A. B., a justice, &c. on complaint of C. D., of, &c. for [setting forth the complaint,] and has been convicted thereof, and has appealed from said conviction to the district court next to be holden at, &c., and has been ordered to recognize according to law, now if the said E. F., shall personally appear at said term of court, and there prosecute his appeal, and abide the sentence of the court thereon, and in the mean time keep the peace, and be of good behaviour, and in like manner personally appear at any subsequent term of said court to which the same may be con- tinued, if not previously summoned and discharged, and so from term to term, until the final decree, sentence or order of the court thereon, and shall abide such final sentence, order or decree of the court, and not depart without leave, then this recognizance shall be void. Other- wise shall remain in full force and virtue. A. B. justice of the peace. 19. Mittimus for not furnishing Recognizance for an Appeal. STATE OF MAINE. C — , ss. To the sheriff of our county of C — , his deputies, the r , constables of the town of , and the keeper of the jail in ■■ J our said county, Greeting. These are in the name of the State of Maine, to command you, the • said sheriff, deputies, constables, and each of you, forthwith to convey and deliver into the custody of the keeper of our said jail, the body of E. F;, of , in our county of C , brought before me ; one of the justices of the peace within and for said county of C — , on the day of , in the year of our Lord one thousand eight hundred and , on the complaint of C. D., of , who on his oath com- plains, that [setting forth the complaint] and after hearing the testimo- ny in support of said complaint, and the defence of the said E. F., it was considered and ordered by mo the said justice, that the said E. F. forfeit and pay [setting forth the conviction] from which decision the said E. F. claims an appeal to the district court, next to be holden at , within and for the county of C — , on the - — Tuesday of next ; and the said was ordered by me the said justice to recog- nize in the sum of hundred dollars, with sufficient sureties in the like sum, to appear at said court and prosecute his appeal, and abide the sentence of the court thereon, and in the mean time to keep the peace and be of good behaviour, and in like manner personally to appear at any subsequent term of said court to which he same may be continued, if not previously surrendered and discharged, and so from FORMS IN CRIMINAL PROCEEDINGS. 289 term to term, until the final decree, sentence or order of the court thereon, and to abide such final sentence, order or decree of the court, and not depart without leave ; with which said order the said B. *. fails, and refuses to comply. And you, the keeper of said jail, m the name of the State aforesaid, are hereby required to receive the said E. F. into your custody in said jail, and him there safely to keep until he shall so recognize with sureties as aforesaid, or be otherwise discharged in due course of law. Hereof fail not at your peril. Given under my hand and seal this day of in the year of our Lord one thousand eight hundred and . A. B., justice of the peace. 20. Commitment to jail on Conviction, for Non-payment of Fine and Costs. [L. S.] STATE OF MAINE. C — , ss. To the sheriff of the county of C — , his deputies, the constables of the town of and to the keeper of the jail in our said county, Greeting. Whereas, E. F., of, &c. in our county of C — , now stands convict- ed before me, A. B., one the justices of the peace in and for the coun- ty of C — , on the complaint of C. D., of, &c. in said county, who on his oath complains that [setting forth the complaint] against the peace of the State, and contrary to the form of the statute in such cases made and provided, for which offence, he, the said E. F., is sentenced by me, the said justice, to pay a fine to the use of the State aforesaid, of dollars, and costs of prosecution, taxed at dollars and cents, and to stand committed until this sentence be performed ; all which sentence the said E. F., now before me, the said justice, fails and refuses to comply with and perform. These are. therefore, in the name of the State of Maine, to com- mand you, the said sheriff, deputies, and constables, and each of you, forthwith to convey the said E. F. to the common jail in , in the county aforesaid, and to deliver him to the keeper thereof, together with this precept. And you, the keeper of said jail at afore- said, are hereby in like manner commanded in the name of the State aforesaid, to receive the said E. F. into your custody in said jail, and him there safely to keep, until he shall comply with said sentence, or be otherwise discharged by due course of law. Given under my hand and seal, this day of in the year of our Lord one thousand eight hundred and . A. B., justice of the peace. 37 290 JUSTICE OF THE PEACE. 21. Common Form of the Mittimus for Commitment to the House of Correction. STATE OF MAINE. C — , ss. To the sheriff of our county of C — , his deputies, the r -I constables of the town of , and the keeper of the house of *■ '-" correction at in said county, Greeting. We command you, the said sheriff, deputies, constables, and each of you, forthwith to convey and deliver into the custody of the master of said house of correction, the body of E. F. of , in our county of C — , who stands convicted before me, A. B., Esquire, one of the justices of the peace within and for the county of C — , on the com- plaint of C. D., who on his oath complains that [setting forth the com- plaint.] For which offence the said B. F. is sentenced by me, said justice, to be committed to the house of correction, situated in said , there- to be put to hard labor, according to the rules of the same, for the term of , from and after this day of ; and make return on this precept of your doings thereon. And you, the said keeper, in the name of the State aforesaid, are hereby commanded to receive the said E. F. into your custody in our said house of correction, and him therein safely to hold, employ and keep at work until the expiration of said , or he be otherwise discharged in due course of law. Hereof fail not at your peril. Given under my hand aiid seal, this day of , in the year of our Lord one thousand eight hundred ana - . A. B. justice of the peace. 22. Commitment to the House of Correction for failing to com- ply with an Order of Court. STATE OF MAINE. C— j ss. To the sheriff of our county of C — , his deputies, the , constables of the town of , and the keeper of the house of l L ' B '* correction at in our said county, Greeting. These are, in the name of the State of Maine, to command you, the said sheriff, deputies, constables, and each of you, forthwith to convey and deliver into the custody of the keeper of our house of correction at , in said county, the body of E. F., of , in our county of C , brought before me, A. B., one of the justices of the peace within and for said county of C— , on the day of , in the year of our Lord one thousand eight hundred and , on the com- plaint of , of , who on his oath complains, that [setting forth the complaint] against the peace of the State, and contrary to the form of the statute in such cases made and provided : and alter due examination, the said defendant was ordered by me, the said justice, FORMS IN CRIMINAL PROCEEDINGS. 291 &c, and in default of so doing that the said defendant stand committed to the house of correction at , aforesaid, until he comply with said order, or be otherwise discharged according to law. With which said order the said defendant fails and refuses to comply. And you, the keeper of the house of correction at , in said county, in the name of the State aforesaid, are hereby commanded to receive the said defendant into your custody in our said house of cor- rection, and him there safely to keep. until he shall comply with said order, or be otherwise discharged in due course of law. Hereof fail not at your peril. Given under my hand and seal, at aforesaid, this day ot in the year of our Lord one thousand eight hundred and . A. B., justice of the peace. • 23. Commitment for not Finding Sureties for keeping the Peace. STATE OF MAINE. C — , ss. To the sheriff of our county of C — , his deputies, the r 1 constables of the town of , and the keeper of the house of *■ ' '■' correction at , in our said county, Greeting. Whereas E. F. of , in the county of C — , by virtue of a war- rant issued by me, A. B., one of the justices of the peace, within and for the county of C — , on the complaint of , who on his oath com- plains that [setting forth the complaint] upon which complaint the said defendant has this day been brought before me, the said justice ; and after a hearing in the premises, I have ordered him, the said B . F., to find sufficient surety to be bound with him in a recognizance to keep the peace, and be of good behaviour towards all persons within said State, and especially towards the said for the term of from and after this day of . and also to pay a fine of dollars for the use of the State, and costs of prosecution, taxed at dollars and cents ; And whereas he, the said hath failed and refused, and doth now, before me said justice, fail and re- fuse to recognize himself as aforesaid, and to find such sureties, to Wit, the said as principal, in the sum of dollars, with sufficient sureties in another sum of dollars, and to pay said fine and costs, as now required by me, the said justice. These are, therefore, in the name of the State of Maine to command you, the said sheriff, deputies and constables and each of you, forthwith to convey the said E F. to the house of correction at , in our county aforesaid, and to deliver him to the keeper thereof : And make return on this precept of your doings therein. And you, the said keeper, in the name of the State aforesaid, are hereby commanded to receive the said E. F. into your custody in our house of correction, and him there safely to keep according to law, until he shall find such 292 JUSTICE OF THE PEACE. sureties as aforesaid, and pay said fine and costs, or be otherwis dis- charged in due course of law. Given under my hand and seal at , this day of in the year, &c. A. B. justice of the peace. 24. Commitment by a Justice, on view, for insulting him in the execution of his office. STATE OF MAINE. C — , ss. To the keeper of the jail in , &c. Il si Greeting. 1 ' * J Receive into your custody the body of E. F. herewith sent you by me, A. B., a justice, &c, and charged by me, the said justice, upon view of me, the said A. B., Esquire, one of the justices, &c. for indecent behavior, by insulting me, and obstructing me in the due and lawful execution of my office as a magistrate as aforesaid, against the peace of said State. Him, the said E. F., therefore safely keep in your custody for want of sureties, or until he shall be discharged by due course of law ; and for so doing this shall be your sufficient war- rant. Given under my hand and seal this day of in the year of our Lord one thousand, &c. A. B. justice of the peace. 25. Complaint for an offence committed within another State, and for which the Party is liable to be delivered to the Executive of that State. STATE OF MAINE. C — , ss. To A. B., Esquire, one of the justices of the peace in and for the county of C — ; C. D. of, &c. in said county, on oath, com- plains that heretofore, to wit, on, &c, at the city of New York within the State of New York, &c. [setting forth the offence in technical language] and the said CD. hath probable cause to suspect, and doth suspect that E. F., of, &c. did, &c. ; and the said C. D. further shows that the said F. F. is now found within this State, to wit, at , in said county of C — , and is liable, by the constitution and laws of the United States, to be delivered over upon the demand of the exec- utive of the said State of New York. Wherefore the said C. D. prays that he the said E. F. may be apprehended, and held to answer to this complaint, and further dealt with, relative to the same, according to law. C. D. C — , ss. Received and sworn to, on the day of ■ , A. D. 185 — . Before me, A. B., justice of the peace. 26. Warrant on the above Complaint. STATE OF MAINE. C — , ss. To the sheriff of said county, or his deputy, or to either r _ t of the constables of the town of , in said county, l> S -J Greeting. FORMS IN CRIMINAL PROCEEDINGS. 293 You are hereby required, in the name of the State of Maine, forth- with to apprehend E. F, (if ne ma y be found in y our precinct) and him bring before me, A. B., Esquire, one of the justices of the peace within and for said county, or some other justice of the peace in and for said county, to answer to the complaint of C. D. of, &c, who on oath complains, &c, and to be further dealt with according to law. You are also required to summon the complainant, and G. H. and J. S., as witnesses, to appear and give evidence touching the matter con- tained in the above complaint, when and where you have the said E. F. Given, &c. 27. Recognizance for future appearance of such person. [The penal part of the recognizance is the same as in other recogni- zances. The condition as follows :] The condition of this recognizance is such that, whereas the said E. F. is this day brought before me, A. B., a justice, &c. by virtue of a warrant duly issued on the complaint of C. D. of, &c, who on oath complains that, &c. [setting forth the complaint] and it appears to me that there is reasonable cause to believe that said complaint is true, and the said E. F. has been ordered to recognize for his appearance before me on the, &c. at my office in . Now if the said E. F. shall personally appear at said office on the said day of ■ to answer said complaint, and abide the order of court thereon, then this recognizance shall be void ; otherwise shall remain in full force and virtue. Attest, A. B., justice of the peace. 28. Mittimus for not so Recognizing. STATE OF MAINE. C — , ss. To the sheriff of the said county of C — , or his deputy. r L g 1 or any constable of the town of -, in said county, and the L ' -J keeper of the jail in our said county, Greeting Whereas E. F, of, &c. has been this day brought before me, A°B , one of the justices of the peace within and for said county, by virtue of a warrant issued against him, on the complaint of C. D., who there- in, upon oath, says that [setting forth the complaint,] and it appears to me, that there is reasonable cause to believe that said complaint is true, and the said E. F. has been ordered to recognize with sureties for his appearance before me, at my office in , on, &c., and has not so recognized, but fails and refuses to comply with said order. You, the said sheriffs and constables, are, therefore, hereby required in the name of the State of Maine, to take the said E. F., and him carry to the said jail, and deliver to the keeper thereof, together with this warrant. And the said keeper is alike required to receive the said E. F. into his custody, in said jail.and him safely keep till the 294 JUSTICE OF THE PEACE. said day, unless he shall before then recognize as aforesaid, or until he be otherwise discharged by due course of law. Given under my hand and seal at , this day of , in the year of our Lord one thousand eight hundred and . A. B., justice of the peace. 29. Recognizance of a Party remanded to Jail after a Petition for a Writ of Habeas Corpus. [The penal part of the recognizance the same as in other recogni- zances. The condition as follows :] The condition of this recognizance is such, that whereas [setting forth the complaint and the commitment after some one of the forego- ing forms, according to the facts,] and whereas, afterwards, to wit, on the complaint of , a writ of habeas corpus was duly issued by the Hon. E. S. one of the justices of the supreme judicial court, and such further proceedings had thereon, that the said E. F. was afterwards, to wit, &c. remanded to prison, with an order of said justice that if the said E. F. should recognize in the sum of dol- lars for his appearance at the district court next to be holden, &c. then he should be admitted to bail. Now if the said E. F. shall personally appear at the said term of court then and there to answer to said charge, and shall abide the order of said court, &c. [as in No. 13.] then this recognizance shall be void ; otherwise shall remain in full force and virtue. A. B. justice of the peace. 80. Recognizance to be taken before two Justices of the Peace. [The penal part of the recognizance as before.] The condition of this recognizance is such that, whereas the said E. F. [reciting the fact, cause, and mode of the commitment in the manner expressed in the foregoing forms] and the said E. F. has made application to us, A. B. and C. D., each a justice of the peace and of the quorum in and for said county of C — , to be admitted to bail, and we have inquired into the case. Now, if the said E. F. shall, &c. [making the condition to conform to the provisions of the statute, ac- cording the nature of the offence and the cause of commitment,] then this recognizance shall be void ; otherwise, &c. , ) Justices of the peace , \ and quorum.. FORMS IN CRIMNAL PROCEEDINGS. 295 II. FORMS AND PRECEDENTS FOR COMPLAINTS OF OFFENCES WITHIN THE FINAL JURISDICTION OF A JUSTICE OF THE PEACE. Following out our original division of this subject, we shall next take into consideration the forms for complaints of offences within the final jurisdiction of a justice of the peace. I. ASSAULT AND BATTERY. An assault is an attempt or offer, with force and violence, to do bodily injury to another, without authority or justification of law ; as by striking at another with a stick or other weapon, or without any weapon, though the party striking misses his aim. So, drawing a sword or bayonet, or even holding up a fi§t in a menacing manner ; throwing a bottle or glass with intent to wound or strike ; presenting a gun at a person who is within the distance to which the gun will carry ; pointing a pitchfork at a person who is within reach, or any other similar act accompanied with such circumstances as denote at - the time an intention, coupled with a present ability, of using actual violence against the person of another, will amount to an assault. But no words whatsoever, be they ever so provoking, can amount to an assault. 1 A battery is more than an attempt. A bodily injury, however slight, being maliciously and forcibly done, is a battery and an assault and battery; as, by striking another; spitting in another's face; touching another or taking hold of his garment in a rude and angry or menacing manner ; striking at another and hitting his garment or the cane in his hand; exposing another to the inclemency of the weather. So an assault and battery may be made indirectly ; as by inciting and thus causing a dog to bite another ; riding over another ; wilfully driving a vehicle against that of another, and thereby causing bodily injury to him ; throwing a lighted squib into a place of public resort, where, being tossed from hand to hand, it finally hits and hurts another ; wilfully pushing a drunken man against another ; wilfully or unnecessarily, and with wanton negligence or recklessness of the safety of others, striking a horse, and thereby causing him to run against others. 2 •Russell on Crimes, 604. =2 Met. 24. ■ 296 JUSTICE OF THE PEACE. An assault and battery is really but one crime. The latter includes the former. A person may be convicted of the former, and acquitted of the latter, but not vice versa. They must therefore be charged as one offence. 1 The intention with which an act is done is material in the inquiry •whether it will amount to an assault. Thus, to lay one's hand gently on another whom an officer has a Avarrant to arrest, and to tell the officer that this* is the man he wants, is said to be no battery. And if the injury committed were accidental and undesigned, it will not amount to a battery. 2 Forcible injury to the person may be justified when done by au- thority of law ; in self defence against illegal violence ; in defence of one's property or right against an illegal invasion of the same ; or in due defence of a third person, or of his property or right, at his request, or with his consent. But, in all these cases, the force used must be reasonable, proportionate to the occasion, under the circum- stances authorized by law, and not continued after the cause for it has ceased. The authority to protect ones goods by force extends against offi- cers claiming them as the property of another, as well as against persons not officers. Thus, if an officer would take goods belonging to A., and in A.'s possession, upon a writ against B., A. may main- tain his possession by force, in the same manner as he might against any trespasser who is not an officer. 3 It should be observed, with respect to an assault by a man on a party endeavoring to dispossess him of his land, that where the injury is a mere breach of a close, in contemplation of law, the defendant cannot justify a battery without a request to depart ; but it is other- wise where any actual violence is committed, as it is lawful in such case to oppose force to force. 4 As the kind and degree of force proper to remove *a trespasser, must depend on the conduct of the trespasser in each particular case, the question whether it was suitable and moderate, in any particular case, is entirely a question of fact. 5 »20 Pick. 361. 'Russell on Crimes, 609— Met. 25. =>1 Russell on Crimes' 607. 5 Met. 25. 3 8 Pick. 132. FORMS IN CRIMINAL PROCEEDINGS. 297 Assaults are either 1st. aggravated; or 2d. not aggravated/ An aggravated assault is an offence beyond the final jurisdiction of a . justice of the peace. An assault may or may not be aggravated, in the discretion of the magistrate, judging from the circumstances attend- ing its commission. The following assaults are clearly aggravated assaults : A deliberate, malicious assault and battery, or either, with intent to commit, or compel another to commit a felony ; or with intent to maim, or disfigure, or mutilate another ; or to destroy or disable any limb, member, or bodily organ of another ; a deliberate and malicious assault and battery, or either, with a weapon obviously and imminently dangerous to life ; where, in either of the cases afore- said, the person assaulted shall be thereby maimed, mutilated, or disfigured in his person, or shall suffer the loss of, or be disabled in, or lose wholly or partially the use of limb, member, or bodily organ ; and also an assault, or assault and battery on any public officer, civil, judicial, or military, with intent to resist, prevent, hinder, or obstruct him in the discharge or execution of his duty as such. This catalogue rather shows the species of offences which are aggravated than enumerates them all. The peculiar circumstances of aggravation attending each case are to he weighed by the magis- trate in forming his decision of the disposition to be made of the pris- oner. 1. Common Assault without a Battery. A. B., of C — , in the county of C — , yeoman, upon his oath com- plains, that C. D. of C — , in the county of C — , laborer, on the third day of May now last past, with force and arms, at C — , aforesaid, in the county aforesaid, in and upon him the said A. B., in the peace of the said State then and there being, with a certain offensive weapon, which he the said C. D. in his right hand then and there had and held, called a cane, did make an assault ; and other wrongs to the said A. B. then and there did and committed, to the great injury of him the said A. B., and against the peace and dignity of the State aforesaid, and contrary to the statute, &c. [Conclusion as in the general form.] 2. Common Assault and Battery. A. B. on oath complains that C. D. of C — , in the county of C — , laborer, on the third day of May in the year, &c. with force and arms, at C — , aforesaid, in the county aforesaid, in and upon one J. N. in the peace of the State then and there being, did make an assault, and 38 298 JUSTICE OF THE PEACE. him the said J. N. then and there did beat, wound and ill treat, and other wrongs to the said J. N. then and there did, to the great dam- age of the said J. N. and against the peace and dignity of the State aforesaid, &c. [If the assault were committed under circumstances of aggravation, state them.J 3. An Assault by casting a person on a brick floor and kicking him. C. D. on, &c. with force and arms, at &c. aforesaid, in and upon the said A. B. in the peace of said State then and there being, did make an assault, and him the said A. B. then and there did beat, bruise, wound, and ill-treat, so that his life was greatly despaired of; and the said C. D., with both his hands, then and there violently cast, flung, and threw the said A. B . to, upon and against a certain brick floor there, and him the said A. B., in and upon his head, neck, breast, back, sides, and other parts of his body, with both the feet of him the said CD., then and there violently and grievously did kick, strike and beat, giving the said A. B., then and there, as well by such flinging, casting and throwing of him the said A. B., as also by such kicking, striking and beating of the said A. B., as aforesaid, in and upon the head, neck, breast, back, sides, and other parts of the body of him the said A. B., divers bruises, hurts and wounds, and other wrongs, &c. 4. An Assault and beating out an Eye. That C D. of &c. on, &c. with force and arms, at, &c. in and upon A. B. in the peace of the State then and there being, violently did make an assault, and him the said A. B. then and there did beat, wound, and ill-treat, so that his life was greatly despaired of ; And that he, the said C. D., with his right hand the said A. B. in and upon the left eye of him the said A. B. then and there unlawfully, violently and maliciously did strike, by means whereof the said A. B. then and there the use, sight, and benefit of his said left eye entirely lost, and was deprived of, and also by means of the premises, he the said A. B. became sick, weak, languid and distempered, ^i remained so sick, weak, languid and distempered, for a longtime, to wit, hitherto ; and other wrongs to the said A. B., then and there violently and maliciously did, to the great damage of the said A. B., against the pefce, &c. 5. For Assault and encouraging- a Dog to bite. Th£t C. D., of, &c. on, &c. .with force and arms, at , afore- said, did unlawfully incite, provoke and encourage a certain dog, of and belonging to the said C. D., to bite bim the said A. B., by means FORMS IN CRIMINAL PROCEEDINGS. 299 whereof the same dog did then and there grieviously bite the said A. B in and upon the right leg of him the said A. B., and the said leg of him, the said A. B., was thereby then and there grievously hurt and wounded, to the great damage of the said A. B., and against the peace, &c. 6. For riding over a Person with a Horse. That C. D., of, &c. in, &c. with force and arms, at, &c. in and upon one A. B., in the peace of the State then and there being, did make an assault, and then and there unlawfully and maliciously, and with great force and violence, rode and drove a certain horse against, upon, and over the said A. B., and thereby then and there greatly bruised, wounded, and ill-treated him, insomuch that his life was then and there greatly despaired of, and other wrongs, &c. 7. For Assault, and presenting a loaded Gun and threatening to fire it. That C. D., of, &c. on, &c. with force and arms, to wit, guns, swords, staves and fists, at, &c. in and upon one A. B., in the peace of the State then and there being, did make an assault, and him the said A. B., then and there did beat, wound, and ill-treat, so that his life was thereby then and there greatly despaired, of, and then and there levelled and pointed at the said A. B., a certain gun, which he said C. D. then and there held in his hand loaded, to wit ; with gun- powder and lead balls, and then and there with the said gun, so levelled and pointed at the said A. B. to shoot the said A. B. and then and there, by means of the premises aforesaid, greatly terrified and affrighted the said A. B., and then and there did, &c. 8. For driving a cart against a chaise and throwing the Dri- ver from the chaise, and for Assault and Battery. That C. D. of, &c. on, &c. with force and arms, at &c, in the pub- lic highway there, ugawfully, wilfully, and violently, did drive and force a certain horselmd cart, under the care and guidance of him, the said C. D. to, at, and against a certain chaise drawn by two horses, under the care of one A. B., by means whereof the said A. B., was then and there thrown from and off the said chaise, to and against the ground, and was thereby put in great peril and danger of his life, and other wrongs, &c. to the damage, Sic. and against the peace, &c. 9. For Assault and false imprisonment. A. B. of , in the county of C— , yeoman, upon his oath com- plains, that C. D. of. &c. on &c. with force and arms, at, &c, 300 JUSTICE OF THE PEACE. in and upon the body of him, the said A. B. , in the peace of the State then and there being, an assault did make, and him the said A. B. did then and there beat, wound, and abuse ; and him, the said A. B. then and there, against his will, and without his consent, unlawfully, without any warrant, or justifiable cause whatever, did in prison detain and hold in duress for the space of three days then next follow- ing ; and other wrongs to the said A. B. then and there did and com- mitted, to the great damage of him the said A. B. and against the peace of the State, &c. 10. For an Assault with a Cane. A. B. of, &c. upon his oath complains that C. D. of, &c. on, &c. with force and arms, at, &c. in and upon the body of the said A. B. in the peace of said State then and there being, did make an assault, and him the said A. B. with a large cane, which the said C. D. then and there, in his right hand had and held, did strike divers, grievous and dangerous blows upon the head, back, shoulders, and other parts of the body of him the said A. B., whereby the said A. B. was cruelly and dangerously beaten, bruised, and wounded, and his life greatly endangered ; and other wrongs to the said A. B. then and there did and committed, to the great damage of him, the said A. B., against the peace of the State aforesaid, &c. 11. For an Assault upon a Constable in execution of his office. A..B. of, &c. in, &c. upon his oath complains, that C. D. of, &c. in, &c. on, &c, with force and jams, at, &c. in, &c. in and upon the body of him the said A. B., he being then and there one of the con- stables of the said town of C — ,- legally authorized and duly qualified to discharge and perform the duties of said office, and being then and there in the due and lawful execution of the same, and also being then and there in the peace of said State, did make an assault, -and him, the said A. B., did then and there , beat, wound, and ill-treat, and in the due and lawful execution of Ms said office, did then and there un- lawfully obstruct, hinder and oppose ; and other wrongs to the said A. B. then and there did, to the great damage of him, the said A. B., and against the peace and dignity of the State aforesaid, &c. 12. For an assault upon a Woman quick with child. A. F. the wife of E. F. of, &c. upon her oath complains that C. D. of, &c. in &c. yeoman, on, &c. with force and arms, at, &c. in, &c. in and upon her the said A. F. in the peace of the said State then and there being, and also being then and there pregnant with a quick child, did make an assault and her the said A. F. did then and there, beat, wound, and abuse, so that her life thereby was greatly FORMS IN CRIMINAL PROCEEDINGS. 301 entered- by reason whereof she, the said A. f-^™ 1 , 9 ' * ^ onS&c 7 in the same month of, at to. id bmg forth he -a „i,;i,i riop^l ATirl other wrongs to the said A. Jb . then ana tnere ^X^eat^hitfesaid A. F., and against the peace and dignity of the State aforesaid, &e. 13. Assault with Intent to Murder. That C D. of, &c. on, &c. with force and arms at &c. in Ac. in and upon one A. B., in the peace of the said State then and there S P did make an assault, and him the said A. B. then and there did beat, wound and ill treat, and one brass candlestick at towards and against the said A. B. then and there dd cast and throw wi£ intention to strike, bruise, wound, and hurt the said AyV lth tn ^ said candlestick; and the said C. D. then and there, with force and arms, with a certain chair, did strike the said A. B., divers terrible grievous and dangerous blows upon the head, arms, sides, back, and other parts of the body of him the said A- B. and thereby grievously cut, bruised, and wounded the said A. B. in and upon his head arms, sides, back, and other parts of his body, insomuch that his lite was greatly despaired of, with intent, him the said A. B. then and there feloniously, wilfully, and of his malice aforethought, to kill and mur- der, and other wrongs, &c. 14. For an assault, and casting in a Pond of Water with in- tent to suffocate. That' C. D. of, &c. on, &c. with force and arms at, &c. in and upon one A. B. in the peace of the said State then and there being, did make an assault, and him the said A. B. then and there did beat, bruise, wound and ill treat, so that his life was greatly despaired of, and that the said C. D. with a certain large stick, then and there gave and struck the said A. B. many violent and grievous blows and strokes in and upon his head, neck, arms, breast, and other parts of his body, and did with both the hands of him, the said C. D., then and there unlawfully, wickedly, maliciously, and violently, cast, push, fling, and throw the said A. B. into a certain pond there situated and being, wherein there was a large quantity of filthy water and mud, and did then and there keep, press down, and confine the said A. B., in and under the said water and mud for the space of five minutes then next following, with intention him, the said A. B., then and there fel- oniously, wilfully and of his malice aforethought, to suffocate and drown in the said water and mud, and him the said A. B., by means thereof to murder ; by means of which said casting, pushing, flinging, and throwing of him the said A. B. into the said pond, as aforesaid, and keeping, pressing down, and confining the said A. B. in and under the said water and mud as aforesaid, he, the said A. B., was then and 302 JUSTICE OF THE PEACE. there grievously hurt and bruised in his body, and in great danger of being suffocated in the said water and mud there, and other wrongs, &c. 15. For an assault with intent to maim. A. B. of, &c. on, &c. yeoman, upon his oath complains that C. D. of, &c. in, &c. on, &c. with force and arms, at, &c. in, &c. in and upon the body of him the said A. B., in the peace of the said State then and there being, and being then and there armed with a certain dangerous weapon called a knife, which he the said C. D. in his right hand then and there held, did make an assault, with an intention him the said A. B., with set purpose and aforethought malice, unlawfully to maim and disfigure, by unlawfully cutting off the right ear of him the said A. B. ; and other wrongs to the said A. B. then and there did, to the great injury of him, the said A. B., against the peace of the said State, and contrary to the form of the statute in such case made and provided, &c. 16. For an assault for not providing sufficient food for servents of tender age. That E. R., the wife of S. R. unlawfully and maliciously contriv- ing and intending to hurt and injure one E. G., being a servant to her the said E. R. and an infant under ten years, to wit, of the age of nine years, and under the control of the said E. R. heretofore, to wit, on, &c. and on divers other days and times, as well before as after that day, with force and arms, at, &c. unlawfully, wilfully and maliciously, did omit, neglect, and refuse to provide for, and give and administer to the said E. G., sufficient meat and drink necessary for the suste- nance, support, and nourishment of the body of her, the said E. G., and did then and there expose the said E. G. to the cold and incle- mency of the weather, as well within as without the house wherein she the said E. R. then dwelt, and kept the said E. G. without sufficient and proper warmth necessary for the health of her, the said E. G., to wit, at, &c. contrary to the duty of her, the said E. R., as the mis- tress of the said E. G. ; by reason of all which premises, she the said E. G. afterwards to wit, in, &c. became, and was, and for a long time, to wit, the space of six months then next following, continued to be very sick, and ill, and greatly consumed, and emaciated in her body, to wit, at, &c. aforesaid, to the great damage of the said E. G. and in contempt, &c. to the evil example, &c. and against the peace, &c. 17. Assault on Highway, and defacing garments and clothes. That C. D. of, &c. heretofore to wit : on, &c. at, &c. in a public Street and highway there called — , in and upon one A. B , yeoman, in the peace of the said State then and there being, and in the said FORMS IN CRIMINAL PROCEEDINGS. 303 public street and highway, then and there being, wilfully, maliciously and feloniously did make an assault with an intent wilfully and malic- iously to tear, spoil, cut and deface the garments and clothes of him the said A. B. and with force and arms, did, in the said public street and highway, then and there, wilfully, maliciously, and feloniously tear, spoil, cut, and deface, one printed linen coat, of the value/, of five 'dollars, of the goods and chattels of the said A. B., being paAof the garments and clothes of him the said A. B. on his person, then and there in wear, to the great damage, &c. and against the peace, &c. 18. Assault with intent to commit a rape. A. B. of, &c. in, &c, single woman and spinster, upon her oath complains, that C. D. of, &c. in, &c. yeoman, heretofore, to wit, on, &c. with force and arms, at, &c. in, &c. in and upon her, the said A. B., in the peace ff said State then and there being, did make an assault, with the intent her, the said A. B., then and there, feloniously to ravish and carnally know, by force, and against her will ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 19. Assault, with intent carnally to know and abuse a female child under the age of ten years. _ A. B. of, &c. in, &c. upon his oath complains, that C. D. of &c in, cfcc. laborer, heretofore, to wit, on, &c. with force and arms, at &c. in, &e. m and upon one E. E, spinster, a female child under the age of ten years, to wit, of the age of eight years, in the peace of the said «MV% ?T #' /i d make an assault > ™ th k^ ^r the said E. F. wickedly and feloniously, to carnally know and abuse against the peace of said State, and contrary, &c. ' 20. Assault by two persons upon a woman, with intent that one oj them should ravish her. andWh^'^'f'' ■ Bp T ter ,! Up ° n her oath com P lail * that C. D. an Urnf at & f'inlo 11 ' & % Wo ?> re > *» ^ on, &c. with force »uu dims, at, iXc. ]n , &c. m and unon her thp smVI V v ^ n. of the said State then and there b P ir,7 ^ !! i ' the peace intent that he the said f ' T> j, u a* , ^ ake an assault > with and carnal^ know h er the jfM there feloniously 'ravish against the Jeace, t^ZLfy l\^X ^ ^ **> 21. Assault with intent to rob. 304 JUSTICE OF THE PEACE. peace of the said State then and there being, with a certain dangerous weapon called a pistol, then and there loaded with gunpowder and leaden bullets, with which he, the said C. D. was then and there armed, and which he, the said C. D. in his right hand then and there had and held, and also with other actual violence, did make an assault with intent the monies, goods, and chattels of him, the said E. F. from the person, and against the will of him, the said E. P. feloniously and by force and violence, . and by assault and putting hin in bodily fear and danger of his life, to steal, take, and rob, against the peace, &c. and contrary to the form, &c. 22. Assault with intent to steal. E. F. of, &c. in, &c. upon his oath complains, that C. D. of, &c. laborer, heretofore, to wit ; on, &c. with force and arms, at, &c. in and upon the body of him, the said E. F. in the peace of the said State then and there being, with a dangerous weapon, to wit, with a pistol, did make an assault, with intent, the goods, chattels, and monies of him the said E. F. from the person of him, the said E. F. openly and violently [or privily and fraudulently, as the case may be] to steal, take, and carry away, against the peace, &c. and contrary to the form, &c. II. AFFBAYS, BREACHES OF THE PEACE, &C. An affray is the fighting of two or more persons, to the terror of the people, and may be sudden and unpremeditated, in which the parties concerned have no common purpose. It is essential to constitute affrays, or breaches of the peace, that the acts done should be injurious to the public peace. 1 In this they are to be distinguished from assaults, false imprisonment, and the like, which only affect a private individual. So, too, these offences differ from riots, because riots presuppose a mutual design on the part of all the rioters, and a tumultuous and violent manifestation or exe- cution of their purpose. 2 But a breach of the peace may be without concert on the part of the offenders; and without any tumultuous violence. It is said that no quarrelsome or threatening words whatsoever can amount to an affray ; and that no one can justify laying his hands on those who shall barely quarrel with angry words without coming to blows ; but it seems that a constable may, at the request of the party »2 Ch. Cr. L. 485. s Ib. FORMS IN CRIMINAL PROCEEDINGS. 305 threatened, carry the person who threatens to beat him before a justice in order to find sureties. And granting that no bare words, in the judgment the law, carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray Where there is no actual violence ; as where persons arm themselves with dangerous and unusual weapons, in such a manner as will natu- rally cause a terror to the people. 1 An affray may be aggravated by the circumstances under which it takes place, either* first, in respect of its dangerous tendency ; second- ly, in respect to the persons against whom it is committed ; or, thirdly, in respect to the place in which it happens. 2 Justices of the peace may proceed to suppress affrays upon view, The extent of punishment of this offence is very much within the dis- cretion of the magistrate ; and when there are aggravating circumstan- ces, the offending party should be bound over to the higher court. 1. Complaint for a common affray. A. B. of, &c. on oath complains that C. D. of, &c. anc( % F. of &c. heretofore, to wit : on, &c. with force and arms,, at ' ' * in' said county, being unlawfully assembled together and arrayed in awar- like manner, then and there, in a certain public Street aud highway, there situate, unlawfully, and to the great terror and disturbance of divers good citizens of this State, then and there being, did make an affray, to the evil example of all others in the like case offending, and against the peace and dignity of said State. 2. Com/plaint for disturbance of the Peace. That C. D. of in the county of C — , on the — - day of in the year one thousand eight hundred and fifty at , afore- said, with force and arms, was a disturber and breaker of the peace, and then and there contriving and intending to disturb the peace of said State, did, in one of the public streets of said town, utter loud exclamations and outcries, and did then and thereby draw together a number of persons, to the great disturbance of divers citizens, and against the peace, &c. l l Ruas. 271. 21b 270 39 306 JUSTICE OF THE PEACE. III. DRUNKENNESS. There are two offences which properly come under this head ; first, some specific act of drunkenness ; and second, the being a common drunkard, which is the result of a series of acts. The punishment awarded to each of these is different from that of the other, as well as the character of the proof requisite to a conviction. This distinction should be borne in mind whenever receiving or hearing a complaint for either of these offences. 1. Complaint against a common Drunkard. A. B. of C — , in said county, yeoman, on oath, complains that C. D. of C — , in said county, on divers days and times at said , and at other places in said county, within six months now last past, was intoxicated with spirituous liquor and drunk, and so the said complain- ant says that the said C. D. at said , on the day of , in the year eighteen hundred and fifty , is a common drunkard, against the peace, &c. and contrary to the form of the statute in such cases, &c. • 2. Complaint for Drunkenness. \ ■4,-. ;: ' -, on the day of ;'* i . , in the year of our Lord one thousand eight hundred and fifty — -,.on oath complains, that E. F. of , in said county, yeoman, on the day of , at said , was guilty of drunkenness, and was drunk by the voluntary use of intoxicating liquor, against the peace of the State, and contrary to the form of the statute in such case made and provided. IV. EMBEZZLEMENT. Ifanyoflicer, agent, clerk, or servant of any incorporated company, or if any clerk, agent, or servant of any person, or copartnership, ex- cept apprentices and other persons under the age of sixteen years, shall embezzle, and fraudulently convert to his own use, or shall take and secrete, with intent to convert to his own use, without consent of his employer or master, any money or property of another, which shall have come to his possession, or shall be under his care by virtue of such employment, he shall be deemed, by so doing, to have committed larceny. 1 1 R. S. ch. 156, sec. 6. FORMS IN CRIMINAL PROCEEDINGS. 307 If any carrier or other person, to whom any money, goods, or other property, which may be the subject of larceny, shall have been deliv- ered, to be carried for hire ; or if any other person, who shall be en- trusted with such property, shall embezzle, or fraudulently convert to his own use, any such money, goods, or other property, either in the mass, as the same were delivered, or otherwise, and before the same shall be delivered at the place, or to the person where and to whom they were to be delivered, he shall be deemed, by so doing, to have committed larceny. 1 These statutes seem to provide against embezzlements by the follow- ing persons: 1st. Cashiers, or other officers, agents or servants of any incorporated bank. 2d. Officers, agents, clerks or servants of any incorporated company. 3d. Clerks, agents, or servants of any pri- vate person or copartnership. 4th. Carriers for hire, and other per- sons intrusted with property, the subject of larceny. It is often difficult to distinguish, between a larceny and an embez- zlement. A taking is requisite to larceny. A common carrier, for instance, may commit a larceny of the thing he has agreed to carry, pro- vided he does a distinct act of taking, thereby terminating, or after terminating, the bailment, as it is usually expressed. So too, on the other hand, it is often exceedingly difficult to deter- mine whether a given statement of facts amounts to an embezzlement, or be only a breach of trust ; and to mark out with entire precision the line of discrimination between acts punishable as crimes, under the statutes, and those that may not be embraced by them, while they may yet present strong cases of breach of good faith and violation of the confidence reposed in the party guilty of the breach of trust. For it is by means of these statutes that acts, formerly denominated mere breaches of trust, subjecting the party to a civil action only, have now come to be cognizable by the criminal courts. All statutes are to reeeive a reasonable construction ; and the lan- guage used in them, where it is not professedly technical, is to be taken in its ordinary acceptation in the community; so that all may understand its meaning and intent. But it has ever been held, in this State, as a fundamental principle of construction, that penal stat- utes, affecting the life, liberty, good name and property of the citi- >R. S. ch. 156, sec. 7. 308 JUSTICE OF THE PEACE. zen, shall be construed strictly, according to the clear design of the makers, to be especially ascertained from the terms made use of; and that where such terms are clear and unambiguous, they are not to be departed from nor enlarged by any intendment derived from any other source ; but that where the language used is ambiguous or general, and is fairly susceptible of more than one construction, then recourse is to be had to the design of the makers, to the abuses to be remedied, and to preceding statutes, if any, in respect to the same offences ; still, that they are not to be so construed as to multiply offences, nor to enlarge, by mere implication, the classes of offenders. 1 By " the money or property of another," in the sixth section above cited, the embezzlement of which by any clerk, agent, or servant, without the consent of his employer, is made larceny, is meant the money or property of any person except such agent, clerk, or servant, who embezzles it. 2 An auctioneer who receives money on the sale of his employer's goods, and does not pay it over, but misapplies it, is not an agent or servant within the intent of the statute ; whether he, receives the goods for sale in the usual mode, or receives them on an agreement to pay a certain sum therefor within a specified time after the sale. The money received by an auctioneer for goods sold by him, in both these cases, is his own, and not " the money of another." 3 The statue is not confined to the clerks and servants of all persons in trade, but extends to the clerks and servants of all persons whatever. A female servant is within the statute. So a person is sufficiently a servant, though he be only occasionally employed when he has noth- ing else to do. 1. For Embezzlement of Goods delivered to a Servant to keep for his master. That C. D. of, &c. heretofore to wit, on, &c. then being a servant of and to one A. B. and not an apprentice, or a person under the age of sixteen years, he, the said A. B. did then and there, upon confideuce and trust, deliver unto the said C. D., his said servant, one gold watch, of the value of one hundred dollars, of the goods and chattels of him the said A. B., safely to keep the same to the use of him the said A. B. ; and that he the said C. D. after the said delivery, and whilst he 18 Met. 254, 255. 'lb. ! 2 Met. 343. ' FORMS IN CRIMINAL PROCEEDINGS. 309 was such servant as aforesaid, to wit, on the said, &c. with force and arms at, &c. aforesaid, feloniously did embezzle the same gold wateh and convert the same to his own use, with the intent to steal the same, and defraud the said A.B., his said master, thereof, contrary to the trust and confidence in him the said C. D. put by the said A. B., his said master, against the peace and dignity of said State, and contrary to the form of the statute in such case made and provided. 2. For a single Felony, against a Clerk of a Trader for Em- bezzlement. That C. D. of, &c. heretofore, to wit, on &c. aforesaid, was clerk to A. B. and E. F. of , traders, and employed and entrusted by the said A. B. and E. F. to receive money for them ; and being such clerk, so employed and entrusted as aforesaid, then and there, by vir- tue of such employment and entrustment as aforesaid, he, the said C. D. did receive and take into his possession a certain sum of money, to wit, the sum of fifty dollars of the monies of said A. B. and E. P. for and on account of the said A. B. and E. E. his said masters and employers, fand having so received and taken into his possession the said sum of ?, money, for and on the account of his said masters and employers, he the said C. D. then and there, with force and arms, fraudulently and felo- niously did embezzle and secrete part of the said sum of money, to wit, the sum of twenty dollars and seventy-five cents, and fraudulently con- vert the same to his own use, against the peace and dignity of said State, and contrary to the form of the statute in such case made and provi- * ded. Wherefore, &c. 3. Embezzling Bank Notes by a Servant. That C. D. of, &c. heretofore, to wit, on, &c. at, &c. aforesaid, was clerk and servant to M. Gr., widow, and employed and entrusted by her, the said M. G., to receive money, goods, bills, notes, and other valuable securities, for and on the account of her, the said M. G. ; and being such clerk and servant, so employed and entrusted as aforesaid, he the said C. D. then and there did receive and take into his possess- ion, of and from one B. D. one bank note for the payment and of the value of fifty dollars, one other bank note for the payment and of the value of twenty dollars, one other bank note for the payment and of the value of ten dollars, and four other bank notes for the payment of five dollars each and of the value of twenty dollars, for and on the account of the said M. G., his mistress and employer, and having so received and taken into his possession the said bank notes, for and on the account of the said mistress and employer, he the said C. D. then and there, with force and arms, fraudulently and feloniously did em- bezzle and secrete the same, and fraudulently convert the same to his 310 JUSTICE OF THE PEACE. own use, against the peace and dignity of the said State, and contrary to the form of the statute in such case made and provided. Where- fore, &c. 4. Against the President and Cashier of a Bank for an Em- bezzlement, setting forth the Embezzlement generally. That heretofore, to wit, on, &c. at, &c. the said "W, then and there, being one of the directors and president of the P. bank, a corporation then and there duly and legally established, organized, and existing under and by virtue of the laws of this State, as an incorporated bank, and he, the said B. being then and there cashier of said bank, did, by virtue of their said respective offices and employments, and whilst they, the said W. and B., were severally employed in their said respective offices, have, receive, and take into their possession, certain money to a large amount to wit ; to the amount and sum of $220,000, and of the value of $220,000 ; divers bills called bank bills, amounting in the whole to the sum of $20,000, of the value of $20,000 ; divers motes, called treasury notes, amounting in the whole to the sum of $75,000, and of the value of $75,000, of the goods and chattels, property and money, of them, the said president, directors and company of the P. B. in their banking house there situate, being ; and the said money, bills and notes, then and there, unlawfully, fraudulently and felon- iously did embezzle in the banking house aforesaid, and convert to their own use, against the peace, &c. and contrary to the form, &c. * 5. Against a common Carrier for embezzleing a package con- taining a Bank Note. That C. D. of, &c. heretofore, to wit, on, &c. was a common car- rier, employed in carrying letters and packets from the town, of C — , in said county, to a certain, &c. in the county of. &c. for hire, and that on, &e. aforesaid, at , aforesaid, a certain package of great value, to wit, &c. the property of. one A. B. and by him, the said A. B. sent and directed to E. F. of, &c. in, &c. then containing therein a certain bank note, signed and subscribed by the president and cashier of the bank of promising to pay or bearer on demand the sum of fifty dollars, the tenor of which, &c. [state note verbatim, if possible, though not necessary] came to the hands and possession of the said C. D., then and there being a common carrier so employed as aforesaid, to be by him, the said C. D., as such common carrier, deliv- ered, &c. and that he being, &c. and having the said package con- taining the said bank note in his hands and possession, with force and arms, feloniously did embezzle and secrete the said package, then and there containing the said bank note, and the same fraudulently convert to his own use; against the peace of the said State, and contrary to the form of the statute in such case made and provided. FORMS IN CRIMINAL PROCEEDINGS. 311 6. Against a Factor pledging goods, etc. intrusted to him for sale. That heretofore, to wit, on, &c. at, &c. in, &c. A.'B. did intrust to CD., the said CD. then and there being a factor and agent [" factor or agent"] ten bales of cotton of great value, to -wit, of the value of two hundred and fifty dollars, for the purpose of selling the same, (" intrusted for the purpose of sale with any goods or merchandize, or intrusted with any bill of lading, warehouse keeper's or wharfinger's certificate, or warrant, or order for the delivery of goods or merchan- dize") and that the said C D. of, &c. in, &c. factor and agent as aforesaid, on, &c. aforesaid, at, &c. in, &c. for his own benefit, and in violation of good faith, the said ten bales of cotton unlawfully did deposite and pledge (" deposite or pledge any such goods or merchan- dize, or any of the said documents,") with one J. P. as a security for a certain sum of money, to wit, the sum of two hundred and fifty dol- lars, by the said C D. at the time of his so making such deposite and pledge as aforesaid, borrowed and received from the said J. P. [" as a security for any money or negotiable instrument borrowed or received by such factor or agent, at or before the time of making such deposit or pledge, or intended to be thereafter borrowed or received,") and feloniously embezzled the said property, and converted the same to his own use, against the peace and dignity of the said State, and contrary to the form of the statute in such case made and provided. 7. Against a Factor for secreting goods intrusted to him for sale, with intent to embezzle the same. That the said A. B. heretofore, to wit, on, &c. at, &c. did intrust to one C D. of, &c. then and there being a factor and agent, ten bales of cotton of great value, to wit, of the value of two hundred and fifty dollars; and the said C D. then and there, being a factor and agent as aforesaid, the said ten bales of cotton, then and there, the property of the said A. B., did secrete, with intent to embezzle the same, and fraudulently convert the same to his own use, against the peace and dignity of the State, and contrary to the form of the statute in such case made and provided. V. FALSELY PERSONATING ANOTHER. Every person who shall falsely personate another, and in such assum- ed character shall receive any money or other thing intended to be delivered to the party so personated, with intent to convert the same to his own use, shall be deemed, by so doing, to have committed larce- ny. 1 «R- S. ch. 156, sec. 8- 312 JUSTICE OF THE PEACE. To constitute this offence, four things must concur, and four distinct averments must be proved. 1. There must be an intent to defraud ; 2. There must be an actual fraud committed; 3. False pretences must be used for the purpose of perpetrating the fraud ; i. e. the false name must be taken for the purpose of effecting the fraudulent end ; and, 4. The fraud must be accomplished by- means of the false pretences made use of for that purpose, viz : they must be the cause which induced the owner to part with his property. When two persons are jointly complained against under this statute, evidence that one of them, with the knowledge, approbation, concur- rence and direction of the other, so made the false pretences charged, warrants the conviction of both. And it is not necessary, in order to convict the defendants, in such case, to prove that they, or either of them, obtained the goods on their own account, or expected to derive, personally, any pecuniary benefit therefrom. An allegation that the defendant obtained goods of A. B. and C. D., partners in trade, by false pretences made to them, is supported by proof that the defendant made the alleged false pretences to their clerk and salesman, who com- municated them to B., and that the goods were delivered to the defendant in consequence of those false pretences. 1 1, For obtaining goods of a shop-keeper under pretence of being a servant to a customer. A. B. of, in, &c. shop-keeper, upon his oath complains, that C. D. of, &c. in, &c. laborer, being an evil disposed person and a common cheat, and contriving and intending unlawfully, fraudulently and de- ceitfully to cheat and defraud the said A. B. of his goods, wares and merchandize, for the support of his profligate way of life, heretofore, to wit, on, &c. at, &c. unlawfully, knowingly, and designedly, did falsely pretend to the said A. B., that he, the said C. D., then was the servant of E. F. (the said B. F. then and long before being well known to him, the said A. B. and a customer of him the said A. B. in his said business and way of trade,) and that he, the said C. D. was then sent by the said E. F. to the said A. B. for five yards of super- fine woolen cloth, by which said false pretences, the said C. D. did then and there unlawfully, knowingly, and designedly obtain from the said A. B. five yards of superfine woolen cloth, of the value of fifty »19 Pick. 182—183. FORMS IN CRIMINAL PROCEEDINGS. 313 dpllars, of the goods, wares and merchandize of him, the said A. B. ■with intent him, the said A. B., then and there to cheat and defraud of the same ; whereas in truth and in feet, the said C. D. was not then then the servant of the said E. F. and was not then, or ever hath been, sent by the said E. F. to the said A- B- for the said cloth, or for any cloth whatever, to the great damage and deception of the said A. B., against the peace and dignify of the said State, and contrary to the form of the statute in such case made and provided. VI. GAMING AND GAMING HOVSES. This a statute offence. There may be two classes of offenders ; 1st. Inholders or common victualers ; 2d. The persons themselves, actu- ally gaming. The former may offend, first by having, or keeping in or about their houses or other buildings, implements of gaming ;* sec- ond, by suffering persons resorting thither to use or exercise the for- bidden games.' The latter may offend, first, by using or exercising any of the forbidden games in or about the house or other buildings of such innholder or victualer ; 3 and, secondly, by playing at billiards, eards, dice, or any other unlawful game, at a table kept at an unli- censed house, Sec.* There are, besides, certain other offences of this description which do not come within the final jurisdiction of a magistrate. The second offence in the first division, viz : the suffering persons resorting to the house or buildings to use or exercise any of the forbid- den games, is not a continuing offence. It consists in permitting per- sons for hire and reward to resort to a building used by the defend- ant, for the purpose, on their part, of playing at some one or more of the forbidden games. The offence may be repeated from day to day, and in connection with different individuals, and of course may be the subject of distinct complaints. Such being the nature of the offence, it should properly be charged on a day certain, and not on divers days and times. 5 1. Against a licensed Innholder for having a bowling alley in the yard of his public house. Complains A. B, of, &c. that heretofore, to wit, on, &c. and on divers days and times between that time and the date of this complaint, '£• S - ch - 36 > sec. 8. «R. S. ch. 35, sec. 8. stk „ * 9 Met. 575. 5 Ib. aec. 9. 40 314 JUSTICE OF THE PEACE. at C — , in said county, C. D., of, &c. being then and there a licensed innholder, licensed to keep the public house called the hotel at C — , aforesaid, unlawfully had and kept at, &c. in, &c. and upon the yard attached and belonging to his said public house, a certain build- ing there situate, and then and there actually used and occupied for the purpose of playing at bowls, the same being then and there an un- lawful game, and all the implements in said game, against the peace of the State, and contrary to the form of the statute, &c. 2. Against a licensed Innholder for suffering persons resorting to his house to play at Bowls. That heretofore, to wit, on, &c. at, &c. the said C. D., being then and there a licensed innholder, &c. suffered certain persons whose names are not known to the complainant, resorting to his said house, to play at bowls, the same being an unlawful game, against the peace, &c. and contrary to the form, &c. 3. Against a person playing at Billiards at a Table kept in an unlicensed House. That C. D. of, &c. being a person of idle , and dissolute habits, heretofore, to wit, &c. and on divers days and times, both before and after, at, &c. did unlawfully play at a certain unlawful game called billiards, at a table kept, and made use of for that purpose, by one E. F. ; in a certain house or building there situate, by him the said E. F. actually occupied and improved ; which said table was then and there kept and maintained by him, the said E. F., in the house and building aforesaid, for the purpose of playing at the said unlawful game, called billiards, and for hire, gain or reward ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 4. Against a person for keeping a Billiard Table at an unli- censed House. That heretofore, to wit, on, &c. and at divers days and times, both before and after, at, &c. one C. D., at a certain house there situate, by him the said C. D., actually occupied and improved, did keep and maintain a billiard table, for the purpose of playing at a certain unlaw- ful game called billiards, and for hire, gain and reward ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 5. Against such persons for permitting persons to resort to such table to play. That heretofore, to wit, on, &c. at, &c. one C. D. of, &c. for hire, gain and reward, unlawfully did suffer certain persons, whose names FORMS IN CRIMINAL PROCEEDINGS. 315 are unknown to this complainant, to resort to a certain building there situate, and by the said C. D. then and there actually used and occu- pied, for the purpose of playing at billiards ; the same being then and there an unlawful game, against the peace, &c. and contrary to the form, &c. If the complaint be for hawking or peddling, or horse-racing, or exhibiting shows or plays, the form of the allegation may be varied to meet the case. VII. HOUSE OF CORRECTION. It has already been seen that certain minor offenders must, on con- viction, be sentenced to suffer punishment in the house of correction, as provided in the Revised Statutes. Forms for complaints in case of such offences are given in this connection. 1. Against a Vagabond. A. B., of, &c. heretofore, to wit, on, aforesaid, unlawfully, wilfully, maliciously, wantonly and without cause, did injure, by girdling and lopping, one certain fruit 324 JUSTICE OF THE PEACE. tree, to wit, a peach tree not his;,own, then and there standing and growing for the bearing of fruit in the orchard of one A. B., there situate and being, against the peace, &c. and contrary to the form, &c. 3. For throwing down bars maliciously, and leaving the same open. That C. D. of, &c. being an evil disposed person, heretofore, to wit, on, &c. with force and arms, at , aforesaid, did unlawfully and maliciously throw down certain bars, being part;gf a fence belonging to and enclosing a certain piece or parcel of landthere*situate ; and did then and there unlawfully leave open the same bars ; the said land, which was then and there, enclosed by the fence and bars afore- said, then and there belonging to him the said A. B. and not to him the said C. D., and was not his, the said C. D's, own ; and in which he the said C. D. then and there had no interest, against the peace of said State, and contrary to the form of the statute in such case made and provided. 4. For wilfully destroying a monument of a tract of land. That C. D. of, &c. heretofore, to wit, on, &c. with force and arms, at, &c. did wilfully and maliciously break down, injure, remove, and destroy a certain monument on the county road leading from, &c. to, &c. being a stone post, with a hole drilled in it, there erected and set in the ground at a corner on said road between a certain tract of land of said A. B. andlandofone E. F., for the purpose of designating the boundaries of the said land of the said A. B., against the peace, &c. and contrary to the form, &c. 5. For wilfully removing a guide-board. That 0. D. of, &c. being an evil-disposed person, heretofore, to wit, on, &c. at, &c. with force and arms^ a certain guide-board, placed and put up in a public road there, for public convenience and the in- formation of travellers, did unlawfully, wilfully, and maliciously remove ; he, the said C. D. not being properly or legally authorized so to do ; against the peace of said State, and contrary to the form of the statute in such case made and provided'. 6. For wilfully cutting down timber on the land of another. That C. D. of , heretofore, to wit, on, &c. with force and arms, at , aforesaid, the land, to wit, the woodland of one A. B. there situate, did wilfully enter upon and into, and then and there unlawfully, wilfully, and maliciously, cut down and destroy one certain timber tree of him the said A. B., standing and growing on the land of him the said A. B., he the said C. D. then and there not having any interest or property in the same tree, without the license of the owner thereof, and against the peace, &c. and contrary to the form, &c. FORMS IN CRIMINAL PROCEEDINGS. 325 7. For cutting down com standing, from the land of another, and carrying it away. That C. D. of, &o. at, &c. heretofore, to wit, on, &c. did cut down a great quanity, to wit, five bushels of corn then and there growing on a certain tract of land, then and there owned and occupied by the said A. B., and did carry said corn away ; against the peace, &c. and con- trary, &c. 8. For trespass in entering on a garden to take fruit. That C. D. of, &c. heretofore, to wit, on, &c. with force and arms, at , aforesaid, the garden of one A. B. there situate, did unlaw- fully, wilfully and maliciously, enter upon, without permission of him, the said A. B., the owner thereof, secretly in the night-time, to wit, between sun-setting and sun-rising, with intent to take and carry away the fruit there growing and being, against the peace, &c. and contrary to the form, &c. XII. PENAL ACTIONS. Under this somewhat general title, we would range all those classes of offences, not in themselves morally wrong, but made penal by vari- ous statutes. 1. Complaint for being disorderly at a town meeting. That the inhabitants of said , being duly asAmbled in town meeting, on the 15th day of March, A. D. 1850, for the choice of town officers for the year, then next ensuing, am a moderator being duly chosen, who called on the electors present to give in their votes for a selectman for the year ensuing ; the said CD. heretofore to wit, on the said fifteenth day of Ma/ch. at — : — , aforesaid, in the public town meeting aforesaid, to the disturbance of the peaceable and quiet citizens then and there .assembled as aforesaid, and in violation of the right of private suffrage, unlawfully was disorderly, and then and there unlawfully and disorderly did openly declare that the old selectman should not be chosen, and then and there unlawfully and violently did attempt repeatedly to take from the box which contained the ballots of the electors, the votes of the electors ; against the peace of the State aforesaid, and contrary to the form of the statute in such case made and provided. 2. For an offence against the law of the Road. That C. D. of P — , aforesaid, yeoman, heretofore, to wit, on the day of, &c. at P — , aforesaid, was travelling with a carriage along and over a certain public highway in said town, known as the old turnpike from P— to Gr— , and then and there met the said A. B. 326 JUSTICE OF THE PEACE. travelling in a certain other carriage ; yet the said C. D., though the said A. B. did seasonably drive his carriage to the right of the middle of the travelled part of said road, did not so seasonably drive his carriage to the right of the middle part of said highway, but care- lessly and unlawfully drove his said carriage along and over the mid- dle part of said highway, with great force and violence against the carriage of the said A. B., then and there being, to the great damage of the said A. B. against the peace of said State, and contrary, &c. XIII. PROFANITY. The offence is "profanely cursing or swearing;" and the offender must be one who has arrived at " the age of discretion." The pros- ecution must be commenced within twenty days after the commission of the offence. 1 Form of a Complaint for prof ane swearing. A. B. of C — , &c. upon his oath, complains that C. D. of, &c. heretofore, to wit, on, &c. at C — , aforesaid, in the county aforesaid, being a person who had arrived at the age of discretion, did profanely curse and swear, by uttering with a loud voice in the presence of di- vers good citizens of this State, these wicked and profane words follow- ing, to wit, [here set forth the profane oath or curse in the words in which they were uttered,] against good morals and good manners against the peace of said State, and contrary to the form of the statute in such case made and provided. XIV. SEARCH WARRANT. 1. Complaint. STATE' OF MAINE. To W. N. Gr. Esq., one of the justices of the peace, within and for the county of C — , A. B. of P — , in the county of C — , on oath complains and informs said justice, that the following goods and chat- tels, viz : [describe the property particularly,] of the property of the said complainant, and of the value of dollars, have within days now last past been feloniously taken, stolen, and carried away out of the possession of the said complainant, at P — , aforesaid ; and that he hath probable cause to suspect, and doth suspect, that said goods and chattels were feloniously taken, stolen, and carried away as aforesaid, by C. D. of P — , in said county, and that the same goods and chattels or a part thereof, are now concealed in the dwelling house of the said C. D. occupied by him, on Middle Street in said ; and the said complainant prays that a warrant may issue, in due form of law to search there for the same, and that the said C. D. may be JR. S. ch. 160, sec. 22. FORMS IN CRIMINAL PROCEEDINGS 327 apprehended and held to answer to this complaint, and further dealt with,* relative to the same, according to law. A. B Received and sworn to, on the day of^ A. D. 18 — , before me , W. N. G., justice of the peace. 2. Warrant. STATE OF MAINE. C ss. To the sheriff of the county of C , his deputies, and , -to any constable of the town of P , in said county : L L ' S -J Greeting. Whereas, &c. [setting forth the complaint] you, and each of you, are hereby required, in the name of the State of Maine, forthwith, and with necessary and proper assistants, to enter in the day time into the dwelling house of the said CD., mentioned in the said complaint and information, and there diligently to search for the goods and chattels in said information and complaint mentioned, and if the same or any part thereof shall be found upon such search, that you bring the goods and chattels so found, together with the body of the said C. D., before any justice of the peace for said county, to be disposed of and dealt with as to law and justice shall appertain. You are also alike requir- ed, to summon A. B., E. R, and G H. to appear and give evidence touching the matter contained in the said complaint, when and where you have the said goods and chattels and person, or either of them. Given- under my hand and seal, at P — , this day of , in the year of our Lord 18 — . W. N. G., justice of the peace. XV. SPIRITUOUS LIQUORS. The law relative to the sale of intoxicating liquors is mainly embodied in the act passed in June, 1851, entitled " An Act for the suppression of drinking houses and tippling shops. ' ' The following are its leading provisions : 1. No person is allowed at any time to manufacture or, sell, by himself, his-' clerk, servant or agent,, any spirituous or intoxicating licpjrs, or any mixed liquors, a part of which is spirituous or intoxi- cating, unless he is ^appointed, as the agent of the town, to sell for medicinal and mechanical purposes only. 2. The selectmen of any town, and mayor and aldermen of any city, on the first Monday of May annually, or as soon thereafter as may be convenient, may appoint some suitable person as agent to sell intoxicating liquors, to be used for medicinal and mechanical purposes and no other ; and he shall receive such compensation for his services 328 JUSTICE OF THE PEACE. as the board appointing him shall prescribe ; and shall in the sale of such liquors, conform to such rules and regulations, as the selectmen or mayor and aldermen as aforesaid, shall prescribe for that purpose. He must give bonds, and is removable at pleasure. 3. Any person who shall sell, in violation of this act, any mixed liquors, part of which is intoxicating, he shall forfeit and pay on the first conviction, ten dollars and the costs of prosecution, and stand commit- ted until the same be paid ; on the second conviction he shall pay twenty dollars and the costs of prosecution, and stand committed until the same be paid ; on the third and every subsequent conviction, he shall pay twenty dollars and the costs of prosecution, and shall be imprisoned in the common jail, not less than three months, nor more than six months, and in default of the payment of the fines and costs, prescribed by this section, for the first and second convictions, the con- vict shall not be entitled to the benefit of chapter one hundred and sev- enty-five of the Revised Statutes, until he shall have been imprisoned two months ; and in default of payment of fines and costs provided for the third and every subsequent conviction, he shall not be entitled to the benefit of said chapter one hundred and seventy-five of the Revised Statutes, until he shall have been imprisoned four months. Arid if any clerk, servant, agent or other person in the employment or on the premises of another, shall violate the provisions of this section, he shall be held equally guilty with the principal, and on conviction shall suffer the same penalty. 4. Any forfeiture or penalty arising under the above section, may be recovered by an action of debt, or by complaint before any justice of the peace, or judge of any municipal or police court, in the county where the offence was committed. And the forfeiture so recovered shall go to the town where the convicted party resides, for the use of the poor ; and the prosecutor or complainant may be admitted as a witness in the trial. And if any one of the selectmen or board of mayor and aldermen shall approve of the commencement of any such suit, by endorsing his name upon the writ, the defendant shall in no event recover any costs ; and in all actions of debt arising under this section, the fines and forfeitures suffered by the defendant, shall be the same as if the actions had been by complaint. And it shall be the duty of the mayor and aldermen of any city and selectmen of any (FORMS IN CRIMINAL PROCEEDINGS. 329 town, to commence an action in behalf of said town or city, against any person guilty of a violation of any of the provisions of this act, on being informed of the same, and being furnished with proof of the fact. 5. If any person shall claim an appeal from a judgment rendered against him by any judge or justice, on the trial of such action or complaint, he shall, before the appeal shall be allowed, recognize in the sum of one hundred dollars, with two good and sufficient sureties, in every case so appealed, to prosecute his appeal, and to pay all costs, fines and.penalties that may be awarded against him, upon a final disposition of such suit or complaint. And before his appeal shall be allowed, he shall also, in every case, give a bond with two other good and sufficient sureties, running to the town or city where the offence was committed, in the sum of two hundred dollars, that he will not, during the pendency of such appeal, violate any of the provisions of this act. And no recognizance or bond shall be taken in cases arising under this act, except by the justice or judge before whom the trial was had ; and the defendant shall be held to advance the jury fees in every case of appeal in an action of debt ; and in the event of a final conviction before a jury, the defendant shall pay and suffer double the amount of fines, penalties and imprisonment awarded against him by the justice or judge from whose judgment the appeal was made. The forfeiture for all bonds and recognizances given in pursuance of this act, shall go to the town or city where the offence was committed, for the use of the poor ; and if the recognizances and bonds mentioned in this section shall not be given, within twenty-four hours after the judgment, the appeal shall not be allowed ; the defendant in the mean time to stand committed. 6. The mayor and aldermen of any city, and the selectmen of any town, whenever eomplaint shall be made to them that a breach of the conditions of the bond given by any person appointed under this act, has been committed, shall notify the person complained of, and if upon a hearing of the parties it shall appear that any breach has been com- mitted, they shall revoke and make void his appointment. And when- ever any breach of any bond given to the inhabitants of any city or town in pursuance of any of the provisions of this act, shall be made known to the mayor and aldermen, or selectmen, or shall in any man- 42 J 330 JUSTICE OF THE PEACE. ner come to their knowledge, they, or some one of them shall, at the expense and for the use of said city or town, cause the bond to be put in suit in any court proper to try the same. 7. No person shall be allowed to be a manufacturer of any spiri- tuous or intoxicating liquor, or common seller thereof, without being duly appointed as aforesaid, on pain of forfeiting on the first conviction, the sum of one hundred dollars and costs of prosecution, and in default of the payment thereof, the person so convicted shall be imprisoned sixty days in the common jail ; and on the second conviction, the person so convicted shall pay the sum of two hundred dollars and costs of pros- ecution, and in default of payment, shall be imprisoned four months in the common jail ; and on the third and every subsequent conviction Bhall pay the sum of two hundred dollars and shall be imprisoned four months in. the common jail of the county where the offence was com- mitted ; said penalties to be recovei-ed before any court of competent jurisdiction, by indictment, or by action of debt in the name of the city or town where the offence shall be committed. And whenever a default shall be had of any recognizance arising under this act, scire facias shall be issued, returnable at the next term, and the same shall not be continued, unless for good cause satisfactory to the court. 8. If any three persons, voters in the town or city where the com- plaint shall be made, shall, before any justice of the peace or judge of any municipal or police court, make complaint under oath or affirma- tion, that they have reason to believe, and do believe, that spirituous or intoxicating liquors are kept or deposited, and intended for sale by any person not authorised to sell the same in said city or town under the pro- visions of this act, in any store, shop, warehouse or other building or place in said city or town, said justice or judge shall issue his warrant of search to any sheriff, city marshal or deputy, or to any constable, who shall proceed to search the premises described in said warrant, and if any spirituous or intoxicating liquors are found therein, he shall seize the same, and convey them to some proper place of security, where he shall keep them until final action is had thereon. But no dwelling-house in which, or in part of which, a shop is not kept, shall be searched unless at least one of said complainants shall testify to some act of sale of intoxicating liquors therein, by the occupant there- of, or by his consent or permission, within at least one month of the FORMS IN CRIMINAL PROCEEDINGS. 331 time of making said complaint. And the owner or keeper of said liquors, seized as aforesaid, if he shall be known to the officer seizing the same, shall be summoned forthwith before the justice or judge by whose warrant the liquors were seized, and if he fails to appear or unless he can show by positive proof, that said liquors are of foreign production,, that they have been imported under the laws of the Unit- ed States, and in accordance therewith— that they are contained in the original packages in which they were imported, and in quantities not less than the laws of the United States prescribe, they shall be declared forfeited, and shall be destroyed by authority of the written order to that effect, of said justice or judge, and in his presence, or in the presence of some person appointed by him to witness the destruc- tion thereof, and who shall join with the officer by whom they have been destroyed, in attesting that fact upon the back of the order, by authority of which it was done ; and the owner or keeper of such liquors shall pay a fine of twenty dollars and costs, or stand committed for thirty days, in default of payment, if in the opinion of the court said liquors, shall have been kept or deposited for the purpose of sale. And if the owner or possessor of any liquors seized in pursuance of this section, shall set up the claim that they have been regularly im- ported under the laws of the United States, and that they are con- tained in the original packages, the custom house certificates of impor- ' tation and proofs of marks on the casks or packages corresponding thereto, shall not be received as evidence that the liquors contained in said packages are those actually imported therein. 9. If the owner, keeper or possessor of liquors seized under the provisions of this act, shall be unknown to the officer seizing the same, they shall not be condemned and destroyed until they shall have been advertised, with the number and description of the packages as near as may be, for two weeks, by posting up a written description of the same in some public place, that if such liquors are actually the property of any city or town in the State, and were so at the time of the seizure, purchased for sale by the agent of said city or town, for medici- nal and mechanical purposes only, in pursuance of the provisions of this act, they may not be destroyed ; but upon satisfactory proof of such ownership, within said two weeks, before the justice or judge by whose authority said liquors were seized, said justice or judge shall 332 JUSTICE OF THE PEACE. deliver to the agent of said city or town an order to the officer having said liquors in custody, -whereupon said officer shall deliver them to said agent, taking his receipt therefor upon the back of said order, which shall be returned to said justice or judge. 10. If any person claiming any liquors, seized as aforesaid, shall appeal from the judgment of any justice or judge by whose authority the seizure was made, to the district court, before his appeal shall be allowed, he shall give a bond in the sum of two hundred dollars with two good and sufficient sureties to prosecute his appeal, and to pay all fines and costs which may be awarded against him ; and in the case of any such appeal, where the quantity of liquors so seized shall exceed' five gallons, if the final decision shall be against the appellant, that such liquors were intended by him for sale, he shall be adjudged by the court a common seller of intoxicating liquors, and shall be subject to the penalties provided for in section eight of this act ; and said liquors shall be destroyed as provided for in section eleven. But nothing contained in this act shall be construed to prevent any chemist, artist or manufacturer in whose art or trade they may be necessary, from keeping at his place of business such reasonable and proper quantity of distilled liquors as he may have occasion to use in his art Or trade, but not for sale. 11. It shall be the duty of any mayor, alderman, selectman, assessor, city marshal or deputy or constable, if he shall have informa- tion that any intoxicating liquors are kept or sold in any tent, shanty, hut or place of any kind for selling refreshments in any public place, on or near the ground of any cattle show, agricultural exhibition, military muster or public occasion of any kind, to search such suspect- ed place, and if such officer shall find upon the premises any intoxi- cating drinks, he shall seize them, and arrest the keeper or keepers of such place, and take them forthwith, or as soon as may be, before some justice or judge of a municipal or police court, with the liquors so found and seized, and upon proof that said liquors are intoxicating r that they were found in possession of the accused, in a tent, shanty, or other place as aforesaid, he or they shall be sentenced to imprisonment in the county jail for thirty days, and the liquors so seized shall be destroyed by order of said justice or judge. FORMS IN CRIMINAL PROCEEDINGS. 333 12. If any person arrested under the preceding section and sentenced as aforesaid, shall claim an appeal, before his appeal shall be allowed, he shall give a bond in the sum of one hundred dollars, with two good and sufficient sureties, that he will prosecute his appeal and pay all fines, costs and penalties which may be awarded against him. And if on such appeal the verdict of the jury shall be against him, he shall, in addition to the penalty awarded by the lower court, pay a fine of twenty dollars. In all cases of appeal under this act from the judgment of a justice or judge of any municipal or police court, to the district court, except where the proceeding is by action of "debt, they shall be conducted in said district court by the prosecuting officer of the government — and said officer shall be entitled to receive all costs taxable to the State in all criminal proceedings under this act, in addition to the salary allowed to such officer by law — but no costs in such cases shall be remitted or reduced by the prosecuting officer or the court. In any suit, complaint, indictment or other proceeding against any person for a violation of any of the provisions of this act other than for the first offence, it shall not be requisite to set forth particularly the record of a former conviction, but it shall be sufficient to allege briefly that such person has been convicted of a violation of the fourth section of this act, or as a common seller, as the case may be, and such allegation in any civil or criminal process in any stage of the proceedings, before final judgment, may be amended without terms and as matter of right. 13. All payments or compensations for liquors sold in violation of law, whether in money, labor or other property, either real or personal, shall beheld and considered to have been received in violation of law, and without consideration, and against law, equity and a good con- science, and all sales, transfers and conveyances, mortgages, liens, attachments, pledges and securities of every kind, which either in whole or in part, shall have been for or on account of spirituous or ' intoxicating liquors, shall be utterly null and void against all persons and in all cases, and no rights of any kind shall be acquired thereby ; and in any action either at law or equity, touching such real or per- sonal estate, the purchaser of such liquors may be a witness for either party. And no action of any kind shall be maintained in any court in this State, either in whole or in part for intoxicating liquors, sold 331 JUSTICE OF THE PEACE. in any other State or country whatever, nor shall any action of any kind he had or maintained in any court in this State, for the recovery or possession of intoxicating or spirituous liquors, or the value thereof. 14. The provisions of this act relating to towns, are applicable to cities and plantations ; and those relating to selectmen are also applied to the mayor and aldermen of cities and assessors of plantations. 15. By the act of 1851, the act entitled "an act to restrict the sale of intoxicating drinks," approved August sixth, one thousand eight hundred and forty-six, was repealed, except the thirteen sections from section ten to section twenty-two, inclusive, and all other acts and parts of acts inconsistent with that of 1851, were also repealed. 1. Complaint for selling. STATE OF MAINE. C — , ss. To A. B., Esquire, of , one of the justices in and for said county ; C. D. of , on the day of in the year of our Lord one thousand eight hundred and fifty in behalf of said State, on oath complains, that E. F. of , in said county, on the day of , at said , not being appointed by the select- men of said town, as the -agent of said town, to sell therein spirits, wines, or other intoxicating liquors, did sell a quantity of spirituous liquors therein to wit : [here describe as accurately as possible] against the peace of the State, and contrary to the form of the statutes in such case made and provided. (Signed) C. D. On the day of aforesaid, the said C. D. makes oath that the above complaint, by him signed, is true. Before A. B., justice of the peace. 2. Warrant on the above complaint. STATE OF MAINE. C — , ss. To the sheriff of our said county of C — , or either of his r , deputies, or either of the constables of the town of , L L - S -J Greeting. Whereas, C. D. of , on the day of , A. D. 185—. in behalf of said State, on oath complained to A. B., of , Esquire, one of the justices in and for said county, that E. F. of , in said county, on the day of -, at said , not being appointed by the selectmen of said town, as the agent of said town, to sell therein, spirits, wines, or other intoxicating liquors, did sell a quantity of spirituous and intoxicating liquors to wit, [here describe in the language of the complaint.] Therefore, in the name of said State, you are FORMS IN CRIMINAL PROCEEDINGS. 335 commanded to apprehend, forthwith, the said E. F., if he may be found in your precinct, and him bring before me, at , in said , to answer to said State upon the complaint aforesaid. Witness, A. B., Esq. justice of the peace, at , aforesaid, this day of— 1 — , A. D. 185 — . A. B., justice of the peace. 3. Complaint of three voters that a certain person keeps liquors intended for sale. STATE OF MAINE. C — , ss. To A. B. of , Esquire, one of the justices of the T ■. peace in and for said county of C — ; 0. D., E. F. and G. H., ■■ ' '■* being voters in said , on the day of , A. D. 185 — , in behalf of the State, on oath complain, that 3. K. of , in said county, now has and keeps spirituous and intoxicating liquors, deposited and intended for sale, in the shop, [or other place, as the case may be] situated in said , occupied by him, said J. K., not being appointed by the selectmen of said , as the agent thereof, to sell therein, spirits, wines, or other intoxicating liquors ; whereby said liquors have become forfeited to-be destroyed, and said J. K. has forfeited the sum of twenty dollars, to the use of said State, and costs of prosecution. The complainants therefore pray that due process may issue to search there for the same, and that if such liquors be found therein, the same be seized and safely kept until final action and decision be had hereon. C. D., ) E. F, ) G. H. ) On the day of aforesaid, the said C. B., E. F. and G. H., make oath that they have cause to believe anddo believe the above complaint, by them signed, is true. Bef ore A. B., justice of the peace. 4, Warrant ou the above complaint. STATE OF MAINE. C — , ss. To the sheriff of our said county of C — , or either of his [l. s 1 de P uties > or eitner of tn e constables of the town of , or 1 the marshal or any deputy marshal in the city of , _., , Greeting. Whereas, C. D., E. F. and G. H., being voters in said , on the day of , in the year 185—, in behalf of said State, on oath complained to me, A. B. of , Esquire, one of the justices of the peace m and for the county of C— , that J. K. of , in said county, then had and kept spirituous and intoxicating liquors, deposited and intended tor sale in the shop, [or other place] situated in said . 336 JUSTICE OF THE PEACE. occupied by him, said J. K. ; said J. K. not being appointed by the selectmen of said , as the agent thereof, to sell therein, spirits, wines or other intoxicating liquors ; whereby said liquors have become forfeited to be destroyed, and said J. K. has forfeited the sum of twenty dollars for the use of said State, and costs of prosecution, and pray that due process may issue to search there for the same. There- fore, in the name of the State, you are required to enter, in the day time, the shop [or other place] named in said complaint, and search there for the same, and if such liquors be found therein, to seize and safely keep the same until final decision be had on said complaint, and that you summon said J. K. forthwith to appear before me, at , in said , on the day of , at o'clock in the noon, to show cause, if any he have, why said liquors should not be declared forfeited and be destroyed, and he be adjudged and held to pay a fine of twenty dollars to the use aforesaid, and costs of prosecu- tion. And make return hereof with your doings thereon, to me, at the time "foresaid. Witness A. B. of , Esquire, at aforesaid, this day of , A. D. 185 — . A. B., justice of the peace. III. FORMS AND PRECEDENTS FOR COMPLAINTS OF OFFENCES NOT WITHIN THE FINAL JURISDICTION OF JUSTICES OF THE PEACE. Many forms for such complaints have already been given in the preceding pages. These it would be worse than useless to repeat. Those which follow in this connection are given without any remarks upon the several offences they are intended to set forth, because it is not within the province of the magistrate to adjudicate actually and finally upon the guilt of the accused. He is called upon only to deter- mine the probable connection of the prisoner with the alleged offence. I. ADULTERY. 1. Form of a Complaint for adultery, by a married man with an unmarried woman. A. B. of , in the county of C — , yeoman, upon his oath, com- plains that C. D. of , in the county of C — , yeoman, on the day f ; now last past, at aforesaid, in the county aforesaid, did commit the crime of adultery with one E. E of said , spin- ster ; by then and there having carnal knowledge of the body of her the said E. F., he the said C. D. being then and there a married man, and having a lawful wife alive, against the peace of said State, and contrary to the form of the statute in such case made and provided. FORMS IN CRIMINAL PROCEEDINGS. 337 II. ABORTION. 1. Form of a Complaint at common law, for administering a potion to cause an abortion. A. B. of , in the county of C— , upon his oath, complains that C. D. of , in the county of C— , on the day of now last past, with force and arms, at aforesaid, in the county afore- said, did wilfully, and maliciously, and without lawful justification, administer to, prescribe for and direct to be taken by one E. F., single woman, then and there being pregnant with child, divers large quanti- ties of a certain noxious and destructive substance, called savin, with intent thereby to cause and produce the abortion, miscarriage, and premature birth of the said child, with which she the said E. F. was then and there pregnant and quick ; by means whereof, the abortion, miscarriage, and premature birth of the said child was caused and pro- duced, and she the said E. F. afterwards, to wit, on the day of next following, at said , by means of the noxious and destructive substance aforesaid, so as aforesaid administered by the said C. D., and taken by the said E. F., was prematurely delivered of the same child; [if the woman died thereby, add, " by means and in con- sequence whereof the said E. F. afterwards, to wit, &c. died,"] against the peace and dignity of the State aforesaid, &c. 2. For causing an abortion by an instrument. A. B. of , in the county of , upon his oath, complains, that C. D. of , in the county of C — , on the day of now last past, with force and arms at aforesaid, in the county afore- said, did unlawfully, wickedly, and inhumanly, force and thrust a cer- tain instrument called a , which he the said C. D. in his right hand then and there had and held, up and into the womb and body of one E. F., she, the said E. F. being then and there pregnant and quick with child, with a wicked intent to cause and procure the said E. F. to miscarry and to bring forth the said child, of which she was then and there, as aforesaid, pregnant and quick ; and that she the said E. F. afterwards, to wit, on the day of then next ensuing, at aforesaid, by means of the forcing and thrusting of the said instrument into the womb and body of her the said E. F. by the said C. D. in manner aforesaid, did bring forth the said child, (of which she was so pregnant and quick,) dead. [If the woman died thereby, add, "by means and in consequence whereof the said E. F. afterwards, to wit, &c. died,"] against the peace of the State, and contrary to the form of the statute in such case made and provided. 43 338 JUSTICE OF THE PEACE. III. ABDUCTION. Against a person for enticing an unmarried woman from her father's house. • A. B. of, &c. upon his oath complains, that C. D. of, &c. hereto- fore, to wit, on, &c. at, &c. one E. F. then and there being an unmar- ried woman, of a chaste life and conversation, did then and there deceitfully and wickedly entice and take away from the house of one J. F., the father of the said E. F., situate in — — aforesaid, for the purpose of prostitution at a house of ill fame ; against good morals and good manners, against the peace of said State, and contrary to the form of the statute in such case made and provided. Wherefore, &c. IV. ARSON AND OTHER BURNINGS. I . Burning an inhabited dwelling house in the night time. That C. D. of, &c. heretofore, to wit, on, &c. about the hour of two in the night of the same day, with force and arms, at afore- said, a certain dwelling house of one E. F. there situate, feloniously, wilfully and maliciously did set fire to, in the night time, and the same then and there did burn, there being then and there at the time of committing said offence, one person lawfully in the said dwelling house so burnt, against the peace of the said State, and contrary to the form of the statute in such case made and provided. 2. For setting fire to a building, whereby a dwelling house was burnt in the night time. That C. D. of , in the county aforesaid, laborer, on the day of now last past, about the hour of two in the night of the same day, with force and arms, at , aforesaid, in the county afore- said, a certain building of one E. F., there situate, called a wood-house, feloniously, wilfully and maliciously did set fire to, and that by the kindling of said fire, and by the burning of said wood-house, the dwell- ing house of him the said A. B. there also situate, was then and there, in the night time, feloniously, wilfully and maliciously burnt and con- sumed ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 3. Burning a dwelling house in the day time. That C. D. heretofore, to wit, on, &c. about the hour of two in the day time of the same day, with force and arms, at aforesaid, feloniously, wilfully and maliciously did set fire to the dwelling house of one G-. S., there situate, in the day time, and the same then and there did bur.n ; against the peace, &c. FORMS IN CRIMINAL PROCEEDINGS. 339 4. For maliciously burning a meeting house in the night time. A. B. of , in the county aforesaid, yeoman, upon his oath complains that C. D. of , in the county aforesaid, laborer, on the day of now last past, with force and arms, at afore- said, in the county aforesaid, a certain meeting house there situate, belonging to the first parish in the said town of , and erected for public uses, to wit : for the public worship of God, did then and there, in the night time, wilfully and maliciously set fire to, burn and con- sume ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 5. For burning a building erected for a dwelling house, and not completed or inhabited. That G. D. of, &c. heretofore, to wit, on the day of - the year , with force and arms, about the hour of twelve o'clock in the night time of the same day, a building of one P. U. of said . there situate, erected by the said P. U. for a dwelling house, and not completed or inhabited, wilfully and maliciously did set fire to, and the same building, so erected for a dwelling house, then and there, by the setting and kindling of such fire, did wilfully and maliciously burn and consume ; against the peace of said State, and contrary to the form of the statute in such case made and provided. V. BARRETRY. Form of a complaint, for being a common barretor. That CD. of , in the county of C — , Esquire, on the day of in the year , and on divers other days and times, as well before as afterwards, was, and yet is a common barretor ; and that he the said C. D. on the said day of , and on divers other days and times, as well before as afterwards, in the county afore- said, divers quarrels, strifes, suits and controversies, among the honest and quiet citizens of the said State, then and there did move, procure, stir up, and excite ; to the evil example of all others in like cases to offend, and against the peace and dignity of the State aforesaid. VI. BLASPHEMY. That C. D., of, &c, not having the fear of God before his eyes, and intending to blaspheme and dishonor the holy name of God, hereto- fore, to wit, on, &c, at, &c, wilfully and blasphemously, in the pres- ence and hearing of divers good citizens of said State, spoke, pronounced, and with a loud voice published these profane and blasphemous words following, that is to say, [setting forth the words verbatim,] in con- tempt and blasphemy of the holy name of God, against the peace of 340 JUSTICE OF THE PEACE. said State, and contrary to the form of the statute in such- case made and provided. VII. BRIBERY AND EMBRACERY. 1. For attempting to bribe a justice of the peace, to give a deci- sion in favor of the plaintiff in an action pending before him. That C. D. of, &c. heretofore, to wit, on, &c, at , aforesaid, was one of the justices assigned to keep the peace in said county, duly qualified, appointed and sworn to discharge the duties of said office,* and that E. F. of, &c, on the same day at , aforesaid, well knowing the premises, but unlawfully intending to corrupt the said C. D., and influence the decision and judgment of the said C. D. in a certain cause then and there pending before the said C. D. in his said official capacity, wherein the said E. F. was plaintiff, and one Gr. H. was defendant, did then and there unlawfully and corruptly give and offer, and cause to be given and offered to said C. D. a certain sum of money, to wit, the sum of dollars, as a gift and reward, to induce and influence the said C. D, to. prostitute and betray the duties of his said office, by unjustly and wickedly rendering judgment in said suit, in his said official capacity, for the said E. F. for the sum of dollars ; against the peace of the State, Sifi. 2. Against a justice of the peace for accepting a bribe from the plaintiff, in an action pending before him. [As before to*.] And that he the said CD. contriving and intend- ing the duties of his said office, and the trust and confidence thereby reposed in him, to prostitute and betray, did then and there unlawfully and corruptly accept and receive of one E. F. the sum of dollars, as a gift and gratuity to influence and induce him the said CD. and under the agreement and with the understanding that he the said C D r should in a certain action then and there pending before him the said C. D. in his said official capacity, wherein the said E. F. was plaintiff, and one G. H. was defendant, render judgment in favor of the said E. F. for the sum of dollars ; and that he, the said C. D., did thereby wilfully, unlawfully and corruptly prostitute and be- tray, for the said gift and gratuity by him the said C. D. in his said official 'capacity, in that behalf, so as aforesaid accepted, the duties of his said office, and the trust and confidence reposed in him therein ; to the great dishonor, scandal and prostitution of the justice of said State, against the peace of the same, &c. 3. A complaint for embracery. That C. D. of P — , &c. heretofore, to wit, on the day of now last past, at P — aforesaid, in the county aforesaid, knowing that a jury of the said county of C — , was then duly returned, sworn and FORMS IN CRIMINAL PROCEEDINGS. 341 impannelled, to try a certain issue joined in the supreme judicial court, then held according to law, at P — aforesaid, in and for the county of C — aforesaid, between E. F., plaintiff, and G. H. defendant, in a plea of the case ; and then also knowing that a trial was to be had upon the said issue, on the day of in the year aforesaid, before the said supreme judicial court, then and there held for the said county of C — , the said C. D. devising wickedly and unlawfully to bias the opinion and influence the decision of the jurors aforesaid, on the day of , in the year aforesaid, at P — , in the county aforesaid, unlawfully, wickedly, unjustly and corruptly, on behalf of the said G. H., the defendant in the said cause, did offer and give to one I, J., one of the jurors of the said jury, the sum of dollars, as a gift and gratuity to induce the said I. J. to appear and attend in favor of the said Gr. H., the said defendant ; and to bias the opinion and influence the decision of the said jurors in the trial of the said issue, he the said CD. well knowing that the said I. J. was then and there a juror as aforesaid, sworn to try the said issue ; against the peace and dignity of the State, &c. VIII. BURGLARY AND HOUSEBREAKING. 1. For breaking and entering a dwelling house in the night time, being armed. That C. D. of, &c. on, &c. about tha hour of one in the night of the same day, with force and arms, at , aforesaid, in the county aforesaid, the dwelling house of A. B. there situate, feloniously and burglariously did break and enter, in the night time, he the said A. B. being then lawfully therein, and he the said C. D. then and there being armed with a dangerous weapon, to wit, with a pistol loaded with gunpowder and a leaden bullet, with intent the goods and chattels of the said A. B. in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away,* and then and there, with force and arms, one silver tankard, of the value of thirty dollars, of the goods and chattels of him the said A. B. in the same dwelling house then and there being found, then and there feloniously and burglariously did steal, take and carry away, against the peace of the said State, &c. The above form may be easily varied to meet the several cases of burglary provided for in the statute. Thus, if the offender have com- mitted an assault within the dwelling house, the following words may be inserted after the *. " And that he the said C. D., then and there in and upon one E. E, who was lawfully then and there in the said dwelling house, and in the peace of the said State, feloniously and burglariously an actual 342 JUSTICE OF THE PEACE. assault did make, and him, the said E. F. did then and there beat, •wound and abuse." If it be alleged that the defendant armed himself with a weapon in the house, the words about being armed at the time of the entry, may be omitted, when insert instead thereof after the * as follows : " And that he, the said C. D., having then and there, in the dwell- ing aforesaid, armed himself with a certain dangerous weapon, called , one silver tankard, &c." Unless some of these aggravations are to be charged, instead thereof the words, " not being armed," may be used. 2. F or breaking in the night a shop, not adjoining a dwelling house, with intent to steal. That C. D., of, &c. heretofore, to wit, on, &c./'about the hour of ten in the afternoon of the same day, with force and arms, at afore- said, the shop of one A. B. there situate, not adjoining to, or occupied with, a dwelling house, feloniously did break and enter, in the night time, with intent to commit the crime of larceny, by stealing, taking and carrying away of the goods and chattels of one J. S., then and there being, against the peace of said State, and contrary to the form of the statute in such case made and provided. 8. For entering a house in the night time without breaking, and patting the owner in fear. That C. D. of, &c. heretofore, to wit, on, &c. in the night time, to wit, about the hour of ten in the afternoon of the same day, with force and arms, at aforesaid, the dwelling house of one A. B. there situate, feloniously did enter, without breaking, with intent to commit the crime of larceny, of the goods and chattels of him the said A. B., then and there being, and him the said A. B. then and there being lawfully therein, did then and there put in fear ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 4. For a like entry without putting in fear. That C. D. of, &c. heretofore, to wit, on, &c. about the hour of ten in the afternoon of the same day, with force and arms, at afore- said, the dwelling house of one A. B., there situate, feloniously did enter in the night-time, without breaking, with intent to commit the crime of larceny, no person then and there lawfully therein being put in fear, against the peace of said State, and contrary to the form of the statute in such case made and provided. [FORMS IN CRIMINAL PROCEEDINGS. 343 5. For a burglary, against the principal and accessories before the fact. [Draw the complaint against the principal according to the forego- ing precedents, as the case may require, and then proceed :] And the said A. B., upon his oath aforesaid, further complains, that h. H. ot, &c before the committing of the said felony and burglary, m manner and form aforesaid, to wit, on the day of in the year afore- said, with force and arms, at aforesaid, in the county aforesaid, did feloniously and maliciously incite, move, procure, aid, and abet counsel, hire, and command the said C. D. to do and commit the said felony and burglary, in manner and form aforesaid ; against the peace of said State, and contrary to the form of the statute in such case made and provided. Wherefore, &c. 6. Against an accessory to a burglary after the fact. [Draw the complaint against the principal conformably to the fore- going precedents, as the case may be, and then proceed as follows :] And the said A. B. further complains, that E. F. of said , after- wards, to wit, on the day of , in the year aforesaid, with force and arms, at aforesaid, in the county aforesaid, well know- ing the said C. D, to have done and committed the felony and burglary in form aforesaid, him the said C. D. then and there did knowingly harbor, conceal, maintain, and assist ; against the peace of said State, and contrary to the form of the statute in such case made and provided. IX. CHEATING AND OBTAINING GOODS OR MONEY UNDEE FALSE •PRETENCES. 1. For selling by false weights and measures. That C. D. of, &c. heretofore, to wit, on, &c. and from thence until the filing of this complaint, did use and exercise the trade and business of a shopkeeper, and during that time did deal in the buying and sell- ing by weight of divers goods, wares and merchandize, to wit, at, &c. and the said C. D. being a person of a wicked and depraved mind, and contriving and fraudulently intending to cheat and defraud the people of this State whilst he used and exercised his said trade and business, to wit, on the said day of , and on divers other days and times between that day and the day of the filing of this complaint, at aforesaid, did knowingly, wilfully, and publicly keep in a certain shop there, wherein he the said C. D. did carry on his said trade, a certain false pair of scales, for the weighing of goods, wares and mer- chandize, by him sold in the way of his said trade ; which said scales were then and there, by artful and deceitful ways and means, so made and constructed as to cause the goods, wares and merchandize weighed 344 JUSTICE OF THE PEACE. therein, and sold thereby, to appear of greater weight than the real or true weight by one eighth part of such apparent weight ; and that he, the said C. D. heretofore, to wit, on the said day of , at , aforesaid, (then and there knowing the said scales false as aforesaid) did knowingly, wilfully and fraudulently sell and utter to one G. H., one of the citizens of this State, certain goods in the way of his. said trade, to wit, a large quantity of flour weighed in and by the said false scales as and for one hundred pounds weight of flour, whereas, in truth, the weight of the said flour, so sold as aforesaid, was short and deficient of the said weight of one hundred pounds, by one eighth part of the said weight of one hundred pounds, to wit, , against the peace, &c. 2. For obtaining money under false pretences. That C. D. of, &c. contriving and intending unlawfully, fraudulent- ly, designedly and deceitfully to cheat and defraud the said A. B. of his moneys, heretofore, to wit, on, &c. at aforesaid, unlawfully, knowingly and designedly did falsely pretend to the said A. B., that one E. F. was a gentleman of property, residing at , in the coun- ty of C — , and that the said E. F. would accept and pay a certain bill of exchange in writing, then and there drawn by the said C. D. upon the said E. F., and dated the day and year last aforesaid, and whereby the said CD. required the said E. F. to pay to him the said A. B., or order, the sum of one hundred dollars, in six days after date thereof, and to place the same to account of him the said CD., and then and there delivered the same to the said A. B. ; by which said false pre- tence, the said C. D. did afterwards, to wit, on the day of , in the year aforesaid, at ■ aforesaid, unlawfully, knowingly, and designedly obtain from the said A. B. the said sum of one hundred dollars, of the money of him the said A. B., with intent then and there to defraud him of the same : whereas in truth and in fact, the said E. F. was not then a gentleman of property, residing at , in the county of C — , and whereas in truth and in fact the said E. F. was then and there a pauper, chargeable to, and maintained by the town of . and whereas in truth and in fact, the said E. F. did not and could not, nor would pay the said bill of exchange, or any part of the money therein mentioned, but was then wholly insolvent and unable to pay the same, which the said C. D. then and there well knew ; to the great damage of him the said A. B., against the peace of said State, &c. X. CONSPIRACY. 1. Conspiracy to charge a man with receiving stolen goods, knowing them to be stolen, and obtaining money for compound- ing the same. A. B. of , in the county afor-esaid, yeoman, upon his oath complains, that C. D., E. F. and G. H., all of , in the county FORMS IN CRIMINAL PROCEEDINGS. 345 aforesaid, laborers, being evil disposed persona, and wickedly devising and intending the said A. B. unjustly to deprive of his credit and good name, and also fraudulently to obtain and acquire to themselves of and from the said A. B. divers large sum of money, on the day f ,, w ith force and arms, at aforesaid, in the county aforesaid, did wickedly, fraudulently, and maliciously conspire, com- bine, confederate and agree among themselves falsely to charge and accuse the said A. B. that he had then lately before received certain goods which had then been lately before feloniously stolen, taken and carried away, knowing them to be stolen ; and that they, the said CD., E. F., and Gr. H., by divers threats, menaces, and allegations of them, the said C. D., E. F. and Gr. H., made and uttered in pursuance of the said conspiracy, combination, confederacy and agreement aforesaid, that the said A. B. should be prosecuted and punished as a receiver of stolen goods, knowing them to be stolen, afterwards, to wit, on the day of , in the year aforesaid, at aforesaid, did demand, receive, and take the sum of fifty dollars, of him the said A. B., for and as a composition of, and agreement not to prosecute the same pretended offence, and to discharge him the said A. B. from all further prosecution for the same ; to the great damage of him the said A. B., and against the peace and dignity of the said State. Where- fore, &c. XI. ESCAPES, REFUSING TO AID OFFICERS, AND THE LIKE OFFENCES, UNDER REVISED STATUTES, CHAPTER 158. 1. For conveying files into a prison in order to aid the escape of a prisoner. That, heretofore, to wit, on, &c. at, &c. E. F., Esq. then being one of the justices assigned, commissioned to keep the peace in and for said county of C — , did make his warrant of commitment under his hand and seal, bearing date the day and year aforesaid, directed (among other things) to the keeper of the jail in said county, and thereby requiring the said keeper to receive into his custody the body of one CD., who was therewith sent to him the said keeper (the said C D. having been brought before him the said justice, charged upon the oath of A. B. with having feloniously stolen, taken and carried away, from and out of a barn of the said A. B., situate at aforesaid, a quan- tity of barley of the value of three dollars, the property of him the said A. B.) and him safely to keep until he should be discharged from thence by due course of law ; by virtue of which commitment he, the said C D., afterwards, to wit, on the same day and year aforesaid, was conveyed, committed and delivered to the said jail for the said cause in the said warrant of commitment mentioned ; and was kept and detain- ed therein under the custody of one Gr. M. then being keeper of said jail, for the cause aforesaid. And the complainant further shows that 44 346 JUSTICE OF THE PEACE. J. B. of, &c. well knowing the premises, and intending to facilitate the escape of the said C. D. frdm the said jail, afterwards, to wit, on, &c. with force and arms at aforesaid, feloniously did convey and cause to be conveyed into said jail two steel files, being instruments useful and adapted to aid the saidC. D. in making his escape from the said jail, and the said files did then and there unlawfully and felo- niously deliver and cause to be delivered to the said C. D., there law- fully committed and detained as aforesaid, without the consent and privity of the said G. M. or any other under-keeper of said jail ; against the peace of the State, and contrary to the form of the statute in such case made and provided. 2. Against a jailer for suffering a voluntary escape from, prison . That at the supreme judicial court, begun and holden at [here set forth the time, &c. of holding the court,] one C. D. was duly and legally convicted of the crime of larceny in feloniously stealing, tak- ing, and carrying away fifty pounds of tea, of the value of thirty dollars of the goods and chattels of one E. F. Whereupon it was considered and adjudged by the said court, that the said C. D. should be impris- oned [here set forth the sentence of the court.] And the said A. B., upon his oath aforesaid, further complains, that afterwards, at the supreme judicial court above mentioned, the said CD., by order of the said court, was committed to the care and custody of G. H., then and still being the keeper of the jail, situated at aforesaid, there to be kept and imprisoned in the said jail, according to, and in pursu- ance of the order and sentence aforesaid ; and the said G. H. him the said C. D. in his custody then and there had for the cause aforesaid, he the said CD. having stood charged and been committed as afore- said of the aforesaid felony and larceny, and thereupon committed as a prisoner as aforesaid to him the said G. H. ; and the said A. B. upon his oath aforesaid, further complains, that the said G. H. of said , Esq. afterwards and before the expiration of the term for which the said CD. was so as aforesaid ordered to be imprisoned, to wit, on the day of now last past, at , in the county aforesaid, unlawfully, voluntarily, and contemptuously did permit and suffer the said C. D. to escape and go at large out of the said jail; contrary to the duty of him the said G. H., and against the peace of said State, and contrary to the form of the statute in such case made and provided. The same form is to be used in the case of a negligent escape, sub- stituting the word " negligently" for the word "voluntarily," toward the close of the complaint. 3. Against a constable for refusing to arrest a man and suffer- ing him to escape. That on the day of now last past, at , in the said county of , one 0. D. came before E. F., Esq. then one of the FORMS IN CRIMINAL PROCEEDINGS. 347 justices of the peace in and for the said county of C— , duly and legally qualified and empowered to discharge and perform the duties of said office ; and the said C. D. did then and there, on his oath before said justice, charge, accuse, and complain, that one G. H. of - aforesaid, laborer, [here set forth the complaint.] Whereupon such proceedings were had, that the said justice did then and there make a certain warrant under his hand and seal, in due form of law, directed to the sheriff of the said county of , or his deputy, or to any of the constables of the town of , in the county aforesaid, thereby requiring them and each of them to take the body of the said G. H. and bring him before the said E. F., Esq. the justice aforesaid, to be dealt with touching the said complaint, as to law and justice might appertain ; which said warrant afterwards, on the day and year afore- said, at , aforesaid, was delivered to I. J. of said , in the county aforesaid, yeoman (he being then and there one of the constables of the said town of , duly appointed, qualified, and sworn to dis- charge and perform the duties of said office,) in due form of law to be by him served and executed.* Nevertheless, the said I. J., on the said J a y of , in the year aforesaid, at , in the county aforesaid, the duties of his office in that respect not regarding, unlaw- fully and negligently, did wilfully and corruptly omit and delay to execute the said process as delivered to him, whereby the said G. H. did escape and go at large wheresoever he would, out of the custody of him the said I. J. ; against the peace and dignity of the State, and contrary to the form of the statute in such case made and provided. 4. For refusing to aid an officer when required. [As in the last to *] and the said I. J. afterwards, to wit, on, &c. at, &c. in the execution of his said office, required of J. S. of, &c. in the name of the said State, suitable aid in apprehending the said G. H., according to the command of the said warrant; yet the said J. S., though thereto so required and well knowing the premises, on the said day of , at aforesaid, wilfully, unlawfully and corrupt- ly neglected and refused to aid and assist the said I. J., in the execu- tion of his said office in apprehending the said G. H. ; against the peace, &c. and contrary to the form, &c. The facts in a complaint for refusing to aid a justice may be set forth much in the same manner. XII. EXTORTION. 1. Against a sheriff for extortion. That C. D., of, &c, and a deputy sheriff for said county duly com- missioned and qualified to serve writs and processes in civil actions 348 JUSTICE OF THE PEACE. heretofore, to wit, on, &c, at, &c. intending to injure the said A. B., by color of his said office, did wilfully, corruptly and extorsively demand and receive of the said A. B., a greater fee and compensation than is established, allowed and provided by law for the service of a certain writ then delivered and committed to him the said C. D., for service, wherein the said A. B. was plaintiff and one E. F. defendant, to wit, the sum of one dollar for the 'service thereof, which said sum is greater than the sum allowed and provided by law for the said service ; against the peace of said State, and contrary to the form of the statute in such case made and provided. The same mode may be adopted in all cases of this offence, stating the facts, and bringing them within the statute. 2. For an attempt to extort money by a threatening letter. That C. D. of, &c. heretofore, to wit, on, &c, at aforesaid, intending to extort money from A. B., of &c. against the will of him the said A. B., a certain letter and written communication did write to the said A. B., therein maliciously threatening an injury to the person of the said A. B., which said letter was of the words and figures following, to wit, [here set forth the letter verbatim,] and the same did then direct to the said A. B. by his direction at aforesaid, and did then and there cause the same to be sent and delivered to the said A. B., through the public post-office in the said town of , against the peace of said State, &c. XIII. FORGERY AND COUNTERFEITING. The several offences of this nature are defined in the one hundred and fifty-seventh chapter of the Revised Statutes. 1. For forging a bond, under the first section of the statute. That C. D. of said , heretofore, to wit, on &c. on the day of now last past, at aforesaid, in the county aforesaid, did falsely make, forge, and counterfeit, and did procure to be falsely made, forged, and counterfeited,* a certain writing obligatory for the pay- ment of money, purporting to be made and sealed by one E. F. for the sum of dollars ; which said false, forged, and counterfeit writing obligatory is of the following purport and effect, to wit, [here insert a copy of the bond in the words and figures of it verbatim,] with intent him the said A. B. to injure and defraud ; against the peace of said State, and contrary to the form of the statute in such case made and provided. Wherefore, &c. FORMS IN CRIMINAL PROCEEDINGS. 349 2. Uttering a forged instrument, under the second section. That C. D. of said , heretofore, to wit, on the day of — - now last past, at aforesaid, in the county aforesaid, had in his custody and possession a certain false, forged, and counterfeit promis- sory note for the payment of money, purporting to be made and signed by one E. F. for the sum of dollars ; which said false, forged, and counterfeit promissory note is of the following purport and effect, to wit, [here insert a correct copy of the forged note, in words and figures ;] and that he the said €. D. the aforesaid false, forged, and counterfeit promissory note did then and there utter and publish as true, with intent him the said A. B. to injure and defraud, he the said C. D. then and there well knowing the aforesaid promissory note to be false, forged, and counterfeit ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 3. Forging a certificate of a public debt, under the third section. That C. D. of said , heretofore, to wit, on. &c. on the day of now last past, at P — aforesaid, in the county aforesaid, did falsely make, forge, and counterfeit, and did procure to be falsely made, forged, and counterfeited, a certain note, £or certificate, or other bill of credit, as the case may be,] purporting to be a note which had been duly issued by the treasurer of the State, thereto duly author- ized, for a debt of this State ; which said false, forged, and counterfeit note is of the purport and effect following, to wit, [here insert an exact copy of the note in words and figures,] with intent to injure and de- fraud ; against the peace of said State, and contrary to the form of the statute in such case made and provided. Wherefore, &c. 4. Forging a bank bill of a banking company within this State, under the fourth section. [As in No. 1, to *] A certain bank bill, purporting to be payable to the hearer thereof, and to be signed in behalf of the president, direc- tors, and company of the Bank of Cumberland, the same being an incorporated banking company within this State, which said false, forged, and counterfeit bank bill is of the purport and effect following, [here insert an exact copy of the forged bill in words and figures,] with intent to injure and defraud ; against the peace of the State, and con- trary to the form of the statute in such case made and provided. 5. For having in possession ten or more counterfeit bills, with intent to pass the same, under the fifth section. That C. D. of said P— , heretofore, to wit, on the day of now last past, at P— aforesaid, in the county aforesaid, had in his pos- session at the same time ten similar false, forged, and counterfeit bank 350 JUSTICE OF THE PEACE. bills, purporting to be ten bills, payable to the bearers thereof, and to be signed in behalf of the president, directors, and company of the Casco Bank, an incorporated banking company within this State, each of which said bank bills was of the purport and effect following, &c. said C. D. then and there, knowing them and each of them the said bills, to be false, forged, and counterfeit, as aforesaid, with intent to utter and pass the same, and thereby to injure and defraud the presi- dent, directors, and company of the said Casco Bank ; against the peace of said State, and contrary to the form of the statute in such case made and provided. 6. For having counterfeit bills with intent to pass the same, un- der the sixth section. That C. D. of said , heretofore, to wit, on, &c. had in his possession a certain false, forged, and counterfeit bill and note, in the similitude of the bills and notes payable to the bearer thereof, issued by and for the Atlantic Bank, the same being a bank and banking company legally established within this State ; to wit, at, to wit, on, &c. at P— aforesaid, with one h. h . of P — aforesaid, a single woman, did commit the crime of 45 354 JUSTICE OF THE PEACE. fornication ; against the peace, &c. and contrary to the form of the statute in such case made and provided. 5. For selling obscene prints, or books. That C. D. of, &c. heretofore, to wit, on, &c. at aforesaid, had in his possession, a certain obscene print, picture and figure, rep- resenting [describe the print in general language] which said print manifestly tended to the corruption of the morals of youth ; and the said C. v. the said print then and there offered for sale, and did sell and distribute to one E. F. of, &c. against good morals ; against the peace, &c. 6. For the crime of incest, the parties being neither of them married. That C. T>. of, &c. heretofore, to wit, on, &c. at aforesaid, did commit fornication with one A. D. of the same , single woman, the said C. D. and A. D. being within the degrees of consanguinity, within which marriages are 'prohibited and declared by law to be incestuous and void, to wit, the said C. D. being the brother of the said A. D., and both children of B. D. { late of aforesaid, and E. D. his wife ; against good morals and good manners ; against the peace, &c. 1. For sodomy committed with a boy. That C. T>. of, &c, heretofore, to wit, on, &c., at aforesaid, in and upon one E. F., a male child about the age of fifteen, in the peace of said State then and there being, feloniously did make an assault, and then and there feloniously did commit the abominable and detestable crime against nature, by having a venereal affair with the said E. F., and by then and there having carnal knowledge of the body of him the said E. F., against the order of nature ; against the peace, &c. XIV. KIDNAPPING. 1. For taking and inveigling a minor child with intent to cause him to be sent out of the State. That C. D. of, &c, heretofore to wit, on the day of, &c, now last past at aforesaid, unlawfully, fraudulently and wickedly, and without any lawful warrant or authority whatever, did take, obtain and inveigle into his custody and possession one E. F. of said , a minor child under the age of twenty-one years, and son of G. F. of said , a free citizen of said State, with intent to transport and send, and to cause to be transported and sent, the body and person of FORMS IN CRIMINAL PROCEEDINGS. 355 him the said E. F. from and out of said State, without the consent and against the will of the said E. P. and of his father the said G. R, against the peace of the said State, &c. 2. For kidnapping a minor child with intent to cause him to be sent out of the State and sold as a slave. That C. D. of, &c. heretofore, to wit, on the day of now last past, at aforesaid, unlawfully, fraudulently and wickedly, and without any lawful warrant or authority whatever, did seize, take, steal and kidnap one E. F. of said , the minor child of one Gr. F. of said , a free citizen of said State, with intent the said E. F. to send and transport, and to cause and procure the said E. F. to be sent and transported from and out of said State, without the consent of the said E. F. and against his will, and against the will and without the consent of the said Gr. F., the said father of the said E. F., and with, intent, also, against the will of the said E. F. and of his said father, the said G. F., to sell and transfer the said E. F. as a slave ; against the peace of said State, &c. XV. MAYHEM. For cutting off the ear of a person with a knife. That C. D. of, &c, heretofore, to wit, on, &c, with force and arms at , aforesaid, in and upon the said A. B., in the peace of said State then and there being, with malicious intent to maim and disfigure the said A. B., did make assault,. and that the said C. D., with a cer- tain Spanish knife of the value of fifty cents, which he the said C. D. in his right hand then and there had and held, the left ear of him the said A. B. did then and there cut and tear off, with set purpose and aforethought malice, and with malicious intention the said A. B. by so doing in manner as aforesaid, to maim and disfigure; against the peace, m and upon one E. F., in the peace of the said btate then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault;* and that the said C. D. a certain pistol, of the value of two dollars, then and there charged with gun powder and one leaden bullet, which said pistol he the said C D in 356 JUSTICE OF THE PEACE. his right hand then and there had and held, then and there feloniously, ■wilfully, and of his malice aforethought, did discharge and shoot off, to, against and upon the said E. P., and that the said C. D. with the leaden bullet aforesaid, out of the pistol aforesaid, then and there by the force of the gunpowder aforesaid, by the said C. D. discharged and shot off as aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound the said E. F., in and upon the right side of the belly of him the said E. E., near the right hip of him the said E. F., giving to him the said E. F. then and there with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said E. F. in and upon the right side of the belly of him the said E. F., near the said right hip of him the said E. F, one mortal wound, of the depth of four inches, and of the breadth of half an inch ;f of which said mortal wound, he the said E. F, then and there instantly died. And so the said A. B. upon his oath aforesaid complains and says, that the said C. D., him the said E. F., in the manner and by the means afore- said, feloniously, wilfully, and of his malice aforethought, did kill and murder , against the peace of said State, and contrary to the form of the statute in such case made and provided. 2. The like offence where the party did not die immediately, under the same section. [As before to |] of which said mortal wound the said A. B. on and from the said, &c. until, &c. at aforesaid, did languish, and lan- guishing did live, on which said, &c. about the hour of nine o'clock in the morning, he the said A. B., at aforesaid, of the mortal wound aforesaid, died. And so, &c. [as before.] 3. For murder by stabbing with a knife, under the same section. [As in No. 1, to *] And that the said C. D., with a certain knife, of the value of twenty cents, which he the said CD. in his right hand then there had and held, the said E. F. in and upon the left side of the body, and between the ribs of him the said E. F., then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said E. F. then and there with the knife afore- said, in and upon the aforesaid left side of the body, between the ribs of him the said E. F., one mortal wound, of the breadth of three inches, and of the depth of six inches, of which said mortal wound, he the said E. F. then and there instantly died. And so the said A. B. upon his oath aforesaid complains and says, that the said C. D. him the said E. F, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the peace of said State, and contrary to the form of the statute in such case made and provided. FORMS IN CRIMINAL PROCEEDINGS. 357 4. For murder by cutting the throat, under the same section. [As in No. 1 to *] And that the said C. D., with a certain case- knife, made of steel and iron, of the value of ten cents, which he the said C. D., in his right hand, then and there had and held, the throat of him the said E. F., feloniously, wilfully, and of his malice afore- thought, did strike and cut ; and that he the said C. D., with the case- knife aforesaid, by the striking and cutting aforesaid, did then and there give to him the said E. F., in and upon the said throat of him the said E. F., one mortal wound, of the length of three inches, and of the depth of two inches ; of which said mortal wound, he the said E. E. from the said day of to the day of afore- said, at aforesaid, did languish, and languishing did live ; on which said day of aforesaid, in the year aforesaid, at aforesaid, in the county aforesaid, he the said E. F. of the said mortal wound died. And so the said A. B., upon his oath aforesaid com- plains and says, that the said C. D. him the said E. F. in manner and form aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder ; against the- peace of said State, and contrary to the form of the statute in such case made and provided. 5. For murder by a man striking his wife ivith a poke); under the same section. [As in No. 1 to *] And that the said C. D. with a certain iron poker of the value of one shilling, which he, the said C. D., then and there had and held in both his hands, her the said M. D. in and upon the left side of the head, near the left temple of her the said M. D., then and there feloniously, wilfully, and of his malice aforethought,' did hit and strike, and that the said C. D. did then and there give unto her the said M. D. by such striking of her with the poker afore- said, one mortal wound, of the length of two inches, and of the depth of one inch, in and upon the said left side of the head, near the temple of her the said M. D., of which said mortal wound she, the saidM. D. then and there instantly died. And so, &c [As before.] 6. For murder by beating with the hands about the head and temples, under the same section. [As in No. 1 to *] And that the said C. D., with both his hands, him the said A. B. did then and there in and upon the head and left temple of him the said A. B. feloniously, wilfully, and of his malice aforethought, strike and beat; and that the said C. D. by the striking and beating aforesaid, did then and there feloniously, wilfully, and of his malice aforethought, give unto him the said A. B. one mortal bruise in and upon the said left temple of him the said A. B. of the length of 358 JUSTICE OF THE PEACE. two inches, and of the breadth of two inches, of which said mortal bruise he the said A. B. then and there instantly died. And so, &c. [As before.] 7. For murder by choking and strangling, under the same section. [As in No. 1 to *] And that the said C. D., with both his hands, about the neck and throat of her the said E. F. then and there feloni- ously, wilfully, and of his malice aforethought, did fix and fasten ; and that he the said C. D. with both his hands so as aforesaid fixed and fastened about the neck and throat of her the said E. F., her the said E. F. then and there feloniously, wilfully, and of his malice afore- thought, did choke and strangle ; of which said choking and strang- ling, she the said E. F. then and there instantly died, &c. [As before.] 8. For murder by strangling with a handkerchief, under the same section. [As in No. 1 to *] And that the said C. D. with a handkerchief, of the value of twenty cents, about the neck of him the said E. F. then and there feloniously, wilfully, and of his malice aforethought, did put, fasten, and bind; and that the said C. D., with the said handkerchief about the neck of him the said E. F. then as aforesaid put, fastened, and bound, him the said E. F., then and there, feloniously, wilfully, and of his malice aforethought, did choke and strangle ; of which chok- ing and strangling, the said E. F. then and there instantly died, . ; against the peace of the said State, and contrary to the form of the statute in such case made and provided. APPENDIX. We have deemed it useful to append to this volume a few forms, such as justices of the peace may occasionally find it convenient to refer to. I. ASSIGNMENTS. 1. General form for an assignment not under seal. For value received, I hereby assign the within, &c. to C. D. A. B. 2. General form for an assignment under seal. Know all men by these presents, that I, the within named A. B., in consideration of one dollar to me paid by CD. the receipt of which is acknowledged, do hereby assign to said C. D. the within written instrument, and all my interest in the covenants and agreements there- in contained, hereby authorizing the said 0. D. in my name, but to his own use, to do every thing necessary to his complete enjoyment of the premises. In witness, &c. 3. Assignment of a mortgage, upon the back of the mortgage. Know all men by these presents, that I, A. B., the within named mortgagee, in consideration of five hundred dollars to me paid by C. D., the receipt of which is acknowledged, do hereby give, grant, sell, assign, and convey to the said C. D., his heirs and assigns, the within mortgage deed, the debt thereby secured, and all my right, title and interest in the premises therein described, under and by virtue of the same. To have and to hold the same to said C. D., his heirs and assigns, to his and their use.* In witness whereof, I have hereunto set my hand and seal, &c. Signed, sealed, &c. A. B. [l. s.] This should be acknowledged. Sometimes if is well to insert after the * the following covenant : 47 370 JUSTICE OF THE PEACE. "And I do covenant with said C. D., his heirs and assigns, that there is now due and unpaid on said mortgage debt the sum of five hundred doll^f^nd that I have good right to make this conveyance." 4. Assignment of a patent right, within one State. Know all men by these presents, that I, A. B., in consideration of five dollars, to me paid by C. D., the receipt of which is acknowledged, do hereby grant, sell, assign, transfer and convey to said C. D. the exclusive right, under letters patent dated Jan. 1st, 1847, of making, using, and vending to others to be made, used and sold, [here insert the title of the patented improvement or invention] within the State of Maine, and not elsewhere. To have and to hold the same to said C. D., his executors, administrators and assigns, for and during the con- tinuance of said patent. And I do covenant with said C. D., that I have good right to make this conveyance. In witness, &c. Signed, sealed, &c. A. B. [l. s.] To be acknowledged. II. BILLS OP SALE. 1. A bill of sale under seal. Know all men by these presents, that I, A. B. in consideration of one dollar to me paid by C. D., the receipt of which is acknowledged, do hereby grant, sell, assign and convey to said C. D. the following personal property, to wit, &c. To have and to hold to said C. D., his executors, administrators and assigns forever. In witness, &c. Signed, &c. A. B. [l. s.] 2. A bill of sale by two merchants, partners, to a third, of their whole interest in a store. [Insert in the above form the following description,] " AH the stock in trade, goods, wares, merchandize, book-accounte, notes, bills, drafts, choses-in-action, and other property of said firm." III. BONDS. 1. Common form for a bond. Know" all men by these presents, that I, A. B., am held and firmly bound untd C. D., in the full and just sum of one hundred dollars, to be paid unto the said CD., his executors, administrators or assigns, [on demand ;] for which payment well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these pres- ents. In witness whereof, I have hereunto set my hand and seal this day of , A .D. . Signed, &c. A. B. [l. s.] APPENDIX. 371 A bond is the method usually selected for binding parties to the future performance of a present agreement, and is, as often as other- wise, the most convenient mode of so doing. When the obligor signs a bond for this purpose, a condition is attached. Without the condi- tion, the above is only an obligation for the payment of a given sum of money, as is a note of hand a promise to the same effect. The condi- tion of a bond follows immediately after the obligation and before the signature, for the purpose of setting forth some matters upon the hap- pening of which the bond is to be void, and is commonly introduced by the words, " The condition of this obligation is such that." The condition should commence by reciting every thing necessary to make the matter of avoidance plain and intelligible on the face of the papers, introduced by the word, ' ' Whereas. ' ' The matter of avoidance follows, introduced by the words " now, therefore, if the said A. B. shall, &c. then this obligation shall be void ; otherwise shall remain in full force and virtue." A form for a bond of indemnity is given, as illustrative of these remarks : 2. Condition of a bond of indemnity for paying a lost note. The condition of this obligation is such, that, whereas the said C. D. on the fourteenth day of December last, by his note in writing, by him signed, of that date, for value received, promised the said A. B. to pay him or his order the sum of three hundred dollars in three months from date ; and, whereas the said note is alleged to be lost and mislaid, and cannot be found, but the said C. D. hath nevertheless paid the said sum according to the tenor thereof : Now, therefore, if the said A. B. shall save the said C. D., his executors, administrators, and assigns forever harmless, for having so paid said sum of money, and from all liability under and by virtue of said note, and from all loss, cost, trouble, and expense in any way therefrom arising, then this .obligation shall be void ; otherwise shall remain in full force and virtue. IV. DEEDS AND MORTGAGES. 1. Common warrantee deed. Know all men by these presents, that I, A. B. of Portland, in the county of Cumberland, and State of Maine, Esq., in consideration of one hundred dollars to me paid by C. D. of Portland aforesaid, trader, the receipt of which is acknowledged, do give, grant, sell and convey to the said C. D. his heirs and assigns, a certain tract of land, &c. [Description.] 372 JUSTICE OF THE PEACE. To have and to hold the afbregranted premises to the said CD., his heirs and assigns, to his and their sole use and behoof forever. And I do for, myself, my heirs, executors and administrators, cove- nant with the said C. D., his heirs and assigns, that I am lawfully seized in fee of the aforegranted premises : that they are free of all incumbrances ; that I have good right to sell and convey the same to aaid CD.; and that I will warrant and defend the same premises to said C D., his heirs and assigns, forever, against the lawful claims and demands of all persons. In witness whereof, I have hereunto set my hand and seal this day of in the year, &c. A. B. [l. s.] Signed, sealed and delivered in presence of 2. Common quit-claim deed. Know all men by these presents, that I, A. B. &c. in consideration, &c. do hereby grant, sell, and quit-claim to said C D., his heirs, &c. all my right, title and interest in and to [here describe the premises.] To have, &c. And I do covenant with said C D., his heirs and assigns, to warrant and defend said premises against the lawful claims and demands of all persons claiming by or under me. In witness, &c. 3. Release of dower. Where there is dower, the deed may conclude as follows : "In witness whereof, we, the said A. B. and Sarah, wife of the said A. B., for the consideration aforesaid, and in token of her relin- quishment of all right of dower in the premises, have hereunto set our hands and seals, &c. 4. Deed of land of husband and wife, in right of wife. Know all men by these presents, that we A. B. of, &c. and 0. D., wife of said A. B., in her right, in consideration, &c. [as in the other forms, with covenant that both are seized.] 5. Form of an administrator's deed. Know all men by these presents, that I, A. B, of , in the county of , in the State of , administrator of the goods and estate, which were of 0. D., late of , deceased, intestate, having, by an order of the court, held at , within and for said coun- ty of , on the day of , 18 — , obtained license to make sale of so much of the real estate of said deceased, as would produce the sum of dollars, for the payment of his debts and incidental APPENDIX. , 373 charges of sale ; [or, the whole of the real estate of said deceased, because a partial sale thereof, would greatly injure the residue ;] and in pursuance of said license, gave notice that said real estate would be offered for sale, at public vendue, on the day of , [which said sale was adjourned from said day to the present day, if so;] and on this day, at , the following described real estate [here describe the estate sold] was offered for sale, and was then and there struck off to E. F., of P., in said county, for the sum of dollars, he being the highest bidder therefor. Now, therefore, know ye, that I, the said A. B., by virtue of the power and authority in me vested as afore- said, and in consideration of the aforesaid sum of dollars, to me paid by the said E. F., the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to said E. F., his heirs and assigns, the above described land, with all the privileges and appurte- nances to the same belonging. To have and to hold the same, to him, the said E. F., and his heirs and assigns forever. And I, the said A. B., for myself, and my heirs, executors, and administrators, do hereby covenant with the said E. F., his heirs and assigns, that I am the legal administrator of said estate ; and I have conformed to all the require- ments of the law, in obtaining license, and making sale as aforesaid, and that I have good right and lawful authority to sell and convey said lands, as aforesaid. In witness whereof, I, the said A. B., have hereunto set my hand and seal, this day of , A. D. 18 — . [The date should be the day of sale.] Signed, sealed and delivered, ) A. B. [l. s.] in presence of . ) Administrators should preserve all the evidence of having advertis- ed and sold the estate. 6. Deed to a married (f^man. The deed should run to E. B., wife of A. B. of, &c. The habendum to be in the following, form : To have and to hold the afore-granted premises to the said E. B., her heirs and assigns, without the intervention of a trustee, to her and their sole and separate use forever, free from the interference or con- trol of her husband. 7. Forms for mortgages. i A form is usually made in the like form with a warranty deed, with a condition of defeasance inserted immediately after the covenants, and before the in testimonium, and release of dower, if dower be released. The usual form of this condition.is as follows : 374 JUSTICE OF THE PEACE. 3. Common condition to a mortgage. Provided, nevertheless, if the said C. D., his heirs, executors or administrators, shall pay to the said A. B. his heirs, executors, admin- istrators or assigns, the sum of [five hundred dollars on demand, with interest semi-annually,] then this deed as also a certain note bearing even date with these presents, given by the said C. D. to the said A. B. to pay the same sum at the time and with interest as aforesaid, shall both be void : otherwise shall remain in full force and virtue. If the mortgagor is to remain in possession till condition broken, the following may be added : ' ' And it is agreed the mortgagor, his heirs and assigns, may remain in possession till condition be broken." Be- sides this condition, there are others which are often inserted, as follows : 9. Condition for insurance, in a mortgage. [Before the word " then" insert :] " And shall also pay all sums that said A. B., his heirs, executors or administrators may expend for insuring the buildings on said premises for his or their benefit." 10. Condition of indemnity for indorsing. Shall indemnify and save harmless the said A. B., his executors, administrators or assigns, for the said A. B.'s having this day at his request endorsed a note of five hundred dollars of this date, and for his signing or endorsing all notes that he may hereafter sign or endorse for him, and from all loss, cost, trouble, or expense, from any liability he may hereafter incur or be under as surety, acceptor, or endorser for him, and from any claim against him as such surety, acceptor, or endorser, to an amountApt to exceed two thousand dollars at any one time, then this deed, &c. No note need be given where the condition is in this form. i 11. CondUie^t, for general indemnity. Shall pay to the said A. B., his executors, &c. all sums that are or may become due to him or them, from the said C. D. on account, note, draft, or otherwise, and shall indemnify and save him and them from any and all acceptances, endorsements or other liabilities made or incurred by him, for or on account of said C. D., and for all overdrafts made by said C. D., or advances made by said A. B., not exceeding at any one time six thousand dollars, and from all loss, cost, trouble or expense in the premises, and repay all such advances ; then this deed, &c. . As in the last, so here, no note is. necessary. APPENDIX. 375 12. Form for a mortgage of personal properly. Know all men by these presents, that I, A. B. of, &c. in considera- tion of fifty dollars paid to me by 0. D. of, &c. the receipt whereof I do hereby acknowledge, do hereby grant, bargain, sell, and convey unto the said C. D. the following personal property, to wit : To have and to hold the property afore-granted, to the said C. D., his execu- tors, administrators, and assigns, forever. And I do, for myself, my executors and administrators, covenant with the said C. D., his execu- tors, administrators, and assigns, that I have good right to sell and convey the said property to the said CD.; and that I will warrant and defend the same to the said C. D., his executors, administrators, and assigns, forever,, against the lawful claims and demands of all persons. Provided, nevertheless, that if the said A. B., his executors or administrators, pay to the said C. D., his executors, administrators, or assigns, the sum of fifty dollars in two months from date, then this deed, as also a certain note bearing even date with these presents, giv- en by the said A. B. to the said C. D., to pay the same sum with interest, and at the time aforesaid, shall both be void ; otherwise shall remain in fall force and virtue. And it is agreed that the mortgagor, ■his executors, administrators and assigns, shall remain in possession of said property till condition broken. In witness whereof, I, the said A. B., have hereunto set my hand and seal this day of , in the year of our Lord one thousand eight hundred and fifty . A. B. [l. s,1 Signed, sealed and delivered, ) in presence of us. ) v. LEASES. A lease is usually made by indenture of two parts, executed by both parties, each party retaining one part. The following is the most common form of lease, the covenants it contains being almost always inserted : This indenture, made this day of , in the year of our Lord one thousand eight hundred and fifty , by and between of '- -, fa the county of , and -State of Maine, of the one part, a*id of , in the of- of the other part, witness- eth, that the said doth hereby lease, demise, and let unto the said : Ae following described estate, situate, &c. To hold for the term of years from the , the said lessee yielding and paying therefor at the rate of . And the said lessor doth promise that, while the lessee and his representatives pay the rent and perform the -"• ~' covenants herein named, they shall peaceably hold and enjoy said pre~g?" mises. And the said lessee doth promise to pay the said rent at the''' time aforesaid; and to quit and deliver up the premises to the lessor or 376 JUSTICE OF THE PEACE. his attorney, peaceably and quietly, at the end of the term, in as good order and condition (reasonable use and wearing thereof, accidents by fire, and other injuries not happening through the fault or neglect of the lessee, excepted) as the same now are, or may be put into by the lessor ; and not make or suffer any waste thereof, assign, under-let, or make alterations, without the consent of the lessor ; and that the lessor may enter to make improvements, and to expel the lessee if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. Signed, sealed and delivered, ) [l. S.] in presence of \ [l. s.] If the lessor is to pay the taxes, a covenant to that effect should he inserted among the agreements on his part. If the lessee, the like among his. The parties oftentimes wish to make a lease which shall renew itself. This may he done by inserting just before the words, " the said lessee yielding, &c." the following words — "and if, at the ex- piration of the term aforesaid, neither of the parties to this indenture shall have given to the other previous notice of an intention not to renew the said lease, the same shall be considered as renewed for a further term of one year ; and the said lease shall in the same manner be renewed from year to year, upon the same terms and conditions ; and the covenants therein shall remain in full force, until sueh notice shall be given by one of said parties, three months previous to the expiration of the year, of his intention not again to renew the lease aforesaid." VI. LETTER OF ATTORNEY. 1. General form. Know all men by these presents, that I, A. B. do hereby make, constitute and appoint 0. D. my true and lawful attorney, for me and in my name to [the matter of appointment .] And hereby rati- fying whatsoever my said attorney may lawfully do in the premises, I have hereunto set my hand and seal this day of A. D. 2. Letter of attorney to discharge a mortgage of quit-claim. To release and discharge certain lands or any part thereof conveyed to me by E. F. by his deed thereof, dated , upon payment being APPENDIX. 37T made or other satisfactory security given in lieu thereof, and to that end to make, execute, acknowledge and deliver any deed or deeds, and any other papers that may be necessary for that purpose. 3. Letter of attorney to execute leases generally, and receive rents. To sign, seal and interchange to and with any persons with whom said C. D. may contract, and for and upon such terms as said C. D. may agree, leases of the whole or any part of the following land, to wit : &c. hereby authorizing my said attorney to receive the rents which may become due on said leases, and to receipt for the same in my name, he accounting to me therefor. VIII. NOTICES. 1. Notice by landlord to tenant at will to quit, under the pro- visisms of R. S. ch.-95, § 19. To A. ,B/ For the purpose of determining your tenancy in the estate on Street, in , occupied by you, you are notified to quit the same forthwith. 2. A like notice, in case of neglect to pay rent, under the pro- visions of the same section. To A. B. You are hereby notified to quit the premises in Street, in ,. belonging to me, and occupied by you, as you have neglected to pay the rent due for the same. 3. A notice to a tenant, under a written lease, to quit, for non- payment of rent. To A. B. You are hereby notified to quit the premises belonging to me, occupied by you under a lease, dated, &c, as you have neg- lected to pay the rent due, according to the terms of said lease. C. D. 4. Notice of tenant to landlord of an intention to determine a lease. To C. D. In pursuance of a power contained in the indenture of lease executed by you to me, dated , I notify you of my intention to determine the same on , and I shall then deliver up to you possession of the demised premises. A. B. IX. RELEASE. Know all men by these presents, that we, who have hereunto set our hands and seals, creditors of A. B. of . in the county of 48 ' 378 JUSTICE OF THE PEACE. yeoman, in consideration that the said A. B. is indebted to us, his said creditors, in several sums of money which he is not able to pay in full, and to discharge and satisfy, have agreed, and do hereby agree to accept in full payment and satisfaction of all the debts owing to us respec- tively at the date hereof, the sum of fifty cents on the dollar of the amount of our respective debts ; and in consideration of the receipt of the foregoing sum of fifty cents on each dollar of the debts due to us respectively, each of us, the saidTcreditors, who have hereunto set our hands and seals, doth for himself, his heirs, executors and copartners, remise, release, and forever discharge by these presents, the said A. B., his heirs, executors, and administrators, of and from our said several debts, and of all manner or cause of action against said A. B., which each and every one of us, our heirs, executors or administrators, may, can, or ought to have by reason of our said several debts, or by reason of any other matter whatsoever. And we do respectively, for our- selves, our executors, administrators and assigns, covenant with said A. B., his executors, administrators and assigns, that we will not sue him or them, on or for any debts or claims which we, or any of us, here- tofore have had, or now have, against said A. B. Dated at , April 17th, 1851. [l. s.] x. WILLS. 1. Commencement of wills. Be it remembered that I, A. B. of, &c. being of sound and dispos- ing mind, do make, publish and declare this my last will and testament. 2. Bequests and devises. These are arranged in order, under the heads, 1st, 2d, &c, thus : " First, I give and bequeath, &c." 3. Appointment of executor, and in testimonium. And I do hereby appoint C. D. of aforesaid, to be the sole executor of this my last will and testament, hereby revoking, annulling and declaring void all former wills by me at any time heretofore made. In witness whereof I have hereunto set my hand this day of, &c. 4. Attestation of wills. Signed, published and declared by the said A. B. as his last will and testament, in the presence of us, who in his presence and in the presence of each other, have hereunto set our names as witnesses. If the will be signed by a third person for the testator, the attesta- tion should be thus : APPENDIX. Signed by the said E. F. in our presence and in the presence of the said A. B. and by his express direction, and by the said A. B. at the same time published and declared as his last will and testament, in the presence of the said E. F., and of us, who each in the presence of the others, and of the said A. B. and of the said E. F., have hereunto set our hands as subscribing witnesses. XI. AGREEMENTS. 1. An Agreement for the Sale and Purchase of Land. Articles of ageement made and concluded this first day of January, A. D. 1851, at Portland, in the State of Maine, by and between A. B., of said Portland, trader, and C. D., of Scarborough, in the State of Maine, yeoman. First. The said A. B.. in consideration of the sum of dol- lars, to him paid by the said C. D., (the receipt whereof is hereby acknowledged,) and in further consideration of the promise of the said C. D. hereinafter contained, doth hereby promise and agree to and with the said C. D., that he will, on or before the first day of July next, make and deliver to the said C. D., a good and sufficient deed, with the usual covenants of warranty, release of dower, &c, of all that tract of land situate, lying, and being in the town of , in the county of , and State of , known as the , &c. [or boun- ded and described as follows: ] Second. In consideration whereof, the said C. D. doth hereby promise and agree to and with the said A. B., that he will, on such deed being tendered to him by the said A. B. on or before the said first day of July next, pay to the said A. B. the further sum of dol- lars, in addition to the payment already made, being the balance of the purchase money hereby agreed upon for the said tract of land. And to the true and faithful performance of all the agreements herein contained on the part of the said A. B. and C. D., each of them binds himself, his heirs, executors, and administrators, to the other and his heirs, executors, and administrators. In testimony whereof we have hereunto set our hands and seals, on the day and year first above written. A. B. Executed and delivered in presence of E.F. G. H. CD. 2. An agreement to be signed by an auctioneer, after a sale of land at auction. I hereby acknowledge that A. B. has been this day delared by me the highest bidder and purchaser of [describe the land] at the sum of 380 JUSTICE OF THE PEACE. dollars, [or at the sum of dollars cents per acre, or foot] and that he has paid into my hands the sum of , as a depos- it and in part payment of the purchase money : and I hereby agree, that the vendor, CD., shall in all respects fulfil the conditions of sale hereto annexed. Witness my hand, at , on the day of ; A. D. 1851. J. S., Auctioneer. 3. An agreement to be signed by the purchaser of lands at auc- tion. I hereby acknowledge, that I have this day purchased at public auction all that [describe the land] for the sum of dollars, [or for the price of dollars cents per acre, or per foot] and have paid into the hands of J. S., the auctioneer, the sum of , as a deposit, and in part payment of the said purchase money ; and I hereby agree to pay the remaining sum of unto C. D., the ven- dor, at , on or before the day of , and in all other respects on my part to fulfil the annexed conditions of sale. Witness my hand, this day of , A. D. 1851. A. B. each to 4. An agreement between several to purchase an estate, e pay his proportion of the purchase money, charges, 6ft Whereas it has been and is hereby agreed, that we, A. B., of , merchant, and C. D., of , yeoman, and E. F., of , house- wright, or some one of us on behalf of all, shall purchase that tract of land, situate, lying, and being in , bounded and described as fol- lows, to wit, [here describe the land] now owned and occupied by , of ; now, we severally agree, that if any one or more of us shall purchase the said land, that each of us will pay a proportion, to wit. one third, of the purchase money, and that all charges and expenses relating thereto shall be borne by us in equal proportions, and that such purchase shall be to us as tenants in common [or as joint tenants] of the said land ; provided, that the purchase money of the said land do not exceed dollars, and provided also, that if either one or two of us do not pay his or their said proportion thereof, when demanded or required so to do in writing by the other or others, then it shall be lawful for either or both of the others to pay the same, and to take and hold the share or shares of the said party or parties not paying, to him- self or themselves alone. Witness our hands, this day of . A. D. 1851. 5. An Agreement in Articles of Purchase, as to the time of receiving Possession. And it is agreed between the said parties, that the said A. B. shall be let into possession of the premises on or before the day of APPENDIX. 381 next ; but that all arrears of rent and other profits arising from the said premises, which shall at that time be due or payable, shall belong to the said C. D., his heirs or assigns, and that he and they shall have full liberty to receive the same. 6. Agreement for the sale of goods, fyc, as they shall be appraised. Articles of agreement made between A. B., of- , and C. D., of , &c. It is hereby agreed by the said parties, that all and singular the household goods, furniture, and utensils, which are the property of A. B., and contained in and belonging to the dwelling-house now in the occupation of the said A. B., [or contained in the schedule hereunto annexed,] shall, at the joint and equal charge of the said parties, be appraised by E. F. and Gr. H., on or before the day of , when the said E. E. and Gr. H. shall, in writing by them signed, give in their appraisement to the said parties; and, in case the said apprai- sers shall differ in such valuation, then they shall choose a third indif- ferent person as an umpire, to determine the same, whose valuation of the said goods, within three days after his election, shall be conclusive, if signed and given or tendered to the said parties, or either of them. And the said A. B. doth covenant with the said C. D. that, immedi- ately after such valuation, made by the said E. F. and G. H., or by such umpire as aforesaid, he, the said A. B., will make an absolute bill of sale, and give possession of all the said goods, furniture, and utensils, unto the said C. D., at the price the same shall be appraised at as aforesaid. And the said C. D. doth hereby covenant with the said A. B., that he the said 0. D. will accept the said goods, at the said price, and, at the time of executing such bill of sale, and delivering possession of the said goods, furniture, and utensils, by the said A. B. will then pay to the said A. B. the sum of money for which the same shall be appraised as aforesaid. In witness whereof, we have hereunto set our hands and seals, this day of , A. D. 1851. 1. An Agreement to build a house according to apian annexed. Be it remembered, that on this day of , A. D. 1851, it is agreed by and between A. B. of , and C. D. of , in man- ner and form following, viz. The said C. D., for the considerations hereinafter mentioned, doth for himself, his executors and administrators, promise and agree to and with the said A. B., his executors, administrators, and assigns, that he, the said C. D., or his assigns, shall and will, within the space of next after the date hereof, in good and workmanlike manner and according to the best of his art and skill, at well and substan- 382 JUSTICE OF THE PEACE. tially erect, build, set up. and finish one house or messuage, according to the draught or scheme hereunto annexed, of the dimensions follow- ing, viz., &c, and to compose the same with such stone, brick, timber, and other materials as the said A. B. or his assigns shall find and provide for the same. In consideration whereof, the said A. B. doth for himself, his executors and administrators, promise and agree to and with the said C. D., his executors, administrators, and assigns, well and truly to pay or cause to be paid, unto the said C. D. or his assigns, the sum of in manner following, that is to say, the sum of , part thereof, at the beginning of the said work ; the sum of , more, another part thereof, when the same shall be completely finished; and also that he the said A. B., his executors, administra- tors, or assigns, shall and will, at his and their own proper expense, find and provide all the stone, brick, tile, timber, and other materials necessary for making and building the said house. And for the per- formance of all and every the articles and agreements above mentioned, the said A. B. and C. D. do hereby bind themselves, their executors, &c, each to the other, in the penal sum of , firmly by these presents. In witness whereof, &c Executed and delivered in presence of A. B. CD. 8. An agreement between a master shipwright and his work- men for building a new ship, fyc. Articles of agreement made between H. C, of, &c, and R. S., of &c, and W. M., of, &c, of the one part, and J. S., of, &c, of the other part. Whereas the said J. S. hath contracted with T. C, of, &c, for building the hull of a new ship, of the dimensions contained in their articles of agreement,