Page images

Sometimes used in the sense of conformity with human law.1 a presumption in us even directly to city charter that no error or informality gainsay these great authorities, if we in the proceedings of any officers endid not feel sure that they did not use trusted with the same (that is, levying these expressions in a scholastic sense, and collecting taxes), not affecting the but only in that loose and general sense substantial justice of the tax itselt. in which strong language is often used shall vitiate or in any way affect the to affirm the existence of any highly validity of the tax or assessment” will important general rule of very extensive not save the tax, where the contract, in application. We feel, therefore, in payment of which it is imposed, has what we shall say on this point, that been let out without such proposals as there is more of vindication from would enable bids to be made for it heretical inference from these general Wells z'. Burnham, 20 Wis. 112. expressions than of assault, even covert 1. Fleeing from Justice-Fugitive upon these great names.” The court, from Justice.-For examples of the therefore, held upon this reason that the secondary meaning of these words, law of notice before judicial sentence the above phrase may be cited, as used was not such a law of nature, as ex- in the constitution of the United States pressed by the term natural just ce, as and kindred statutes of various States. would make a human law nonobliga- For their meaning see ExTRADITION, tory that would circumscribe the sphere 7 Am. & Eng. Encyc. of Law 645, and of its operation. Borden v. State, 6 the cases there cited. See also United Eng. (Ark.) 519, 528.

States v. O'Brien, 3 Dillon (U.S.) 381; In the wider sense this word was United States v. Smith, 4 Day (Conn.) used by JUDGE MCLEAN in charging 121; State 2. Washburn, 48 No. 240. the grand jury upon the recent military Hands of Justice.-In construing the expedition organized in the United provision of a life policy of insurance States against the island of Cuba, when that it should be void if the assured after citing the act of congress of the "shall die by his own hand," the court 20th of April, 1818, entitled "an act for held that the self destruction of the inthe punishment of certain crimes,” he sured while insane and incapable of said: “In passing the above law, con- discerning between right and wrong gress has performed a high national was not within the provision, WILduty. A nation, by the laws of nations, LARD, J., saying: “It is material to deis considered a moral being, and the termine, in the first place, what is principle which imposes moral re- meant by the term death by his own straints on the conduct of an individual hand, which is to avoid the policy. If applies with greater force to the actions the words are construed according to of a nation. *Justice,' says Vattel, 'is the letter, an accidental death occathe basis of society, the sure bond of sioned by the instrumentality of the all commerce. Human society, far hand of the insured would fall within from being an intercourse of assistance the exception. Thus, should the in: and good offices, would be no longer sured by mistake swallow poison and anything but a vast scene of robbery, if thereby terminate his life, his

, reprethere were no respect to this virtue, sentatives could not recover the policy, which secures to everyone his own.' It if the poison was conveyed to his is still more necessary between nations mouth by his own hand. The same than between individuals, because in- rule of construction applied to the justice produces more dreadful conse- words death by the hands of justice, in quences in the quarrels of these power- the same connection, would take the ful bodies politic, and it is still more case out of the exception, if the death difficult to obtain redress.” 5 McLean was occasioned by strangulation by a (U. S.) 306.

rope instead of the hands of the minisIn this sense also was the decision ter of justice.

ter of justice. But it is too plain for that where street commissioners of a argument that the literal meaning is city are required by law to let contracts not the true meaning of either phrase. for city improvements to the lowest Death by the hands of justice is a well bidder, a violation of that provision is known phrase, denoting an execution, to be regarded prima facie at least as either public or private, of a person "affecting the substantial justice of the convicted of crime, in any form allowed tax levied to pay for such an improve- by law. The moral guilt of the party ment, and therefore a provision in the executed has nothing to do with the definition. Socrates, though he took the meaning of any particular word is the poison from his own hand, died by doubtful or obscure, or when the exthe hands of justice, in this sense of the pression, taken singly, is inoperative, term. It would be an abuse of language the intention of the parties using it may to charge him with an act of inten- frequently be ascertained and carried tional self destruction. The martyrs into effect by looking at the adjoining who perished at the stake in like man- words, or at expressions occurring in ner "died by the hands of justice.” In other parts of the same instrument, for popular language the term death by his quae non valeant singula juncta jatant. ozi'n hand means the same as suicide, Bacon's Works, vol. 4, p. 26; 2 Buls.; or felo de se. The first two, indeed, Moore's Maxims 293. Besides, the are not technical terms, and may be words in this case are those of the inused in a sense excluding the idea of surer, and if susceptible of two meancriminality. The connection in which ings, should be taken strongly against they are used in this policy indicates him." Breasted 7. Fariners' Loan & that the phrase death by his own hand Trust Co., 4 Selden (N. Y.) 292. meant an act of criminal self destruc- Offences against public justice form tion. Provisos declaring the policy to the subject of ch. 10 of 4 Blackstone's be void in case the assured commit Commentaries. They are: embezzling suicide or die by his own hand are or vacating records, or falsifying cerused indiscriminately as expressing the tain other proceedings in a court of same idea. In the note to Borradale v. judicature; excessive duress of imprisHunter, 5 Man. & Gr. 648, are given onment by jailors, whereby to make the forms of the proviso, and by any prisoner accuse and turn evidence seventeen of the principal London in- against some other person; obstructing surance companies. In eight of them the execution of lawful process; escape, the exception is by death by suicide, which constitutes offence in the officer and in nine of a death by the assured's also, if through his negligence or conown hands.

In two a separate pro- nivance; breach of prison; rescue; revision is made in case of a death by turning from transportation (the law as suicide, not felo de se, and in the to transportation has, however, been others in case of a death by his own greatly modified); taking reward under hands not felo de se. It is obvious, pretence of helping owner to his stolen therefore, that the phrase death by his goods was punishable as the original own hand and death by suicide mean felony was punishable under 4 Geo. I, the same thing, and that both, unless ch. 11, whereby the notorious Jonathan qualified by some other expressions, Wild was hänged; receiving stolen import a criminal act of self destruc- goods; compounding prosecutions, for tion. The connection in which they which the guilty offender was, unstand in this policy favors this con- der 18 Eliz., ch. 5, not only to

ch. struction. The first four exceptions in forfeit £10, but to stand on the the policy are of acts innocent in pillory for two hours, and to be forthemselves, three of which become in- ever disabled to sue on any popular operative if the defendants give their or penal statute; conspiracy to indict, consent and have it endorsed on the which the ancient common law punpolicy. Then follow the last four ex- ished with the villainous judgment, viz, ceptions, viz, if he shall die by his loss of credit as jurors or witnesses, own hand, or in consequence of a forfeiture of goods and chattels and quel, or by the hands of justice, or in lands for life, to have those lands the known violation of any law. By wasted, houses razed, etc., and the ofthe acknowledged rule of construc- fenders themselves imprisoned; perjury tion, noscitur a sociis, the first member committed relative to litigation, though of the sentence, if there be any doubt in by statute legislative committees, etc., its meaning, should be controlled by have sometimes been vested with power the other members, which are entirely to administer oaths making the witunequivocal and should be construed to nesses liable under the perjury laws; mean a felonious killing of himself. bribery, for which Chief Justice Thorpe Broome's Maxims 450, 293. It is a note was hanged in the reign of Edw. III, laid down by LORD BACON that copu- the offence being especially heinous in latio verborum indicat acceptionem a judge; embracery; false verdict; negin eodem sensu; the coupling of words ligence of public officers; opprestogether shows that they are to be un- sion by magistrates; extortion by offiderstood in the same sense. And when cers.

ment, 439

cised, 404

JUSTICE OF THE PEACE—(See also COURTS; JUDGE ; JURISDICTION; PLEADING; PRACTICE ; TRIAL). I. Origin of Justices of the Peace, 5. Furisdiction of Property.439. 393.

(a) Attachment and GarnishII. Classes of Justices in England, 393

(6) Furisdiction by AppearIII. Manner of Selecting in the

(111C, 439. United States, 394.

(c) Change of Venue or Place IV. Qualifications, 395.

of Trial, 441. V. De Jure or De Facto Justices,

(d) Continuance or Adjourn396.

ment, 412. VI. Ex Officio Justices, 396.

(c) Pleading and Practice 445 VII. Bond of Justice, 397.

(1) Plaintiff's Pleading, VIII. Breach of the Bond, 397.

445 IX. Oath of Office, 399.

(2) Parties - How to be X. Jurisdiction of Justices Gen

Designated, 449. erally, 400.

(3) Defendant's Pleading, 1. Proceeding Without Furis


[454. diction, 400.

(f) Trial and Its Incidents, 2. Jurisdiction, How Lost, 402.

(1) Order of Trial, 456. 3. Furisdiction, Where Exer- .

(2) Evidence, 457.

(3) Burden of Proof, 457. XI. Criminal Jurisdiction, 405.

(4) Preponderance of 1. Misdemeanors, 406.

Evidence, 457 2. Trial and Its Incidents, 408.

(5) Arguments of Coun(a) When Trial Must Cease,

sel, 458. (6) Fudgment, 411.


(6) Right to Begin and (c) Execution, 412.

Reply, 458. (d) Habeas Corpus; Certio

(7) Fudgmenton Justices' rari, 412.

Findings, 458. (e) Appeal, 413.

(8) Taking Case Under XII. Provisional and Precautionary

Advisement, 458. Jurisdiction, 414.

(9) Rendering and EnterI. Arrests and Preliminary

ing Judgment, 459. Examinations, 414. [419.

(10) Fury-How Obtain(a) Waiver of Examination, (6) Mandamus to to Compel

(11) Who May Demand Examination, 419.

Fury, 462. (462. (c) Jeopardy, 419.

(12) Empanelling Fury, 2. Proceedings to keep the

(13) Fury Trial, 464. Peace, 419.

(14) Instructions to Fury, 3. Proceedings for Searches and

(15) Evidence, 464. (464. Seizures, 421.

(16) Arguments of Coun4. Proceedings in Bastardy,423.

sel to Fury, 465. 5. Apprehending Fugit i ves

(17) Verdict, 465. from Justice, 425.

(18) Fury's Failure to XIII. Civil Jurisdiction, 425.

Agree, 465. (466. 1. Jurisdiction of Subject Mat

(19) Fudgmenton V'erdict, ter, 426.

(20) Bill of Exceptions, 2. Amount in Controversy, 426.

467. (a) Offsets, Credits and Re

(21) New Trials, 467. mittitur, 428.

(22) Costs, 468. (6) Splitting Demand, 428.

(23) Fudgment, 468, (c) Interest and Cost, 429.

(24) Fudgment by Con3. Questioning Jurisdiction,429

fession, 470. 4. Furisdiction of Person, 431.

(25) Judgment by De(«) Issuance of Summons,431

fault, 470. (6) Alias and Furies, Writs,

(26) Alteration of Fudg436. [Sertice, 436.

ment, 472. (c) Waiver of Defects in

(27) Fudgment Exceeding (d) Arrest and Bail, 437.

Jurisdiction, 472. (e) Publication of Summons,

(28) Irregula rities in

Fudgment, 472.

ed, 459


tion, 474

(29) Abstract of Judgment

peal, 487. for Transfer. 473.

(17) No Appeal from7 udg(30) Iugment as a Lien

ment Confessed, 487. on Land, 174

(18) Dismissai of Appeal, (31) Renderin' Fudgment

488. a Judicial Act, 174.

(19) Trial de Noro in Ap(32) Entering Fudgment

pellate Court, 488. a Ministerial Act, 474

(k) Certiorari and Recor(33) Setting Aside Fudg

dari, 489. ment by Default, 474.

(1) New i'rial, 490. (34) Judgment Void for

(1) When Allowed, 490. Want of Jurisdic

(2) How Obtained, 491.

(m) Miscellaneous, 492. (35) Final udgment, 475.

(1) Replevin, 492. (36) Sunday Rule as to

(2) Forcible Entry and Fudgment, 475.

Detainer, 495. (g) Garnishment Proceed

(3) Trial of Right of ings, 475

Property, 498. (h) Stay of Execution, 476.

(4) Interpleader, 499. (1) How to Stay, 476.

(5) Equitable Jurisdic

5 (2) Foint Liability of

tion, 499. Debtor and Surety, 477

(6) Contempts, 500. (i) Execution, 477.

(7) Witnesses and Depo(1) Requisites, 477.

sitions, 501: (2) How Directed, 477.

(n) Fustice's Docket, 502. (3) Property Liable to

(1) Its Requisites, 502. Execution, 478.

(2) Necessity for Docket, (4) Fustice Must Issue

502. Execution, 478.

(3) Concl u siveness of (5) Proceedings and Re

Docket, 503

[503 turn, 478.

(4) Docket as Evidence, (j) Appeal, 479

(5) Construction of En(1) How Obtained, 479.

tries in Docket, 504. (2) Essentials of Appeal

(6) Docket Must Show Bond, 480. [481.

Furisdiction, 504. (3) Affidavit for Appeal,

(0) Justice's Transcript, 504. (4) Appeal in Forcible En

(1) What It Must Contry and Detainer, 482.

tain, 504 (5) Notice of Appeal, 482.

(2) Certification of Trans(6) Review of Attachment

script, 505. Proceedings on Ap

(3) Transcript as Evipeal, 482.

dence, 506. (7) Review of Garnish- XIV. Ex Officio Jurisdiction, 506. ment Proceedings on

1. As Coroner, 506. Appeal, 483.

2. To Hold County Court, 506. (8) Appeals from Fudg.. 3. Drawing Fury, 507.

ment by Default, 483. 4. Solemnizing Marriage, 507. (9) Limitation on Rights 5. Taking

Acknowledgments, of Appeal, 483.

507 (10) Appeals as Personal 6. Administering Oaths, 507. Privileges, 484.

xv. Personal Liability of Justice, (11) Computing Time for


(509. Appeal, 484.

XVI. Vacancy in Office of Justice, (12) Transcript of Pro

1. How

Vacancy Occasioned, ceedings, 484.

509. (13) Fudgment Vacated by 2. How Vacancy Filled, 511. Appeal, 486.

XVII. Forfeiture of Office, 512. (14) Appeal Waives De

1. Drunkenness, 512. fects in Justice's 2. Malfeasance in Office, 513. Court, 486.

3. Conviction of Felony. 513. (15) Operates as a General 4. Accepting Another Office, 513

Appearance, 487, XVIII. Constitutional Law, 514. (16) Irregularities in Ap

XIX. Costs, 514.

[ocr errors]


[ocr errors]

I. ORIGIN OF JUSTICES OF THE PEACE.—The office of justice of the

peace is of very ancient origin. Under the common law the power of the justice of the peace, except in minor misdemeanors, was merely preventive and provisional. At first, the justice was a conservator of the peace, without judicial powers, an officer to arrest offenders for breaches of the peace in his presence. But in the reign of Edward III, some judicial authority was given him. The justices were originally selected in full county court before the sheriff, but after the accession of Edward III they were appointed by the crown.3

II. CLASSES OF JUSTICES IN ENGLAND.—In the English system there were two grades of justices of the peace, “the simple justice and the justice of the quorum, the latter being one of those indicated in the commission as selected to compose the court of quarter session.”' 4 But, practically, this distinction amounted to little or nothing. The justices were to be of “the best repu

5 tation and most worthy men, 1. "Origin of Justices of the Peace - indeed, if we let the name of justice go

“ The office of justice of the peace is and seek for the substance of the office more ancient than the English Bible; of magistrate only, we may, perhaps, go and if we are to judge from the large back to the time of William the Conquernumber of works published concern- or, or even to the Roman age. It seems ing the duties connected with it, it has just, however, to consider the statute of been in England as honorable and im- Edward III, before referred to, as the portant an office as it is ancient. Like source of the office of justice in name, many other excellent institutions, its as there the officer is distinctly stated origin is associated with the history of to be a 'justice of the peace.” Honeya woman, whose conduct necessitated, man's Practice and Pleading (N. J.), if her influence did not directly pro- 99 1, 2; 1 Bl. Com. 349; 1 Edw. III, ch. duce, the creation of a new office. 16; 36 Edw. III, ch. 12; Dalton's When Queen Isabel, wife of Edward Inst. 6. II, succeeded in her extraordinary 2. Murfree's Justice Practice, $ 2;. 4 project of deposing her husband, and Bl. Com. 272; 5 Bac. Abr. 405; 2 Hale,

5 in transferring the crown to her son

P. C. 46. Edward III, the feeling of uneasiness 3. Msurfree's Justice Practice, § 1. among the people was increased and “The precise functions of a justice were public riots ensued. The old king was settled by the form of the king's comhurried from castle to castle, and this mission. This was enlarged from time irritated anew many subjects of the to time between the days of the Edrealm. There were already certain wards and those of Good Queen Bess' public officers whose express duty it until Sir CHRISTOPHER WRAY, Lord was to preserve the peace-sheriffs, Chief Justice, in 1590, directed the coroners, constables, tything men and form to be much as it is at present in others. But these were deemed in England. At this time the statute had sufficient, and parliament created a new already conferred so many additional office, that of conservator of the peace,' powers and had imposed so great a vasometimes also called 'warden,' or riety of obligations upon a justice, that 'keeper of the peace,' which, by a sub- commentaries became necessary

to sequent statute, was known as justice state and explain them. Even then it of the peace.'

was uncertain where the limits of their "Perhaps it is not strictly correct to powers were, as the books were not attribute the rise of this office to the agreed.” Honeyman's Practice and time of Edward III, inasmuch as Pleading (N. J.), § 5; 1 Bl. Com. 354. by statute of Edward I, tem- 4. Murfree's Justice Practice, § 2; I poral justices,' who were 'conserva- B1. Com. 352. tors of the peace, were to be ap

5. 1 Bl. Com. 352. pointed. But there were such officers 6. Honeyman's Practice (N. J.) 28; in substance even before that time; and 13 Rich. II, ch. 7.


« PreviousContinue »