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In general, the conditions of the official bond of the justice “include only and expressly ministerial acts, or else are expressed in very general terms.

IX. OATH OF OFFICE. —All judicial officers are required to take an oath before entering upon the discharge of their official duties, which oath is substantially, (1) to support the constitution of the United States; (2) to support the constitution of the State in which they are elected ; (3) faithfully and impartially to perform all the duties of the office to which they are elected or ap


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act ministerially also, as for example not sealed, or is not in statutory form, in appointing an officer, and otherwise or that the sureties have not been apempowered by law to act ministerially, proved. Skellinger 7. Yendes, 12 as in acknowledging a deed, or solemn- Wend. (N. Y.) 306; McCracken i'. izing a marriage. Wells on Juris- Todd, i Kan. 148. diction, p. 3, § 5.

A justice receiving money officially In North Carolina, it is held that on a judgment on his docket' is liable to the functions of a justice “are ministe- the judgment creditor for the same rial in preserving the peace, hearing when he deposits the money in a bank charges against offenders, issuing sum- to his private account, on failure of the monses or warrants, examining the bank before the money is drawn thereinformant and his witnesses, and in from. Shaw x'. Bauman, 34 Ohio St. 25. taking those examinations, binding In Tennessee, a judgment may be

the parties and witnesses to rendered in the circuit court on motion prosecute, bailing the offender or against a justice for failure to pay committing him for trial. State money officially in his possession to the Sneed, S4 N. Car. 816. But this state- party entitled to it. M. & V. Code, ment of the law has been justly ques- Tenn. $ 4352. tioned. Murfree's Justice Practice, $ 975. Justices are liable on their official See also Flat Swamp etc. Co. v. Mc- bonds for money received by them in Alister, 74 N. Car. 163.

their official capacity on judgments 1. Murfree's Justice, Practice, § 976, rendered by them. The liability of the Irion v. Lewis, 56 Ala. 190; Rains v. sureties is limited to payments made Simpson, 50 Tex. 495.

strictly officially to the justice. State In Ohio, it is held that the neglect of v. Woodman, 36 Ind. 511. It must apthe justice to issue an execution or to pear that he acted as justice in receiventer judgment in proper form, when ing the money, and not as an agent, but required by law, is a breach of a ministe- judgment rendered by him as justice on rial duty for which an action can be a claim held as agent, and money paid maintained by the judgment creditor on the judgment binds the surety: Price on the justice's official bond. Fairchild v. Farrer, 5 Ill. App. 536; Brockett 7'. v. Keith, 29 Ohio St. 156; Gaylor v. Martin,.11 Kan. 378. Hunt, 23 Ohio St. 255. See also when Sureties are not liable for notes given the justice was not held liable. the justice simply to be collected. McAbrams v. Carlisle, 18 S. Car. 242. Cormick 2'. Thompson, 10 Neb. 484; And the amount of the judgment is Mason i'. Crabtree, 71 Ala. 479. prima facie the measure of damages. In Kansas and in Indiana, by statute. Carpenter v. Warner, 38 Ohio St. 416. justice and his sureties are liable on his A condition in the official bond of the official bond for any neglect of duty or justice that he "shall well and truly dis- any illegal proceedings on the part of a charge the duties of justice of the peace special constable appointed by him. according to law” in legal effect covers Comp. Laws of Kan. (1885), ch. Sı, art. only the ministerial acts of the justice, 14, § 174. Martin 2'. Borgman, 21 Kan. and substantially complies with the 673; Rev. Stats. Ind. (1881), § 1439: statute requiring the bond to be "con- Hood 2. Sennett, 70 Ind. 329. ditioned that he will well and truly do Costs.—The taxing of costs and deand perform every ministerial act that termining who is entitled thereto are is enjoined upon him by law." Place judicial acts; hence the justice is not v. Taylor, 22 Ohio St. 317. No objec- liable for errors iherein. State v. Jacktion can be made if the instrument is son, 68 Ind. 58.

pointed to the best of their abilities and understanding, with the usual invocation or affirmation.1

X. JURISDICTION OF JUSTICES GENERALLY.—The jurisdiction of justices may be considered under three divisions—(1) Criminal jurisdiction, (2) civil jurisdiction, and (3) jurisdiction ex officio. Strictly speaking, jurisdiction signifies “a speaking of justice or of right. It, therefore, consists, primarily, of judging causes according to law, wherein rights are actually disputed; and is secondarily applied sometimes to the limits of territory within which the right to judge thus is exercised.” 2 Hence there must be a suit,3 and the decision must be upon facts actually involved in that suit.4 It is the plaintiff's condition of the suit which gives the court jurisdiction as to the subject matter. Jurisdiction may be legal or equitable, criminal or civil, superior or inferior, original or appellate, concurrent or exclusive, and a leading distinction in all these is jurisdiction in personam or in rem..

1. Proceeding Without Jurisdiction.—If a court acts without jurisdiction, its judgments are nullities; they are not voidable, but void. They are no justification, and all persons concerned in executing such judgments or sentences are trespassers, 7 and if


1. For the forms of oaths required is or is not a fraud on the law in credittwo hundred years ago, see Dalton Just., ing items or consenting_to jurisdiction, ch. 4, Honeyman's Practice (N. J.), pp. see Murfree's Justice Practice, $$ 151, 35, 36. See Generally Rev. Stats. Ohio 233. As to giving jurisdiction by a (1880), § 2, Rev. Stats. Ill. (1880), § 4. remittitur, see Wharton i'. King, 69 p. 654.

Ala. 365; Hanna v. Morrow, 43 Ark. When a justice is re-elected he must 107; Kirk v. Grant, 67 Md. 83; Brantley again be sworn as at first and file a new v. Finch, 97 N. Car. 91; Dalton v. bond, unless his first term of office ex- Webster, 82 N. Car. 282; llempler v. tends until his successor is elected and Schneider, 17 Mo. 258. In some of the qualified. Rheinhart v. State, 14 Kan. States jurisdiction cannot be conferred

by remittitur. Bent z'.

Bent 7. Graves. 3 Mc2. See generally JURISDICTION; Cord (S. Car.) 280; or by crediting a Wells on Jurisdiction, $ 1.

set-off. James z'. Frick, 12 Phila. (Pa.) 3. Ex parte Cohen, 6 Cal. 318. 443; Himes v. Barnitz, 8 Watts (Pa.)

4. Blair v. State Bank, 8 Mo. 313; U. 39; Bower 2. McCormick. 73 Pa. St. S. 7. Arredondo, 6 Pet. (U. S.) 709.

427. 5. Boone z'. Poindexter, 12 S. & M. 6. Wells on Jurisdiction, $ 7 to 12. (Miss.) 640; Mabley 2. Judge, 41 7. Wells on Judisdiction, 99 18 to 20 Mich. 37. 'Plaintiff cannot confer juris- and 44; Elliott 2. Peirsoll, i Pet. (C. diction by admitting set-off. Long 2. S.) 340; Gold v. Bissell, 1 Wend. (N. Bakefield, 18 Ala 608. Plaintiff's re- Y.) 210; Lovejoy v. Al vee, 33 Me. 414; ply by way of set-off to set-off does not Keaney v. Green, 13 Ill. 432; State v. change or oust jurisdiction. Talbott v. Richmond, 26 N. H. 232; Walbridge r'. Robinson, 42 V't. 698; Wooster v. Mc- Hall, 3 Vt. 114; Lange 7'. Benedict, 48 Kinley, 1 Kan. 300.

How. Pr. (N. Y.) 465; Mastin 2. Gray, A justice cannot entertain a set off 19 Kan. 461; McNeill '. Edie, 24 Kan. which exceeds his jurisdiction. Wag- 108; Weimer 2. Bunbury, 30 Mich. 201. staff 2'. Challiss, 31 Kan. 212; Boyett v. And justices, being courts of special Vaughn, 85 N. Car. 366; Dawson v. and limited jurisdiction, must, at their Dillon, 26 Mo. 395. Jurisdiction can- peril, keep within their prescribed aunot be given by false credits.

Todd 7'.

thority. Truesdell 2: Combs, 33 Ohio Gates, 20 W. V'a. 464; Sands 7'. Delap, St. 186; Clark z'. May, 11 Mass. 233; 2 Ill. 168; Swift 2. Wood, 5 Blackf. Cohoon z'. Speed, 2 Jones (N. Car.) 133; (Ind.) 97. See

See also Remington ?'. Dillard i'. St. Louis etc. R. 58 Mo. 74; llenry, 6 Blackf. (Ind.) 63. As to what knowles 7'. Davis, 2 Allen Mass.) 61.


there is no jurisdiction of the subject matter, the court cannot render judgment for costs unless expressly authorized by statute.1 And the question of jurisdiction may be raised at any time or anywhere.? If a suit is begun in a court which has no jurisdiction of the case, and afterwards jurisdiction of such cases is conferred upon

the court, this will not cure the former defect,3 yet sometimes the doctrine of stare decisis may operate, by way of estoppel, to protect proceedings had without jurisdiction. When the court has no jurisdiction of the subject matter, an agreement of the parties to a suit instituted in the court that it may try the cause will not invest it with jurisdiction of the action.•


See page 398, supra, and notes; Fox v. tively shown, and this presumption exMeacham, 6 Web. 530; Yates 2. Laus- tends to justices of the peace. Wells ing, 9 Johns. (N. Y.) 394; Marshalsea on Jurisdiction, $ 46, and note. Smith

. Case, 10 Coke 68; Miller v. Seare, 2 v. Engle, 44 Iowa 265; Church v. CrossWm. Blk. 1141; Cooley on Torts, p.416; man, 49 Iowa 444; Storm v. Adams, 56 Allen z'. Gray, 11 Conn. 95; Murfree's Wis. 137. Justice Practice, $$ 108 to 119.

1. Collamer 2. Page, 35 Vt. 387; In Pennsylvania, “the rule is, that Mayor v. Cooper, 6 Wall. (U. S.) 247; when an act complained of is an imme- Pentlarge 7'. Kirby, (U. S. C. C.), 18 diate wrong against all form of law, Rep. 228. But there are authorities to trespass vi et armis is the proper ac- the contrary. See Pentlarge 7'. Kirby, tion.” Murfree's Justice Practice, $ 997; 18 Rep. (U. S. C. C.) 228. Kennedy v. Barnett, 64 Pa. St. 141; 2. Rice 7'. State, 3 Kan. 141; ForeSommer v. Wilt, 4 S. & R. (Pa.) 19. man 7. Carter, 9 Kan. 674; Mastin v.

“In regard to inferior courts, the pre- Gray, 19 Kan. 461; Amsbaugh v. Exsumption is adverse (to jurisdiction), change Bank, 33 Kan. 105; Taylor v. and their action must be confined Smith, 64 Ill. 446; Hart z'. Sansom, 110 strictly within the prescribed limits, U. S. 152; Earle v'. McVeigh, 91 U. S. and must appear so on the face of the 503. But there are some exceptions to proceedings, as also all the facts and this rule. State 7. Kinney, 41 Iowa grounds of the jurisdiction. The rule 424; The proper method of raising the is still more stringent in criminal pro- question is by motion if the defect is ceedings, even in a preliminary exam- apparent on the face of the proceedings, ination before a justice of the peace, or otherwise by plea to the jurisdiction. the taking of a recognizance by a jus- Webb v. Carlisle, 65 Ala. 313. tice. And in a civil case the docket of 3. Mora 2. Kuzac, 21 La. An. 754; the justice must show that he had juris- Carney z. Taylor, 4 Kan. 179; Fuller diction of the plaintiff as well as de- v. Langford, 31 Ill. 248. fendant.” Wells on Jurisdiction, $ 40; 4. Wells on Jurisdiction, $ 19; HollowRobbins 7). Clemens, 2 Am. Law J. 230; bush v. CcConnell, 12 Ill. 203; Skillem's S. C., 41 Ohio St. 285; State v. Metzger, Ex. v. May's Ex., 6 Cranch (U. S.) 267; 26 Mo. 66; State v. Gachenheimer, 30 Sibbald v. U. S., 12 Pet. (U. S.) 492; Ind. 63; Clark v. Holmes, 1 Doug. See also Montgomery v. Heilman, 96 (Mich.) 390; People v. Koeber, 7 Hill Pa. St. 44. (N. Y.), 41; Brown v. Keene, 8 Pet. 5. Coffin 7. Tracy, 3 Cai. (N. Y.) (U. S.) 115; State v. Ely, 43 Ala. 568; 129; Gilliland v'. Admrs. of Sellers, 2 Thompson v. Acree, 69 Ala. 178. Ohio St. 223; 1 Wait's A. and Def. 50;

When jurisdiction is apparent. Gut- Bent v. Graves, 3 McCord (S. Car.) tendag v'. Lehigh etc. Co., 14 Phil. (Pa.) 280; Baker v. Chisholm, 3 Tex. 157; 639; Little v. Currie, 5 Nev.90; Forbes v. Gamber 7. Holben, 5 Mich. 331; AnHyde, 31 Cal. 342; Flaggard v. Atlantic drews v. Wheaton, 23 Conn. 112; State etc. R. Co., 63 Mo. 302; Kane v. Des- v. Bonney, 34 Me. 223; Fields v. mond, 63 Cal. 464.

Walker, 23 Ala. 155; Cent. Bank etc. But as to the exercise of jurisdiction v. Gibson, i Ga. 453; Walker v. Kywhen once acquired, the presumption is nett, 32 Iowa 524. But see Marshalthat the subsequent proceedings are town Bank v. Kennedy, 53 Iowa 357. regular, unless the contrary is affirma- See also as to consent to jurisdiction 12 C. of L.-26


2. Jurisdiction—How Lost.—In many of the States a change of venue, or place of trial, is authorized, upon the application of either party to an action, when the formal proceedings are had, and then the justice must generally transfer the case to the nearest justice. If the cause is not transferred to the nearest justice who is competent to act in the matter, the jurisdiction is lost ; but the action of the justice cannot be collaterally attacked. If the justice does not render judgment within the statutory time, his jurisdiction is gone.? If the case is not tried or continued on the day and at the place named in the summons, or if it is not called and tried at the time and place to which it is adjourned, the jurisdiction is lost.3

In many, if not all, of the States, if the title to land will be, or is, drawn directly in issue in the case, the justice loses jurisdiction, and he is required to certify the case to the district court or other proper court of his county for trial. And the

And the question

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when the statute authorizes it. Brown an execution so is-ued is liable to be
v. Davis, 59 Iowa 641; and Anderson recalled by the justice who rendered
v. Hanson, 28 Minn. 400. However, it the judgment." Murfree's Justice
has been held, under certain circum- Pra :tice, $ 575; Gates v. Lane, 49 Cal.
stances, that the defendant could not 267.
evade payment of costs which he con- in Kansas, the transferring of the
sented to be incurred. Montgomery v. judgment to the district court ousts the
Heilman, 96 Pa. St. 44. As to what is justice's jurisdiction. Rahm v. Soper,
fraudem legis in giving a court juris- 28 Kan. 529.
diction, see James v. Stokes, 77 Va. In Oregon. if the justice acquires

jurisdiction of the subject matter by a i. Murfree's Justice Practice, § 243. comp.aint being filed, a judgment afterBut the justice's error may be reme- wards rendered without service on died by timely application in the cause. defendant is simply void, but the action Tennis V. Anderson, 35 Iowa 625. is not affected, alias process may be

2. McNamara 2. Spees, 25 Wis. 539; issued to bring the defendant before the Huff v. Babbott, 14 Neb. 150; Hull 2. court. And a justice may, without Mallory, 56 Wis. 355. But see Lynch special limitation of time, take a case v. Kelley, 41 Cal. 232. See also Stew- under advisement. Murfree's Justice art 2'. Waite, 19 Kan. 218. For the Practice, $ 5-0; Knapp v. King, 6 Oreg. distinction between "rendered" and 243: Saunders z'. Tike, 6 Oreg 312. "entered" see Conwell_2. Kuykendall, In Pennsylvania, the remedy to cor29 Kan. 708; Fox v. Meacham, 6 Neb. rect irregularities in a judgment, when 530; Wheeler v. Hall, 42 Wis. 573; justice has jurisdiction of the subject Brady 2. Taber, 29 Mich. 199. When matter, is certiorari. McDonald' v. the defendant is in custody. Barker v. Simcox, (98 Pa. St. 619; Steetz v. BufWheeler, 44 Mich. 176. A judgment fum, 14 Pa. St. 69. See also Astell v. rendered by a justice of the peace in an Phillippi, 55 Cal. 265. action four days before the return day. 3. Newcomb v. Trempealeau, 24 Wis. of the summons, and four days before 459; Briggs 7. Tye, 16 Kan. 292; Sagenthe defendant is notified to appear is dorph 7'. Shult, 41 Barb. (N. Y.) 102. void. Briggs 2. Tye, 16 Kan. 285.

4 "As a general rule justices throughIn California, the proper remedy, in out the United States are forbidden to case a justice renders a judgment which entertain questions involving the title is void for want of jurisdiction, is, by to real estate. To defeat the jurisdicmotion in justice court, to arrest execu- tion of the justice, however, it is necestion and stay further proceedings on sary that the record should show that the judgment. And this may be done. the title to real estate is one of the although the execution was issued by questions at issue between the parties. the county clerk on a transcript of the It is not sufficient for the defendant justice's docket filed in his office. Such nerely to allege that the title is involved

in the suit, the fact must appear to the Derlyn, 24 Wis. 67; Strasson v. Mont satisfaction of the court before which gomery, 32 Wis. 52; French v. Holt, 51 the question is raised." Murfree's Jus- Vt. 544; Jeffrey v. Owen, 41 N. J. L. tice, Practice, $ 171.

260; Lindekugel V. Angelhofer, 24 In Kansas, the statute provides that Minn. 324; Dulin v. Howard, 66 N. “the defendant setting up said title or Car. 433, Bowers v. Pomeroy, 21 Ohio boundary, to set forth in his answer or St. 185, Belcher v. Gaston, 4 W. Va. bill of particulars a full and specific 639; Messler v. Fleming, 41 N. J. L. statement of the facts constituting his 108. defence of said title or boundary brought In Missouri, an alleged breach of in question, and the defendant shall be warranty, in action for damages thererequired to make affidavit of the truth- for, held to raise the question of title. fulness of the statement in his said Bredwell 2. Loan etc. Co., 76 Mo. 502. answer or bill of particulars contained, In an action of trespass the defence and that said detence is bona fide, and was that the fence taken belonged to not made for vexation or delay, but for the defendant: held the question of title the promotion of justice." Coinp. Laws was involved. Murray v. Van Derlyn, of Kan., ch. 81, art. 1, § 7; and if it ap- 24 Wis. 67. Same rule held to apply to

$ 7 pears to the satisfaction of the justice standing timber. Strasson 7. Montthat the title or boundaries of land is in gomery, 32 Wis. 52. And for removing dispute, the action is staved and the a gate. French 2. Holt, 51 Vt. 544. justice within ten days shall certify the And in an action for a division fence. case, and transmit all papers to the Murray V. Van Derlyn, 24 Wis. 67district court of his county where it But not in case of obstructing a highshall be tried.

way. Barteau v. Appleton, 23 W'is. In Indiana, the enactment is, “If the 414. But see Lowitz i'. Leventz, 57 title to land shall be put in issue by Wis. 596, Gorham v. Withey, 52 Mich plea supported by affidavit, or shall


And the question of title was held manifestly appear from the proof on the to be not necessarily raised when land trial to be in issue, the justice shall, was sold to one person and manure without further proceedings, certify the thereon to another. French 7. Freecause and papers to the circuit court of man, 43 Vt. 93, Tansley v. Tumer, 2 the proper county where the same shall Bing. N. C. 151.

Bing. N. C. 151. And the same as to be tried." Rev. Stat. Ind., p. 607. For a "frame building." Elliott v. Black, rule in Idaho see Langford v. Mon- 45 Mo. 372.

372. When the question is held tieth, 102 U. S. 145.

to be raised in an action for purchaseIt is held in Kansas that the mere money. Cole v. Hynes, 46 Md. 181. filing of an answer stating that the And when not. Ragan v. Gaither, II boundaries of the land are in dispute, G. & J. (Md.) 488. A party claiming although verified as required by $ 7, lumber may prove his title to the land will not oust the justice of jurisdiction. whence this lumber was taken to prove Duncan z'. Yordy, 27 Kan. 348. See ownership of the lumber, but not if the

2 also Bernstein v. Smith, 10 Kan. 60; title is disputed. Hart 2. Hart, 48 Mich.

. Douglas v. Easter, 32 Kan. 496; Mel- 175. While, as a general rule, title is loh z'. Demott, 79 Ind. 502; Bibbler v. not a matter of enquiry or defence in Walker, 69 Ind. 362.

actions of forcible entry and detainer, yet As between landlord and tenant the evidence of title in the defendant who question of title cannot arise in a suit has taken possession may be competent for rent, the tenant cannot dispute his to show the purpose with which the landlord's title. Jorden v. Henderson, entry was made, and to uphold the 37 Ark. 120. The plea of title in an- possession when obtained. Conaway other by tenant is immaterial. Ghira- v. Gore, 27 Kan. 122. If an action “be delli v. Greene, 56 Cal. 629. See also instituted in a justice court for the

2. Bandlow z'. Thieme, 53 Wis. 57; Davis recovery of the possession of real estate z'. Davis, S3 N. Car. 74; Mathews v. it cannot be sustained, unless the stateMorris, 31 Ark. 222; Rundle v. Sutton, ment of the case alleges and the evi

, 43 Md. 64. Or in a suit for damages dence shows either that the defendant done to the real estate by lessee. Taylor is plaintiff's tenant, or that possession v. Koshetz, 88 Ill. 489. When the was not only unlawful but forcibly justice finds the question of the title taken by the defendant, or was unlawinvolved he loses jurisdiction. Rawson fully and forcibly held and detained. v. Finlay, 27 Mich. 268; Douglas v. Murfree's Justice Practice, § 197; BurEaster, 32 Kan. 496; Murray v. Van gett v. Bothwell, 86 Ind. 149. And for

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