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mines an issue of law or fact legally submitted to his adjudication, and which he is bound by law to decide in the regular course of the discharge of his official duties.

All official acts not judicial are ministerial.

If a justice officially act in a case without his jurisdiction,1 or exceed his jurisdiction,2 he is liable in damages to any party injured thereby, whether the injury was the direct result of an adjudication of a cause, the exercise of a ministerial power, or the discharge of a ministerial duty.

Thus, where a justice has authority to entertain a complaint under a statute, and, after examination, to require the defendant to recognize with sureties for his appearance at a higher court; but not to require him to recognize to keep the peace and be of good behavior in the mean time, -for the excess of jurisdiction in the latter respect, the justice is liable in damages.3

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But to secure a fearless and impartial administration of justice, every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, should act upon his own free, unbiased convictions, uninfluenced by any apprehension of consequences. He is not bound at the peril of an action for damages to decide right in matters either of law or fact; but to decide according to his own convictions of right, of which his recorded judgment is the best, and must be taken to be conclusive evidence.1

"The authority of government cannot be maintained. unless the greatest credit be given to those intrusted with the administration of public justice; and if they be

1 Piper v. Pearson, 2 Gray, 120; Spencer v. Perry, 17 Me. 413; Dyer v. Smith, 12 Conn. 384.-2 Clark v. May, 2 Gray, 410-3 Knowles v. Davis, 2 Allen, 61.-4 Wells v. Stevens, 2 Gray, 15; Downing v. Herrick, 47 Me. 462; Burnham v. Stevens, 32 N. H. 247.

exposed to the prosecution of those whose partiality to their own cases would induce them to think themselves injured, it would be impossible for them to keep up in the minds of the people that veneration for their persons, and submission to their judgments, without which the laws cannot be executed with vigor and success.

"A contrary doctrine would poison the very source of justice, and introduce a system of servility utterly inconsistent with the constitutional independence which it has been the work of ages to establish.

"It is the policy of the law, that, in the imperfection of human nature, it is better even that an individual should occasionally suffer wrong, than that the general course of justice should be impeded and fettered by constant and perpetual restraint and apprehension on the part of those who are to administer it.

"Neither an action nor an indictment lies against a justice for any act done by him in his judicial character, in a matter wherein he has jurisdiction of the cause, and of the party to be affected by his decision, however erroneous his decision or corrupt his motives." 5

Thus a justice is not liable for an error in judgment in taking a recognizance to prosecute an appeal from a judgment rendered by him in a case within his jurisdiction, in a form prescribed by a former statute which had been repealed, and which was not according to the existing law, and hence was invalid; nor for demanding excessive bail; nor for putting the defendant on trial, in a criminal case, without allowing him an opportunity to

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Morrison v. Mc Donald, 21 Me. 550; Tyler v. Alfred, 38 Me. 532; Downing v. Herrick, 47 Me. 467; Yates v. Lansing, 5 Johns. 282; Pratt v. Gardner, Cush. 69; Chickering v. Robinson, 3 Cush. 543; Wells v. Stevens, 2 Gray, 115; Kelley v. Dresser, 11 Allen, 34; State v. Campbell, 2 Tyler, 177; 2 Lead. Crim. Cas. 300; Holcomb v. Cornish, 8 Conn. 375; Burnham v. Stevens, 33 N. H. 247.-. Chickering v. Bobinson, 3 Cush. 543.- Evans v. Foster, 1 N. H. 374.

obtain witnesses favorable to him, and to obtain counsel;" nor for issuing a mittimus to make effectual an erroneous judgment rendered by him in a case within his jurisdiction."

But he is responsible in civil suits for all injuries directly flowing from any illegal act done intentionally or otherwise by him, either in the adjudication of causes not within his jurisdiction, either of cause or parties, or in excess of jurisdiction, or in the exercise of his ministerial powers, or in the discharge of his ministerial duties.

Thus, if a justice be not present at the time and place to which a cause returnable before him has been duly continued, it operates a discontinuance of the suit; and, if he subsequently render a judgment therein and issue an execution thereon, he will be liable for an arrest made by virtue of the execution.10

So where, after the conclusion of a trial before him, he commits a witness for contempt; 11 or commits for contempt in the trial of a case of which a police court had exclusive jurisdiction; 12 or certifies falsely in the caption of a deposition; 13 or erroneously issues execution; 14 or any initiatory process.15

CRIMINALLY. The only case wherein a justice is liable to indictment is for accepting a bribe.16

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GENERAL POWERS AND DUTIES OF TRIAL JUSTICES.

The general powers and duties of trial justices depend entirely upon statutory provisions which have defined the

8 Pratt v. Gardner, 2 Cush. 63.9 Morrison v. McDonald, 21 Me. 550; Downing v. Herrick, 47 Me. 462.-10 Spencer v. Perry, 17 Me. 413.-11 Clark v. May, 2 Gray, 410.-12 Piper v. Pearson, 2 Gray, 120.-13 Cooper v. Bakeman, 33 Me. 876.-14 Briggs v. Wardwell, 10 Mass. 356.-15 Haskell v. Haven, 8 Pick. 464.— 16 R. S. c. 122, § 6.

objects and extent of their jurisdiction. But the common law is frequently resorted to as to incidental powers necessary to the due execution of their official duties, and in matters of detail, as well as in practice to explain and direct, wherein the statute is deficient or altogether silent.

When a general power is given or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other, is given by implication.2

The power to punish for contempt is incidental to the more general and comprehensive authority conferred on a magistrate by which he is empowered to exercise important judicial functions. It is to enable him to try and determine causes without molestation, and protect himself from indignity and insult, that the law gives him authority to punish such disorderly conduct as may interrupt judicial proceedings before him, or be in contempt of his authority or person.*

But there can be no contempt where there is no authority. And a justice cannot, in the course of a trial in which he had no jurisdiction, commit a witness for contempt, without rendering himself personally liable therefor.5

The power to punish for contempt being incidental, and auxiliary to the trial of the cause, it cannot be exercised by a separate and independent, proceeding, but only during the pendency of the cause; and after a final disposition of the cause on trial by judgment, the authority to punish for contempt in that case ceases."

In this State, the statute authorizes trial justices to

Martin v. Fales, 18 Me. 23; Call v. Mitchell, 39 Me. 465; Hersom's Case, 39 Me. 476.-2 Heard v. Pierce, & Cush. 345.3 Morrison v. Mc Donald, 21 Me. 556. Piper v. Pearson, 2 Gray, 120; 1 Chit. Cr. Law, 88.-5 Piper v. Pearson, 2 Gray, 120.6 Clark's Case, 12 Cush. 320; Clarke v. May, 2 Gray, 410.

issue capias for a witness who refuses to appear on a summons, and to fine and commit one who declines to testify; 6a and justices of the peace may do the same in case of deponents.6a

So for refusing to deliver a record of a deceased justice.66

So a justice may, in the progress of any trial before him, cause to be removed from the court-room, any person whose presence, in the exercise of a sound judicial discretion, he deems prejudicial to the interests of justice."

A trial justice is not an arbitrator with power to divide the damage in a doubtful case, but is bound to decide against the party, who, having the burden of proof, fails to sustain his case.8

ADMINISTERING OATHS.

Justices of the Peace may administer oaths or affirmations in all cases in which an oath is required, unless a different provision is made by law.9

6a R. S. c. 82, §§ 91, 92; c. 107, § 29.-66 R. S. c. 83, §24; Infra, c. 1, § 6.-7 State v. Copp, 15 N. H., 212.- Prentiss v. Sprague, Hilton (N. Y.), 428.- Public Laws of 1873, p. 89.

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