name of "qualifying officers," are appointed by the governor, with the advice and consent of the council, in the several counties, and commissioned by the secretary of State, under the direction of the governor, like other civil officers.10 The commission of such an officer is sometimes called a commission of "dedimus potestatem." An officer holding such a commission usually has a blank form of the oath which he requires the person to be qualified, standing and holding up his hand," to audibly recite, pronouncing his name in the place of the former blank, together with the name of his office in the place of the latter blank, and then to subscribe the same; which, after writing thereon opposite the signature the name of the office of the person qualified, his residence and date of qualification, the qualifying officer retains as a record. Another, with the blanks properly filled and the oath subscribed, is immediately returned to the secretary of State.12

THE EFFECT OF ACTING AS A JUSTICE WITHOUT FIRST TAKING AND SUBSCRIBING THE OATH.

It has ever been regarded as an important guaranty for the due performance of the duties of any public office, that the officer, when about to assume his official station, should, in a public and solemn manner, call God to witness his promise of faithfulness in the administration of it. Hence it cannot be supposed that the framers of the constitution, in making this requirement an express provision in the fundamental law of the State, intended it to be merely directory, and to be obeyed or not, at the pleasure of her public servants.

But, on the other hand, notwithstanding it is wholly without any penal sanction, and, in some instances, appar

10 R. S. c. 2, § 85.-11 R. S. c. 82, § 92.-12 R. S. c. 2, § 40.

ently, at least, quite as devoid of all religious sanction, still the official oath is an essential requisite to a legal induction into office; and any person who has been duly appointed and commissioned to be a justice and who assumes its duties without taking and subscribing the oath required by the constitution, cannot be regarded as a justice de jure, by legal right.1

And yet third persons, called upon to act under the authority of a justice, or having occasion to avail themselves of the official aid of such an officer, are not supposed to know, or to have the means of readily ascertaining whether such justice has complied with all the legal requirements necessary to qualify him to perform his official duties. And hence the law provides, that if a person has been legally appointed and commissioned to be a justice, and he is in the performance of the duties of that office, he thereby becomes an officer de facto,—in fact; and third persons acting under him, or availing themselves of his acts done under color of office, have a right to presume that he has taken all the necessary steps to his due qualification. And such presumption is conclusive.

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So, also, if he continue to act under color of his office after the expiration of his commission; or accept an office incompatible with that of justice, and still continue to act in the latter capacity;5 or continue to act after removal from the county for which he was appointed.

But while the acts of a justice de facto are valid as to third persons, they are otherwise so far as the justice himself is concerned. For since he, unlike third persons,

1 Courser v. Powers, 34 Verm. 517.-2 Courser v. Powers, 34 Verm. 517.8 Brown v. Lunt, 37 Me. 423; Coolidge v. Bridgham, 1 Allen, 333; Ex-parte Bollman, 4 Cranch, 75.- Brown v. Lunt, supra.-5 Com. v. Kirby, 2 Cush. 577.• Hunton v. Lindsey, 20 Geo. 746.

must always know whether or not he has been legally inducted into office, there is no occasion for the presumption of such a fact in his favor. Hence in an action against himself for an arrest under a warrant by him, a justice cannot justify, unless he had, before the issuing of the warrant, taken and subscribed the official oath required by the constitution." And the oath being commensurate with the appointment, covers only the existing term of office; and, being prospective, has no relation. back to an act done prior to, but on the same day of the administration of the official oath.9

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DISQUALIFICATION.

No justice can lawfully act judicially in a case in the result of which he may have a pecuniary interest. And since the degrees of influence cannot be measured, the law draws no line but that of a total exclusion of all interest whatever. To this rule there is, however, one exception, viz., in prosecutions for penalties, a trial justice may sit, although "his town is interested" in the penalty.2

So a justice is disqualified from sitting in a case when either of the parties is related to him by consanguinity or affinity within the sixth degree according to the rules of the civil law, or within the degree of second cousins inclusive, except by the written consent of the parties.

Thus the trial justice, who was once married to a sister of the plaintiff, has no jurisdiction of the case, whether, at the time of the commencement of the suit, she were

Courser v. Powers, supra.-8 Courser v. Powers, supra.— Courser v. Pow ers, supra.

1 Pearce v. Atwood, 13 Mass. 324.-2 R. S. c. S3, § 3.3 R. S. c. 1, § 4, rule

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living or not; or whether the suit was for the benefit of the plaintiff or somebody else.5

So, also, is a justice disqualified from sitting in a case against a corporation of which a stockholder is related to him within the sixth degree. But, nevertheless, proceeding to trial without objection is a waiver of all known objections to the court.”

A trial justice cannot hear and determine any civil action commenced by himself; and every action so commenced, shall abate; and even be dismissed after entry in an appellate court.9

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But the fact that a justice has previously declared his opinion on a question of law which comes up in a case, does not disqualify him from sitting thereon.10

INCOMPATIBILITY.

1

Inasmuch as the legislative, executive, and judicial departments of the State government are made distinct;1 and no person belonging to one of these departments can exercise any of the powers properly belonging to either of the others, with certain exceptions; a justice being a judicial officer, and a sheriff, deputy-sheriff, coroner, and constable being executive officers, the first is incompatible with either of the others, and no person can exercise the functions of both at the same time.5

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The acceptance of either of the executive offices named vacates the office of justice of the peace.

4 Spear v. Robinson, 29 Me. 531-5 Spear v. Robinson, supra.- Place v. Butternutt Man. Co., 28 Barb. 503.- Veazie v. Bangor, 53 Me. 50.-8 R. S. 83, § 29. Richardson v. Wellcome, 6 Cush. 331.-10 Wilson v. Hinkley, Kirby, 99.

1 Const. Art. III, § 1.-2 Const. Art. III, § 2.- Opin. of Judges, 3 Greenl. 484. Ibid.-5 Ibid.; Chapman v. Shaw, 3 Greenl. 372; Bamford v. Melvin, 7 Greenl. 14.-6 Magie v. Stoddard, 25 Conn. 565.

DIFFERENT KINDS OF JUSTICES OF THE PEACE.

Formerly there were but two grades of justices, viz., justice of the peace, and justice of the peace and of the quorum. The latter had all the official authority of the former, together with sundry important special powers not conferred upon him.1

On March 17th, 1860, the legislature created another office known by the name of trial justice;2 authorizing the new officer to exercise all the jurisdiction, power, and authority that justices of the peace and justices of the peace and of the quorum had had in their respective counties, and taking away from both of the older offices all jurisdiction in the trial of civil actions and processes of forcible entry and detainer, and the issuing of writs and entering of judgments thereon; and, subsequently, trial justices were declared to be, ex officio, justices of the peace and of the quorum.

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The jurisdiction and powers of the several officers above named will be found under appropriate subjects.

OF THE LIABILITY OF TRIAL JUSTICES AND JUSTICES OF THE PEACE.

A justice may become liable for malfeasance in office: (1) At the suit of the party injured; (2) To indictment; (3) To impeachment, and removal on address.

The official duties of a justice are, according to their character, either judicial or ministerial.

He acts judicially when he officially hears and deter

1R. S. c. 113, § 24; c. 133, § 16; c. 143, §§ 14-17; c. 107, § 22.- Pub. Laws 1860, c. 164. Pub. Laws 1860, c. 164, §§ 3 and 4.-4 Pub. Laws 1864, c. 237; R. S. c. 88, § 30.