*9. Liability of justices to prosecution.

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If a justice make an unintentional mistake in his practice, through mere error in judgment, great lenity is shown him in the superior courts; and he is protected in the upright discharge of his duty by many statutes.(4) But if he act maliciously, partially or tyrannically in his office, he is liable to be punished criminally. (7) In cases where he proceeds ministerially, rather than judicially, if he acts illegally, he is liable to an action at the suit of the party injured; as if he maliciously issues a warrant for felony, without previous oath of a felony having been committed. (m) (11) So if he refuse to take an examination. (2) So if a justice issue a warrant against the putative father of a bastard child under the act (24th Sess., c. 8), on the application of any other person than an overseer of the poor, he issues it without authority, and acting ministerially, is liable to the party arrested, notwithstanding a subsequent assent to his proceedings by the overseers. (0) And where he commits an error, while acting ministerially, by which a party is injured, the justice is liable, although no corrupt motives are charged. (p) But where the justice acts judicially, no action lies against himas, to recover back a fine imposed by him for a contempt. (9) And his record of a conviction, if it show that he had jurisdiction, and proceeded regularly, is a bar to any suit against the justice. (¿') Though if the commitment thereon is illegal, trespass lies. (8) And if he corruptly and maliciously, without due ground, convict a person or refuse a license, he is punishable by information or indictment, though not by action. (t) So a justice is indictable for misbehavior in his office, when he acts

(k) Arch. Mag. Pocket Book, 146.
(2) 5 Burr., 52. 15 Wend., 278.
(m) 2T R., 225. 1 East, 64.

178. Hob., 63.

(n) 1 Leon., 323.

(0) 10 John., 93.

(g) 3 Caines, 170.

(v) 8 John., 44. See 1 Brod. & Bing., 432. 3 Sir W. Jones, Moore, 294. 16 East, 13. (8) 10 J. B. Moore, 63.

(t) Caldecot, 305. 1 Burr., 556. 2 id., 653. 3 id., 1317, 1716. 1 Chit. Cr. L., 873.

(p) 1 Denio, 589.

justices of justices' courts are removable by the supreme court, at a general term. (§ 132.)

But justices of the peace, justices of justices' courts and police justices, can not be impeached. (Id., § 12.)

(11) A justice of the peace acts ministerially in issuing and delivering a criminal warrant to an officer to be executed. And if such warrant is not valid on its face, the justice who issues, and the officer who executes it, are liable for assault and battery and false imprisonment, at the suit of the party arrested upon it. (Blythe v. Tompkins, 2 Ab. Pr., 468.) The justice is liable in such case, although he acted in good faith, and although there was before him sufficient proof to have authorized him to issue a valid warrant. (Id.) But a magistrate is not liable for errors committed by him while he acts judicially, if he has jurisdiction of the subject-matter. (Id.) 977

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partially or oppressively, from malicious or corrupt motives. (u) And an indictment lies against him, where, with the intent to pervert the course of law and justice, he discharges an offender brought before him, without requiring sufficient * sureties for his appearance at a criminal court, to answer the charge. (v) In determining as to the liability of a justice criminally, for any act done, the question is not whether the act be found, on investigation, to be strictly right or not, but whether it proceeded from an unjust, oppressive, or corrupt motive (amongst which fear and favor are generally included), or from mistake or error only. (w) In an action against a magistrate for a malicious conviction, it is not enough for the plaintiff to show that he was innocent of the offense of which he was convicted, but he must also prove, from what passed before the magistrate, that there was a want of probable cause for the magistrate to convict. (x) The distinction is this: Where a justice has no jurisdiction, and undertakes to act, his acts are coram non judice, and he is liable to an action as a trespasser; but if he has jurisdiction, and errs in the exercise of it, then the act is voidable only. (y)

10. Fees of justices of the peace, in criminal cases.

The amount of compensation which a justice is to receive for the various services performed by him in criminal cases, is regulated wholly by statute, as follows:

1. Fees of justices, when acting singly.

The act of 1866 (ch. 692), establishes the existing rule on this subject. It provides as follows:

Justices of the peace, in this state, shall, hereafter, be allowed and entitled to receive the fees hereinafter stated for the following named services in criminal cases: For administering an oath, ten cents; a warrant (but no justice of the peace shall be obliged to issue a warrant on any complaint for assault and battery, unless the person making such complaint and requiring such warrant shall pay the fee therefor), twenty-five cents; a bond or recognizance, twenty-five cents; a subpoena, including all the names inserted therein, twentyfive cents; a commitment for want of bail, twenty-five cents; an examination of the accused, where such examination is required by

(u) 45 Wend., 277.

(v) 15 Wend., 277.

(x) 1 C. Marsh. Rep. C. P., 220 (y) 3 Cowen, 206. 10 Wend., 102. 1 Breese's 11 John., 114. 17 id., 145. 11 Wend., 90.

(w) 3 Barn. & Ald., 432, 1 Burr., 556. 2 id., Rep., 145. 6 Ohio Rep., 146. 5 Mass. Rep., 559. 1162. 1 Wils., 7. 1 T. R., 692.

law, for each day necessarily spent, one dollar; every necessary adjournment of the hearing or examination, twenty-five cents. (Laws of 1866, ch. 692, § 3; 3 R. S., 7th ed., 2584. See also, Code of Civil Procedure, § 3322.)

No board of supervisors shall allow any account in favor of any justice of the peace, for a warrant on any complaint for an assault and battery. (z)

The fees herein allowed to justices for services in criminal cases, except those which, by law, are otherwise provided for, are county charges, and must be audited by the board of supervisors of the county in which such services are rendered, and are to be paid in the same manner as other contingent charges of the county.(a) (12)

(≈) 2 R. S., 749, § 1. 3 id., 7th ed., 2578.

(a) Id., 753, § 12. 3 id., 7th ed., 2579.

(12) The act of 1845 (ch. 180) provides that all fees and accounts of magistrates and other officers, for criminal proceedings, including cases of vagrancy, shall be paid by the several towns or cities wherein such offense was committed, and the board of supervisors shall assess such fees and accounts upon the several towns or cities designated upon such accounts; but when any person shall be bound over to the oyer and terminer, or court of sessions, or committed to jail to await a trial in either of said courts, the costs of the proceedings had before the single magistrate shall be chargeable upon the cities or towns as aforesaid, and the costs of the proceedings had after the person shall have been so bound over or committed shall be chargeable to the county; but nothing herein contained shall apply to cases of felonies; nor where the proceedings or trial for the offense shall be had before any court of oyer and terminer or court of sessions of the county; and the fines imposed and collected in any such cases, shall be credited to said towns or cities respectively, etc. (§ 26, as amended by Laws of 1847, ch. 455; 1 R. S., 7th ed., 846.)

By the act of 1858 (ch. 190) it is provided (§ 6), that the bills rendered by justices of the peace, for services in criminal proceedings, shall, in all cases, contain the name and residence of the complainant, the offense charged, the action of the justice on such complaint, the constable or officer to whom any warrant on such complaint was delivered, and whether the person charged was or was not arrested, and whether an examination was waived or had, and witnesses sworn thereon; and the account shall also show the final action of the justice in the premises. At any time within fifteen days after the board of town auditors of any town shall have filed with the town clerk thereof the certificate of accounts audited, as required by law, any tax payer of said town may appeal from the action of said board of town auditors, in auditing the account of any justice of the peace, to the board of supervisors of the county. Said appeal shall be made by serving notice thereof, in writing, on the town clerk of the town, and on the clerk of the board of supervisors, within the time above limited. The said supervisors shall, thereupon, audit the accounts of such justices of the peace; and their decision, in the auditing and allowing of said account, shall be final. (As amended by Laws of 1871, ch. 274; 2 R. S., 7th ed., 938.)

The act of 1860 (ch. 58) declares that the board of town auditors of the several towns of this state, in addition to the authority now vested in such board, shall have the power, and it shall be their duty, at their annual meeting, to audit the accounts of the justices of the peace and constables, for fees in criminal cases, which are by law chargeable to any such town, and the amount thereof shall be included in their certificate, and assessed by the board of supervisors of the county upon such town, in the same manner as other town charges are now assessed and collected. (§ 1, as amended by Laws of 1866, ch. 832; 1 R. S., 7th ed., 835.)

The act of 1866 (ch. 832) provides that in every case where any account of a justice of the peace or town constable, for fees in criminal cases, is audited, by a board of town auditors of any town, any tax payer of said town may appeal from such auditing and allowance to the board of supervisors of the county, and such board of

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*2. Fees of justices as members of courts of special sessions. (13)

For the following services in courts of special sessions, justices of the peace are allowed and entitled to receive, the fees herein stated : For a venire, twenty-five cents; swearing each witness on the trial, ten cents; swearing a jury, twenty-five cents; swearing a constable to attend a jury, ten cents; a subpoena, including all the names inserted therein, twenty-five cents; for a trial fee, one dollar per day during the necessary and actual continuance of the trial; receiving and entering verdict of jury, twenty-five cents; entering the sentence

supervisors shall thereupon have power to audit and allow such bill; and in case any such account shall be disallowed, or the amount thereof reduced, the party presenting the same shall have the same right of appeal as is provided in the first section in respect to a tax payer. (§ 2; 1 R. S., 7th ed., 836.)

Such appeal must be taken within five days after the allowance or disallowance of a bill by such town auditors, in whole or in part, by the service of a notice of appeal in writing, on the town clerk, and said town clerk shall forthwith thereafter transmit said bill to the board of supervisors of said county, to be audited and allowed by them; and said board of town auditors shall have no further jurisdiction over any such bill, after the service of said notice of appeal. (Id., § 3.)

Such part of the town bills audited by the board of supervisors after such appeals as shall be allowed, shall be assessed, levied and collected by the said board in the same manner as other town charges. (Id., § 5.)

The act of 1875 (ch. 180, § 1), provides for the election in each of the towns of this state, annually, at the town meeting, of three town auditors, for the term of one year, who shall form the board of town auditors of the town for which they are elected. (§1; 1 R. S., 7th ed., 837.)

Any justice of the peace of the town or towns in which an incorporated village shall be located, shall receive the same fees and compensation as is provided by law for similar services. The fees and compensation of such justice shall be audited and paid and collected in the same manner as the fees of justices of the peace, for similar services. (Laws of 1870, ch. 291, title V, § 3; as amended by L. of 1878, ch. 59; 1 R. S., 7th ed., 897.)

The provisions of law, prohibiting the taking of any fees for services in civil cases, other than such as are allowed by statute, apply to the taking of fees for services in criminal cases beyond the amount allowed by law, for such services. (2 R. S., 75, § 17; 3 id., 7th ed., 2580.)

The fees of magistrates and other officers, in criminal cases below the grade of felony, are a charge upon the town wherein the offense was committed; except where the proceedings are had within another county, or the defendant is tried in the oyer and terminer, or general sessions. (People v. Supervisors of Ontario, 4 Denio, 260.) Where the proceedings are a charge upon a town, the fines imposed and collected belong to the town. (Id.) The statutes providing for the payment of the fees of magistrates, and other officers, for certain criminal proceedings, by the towns or cities where the offense was committed, do not embrace the fees of a sheriff, as jailer or otherwise. They are county charges. (People v. Supervisors of Columbia, 67 N. Y., 330.)

(13) By the Code of Criminal Procedure

A court of special sessions, unless provision is otherwise made by law, must now be held by one justice of the peace of the town or city in which the same is held. (§ 62, as amended in 1882.)

A recorder of a city has power to hold a court of special sessions therein. (Id., § 63.)

of the court, twenty-five cents; warrant of commitment on sentence, twenty-five cents; for record of conviction and filing the same, seventy-five cents; but all such charges in any one case shall not exceed five dollars, unless such court continue more than one day; in such case the costs of such additional day may be added thereto; for return to any writ of certiorari, to be paid by the county, two dollars; for services when associated with another justice of the peace in cases of bastardy, for each day actually and necessarily spent, two dollars. (z)

OF THE JURISDICTION OF JUSTICES OF THE PEACE, IN CRIMINAL

CASES.

1. LOCAL LIMITS THEREOF, IN REFERENCE TO THE RESIDENCE OF THE JUSTICE.

2. WITH RESPECT TO THE NATURE OF THE OFFENSE, AND TO THE PLACE WHERE COM

MITTED.

3. PRIORITY OF JURISDICTION.

4. LIMITATION OF JURISDICTION, AS TO TIME.

5. NUMBER OF JUSTICES REQUIRED TO ACT.

6. PARTICULAR DESCRIPTION OF JUSTICES.

7. EXERCISE OF AUTHORITY, WHETHER DISCRETIONARY OR IMPERATIVE.

1. Local limits thereof, in reference to the residence of the justice.

A JUSTICE of the peace must reside in the town for which he was chosen. (a) (1) And if he removes from the town, he forfeits his office, and can no longer exercise jurisdiction in either civil or criminal matters. (6) He is not confined, however, in the exercise of his criminal jurisdiction, to such town; but unless he has actually removed from it, he may hear complaints in criminal cases, issue process thereon, and indeed perform all other duties devolving upon him as a conservator of the peace, any where in the county in which he was elected. For though, in reference to civil cases, justices are

(z) Laws of 1866, ch. 692, § 4. 3 R. S., 7th ed., 255. See Code Civ. Pro., § 3322.

(a) 1 R. S., 102, 12; id., 7th ed., 348.
(b) 9 Wend., 319, 322.

(1) No person shall be eligible to any town office, unless he shall be an elector of the town for which he shall be chosen. (1 R. S., 345, § 11; id., 7th ed., S17.)

Police justices and assistant justices in the city of New York are so far local as to require the residence of every person holding such office within that city or county. (1 R. S., 7th ed., 349, § 15.)