189 A. 858 | Vt. | 1937
The plaintiff, being pregnant, brought bastardy proceedings against the defendant before L.G. Peabody, a duly elected and qualified justice of the peace within and for the County of Orleans. She signed and made oath to her complaint before said justice at Burlington, in the County of Chittenden, on August 4, 1936. Maxwell L. Baton appeared before said justice at Burlington and became bail for costs. The justice then and there issued a warrant returnable before himself at Newport, in the County of Orleans. The defendant was arrested and brought before Justice Peabody at Newport, and such proceedings were there had that, upon consideration, the defendant was ordered to enter into a recognizance in the sum of $1,000, *501 conditioned that he would appear before the county court at its next stated term to answer to said complaint and abide the order of said court. This order was promptly complied with.
When the case reached the county court, the defendant appeared by attorney, filed a plea in abatement and a motion to dismiss, both of which were predicated upon the ground that the process was void because of the acts that the justice performed in Chittenden County. The court sustained this contention and adjudged that the complaint be quashed and the suit abated. The plaintiff excepted.
The acts relied upon by the defendant were three in number as follows: 1. Administering the oath verifying the complaint; 2. Taking the recognizance for costs; 3. Issuing the warrant for the defendant's arrest.
The plaintiff insists that all these acts are ministerial and not judicial, and that a justice of the peace may lawfully perform them outside the county of his commission.
That a justice of the peace cannot perform judicial acts while outside the county for which he is commissioned sufficiently appears from Whitcomb's Admr. v. Cook,
That the administration of an oath is a ministerial act is well established. Betts v. Dimon,
The taking of a recognizance for costs not being a coercive act, but purely voluntary on the part of the one entering into it, is ministerial in character, and a justice could, at common law, take it outside his own county. Learned v. Riley, 14 Allen (Mass.) 109, 110; Bac. Abr. supra; 2 Hawk., supra.
It is said in Graves v. Adams,
The court referred to the practical convenience of having blanks signed in advance, then as now extensively used, and proceeded to affirm the judgment overruling the plea in abatement.
Again in Vermont Mutual Fire Insurance Co. v. Cummings,
It is apparent that these decisions cover the acts of the magistrate in signing the process and taking the recognizance for costs. It is equally apparent that it must have been held that these acts were not judicial, for if they were, the judgments would have been for the defendants.
In full harmony with these cases is the statement of the court in Banister v. Wakeman,
The defendant relies upon Williams v. State,
Then, too, the matter of waiver stands in the defendant's way here. A plea to the jurisdiction is the first plea in the regular order of common law pleading. Lyman v. Central Vt. R.R. Co.,
There may be some difficulty in reconciling this case with all that is said in Graves v. Adams,
Judgment reversed, and judgment that the plea in abatement isinsufficient. Cause remanded. *504