Green v. Haskell

24 Me. 180 | Me. | 1844

The opinion of the Court was drawn up by

Tenney J.

This is an action of debt upon a recognizance, given to prosecute an appeal with effect, from a judgment rendered by a justice of the peace, in an action of trespass, which is stated in the condition of the recognizance to be more fully set forth in the writ, The Judge, who presided at the trial ruled, that the recognizance was sufficient for the maintenance of the action, and instructed the jury to find a verdict for the plaintiff; a verdict was returned accordingly. Exceptions were taken to the above named ruling and instruction; and also to other rulings which it is unnecessary to consider.

Nothing is to be presumed in favor of the jurisdiction of an inferior magistrate, it not being general, but confined and limited by particular statutes. It should appear from the record that the justice of the peace, who rendered a judgment, from which an appeal is taken, had jurisdiction of the cause; and also that the recognizance was entered into before the justice, who rendered the judgment. Stat. 1821, c. 76, § 10. Otherwise the recognizance has no validity.

In the case at bar, it does not appear, that any record was offered at the trial, excepting the record of a copy of the recognizance. In that the name of the justice of the peace, who took it, and the county for which he was commissioned, are inserted; it also appears in the condition, that the action, in which the judgment was rendered was that of trespass. But it does not appear that the justice, before whom the defendant recognized, rendered the judgment from which the appeal was claimed.

Was the action for trespass upon real estate, or de bonis aspotatis 1 If for the former, the issue presented at the trial should have been stated, that it would be seen whether the justice of the peace had authority to render a judgment therein; if for the latter, the jurisdiction of the justice would depend upon the evidence of one or both of the parties. The record offered was essentially defective. Thé power of the magistrate to render the judgment, or to take the recognizance, was not sufficiently shown.

Exceptions sustained.