| Me. | Jul 15, 1840
The jurisdiction and powers of Justices of the Peace, are derived from statute provisions. The statute authorizing them to hear and decide certain civil actions, c. 76 <§> 8, as well as that prescribing the form of writs, provides, that a certain time and place shall be set for the trial; and, by necessary implication, that the Justice and parties shall then and there appear for that purpose; for it prescribes the duty of the Justice, in case the parties do not appear, and determines the 'consequences which are to follow their neglect so to do. If the plaintiff shall fail to prosecute his suit, the Justice is to award to the party sued his costs. And if the defendant neglects to appear, the charge in the declaration is to be taken to be true, and the Justice is to give judgment against him. The Justice is not authorized to perform any other duty in the case, than to grant the writ and issue subpoenas, at a different time from that set for the trial, either originally or by adjournment. Although the form of the writ requires the officer to return it to the Justice on or before the day of trial, that does not give him the right to do more than preserve his writ until the time arrives, when the law empowers him to act upon it. ■ And if the Justice does not attend at the time and place of trial, or within a reasonable time after the designated hour, the suit fails, except in those cases provided for in the statute 1834, c. 101. And so the legislative department understood the law, when it made provision by that statute, that, in-case of the Justice’s inability to attend, another Justice might continue the cause. In the case of McCarty v. McPherson, 11 Johns. R. 407, it was decided, that the failure of the Justice to appear within a reasonable time after the appointed hour, amounted to a discontinuance of the suit.
The phrase, “ fail to prosecute,” as used in the statute, points out the effect of an omission to appear for the plaintiff; and it is made the duty of the Justice, in such a case, to regard the suit as discontinued, or no longer to be prosecuted, and to award costs to the other party. In Sprague v. Shed, 9 Johns. R. 140, it was decided, that the omission of the plaintiff or any one for him to appear, was a discontinuance of his cause, and that the Justice had no authority to enter judgment for him. The statutes in that State
It does not appear from the record in this case, that the Justice, or the plaintiff, or any one for him, appeared at the time and place of trial; and there was a failure to prosecute the suit, which put an end to all further legal proceedings, unless the extraordinary circumstances, detailed in the record, authorize a different conclusion.
It is contended, that there was an incidental or inherent power in the court to protect itself from insult and danger, in circumstances not contemplated by the law; and that it might adopt the necessary measures to provide against apprehended danger, and continue the cause for trial to a time when the danger would no longer exist. What may be the effect of an order to continue a cause, w'hen the Court is resisted, and by force prevented from attending at the time and place appointed, it is not now necessary to decide. Nothing less than actual resistance or danger, can justify a Court of justice in coming to a conclusion, that the administration of the laws is superseded, and that the course of justice must give way to lawless violence. It W'ere better, if need be, that personal suffering should be endured by the members of a Court, than that the administration of the law should be yielded to an apprehension of danger, not then apparent, and that an undefined and discretionary power, suited, in his judgment, to the occasion, should be exercised by the magistrate, while he omitted to be governed by the rules prescribed by law.
The appearance of the defendant at the time named for an adjournment, cannot revive the process ; nor can it be regarded as a waiver of errors; for he appeared under protest, and for the purpose of insisting, that any further proceeding would be illegal.
However desirable to support the proceedings to prevent any one from deriving an advantage by causing excitement, and producing alarm and the apprehension of danger, the Court must regard such an evil as less than any attempt, on its own part, to bend the Jaw to circumstances, affording, at the same time, a precedent for the exercise of power not granted.
It becomes unnecessary to examine the other errors assigned.
Judgment reversed.