1 Denio 457 | Court for the Trial of Impeachments and Correction of Errors | 1845
An action Avas pending before a justice, in Avhich it was laAvful for the defendant therein to make an affidavit shoAving the justice to be a material witness for him, with a view to effect a discontinuance of said cause., (Laws 1838, p. 232, § 1.) A justice of the peace is authorized to take such an affidavit. The revised statutes provide that affidavits to “ be read and used in any court of Iuav or equity, of record or not of record, Avithin this state,” may be taken before commissioners of deeds. (2 R. S. 284, § 49.) The word may, in this statute, is tantamount to shall, and made it the imperative duty of commissioners to take such affidavits.
That the justice believed he was not bound to take the affidavit, and acted in good faith in refusing to do so, are no defence. Ignorance of the law is no excuse, and an honest conviction that one has a right to do what the law declares to be illegal, will not make the act innocent. “ A mistake in point of law, which every person of discretion not only may but is bound and presumed to know, is in criminal cases no sort of defence.” (4 Black. Com. 227; Rex v. Esop, 7 Carr. & Payne, 456.) ’
' By the terms of the statute a wilful neglect of duty is made • indictable; and it need not, in any other sense be charged or found to be corrupt. (The King v. Hollond, 5 Durn. & East, 623, 618.) The offence charged is not the neglect of a judicial duty, but of one purely ministerial, which the officer was absolutely bound to perform, and had no discretion or right to decline.
It is not material to decide whether the affidavit, as drawn, was sufficient for the intended purpose. That was not a question for the justice when called upon to administer the oath, nor did he put bis refusal on that ground.
He refused because, as he declared, it was his pleasure to refuse, and, as he said, he was not bound to do any thing which
There was no error, and a new trial must be denied.
New trial denied.