Lapham v. Locke , 103 Mass. 555 ( 1870 )

Chapman, C. J.

A justice of the peace is prohibited by the Gen. Sts. c. 120, \\ 53, 54, from commencing or being concerned in the institution of a civil action returnable before himself, and from being employed as counsel in such action. His duty is to abstain from doing anything but what an impartial magistrate may do in respect to the case. He cannot properly act even as the friend of one party, adversely, to the other.

But there are some things that be may properly do as a magistrate towards instituting the process. He may prepare a blank writ and sign and seal it; and it cannot be material whether he signs and seals it before or after it is filled up. We see no reason why he may not fix the return day before himself; and it cannot be regarded as aiding either party to do this. And if he may do it while the writ is in blank, there can be no objection to his doing it at any time before it is served. As he has a right to determine that he will be at the place of holding his court on one day rather than another, there is nothing objectionable in the character of the act. It is unlike the correction of an error in the names of parties, or in the declaration, or even in the date; because he can have nothing to do with such alterations except as an attorney or friend of the party.

Exceptions sustained.