Blake v. Peck ( 1885 )

Peters, C. J.

This is an action on a poor debtor’s bond. The disclosure was made in York county. The creditor chose W. P. Ayer, who resided iu Androscoggin county, as a justice to hear the disclosure. Ayer, at the time, was commissioned as a magistrate to act within and for each county of the state. The debtor refused to disclose before Ayer, because he was not a resident of York county; and procured an officer to select the second justice. Wo think the debtor committed an error by which the bond became forfeited.

R. S., c. 83, § 34, is this : "Justices of the peace and of the quorum shall exercise their powers and duties, and shall be commissioned to act, within and for every county. ” They are to exercise their powers and duties — not a part of them — all of them — unless restricted by some other statutory provision. The counsel for the defendants finds some instances where the service to be performed may bo of a local character. This is not one of them. Should wo decide that the magistrate could not act, it would be difficult to know what powers can be accorded to the office. It can not be intended that the duties to be performed away from local residence are only ministerial. The statute is in its terms broader than that. Such work could, perhaps, be done away from the magistrate’s home without the consent bestowed by the act referred to. Learned v. Riley, 14 Allen, 109, and cases cited. In Young v. Bride, 25 N. H. 482, an instructive case upon this question, it was held that a justice of the peace thoughout the state could hear and determine a civil action in any county in the state.

We are not at liberty to adopt the theory of the defense, that the want of jurisdiction in the magistrates was waived by the creditor’s participation in the examination of the debtor. To do, so, would require us to disregard quite a list of our own decisions where the point has been heretofore considered. It is said that the creditor should have protested against the proceeding. His action was a protest. His attempt to protect his interests, in case of erroneous supposition on his part that the magistrates were without jurisdiction, would not confer jurisdiction. Barnard v. Bryant, 21 Maine, 206 ; Williams v. Burrill, 23 Maine, 144; Ware v. Jackson, 24 Maine, 166.

It is claimed that the defendants are liable only for actual damages, though less than the debt. This point is foreclosed against them by late cases. Hackett v. Lane, 61 Maine, 31; Poor v. Knight, 66 Maine, 482.

Exceptions overruled.

Walton, Dandorth, Libbey, Emery and Foster, JJ., concurred.