Waters v. Day , 10 Vt. 487 ( 1838 )

The opinion of the Court was delivered by

Collameb, J.

The jurisdiction of justices, in criminal cases is, by our statute, confined to those cases where the fine does not exceed seven dollars; and no exceptions are made, as to interest. In criminal prosecutions, all courts are in some degree pecuniarily interested, in the penalties, inflicted by way of punishment. It is matter of necessity for the police and public safety that, in relation to criminal jurisprudence, such incidental interests should be disregarded. The fines, in such cases, are not the subject or object of the prosecution; they are but the ultimate consequence or incident, and are inflicted for punishment, correction and example. The statute provides, that if any person shall profanely swear, in the presence of a justice, in the execution of his office, such justice is to convict him, without further proof, and make a record. This fine would go into the town treasury, yet, clearly, that would not deprive the justice of this power in his own town. All this was fully settled in the case of State v. Batchelder, 6 Vt. R. 47 9.

In civil cases no such necessity exists ; and the action, and' its whole object, is the recovery of the debt or demand sued for. Hence, the statute provides that, “no justice shall take cognizance of any cause, where he is within the fourth degree of affinity or consanguinity to either of the parties, or shall be directly or indirectly interested in the cause or matter to be determined.” All this clearly applies only to civil causes. It implies two parties, both capable of relationship. Interest in the caMse or matter cannot apply to a question of criminality : that is, whether the respondent is guilty of a breach of the peace, or a petit larceny, in which there is no pecuniary interest. The only question then re-? maining is, — is this a civil action ? That it is so, is clear from the following considerations. The form of the process is a writ, not a warrant. The defendant appears by attorney and must plead in writing. Depositions may be used, on the trial. The judgment must be enforced by execution, not by warrant or mittimus. Justices have jurisdiction to one hundred dollars. Putney v. Bellows, 8 Vt. R. 272.

The plaintiff in this cause has sued for over seven dollars, before a justice, and he, therefore, cannot insist that this is a criminal prosecution.

This, then, was a civil action, and had for its object the recovery o.f a debt of ten dollars, o.ne half of which was for th,e town of Barre, of which the justice was a rated inhabitant, and so was interested, in the matter to be determined. By the statute he was disqualified, and therefore, for want pf jurisdiction in the justice, this action is '

Dismissed.