Wills v. Whittier , 45 Me. 544 ( 1858 )

The opinion of the Court was drawn up by

Cutting, J.

The warrant, under which the defendants justify their proceedings against the plaintiff, was made returnable before the magistrate issuing it, or any other justice of the peace within the county of Kennebec, for an offence alleged to have been committed at Augusta.

By a special law of this State, passed in 1850, c. 303, § 1, it is provided that “ all warrants alleging any offence to have been committed within said city, (Augusta,) shall be made returnable before said court, (municipal court.)

The warrant was not made returnable before that court, although the offence was therein alleged to have been committed within Augusta, and, consequently, it conferred no authority on the magistrate to hear and determine the subject matter of the complaint, or on the officer to arrest and return the alleged offender before such magistrate, and, for their acts in this particular, they were trespassers.

During the vacancy in the office of the municipal judge, the recorder could not be ousted of his jurisdiction by inserting his name in the warrant as a witness, otherwise jurisdiction in all such cases might be the creature of a fiction.

According to the agreement of the parties, the defendants must be defaulted, and damages assessed at twenty dollars.

Tenney, C. J., Rice, Appleton, and May, J. J., concurred.