Gibbs v. Taylor

9 N.E. 576, 143 Mass. 187, 1887 Mass. LEXIS 255

• Court: Massachusetts Supreme Judicial Court
• Decided: January 5, 1887
• Status: Published

Opinion

Holmes, J.

The execution for costs was properly issued against the administrator personally. Pub. Sts. c. 166, § 8. Look v. Luce, 136 Mass. 249. And, no affidavit being required to justify an arrest upon it, Pub. Sts. c. 162, § 5, it warranted the an-est without special instructions. Webber v. Davis, 5 Allen, 393, 397. Dooley v. Cotton, 3 Gray, 496.

It was held in Dike v. Story, 7 Allen, 349, that a special justice could take a recognizance under the Gen. Sts. c. 124, §§ 9, 10, (Pub. Sts. c. 162, §§ 27, 28,) and that he could do it at other times than the regularly appointed sessions of the court. In that case, it is true, there was a disability of the justice; but we are of opinion that the authority of the special justice is not dependent upon that circumstance, nor upon the provisions of the Pub. Sts. c. 154, § 25, (Gen. Sts. c. 116, § 22,) as to holding court. The power is conferred, not upon the court, but upon some judge of the court, as also upon other officers who hold no court. A special justice is such a judge, and therefore is embraced in the enumeration of the Pub. Sts. c. 162, § 27. See Clement v. Sargent, 100 Mass. 300; Commonwealth v. Hawkes, 123 Mass. 525, 529.

Exceptions overruled.