Mather v. Hood

8 Johns. 44

• Court: New York Supreme Court
• Decided: May 15, 1811
• Status: Published

Opinion

Per Curiam.

The defendant at the trial justified under a record of his proceedings, by virtue of the act to preventforcible entries and detainers. The first section of the act (Laws, vol. 1. 101.) gives power to any justice of the peace, upon complaint, to go to the place where the force is made, and record the force, and set a fine not exceeding Si. upon each offender, and to commit them to gaol until the fine be paid. This section was taken literally from the statute of 15 Rich, II. c. 2.; and the English decisions under that statute are applicable to this case. The defendant acted under the authority given by the first section of the act, and the record shows that he proceeded correctly. The question is, whether that record is traversable.

The form of the record is agreeable to established precedents. (King v. Elwell and others, 2 Lord Raym. 1514. 3 Ld. Raym. 360. 2 Str. 794. Burn’s Justice, tit. Forcible Entry and Detainer.) The act is explicit, that one justice is competent to record the force and to convict.; and the decisions are uniform that the record is not traversable, because the justice, in making it, acts nót as a minister, but as a judge. It is as strong and effectual as if the offender had confessed the force. (8 Co. 121. a. Hawk. b. 1. c. 64. s. 8. The proceedings under this first" section are distinct and independent of those prescribed by the subsequent sections; and so it was understood by this court in the case of The People v. Anthony; (4 Johns. Rep. 198.) and when the record shows that the justice had jurisdiction, and that he proceeded regularly, it is conclusive. The case of 9 Edw. IV. 3. pl. 10. and the opinion of the court of king’s bench, in Groenvelt v. Burwell, as reported in 1 Salk. 396. proye that the justice is not responsible by suit for the proceeding; because it is, a judicial act. Whether it is wise or expedient to leave such summary power in the hands of a single magistrate, is a question for the legislature and not for the courts of justice. It is sufficient for us that an existing statute-gives this power; and that, according to settled principles of law, a record of such proceeding which is regular and correct upon the face of it, cannot be questioned or traversed in a collateral action. It is a full and complete bar to any suit against the magistrate.

The motion on the part of the plaintiff ought, therefore, to be denied.

Motion denied.