Gilchrist, C. J.
The question of the civil jurisdiction of a justice of the peace throughout the State is, so far as we are aware, a new one, and has never been investigated in this court. In order to determine it, it is necessary to inquire into the early legislative history of this State and Province, for the purpose of ascertaining what jurisdiction has heretofore been exercised by such officers, what has been the form of their commissions, and how it happened that justices of the peace were created with different jurisdictions and exercising different powers.
The form of the commission of the peace, in England, is given in Dalton’s Justice 16, in Latin, and a translation in English, on page 18, as follows:
“ Charles, &c. To our well beloved and faithful Thomas Coventry, Knight, Lord Keeper of the Great Seal of England, James Ley, Treasurer of England, &c. Greeting.
Know ye that we have assigned you, and every one of you, jointly and severally, our Justices, to keep our peace in the County of Cambridge, &c.
We have also assigned you, and every two or more of you, (whereof any of you the said A. B. C. &c. shall be one,) our justices to inquire by the oaths of good and lawful men,” &c.
A similar commission is given in 3 Burns’ Justice 5. It is there said that the commission, in its present form, was adopted at the Michaelmas Term, 1590, by Sir C. Wrey, the lord chief justice of the K. B., and presented to the chancellor, who approved of it, and commanded it to be used, and that commissions were issued in this form at the time Burns’ Justice was published.
It is inferable from these forms that, by the common law, a joint commission is issued to all the justices of a county, [491]*491and that no separate commission is issued to individual justices, and'such appears to have been the case. Black. Com. 351. It follows, of course, that no justice had a commission authorizing him to exercise any jurisdiction beyond the limits of a single county. It is, also, to be inferred that in every commission of the peace for every county, the lord chancellor, lord treasurer, judges, sergeants, and many high officers of state were named, of course, so that it would seem that they were in fact justices of the peace throughout the realm. Yet this was always by virtue of a separate commission to each county, and this idea seems to be confirmed by 1 Black. Com. 351, above cited.
Until the year 1771, only a single commission was issued to justices of the peace for the whole province of New Hampshire, there being then no division of the territory into counties.
The research of Mr. Justice Bell has furnished us, from the files of the county of Rockingham, with a copy of one of the early commissions, which is, in substance, as follows:
[ “ l. s. ] George, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, &c. To our right trusty and well beloved Shadrach Walton, George Jaffrey (and twenty-one other persons named therein.)
Greeting.
Know ye that we have assigned, and every one of you, jointly and severally, our justices to keep our peace in our province of New Hampshire, &c.
We have also assigned you, and every three or more of you, whereof any of you, the said Shadrach Walton, George Jaffrey, (and certain others selected from the whole number of justices,) shall be one, to inquire, by the oaths of good and lawful men, &c.
In testimony whereof we have caused the seal of our said province to be hereunto affixed.
Witness, Jonathan Belcher, Esq., our Captain General and Governor in Chief, &c., at Portsmouth, the third day of [492]*492December, in the fourth year of our reign, Anno que Domini, 1730.
J. BELCHER.”
The form of this commission is similar to that given in 3 Burns’ Justice 5.
Commissions were occasionally issued in a briefer form, but never, so far as has been observed, to individual justices. The commissions to justices of the peace seem to have regard, principally, to their office as justices of the court of sessions. The mode of appointment of judges of assize in England illustrates, in some degree, the question. Their authority is derived from the statute, Westm. 2 13 Edward I, ch. '30, which directs them to be assigned out of the king’s sworn justices, associating to themselves one or two discreet knights of each county. 3 Black. Com. 59. It would seem, then, that certain persons were appointed sworn justices of the king, without reference to any county in particular.
When the province of New Hampshire was divided into counties, in the year 1771, a commission of the peace was issued for each county, which was the authority to the justices to hold a court of sessions for that county. As in England, the chancellor, treasurer, judges, &c., were named in the commission issued for each county; so in this province, the king’s councillors, judges, &c., were named in the commission of the peace for each county. They were thus made justices of the peace for every county in the province.
The same system continued after the Revolution, but as the appointing power was then transferred from the governor alone to a larger body, it became necessary to designate those officers who were to be appointed in all the counties, and they then began to be spoken of as justices throughout the State.
Our impression is, that no commission was ever issued to any officer, as a justice throughout the State, until the court [493]*493of sessions was abolished, in the year 1793. As there was then no longer a court in which these persons were judges, the practice commenced of issuing a separate commission to each justice, and among others to justices throughout the State. Those commissions conferred precisely the same authority which justices throughout the State had before, by virtue of five general commissions; that is, the person was a justice in every county of the State, with the powers of a simple justice of the peace in each county, which powers, of course, he was competent to exercise with regard to matters arising in any county within its territorial limits, and not elsewhere.
The idea of residence as a qualification for judicial office, was not suggested until after the Revolution. Thus the first chief justice of the court of common pleas for the county of Hillsborough was Thornton of Londonderry, and Holland of Derry was first clerk of that court, both of whom resided in the county of Rockingham. The first judge and the first register of probate for the county of Grafton both resided in Portsmouth.
By §§ 17 and 18 of chapter 222 of the Revised Statutes, justices throughout the State are invested with certain criminal jurisdiction, but in relation to civil matters their powers and duties are not particularly pointed out. There seems, however, to be no reason why their records and files, pertaining to matters belonging to different counties, may not be kept where they severally reside; nor why their executors might not deposit their records with the clerk of the county to which such records belong. Nor does there seem to be any reason why their powers should be confined to the criminal matters specified in the statute. There is no necessity for the creation of such an officer merely that he might order offenders, in certain cases, to enter into recognizances before him.
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Gilchrist, C. J.
The question of the civil jurisdiction of a justice of the peace throughout the State is, so far as we are aware, a new one, and has never been investigated in this court. In order to determine it, it is necessary to inquire into the early legislative history of this State and Province, for the purpose of ascertaining what jurisdiction has heretofore been exercised by such officers, what has been the form of their commissions, and how it happened that justices of the peace were created with different jurisdictions and exercising different powers.
The form of the commission of the peace, in England, is given in Dalton’s Justice 16, in Latin, and a translation in English, on page 18, as follows:
“ Charles, &c. To our well beloved and faithful Thomas Coventry, Knight, Lord Keeper of the Great Seal of England, James Ley, Treasurer of England, &c. Greeting.
Know ye that we have assigned you, and every one of you, jointly and severally, our Justices, to keep our peace in the County of Cambridge, &c.
We have also assigned you, and every two or more of you, (whereof any of you the said A. B. C. &c. shall be one,) our justices to inquire by the oaths of good and lawful men,” &c.
A similar commission is given in 3 Burns’ Justice 5. It is there said that the commission, in its present form, was adopted at the Michaelmas Term, 1590, by Sir C. Wrey, the lord chief justice of the K. B., and presented to the chancellor, who approved of it, and commanded it to be used, and that commissions were issued in this form at the time Burns’ Justice was published.
It is inferable from these forms that, by the common law, a joint commission is issued to all the justices of a county, [491]*491and that no separate commission is issued to individual justices, and'such appears to have been the case. Black. Com. 351. It follows, of course, that no justice had a commission authorizing him to exercise any jurisdiction beyond the limits of a single county. It is, also, to be inferred that in every commission of the peace for every county, the lord chancellor, lord treasurer, judges, sergeants, and many high officers of state were named, of course, so that it would seem that they were in fact justices of the peace throughout the realm. Yet this was always by virtue of a separate commission to each county, and this idea seems to be confirmed by 1 Black. Com. 351, above cited.
Until the year 1771, only a single commission was issued to justices of the peace for the whole province of New Hampshire, there being then no division of the territory into counties.
The research of Mr. Justice Bell has furnished us, from the files of the county of Rockingham, with a copy of one of the early commissions, which is, in substance, as follows:
[ “ l. s. ] George, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, &c. To our right trusty and well beloved Shadrach Walton, George Jaffrey (and twenty-one other persons named therein.)
Greeting.
Know ye that we have assigned, and every one of you, jointly and severally, our justices to keep our peace in our province of New Hampshire, &c.
We have also assigned you, and every three or more of you, whereof any of you, the said Shadrach Walton, George Jaffrey, (and certain others selected from the whole number of justices,) shall be one, to inquire, by the oaths of good and lawful men, &c.
In testimony whereof we have caused the seal of our said province to be hereunto affixed.
Witness, Jonathan Belcher, Esq., our Captain General and Governor in Chief, &c., at Portsmouth, the third day of [492]*492December, in the fourth year of our reign, Anno que Domini, 1730.
J. BELCHER.”
The form of this commission is similar to that given in 3 Burns’ Justice 5.
Commissions were occasionally issued in a briefer form, but never, so far as has been observed, to individual justices. The commissions to justices of the peace seem to have regard, principally, to their office as justices of the court of sessions. The mode of appointment of judges of assize in England illustrates, in some degree, the question. Their authority is derived from the statute, Westm. 2 13 Edward I, ch. '30, which directs them to be assigned out of the king’s sworn justices, associating to themselves one or two discreet knights of each county. 3 Black. Com. 59. It would seem, then, that certain persons were appointed sworn justices of the king, without reference to any county in particular.
When the province of New Hampshire was divided into counties, in the year 1771, a commission of the peace was issued for each county, which was the authority to the justices to hold a court of sessions for that county. As in England, the chancellor, treasurer, judges, &c., were named in the commission issued for each county; so in this province, the king’s councillors, judges, &c., were named in the commission of the peace for each county. They were thus made justices of the peace for every county in the province.
The same system continued after the Revolution, but as the appointing power was then transferred from the governor alone to a larger body, it became necessary to designate those officers who were to be appointed in all the counties, and they then began to be spoken of as justices throughout the State.
Our impression is, that no commission was ever issued to any officer, as a justice throughout the State, until the court [493]*493of sessions was abolished, in the year 1793. As there was then no longer a court in which these persons were judges, the practice commenced of issuing a separate commission to each justice, and among others to justices throughout the State. Those commissions conferred precisely the same authority which justices throughout the State had before, by virtue of five general commissions; that is, the person was a justice in every county of the State, with the powers of a simple justice of the peace in each county, which powers, of course, he was competent to exercise with regard to matters arising in any county within its territorial limits, and not elsewhere.
The idea of residence as a qualification for judicial office, was not suggested until after the Revolution. Thus the first chief justice of the court of common pleas for the county of Hillsborough was Thornton of Londonderry, and Holland of Derry was first clerk of that court, both of whom resided in the county of Rockingham. The first judge and the first register of probate for the county of Grafton both resided in Portsmouth.
By §§ 17 and 18 of chapter 222 of the Revised Statutes, justices throughout the State are invested with certain criminal jurisdiction, but in relation to civil matters their powers and duties are not particularly pointed out. There seems, however, to be no reason why their records and files, pertaining to matters belonging to different counties, may not be kept where they severally reside; nor why their executors might not deposit their records with the clerk of the county to which such records belong. Nor does there seem to be any reason why their powers should be confined to the criminal matters specified in the statute. There is no necessity for the creation of such an officer merely that he might order offenders, in certain cases, to enter into recognizances before him. We think the more sensible view of their powers is, that they have all the civil jurisdiction in any county [494]*494that ordinary justices possess. We find nothing that con» flicts with this position, and motives of convenience, in many cases, recommend it. ' They merely act throughout the State as the provincial justices acted throughout the province.
As to the other question in the case, we have no doubt that the question of the liability of the trustee is triable by the jury, although no disclosure bad been taken. It is enacted, by § 7 of chapter 208 of the Revised Statutes, that a disclosure may be taken, or the question of the liability of the trustee may be tried by the jury, as the plaintiff may elect. The 28th section of this chapter points out the mode of proceeding, and is sufficiently comprehensive to include a case like the present. The 39th section provides that the provisions of the chapter, not restricted to the court of common pleas, “ so far as they are applicable to, and not inconsistent with, process before a justice of the peace, shall be deemed to apply thereto.”' It is not inconsistent with such process that, after a case is carried by appeal to the court of common pleas, the question of the trustee’s liability should be tried by the jury.
The case must, therefore, proceed as if it had been originally brought in the common pleas.
Trustee’s motion overruledL