vacancy may be filled by a special election, in some States, or at the next following general election in others.1 XVII. FORFEITURE OF OFFICE-1. Drunkenness.-In many of the States there are statutes making it an offence for a justice to be found intoxicated, and for the offence he forfeits his office.2 Buck, 8 Kan. 302; Odell v. Dodge, 16 Kan. 446; Ward v. Clark, 35 Kan. 315. In California, it is held that the law relating to the election of justices in cities is a general and not a special or local law, and, therefore, is not in contravention of the constitution. Bishop. Council etc. of Oakland, 58 Cal. 572, 576. A justice of a city was elected justice of the town in which the city was situated, and was acting as such town justice when his term of city justice expired. Held. that he might continue as justice of the city until his successor was elected and qualified, although the city charter did not expressly so provide. Platteville v. Bell, 66 Wis. 326. Three persons were elected to the offices of justice of the peace at the April election, 1882. One qualified to succeed himself on April 15th, 1882; another failed to qualify, and the incumbent of the third resigned and was appointed to fill the vacancy caused by failure of second one to qualify, and took possession of the books and papers pertaining to the former office. Held, that when the remaining justice qualified he became entitled to the office books and papers pertaining to it formerly held by the appointee. Morris v. State, 94 Ind. 565. Where a person appointed by the trustees of a village, who had no authority, to fill a vacancy as justice, and he qualifies, he is a de facto justice. Laver v. McGlachlin, 28 Wis. 364. A justice elected for one precinct cannot hold his office in another. Clements v. San Antonio, 34 Tex. 25. It is held, in Wisconsin, that a justice elected in a village situated in two counties, may be given jurisdiction over both counties. Starkweather v. Sawyer, 63 Wis. 297. 1. In Illinois, when a vacancy occurs in the office of a justice of the peace or constable, by death, resignation, reremoval from the town or precinct, or other cause, if the unexpired term exceeds one year, his office shall be filled by special election. Rev. Stat. Ill. (1880), ch. 79, § 3. In Kansas, if an appointment is made by the governor to fill the vacancy, there may be an election at the next regular election in cities, or general election in country, to select a justice to fill the unexpired term. Odell :. Dodge, 16 Kan. 446; Comp. Laws Kan. (1885), ch. 110, § 14; 1 Rev. Stat. Mo. (1879), ch. 44. § 2809. 2. "If any public officer, whether State, city, town or township officer, shall be intoxicated while in the performance of any official act or duty, or shall become so intoxicated as to be incapacitated to perform any official act or duty at the time and in the manner required of him in the discharge of the duties of his office, he shall be deemed guilty of a misdemeanor in office and punished by imprisonment in the county jail not exceeding six months, or by a fine of not less than fifty dollars, or by both such fine and imprisonment; and if there be no provision made by law for the removal from office of such officer by impeachment, the court shall adjudge the defendant to have forfeited his office, and declare the same vacant.” 1 Rev. Stat. Mo. (1879), ch. 24, § 1642. In Illinois, for the first offence, the fine is $10, for the second offence the fine is $20, and for the third offence forfeiture of office. Rev. Stat. Ill. (1880), ch. 38, § 209. In Kansas, if the justice "shall in any public place within the State be in a state of intoxication produced by strong drink voluntarily taken," or "shall engage or participate in, or shall aid, or assist, or encourage other persons who are engaged in any kind of gambling." etc., shall be adjudged to have forfeited his office, which shall thereupon be declared vacant. Comp. Laws Kan. (1885), ch. 31, §§ 282 j, 282 k. "It has been held, in Georgia, that a justice who is drunk while presiding in a justice's court in legal session is not therein guilty of 'malpractice' in office or conduct unbecoming an upright magistrate, unless it be specially shown that some wrong or injury was done by him in his official capacity in consequence of his being drunk Murfree's Justice, Practice, § 1015; citing Hawkins v. State, 54 Ga. 653. In Alabama, by the constitution 2. Malfeasance in Office.-Malfeasance is "the unjust performance of some act which the party had no right, or which he had contracted not to do." And it is said that to constitute official misconduct there must be some evidence of mala fides in the transaction; but that "malice, corruption or evil intent may be inferred as presumptions of fact from the evidence. The officer is liable, even though he be an usurper, for misconduct in office. wrongfully assumed." 2 Extortion is unlawfully taking, by color of office, money or valuable thing not due, or more than is due, or before it is due.3 3. Conviction and Judgment for Felony.-Conviction and sentence for felony forfeits the office of justice of the peace.4 4. Accepting Another Office.--In many States, justices of the peace are forbidden to hold any other office the duties of which may conflict with that of justice; in some States the inconsistent offices are named in the statute, and the accepting by the justice of one of these offices is a forfeiture of his office as justice.5 (1875). art. 7, § 3, the justice forfeits his office for "wilful neglect of duty, corruption in office, habitual drunkenness, etc. See State v. Seawell, 64 Ala. 225. In Virginia, the justice may forfeit his office for drunkenness. Commonwealth v. Mann, 1 Va. Cas. 308. An indictment against a justice, as a private citizen for drunkenness, will not sustain a verdict of dismissal from office in Tennessee. Carpenter v. State, 6 Baxt. (Tenn.) 535. 1. Bouv. Law Dict., vol. 11 (11th ed.), p. 97., 2. American Criminal Law (Desty), 82. See also 2 Bishop's Criminal Law, 971-977. And for malfeasance or misfeasance the justice may be removed from office. Wilson v. State, 38 Tex. 548; State v. Seawell, 64 Ala. 225; I Code N. Car. (1883), § 826. See Wallace v. Commonwealth, 2 Va. Cas. 130; American Criminal Law (Desty), 84 a. 3. EXTORTION, vol. 7, p. 585. Under an indictment for extortion the justice may show that he received the money under a mistake as to his legal rights. Cutter v. State, 36 N. J. L. 125. In Illinois, there is an express statute against extortion. Rev. Stat. Ill. (1880), ch. 38, § 211. “In an indictment against a justice for extortion, it is necessary to allege that the accused took more than the law allowed him, or that he took a fee when the law allowed him none. It is 12 C. of L.-33 not necessary that there should be an express averment that in the one case the officer was entitled by law to no fee, nor in the other what was the amount of the legal fee to which he was entitled. It is sufficient that it be shown to the court that he took that which by law he was not entitled to take. The court is presumed to know in what cases he is entitled to no fee, and to what fees he is in proper cases entitled, and the pleading need not state what is within the judicial knowledge of the court." Murfree's Justice, Practice, § 1014; citing State v. Maires, 33 N. J. L. 142. But compare Cutter v. State, 36 N. J. L. 125. In Alabama, it is held that the constitutional provision for the impeachment of justices, and the statute "to provide for the impeachment and removal from office," create a new jurisdiction and provide the manner of its exercise, and that mode must be followed or the proceedings cannot be sustained. State v. Seawell, 64 Ala. 225. 4. Fugate's Case, 2 Leigh (Va.) 724. See comments on this case, 1 Bishop Crim. Law, § 971, and in a note to the section it is said: "For neither the people nor the legislature could be presumed to have intended 'that the bench of justice should be contaminated by the presence of a convicted and attainted felon.'" 5. In Kansas, "No county attorney, clerk of the district court, or probate judge," can hold the office of justice. Comp. Laws Kan. (1885), ch. 110, § 4. 513 XVIII. CONSTITUTIONAL LAW.-A justice, in the trial of a cause, has jurisdiction to pass upon every question involved in the action, including the validity of a law imposing a penalty.1 XIX. COSTS.—A justice's costs are matters of statute, and to the statute he must look; if that provides for no costs, he is not entitled to any, and in rendering judgment the justice can only award legal costs-statutory costs. JUSTIFIABLE. That which can be justified, excused or de fended.3 JUSTLY.-Fairly; accurately. In accordance with facts and truth.4 In Missouri, no circuit clerk, county clerk, or deputy of either, can hold or exercise the office of justice. 1 Rev. Stat. Mo. (1879), ch. 44, § 2808. See Tate's Case, 3 Leigh (Va.) So2; Rodman v. Harcourt, 4 B. Mon. (Ky.) 224, 499; Magie v. Stoddard, 25 Conn. 565. Yet it is held that after accepting an incompatible office, the justice will be considered as a de facto justice to third persons, and will justify an officer in serving a warrant issued by him. Commonwealth v. Kirby, 2 Cush. (Mass.) 577: 1. Hallock v. Dominy, 69 N. Y. 238. In the syllabus of Mayberry v. Kelley, it is said, "The constitution is law-the fundamental law-and must as much be taken into consideration by a justice of the peace as any other tribunal. It is the duty of all courts to pass upon and determine the constitutionality of statutes. Mayberry v. Kelley, 1 Kan. 116. 2. Chase v. De Wolf, 69 Ill. 47; Cas. tle v. House, 41 Ind. 333; McGee v. Dillon, 103 Pa. St. 433; Cutts v. Rock Co., 58 Wis. 641. In Iowa, for fee upon continuance of case, see Evans v. Story Co., 35 Iowa 126. Costs are not included in the amount for which justice may render judgment in fixing his jurisdiction. Spiesberger v. Thomas, 59 Iowa 606. But see CIVIL JURISDICTION -AMOUNT OF MONEY INVOLVED, supra. When the justice dismisses an action on the theory that it was not brought, prosecuted or authorized by the plaintiff, he cannot tax costs to the plaintiff. Town v. Green, 32 Kan. 148. It is held, in Wisconsin,,that where a constable demanded illegal fees for serving process, the justice, upon rendering judgment for costs, could not be compelled by mandamus to issue execution for the illegal fees. Chase v. De Wolf, 69 Ill. 47. And it is the duty of the justice to fix the compensation of the constable where the law allows a reasonable amount as costs for receiving and keeping property levied upon by the constable; the constable cannot fix the amount himself and lawfully collect it. State v. Vasel, 47 Mo. 416. 3. Justifiable Cause.-Where an indictment was found for maliciously and without justifiable cause forcing a seaman on shore in a foreign port, against the Crimes act of 1825, ch. 276, § 10, it was held that justifiable cause does not mean such a cause as in the mere maritime law might authorize a discharge, but such a cause as the known policy of the American laws on this subject contemplates, as a case of moral necessity, for the safety of the ship and crew, or the due performance of the voyage. United States v. Coffin, 1 Sumn. (U. S.) 394. In an action for malicious prosecution, which averred that it was done without any "legal or justifiable cause," the averment was held insufficient, ROANE, J., saying: "The word justifiable is not synonymous with probable. The latter refers to a standard within the reach of the person at the time and determining the purity of his motives. The former refers to another criterion within his reach, and carrying with it no certain datum from which we can decide upon the corruptness or purity of the motive;" and CARRINGTON, J., saying: "It is completely settled that, in a suit for a malicious prosecution, it must appear that there was no probable ground for the prosecution; since the want of probable cause is the very gist of the action; and, therefore, it must be averred. This averment is not supplied, in the present case, by the words justifiable cause, for the latter mean no more than legal cause." Young v. Gregory, 3 Call (Va.) 446. 4. Justly Due.-See DUE. Where a judgment by confession on JUSTIFICATION IN PLEADING.-See PLEADING. bond and warrant of attorney had been entered, supported by plaintiff's affidavit as required by statute (Harrison's Compilation 248, § 1), that the debt was "justly due and owing,"motion was made to set the judgment aside on the ground that the debt was not yet due. This the court refused to do, IIORNBLOWER, C. J., saying: "This objection goes upon the ground, and it was insisted in argument that since the statute (Har. Comp. 248) a judgment cannot be legally entered by confession for any liability or by way of security, but only for a debt absolutely due and payable. But CHIEF JUSTICE EWING, in Scudder v. Scudder, has fully and satisfactorily answered this objection, after remarking, as is perfectly obvious, that the word 'due' sometimes signifies simple indebtedness without reference to the time of payment as debitum in presenti solvendum in futuro; and that at other times it means that the day of payment or render has passed; he adds, in the former sense it appears to have been used in the statute, as it is connected with a word of the like signification, due and owing.' 'Moreover,' he says, 'the word justly being connected with the word due shows the true import of the phrase justly due." Hoyt v. Hoyt, 1 Harrison (N. J.) 138. See also Warwick v. Mattock, 2 Halst. (N. J.) 165; Scudder v. Scudder, 5 Halst. (N. J.) 340. as At the trial of the question of the validity of a mortgage on personal property, given to secure the mortgagee as endorser for the mortgagor, when attached in the hands of the mortgagor, the mortgagee being summoned trustee, under the Mass. Gen. Sts., ch. 123, § 67, the sum "justly due" upon the mortgage to be ascertained by the courts is that sum which will fully secure the mortgagee against all contingent future liabilities covered by the mortgage. Rogers v. Abbott, Mass. 102. 128 So the existence of a claim against the estate of a deceased person, which depends upon some future contingency, is not a debt "justly due" from the estate. A mes v. Ames, 128 Mass. 277. Justly Measured.-The statute 3 Geo. II, ch. 26, § 13, gives a penalty against dealers in coals within the city of London and ten miles round for not justly To re measuring coals sold by the chaldron according to the lawful bushel directed by the statute 12 Anne st. 2, ch. 17, § II. It was held that evidence of such coals proving short upon remeasurement was admissible to prove charge of their not having been justly measured. Warren v. Windle, 3 East 205. the 1. A tenant, to keep premises in repair, must have them so at all times during his term. Luxmore v. Robson, 1 B. & Al. 585. "To keep a street in safe condition, means to have it so; to make and remake it so." City of Atlanta v. Buchanan, 76 Ga. 585. But a stipulation in an insurance policy that a watchman be kept on the premises, does not require his constant presence there, but only at such times as men of ordinary care and skill, in the like business, have watchmen on their premises. Crocker v. People's M. F. I. Co., 8 Cush. (Mass.) 79. The owner of a hall, in which there is a stage, who offers it for rent, for use as a theatre or for concerts, balls, etc., but who had never used it as a theatre nor let it to another for such use, cannot be convicted of "engaging in or carrying on the business of keeping a theatre," within the meaning of a revenue law. Gillman v. State, 55 Ala. 248. An act, making it unlawful for any person "to have or keep any house, etc. for the public performance of stage plays" without legal authority, is not infringed by one who hires an unlicenced public room for a performance for six consecutive nights. Reg. v. Strugnell, 7 B. & S. 124. An averment that one "did keep a ten pin alley" is not equivalent to saying that he was engaged in the business or employment of keeping a ten pin alley. "One may keep a billiard table or a ten pin alley for the amusement of himselt or his family, without being engaged in keeping them as a business or avocation." Eubanks v. State, 17 Ala. 181. The offence of keeping a gaming table may be committed by a single act; it is not necessary that the business of so doing should be engaged in. Keep Company with.-See COHABIT. Keep Down.-A turnpike act provided that the money received by the company should be applied, first, to paying the expenses of obtaining the act; sec. tain; to maintain; 2 to have charge or control of; 3 ond, to keeping down the interest of principal moneys borrowed on the credit of the act; third, to repairing the road, and fourth, to repaying the principal. Keeping down the interest here means paying the interest periodically, as it becomes due, and does not include the payment of arrears, which must be provided for as principal. Reg. v. Hutchinson, 4 E. & B. 200. Keep House.-See House. Keep Open. (See SUNDAY.) A shop is kept open on Sunday, although the usual entrance thereto is closed, if all who please can obtain access thereto to buy. Commonwealth v. Harrison, 11 Gray (Mass.) 308; Blahut v. State, 34 Árk. 447. "What is meant by the terms 'keeps open store'? We do not think it can be the simple fact, accidental or otherwise, that the door of the store or shop is open or kept open. What they intended was to prohibit the keeping of open store or open doors for purposes of traffic. It was this which was considered offensive to morals. If the defendant kept his store, or the door of it, whether front or rear, open on the Sabbath, and by means thereof sold merchandise or other articles or commodities kept there for sale, then he violated the statute. The store being open, one sale would constitute the offence." Snider v. State, 59 Ala. 64. To "keep open" implies a readiness to carry on the usual business therein. Lynch v. People, 16 Mich. 472. A reservation, in a deed, of a street to be "kept open" gives the owners of the easement a right to an unobstructed street, and the owners of the servient tenement cannot place a fence across it, though there be therein a gate through which the owners of the easement may have free passage. Patton v. W. C. Educational Co. (N. Car.), 8 S. E. Rep. 140. Keep a tippling house imports the unlawful selling of liquors at retail. Commonwealth v. Campbell, 5 Bush (Ky.) 311. (N. J.), 42 N. J. Eq. 545; 11 East Rep. 121. So a provision in a will that the principal be kept in stock, and the interest paid to the beneficiary, raises a trust. Saunderson v. Stearns, 6 Mass. 37. . 2. In an indictment for keeping a house of ill fame. State v. Hanchett, 38 Conn. 35; and for keeping a faro bank or gaming table. "What is the true import of the verb to keep? Does it not import something more than setting up a table for a day, or during the races? If I understand the meaning of the term, it implies some duration or permanency; and that the opening, or instituting, or setting up a gaming table for one day or a few days during a public race, if the evidence even went so far, is not keeping a gaming table within the meaning of the That it is never used statute. to signify any temporary business, or employment, or engagement, is evident from innumerable instances where this verb is used as in the following instances. This is a rule, as far as I know, without exception. If there be one, I have not discovered it. We say he keeps a hotel, a store, a billiard table, a register's office, a broker's office. a coach, a horse, a gig, an omnibus, carts for hire, a livery stable, a school, a mistress, etc. "Now, does not every instance in the examples above quoted, show that the word is only employed in cases of expressing the idea of some permanent and established business? The Latin word which seems to me to express most nearly the English word, to keep, is sustentare, and this word, in that language, implies to maintain, support, etc., extending its operation and effect beyond the ephemeral existence of a day." United States v. Smith, 4 Cr. C. Č. 640. A requirement that the sheriff shall supply meat, drink, fuel and everything necessary for keeping prisoners at his own expense, refers to their maintenance, and not their protection or custody. Mitchell υ. Commrs. of Leavenworth Co., 18 Kan. 188. 1. A testamentary provision that "the residue of my estate be kept in reserve for further consideration in the way of 3. In an act prohibiting the keeping charitable purposes in a liberal way, of houses of ill fame, “to keep and mainnot to any particular creed or sect of tain implies much more than to live in religion," creates a trust in the executors such a house, as to keep a hotel implies for such charitable purposes as they may more than to live in one. The conthink proper. Claypool v. Norcross trolling head of the hotel keeps it while |