V. Lining sufficiently speedy and effectual, to protect the magisterial Bentham. authority from the insults and contempts of disorderly men, and that he would have been unworthy of the trust reposed in him by his country, if he had not committed him. 2. Upon the ground of the admission of Duncan as a witness to contradict the warrant of commitment, it was argued, that it was admitting parol or inferior testimony to contradict the written judgment or decision of the magistrate,' under his hand and seal; which was the highest evidence the nature of the thing was capable of. That while sitting in his judicial capacity, he constituted an inferior court of competent powers to vindicate his own authority; and that his proceedings were to be taken and deemed in law as conclusive evidence of what passed before him, touching the contempt offered. Against the motion, it was urged on behalf of the plaintiff, that if the doctrine contended for by the defendant was established as the law of the land, that the magistrate's commitment alone was to be conclusive evidence of contempts, it would put the citizens of the country very much in the power of magistrates, who might deprive them of their liberties without a trial by jury, which was secured to every freeman by magna charta and our own constitution. That such an exercise of power was against another well established maxim of law, that no man should be a judge in his own cause, or determine any point in which he was personally interested. The Judges, after hearing counsel on both sides, and having fully considered this case, were unanimously of opinion on the first ground, that a special action on the case was not a proper remedy. But if there had been any just cause of complaint on the part of the plaintiff, it should have been preferred by way of indictment in the court of sessions; and if he had been convicted of corruption or oppression, in his judicial capacity as a magistrate, it would have been the duty of the court to have punished him, by fine or imprisonment, or both, according to the nature of the offence. That it is very evident from the whole complexion of this case, that Mr. Bentham was acting in his judicial capacity, as a justice of the peace, when this contempt set forth in the commitment was offered to him; and the law is equally clear, that a justice of the peace is not answerable in an action for what he does by virtue of his judicial power. 2 Hawk. 85. Carth. 494. 3 Burn, 33. With regard to the power of a magistrate to commit for insults or contempts offered to him while in the due execution of his office, it is incidental to magisterial authority; and without such power, he could never vindicate or sup port the laws, which are intrusted to his management, and over which he has jurisdiction. That a magistrate, sitting in judgment touching a matter within his jurisdiction, constituted a court in law, though an inferior one, and he was bound to protect the authority of such court. And one general principle, incidental to all courts, as well. superior as inferior, was a power to commit for contempts, either by word or deed, offered in the presence of the judge, and in the face of such court. And this is not against magna chartu, or the law of the land, but forms a part of the common law, which is recognised by the terms of our constitution. 5 Vin. tit. Contempts, 447. Lill. Pract. Reg. 305. Gilb. Hist. C. B. 20, 21. 2 Hawk. 96. 112, 113. Lining V. Bentham, with the party offering a con tempt, is not a competent witness to cri minate the The Judges were further of opinion, that Duncan should A entprit ennnot have been admitted as a witness on the trial to criminate nected the magistrate, as he was a party in the complaint then before the justice of the peace; and it had a tendency, as had been justly observed in the argument, to encourage culprits to confederate together, to destroy the power and authority of the magistrate; and the more especially, too, as his testimony went to contradict the highest evidence or record of the contempt, set forth in the commitment under the hand and seal of the magistrate. That with respect to the last ground insisted on by plaintiff against the present motion, that of a man's not being a judge in his own cause, the maxim was in general a true magistrate. Lining V. Bentham. A justice of and legal one, in every private matter in which a justice of the peace may be interested. But in the present instance, the public peace and good order was principally concerned; the peace may and he did not act in his own private case, but as a public be a judge of contempts ofofficer in support of the peace, and this forms an exception self in the ex- to the above maxim of law. For it is clearly laid down in ecution of his all the books of authority upon this head, that if any con fered to him office; and ception to the that no man shall be a judge in his own cause. this is an ex- tempt is shewn to the authority of a magistrate, or insult maxim of law offered to his face, while in the execution of his office, he may act as a judge in such cause, and commit the offender; though he may proceed less summarily, if he pleases, by indictment. The true rule of distinction seems to be this, that where contumelious words are spoken, or other insult is offered to a justice of the peace, and in his presence, he may commit; but when spoken behind his back, he ought to proceed by indictment. 3 Burn, 33. Salk. 698. 3 Mod. 139. 2 Show. 207. Verdict set aside and new trial ordered; but the case was never afterwards brought forward. Charleston District,1796. The first writ of attachment CALLAHAN against HALLOWELL. LENOX against THE SAME. THESE were two cases under the attachment act of this lodged in the state, against the effects of the absent debtor, which were in sheriff's of fice is entitled a warehouse or store belonging to the corporation of the to a priority city of Charleston, under the care of the city treasurer. of lien on ab sent debtor's goods, though It was admitted, that Callahan's writ of attachment was a second writ lodged in the sheriff's office about one minute before of attachment on a gar is first served Lenox's, but the sheriff's officer served a copy of Lenox's attachment on the city treasurer, under whose charge the goods were, before Callahan's. ishee. Callahan V. So that the point made and submitted to the court, by the counsel on both sides, was, which of these two plaintiffs Hallowell. should have the preference? The officers of the corporation also prayed the opinion and advice of the court on the same point, in order that they might know how to make a proper return to these writs, as garnishees, that they might not be entrapped by giving an improper preference to either of them. The Court, after consultation, was of opinion, that as the sheriff's office was a public one, where all writs were lodged and entered before service, the first writ of attachment lodged there should have the first lien on the goods; and that it was the duty of the sheriff to serve the writ first lodged on the garnishees in the first place, and others in rotation afterwards, agreeably to their seniority; otherwise it might be in the power of the sheriff to vary the right of the parties, and to give a preference to which of them he pleased, by serving one or the other first, as he thought proper. The vigilant creditor, therefore, is to be preferred. That the small difference of the time in lodging these writs, did not alter the principles by which they were to be governed. For in all cases where priority of action becomes essential to the right of the parties, the different days must be shewn, if the writs are lodged on different days; but if two or more actions are commenced on the same day, then the exact time must be ascertained; for although the law in general will not allow of fractions in days, yet it admits it - where it is necessary to distinguish who has a priority; as in qui tam actions, informations for usury, or the like, the very hour may be shewn. 3 Burr. 1434. If, then, the very hour may be shewn, there is no drawing the line but by priority; the very minute may be shewn upon the same principle; and that must govern and determine the right of the parties. Time is in its nature divisible from years down to days, hours and minutes: a minute, therefore, will give a priority as essentially in point of time as a year or a day. Callahan V Hallowell. The, writ is considered as the commencement of the suit, 3 Burr. 1243. and the delivery to the sheriff as the time when it is commenced.* Callahan's writ being, then, the first delivered into the sheriff's office, the court will therefore consider him as the first attaching creditor, and entitled to a preference, and that the return of the corporation ought to be made conformably. Mr. Holmes, the intendant of the city, being then present in court, suggested a difficulty which occurred in making these returns, as the attachment law requires that a return upon oath must be made by garnishees in possession of goods belonging to an absent debtor, and that the goods in the present case were in possession of the corporation, which could not take an oath, and therefore prayed the direction of the court in making the returns to these writs. Wherecannot make upon the court was of opinion, that all returns to such writs, on the part of the corporation, ought to be made by the into writs of attendant, who was at the head of that corporate body, under the officer at his hand and the seal of the corporation, as an oath could 1 A corporate body an oath, is to make returns tachment by the head of such corpora- not be expected from a corporate body. his hand and the seal of the corporation. N. B. Some of the members of the bar seemed to think the above determination respecting the priority of attachments was a point of great importance, and therefore wished it more fully argued, to which the court most readily assented; but all the parties afterwards acquiesced in the decision, and it was never again brought forward. Present, BURKE, WATIES and BAY. *This has often been determined in cases where the statute of limitations Kas been pleaded. |