
    The State vs. William Applegate.
    A magistrate cannot commit a constable for a contempt in not returning an execution, and paying the money collected on the same. Indeed, it seems he can only imprison for contempts committed in the face of his court.
    THIS was a motion for a habeas corpus, before Judge Richardson.
    
    Mr. J. B. White, as justice of the quorum', in two cases tried before him, the one John Smith vs. D. Cregier ; the other Street fy Starke vs. D. Cregier, decreed for the plaintiffs to the amount of #16 6-100. On the 13th of August, 1821, he issued executions which were placed on that day in the hands of William, Applegate, a state constable, to be levied. But Applegate making no return of the executions, the Justice, on the 6th of October, issued •a rule requiring him to do so, or to shew cause why an attachment should not issue against him as for a contempt of the court. On the return of the rule, Applegate stated that he had levied to the amount of $ 16 25-100, but had applied the money to the payment of a debt of his own, said to be recovered against said Cregier before Justice Marshall, on the 19th June, 1821.- That on the 20th August, on the day the sale under the said execution took place, he had taken out an execution from Justice Marshall, which he put into the hands of John Helfrid, jun. and applied the money to that execution. Upon this statement, Mr. White determined that the two executions issued out of his office were entitled to priority in law, not only as being those on which the money was actually raised, but also as being first lodged in the hands of an executive officer, and ordered the said Applegate to pay over the money, which he refused to do, whereupon an attachment issued. Applegate was brought before Judge Richardson by habeas corpus, and a motion made for his discharge. After argument, the prisoner was discharged, on the ground that there was no express authority by the laws of the state to authorize the commitment, and that precedent was- wanting to support it. It is-therefore submitted that his Honor erred in discharging the said constable, and a motion was now made to reverse that decision.
   Mr. Justice Richardson

delivered the opinion of the eourt:

Although justices of the peace have judicial power, yet. they possess a very inferior jurisdiction. Comyns says, (p. 501, 4 vol.J their authority is to be exercised, secimdum vim, formcim et effcctum statuti, and are confined to offences named in their commission. Whatever be the power or privilege exercised by them, must appear to be authorized either by former precedents, which presuppose a grant of power by positive enactment, or else must be, incident to their office. Now there has not been adduced an instance of a justice of the peace having committed a constable or other officer for a contempt committed out of the presence of the Justices’ court.. The doctrine adduced from 1 Bacon, 180, as authorizing it, does not warrant such a conclusion, and so far from the Legislature having expressly given such a power, in the act of 1704, (l Brevard, 472, sec. 66,J they seem to have denied to Justices the power of committing for contempts, oven in the presence of the court, by enacting, that witnesses who refuse to attend a Justices’ court, or who, when attending, refuse to testify, may be attached, not by the Justice, but by a superior court upon proper application.

Hdyne, Att’y. Gen. and J. B. While, for the motion.

Eurman, contra.

. Lastly. Is the power of committing incident to the Justices’ office ? i. e. Is such power essentially necessary to the convenient discharge of his duties ?

To commit for a contempt done in the face of a court is essential to preserve the order necessary for the convenient discharge of business. Such a power is incident to all judicial tribunals, (1 Bacon, 108. 8 Coke, 38. Cro. Eliz. 581. Rolls. abr. 219. Sid. 145.) But to commit for a contempt done out of court, is in no respect necessary for the discharge of the Justices’ duties. Such a power is perhaps the greatest prerogative allowed to courts of the highest jurisdiction, and how inconsistent would the practice of this prerogative be in the hands of a justice, when we consider that even after a regular judgment given, a justice of the peace cannot take the body of .a'defendant, nor levy upon his lands, and can issue execution against his goods and chattels only. (P. L. 213.^ This is all the Justice could have done in the case before us, had judgment been first rendered against Applegate for the money received by him*

The motion is therefore dismissed.

Justices Bay, Colcock, Nott and Johnson, concurred.  