
    Richmond against Dayton.
    NEWYORK,
    Oct. 1813.
    ^j1® P**} sive =««1 reproachful words to a justice relative to hto judicial conduct, though not while he was acting as a justice, and the justice, after the party had left his office, issued a warrant commanding him to he taken and committed to gaol, until he should find sureties for his appearance at the next general sessions of the peace, and for his good behaviour in the mean time, and the party was arrested on the warrant, but immediately dis* charged on giving bail before another justice; in an action of trespa-s, bte. against the juftie- who issued the warrant, it was held that the justice had power to inquire the s.arty using the wo, ds, to find security for the peace and for his good behaviour, and in default thereof to comm,! t<im: and that that pat l of the warrant which required the part) to lie committed to gaol, until, 8tc, not having been executed, might bs rejected, and the warrant be good as to the residue,
    THIS was an action of trespass and false imprisonment. The cause was tried at the Columbia circuit, before Mr. Justice Van HeSS.
    
    
      The plaintiff was arrested by Bingham, a constable, by virtu© 0f a warrant, dated the 5th day of July, 1811, issued by the defendant, a justice of the peace. The warrant was as follows; “ Columbia, to wit, to any constable,” &c. “ Whereas Sylvanus Richmond, of the city oí Hudson, Sec. on the 5th July, at the office of H. Dayton, Esq. at, &c. the said justice being present, made inquiry of the said justice of and concerning a certain suit which had been tried on the forenoon of the said day, in which the said Richmond was defendant; and on being informed by the said Dayton,' the justice, who tried the said cause, that a judgment was given against him the said Richmond, for fifty cents, did, in a manner the most indecent, unmannerly, and without the least provocation given by the said Dayton, the said justice who tried the said cause, say, that he the said Dayton, in giving said judgment, had behaved and had treated him like a damned old rascal, together with many other words reflecting highly upon the said Dayton, in his official and judicial character; in so doing he the said Richmond treated in a most contemptuous manner the authority of the good people of the state of New- York, and their dignity. These are, therefore, in the name of the people, See. to command you .forthwith to apprehend him the said Sylvanus Richmond, and to deliver him to-the custody of the gaoler in and for the said county, and the said gaoler is hereby commanded to receive him into his said custody, and him there safely keep until he shall find sufficient security for his personal appearance at the next general sessions of the peace to be holden in and for the said county to answer the information and complaint aforesaid, and also for his good behaviour, in the mean time, towards the good people of the said State, and in a special manner towards the said H. Dayton, the aforesaid justice. Given,” &c.
    The facts stated in the warrant were admitted by the plaintiff's counsel to be true. The constable who arrested the plaintiff on the warrant, carried him immediately before a justice of the peace, who took bail and discharged him.
    It was admitted that when the words stated in the warrant were spoken, the defendant was not holding a court, nor acting as a justice of the peace on any matter; and that no other or further , violence or threats were used, and that the plaintiff left the office of the defendant (which was a room in which a club meets in the evening and have free access to during the day) before the warrant was issued and served upon him.
    
      A verdict was found for the plaintiff for six cents, subject to the opinion of the court on a case as above stated.
    
      E. Williams, for the plaintiff,
    as to the jurisdiction and power of the justice to commit for a contempt in this case, cited 1 Ld. Raym. 454. Str a. 993. Hardr. 480. 2 W. Bl. 1035. 1 Burr. 595. 5 East, 294. 8 East, 113. 9 East, 364. 5 Johns. Rep. 280. 7 Johns. Rep. 553. Cro. Elis. 689. 5 Vin. 446. 2 Salk. 697. 2 Bay’s Rep. 1. 385. 2 Wils. 159. 2 Salk 697. 1 Rev. Laws, 47. and 34 Edw. III. c. 1.
    Van Buren, contra,
    said he did not pretend that the defendant could commit the plaintiff as for a contempt, but be bad a right to bind him over to keep the peace. A justice has power to bind over all persons who threaten to break the peace, or who are not of good fame, &c. (Act sess. 24. c. 70. s. 5. 1 Bl. Com. 354.) Or for words scandalizing a justice. (2 Salk. 697. 3 Salk. 190. II Sta. Tr. 317. Cromp. 149.)
    That part of the warrant which commands the officer to com-, mit the defendant to gaol, it never having been executed, may be rejected: and a warrant may be good in part and bad in part. (8 Burr. 1742. 1766.)
   Per Curiam.

The warrant was no further executed than by the arrest of the plaintiff and taking him before a magistrate, who let him to bail. The object of the warrant was only to bind th«& party to his good behaviour, and until the next sessions; and this, under the circumstances of the case, was a lawful and commendable object. The direction in the warrant to have the plaintiff in the mean time committed to gaol, not being executed, may be laid out of the case as immaterial. The warrant was executed so far as respected the lawful object of it, and no further. The statute authorizes and makes it the duty of the magistrate to bind to theip. good behaviour, all persons who threaten to break the peace, or who are not of good fame. And the decision of the K. B. after much argument and discussion, in the case of Regina v. Langley, (2 Salk. 697. 2 Ld. Raym. 1029.) justifies such an actas the one done in this case. It was there held that words of slander spoken to a magistrate, in respect to his official trust, were to be classed among petit offences, which are contra bonos mores, and for which, when spoken to a magistrate in the actual execution of Ms office~ he might commit, and when spoken to him out of court, hc might require surety for the peace and for good behaviour, and in default thereof commit. The defendant in this case ought to have immediately required of the plaintiff' the surety. The case does not state whether he did so or not. Perhaps the plaintiff might have left him before he had time; and as that was not made a point, and as the warrant was issued on the same day with the gross abuse, and the plaintiff had left the defendant’s office, we must presume that the plaintiff had refused to give the recognisance, or withdrew before it could be demanded.

The defendant is, accordingly, entitled to judgment.

Judgment for the defendant.  