
    EASTERN DISTRICT,
    MAY TERM, 1827.
    
    
      BORE vs. BUSH & AL.
    
    Appeal from the court of the fourth district.
    The plaintiff has a right to put his case to the jury, and cannot be nonsuited by the court contrary to his will.
    A justice of the peace derives no protection from his official capacity, when he does not act within his juris* diction:
    Free persons of colour are entitled to a trial by jury* and cannot be tri$d for of-fences by a justice of the peace:
    
      
       Continued from the preceding volume.
    
   Porter, J.

delivered the opinion of the court. This is an action against a justice of the peace, and his constable, for false impris. onment. The petition states the arrest, and the previous proceedings. It avers they were illegal, oppressive, and done with an intention to extort money from the plaintiff

The Justice pleaded, that he was acting in his official capacity. That he decided aecord-ing to the best of his understanding; and that he was not responsible for errors of judgment.

The constable denied that he had arrested, or imprisoned, the petitioner.

On the'trial, before a jury, one of the defen. dants moved the court that, as no testimony had been given against him, a judgment of non-suit might be rendered against the plaintiff The court, notwithstanding the opposition of the plaintiff, granted this motion.

And we think it erred in doing so. A non-suit may be ordered at any time before verdict, on the request of the petitioner. But if he chooses to put his case to the jury, and take the risk of a decision against him, on the merits, he has the right to do so. The contrary principle, would place the trial by jury, completely within the power of the judge.

The justice of the peace was not protected by his plea, of error in judgment, for he was not acting within his jurisdiction. Free persons of colour, are certainly bound to treat the citizens of the state with re pect; and if they do nob they are subject to fine and imprisonment. . But the law has provided, that for r offences of this kind, they are entitled to a trial by jury.

Morse for the plaintiff

Now, as justices of justice of the peace have no right to summon juries, it is a necessary consequence of the want of authority to do so, that the defendant was without power to try and condemn. The only cognizance he could take of the case, was to commit the plaintiff, unless he gave bail for his appearance at the next term of the district court. Mart Dig. vol 1. 688, 100. 648. 46.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court, be annulled, avoided and reversed; that this case be remanded for a new trial; and that the appellees pay the costs of this appeal.  