LexisNexis(TM) = Academic

BORE vs. BUSH & AL.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF THE STATE OF LOUISIANA, EASTERN=20 DISTRICT
6 Mart. (n.s.) 1; 1827 La. = LEXIS=20 77

May, 1827, = DecidedPRIOR HISTORY: [**1] APPEAL from the = court of=20 the fourth district.

DISPOSITION: = Judgment of=20 the district court annulled, avoided and reversed; case remanded; and = the=20 appellees paid the costs of this appeal.
HEADNOTES: The plaintiff has a right to put his case = to the=20 jury, and cannot be nonsuited by the court contrary to his will.
A justice of the peace derives no = protection from=20 his official capacity, when he does not act within his jurisdiction:
Free persons of colour are entitled to a = trial by=20 jury, and cannot be tried for offences by a justice of the peace:
COUNSEL: Morse for the plaintiff.
JUDGES: PORTER, J.

OPINIONBY:=20 PORTER

OPINION: [*1] = PORTER, J.=20 delivered the opinion of the court. This is an action against a justice = of the=20 peace, and his constable, for false imprisonment. The petition states = the=20 arrest, and the previous proceedings. It avers they were illegal, = oppressive,=20 and done with an intention to extort money from the plaintiff.
[*2] The justice pleaded, that he was acting in = his=20 official capacity. That he decided according to the best of his = understanding;=20 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=20 defendants moved the court that, as no testimony had been given against = him, a=20 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=20 ordered at any time before verdict, on the request of the petitioner.=20 [**2] But if he chooses to put his case to the jury, and = take the=20 risk of a decision against him, on the merits, he has the right to do = so. The=20 contrary principle, would place the trial by jury, completely within the = power=20 of the judge.

The justice of the peace was = not=20 protected by his plea, of error in judgment, for he was not acting = within his=20 jurisdiction. Free persons of colour, are certainly bound to treat the = citizens=20 of the state with respect; and if they do not, they are subject to fine = and=20 imprisonment. [*3] But the law has provided, that for = offences of=20 this kind, they are entitled to a trial by jury.

Now,=20 as justices of justice of the peace have no right to summon juries, it = is a=20 necessary consequence of the want of authority to do so, that the = defendant was=20 without power to try and condemn. The only cognizance he could take of = the case,=20 was to commit the plaintiff, unless he gave bail for his appearance at = the next=20 term of the district court. Mart. Dig. vol. 1. 688, 100. 648. = 46.
It is, therefore, ordered, adjudged and = decreed, that the=20 judgment of the district court, be annulled, avoided and reversed; that = this=20 case be remanded for a new trial; and that the = appellees [**3] pay=20 the costs of this appeal.

	Home =20 Sources =20 How=20 Do I? Site=20 Map What's New Help &nb= sp;=20