Gibbs v. Taylor

Holmes, J. The execution for costs was properly issued against the administrator personally. Pub. Sts. c. 166, § 8. Look v. Luce, 136 Mass. 249. And, no affidavit being required to justify an arrest upon it, Pub. Sts. c. 162, § 5, it warranted the an-est without special instructions. Webber v. Davis, 5 Allen, 393, 397. Dooley v. Cotton, 3 Gray, 496. It was held in Dike v. Story, 7 Allen, 349, that a special justice could take a recognizance under the Gen. Sts. c. 124, §§ 9, [189] 10, (Pub. Sts. c. 162, §§ 27, 28,) and that he could do it at other times than the regularly appointed sessions of the court. In that case, it is true, there was a disability of the justice; but we are of opinion that the authority of the special justice is not dependent upon that circumstance, nor upon the provisions of the Pub. Sts. c. 154, § 25, (Gen. Sts. c. 116, § 22,) as to holding court. The power is conferred, not upon the court, but upon some judge of the court, as also upon other officers who hold no court. A special justice is such a judge, and therefore is embraced in the enumeration of the Pub. Sts. c. 162, § 27. See Clement v. Sargent, 100 Mass. 300; Commonwealth v. Hawkes, 123 Mass. 525, 529. Exceptions overruled.