steads, executors' and administrators' accounts, sale of lands to pay debts and support infants and lunatics, allowances to families and distribution of estates, establishing heirships, adoption of children, appointment of guardians for infants, imbeciles and insane, and the execution of trusts under wills.94 In deciding on cases before them probate courts are governed by the general rules and maxims of equity, but generally they have no distinct equitable jurisdiction except in the execution of testamentary trusts.95 They may summon juries to try common law questions, but generally sit without a jury, and may also refer claims and accounts to masters, referees, or auditors. They have the power to review and revise their orders and judgments, by proceedings analogous to new trial, rehearing, appeal coram nobis (before us), or bill of review, either during or after the judgment term, not to correct errors of law, but of fact, such as mistake and fraud.98 Their decrees or final orders may be pleaded or used as conclusive evidence in other cases as res judicata (it stands finally adjudged) to the same extent as judgments of courts of general jurisdiction.99

97

132. Justices of the peace and justices' courts. -The justices' court is a development of the office of conservator of the peace in England, which is more than six hundred years old. By Act of 13271 such

94 11 Cyc. 791.

95 Same, 795.

96 Same, 798.

97 Common practice.

98 11 Cyc. 799, 800.

99 24 Encyc. of Law, p. 721.

11 Edw. III, St. 2, c. 16.

conservators were appointed in each county, and a few years later judicial powers were conferred upon them, and they were authorized to try breaches of the peace. At the time of the Revolution they had no civil jurisdiction, which was later conferred where the sum in dispute was small. Justices' courts are now inferior courts of limited local jurisdiction, with power to bind over to keep the peace, examine offenders, hold to bail, and commit to jail for default thereof, take oaths and acknowledgments, solemnize marriages, and exercise the usual power of police magistrates. Under the federal statutes they may exercise the powers of United States commissioners in examining offenders, holding to bail, and recommend the removal of accused persons for trial from one district to another. Their jurisdiction is statutory, and expressly limited by the amount involved in civil cases, and generally to misdemeanors in criminal ones. Within the limit of $50 to $300 they may generally try suits on express and implied contracts, bonds and statutory penalties, and in tort cases, generally confined to injuries and property, including case, trover, and replevin; but assault, false imprisonment, libel, slander, seduction, malicious prosecution, and personal injuries by negligence are usually excluded, as well as suits involving land title. It is by reason of so limiting their powers that they are held to be inferior courts. In regard to questions arising as to leases and estates at will

218 Encyc. of Law, pp. 9, 10.

3 U. S. Rev. Stats., § 1014.

+ §§ 7, 8.

and sufferance, including forcible entry and unlawful detainer, they are often given exclusive jurisdiction. They generally have no equitable power or jurisdiction, but they may apply equitable maxims in dealing with specific cases. Their territorial jurisdiction is usually coextensive with the county."

133. Liability of justice of the peace. This officer sustains substantially the same liability as other judicial officers, being liable when he acts without jurisdiction and for ministerial, but not judicial, acts.8 All acts requiring judgment and discretion, such as deciding cases and taxing costs, are judicial," while those which he performs as clerk or magistrate, not involving judgment, are ministerial.10 He is not liable for rendering judgment in excess of his jurisdiction.11 At the common law he is not liable to criminal prosecution in the absence of dishonesty, oppression, or corruption.12

The judgments of justices' courts have the same effect as estoppels when pleaded and proved, or admitted in evidence, in other cases, as courts of general jurisdiction.13

134. Pleading and practice in justices' courts. -The pleadings are usually oral, but are required to be noted in the justice's record, called the docket.

18 Encyc. of Law, p. 31.

7 Sumner v. Finegan, 15 Mass. 280.

8 Thompson v. Jackson, 93 Iowa 376.

Other instances are given in 18 Encyc. of Law, p. 45.

10 Same.

11 Anderson v. Roberts, 35 S. W. 416 (Tex. Civ. App.). 12 People v. Norton, 7 Barb. 477 (N. Y.).

13 24 Encyc. of Law, p. 721.

This is generally true of both plaintiff's and defendant's pleadings, and the rule is quite liberal and informal.14 As in the code states in the circuit or district court, the pleadings are construed with liberality.15 Liberal power of amendment also exists.16 Cases of like character and between the same parties may be joined in one action.17 Counterclaims and set-offs are allowed, but must be specially pleaded, either orally or in writing, or notice thereof seasonably given.18 No reply to a counterclaim or set-off, or any other new matter of defense, is required.' Trials may be before the justice himself unless the statute provides for a jury, and in jury trials the jury is the judge of both law and fact.20 There is no power to award a new trial unless given by statute.21

19

Appeals from justices' judgments are generally provided for, with the right to a new trial on the merits, as a matter of right, or on giving notice or filing a written demand.22

135. Municipal courts.-Municipal courts are created by the charter or governing statute of the city or village in which they are established, and their jurisdiction confined to the territorial limits of such municipality, except that in transitory actions. against non-residents any person in a civil suit who

142 Encyclopedia of Pleading & Practice, p. 696.

15 Same, p. 697.

16 Same, p. 699.

17 Same, p. 718.

18 Same, p. 724.

19 Same, p. 725.

20 Same, pp. 726-8.

21 Same, p. 746.

22 Same, pp. 755, 810, 811.

can be found and served with process within the municipal limits may be proceeded against.23 Their jurisdiction is generally about the same as that of justices' courts, but they are often given criminal powers almost or quite as extensive as courts of general jurisdiction.24 They are inferior courts within the rule that their records must show jurisdiction to protect it from collateral attack.25 They are usually held by a municipal judge or judges elected by the voters of the municipality, and justices of the peace may be called in to hold the court in case of their absence or disability. Appeals are usually given by statute to a superior court, but if no appeal is provided their proceedings may be reviewed by certiorari, mandamus, or prohibition.26

136. Courts of the Indian tribes and nations.— In the so-called Indian country there are tribal courts organized and regulated by the customs of the particular tribe, usually presided over by the Indian chief. The civilized Indian nations have national councils for the enactment of laws giving civil and criminal remedies, enforceable by the national or tribal courts.27 This applies to the Five Nations, or five civilized tribes, in the former Indian Territory, now part of the state of Oklahoma. The Five Nations consist of the Choctaws, Cherokees, Creeks, Chickasaws, and Seminoles, who are concentrated in the Indian Territory from the South pursuant to