Thé power which courts possess of punishing for contempts, and for refusal to give evidence,.is, in its nature, an exception to the provisions of the Constitution. It is a power to deprive a man of his liberty, without a jury and without a regular trial. It cannot therefore be extended, in the least degree, beyond the limits which have been imposed by statute. No implication, and no fancied necessity, can be permitted to add to the literal meaning of the words by which the legislature have restricted this power. And this is especially true of all tribunals which are not courts of general jurisdiction. •
Justices of the peace possess powers, in this respect, far inferior to those of courts of record. The statute authorizes them to punish for certain criminal contempts: such as disorderly conduct when a justice is engaged in the trial of a ease, and the like. (2 R. S., [m. p.] 273, § 199 [274].) This section does not include a refusal to answer a question or to give evidence. A subsequent section gives the only power which a justice of the peace has to compel a witness to answer. And it is worthy of notice that this section does not even designate this refusal a contempt of court. From *320this it may be inferred that the legislature were careful to avoid any language which might imply that a justice of the peace might ever punish “ as for contempt.” The section is as follows : “ When a witneás, attending before any justice in any cause, shall refuse to be sworn in any form prescribed by law, or to answer any pertinent and proper question, and the party at whose instance he attended shall make oath that the testimony of such witness is so far material, that, without it, he cannot safely proceed in the trial of such cause, such justice may, by warrant, commit such witness to the jail of the county.” (2 R. S., [m. p.] 274, § 204 [279].) Thus it will be seen that the justice has no power whatever until the party, at whose i/nsta/nce the witness attended, shall have made the prescribed affidavit. And this affidavit must state that the testimony is so far material, that, without it, the party cannot safely proceed in the trial. Now, in the present case, there was no affidavit made whatever. And therefore the justice had no authority to imprison the witness. •(People v. Webster, 14 How., 242.)
It was urged, on the argument, that, under the circumstances, such affidavit was not needed. The witness (the present plaintiff) was a party to the action before the justice. She had offered herself as a witness in her own behalf and had testified. On the cross-examination she refused, as is alleged, to answer a question.
It is urged, that as she was attending at her own instance, and as the question was put by the opposite party, the affidavit could not be required. But the language of the statute is explicit. And although the objection seems to present a difficulty in the ease of a refusal to answer a question under cross-examination, still we cannot enlarge the clear and plain words which require an affidavit from the party at whose instance the witness attended. Possibly the legislature did not consider that the testimony brought out on cross-examination was sufficiently material and necessary to make it best to extend the justice’s power to such a case. Or it might have been thought that if the party considered the evidence of the witness necessary, he could subpoena the witness and put the proper question on a direct-examination. Thus he would be the party at whose instance the witness attended. It is enough, however, for the present case, that no affidavit was made by any one, and that the justice had therefore no jurisdiction.
*321The defendant insists that the warrant is an adjudication of the truth of the facts, and is conclusive. Even if this were so, the warrant does not allege that the prescribed affidavit was made. So that there is no proof whatever of such an affidavit, even on the defendant’s view of the case, and the contrary is expressly proved by the plaintiff.
The circumstances of this case show the necessity of confining within strict limits the exercise of a power so arbitrary. The witness, a woman not in good health, about fifty years old and the mother of several children, was taken in a skeleton buggy, at the hour of midnight, or later, from the justice’s office, eighteen miles to the county jail, distant twenty-four miles from her home. It was the twentieth of September and the weather was cold; she reached the jail before sunrise, and the effect was such that a physician had to be called to attend her. And the counsel whose question she is alleged to have refused to answer was the brother of the justice who committed her. The question ought to have been very material, and the answer absolutely necessary, to justify such severe proceedings.
It is not necessary to examine the other questions presented. There must be a new trial, costs to abide the event.
Present — LearNed, P. J., BqabpmaN and .James, JJ.New trial granted, costs to abide event. ■