tion, committing him to prison, has the justice | This would seem to be the case where jurisrendered himself liable in damages to the plain- diction having thus attached, the decision of tiff? He did erroneously decide that he had the justice to try the plaintiff was only an erthe right to try the plaintiff notwithstanding roneous exercise of such jurisdiction. It is his demand; but has such erroneous decision unlike the case where jurisdiction has never rendered him, as to all future acts, a trespas- been conferred, and the justice decided to exser? The answer depends upon a matter of ercise a power that he does not, and never did, jurisdiction. It is not a question of jurisdic- possess. Here, in the course of proceedings tion to proceed with the trial notwithstanding which he was forced to institute, and in the the demand, but it is a question of jurisdiction case of one over whose person he has properly to decide whether he has or has not that right. acquired jurisdiction, the justice is confronted Manifestly, he does not, as a matter of law, ac- with the necessity of deciding a question dequire jurisdiction to proceed by deciding that pending upon the construction to be given to he has it; but, being confronted with the ques- a statute, and that question must be decided tion of jurisdiction, has he the power to decide by him one way or the other before he can it so far that his erroneous decision that he has take another step in those proceedings which it exempts him from liability on the ground up to that moment have been legally and propthat he has only made a judicial error or an erly pending before him, and over which he error of judgment upon a question of law has had full and complete jurisdiction. It which he was bound to decide? In such a seems plain that his decision upon the question case as this, it must be remembered that the is one in the course of a proper exercise of the justice had in the first instance, at all events, jurisdiction first committed to him, and that jurisdiction of the subject matter, viz., the his error in deciding that he had jurisdiction inquiry into alleged offenses against the pro- to proceed was an error of judgment upon a visions of this Act, and the trial of alleged of- question of law, and that he is therefore not fenders. He also had jurisdiction of the person responsible for such error in a civil action. It of the plaintiff. Full jurisdiction had thus is unlike the case where a justice of the peace been confided to the justice over the subject proceeded to try a civil action for assault and matter and person at the time when the plain- battery. Woodicard v. Paine, 15 Johns. 492. tiff was arraigned before him. In the absence The justice never had in such case obtained of a proper demand and the giving of sufficient jurisdiction over the subject matter, and he bail, it was the duty of the justice, and his could not obtain it by deciding that he had it. jurisdiction continued, to try the accused. The case falls under the principle of law that,

Where a justice without authority of law issues a process for arrest he will be guilty for the trespass; and honesty of purpose cannot justify him. Truesdell v. Combs, 33 Ohio St. 186.

But where a justice wrongfully issued a warrant without cath against a freeholder at the instigation of the complainant and with no means of knowing that the defendant was a freeholder he was held not liable. Rogers v. Mulliner, 6 Wend. 597, 22 Am. Dec. 546.

A justice is not liable for causing the arrest of a person merely because he made a mistake in failing to take an examination of the complainant and to reduce the same to writing as required by statute. Nowak v. Waller, 31 N. Y. S. R. 458.

When a justice with full knowledge of the facts issues a warrant for arrest in case of an assault and battery committed in another State, which is executed, he is liable. Miller v. Grice, 2 Rich. L. 27. In contrast with the weight of authority elsewhere is the following:

The error of a magistrate in issuing a warrant without affidavit will not render him liable for damages if he acted in good faith and for what he deemed to be for the public good. Maguire v. Hughes, 13 La. Ann. 281.

The mere informality of the warrant upon which a person is arrested for a breach of the peace is not sufficient to render the justice liable. Cooper v. Adams, 2 Blackf. 294.

Where to give a justice jurisdiction to issue an attachment proof must be made that defendant is concealed or has departed, etc., if the attachment issues without such proof the justice will be a trespasser. Adkins v. Brewer, 3 Cow. 206, 15 Am. Dec. 264.

If a magistrate issues a search warrant without the proper oath to support it, and it is executed, he

will be liable for trespass. Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200.

A warrant in the form provided in criminal cases against a party proceeded against for a forfeiture enforceable only by civil action though irregular does not render the justice liable. Carter v. Dow, 16 Wis. 298.

Errors occurring after acquiring jurisdiction. Action does not lie against a justice for error in judgment. Ambler v. Church, 1 Root, 211; Reid v. Hood, 2 Nott & McC. 168, 10 Am. Dec. 582.

Where a magistrate has jurisdiction but mistakes the law he cannot be sued for an illegal act without previous notice under the Pennsylvania statutes. Jones v. Hughes, 5 Serg. & R. 298, 9 Am. Dec. 364.

An action will not lie against a judge of probate for neglecting to take security from the guardian of an infant although the infant had personal estate and the guardian was a bankrupt. Phelps v. Sill, 1 Day, 315.

No action can be maintained against a county judge for failure to require a guardian to renew his bond or to give further security on account of the insolvency or removal of his original sureties. Hamilton v. Williams, 26 Ala. 527.

A justice of the peace who, having jurisdiction over the subject matter of a criminal charge, errs in the judgment rendered against the defendant as to the character and extent of his jurisdiction, will not be held liable in damages if he acted in good faith. Bell v. McKinney, 63 Miss. 187.

So where the justice has authority to inflict a fine in a particular case the mere fact that he imposes a larger fine than he has authority to impose will not render him liable. Clark v. Holbridge, 58 Barb. 61.

Where the justice had jurisdiction of the subject matter and gave judgment for more than $5 costs, while the statute limits the whole costs to that sum, the justice could not be held liable for trespass to a person imprisoned under an execution issued on the judgment. Butler v. Potter, 17 Johns. 145.

where a judge never has had jurisdiction over the subject matter, he acts as a trespasser from the beginning in assuming it, and his decision that he has it is no protection to him. I know it was stated in Gordon v. Longest, 41 U. S. 16 Pet. 97, 10 L. ed. 900, in a case where the defendant took the proper steps to remove an action brought against him in the state court to the United States court, and where the judge of the state court persisted, notwithstanding those steps, in trying the cause, that every step subsequently taken by the state court in the exercise of jurisdiction was coram non judice. Yet in such a case the question is put whether the state judge would be liable, for proceeding with the case in the honest exercise of his judgment. Lange v. Benedict, 73 N. Y. 12, 36.

the proper steps were taken, the judge had power in each case to proceed and try it; and so, although the application to remove is properly made, it is addressed to the legal discretion of the judge upon the papers presented, and a question of law is presented for him to decide. His erroneous decision, while conferring no jurisdiction upon him, is still such a judicial determination of a matter already properly pending before him, and over which, up to that moment, he had jurisdiction, that he must be protected from a civil action in regard to it.

It has been held (Butler v. Potter. 17 Johns. 145) that where a justice entered judgment for more than five dollars costs, when the statute prohibited judgment for more than that sum for costs, the judgment was voidable, but not And in a case where a plea of title to real void. He had jurisdiction to give judgment estate is put in before a justice of the peace, for some amount, and hence his decision to which ousts him of jurisdiction, would the give it for more than the statute allowed was justice be liable in case he erroneously decided not void. The case of Prigg v. Adams, 2 Salk. that he continued to have jurisdiction? This 674, was cited as sustaining the principle. The question is also put in the course of the opin- judgment in that case was declared to be void, ion in the case of Lange v. Benedict, supra, and as in violation of an act of parliament, because with, as I think, a leaning on the part of the rendered in a case arising in Bristol, where the learned judge towards the position of non-act provided that in such a case no judgment responsibility. The jurisdiction existed in both cases at one period, and it was on account of the steps taken in the course of the proceedings in the cases that the court or judge was called upon to say whether his jurisdiction had ceased or not. It seems to me that the erroneous decision of that question did not render the judge liable in either case. Unless

The justice is not liable for adjourning a cause although no verified answer has been interposed. Merwin v. Rogers, 28 N. Y. S. R. 404.

No action lies against a justice for refusing to take bail on a charge of misdemeanor, since his duty in that respect is not merely ministerial. Linford v. Fitzroy, 13 Q. B. 240.

Where a judge acting in a matter within his Jurisdiction enters an order reinstating a cause without notice he is not liable to the party aggrieved although he had no right to do so. Hughes v. McCoy, 11 Colo. 591.

So when a justice grants an adjournment to a plaintiff not entitled to it, and subsequently renders judgment and issues execution on which the property of the defendant is sold, he is not liable as a trespasser. Horton v. Auchmoody, 7 Wend. 200. A justice is not liable to an individual because of failure to render judgment in an action tried before him within four days after its final submissien. Evarts v. Kiehl, 3 Cent. Rep. 334, 102 N. Y. 296.

Enforcement of authority; contempt.

should be entered in a court of Westminster for less than a certain sum, and this judgment was for less. The defendant, an officer, took the plaintiff on a ca. 80. issued on the judgment, and it was held that the same was a protection to the officer. See also Clark v. Holdridge, 58 Barb. 61.

So it has been held that granting an adjourn

| sheriff or any constable, when by statute it should have been directed to the sheriff alone. Allec v. Reece, 39 Fed. Rep. 341.

A justice of the peace may commit for contempt and is not liable to an action on the case for what he does in his judicial capacity. Lining v. Bentham, 2 Bay, 1.

Where a magistrate fines a witness for contempt the amount is not recoverable back before another Justice. Moor v. Ames, 3 Cai. 170.

Where a juror returned a verdict of not guilty contrary to the direction of the court and was committed to jail for contempt the judge was held not liable to an action although the commitment was erroneous. Hamond v. Howell, 1 Mod. 184, 2 Mod. 218.

Where a justice is given power to punish a witness for contempt for refusing to answer a proper and pertinent question, when there is an oath of the materiality of the testimony, a justice is liable for false imprisonment for committing one for contempt where no oath was made. Rutherford v. Holmes, 66 N. Y. 368.

So where a justice of the peace committed a wit

An action will lie against a judge of the ecclesi-ness to prison for contempt in the course of a trial astical court who excommunicates a person for refusing to obey an order which the court was not authorized to make. Beaurain v. Scott, 3 Campb. 388.

But where the vicar-general had jurisdiction to grant administration and directed a certain person to act as administrator and the latter refused, whereupon he was excommunicated, it was held there was no liability. Ackerley v. Parkinson, 3 Maule & 8. 411.

A Justice of the peace is not liable for causing the arrest and imprisonment of one who has failed to obey a subpoena issued by him though the subpoena was insufficient to require the attendance of the person served and the warrant was directed to the

of a case of which a police court had exclusive jurisdiction he was held liable to an action by the witness. Piper v. Pearson, 2 Gray, 120, 61 Am. Dec. 438.

Conflicting with higher court.

Where a justice after certiorari to bring up proceedings before him proceeded to try the issue and found the defendant guilty he was held liable in trespass. Case v. Shepherd, 2 Johns. Cas. 27.

Where, after trial of a writ of replevin in which judgment of restitution was rendered, defendant appealed and the justice determined that the jurisdiction of the appellate court had not attached because of defect in the appeal bond, and ordered

aside, it protected an officer making the arrest against an action for false imprisonment. The court said it was a case where, upon proper proof, an order to hold to bail might be made. The officer had jurisdiction of the matter, and acted judicially in making the order, and it was clear he could not be made answerable as a trespasser for an error in judgment. In Stewart v. Hawley, 21 Wend. 552, the case arose upon the statute in regard to the observance of the Sabbath, which prohibited servile laboring or working on that day. The defendant, who was a magistrate, issued his warrant for the arrest of the plaintiff upon a complaint charging that he was on the Sabbath day per

ment to the plaintiff in a justice's court in a | der to hold to bail against a motion to set it case where, by law, he was not entitled to it, acted as a discontinuance, and that the case, as between the parties, was out of court, and the justice had no jurisdiction to proceed further. Proudfit v. Henman, 8 Johns. 391. In such case, the justice, notwithstanding the adjournment, assumed to retain jurisdiction, and rendered judgment and issued execution, and defendant's property was sold under it. It was held that the justice was not liable as a trespasser. It was said the court had jurisdiction over the parties and over the question of adjournment; and although he had, in reality, no legal power to grant the adjournment, and the case was thereby discontinued as between the parties, and any judgment thereafter ren-sonally engaged in circulating a memorial to dered liable to be reversed, yet the justice was the Legislature at its next session; and, upon not liable, because his decision to grant the proof made of that fact on the trial, the plainadjournment, although in a case where he le- tiff was convicted of a violation of the statute. gally had no power, was yet an error of judg- The plaintiff brought his action of trespass to ment, and he was not liable, because he had recover damages, but the court held that, when jurisdiction, and was called upon to decide. complaint was made, the defendant was bound Horton v. Auchmoody, 7 Wend. 200. So in to entertain it, and exercise his judgment on it, the case in Re Faulkner, 4 Hill, 598, it was held and whether the facts disclosed showed prima that, in order to give jurisdiction to the officer facie a violation of the statute was a question to whom an application is made for a warrant of law, for the erroneous decision of which the against a person as an absconding or a con- defendant was not liable; that he had jurisdiccealed debtor, the affidavits of the two wit- tion to try a person for a violation of the law, nesses required by 2 Rev. Stat., p. 3, § 5, must and he was therefore compelled to decide in a state facts, and mere information and belief will case where jurisdiction over the subject matnot answer. And yet in Harman v. Brother-ter belonged to him. Other cases of a someson, 1 Denio, 537, the affidavit stated the facts only on information and belief; and it was held that, though insufficient to sustain the or

restitution of the property in good faith, exemplary damages were not recoverable from him. Smith v. Holland (Tex. App.) May 20, 1891.

A judge of a superior court is not liable for committing a defendant for contempt for refusal to pay alimony pending an appeal from a former order of the same kind. Ross v. Griffin, 53 Mich. 5. Where the chancellor, who had committed a person for contempt of court, recommitted him after he had been discharged by the supreme court on habeas corpus, he was held exempt from suit although the judgment was erroneous. Yates v. Lansing, 5 Johns. 290, affirmed, 9 Johns. 395, 6 Am. Dec, 290.

So where a justice of the peace having power to commit for contempt commits a person and on such person's being liberated recommits him for the same offense, such justice is not liable. Cooke v. Bangs, 31 Fed. Rep. 640.

Where a judge, after acquiring jurisdiction of an application for a warrant of commitment, is served with an injunction staying further proceedings and suspends the matter instead of adjourning it, and after the dissolution of the injunction pronounces judgment in the absence of the defendant, there is a mere error of judgment and not lack of jurisdiction so as to render him liable. Stanton v. Schell, 3 Sandf. 323.

Malice or impure motives. Much of the authority upon this question is found in general expressions which amount to little more than dicta, as

Judges of superior courts are not civilly liable for anything done by them in a judicial capacity. Borden v. State, 11 Ark, 519, 54 Am. Dec. 217.

No action lies in any case for misconduct or delinquency, however gross, in the performance of judicial duties. Wilson v. New York, 1 Denio, 599. A justice of the peace for any act done in his ju

what similar import are cited in the learned opinion of Mr. Justice Hardin in the court below.

dicial capacity is not liable in a civil action. Tyler v. Alford, 38 Me. 530.

Or, coming a little closer to the question,
A judicial officer is not liable civilly unless he
acts willfully or corruptly. Wasson v. Mitchell, 18
Iowa, 153.

No action lies against a justice of the peace for an act done judicially and within the scope of his jurisdiction, unless he acts corruptly or from impure motives (Gregory v. Brown, 4 Bibb, 28, 7 Am. Dec. 731); or unless fraud or collusion is shown. Peake v. Cantey, 3 McCord, L. 71.

But there are some direct expressions of opinion upon the subject. In Bradley v. Fisher, 80 U. S. 13 Wall. 335, 20 L. ed. 646, the Supreme Court of the United States calls particular attention to the subject by correcting an expression in Randall v. Brigham, 74 U. S. 7 Wall. 523, 19 L. ed. 285, and states: "Judges of courts of superior and general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly." See also Fray v. Blackburn, 3 Best & S. 575; Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 131; Elmore v. Overton, 2 West. Rep. 309, 104 Ind. 548, 54 Am. Rep. 343.

A declaration charging a justice of the peace with willfully and maliciously receiving a false and groundless complaint which resulted in the willful and malicious conviction and sentencing of complainant to pay a fine and his committal to prison was held bad. Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652.

An action will not lie for official misconduct in a judicial officer, though of special and limited jurisdiction, and though such misconduct be corrupt and malicious, if a statute declare his own record to be conclusive evidence in all courts of the facts therein contained. Cunningham v. Bucklin, 8 Cow. 178, 18 Am. Dec. 432.

We are inclined to think that this was not a case for holding the magistrate liable to an action on the part of the plaintiff in the nature of trespass to recover damages for his illegal imprisonment. In this case there seems to have been no question but that the justice, in all that he did, acted in entire good faith. The district attorney appeared for the people before the magistrate, and contended that the magistrate had exclusive jurisdiction to try the case under the particular statute. The justice so decided. The Court of Sessions of Jefferson County, upon appeal, concurred in that construction of the statute; and although the general term of the supreme court came to a different conclusion, in the correctness of which we concur, it is yet manifest that there was at least color for different constructions of the terms of the Act. It would be a pretty hard rule which, under such circumstances, should hold a magistrate liable to be cast in damages for an honest mistake in judgment

An action will lie against a justice who corruptly | refuses to take security required to be given on the prosecution of an appeal, such proceedings being of a ministerial and not a judicial character. Tompkins v. Sands, 8 Wend. 462, 24 Am. Dec. 46; Hardison v. Jordan, Cam. & N. (N. C.) 454.

Officiousness; intermeddling; corrupt use of authority. If the magistrate acts officiously in issuing a warrant for arrest without a complaint on oath or personal knowledge that a complaint has been made he is liable. Flack v. Harrington, 1 Ill. 165, 12 Am. Dec. 170.

Where a justice issued an execution against the body of a defendant who was by law privileged from imprisonment voluntarily, and without the request or authority of the plaintiff, he was held liable to an action of false imprisonment. Percival v. Jones, 2 Johns. Cas. 49.

Where a justice of the peace instigated the execution of a state warrant for felony nine months after the warrant had issued, the party who procured it having made no recent application to have it executed, doing so from motives of personal ill-will, he was held liable. Garvin v. Blocker, 2 Brev. 157.

upon a question of law in a proceeding over which he had jurisdiction up to the moment when he was called upon to decide the question. It seems to us there is no public policy which demands such a measure of liability on the part of inferior magistrates, and we think we are not overruling any case in this or in the old supreme court. The rule is clear enough; but in this as in so many other cases the difficulty consists in its proper application. We have, as we believe, properly applied it in this case. We have also looked at the other questions appearing in the record, the exceptions of the plaintiff taken on the trial, and the rulings of the court thereon, and we think no error was committed calling for a new trial.

The order of the General Term granting a new trial must therefore be reversed, and the judgment of nonsuit affirmed, with costs to the defendants in all courts.

So where the justice, after finally disposing of a cause, committed a witness to prison for contempt at the trial, he was held liable to an action by the witness. Clarke v. May, 2 Gray, 410.

Where a justice, after finding one guilty of destroying game who had effects which might have been distrained, sent him immediately to prison without endeavoring to levy a distraint, he was liable. Hill v. Bateman, 1 Strange, 710.

If upon regular conviction the magistrate pro-ceeds to commit the party, an action will lie if the warrant of commitment does not show an offense over which he had jurisdiction. Wickes v. Clutterbuck, 2 Bing. 483.

Where a justice regularly imposed a fine with imprisonment for ten days in default of payment, and issued his warrant of commitment reciting judgment for the fine and that in default of payment defendant be imprisoned until the fine was paid or until discharged by due course of law, he was held liable for issuing the warrant. La Roe v. Roeser, 8 Mich. 537.

Where a justice of the peace caused an action to be instituted upon a promissory note of which he was the owner returnable before himself, and rendered In receiving a bond for the prosecution of an judgment, issued execution, and caused defend- appeal, a justice acts as ministerial officer, and if ant's arrest and commitment to jail, he was held he refuses it without objection to its legal suffiliable in trespass. Dyer v. Smith, 12 Conn. 384. ciency, he will be liable. People v. DutchessSo in an action of unlawful imprisonment evi-County Ct. Judges, 7 Cow. 487; Tompkins v. Sands, dence is competent that defendant as a trial justice suffered plaintiff, whom he had sentenced to pay a fine, tofgo'at large and ten weeks after committed him to jail for the purpose of extorting money from him. Fisher v. Deans, 107 Mass. 118. 14 L. R. A.

8 Wend. 468, 24 Am. Dec. 46.

Taking insufficient security upon an appeal bond will not render a justice liable unless he acted from corrupt motives. Lester v. Governor, 12 Ala. 624. H. P. F.

NEW YORK COURT OF APPEALS (2d Div.).

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