imposed a penalty recoverable by a common informer. The principle laid down in that case, that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of it may bring an action against the person on whom the duty is imposed, unless such remedy is impliedly excluded by the statute itself, was questioned in Atkinson v. Newcastle Waterworks Co., 2 Ex. D. 441, 46 L. J. Ex. 775. Exception was also taken to the position that where the penalty is not to go to the party grieved, he may maintain an action, although were the penalty made payable to him, he would have no other remedy; and it was pointed out that the intention must be gathered in each case from the general purview of the particular statute, a distinction being drawn between those which affect the rights of the whole public and those which partake of the nature of private legislation. It was held in that case that an action would not lie against a waterworks company for breach of a duty imposed on them by the Waterworks Clauses Act, 1847, and in respect of which a penalty was made recoverable by an informer, of keeping their pipes charged with water at a certain pressure, whereby the plaintiff, who, under the act, would have been entitled to use the water, was prevented from extinguishing a fire in his house; and see Gorris v. Scott, L. R. 9 Ex. 125; Ross v. Rugge Price, 1 Ex. D. 269, 45 L. J. Ex. 777; The Guardians of Holborn Union v. Vestry of St. Leonards, 2 Q. B. D. 145, 46 L. J. Q. B. 36; Vallence v. Falle, 13 Q. B. D. 109, 53 L. J. Q. B. 459.]

For some particulars of a [later] memorable conflict between the House of Commons and the Court of Queen's Bench, which cannot be stated within the limits of a note, see Stockdale v. Hansard, 7 C. & P. 731, 9 A. & E. 1, 11 A. & E. 253; the case of the Sheriff of Middlesex, 11 A. & E. 273; the statute of 3 & 4 Vict. c. 9; Stockdale v. Hansard, 11 A. & E. 297; Howard v. Gossett, 1 Car. & K. 380; Howard v. Gossett, 10 Q. B. 359; Gossett v. Howard, 10 Q. B. 411; Kielly v. Carson, 4 Moore, P. C. 63; and May's Law of Parliament, 125. [As to rights claimed by colonial legislatures similar to those of the House of Commons, see Speaker of Victoria v. Glass, L. R. 3 P. C. 560. Ashby v. White appears to have been acted upon in Milward v. Serjeant, Hil. T. 1786, without any interference upon the part of the House of Commons. See 1 East, 567, note; and 2 Luders, 248.]

It is not easy to gather from the imperfect reports of this case upon what precise grounds it was decided. The declaration charged the defendants, the presiding officers at the election, with malice in rejecting plaintiff's vote, and the jury found a verdict for plaintiff. Judgment upon this verdict was arrested in King's Bench by the vote of three judges against Ld. Holt, and judgment given for defendants. Upon a writ of error the House of Lords reversed this judgment, and gave judgment upon the verdict for plaintiff.

As stated by Ld. Ch. J. Abbott in Cullen v. Morris, 2 Starkie 577, at p. 588, “when a writ of error was brought, the record itself was conclusive as to the malice of the defendants, since the court could look at nothing beyond the record."

The reports, however, nowhere inform us of the character of the duties of the defendants; whether they were entirely ministerial or wholly judicial, or a mixture of both, we are not told. Nor are we enlightened as to the ground, if any, given for the rejection of the plaintiff's vote.

The malicious rejection of plaintiff's vote would have been actionable, no matter what the character of defendants' duties, whether ministerial or judicial, and, therefore, the nature of their duties became immaterial to the decision of the case.

We are, therefore, not at liberty, as some courts and writers have done, to infer from the fact that a malicious rejection of a vote by a presiding officer is actionable, irrespective of the character of his duties, that, therefore, no matter what the nature of his duties, he cannot be sued unless guilty of malicious or corrupt conduct. This case is not authority for the unlimited proposition that a presiding officer at an election can never be liable for rejecting a vote unless it is done maliciously or corruptly.

The duties of presiding officers at elections. The duties of presiding officers at elections are generally of a mixed character, partly ministerial and partly judicial. For the violation of a ministerial duty, which causes an injury, the general rule applies, that they are liable whether they act in good or in bad faith. So far as their duties are judicial in their nature, i. e. require the exercise of judgment, the same measure of protection is accorded them by the law as is accorded corresponding judicial officers.

Classes of judicial officers. Judicial officers are divided into two broad classes: judges of courts of superior or general jurisdiction and judges of courts of inferior or limited jurisdiction.

Liability of judges of courts of superior jurisdiction. The rule of liability as to judges of courts of superior or general jurisdiction has been laid down by the Supreme Court of the United States in these terms: "Judges of courts of superior or 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. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter.

Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible." Bradley v. Fisher, 13 Wall. 335.

Liability dependent upon jurisdiction. The liability of judges of courts of superior or general jurisdiction, we thus see, depends upon the question whether they act with or without jurisdiction. If they act with jurisdiction, though subsequently they exceed this jurisdiction, they are not liable, and this even though they act maliciously and corruptly. Lange v. Benedict, 73 N. Y. 12; Randall v. Brigham, 7 Wall. 523; Bradley v. Fisher, 13 Wall. 335.

Liable if acting without jurisdiction. If they act wholly without jurisdiction, then they are liable for any resulting wrong, though they act in perfect good faith; Bradley v. Fisher, 13 Wall. 335.

Limitation of last rule. A limitation should be placed upon this last rule, where the want of jurisdiction is occasioned by some fact or circumstance applicable to a particular case of which the judge has neither knowledge nor the means of knowledge; Bradley v. Fisher, 13 Wall. 335; Clarke v. May, 2 Gray 410, and cases cited.

Liability of judges of courts of inferior jurisdiction. The rules governing the liability of judges of courts of inferior or limited jurisdiction are as follows:

Not liable if acting in good faith and within jurisdiction. So long as they act within their jurisdiction and in good faith, they are not liable, no matter how erroneous their judgments; Yates v. Lansing, 5 John. 282; Bailey v. Wiggins, 5 Harr. 462; Phelps v. Sill, 1 Day 315.

-

If they

Liable if acting without, or in excess of, jurisdiction. act without jurisdiction, or in excess thereof, they are liable; Yates v. Lansing, 5 John. 282; Piper v. Pearson, 2 Gray 120; Clarke v. May, 2 Gray 410; Case v. Shepherd, 2 John. Ca. 27; Adkins v. Brewer, 3 Cow. 206.

Even

Liable if acting maliciously though within jurisdiction. though they act within their jurisdiction, yet, if they act maliciously and corruptly, they are liable; Hardison v. Jordan, Cam. & Nor. 512; Bailey v. Wiggins, 5 Harr. 462; Tompkins v.

Sands, 8 Wend. 462; Garfield v. Douglass, 22 Ill. 100. Contra, Pratt v. Gardner, 2 Cush. 63.

Not liable though acting without jurisdiction if occasioned by fact not known to the judge. — Judges of courts of inferior jurisdiction enjoy the same protection against liability as those of courts of superior jurisdiction when the want of jurisdiction is occasioned by a fact or circumstance applicable to a particular case of which the judge had neither knowledge nor the means of knowledge; Clarke v. May, 2 Gray 410, and cases cited; Calder v. Halker, 3 Moore Privy Council 28.

Liability of election officers performing ministerial duties. — Presiding officers of elections, so far as their duties are ministerial, are subject to the general rule applicable to all ministerial officers, and for a misfeasance or non-feasance resulting in an injury they are liable though they act in perfect good faith; Wilson v. The Mayor, etc., of the City of New York, 1 Denio 595; The Rochester White Lead Co. v. The City of Rochester, 3 N. Y. 463; Gillespie v. Palmer, 20 Wisc. 544; People v. Pease, 30 Barb. 588; Goetcheus v. Matthewson, 61 N. Y. 420; Silvey v. Lindsay, 107 N. Y. 55; Spragins v. Houghton, 3 Ill. 377; Bernier v. Russell, 89 Ill. 60; Hyde v. Brush, 34 Conn. 454. Cf. State v. Gordon, 5 Cal. 235.

Liability of election officers performing judicial duties. - So far as presiding officers of elections perform duties judicial in their nature, i. e. requiring the exercise of judgment, they are subject to the same rules as to liability as are judges of courts of inferior jurisdiction.

Acting within jurisdiction and in good faith. —If they act within their jurisdiction and in good faith they are not liable; State v. Porter, 4 Harr. 556; Carter v. Harrison, 5 Black. p. *138; State v. Robb, 17 Ind. 536; Chrisman v. Bruce, 1 Duvall 63; Morgan v. Dudley, 18 B. Mon. 693; Miller v. Rucker, 1 Brush 135; Bevard v. Hoffman, 18 Md. 479; Anderson v. Baker, 23 Md. 531; Elbin and ano. v. Wilson, 33 Md. 135; Friend v. Hamill, 34 Md. 298; Gordon v. Farrar, 2 Doug. 411; Pike v. Megoun, 44 Mo. 491; Wheeler v. Patterson, 1 N. H. 88; State v. Smith, 18 N. H. 91; State v. Daniels, 44 N. H. 383; Peavey v. Robbins, 3 Jones L. R. 339; Jackson v. Waldron, 11 John. 114; Weckerly v. Geyer, 11 S. & R. 35; Moran

v. Rennard, 3 Brewst. 601; Rail v. Potts, 8 Humph. 225; State v. Staten, 6 Cold. 233; Temple v. Mead, 4 Vt. 535; Fausler v. Parsons, 6 W. Va. 486.

Acting without or in excess of jurisdiction. If they act without jurisdiction or in excess thereof, though in perfect good faith, they are liable; State v. Gordon, 5 Cal. 235; Long v. Long, 57 Ia. 497; Goetcheus v. Matthewson, 61 N. Y. 420.

Acting within jurisdiction but with malice. If they act within their jurisdiction but with malice or corruption they will be liable; Chrisman v. Bruce, 1 Duvall 63; Morgan v. Dudley, 18 B. Mon. 693; Pike v. Megoun, 44 Mo. 491; contra, Fausler v. Parsons, 6 W. Va. 486 (semble).

Anomalous decisions. In a few States the decisions are anomalous, and admittedly so.

Massachusetts. -In Massachusetts the early decisions were to the effect that the presiding officers would be liable for the rejection of a vote where the party offering to vote was a legal voter, though no malice was shown; Kilham v. Ward, 2 Mass. 236; Gardner v. Ward, 2 Mass. 244, note; Lincoln v. Hapgood, 11 Mass. 350; Capen v. Foster, 12 Mass. 485; Oakes v. Hill, 10 Pick. 333; Keith v. Howard, 24 Pick. 292; Gates v. Neal, 23 Pick. 308.

In Massachusetts this rule has been somewhat changed, and the voter is now required to present to the election officers "sufficient evidence" of his qualifications as a voter. What is sufficient evidence is ultimately a question for the jury; Blanchard v. Stevens, 5 Met. 298.

Maine. The Massachusetts rule as first established was followed in Maine, in Osgood v. Bradley, 7 Me. 411.

The rule in this State has since been modified, and such officers are not liable unless they are "unreasonable, corrupt, or wilfully oppressive in their official acts; Sanders v. Getchell, 76 Me. 158; Pierce v. Getchell, 76 Me. 216.

Ohio. The rule as originally laid down in Massachusetts seems to be still the law in Ohio; Anderson v. Millikin, 9 Ohio St. 568; Jeffries v. Ankeny, 11 Ohio 372; Thacker v. Hawk, 11 Ohio 376; Monroe v. Collins, 17 Ohio St. 665; Sutton v. McIlhany, 5 W. L. J. 356.

Damage no test of liability; violation of legal right the test. The law guarantees to no man perfect security of reputation,