But while such a state of friendly or hostile relation to one of the parties is sometimes made a cause of recusation by statute, and sometimes held to be sufficient cause for challenging the judge, independently of any statute on the subject, it is such an objection as may be waived by the parties; and if not made before issue joined, or, as held in some cases, before trial, the judgment or proceedings are valid, and can not thereafter be questioned on that ground.

64. LIABILITY OF JUDGE ACTING WITHOUT JURISDICTION.—If a judge acts to the injury of another, respecting a subjectmatter over which he is wholly without jurisdiction, or where he has not jurisdiction of the person, he is liable as a trespasser for such acts. But if he has jurisdiction of the subject-matter and of the person, and acts beyond, or in excess of his jurisdiction, he can not be held so liable.3 Nor can he be held liable for error in judgment where he has jurisdiction, although such error may be shown to be the result of a lack of due care and prudence, or where the act is shown to have been done maliciously or corruptly.5

and in presence of the adverse party, may yet find that he has been imposed upon by artful statements designed to create a prejudice in his mind relative to the case. In such a case, he may well decline to sit in the case. Williams v. Robinson, Cush. 334; Rev. Stat., c. 176, sec. 22; Stat. 1855, c. 1659, sec. 23." Moses v. Julian, 45 N. H. 52; 84 Am. Dec. 114, 121.

1

2

3

1 Ante, secs. 49, 62; Moses v. Julian, 45 N. H. 52; 84 Am. Dec. 114.

Bradley v. Fisher, 13 Wall. 335; Lange v. Benedict, 73 N. Y. 12; 29

Am. Rep. 80; Lancaster v. Lane, 119 Ill. 242; Inos v. Winspear, 18 Cal. 397. Bradley v. Fisher, 13 Wall. 335; Stewart v. Cooley, 23 Minn. 347; 23 Am. Rep. 690, 692, note; Lancaster v. Lane, 119 Ill. 242; Yates v. Lansing, 5 Johns. (N. Y.) 282; 6 Am. Dec. 290; Taylor v. Doremus, 16 N. J. Law, 473; Grove v. Van Duyn, 44 N. J. Law, 654; 43 Am. Rep. 412.

4 Ayres v. Russell, 3 N. Y. Supl. 338; Merwin e. Rogers, 2 N. Y. Supl. 396; Turpen v. Booth, 56 Cal. 65; 38 Am. Rep. 48.

5 Bradley v. Fisher, 13 Wall. 335; Merwin v. Rogers, 2 N. Y. Supl. 396; Taylor v. Doremus, 16 N. J. Law, 473; Pratt v. Gardner, 56 Mass. (2 Cush.) 63; 48 Am. Dec. 652; Turpen v. Booth, 56 Cal. 65; 38 Am. Rep. 48; Pickett v. Wallace, 57 Cal. 555.

"Nor can this exemption of the judges from civil liability be affected

.

The test of liability, or the dividing line between such wrongful or erroneous acts as are actionable or not, is that which distinguishes judgments or proceedings which are absolutely void for want of jurisdiction, and such as are merely voidable or erroneous.1 But immunity from civil action, where the act appears to have been corruptly or maliciously done, does not extend to quasi judicial officers, such as assessors of land for taxation and the like.2 And a judge may be held liable for a willful and malicious conspiracy with others to prosecute, through his court, an innocent party, although his acts in court, in furtherance of such conspiracy, are not actionable.3

by the motives with which their judicial acts are performed. The purity of their motives can not in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608 (12 Coke, 25), where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their records, except before the king himself, and it was observed that if they were required to answer otherwise, it would tend to the scandal and subversion of all justice, and those who are the most sincere would not be free from continual calumniations.'" Bradley v. Fisher, 13 Wall. 335.

1
1 Bradley v. Fisher, 13 Wall. 335.

"The general rule, which applies to all such cases, and which is to be observed in this, has been in olden times stated thus: Such as are by law, made judges of another, shall not be criminally accused, or made liable to an action for what they do as judges; to which the Year Books (43 Edw. 3, 9; 9 Id. 4, 3) are cited in Floyd v. Baker (12 Coke, 26). The converse statement of it is also ancient; where there is no jurisdiction at all, there is no judge; the proceeding is as nothing (Perkin v. Proctor, 2 Wilson, 382-384), citing the Marshalsea case (10 Coke, 65–76), which says: Where he has no jurisdiction, non est judex.' It has been stated thus, also: No action will lie against a judge, acting in a judicial capacity, for any errors which he may commit, in a matter within his jurisdiction. (Gwynne e. Pool, Lutw. 290.) It has been, in modern days, carried somewhat further, in the terms of the statement: Judges 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 and corruptly. (Bradley r. Fisher, 13 Wall. 351.)" Lange v. Benedict, 73 N. Y. 12, 25; 29 Am. Rep. 80.

2 Cooley on Torts, 411; Elinore v. Overton, 104 Ind. 548; 54 Am. Rep.

3

Stewart v. Cooley, 23 Minn. 347; 23 Am. Rep. 690.

If a judge is called upon to decide whether, under a given state of facts, he should act or not, and he has power to determine such question, the fact that he determines this preliminary question wrongly, and follows it by acting where he has in fact no jurisdiction to proceed, does not render him liable. The determination of the preliminary question is a judicial act, and what follows is the execution of a merely erroneous decision, for which he can not be held personally responsible.' But it is dif ferent where no facts are shown to authorize the assump

1 Ayers. Russell, 3 N. Y. Supl. 338; Bocock v. Cochran, 32 Hun (N. Y.), 521, 523; Stewart v. Hawley, 21 Wend. 552; Clark v. Spicer, 6 Kan. 440.

"The defendant, the recorder, had the powers of a judge of a court of record. His approval of the certificate of the physician was a judicial act. It was an act analogous to the issuing of a warrant for the arrest of an alleged criminal upon information verified by oath. If the information fills the requirements of the statute, the magistrate's jurisdiction is complete. But the information may be incomplete in fact. Some essential specified in the statute may be omitted. The magistrate may not be learned in the law, or, if learned, not always sound in judgment. He looks at this information, and decides that a case exists, when in fact and in law there is no case. He issues his warrant when he ought not, and the result is that a man who has committed no crime, and against whom no crime is alleged, is arrested, and temporarily deprived of his liberty. In one aspect of the case the magistrate had no jurisdiction, because the law gives him no jurisdiction to issue a warrant unless it appears that an offense has been committed, and there is reasonable cause to believe that the accused committed it. A judge upon habeas corpus ought to decide that the magistrate had no jurisdiction to issue the warrant. Why, then, can not the magistrate be pursued by the injured individual? Because, when the information was presented to him, it was his duty to decide what his duty was respecting it. He had jurisdiction of that question, and his wrong decision upon it was a judicial error. He had a duty to perform, and the law does not punish him for a mistake in trying to do it right. In Lange v. Benedict, 73 N. Y. 35, the judge pronounced a sentence which he had no jurisdiction to pronounce, but he supposed he had, and it was his duty to decide whether he had or not. He had the statute for his guide; but he had to interpret the statute, and he did not interpret it aright. But he had to decide; he was no mere volunteer. He made a mistake; but he made it in the discharge of his master's (the government's) business, and his wrongful act was the government's, not his own, and he incurred no personal liability." Ayers v. Russell, 3 N. Y. Supl. 338, 340.

tion of jurisdiction, as in that case the question of the sufficiency of the facts does not arise, and there is nothing to decide and no foundation whatever for subsequent acts done.1

It has been held that where a justice of the peace is authorized to issue his warrant only upon a complaint in writing being filed charging a person with the commission of an offense, and a warrant is issued upon a complaint charging a bare trespass, and not a public offense, the justice issuing the warrant is liable to a civil action therefor." But this does not accord with the rule as above stated, nor with the weight of authority on the subject. It was for the justice to decide whether the facts charged in the complaint constituted an offense or not, and for an error in his determination he should not be held liable.

The protection accorded extends only to such acts as are done by a judge, as such, and in his judicial capacity.3 And in some of the cases the rule is confined to judges of courts of superior jurisdiction. So in other cases a judge of a court of inferior or limited jurisdiction is held to be liable for an act done in excess of his jurisdiction. But we apprehend that at the present day the protection extends equally to courts of inferior or limited jurisdiction, under the same circumstances, although the manner of establishing the jurisdiction of the two classes of courts

1

1 Blodgett v. Race, 18 Hun, 132; Bocock v. Cochran, 32 Hun, 521, 523; Truesdell v. Combs, 33 Ohio St. 186.

2 Truesdell v. Combs, 33 Ohio St. 186, 192.

"It is to be seen that in these different modes of stating the principle, there abides a qualification. To be free from liability for the act, it must have been done as judge, in his judicial capacity; it must have been a judicial act. So it always remains to be determined, when is an act done as judge, in a judicial capacity? And this is the difficulty which has most often been found in the use of this rule, and which is present here; to determine when the facts exist which call into play that qualification." Lange v. Benedict, 73 N. Y. 12, 25; 29 Am. Rep. 80.

'Bradley v. Fisher, 13 Wall. 335; Lange v. Benedict, 73 N. Y. 12, 27; 29 Am. Rep. 80.

5 Piper v. Pearson, 68 Mass. (2 Gray), 122; 61 Am. Dec. 438; Clarke r. May, Id. 410; 61 Am. Dec. 470; Truesdell v. Combs, 33 Ohio St. 186.

may be different.' It is not necessary that the facts shown in the particular action bring the case within the jurisdiction of the court or state a cause of action. It is enough if the court or judge has jurisdiction, generally, of the subject-matter to which the action relates.2

The immunity of judges from civil actions for acts done by them is not so much out of consideration for them as for the position they occupy and the functions they exercise. It is to preserve the independence and authority of the judiciary, and preserve its respect. The exemption is

1 1 Ante, secs. 20, 22, 23, 25; Merwin v. Rogers, 2 N. Y. Supl. 396; Cooley on Torts, 408-410; Lancaster v. Lane, 19 Ill. 242; Bocock v. Cochran, 32 Hun (N. Y.), 521; Fausler v. Parsons, 6 W. Va. 486, 491; 20 Am. Rep. 431; Yates v. Lansing, 5 Johns. (N. Y.)282, 292; East River Gas L. Co. v. Donnelly, 25 Hun, 614; Pratt v. Gardner, 56 Mass. (2 Cush.) 63; 48 Am. Dec. 652.

2 Ante, sec. 8; Hunt v. Hunt, 72 N. Y. 217, 228; 37 Am. Dec. 130; Lange v. Benedict, 73 N. Y. 12, 27; 29 Am. Rep. 80.

Jurisdiction of the subject-matter is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case arising, or which is claimed to have arisen, under that general question. One court has jurisdiction in criminal cases; another in civil cases; each in its sphere has jurisdiction of the subject-matter. Yet the facts, the acts of the party proceeded against, may be the same in a civil case as in a criminal case-as, for instance, in a civil action for false and fraudulent representations and deceit, and in a criminal action for obtaining property by false pretenses. We should not say that the court of civil powers had jurisdiction of the criminal action, nor rice versa, though each had power to pass upon allegations of the same facts. So that there is a more general meaning to the phrase 'subject-matter" in this connection, than power to act upon a particular state of facts. It is the power to act upon the general, and, so to speak, the abstract question, and to determine and adjudge whether the particular facts presented call for the exercise of the abstract power." Hunt v. Hunt, 72 N. Y. 217, 229; 37 Am. Dec. 130. 3 Fausler v. Parsons, 6 W. Va. 486, 490; 20 Am. Rep. 431. "The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. Such an exemption is absolutely essential to the very existence, in any valuable form, of the judicial office itself; for a judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malignant or disappointed suitor. Hence we find this