Powers and Duties. In some States, the appointment of a special judge, or the calling in of a neighboring judge, on affidavit being filed as to the regular official's bias, has been declared by statute to be mandatory. It is to be observed however, that the constitutionality of such enactments, in so far as they allow the regular official chosen by law to be set aside by the ex parte affidavit of a suitor, has been denied in Florida.2 Parties cannot, of their own authority, independently of constitution or statutes, confer judiciai authority. Judgment by the appointee is a nullity.3 Consent does not estop from denial of jurisdiction. But the Kentucky court have held that agreement upon matters of fact touching election of special judge, whereby the choice is relegated to the Governor, is binding.5 In the notes, cases in various States are referred to concerning the persons empowered to appoint special judges. But local 1. Burkett v. Holman, 104 Ind. 6; Krutz v. Griffith, 68 Ind. 444; Shoemaker v. Smith, 74 Ind. 71; Heshion v. Pressley, So Ind. 490; Hamilton v. Territory, Wy. Ter. 131; Wyoming Code, § 115; Corpenny v. Sedalia City, 57 Mo. 88; Barnes v. McMullins, 78 Mo. 265. And see State v. Judge, 37 La. An. 253; State v. Judge, 39 La. An. 994; Hunter v. Blackman, Man. (La.) 427. In Kentucky, such a statute was condemned as lowering the dignity of the bench, and rigid construction was declared proper. Byran v. Holliday, 84 Ky. 18. But defendant's disarming power ceases with its first exercise, or else he might go quit of punishment. State v. Greenwade, 72 Mo. 298. 2. See infra, this title, DISQUALIFI CATION. 3. Wright v. Boon, 2 Gr. (Iowa) 458; Hyllis v. State, 45 Ark. 478; Herbster v. State, 8o Ind. 484; McClure v. State, 77 Ind. 287; Glasgow v. State, 9 Baxt. (Tenn.) 485; Haverly Invincible Mining Co. v. Howcutt, 6 Colo. 574; Winchester v. Ayres, 4 G. Greene (Iowa) 104; Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 Ill. 601; Cobb v. People, 84 Ill. 511; Cooley's Cons. Lim. 399. Any doubt in Smith v. Frisbie, 7 Iowa 486, would therefore seem taken away. 4. Herbster v. State, 8o Ind. 484; Haverly Invincible Mining Co. v. Howcutt, 6 Colo. 576; Hoagland v. Creed, 81 Ill. 506; Castleberry v. State, 68 Ga. 49. See also JURISDICTION. "Had we jurisdiction of moral estoppels, our conclusions different." Haverly Invincible Co. v. might be Howcutt, 6 Colo. 574, 576. 30 5. Kennedy v. Com., 78 Ky. 447. 6. Appointment of Special Judges.Special judge cannot appoint substitute. officials may appoint Cargar v. Fee, 119 Ind. 536. County Feigel v. State, 85 Ind. 580, 582; Indiin Indiana. ana R. S. 1881, § 1381. Counsel may appoint. Reeves v. Graffling, 67 Ga. 512; Early v. State, 9 Tex. App. 476; Thompson v. State, 9 Tex. App. 301. Election by the bar may be had. Arkansas Cons. (1874), art. 7, § 21; HylBeard, 39 Ark. 254; Neal v. Shinn, 49 lis v. State, 45 Ark. 478; Dansby v. Ark. 227; Rudd v. Woolfolk, 4 Bush (Ky.) 555; Kennedy v. Com., 78 Ky. 159. 447; Legan v. State, 3 Heisk. (Tenn.) But compare Grinstead v. Buck(1871), § 536; Butler v. State, 57 Miss. ley, 32 Miss. 148; Mississippi Code Parties may nominate. Henderson v. 630; Peter v. State, 6 How. (Miss.) 326. Pope, 39 Ga. 361; Alabama etc. R. Co. v. Burkett, 42 Ala. S4. But not in Arkansas. Dansby v. Beard, 39 Ark. 254. Nor in Tennessee. Glasgow v. State, when two supreme court justices are 9 Baxt. (Tenn.) 485. În Alabama, disqualified, parties may consent on Donnell v. Hamilton, 77 Ala. 610. See record to decision by remaining justice. Freeman on Judgments (3rd ed.), § 147; also Bullard v. Lambert, 40 Ala. 204: etc. R. Co. v. Burkett, 42 Ala. 83; Walker v. Rogan, 1 Wis. 597; Alabama Rep. 409, 429. State v. Carroll, 38 Conn. 449; 9 Am. In Texas, where parties do not agree, the governor appoints. Thompson v. State, 9 Tex. App. 301. Where plaintiff alone chooses, judgment is voidable. Castles v. Burney, 34 Tex. 470. Regular judge may appoint. statutes should be consulted. In States where such judges may be agreed upon by parties, consent cannot be presumed against parties only constructively before the court, nor against minors or married women, nor against purchasers not parties to the original record. The State may consent through her attorneys.2 VI. JUDGES AS WITNESSES.-A judge, necessary to the composition of the court, does not, by going on the witness stand, thereby cause a loss of jurisdiction. But his doing so seems error; and if objection is made, and exception taken, it is fatal to the judgment. Though it seems that jurors may be witnesses in cases before them, the objection to the competency of a presiding judge as a witness rests on an entirely different ground. "It goes to the power of the court-the power to administer the oath, to decide on a question of competency, or the admissibility of parts of evidence, to commit for refusing to answer, and to exercise over the witness all the other powers of the court which may be called into acquisition for the protection of the rights of the party." 6 Some old authorities have even disapproved of judges going on the witness stand in cases wherein they are not presiding. Fassinon v. State, 89 Ind. 335; State v. Murdock, 86 Ind. 124; Zonker v. Cowan, 84 Ind. 395; Feigel v. State, 85 Ind. 580; Bowlus v. Brier, 87 Ind. 391; Sherer v. Ingerman, 110 Ind. 428, 439; Cargar v. Fee, 119 Ind. 536; Grinstead v. Buckley, 32 Miss. 148. In such case the supreme court will not interfere unless abuse of discretion is shown. Kane v. State, 71 Ind. 559. As to personal interest of apppointing judge, see Grinstead v. Buckley, 32 Miss. 148; State v. Judge, 38 La. An. 452. Or his personal hostility. Turner v. Com., 2 Met. (Ky.) 619. If special judge declines, authority revests in regular judge. Cargar v. Fee, 119 Ind. 536; State v. Millsops, 39 La. An. 793 (distinguish ing State v. Judge, 37 La. An. 394). Compare Byran v. Holliday, 84 Ky. 18. If special judge declines, the governor appoints. Walker v. Sneed, 7 Ark. 233; Thompson v. State, 9 Tex. App. 301. 1. Rudd v. Woolfolk, 4 Bush (Ky.) 555. 2. Early v. State, 9 Tex. App. 476; on this point overruling Murray v. Smith, 34 Tex. 331, and approving Davis v. State, 44 Tex. 523. 3. People v. Dohring, 59 N. Y. Supr. 374 (overruling, on this point, Dohring v. People, 2 Thomp. & C.458). 4. People v. Dohring, 59 N. Y. 374. 5. Best on Ev., § 169. It will be remembered that in ancient times jurors But were the witnesses of the vicinage where the facts transpired. See JURY AND JURY TRIALS. 6. Best on Ev., § 188. See Regina v. Gazard, 8 C. & P. 595; Buccleugh v. Metropolitan Board of Works, L. R., 5 H. L. 418, 433; Rex v. Harvey, 8 Cox C. C. 103. 7. "With respect to those who fill the office of judges, it has been felt that there are grave objections to their conduct being made the subject of crossexamination and comment, and as everything which they can properly prove can be proved by others, the courts of law discountenance, and I think I may say prevent, their being examined." Per CLEASBY, B., in Buccleugh (Duke of) v. Metropolitan Board of Works, L. R., 5 H. L. 418, 433. As to an arbitrator, however, the case just cited decides that he may be called in a proceeding to enforce his award. υ. And in R. v. Harvey, 8 Cox C. C. 103, BYLES, J., said that "the judges of the superior courts ought not, of course, to be called upon to produce their notes. If he were to be subpoenaed for such a purpose he should certainly refuse to appear. But the same objection was not applicable to the judges of the inferior courts. He saw no reason why they should not be called, and especially where, as in this case, the judge was willing to appear." this extreme view has not prevailed. Thus a judge may be called to prove his notes,2 or to prove what evidence was given by a witness, on a former occasion.3 The mental conclusions, or grounds, upon which a judge arrived at decision cannot be testified to by such judge on another trial; for instance, to prove his being unaffected by any interest in that he had resolved not to assert it. Whether a judge can be compelled to go on the stand, in a case not before him, does not seem to have been decided. VII. LIABILITY FOR ACTS AND OPINIONS-1. General Rule-Remedy by Impeachment.—A judge, either supreme or subordinate, acting within his jurisdiction, is not liable in an action for damages for any opinion he may deliver as such. If he should be guilty of misconduct, the remedy is by impeachment or address.5 1. People v. Dohring, 59 N. Y. 374. 1 Gr. Ev., § 364, citing Glassford Ev., p. 602; Tait Ev. 432; Stair's Inst., bk. 4, tit. 45, 4; Erskine's Inst., bk 4, tit. 2, 33; Spanish Law, Partid. 3, tit. 16, 1. 19; Moreau & Carl. Tr., p. 200. See also Ross v. Buhler, 2 Mart., N. S. (La.) 312, where it was held that one cannot be examined as a witness at a trial where he sits as judge. See also People v. Miller, 2 Park. Cr. Cas. (N. Y.) 197; Morss v. Morss, 11 Barb. (N. Y.) 510; I Whart. Ev. 600; Reynold's Stephen on Ev. 163. And in Maine the supreme court said that public policy authorizes a judge of a court to excuse himself from testifying as to what witnesses have testified on trials before him; but that it furnishes no ground of exception, should he not insist upon his right to be excused. Welcome v. Batchelder, 23 Me. 85. "The inclination of the courts has been to hold that when it is necessary for the conduct of the trial that one should act as judge, he may not be called from the bench to be examined as a witness; but when his action as a judge is not required, because there is a sufficient court without him, he may become a witness, though it is then decent that he do not return to the bench." People v. Dohring, 59 N. Y. 374. 2. Judge's Notes.-Whart. Ev., § 600; Grimm v. Hamel, 2 Hilt. (N. Y.) 434; Zitske v. Goldberg, 38 Wis. 216, 229; Miles v. O'Hara, 4 Binn. (Pa.) 108; Welcome v. Batchelder, 23 Me. 85; Corby v. Wright, 9 Mo. App. 5. If he can testify that the notes were full, or that it was his practice in such cases to take full notes. Schall v. Miller, 5 Whart. (Pa.) 156; Huff v. Bennett, 4 Sandf. (N. Y.) 120. Notes Are Not Proof Themselves.-In the absence of statutory provision otherwise, a judge's unproven notes of testimony are not admissible to prove what was testified to at the trial wherein they were taken. Zitske v. Goldberg, 38 Wis. 216. In re Larmouth, 6 Madd.. Ch. (Eng.) 113; Conradi v. Conradi, L. R., 1 P. & D. 520; Grimm v. Hamel, New York Common Pleas, 2 Hilt. (N.. Y.) 434; Green v. Brown, 3 Barb. Sup.. Court (N. Y.) 119; Lawrence v. Barker, 5 Wend. (N. Y.) 301; Feeter v. Heath, 11 Wend. (N. Y.) 477; Greenl. Ev., §§. 436, 437; Whart. Ev., § 180; Miles v. O'Hara, 4 Binn. (Pa.) 108; Livingston. v. Cox, 8 W. & S. (Pa.) 61. 3. Supples v. Cannon, 44 Conn. 424, 426, 430. 4. Agan v. Hey, 30 Hun (N. Y.) 591 (denying dictum in Royce v. Burt, 42Barb. (Ñ. Y.) 655, 666, and distinguishing Doty v. Brown, 4 N. Y. 71, in which last case no such evidence as this was offered); and compare Washington etc. Packet Co. v. Sickles, 5 Wall. (U. S.). 593. Compare Sigourney v. Sibley, 21 Pick. (Mass.) 101. Referee. In Morss v. Morss, 11 Barb. (N. Y.) 510, it was held that one of three referees, before whom a cause is being tried, cannot be sworn and examined as a witness on that trial. Arbitrators as Witnesses.-See Habershon v. Toby, 3 Esp. 38 (see also Supples v. Cannon, 44 Conn. 424, 433); Ellis v. Saltan, 4 C. & P. 327; ARBITRATION, vol. 1, p. 691. 5. Authorities cited under COURTS, vol. 4, p. 449. In Lange v. Benedict, 73 N. Y. 12 (s. c., 29 Am. Rep. 8o), a United States circuit judge, who resentenced a convicted person, when he could not legally do so, was held not liable for his error.. 2. Liability as Affected by Jurisdiction.-(a) Superior Courts.Where a judge acts without any jurisdiction, he is liable.1 In the case of courts of general and superior jurisdiction, the presumption is that they act within their jurisdiction; and unless a clear absence of all jurisdiction is shown, a judge of such court cannot be held liable for his actions.2 (b) Inferior Courts. -The rule protecting judges from civil liability exists just as fully in favor of the judge, justice, or magistrate of an inferior court, as it does in favor of the judges of the superior courts, so long as the inferior judge acts within his jurisdiction.3 1. Bradley v. Fisher, 13 Wall. (U. S). 335; Calder v. Halket, 3 Moo. P. C. 75. 2. Bradley v. Fisher, 13 Wall. (U. S.) 351; Lange v. Benedict, 73 N. Y. 12; s. c., 29 Am. Rep. 8o; Bradley v. Fisher, 13 Wall. (U. S.) 335. Distinction between absence of all jurisdiction and excess of jurisdiction was also taken in the king's bench in Ackerley v. Parkinson, 3 Mau. & Selw. 411; Mills v. Collett, 6 Bing. 11. And see also Lange v. Benedict, 73 N. Y. 12; McCall v. Cohen, 16 S. Car. 445; Busteed v. Parsons, 54 Ala. 393. "A distinction must be 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. But where jurisdiction over the subject matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case. Thus, if a probate court, invested with authority only over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in his court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and pro12 C. of L.-3 33 ceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration whenever his general jurisdiction over the subject matter is involved." 3. Inferior Judges.-The general rule protecting judge applies to inferior judges. Wasson v. Mitchell, 18 Iowa 153; Londegan v. Hammer, 30 Iowa 508. Justice of the peace. Pratt v. Gardner, 2 Cush. (Mass.) 63, 68; State v. Hartwell, 35 Me. 129: Lane v. Crosby, 42 Me. 327; Willey v. Strickland, 8 Ind. 453; Monney v. Williams, 15 Miss. 442; Wright v. Hazen, 25 Vt. 143; Clark v. Spicer, 6 Kan. 440; Lancaster v. Lane, 19 Ill. 242. Contempt of Court.-Lining v. Bentham, 2 Bay (S. Car.) 1; Burnham v. Stevens, 33 N. H. 247; Morrison v. McDonald, 21 Me. 550; Rapalje on Contempt, § 6. CONTEMPT, vol. 3, p. 801. Committing Juror Who Differed with Judge.-A prominent and strikingly illustrative case arose in the reign of Charles II. William Penn and another Friend having been arrested for a riot in holding one of their meetings, the recorder of London instructed the jury that if they believed the evidence, the prisoners' conduct was in law a riot calling for verdict of guilty, and because the jury refused to convict, and "gave their verdict against the direction of the court in matter of law," they were committed. Action for damages was brought by one of the jurors against the recorder. But the court held that the bringing of the ac But against judges of inferior courts the rule is that they must establish affirmatively their jurisdiction in order to obtain protection. Their jurisdiction is special, limited; hence no presumptions favor it. tion was a greater offence than the imprisonment of the plaintiff, for it was a bold attempt both against the government and justice in general. Hamond v. Howell, Mod. 184; 2 Mod. 218. And yet, as CHIEF JUSTICE KENT observed, the recorder's action no doubt struck the whole court as a high handed and arbitrary measure. It arose some time after Bushell's case, where the judges argued that a juror was not finable for his verdict. And "if ever a case was entitled to awaken sensibility, and to try the strength of the principle, this was one." Yet the eminent chief justice cites the case with approbation. Yates v. Lansing, 5 Johns. (N. Y.) 282, 294. Campare Roderigas v. East River Sav. Bank, 63 N. Y. 460; s. c., 20 Am. Rep. 555; Piper v. Pearson, 2 Gray (Mass.) 120; s. c., 61 Am. Dec. 438. "One of the leading purposes of every wise system of law is to secure a fearless and impartial administration of justice, and at the same time to guard individuals against a wanton and oppressive abuse of legal authority. To attain this end, the common law affords to all inferior tribunals and magistrates complete protection in the discharge of their official functions, so long as they act within the scope of their jurisdiction, however false and erroneous may be the conclusions and judgments at which they arrive." 1. Cooley on Torts (2nd ed.) 491; Mechem's Public Offices, § 633. Reasons for Distinction Between Superior and Inferior Judges.-JUDGE COOLEY says: "Why the law should protect the one judge and not the other, and why if it protects one only, it should be the very one who, from his higher position and presumed superior learning and ability, ought to be most free from error, are questions of which the following may be suggested as the solution: The inferior judicial officer is not excused for exceeding his jurisdiction because a limited authority only having been conferred upon him, he best observes the spirit of the law by solving all questions of doubt against his jurisdiction. If he errs in this direction, no harm is done, because he can always be set right by the court having appellate authority over him, and he can have no occasion to take hazards so long as his decision is subject to review. The rule of the law, therefore, which compels him to keep within his jurisdiction at his peril, cannot be unjust to him, because by declining to exercise any questionable authority, he can always keep within safe bounds, and will violate no duty in doing so. Moreover, in doing so he keeps within the presumptions of law, for these are always against the rightfulness of any authority in an inferior court which, under the law, appears doubtful. On the other hand, when a grant of general jurisdiction is made, a presumption accompanies it that it is to be exercised generally until an exception appears, which is clearly beyond its intent; its very nature is such as to confer upon the officer entrusted with it more liberty of action in deciding upon his powers than could arise from a grant expressly confined within narrow limits, and the law would be inconsistent with itself if it were not to protect him in the exercise of this judgment. Moreover, for him to decline to exercise an authority because of the existence of a question, when his own judgment favored it, would be to that extent to decline the performance of duty, and measurably to defeat the purpose of the law creating his office; for it cannot be supposed that this contemplated that the judge should act officially as though all presumptions opposed his authority when the fact was directly the contrary." Cooley on Torts 491. See also Clark v. May, 2 Gray (Mass.) 410; McClure v. Hill, 36 Ark. 268; Estopinal v. Peyroux, 37 La An. 477. Vermont. But in Vermont, the law makes the same presumptions in favor of the jurisdiction of justices that it does of that of superior courts. Vaughn v. Congdon, 56 Vt. 111; s. c., 48 Am. Rep. 758. Compare Morrill v. Thurston, 46 Vt. 732. Justice liable for committing obligor who does not prosecute appeal to effect under liquor act, as the bond is forthe appeal,not for appearance. Arrest Beyond Locality of Court.-A county judge in England ordered the arrest of a Cambridge citizen, knowing |