been said to apply to the refusal of a judge to issue a writ of habeas corpus whenever a prima facie case of confinement is made out."* In Yates v. Lancing, however, it was held that though a judge in vacation, who refuses to allow a writ of habeas corpus, is liable to an action under the statute making the judge liable in damages if he fails to obey the law, inasmuch as the allowance by him in vacation is not a judicial act, yet the judges of the supreme court, sitting as a court in term time, may, in their discretion, refuse a habeas corpus. Similarly, an action will lie to recover damages for making a false return to a writ of certiorari issued by the supreme court to the persons who had been appointed referees by a county judge upon an appeal from the order of a highway commissioner altering a highway. In Ferguson v. Earl of Kinnoull, it was held that the taking of his trial as presentee to a church in Scotland was a ministerial act, which the presentee was bound to perform, and that, for a neglect or refusal to perform that duty, every member of the presbytery was liable, collectively and individually, in damages, to the party injured.

SAME-CONDUCT OF EXECUTIVE OFFICERS.

42. Private individuals cannot recover damages resulting from conduct violating a duty owed solely to the public and imposed by the state on its executive officers, instrumentalities, or agents. Such damages are the results of a purely public wrong, and therefore are not subject to private action.

43. Damages may, however, be recovered against executive public officers

(a) For conduct in the course of performance of public

duties, provided

(1) Such conduct violates a duty to an individual, in the performance of which he has a partic

68 Cooley, Torts, p. 378.

69 5 Johns. (N. Y.) 282.

70 Rector v. Clark, 78 N. Y. 21.

71 9 Clark & F. 215.

ular interest, even though that duty be also owed to the public; and

(2) The complainant suffers some special individual wrong, as distinguished from the wrong done the community generally.

(b) For unauthorized conduct in the course of performance of official duty.

Violation of Purely Public Duties.

In so far as a public officer or institution executes the authority or performs the functions of the government, the exemption of the state for wrong applies to him. Under municipal corporations, it will be seen that, when a city exercises governmental functions, it is not liable for torts; when it exercises private functions, it is. Many governmental agencies share even a more absolute exemption. Thus, an action will not lie against a state house of refuge for an assault on an inmate by one of its officers." A purely charitable corporation established by the state is not liable for the negligent or malicious acts of its servants.73 Similarly, persons directed by law to establish a penitentiary are not liable to one injured while working thereon. And, generally, boards of trustees, and their individual members, exercising governmental functions, are agents of the state, and exempt from liability in their performance of public duties.75

74

72

72 Perry v. House of Refuge, 63 Md. 20.

73 Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S. W. 1065. A religious corporation organized under Laws 1876, c. 176, providing that it shall not be lawful to divert the property to any purpose except the support of an object connected with the denomination to which such corporation shall belong, is not liable for the negligence of an employé, where due care was used in his selection. Haas v. Missionary Soc. of the Most Holy Redeemer (Com. Pl. N. Y.) 26 N. Y. Supp. 868. And see Farnham v. Pierce, 141 Mass. 203, 6 N. E. 830. A collection of cases will be found in Boyd v. Insurance Patrol, 113 Pa. St. 269-276, 6 Atl. 536. Priestly character no defense for assault in removing person from a room, who was lawfully there. Cooper v. McKenna, 124 Mass. 284.

74 Alamango v. Supervisors, 25 Hun, 551. But see Breen v. Field (Mass.) 31 N. E. 1075.

75 Hall v. Smith, 2 Bing. 156; Chamberlain v. Clayton, 56 Iowa, 331, 9 N. W. 237; Walsh v. Trustees, 96 N. Y. 427; Jordon v. Hayne, 36 Iowa, 9. 15; Nugent v. Levee Com'rs, 58 Miss. 197. And see Young v. Commissioners, 2

76

Thus, the trustees of the Brooklyn Bridge are not liable for error in judgment, in not providing a sufficient police force on the bridge. The same exemption applies to school boards and school directors. And naval officers destroying property with the consent of their government are not personally liable to injured owners.79 Same-The Exemption Applies Generally to Persons Engaged in Judicial Proceedings.

The exemption from liability for torts extends to all persons connected as essential parts of judicial proceedings, as well as to judges. The purpose of the law, to promote justice by removing the restraint on the freedom of human action which would be imposed by fear of civil responsibility for conduct connected with judicial proceedings, would not be fulfilled if the exemption from such liability were confined to judges only. On the contrary, it extends to the officers of the court, the parties to the proceeding, and the witnesses who testify therein, and even to the persons who published a fair report thereof,80 The exemption has been carried so far as to hold that a witness is not civilly responsible for damages caused by his perjury. Thus, no action lies by a creditor against a debtor committed on ex

Nott & McC. (S. C.) 537; Lyons v. Adams, 2 Ind. 143; Bartlett v. Crozier. 17 Johns. (N. Y.) 439; Dunlap v. Knapp, 14 Ohio, 64. The members of the board of public works (Code Md. art. 72) are not personally liable for injuries to workman on vessel of state fishery force, caused by negligence of commander appointed by them. Riggin v. Brown, 59 Fed. 1005. 76 Walsh v. Trustees, 96 N. Y. 427. And see Walsh v. Mayor, 107 N. Y. 220, 13 N. E. 911.

77 Post, p. 178, "Municipal Corporations"; Donovan v. McAlpin, 85 N. Y. 85. 78 Boardman v. Hague, 29 Iowa, 339; Smith v. District Township of Knox, 42 Iowa, 522.

79 Buron v. Denman, 2 Exch. 167. A log inspector is not liable for mistakes in judgment. Gates v. Young, 82 Wis. 272, 54 N. W. 178.

So Jerome & Knight's Cases, 1 Leon. 107; Dawling v. Wenman, 2 Show. 446; Damport v. Sympson, Cro. Eliz. 520, Owen, 158; Eyres v. Sedgewicke, Cro. Jac. 601, 2 Rolle, 197; Wimberly v. Thompson, Noy, 6; Harding v. Bodman, Hut. 11; Taylor v. Bidwell, 65 Cal. 489, 4 Pac. 491; Bostwick v. Lewis, 2 Day (Conn.) 447; Grove v. Bradenburg, 7 Blackf. (Ind.) 239; Dunlap v. Glidden, 31 Me. 435; Severance v. Judkins, 73 Me. 376-379; Garing v. Fraser, 76 Me. 37; Phelps v. Stearns, 4 Gray (Mass.) 105; Curtiss v. Fairbanks, 16 N. H. 542; Smith v. Lewis, 3 Johns. (N. Y.) 157; Jones v. MeCaddin, 34 Hun (N. Y.) 632; Cunningham v. Brown, 18 Vt. 123; Bell v. Senneff, 83 Ill. 122; post, p. 532, “Libel and Slander."

ecution, for perjury at the examination on his application to be admitted to take the poor debtor's oath, whereby he obtained his discharge from imprisonment.81

Violation of Private Duties.

In order that a person may recover damages, he must show, not only negligence in the performance of a public duty, but he must also show a breach of particular duty owing to him. Therefore, where the duty is entirely to the public at large, and not to any specific individual, he cannot recover. $2 The duty may, however, be both to the public and to the individual. In such cases he can recover alike for the nonfeasance, misfeasance, or malfeasance of the public officer.s The better opinion is that the courts will not apply "that plausible, but in reality sterile, verbal syllogization," the distinction drawn in the Six Carpenters' Case, as to misfeasance and nonfeasance, to ministerial officers. The disobedient officer is privileged, whether he does, or refrains from doing.85 While it is said that there can be no difficulty in determining what is a ministerial duty and what is a public duty, so this would not appear to be always the case. Thus, in Sage v. Laurain, it was held that no action would lie against

86

81 Phelps v. Stearns, 4 Gray (Mass.) 105. But see Rice v. Coolridge, supra. 82 Whart. Neg. § 284; Shear. & R. Neg. §§ 167-177; Kall v. Love, 37 N. J. Law, 5; Hall v. Smith, 2 Bing. 156.

83 Rowning v. Goodchild, 2 W. Bl. 906; Amy v. Supervisors, 11 Wall. 136; Lane v. Cotton, 1 Salk. 17; Kendall v. U. S., 12 Pet. 524; Reed v. Conway, 20 Mo. 22; Keith v. Howard, 24 Pick. (Mass.) 292; Mech. Pub. Off. (collecting cases).

84 8 Coke, 146.

85 Boston & M. R. Co. v. Small, 85 Me. 462, 27 Atl. 349-351, per Emery, J. Cf. Carter v. Allen, 59 Me. 296; Brock v. Stimson, 108 Mass. 521. And see note to Barrett v. White, 3 N. H. 210; post, p. 679, "Trespass ab Initio"; ante, p. 287, "Liability of Agent to Third Person." Cf. Orway v. Ferin, 3 N.

II. 69.

86 McCord v. High, 24 Iowa, 336.

And see

87 19 Mich. 137; Moss v. Cummings, 44 Mich. 359, 6 N. W. 843. Smith v. Gould, 61 Wis. 31, 20 N. W. 369. But damages may be allowed against courts by statute. State v. Supervisors, 66 Wis. 199, 28 N. W. 140; Young v. Commissioners, 2 Nott & McC. (S. C.) 537; Dunn v. Mellon, 147 Pa. St. 11, 23 Atl. 210; Bartlett v. Crozier, 17 Johns. (N. Y.) 439, distinguishing Hover v. Barkhoof, 44 N. Y. 113; Lynn v. Adams, 2 Ind. 143; Dunlap v. Knapp, 14 Ohio, 64; Garlinghouse v. Jacobs, 29 N. Y. 297 (commissioners not liable). But

highway commissioners for laying out a highway, where they were acting within their jurisdiction, and violated no law. On the other hand, in New York a commissioner of a highway was held liable for omitting to erect barriers in dangerous places at the side of a highway, and for leaving the bed of the highway defective.ss But it is a defense to an action for damages against a commissioner of highways, for injuries sustained in consequence of a defective highway, to show that he was without necessary funds to make repairs, and without power to raise them.89

While Judge Cooley correctly states the doctrine that (e. g.) a sheriff can only be liable to the person to whom a particular duty was owing," in Raynsford v. Phelps 21 he holds a collector of taxes liable for an injury resulting to one who had purchased the equity of redemption to certain mortgaged lands after a tax had been assessed thereon, because of the return of nulla bona by the tax collector, whereby the tax became a lien on the land, from which the owner of the mortgage had to redeem after foreclosure. This case is said to be in conflict with the rule as generally stated. But there is other good authority for holding that a collector of taxes is a see Robinson v. Chamberlain, 34 N. Y. 389; Hover v. Barkhof, 44 N. Y. 113 Held liable in Glasier v. Town of Hebron, 131 N. Y. 447, 30 N. E. 239. And see Bryant v. Town of Randolph, 133 N. Y. 70, 30 N. E. 657; Bennett v. Whitney, 94 N. Y. 302.

92

88 Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43; Piercy v. Averill, 37 Hun, 360, 366; Allen v. Sisson, 66 Hun, 143; Robinson v. Chamberlain, 34 N. Y. 389 (overruling Fish v. Dodge, 38 Barb. 163; Minard v. Mead, 38 Barb. 174); Turnpike Road v. Champney, 2 N. II. 199. And see Tearney v. Smith, 86 Ill. 391; Harris v. Carson, 40 Ill. App. 147; Bills v. Belknap, 36 Iowa, 583. The superintendent of streets of a city is liable for any damages resulting from his negligence in repairing a sewer, notwithstanding his official capacity. Butler v. Ashworth, 102 Cal. 663, 36 Pac.

922.

89 Garlinghouse v. Jacobs, 29 N. Y. 297; Weed v. Ballston, 76 N. Y. 329; Hines v. Lockport, 50 N. Y. 236, 238; Boots v. Washburn, 79 N. Y. 207; Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 268. And an action does not lie against a village when it would not lie against a commissioner of a highway. Clapper v. Town of Waterford, 131 N. Y. 382, 30 N. E. 240, and cases collected on page 389, 131 N. Y., and page 240, 30 N. E.

90 Cooley, Torts, p. 394, note 1.

91 43 Mich. 342.

92 State v. Harris, 89 Ind. 363.

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