68

67

therefore, that the individual acted upon was in fact before the court by voluntary appearance or constructively so by the service of some process known to the law. Hence a justice of the peace will be liable to one whom he has directed to be committed without the previous issuance of a warrant, or without causing him to be brought into court, or whose arrest he has caused by means of a warrant which he had no power to issue, because the deposition on which it was based failed to set forth facts or circumstances tending to establish the guilt of the accused. It presupposes, likewise, that the case is one in which he is authorized to act and the process such that he has authority to issue. Thus members of a court, who issued warrants and caused the arrest of a colleague for the purpose of making up a quorum, were responsible, for there was a total lack of power on their part to take any action in such a case." The same is true of the act of a judge who committed for contempt one who had disobeyed the order of an entirely distinct tribunal, since only the court whose authority is defied has power to entertain proceedings to that end; and a justice of the peace will be liable to one imprisoned under a commitment not based upon a judgment providing therefor.72

70

(C) For Acts in Excess of Jurisdiction

Here a distinction must be drawn between judges of courts having superior or general jurisdiction and judges.

67 Glazar v. Hubbard, 102 Ky. 69, 42 S. W. 1114, 39 L. R. A. 210, 80 Am. St. Rep. 340.

68 Bigelow v. Stearns, 19 Johns. (N. Y.) 39, 10 Am. Dec. 189.

69 Blodgett v. Race, 18 Hun (N. Y.) 132; McKelyey v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541; Spice v. Steinruck, 14 Ohio St. 213.

70 Stephens v. Wilson, 115 Ky. 27, 72 S. W. 336.

71 Johnson v. Bouton, 35 Neb. 898, 53 N. W. 995.

72 Lanpher v. Dewell, 56 Iowa, 153, 9 N. W. 101. Cases showing liability for acts committed without jurisdiction are collected in Randall v. Brigham, 7 Wall. 531, note 1.

CHAP.TORTS-10

of inferior courts. The former 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. But the weight of authority appears to be in favor of the doctrine that the latter will be responsible, however honest may have been their motives.

The reason commonly assigned for exempting the superior judge under such circumstances is that, where general jurisdiction has been conferred, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for determination as any other involved in the case. "And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit, where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.' This doctrine was applied where the judge of a United States Circuit Court had sentenced plain-tiff both to pay a fine and be imprisoned, although the statute under which the conviction was had provided only for fine or imprisonment. Here there was jurisdiction of the plaintiff, who was regularly before the court, of the cause, and of the proceedings. It was not that the court never had jurisdiction to try and sentence the plaintiff, but that the last act was in excess of jurisdiction. A similar conclusion was reached where the presiding judge at the trial of John A. Surratt for the murder of Abraham Lincoln, having been insulted during recess by one of the attorneys, entered an order striking the latter's name from the rolls. Though in subsequent proceedings brought to test the validity of this act it was held that before a lawyer could be disbarred he was entitled to notice, the judge was nevertheless under no civil liability.75

74

Now, on the other hand, the inferior magistrate, being empowered by law to exercise his powers only in a particu

73 BRADLEY v. FISHER, 13 Wall. 335, 353, 20 L. Ed. 646, Chapin Cas. Torts, 65, per Field, J.

74 Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. SO.

75 BRADLEY v. FISHER, 13 Wall. 335, 20 L. Ed. 646, Chapin Cas. Torts, 65.

78

lar mode and under certain limitations, had best in doubtful cases decide against his own jurisdiction. Moreover, though the presumption of law is that the superior tribunal had jurisdiction, "with regard to inferior courts and magistrates, it is for them, when claiming any right or exemption under their proceedings, to show affirmatively that they acted within the limits of their jurisdiction." 76 Honesty of purpose in such a case, while it may mitigate damages, cannot, it has been said, justify a clear usurpation of power." Thus justices of the peace have been held liable where, having jurisdiction only to commit, a penal sentence has been inflicted; where, having authority to require bonds to appear at a higher court, sureties to keep the peace have been exacted; where an arrest has been caused upon a complaint setting forth facts not constituting a crime, but at best merely a trespass; 80 or where it appeared therefrom that a prosecution was barred by the statute of limitations.81 But other courts have intimated that malice is the test where jurisdiction has been exceeded.82 If, however, the want of jurisdiction is caused by matters of fact, it must be shown that they were known, or ought to have been known, to the judge or magistrate.83 Thus where, from the complaint laid before him, it appears that a state of facts exists which would confer jurisdiction, and in ignorance

79

76 Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438; Clark V. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470.

77 Truesdell v. Combs, 33 Ohio St. 186; De Courcey v. Cox, 94 Cal. 665, 30 Pac. 95; Patzack v. Von Gerichten, 10 Mo. App. 424; Piper v. Pearson, 2 Gray (Mass.) 120, 61 Am. Dec. 438.

78 Patzack v. Von Gerichten, 10 Mo. App. 424.

79 Knowles v. Davis, 2 Allen (Mass.) 61.

80 Truesdell v. Combs, 33 Ohio St. 186; De Courcey v. Cox, 94 Cal. 665, 30 Pac. 95.

81 Vaughn v. Congdon, 56 Vt. 111, 48 Am. Rep. 758. And see, generally, Rutherford v. Holmes, 66 N. Y. 368; Von Kettler v. Johnson, 57 Ill. 109; Morrill v. Thurston, 46 Vt. 732; Smith v. Bouchier, 2 Str. 993.

82 McCall v. Cohen, 16 S. C. 445, 42 Am. Rep. 641; Robertson v. Parker, 99 Wis. 652, 75 N. W. 423, 67 Am. St. Rep. 889; Bell v. McKinney, 63 Miss. 187.

83 Clark v. May, 2 Gray (Mass.) 410, 61 Am. Dec. 470.

that the complaint was false the magistrate has proceeded to act, he will not be responsible.**

85

This

Many courts have refused to recognize a distinction between the superior and inferior tribunal, and apply to both alike the doctrine of nonliability where jurisdiction is exceeded. It has been urged that "in reason, if judges, properly expected to be most learned, can plead official exemption for their blunderings in the law, a fortiori those from whom less is to be expected and who receive less pay should not be compelled to respond in damages to their mistakes honestly made after due carefulness." 86 view has been summarized by the Supreme Court of Maine. "We favor," it was said, "the doctrine towards which, we think, there is a strong tendency in more recent judicial opinion, that where a judge of an inferior court or a magistrate is invested by law with jurisdiction over the general subject-matter of an alleged offense—that is, has the power to hear and determine cases of the general class to which the proceeding in question belongs-and decides, although erroneously, that he has jurisdiction over the particular offense of which complaint is made to him, or that the facts charged in the complaint constitute an offense, and acts accordingly in entire good faith, such erroneous decision is a judicial one, for which he should not be, and is not, liable in damages to a party who has been thereby injured."

87

84 Lowther v. Earl of Radnor, 8 East, 113; Pike v. Carter, 10 Moore, 376. He is not liable for issuing an attachment in an action upon an unmatured note, where the affidavit on which the attachment was based stated that the note was due. Connelly v. Woods, 31 Kan. 359, 2 Pac. 773.

85 "After an exhaustive examination of the cases which make this distinction, we have to say that we do not think that they are founded upon grounds which can be sustained by any logical or reasonable argument." Thompson v. Jackson, 93 Iowa, 376, 384, 61 N. W. 1001, 27 L. R. A. 92, per Rothrock, J.

86 Bishop Non-Contract Law, § 783, quoted as "a complete answer to all of the reasons given why such distinction exists," in Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254. To the same effect, Cooke v. Bangs (C. C.) 31 Fed. 640; Allec v. Reece (C. C.) 39 Fed. 341; Robertson v. Parker, 99 Wis. 652, 75 N. W. 423, 67 Am. St. Rep. SS9.

87 RUSH v. BUCKLEY, 100 Me. 322, 331, 61 Atl. 774, 70 L. R. A.

There is, moreover, authority for the doctrine that no liability attaches, even though a malicious motive may have existed.ss

90

One point, however, is well recognized. A judge, though inferior, who possesses general jurisdiction over the offense and the offender, while, as has been seen, he may be responsible if he acts in the absence of any facts calling for the exercise of his determination,89 will be exempt for a mistake concerning the just weight and importance of evidence actually presented. Such would be a case where, facts and circumstances having been laid before him, he decides that they constitute reasonable grounds for believing the accused guilty and issues a warrant or an order of arrest. If there is a total want of evidence as to essential facts, the process will be declared void, in whatever form the question may arise, and necessarily the judge has acted without authority, and there is a defect of jurisdiction. But if the proof has a legal tendency to make out a proper case in all its parts, though it may be slight and inconclusive, the 464, 4 Ann. Cas. 318, Chapin Cas. Torts, 71, per Wiswell, C. J. Here the justice of the municipal court had tried, convicted, sentenced, and issued a warrant against plaintiff, and had committed him for the violation of a city ordinance, void because it had never been published as required by statute. To the same effect, Clark v. Spicer, 6 Kan. 440 (facts stated did not bear out charge of willful misconduct in office); Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. Rep. 137 (justice of the peace holds an unconstitutional ordinance valid and enforces it by imprisonment); Booth v. Kurrus, 55 N. J. Law, 370, 26 Atl. 1013 (warrant issued based on facts showing a private and not a public nuisance); Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412 (under a statute making it an indictable offense to carry off corn, etc., a complaint embodying a charge of carrying off cornstalks gives colorable jurisdiction); Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138 (question was whether the justice might proceed with the trial of a statutory offense, thus requiring a construction of the statute).

88 Cooke v. Bangs (C. C.) 31 Fed. 640; State ex rel. Egan v. Wolever, 127 Ind. 306, 26 N. E. 762.

89 Blodgett v. Race, 18 Hun (N. Y.) 132; McKelvey v. Marsh, 63 App. Div. 396, 71 N. Y. Supp. 541; Spice v. Steinruck, 14 Ohio St. 213.

90 Swart v. Rickard, 148 N. Y. 264, 42 N. E. 665; Johnson v. Maxon, 23 Mich. 129, 136.

91 Dusy v. Helm, 59 Cal. 188; Gillett v. Thiebold, 9 Kan. 427.