It is with reference to the question of liability of judicial officers for an excess of authority where the authorities appear to diverge with respect to the two classes of judicial officers. It is said to be universally conceded that judges of courts of superior and general jurisdiction are exempt from liability in damages for judicial acts, even when such acts are in excess of their jurisdiction. This doctrine has become firmly fixed in the jurisprudence of both England and the United States. Upon its strict application depends, to a very great extent, the usefulness of courts and the fearless and impartial administration of justice.28 It has been frequently contended by some courts in considering the liability of magistrates and judges of inferior courts that this rule of immunity from liability for acts in excess of authority is not allowed in some states in favor of courts of limited jurisdiction, and the authorities referred to as holding to this view are those which have been before shown in this section,20 as supporting the rule of liability of judges of inferior courts or magistrates, when they act without contained no charge of the commission of a criminal offense by anyone. It was held that the mistaken belief on the part of the magistrate that the statute gave him power to issue a state warrant could not confer jurisdiction, nor legalize his usurpation of authority. This, then, was a clear want of authority, not an excess, and the magistrate was held liable.

Wisconsin.-Brosde v. Sanderson, 86 Wis. 368, 57 N. W. 49, Frazier v. Turner, 76 Wis. 562, 45 N. W. 411, Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101, are all cases upon which the magistrate's liability is established under the rule that void process or absolute loss of jurisdiction pendente lite renders him responsible to the injured party.

28 Calhoun v. Little, 106 Ga. 336, 71 Am. St. Rep. 254, 32 S. E. 86; Yates v. Lansing, 5 Johns. 290; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80; Ackerly v. Parkinson, 3 Maule & S. 411; Bradley v. Fisher, 13 Wall. 335, 351; Randall v. Brigham, 7 Wall. 523; Vanderpool v. State, 34 Ark. 176.

29 Ante, note 27.

jurisdiction, which should not, we think, be compared with those where the question of liability for an excess of jurisdiction is involved. For instance, Truesdell v. Combs, 33 Ohio St. 186, is referred to as disagreeing with the doctrine of the cases holding that there is no liability for an excess of jurisdiction, when in reality the magistrate in that case acted without jurisdiction, although he came to a conclusion that a crime was charged when there was none. It is wholly unlike a case where a magistrate has first acquired jurisdiction and exercises more authority than he really has.

In Georgia, Iowa, Missouri, New York, South Carolina, and Wisconsin, decisions have been rendered in cases where, for instance, a magistrate obtains jurisdiction both of the subject matter and of the person, but erroneously decides that he has authority to do certain things when he has not. These cases, however, by obiter, recognize the rule of liability where there is no jurisdiction, and are shown in detail in the note.30

30 Georgia.-"Judges of inferior courts, as well as judges of courts of superior and general jurisdiction, are exempt from liability in damages for judicial acts, even when such acts are in excess of their jurisdiction": Calhoun v. Little, 106 Ga. 336, 71 Am. St. Rep. 254, 32 S. E. 86. The court disclaimed any intention of holding that there is immunity from civil liability in all cases, as where there is no jurisdiction. "But all judicial officers stand on the same footing, and must be governed by the same rules": Id.

Iowa.-A justice of the peace entered judgment against one who did not live within his jurisdiction and was not served within it. The court, after quoting at length the reasons given in Cooley on Torts for holding a justice of the peace liable, and from Henke v. McCord, 55 Iowa, 378, 7 N. W. 623, Brooks v. Mangan, 86 Mich. 576, 24 Am. St. Rep. 137, 49 N. W. 633, and Bishop on Noncontract Law, say: "We might cite many other protests and criticisms by courts and text-writers condemning the rule, but it is not necessary to do so. The current of legal thought is that the distinction is unreasonable, unjust, illogical, and ought not to obtain": Thompson v. Jackson, 93 Iowa, 376, 385, 61 N. W. 1004.

In Massachusetts it is held that: "A justice of the peace, who exceeds his jurisdiction, knowing the facts which constitute the defect of jurisdiction, is liable in

Missouri.-Patzack v. Von Gerichten, 10 Mo. App. 424, was a case where a justice acted in excess of his jurisdiction. The court instructed the jury that if the officer acted in good faith, and without malice or intention to injure, the jury should take these facts into consideration.

New York. "Where, in the course of proceedings before a justice of the peace .... in which he had jurisdiction of the subject matter and .... of the person of one charged with an offense, a question is presented whether . . . . the justice has authority to proceed further, which question is dependent upon the construction of a statute, and he, in good faith, erroneously decides that he has authority to and does proceed, the error is simply one of judgment upon a question of law, and the justice is not responsible therefor in a civil action": Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477. The court points out the distinction between a case where there is no jurisdiction, and an excess of jurisdiction, admitting a liability in the former case (Woodward v. Paine, 15 Johns. 493), but not in the latter.

South Carolina.—A judge of an inferior court, having jurisdiction of the subject matter of an action, but failing to acquire jurisdiction of the person, by reason of defective service of the process, is not liable to a civil action of damages, in the absence of proof of willful or corrupt motives: McCall v. Cohen, 16 S. C. 445, 42 Am. Rep. 641.

Wisconsin.-Robertson v. Parker (Jan., 1898), 99 Wis. 652, 67 Am. St. Rep. 889, 75 N. W. 423, opinion by Mr. Justice Bardeen, is a well-considered and instructive case. Suit was brought against a judge of a municipal court, a court of limited jurisdiction, for willfully, unlawfully, and maliciously sentencing plaintiff to the workhouse. Upon demurrer it was held that "where a judge of a court of limited or inferior jurisdiction secures jurisdiction of a person or cause, but in the progress of his investigation . . . . decides that he has greater powers than he actually possessed, and therefore pronounces a sentence in excess of his powers and void, he is not personally answerable," etc. The court quotes with approval from Bishop on Noncontract Law, section 783, and then states that "the current of modern legal thought is unquestionably in favor of the proposition [that] if judges properly expected to be most learned can plead official exemption for their blundering in the law, a fortiori those from whom less is to be expected. . . . should not be compelled to respond in damages for their mistakes honestly

damages to any party injured. Thus a justice of the peace, who, after finally disposing of a cause tried before him, commits a witness to prison for contempt at the trial, is liable to an action by the witness." 31

made after due carefulness." The court concludes by saying: "We are content, however, to join in the increasing procession of states that have adopted and are following the more humane and less stringent test of liability in cases of this kind."

31 Clarke v. May, 2 Gray, 410, 61 Am. Dec. 470. The court said: "It is undoubtedly true that judges and magistrates cannot be held liable in trespass for acting without jurisdiction, or for exceeding the limits of their authority, where the defect or want of jurisdiction is occasioned by some facts or circumstances applicable to a particular case, of which the judge or magistrate had neither knowledge nor the means of knowledge. In other words, if the want of jurisdiction over a particular case is caused by matters of fact, it must be made to appear that they were known, or ought to have been known, to the judge or magistrate, in order to hold him liable for acts done without jurisdiction." "A judge of an inferior court, acting in a case of which he has no jurisdiction, or exceeding his jurisdiction, is llable in damages to any party injured." This was in the trial of a case, by a magistrate, of which a police judge had exclusive jurisdiction, in which the magistrate committed a witness for contempt, so that it was a case of no jurisdiction: Piper v. Pearson, 2 Gray, 121, 61 Am. Dec. 431.

PART THREE.

SPECIFIC WRONGS (WITH FORCE).

ABSOLUTE RIGHTS OF PERSONS.

A. PERSONAL SECURITY.

190. Explanatory.

§ 190. Explanatory.—Part Three of this work has been designated as Specific Wrongs Coupled with Force, following the division of wrongs as laid down by Blackstone. Sir Frederick Pollock says with respect to this: "In the earlier period we find a current distinction between wrongs accompanied with violence and wrongs which are not violent-a distinction important for a state of society where open violence is common, but of little use for the arrangement of modern law, though it is still prominent in Blackstone's exposition." 1 There was some fiction in the force said to accompany some wrongs, but some, though not all, of the fictions were useful. We find that in trespass to real property the wrong was to the right of possession, in stepping across the imaginary boundary line.2 So, in trespass to personalty, the wrong is in depriving the owner of the possession.3

1 Pollock on Torts, 5.

2 See sec. 522, post.

8 See sec. 573, post.

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