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capacity. Judge Green, in delivering the opinion of the court, said: “The only question is whether the justice of the peace had jurisdiction of the case against the slave, Jim, whom he 704 committed to prison; for it is not contended that a judicial officer is responsible for mere errors of judgment in a case of which he has jurisdiction, and in which, without malice, he honestly pronounces what he believes to be the judgment of the law. It was not contended in that case that the official act was done maliciously or corruptly, but the contrary appeared.

The case of Cope v. Ramsey, 2 Heisk. 197, was a bill filed by the next friend of a minor against the defendants as justices of Warren county, to hold them personally liable for a sum of money paid into the hands of the clerk of said court in Confederate money. The bill charged that all the parties defendant combined and confederated together to cheat and defraud said minor in this transaction; but the court found there was no proof to throw suspicion on the defendants. A demurrer was incorporated in the answer, which assigned that defendants were not responsible for acts done in a judicial capacity, and that the bill failed to charge that said acts were done with a corrupt, malicious or fraudulent purpose. Judge Sneed said: “If they (the justices], in the rendition of the order complained of, have done the complainants wrong by an honest error of judgment, they are not responsible for it, pecuniarily or otherwise. But," continues the court, “if they have acted corruptly, maliciously, and with purpose to de fraud the complainant of his rights, then in an appropriate proceeding 705 they are responsible. The bill does not make out such a case. It does not impute to these justices any corrupt or dishonest motive touching this judicial act, and the bill is therefore demurrable.”

It will be observed that the rule announced in the two cases last cited related to the official liability of justices of the peace, who are held exempt when the act is within the justices' jurisdiction, unless it is inspired by motives of malice and corruption.

But with respect to courts of superior and general jurisdiction a different rule has long obtained, It was thus announced in Randall v. Brigham, 7 Wall. 523, viz. : "Now, it is a general principle, applicable to all judicial officers, that they were not liable to a civil action for any judicial act done by them within their jurisdiction; that with reference to

judges of limited and inferior authority it had been held that they were protected only when they acted within their jurisdiction; that, if this be the case with respect to them, no such limitation exists with respect to judges of superior or general authority; that they were not liable in civil actions for their judicial acts, even when such acts were in excess of their jurisdiction, unless, perhaps, when the acts in excess of jurisdiction are done maliciously or corruptly."

But in the case of Bradley v. Fisher, 13 Wall. 335, it was held that the qualifying words were incorrect, and that judges of courts of superior 706 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 or corruptly. “A distinction," said the court, “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

he 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 question for his determination as any other question involved in the case, although upon the correctness of his determination in these particulars the validity of his judgment may depend.”

It was further stated in that case, viz.: “The exemption of judges of the superior courts of record from liability to civil suit for their judicial acts existing when there is jurisdiction of the subject matter, though irregularity and error attend the exercise of the jurisdiction, cannot be affected by any consideration of the motives with which the acts are done. The allegation of malicious or corrupt motives could always be made, and, if the motives could be inquired into, judges would be subjected to the same vexatious 707 litigation upon such allegations, whether the motives had or had not any real existence. Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies, they must in such cases resort. But for malice or corruption, in their action, whilst exercising their judicial functions within the general scope of their jurisdiction, the judges of these courts can only be reached by public prosecutions in the form

Am. St. Rep., Vol. 97–55

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of impeachment, or in such other form as may be specifically prescribed.

In this country the judges of the superior courts of record are only responsible to the people, or the authorities constituted by the people, from whom they receive their commissions, for the manner in which they discharge the great trusts of their office. If, in the exercise of the powers with which they are clothed as ministers of justice, they act with partial. ity, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to an account by impeachment, or suspended or removed from office. In some states they may be thus suspended or removed without impeachment by a vote of the two houses of the legislature."

As said in Scott v. Stanfield, L. R. 3 Ex. 220: "This provision of the law is not made for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that 708 the judges should be at liberty to exercise their functions with independence and without fear of consequences”: Philbrook v. Newman, 85 Fed. 139.

In the American and English Encyclopedia of Law, second edition, volume 17, page 728, it is said, viz.: "The rule is well established that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even where such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly"; citing numerous cases. The only cases cited as holding a contrary doctrine are several cases from Kentucky and two cases from Tennessee. The latter, as we have already seen, lay down the rule with respect to the liability of justices of the peace. namely, Cope v. Ramsey, 2 Heisk. 197; Hoggatt v. Bigley, 6 Humph. 237.

A reason for a different rule with respect to the liability of justices of the peace may be found in the fact that under our constitution they are not liable for crimes and misdemeanors in office, or removal from office for cause by a two-thirds vote of the general assembly. They are made liable to indictment and removal from office by the court upon conviction: Const. 1870, art. 5, sec. 5; Const. 1834, art. 5, sec, 5.

The rule exempting judges from liability for judicial acts is based upon the consideration that the judge represents the public. If, says Mr. Cooley, the duty which the official authority imposes upon an officer 709 is a duty to the public, a failure to perform it, or an inadequate or erroneous per

formance, must be a public, and not an individual, injury, and inust be redressed, if at all, in some form of public prosecution. The duty is public, and the end to be accomplished is public. The individual loss results from the proper or improper and imperfect performance of a duty, for which his controversy is only the occasion. The judge performs his duty to the public by doing justice between individuals, or, if he fails to do justice between individuals, he may be called to account by the state in such form and before such tribunal as the law may have provided. But, as the duty neglected is not a duty to the individual, civil redress, as for a civil injury, is not admissible. This is only one reason for judicial exemption from individual suits: Cooley on Torts, 380, 381.

The necessary result of the liability would be to occupy the judge's mind and time with the defense of his own interests. The effect would be to lower the dignity of the court. Said Lord Tenterden, viz.: "In the imperfection of human nature it is better even that an individual should suffer a wrong than that the general courts of justice should be impeded and fettered by constant and perpetual restraints and apprehensions cn the part of those who administer it.” Quoted in Williamson v. Lacy, 86 Me. 80, 29 Atl. 943.

710 These principles we believe to be sound, and apply in the present instance. The result is the judgment below is affirmed

Judges of courts of superior or general jurisdiction cannot be called to account in a civil action for their judicial acts: Calhoun v. Little, 106 Ga. 336, 71 Am. St. Rep. 254, 32 8. E. 86; Yates v. Lansing, 9 Johns. 395, 6 Am. Dec. 290; Stewart v. Case, 53 Minn. 62, 39 Am. St. Rep. 575, 54 N. W. 938; and this has been held true, although they are alleged to have acted willfully, maliciously, or corruptly: Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652; Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 131; Cunningham v. Bucklin, 8 Cow. 178, 18 Am. Dec. 432. It is otherwise, however, in the case of a judge of limited or inferior jurisdiction: Robertson v. Parker, 99 Wis. 652, 67 Am. St. Rep. 889, 75 N. W. 423.

CASES

IN THE

SUPREME COURT

OT

TEXAS.

HOUSTON AND TEXAS CENTRAL RAILROAD COM

PANY V. PHILLIO.

(96 Tex. 18, 69 S. W. 994.) RAILWAYS, Duty of to Protect Passengers from Assaults by Third Persons.—When one has entered a depot and produced a ticket for the purpose of becoming a passenger, it devolves on the railway company and its agent to protect such passenger from assault and insulting conduct on the part of third persons, if the agent knows of such misconduct or has reasonable ground to anticipate it. (p. 869.)

RAILWAYS, Duty of to Protect Persons Assisting Others to Become Passengers.—If one goes to a railway depot with his wife, to assist her in taking a train, but without any intention of himself becoming a passenger, the railway company does not owe him the duty of protecting him while at the depot from assault or insulting conduct on the part of third persons. (p. 870.)

A. P. McCormick and Frank Andrews, for the plaintiff in error.

E. T. Johnson, T. N. Graham, and N. J. Lewellyn, for the defendant in error.

19 GAINES, C. J. The following is the statement of this case together with their conclusions upon the evidence filed by the court of civil appeals:

20 “This is an action by the appellee, Steve Phillio, against the railroad company to recover damages for injuries sustained, arising from the following state of facts, which are as substantially alleged in his petition; Plaintiff and his wife went to the depot of the appellant's road, in the town of Calvert,

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