Webb v. Fisher. tious 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 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 partiality, 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. Stansfield, 3 L. R. Exch., 220: "This provision of the law is not made for the protec tion or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that Webb v. Fisher. the judges should be at liberty to exercise their functions with independence and without fear of conse quences." Philbrook v. Newman (C. C.), 85 Fed., 139. In the Am. & Eng. Ency. Law (2d Ed.), vol. 17, p. 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. Article 5, sec. 5, Const. 1870; 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 offi Webb v. Fisher. cer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, and not an individual, injury, and must 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 neg lected 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 on the part of those who administer it." Quoted in Williamson v. Lacy, 86 Me., 80 (29 Atl., 943; 25 L. R. A., 506). Webb v. Fisher. These principles we believe to be sound, and apply in the present instance. The result is the judgment below is affirmed. NOTE. The decree of disbarment was reversed by the court of chancery appeals on the facts, and Mr. Webb reinstated as an attorney. Omohundro v. Elkins. OMOHUNDRO v. ELKINS et al. (Nashville. December Term, 1902.) 1. TENANTS IN COMMON. Entitled, as between themselves, to an accounting for rents, when. In a proceeding for partition, or sale of land for partition, cotenants who have not received their proper share of rents are entitled to an accounting against one of their number who has received more than his share, and the excess found to have been collected will be charged against the share of the tenant receiving same in the distribution of the fund or partition of the proyerty. (Post, pp. 715-716.) Case cited: Tyner v. Fenner, 4 Lea, 469-473. 2. MORTGAGE. By tenant in common, prior to suit for partition, superior to claim of cotenant for rents. Where a mortgage is executed upon lands by a tenant in common, before suit for partition is instituted, the lien of the mortgage thereunder upon the interest of the mortgageor is superior to, an doverrides the right of a cotenant to reimbursement for rents collected in excess of his share, such right being a mere equity that arises upon the filing of a bill for partition, making claim for reimbursement upon proper allegations in respect thereof. (Post, pp. 716-717.). Cases cited: Burns v. Dreyfus, 69 Miss., 211; Clark v. Hershy, 52 Ark., 473; Brittiman v. Jones, 56 Ark., 624; Burch v. Burch, 82 Ky., 622; Houston v. McCluney, 8 W. Va., 135; Welch v. Ketchum, 48 Minn., 241; Stover v. Cory, 53 Iowa, 108. FROM FRANKLIN. Appeal from Chancery Court of Franklin County. T. M. MCCONNELL, Chancellor. |