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tual as he has the power to make it”: Young v. Insurance Co., 101 Tenn. 316, 47 S. W. 428.
It is sufficient if the intention to execute the power appears by words or deed indicating the intention: Pate v. Pierce, 4 Cold. 113.
If the deed purports to convey the fee, which would be impossible without the execution of the power, no recital of it is necessary, and the intention to exercise it is presumed: Guarantee etc. Co. v. Jones, 103 Tenn, 254, 255, 58 S. W. 219.
This deed does purport to convey the fee and warrant a perfect title, which the conveyer could not do or make good without the execution of the power and without which the del would be ineffectual to pass the estate contracted; and we hold that the conveyer is presumed to have intended to and did, execute the power conferred upon her, and that the deed was and is operative to vest the fee to the property conveyed in her vendee, and the defendants claiming under him.
Affirmed, with costs.
A Power of Sale need not expressly appear upon the face of the instrument creating it: Gulf etc. Lumber Co. v. O'Neal, 131 All 117, 90 Am. St. Rep. 22, 30 South. 466. But the conditions attached to its execution must, it is said, be strictly complied with: Sharpley v. Plant, 79 Miss. 175, 89 Am. St. Rep. 588, 28 South. 799. A power of sale to be exercised on the happening of a particular event can. not lawfully be exercised until that event happens: Ervine's Appeal
, 16 Pa. St. 256, 55 Am. Dec, 499. Courts will not interfere with the exercise of discretionary powers by a trustee where he is acting in good faith; but they will where he is acting otherwise, or where he is declining the duty to exercise discretion: Randolph v. East Birmingham Land Co., 104 Ala. 355, 53 Am. St. Rep. 64, 16 South, 126.
WEBB v. FISHER.
[109 Tenn. 701, 72 S. W. 110.) THE JUDGES of the Superior Courts of Record are Responsi. ble Only to the people and 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. (p. 866.)
JUDGES, Civil Liability of.-An action cannot be maintained against a judge of general jurisdiction for his acts in decreeing the disbarment of an attorney, though it is alleged that in so doing he acted oppressively, maliciously, and corruptly. (p. 867.)
Webb & Cantrell, for Webb.
702 MCALISTER, J. The question presented upon this record is in respect of the liability of a judicial officer for certain official acts which are alleged to have been done oppressively, maliciously and corruptly. The more specific allegations of the declarations are that the defendant, T. J. Fisher, as chancellor of the fifth chancery division of Tennessee, decided against plaintiff the cause of W. H. Cummings, relator, against B. M. Webb, in the chancery court at Smithville, Tennessee, in which a decree of disbarment was made and entered 703 against plaintiff, a practicing attorney and counsel and solicitor in the courts of said state, and that said decree was pronounced corruptly, maliciously, wickedly and oppressively. There are other allegations in the declaration, which are not necessary to be mentioned since the statement already made presents the real case as made, stripped of useless verbiage and immaterial recitals. To this declaration defendant filed a plea of not guilty. At the July term, 1902, defendant asked leave of the court to withdraw his plea and file a demurrer to the declaration, assigning for cause the exemption of a judicial officer from such a suit; but this motion was disallowed. At the November term, 1902, the presiding judge, Honorable Joseph C. Higgins, being of opinion that the declaration stated no cause of action, dismissed the suit. Plaintiff appealed and has assigned errors.
The precise question with which we are now confronted has not heretofore been decided in this state, so far as we are advised by any reported opinion.
The case of Hoggatt v. Bigley, 6 Humph. 237, involved the liability of a justice of the peace for acts done in his official
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 die 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 I lip 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 the 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
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. 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