this extreme view has not prevailed.1 Thus a judge may be called to prove his notes,2 or to prove what evidence was given by a witness, on a former occasion.3 The mental conclusions, or grounds, upon which a judge arrived at decision cannot be testified to by such judge on another trial; for instance, to prove his being unaffected by any interest in that he had resolved not to assert it. Whether a judge can be compelled to go on the stand, in a case not before him, does not seem to have been decided. VII. LIABILITY FOR ACTS AND OPINIONS-1. General Rule-Remedy by Impeachment.—A judge, either supreme or subordinate, acting within his jurisdiction, is not liable in an action for damages for any opinion he may deliver as such. If he should be guilty of misconduct, the remedy is by impeachment or address.5 1. People v. Dohring, 59 N. Y. 374. 1 Gr. Ev., § 364, citing Glassford Ev., p. 602; Tait Ev. 432; Stair's Inst., bk. 4, tit. 45, 4; Erskine's Inst., bk 4, tit. 2, 33; Spanish Law, Partid. 3, tit. 16, 1. 19; Moreau & Carl. Tr., p. 200. See also Ross v. Buhler, 2 Mart., N. S. (La.) 312, where it was held that one cannot be examined as a witness at a trial where he sits as judge. See also People v. Miller, 2 Park. Cr. Cas. (N. Y.) 197; Morss v. Morss, 11 Barb. (N. Y.) 510; I Whart. Ev. 600; Reynold's Stephen on Ev. 163. And in Maine the supreme court said that public policy authorizes a judge of a court to excuse himself from testifying as to what witnesses have testified on trials before him; but that it furnishes no ground of exception, should he not insist upon his right to be excused. Welcome v. Batchelder, 23 Me. 85. "The inclination of the courts has been to hold that when it is necessary for the conduct of the trial that one should act as judge, he may not be called from the bench to be examined as a witness; but when his action as a judge is not required, because there is a sufficient court without him, he may become a witness, though it is then decent that he do not return to the bench." People v. Dohring, 59 N. Y. 374. 2. Judge's Notes.-Whart. Ev., § 600; Grimm v. Hamel, 2 Hilt. (N. Y.) 434; Zitske v. Goldberg, 38 Wis. 216, 229; Miles v. O'Hara, 4 Binn. (Pa.) 108; Welcome . Batchelder, 23 Me. 85; Corby v. Wright, 9 Mo. App. 5. If he can testify that the notes were full, or that it was his practice in such cases to take full notes. Schall v. Miller, 5 Whart. (Pa.) 156; Huff v. Bennett, 4 Sandf. (N. Y.) 120. Notes Are Not Proof Themselves.-In the absence of statutory provision otherwise, a judge's unproven notes of testimony are not admissible to prove what was testified to at the trial wherein they were taken. Zitske v. Goldberg, 38 Wis. 216. In re Larmouth, 6 Madd.. Ch. (Eng.) 113; Conradi v. Conradi, L. R., 1 P. & D. 520; Grimm v. Hamel, New York Common Pleas, 2 Hilt. (N. Y.) 434; Green v. Brown, 3 Barb. Sup.. Court (N. Y.) 119; Lawrence v. Barker, 5 Wend. (N. Y.) 301; Feeter v. Heath, II Wend. (N. Y.) 477; Greenl. Ev., §§ 436, 437; Whart. Ev., § 180; Miles 7. O'Hara, 4 Binn. (Pa.) 108; Livingston v. Cox, 8 W. & S. (Pa.) 61. 3. Supples v. Cannon, 44 Conn. 424, 426, 430. 4. Agan v. Hey, 30 Hun (N. Y.) 591 (denying dictum in Royce v. Burt, 42 Barb. (Ñ. Y.) 655, 666, and distinguishing Doty v. Brown, 4 N. Y. 71, in which last case no such evidence as this was offered); and compare Washington etc. Packet Co. v. Sickles, 5 Wall. (U. S.) 593. Compare Sigourney v. Sibley, 21 Pick. (Mass.) 101. Referee.-In Morss v. Morss, II Barb. (N. Y.) 510, it was held that one of three referees, before whom a cause is being tried, cannot be sworn and examined as a witness on that trial. Arbitrators as Witnesses.-See Habershon v. Toby, 3 Esp.. 38 (see also Supples v. Cannon, 44 Conn. 424, 433); Ellis v. Saltan, 4 C. & P. 327; ARBITRATION, vol. I, p. 691. 5. Authorities cited under COURTS, vol. 4, p. 449. In Lange v. Benedict, 73 N. Y. 12 (s. c., 29 Am. Rep. 8o), a United States circuit judge, who resentenced a convicted person, when he could not legally do so, was held not liable for his error.. 2. Liability as Affected by Jurisdiction.-(a) Superior Courts.— Where a judge acts without any jurisdiction, he is liable.1 In the case of courts of general and superior jurisdiction, the presumption is that they act within their jurisdiction; and unless a clear absence of all jurisdiction is shown, a judge of such court cannot be held liable for his actions.2 (b) Inferior Courts.-The rule protecting judges from civil liability exists just as fully in favor of the judge, justice, or magistrate of an inferior court, as it does in favor of the judges of the superior courts, so long as the inferior judge acts within his jurisdiction.3 1. Bradley v. Fisher, 13 Wall. (U. S). 335; Calder v. Halket, 3 Moo. P. C. 75. 2. Bradley v. Fisher, 13 Wall. (U. S.) 351; Lange v. Benedict, 73 N. Y. 12; s. c., 29 Am. Rep. 80; Bradley v. Fisher, 13 Wall. (U. S.) 335. Distinction between absence of all jurisdiction and excess of jurisdiction was also taken in the king's bench in Ackerley v. Parkinson, 3 Mau. & Selw. 411; Mills v. Collett, 6 Bing. 11. And see also Lange v. Benedict, 73 N. Y. 12; McCall v. Cohen, 16 S. Car. 445; Busteed v. Parsons, 54 Ala. 393. "A distinction 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 questions for his determination as any other questions involved in the case. Thus, if a probate court, invested with authority only over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in his court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and pro12 C. of L.-3 33 ceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration whenever his general jurisdiction over the subject matter is involved." 3. Inferior Judges.-The general rule protecting judge applies to inferior judges. Wasson v. Mitchell, 18 Iowa 153; Londegan 7. Hammer, 30 Iowa 508. Justice of the peace. Pratt 7. Gardner, 2 Cush. (Mass.) 63, 68; State v. Hartwell, 35 Me. 129: Lane v. Crosby, 42 Me. 327; Willey v. Strickland, 8 Ind. 453; Monney v. Williams, 15 Miss. 442; Wright v. Hazen, 25 Vt. 143; Clark v. Spicer, 6 Kan. 440; Lancaster v. Lane, 19 Ill. 242. Contempt of Court.-Lining v. Bentham, 2 Bay (S. Car.) 1; Burnham v. Stevens, 33 N. H. 247; Morrison v. McDonald, 21 Me. 550; Rapalje on Contempt, § 6. CONTEMPT, vol. 3, p. 801. Committing Juror Who Differed with Judge.-A prominent and strikingly illustrative case arose in the reign of Charles II. William Penn and another Friend having been arrested for a riot in holding one of their meetings, the recorder of London instructed the jury that if they believed the evidence, the prisoners' conduct was in law a riot calling for verdict of guilty, and because the jury refused to convict, and "gave their verdict against the direction of the court in matter of law," they were committed. Action for damages was brought by one of the jurors against the recorder. But the court held that the bringing of the ac But against judges of inferior courts the rule is that they must establish affirmatively their jurisdiction in order to obtain protection.1 Their jurisdiction is special, limited; hence no presump tions favor it. tion was a greater offence than the imprisonment of the plaintiff, for it was a bold attempt both against the government and justice in general. Hamond v. Howell, Mod. 184; 2 Mod. 218. And yet, as CHIEF JUSTICE KENT observed, the recorder's action no doubt struck the whole court as a high handed and arbitrary measure. It arose some time after Bushell's case, where the judges argued that a juror was not finable for his verdict. And "if ever a case was entitled to awaken sensibility, and to try the strength of the principle, this was one." Yet the eminent chief justice cites the case with approbation. Yates v. Lansing, 5 Johns. (N. Y.) 282, 294. Campare Roderigas v. East River Sav. Bank, 63 N. Y. 460; s. c., 20 Am. Rep. 555; Piper v. Pearson, 2 Gray (Mass.) 120; s. c., 61 Am. Dec. 438. "One of the leading purposes of every wise system of law is to secure a fearless and impartial administration of justice, and at the same time to guard individuals against a wanton and oppressive abuse of legal authority. To attain this end, the common law affords to all inferior tribunals and magistrates complete protection in the discharge of their official functions, so long as they act within the scope of their jurisdiction, however false and erroneous may be the conclusions and judgments at which they arrive." 1. Cooley on Torts (2nd ed.) 491; Mechem's Public Offices, § 633. Reasons for Distinction Between Superior Inferior Judges.-JUDGE COOLEY says: "Why the law should protect the one judge and not the other, and why if it protects one only, it should be the very one who, from his higher position and presumed superior learning and ability, ought to be most free from error, are questions of which the following may be suggested as the solution: The inferior judicial officer is not excused for exceeding his jurisdiction because a limited authority only having been conferred upon him, he best observes the spirit of the law by solving all questions of doubt against his jurisdiction. If he errs in this direction, no harm is done, because he can always be set right by the court having appellate authority over him, and he can have no occasion to take hazards so long as his decision is subject to review. The rule of the law, therefore, which compels him to keep within his jurisdiction at his peril, cannot be unjust to him, because by declining to exercise any questionable authority, he can always keep within safe bounds, and will violate no duty in doing so. Moreover, in doing so he keeps within the presumptions of law, for these are always against the rightfulness of any authority in an inferior court which, under the law, appears doubtful. On the other hand, when a grant of general jurisdiction is made, a presumption accompanies it that it is to be exercised generally until an exception appears, which is clearly beyond its intent; its very nature is such as to confer upon the officer entrusted with it more liberty of action in deciding upon his powers than could arise from a grant expressly confined within nar row limits, and the law would be inconsistent with itself if it were not to protect him in the exercise of this judgment. Moreover, for him to decline to exercise an authority because of the existence of a question, when his own judgment favored it, would be to that extent to decline the performance of duty, and measurably to defeat the purpose of the law creating his office; for it cannot be supposed that this contemplated that the judge should act officially as though all presumptions opposed his authority when the fact was directly the contrary." Cooley on Torts 491. See also Clark v. May, 2 Gray (Mass.) 410; McClure v. Hill, 36 Ark. 268; Estopinal v. Peyroux, 37 La An. 477. Vermont. But in Vermont, the law makes the same presumptions in favor of the jurisdiction of justices that it does of that of superior courts. Vaughn v. Congdon, 56 Vt. 111; s. c., 48 Am. Rep. 758. Compare Morrill v. Thurston, 46 Vt. 732. Justice liable for committing obligor who does not prosecute appeal to effect under liquor act, as the bond is for the appeal, not for appearance. Arrest Beyond Locality of Court.-A county judge in England ordered the arrest of a Cambridge citizen, knowing So far was this rule carried that several courts held a magistrate liable for acting under a statute which after his action thereunder was decided to be unconstitutional.1 Vigorous denial of such embarrassment to the officer has also been made.2 There has been some misunderstanding, it is believed, of the effect of this rule. It applies, it will be noticed, to jurisdiction; it does not apply, it is conceived, to erroneous application of jurisdiction, provided such error merely extends the power to cases of the same degree or kind as that rightly belonging to the jurisdiction. For instance, if power to fine be given to an inferior judge, and his error consists in imposing a heavier fine than is legal, he shall not be held liable, at any rate if he act honestly.3 For the subject matter of laying fines was within his jurisdiction; and it has already been shown that errors within jurisdiction make no judicial officer liable. But if the inferior judge should order the offender to be imprisoned, or hanged, such punishment, not being of the same degree or kind as fines, is not within the subject matter of his jurisdiction. For such error, even though honestly made, he would be liable.4 Also it will be noticed that jurisdiction of inferior magistrates must be obtained on oath or affirmation of a complainant; especially in view of the provisions in the American constitutions protecting body and goods from unlawful seizures. There must be a jurisdiction of the process as well as of the person and cause. If such a judge, therefore, cause arrest, etc., without a complaint made in the manner indicated, he is a mere volunteer; his judicial the latter to be such, and held the mistake in law was not one of excess of jurisdiction, but was one without jurisdiction; and for it the judge was held liable. Houlden v. Smith, 68 E. C. L. R. 841. Want of Basis of Power.-Foundation of sewer commissioners for rating a district was notoriously presentment of a jury. Held, distraint to collect a rating made in the absence of presentment, was error made without jurisdiction, and accordingly the commissioners were liable for the error. Wingate v. Waite, 6 M. & W. 739. Warrant illegal on face, in that it charges passing of counterfeit bank note, which itself is no offense, subjects justice issuing it to liability. Wasson 7. Canfield, 6 Blackf. (Ind.) 410. 1. Kelly v. Bemis, 4 Gray (Mass.) 83; Sumner 7. Beeler, 50 Ind. 341; Monroe v. Collins, 17 Ohio St. 665. Compare Astrom v. Hammond, 3 McLean (U. S.) 107: Woolsey v. Dodge, 6 McLean (U. S.) 142; Osborn . U. S. Bank, 9 Wheat. (U. S.) at p. 738, 868; Meagher v. Storey Co., 5 Nev. 244. A justice of the peace was held liable in Kentucky, for ordering the arrest and lashing of a free person of color under an act authorizing, inter alia, such persons to be so treated should they lift up their hand in opposition to any white person, said act having, for one thing, been repealed; and, again, being unconstitutional. Ely. Thompson, 3 A. K. Marsh. (Ky.) 76. 2. Henke . McCord, 55 Iowa 378, 385. And see State v. McNally, 3+ Me. 221; Sessums v. Botts, 34 Tex. 335. 3. Reid . Burdine, 2 Nott & McC. (S. Car.) 168; Bradley v. Fisher, 13 Wall. (U. S.) 335; Clarke . May, 2 Gray (Mass.) 410; McClure 7. Hill, 36 Ark. 268; Brittain v. Kinnard, 1 B. & B. 439. 4. When no facts are present, or only such facts as have neither legal value nor color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not in any manner the performance of a judicial act, but simply the commission of an character has not begun, and the protection incident thereto has not been thrown around him. So where the proceedings have closed and the case is no longer before the officer. So it is in attachment: there sufficient must be shown to make out an apparent case under the attachment laws.3 The rule indeed is a general one that in processes of seizure the necessary prerequisites must be observed.4 But it is believed that if an affidavit be made which raises a question of real doubt, as to its sufficiency, over which lawyers and even the supreme tribunal of the State might sometimes differ among themselves, the judge of the inferior or limited court shall not be held liable if he erroneously hold the complaint sufficient. For his jurisdiction requires him to pass on complaints. It may well be said, then, that error of this sort is error within the limits of jurisdiction, made in judicial capacity. This opinion is fortified by some authorities in the notes,5 others contra have also been mentioned. Of course, if a complaint is manifestly insufficient, as if it seeks say attachment of goods in a case of tort when the only cases in which the judge has jurisdiction in attachment are cases of contract, he is liable if he award process of seizure. In an Ohio case, an affidavit was defective in that it charged that the person complained of entered and seized milk, etc., but failed to make it appear that the same was done with intent to steal. The court said the act might have been done under a claim of right, and have been only a trespass; accordingly the affidavit was held insufficient; and for his error in issuing warrant unofficial wrong. BEASLEY, C. J., in Grove v. Van Duyn, 44 N. J. L. 654. 1. Case v. Shepherd, 2 Johns. Cas. (N. Y.) 27; Adkins v. Brewer, 3 Cow. (N. Y.) 206; Biglow v. Stearns, 19 Johns. (N. Y.) 39; Tracy v. Williams, 4 Conn. 107. (Compare Lancaster v. Lane, 19 Ill. 244). See also Maguire 7. Hughes, 13 La. An. 281; Beaurain 7. Scott, 3 Camp. 388; Morgan v. Hughes, 2 T. R. 225. 2. Clarke v. May, 2 Gray (Mass.) 410; Piper v. Pearson, 2 Gray (Mass.) 120; Gowing v. Gowgill, 12 Iowa 495. See also Vaugh v. Congdon, 56 Vt. 111, where prosecution was barred by limitation. 3. Attachment.-Adkins v. Brewer, 3 Cow. (N. Y.) 206; Vosburgh v. Welch, 11 Johns. (N. Y.) 175; Van Steenburgh v. Kartz, 10 Johns. (N. Y.) 167, 169; Barkeloo v. Randall, 4 Blackf. (Ind.) 476. Drake on Attachment, Entick 7. Carrington, 2 Wils. 275; Grumon v. Raymond, I Conn. 40, 44; State v. Flinn, 3 Blackf. (Ind.) 72. But see Ackerley v. Parkinson, 3 M. & Sel. 411. 4. Smith v. Trawl, 1 Root (Conn.) 165. 5. Mechem's Public Offices (Chicago 1890) says, § 632, speaking of doubtful jurisdiction: "Indeed, it is difficult to see why in this, as in any other case of judicial action, the question of immunity should not be decided regardless of the motive alleged. Such, as has been seen, is the rule applied to judges of superior courts, and the same rule has in recent cases been extended to the case of inferior magistrates." See generally Grove v. Van Duyn, 44 N. J. Law, 654; McCall v. Cohen, 16 S. Car. 445; Bell v. McKinney, 63 Miss. 187; Wilcox v. Williamson, 61 Miss. 310; Clark v. Spicer, 6 Kan. 440; Stewart v. Hawley, 21 Wend. (N. Y.) 552; Bocock v. Cochran, 32 Hun (N. Y.) 521; Lange v. Benedict, 73 N. Y. 12; Maguire v. Hughes, 13 La. Än. 281. 6. Piper v. Pearson, 2 Gray (Mass.) 120, 124; McClure v. Hill, 36 Ark. 268; |