of arrest the magistrate was held liable.1 What is believed to be the sounder rule, was declared in a Kansas case. There the court decided that if an information before a justice showed intent to charge an offence, and the facts stated were sufficient to require the exercise of judgment, and of judicial discrimination to determine whether such offence was charged or not, the justice's error will not subject him to liability.2 (c) Mistake of Fact.-But the burden resting on inferior judges to show affirmatively their jurisdiction, does not extend so as to hold them liable 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 has 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. Otherwise, the maxim ignorantia facti excusat applies.3 4 7 3. Judicial Acts Within the Rule.-In applying these principles to particular cases, the question is, was the act a judicial one? The following acts have been held to be judicial: Taking recognizance; upholding the orderly progress of coroner's inquest by expulsion of unruly persons,5 by striking off attorney's name from roll, by censure of attorney, by commitment of witness by inferior judge for contempt,8 provided the commitment is done during trial and so within the justice's jurisdiction; taking bail, hence its insufficiency does not make the judge liable; order by probate judge distributing proceeds of real estate:10 reinstating case;11 requirement of security or additional security, from guardian.12 Whether refusal to receive appeal is judicial or ministerial, has been disputed.13 Houlden 7. Smith, 14 Q. B., N. S. (68 E. C. L. R.) 841. See note 1, p. 34. 1. Truesdell . Combs, 33 Ohio St. 186. See also Cohoon 7. Speed, 2 Jones (N. Car.) L. 133. See contra, ante, note 5, p. 36. 2. Clark 7. Spicer. 6 Kan. 440. cases cited, supra, note 5, p. 36. See 3. Cave v. Mountain, I Scott's N. R. 136; Gwynne 7. Powell, 2 Lutw. 387; Kemp v. Neville, 100 Eng. C. L. R. 550; Houlden v. Smith, 14 Q. B., N. S. (68 E. C. L. R.) S41; Calder v. Halket, 3 Moore P. C. 28. 4. Chickering v. Robinson, 3 Cush. (Mass.) 543; Way v. Townsend, 4 Allen (Mass.) 114. 5. Garnett v. Ferrand, 6 B. & C. 628. 6. Bradley v. Fisher, 13 Wall. (U. S.) 335 (explaining Randall v. Brigham, 7 Wall. (U. S.) 523). Refusal to allow 9 attorney to practice does not render 125. 8. Morrison v. McDonald, 21 Me. 550. 9. Metcalfe v. Hodson, Hutton 170. Excessive bail. Evans 7. Foster, 1 N. & H. 374. Refusal of bail. Young v. Herbert, 2 Nott & McC. (S. Car.) 172. 10. State v. Hall, 5 S. Car. 120. 11. Hughes v. McCoy, 11 Colo. 591. 12. Hamilton v. Williams, 26 Ala. 527. Omission as to guardian's bond. Spears v. Smith, 9 Lea (Tenn.) 483. See also McTeer v. Lebow, 85. Tenn. 121. 13. English Cases.-Fox v. King, 3 Cr.. & Dix. (Irish) 3S; Ward . Freeman, 4. Liability For Ministerial Acts.-Persons having judicial functions, but being also lawfully required to perform ministerial acts, may be sued respecting such acts like any other ministerial officer, the judicial character not protecting them in those matters.1 Where the act is partially judicial and partly ministerial, the rule of protection applies.2 In jurisdictions where the grant of liquor licences is a ministerial act, the officer is liable for refusing licence to one entitled thereto.3 The grant of marriage licence is ministerial.4 A justice acts ministerially in entering up a judgment; 5 in making return to the common pleas on an appeal; 6 in entering on his docket stay of execution." The issue of execution is ministerial; 8 but the award of execution is judicial. A justice acting irregularly and voluntarily in the issue of execution, is liable. 5. Classes of Judges Within the Rule. The doctrine of exemption for erroneous opinion or act is one of universal character, protecting not only judges of the superior common law courts, but equity judges,10 judges of courts of limited jurisdiction,11 justices of the peace, 12 coroners. 13 Furthermore, its protection is not confined to judges properly so called; but extends to all who act in a judicial capacity, while so acting within their jurisdiction. Thus when they are so acting, it applies in favor of arbitrators ;14 jurors;15 (election officers;16 although some courts hold differently;17 malice, 2 Ir. Com. Law 482; 2 Tidd's Pract., p. 867; Bridgman v. Holt, 1 Show. P. C. 117; Wright v. Sharp, 1 Salk. 288. American Cases. Tompkins v. Sands, 8 Wend. (N. Y.) 462; Tyler v. Alford, 38 Me. 530; Hardison v. Jordan, Cam. & N. (N. Car.) 454. Contra, Jordan v. Hanson, 49 N. H. 199; Tichenor v. Newson, 2 Green (N. J.) 26; State v. Towle, 42 N. H. 540; Chickering v. Robinson, 3 Cush. (Mass.) 543; Way v. Townsend, 4 Allen (Mass.) 114. 1. Ferguson v. Earl of Kinnwall, 9 Cl & Fin. 251. 2. Tozer v. Child, 7 El. & B. (90 E. C. L. R.) 377; Ward v. v. Freeman, 2 Irish C. L. 471; Luiford v. Fitzroy, 13 Q. B. 245. 3. Grider . Tally, 77 Ala. 422; s. c., 54 Am. Rep. 65. 4. Wood v. Farnell, 50 Ala. 546. 5. Christopher v. Van Liew, 57 Barb. (N. Y.) 17; Hall v. Tuttle, 6 Hill (N. Y.) 38; Sibley v. Howard, 3 Den. (N. Y.) 72. 6. Houghton v. Swarthout, 1 Den. (N. Y.) 589. 7. Kerns v. Schoonmaker, 4 Ohio 331. 8. Briggs 7. Wardwell, 10 Mass. 356; Percival . Jones, 2 Johns. Cas. (N. Y.) 49; Taylor v. Trask, 7 Cow. (N. Y.) 249; Freeman on Executions, § 23, note 1; Milliken v. Brown, 10 S. & R. (Pa.) 188. Compare Wertheimer v. Howard, 30 Mo. 420. 9. Freeman on Executions, § 23. 10. Lord Chancellor in England.Dicas v. Brougham & Vaux, 1 Moo. & Rob. 309. 11 Members of a Court Martial.— Vanderheyden v. Young, 11 Johns. (N. 12. Rex v. Cox, 2 Burr. 785; Harman v. Tappenam, 1 East 556; Tompkins v. Sands, 8 Wend. (N. Y.) 462. 13. Garnett 7. Ferrand, 6 B. & C. (Eng.) 611. 14. Jones v. Brown, 54 Iowa 74, explaining Gowing v. Gowgill, 12 Iowa 495; Pappa v. Rose, L. R., 7 C. P. 32 (affirmed, L. R., 7 C. P. 525). 15. I Chitty on Pleading 89; 1 Wharton's Am. Crim. L., § 509; Turpen v. Booth, 56 Cal. 65; Hunter v. Mathis, 40 Ind. 356. 16. Barnardiston v. Saome, 6 How. State Trials 1096; Mechem Public Officers (1890), § 639, note S. See ELECTIONS, Vol. 6, p. 308. 17. Massachusetts.-Lincoln v. Hapgood, 11 Mass. 350. See also Larned 3 however, is held to make the election officer liable; 1) church wardens; 2 county commissioners; 3 tax commissioners; 4 commissioners on damages in eminent domain proceedings; the vice chancellor of Cambridge University; the London College of Physicians; ecclesiastics.8 Some hesitation has been manifested, in England, prior to express statutory immunity, respecting commissioners of bankruptcy.9 Other officials are mentioned in the note.10 6. Liability for Fraud and Corruption.-Despite some dicta and a few decisions, it seems generally settled, excepting in election cases, that for fraud or corruption in a judicial act, a judge can only be questioned by impeachment or address.11 This rule of exemption 7. Wheeler, 140 Mass. 390; Lombard 7. Oliver, 3 Allen (Mass.) 1, and 7 Allen (Mass.) 155; Harris . Whitcomb, 4 Gray (Mass.) 433; Blanchard v. Stearns, 5 Metc. (Mass.) 298, 301, where the departure from the rule more generally prevalent is acknowledged; Kilham v. Ward, 2 Mass. 236; Henshaw v. Foster, 9 Pick. (Mass.) 312; Capen v. Foster, 12 Pick. (Mass.) 485; Keith v. Howard, 24 Pick. (Mass.) 292. Ohio. Jeffries 7. Ankeny, II Ohio 372; Anderson v. Milliken, 9 Ohio St. 568; Monroe v. Collins, 17 Ohio St. 665. 420. 1. ELECTIONS, vol. 6, p. 308; and see Goetchens. Matthewson, 61 N. Y. Federal Court.-The United States Supreme Court, in a case from Utah, directed the overruling of demurrers to declarations which charged election registry officers with refusing to register plaintiff's name through malice and without reasonable cause, holding the officers to be responsible if these averments should be proven. Murphy v. Ramsey, 114 U. S. 15, 46. 2. Churchwarden.-Tozer v. Child, 7 El. & B. (90 E. C. L. R.) 377 3. County Commissioners.-Where county commissioners, acting in an honest opinion of the law, and without negligence, refuse to pay a claim, they are not to be held liable as individuals. The remedy is by mandamus. Hunter 7. Mobley, 26 S. Car. 192. And see State v. Comm'rs of Tippecanoe Co., 45 Ind. 501; Hannon v. Grizzard, 99 N. Car. 161. Wend. (N. Y.) 42; Lewis on Em. 6. Kemp v. Neville, 100 Eng. Com. L. R. 522. 7 Groenvelt v. Burwell, 1 Raymond 454; s. c., 1 Salk. 397. 8. Beaurain 7. Scott, 3 Campb. 388; Ferguson . Kinnoul, 9 Cl. & Fin. 251. 9. Ferguson v. Kinnoul, 9 Cl. & Fin. 291; Miller v. Seare, 2 W. Blkst. 1141, which was overruled in Doswell v. Impey, 1 B. & C. 163; Crowley v. Impey, 2 Stark. 261; Isaac v. Impey, 10 B. & C. 442. Commissioners of insolvency are not in judicial matters responsible for errors of judgment if they are for wilful misconduct. Cunningham v. Bucklin, 8 Cow. (N. Y.) 178. 10. Pilot commissioners are a quasijudicial body not answerable civilly for their acts requiring judgment. Downer v. Lent, 6 Cal. 94. Notary Public.-See that title. See also Mechem Public Officers (1890). Boards of Health.-See Raymond v. Fish, 51 Conn. So; Salem v. Eastern R. Co., 98 Mass. 431; Underwood v. Green, 42 N. Y. 140; BOARD OF HEALTH, vol. 2, p. 436. Inspectors of Goods.-See as to these officers. Warne v. Varley, 6 Term R. 443; Seaman v. Patten, 2 Cai. (N. Y.) 312. See also Fath v. Kappel, 72 Wis. 289. Compare Nickerson v. Thompson, 33 Me. 433; Hayes v. Porter, 22 Me. 371; Tardos Bozant, I La. An. 199. で。 Prison Directors.-Porter v. Haight, 45 Cal. 631. Municipal Officers.-East River etc. Gas Light Co. v. Donnelly, 25 Hun (N. Y.) 614. 11. Taylor v. Doremus, 1 Harr. (N. J.) 473; Stone . Graves, 8 Mo. 148; from civil liability exists for the benefit of the community, which must have the services of judges unharassed by the continual questioning of their conduct and motives by disappointed litigants. It has been applied not only to the judges of the superior courts, but to inferior judges, such as justices. But conspiracy between a judge and others, entered into before a case comes up, regarding the disposition to be made therein, is not judicial action on the judge's part, and for it he is liable. He is not liable for slanderous words in the conduct of a case, though spoken falsely and maliciously.3 VIII. DISQUALIFICATION OF JUDGES-1. General Principle. That no man can be a judge in his own cause is a maxim universally accepted. "The learned wisdom of enlightened nations, and the unlettered ideas of ruder society are in full accordance upon this point." "Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget Lenox v. Grant, 8 Mo. 254; Fray v. Blackburn, 3 Best & Sm., Q. B. (113 Eng. Com. L. Rep.) 576; Pratt v. Gardner, 2 Cush. (Mass.) 63, 70. And see Chitty on Pleading 69. And see also the tenor of opinion in Yates v. Lansing, 5 Johns. (N. Y.) 291. Contra dicta in Gault v. Wallis, 53 Ga. 675; Gregory v. Brown, 4 Bibb (Ky.) 28; State v. Prescott, 31 Ark. 39; Welsh v. Lloyd, 5 Ark. 370; 1 Bish. Cr. Law, § 299 and note. On certiorari, wherein a justice of the peace was excepted to because he had formed opinion, Mc Dowell v. Van Deusen, 12 Johns. (N. Y.) 356, the court say: "It is a general principle that a judge cannot be excepted to or challenged for corruption; but must be punished by indictment or impeachment." Citing 1 Inst. 294, and 2 Inst. 422. Judges of courts of record 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 is to be drawn between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject matter. Bradley v. Fisher, 13 Wall. (U. S.) 335; explaining Randall v. Brigham, 7 Wall. (U. S.) 523. And see on the general subject East River Gas Light Co. v. Donnelly, 25 Hun (N. Y.) 614; Pickett v. Wallace, 57 Cal. 555; Turpen v. Booth, 56 Cal. 65; Londegan v. Hammer, 30 Iowa 508; Pratt v. Gardner, 2 Cush. (Mass.) 63, 68. 1. Old Cases.-Judge cannot be questioned for corrupt act as judge either at the suit of the parties or of the king. Floyd v. Barker, 12 Coke 23, and cases cited; Barnardiston v. Saome, 6 How. State Tr. 1096. But as to judges of inferior courts, the plaintiff in a writ of false judgment shall have a direct averment against that which they have done as judges quia recordum non habent. 21 Henry VI, 34. And in Thorp's case judgment was by Parliament adjudged just and legal; "but in truth the whole set of judges were then so corrupt that the king was forced to try him by commission." Note to 12 Co. 25. Arbitrator held not liable for corruption. Jones v. Brown, 54 Iowa 74. 2. Conspiracy.-Stewart v. Cooley, 23 Minn. 347. See also Calder v. Halket, 3 Moo. P. C. 53, ncte. 3. Slanderous Words.-Thomas Churton, 110 E. C. L. R. 475; Scott v. Stansfield, L. R., 3 Exch. 220. See Miller v. Hope, H. of L., 2 Shaw's App. Cas. 125. There are dicta in Tennessee that county court judges would be liable for corrupt, fraudulent, malicious exercise of judicial power. Cope v. Ramsey, 2 Heisk. (Tenn.) 197; Hoggatt v. Bigley, 6 Humph. (Tenn.) 236, 239; Mr. Mechem, in his work on Public Offices and Officers (1890), § 640, cites numerous cases, and says that outside of election cases there are few maintaining that existence of improper motive will support action. 4. Washington Ins. Co. v. Price, I Hopk. Ch. (N. Y.) 1. no suspicion of the fairness or integrity of the judge."1 JUDGE COOLEY says that "to empower one party to a controversy to decide it for himself is not within the legislative authority; because it is not the establishment of any rule of action or decision."2 The decisions stated below show that the principle of disqualification is to have no technical or strict construction, but is to be broadly applied to all classes of cases where one is appointed to decide the rights of his fellow-citizens.3 Doctrine of Necessity.-Where the constitution has conferred exclusive jurisdiction, and no provision is made for hearing elsewhere if the judge is disqualified, there, the constitution, being the paramount law, the judge, it has been said, must from the necessity of the case hear and decide even though related to a party, or interested, to prevent the failure of justice otherwise existing. But it has been suggested that a legislative tribunal cannot come within the exception; as the legislature cannot make a judge an arbiter in his own cause. But the objection does not apply where the interest is minute and remote, as in the authorizing appointment of draining commissioner.6 4 2. Disqualification at Common Law. For general purposes, it is sufficiently accurate to say that the interest disqualifying at common law was that which would have disqualified as a witness or juror. It was not a legal objection that a judge had been of 1. Darling v. Pierce, 15 Iun (N. Y.) 543. And see M'Laren v. Charrier, 5 Paige (N. Y.) 530; Ten Eick v. Simpson, II Paige (N. Y.) 177; Whicher v. Whicher, II N. H. 348; People v. Suffolk Common Pleas, 18 Wend. (N. Y.) 550; Oakley v. Aspinwall, 3 N. Y. 549, 550; Moses v. Julian, 45 N. H. 52, 58. 2. Cooley Const. Lim. 412. See also Ames . Port Huron Co., 11 Mich. 139; State v. Crane, 36 N. J. L. 394; Schroder . Ehlers, 2 Vroom (N. J.) 44. 3. Hall. Thayer, 105 Mass. 219, 223. 4. Stuart v. Farmers' etc. Mechanics' Bank, 19 Johns. (N. Y.) 496; Matter of Leefe, 2 Barb. Ch. (N. Y.) 39; Paddock v. Wells, 2 Barb. Ch. (N. Y.) 331; Heydenfeldt v. Towns, 7 Ala. 423; People . Edmonds, 15 Barb. (N. Y.) 529, 531; Baldwin v. McArthur, 17 Barb. (N. Y.) 414, 423; Converse v. McArthur, 17 Barb. (N. Y.) 401, 413; Ten Eick 7. Simpson, 11 Paige (N. Y.) 177-179; Movers v. White, 6 Johns. Ch. (N. Y.) 360. Opinion of LORD LANGDELL, M. R., in Grand Junction Canal Co. v. Dimes, 12 Beav. 77; Great Charte v. Kennington, 2 Stra. 1173; Thellusson v. Rendlesham, 7 H. of L. Cas. 429; Peck v. Freeholders, I Spenc. (N. J.) 457. See State v. Crane, 36 N. J. L. 394. Contra, Washington Ins. Co. v. Price, Hopk. Ch. (N. Y.) 1; State v. Castleberry, 23 Ala. 85. Ap In the Dimes case, above mentioned. (3 H. of L. Cas. 759) it was held that the lord chancellor, though disqualified by interest, could enroll decree of the vice chancellor so there could be appeal, notwithstanding the act involved the exercise of discretion, for it was a case of necessity. proved in Ranger v. Gt. West. R. Co., 5 H. of L. Cas. 88. But compare Anonymous, Salk. 396. See apparently the same case at p. 201: LORD IIOLT's opinion would not admit of the judge's acting even in such a case. Mayor . Markwick, 11 Mod. 164. See Com. . Ryan, 5 Mass. 90, 92, affirming a judge's right to sit in such a juncture. Approved in Pearce v. Atwood, 13 Mass. 324, 340. 5. Cooley's Const. Lim., § 175; Co. Litt., § 212; Day 7. Savadge, Hobart 212, 218. See Matter of Ryers, 72 N. Y. 1, 13. 6. Matter of Ryers, 72 N. Y. 1, 13; Com. v. Ryan, 5 Mass. 90; Pearce v. Atwood, 13 Mass. 324, 340. See also State v. Crane, 36 N. J. L. 394. 7. Dimes v. Grand Junction Canal Co., 16 Eng. L. & Eq. 63. |