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erly filling it, for the purpose of escaping liability: though doubt. less he might abandon the office into which he had intruded at any time, on claim being made by the rightful party entitled, or even without such claim, unless he had given bonds to perform the duties. Such abandonment, however, could not excuse him from liabilities already incurred.'
none when the office has been abol. ished and there is none to fill. In ro Hinkle, 31 Kan. 712. The acts of such officers within the authority of the office are perfectly good, so far as the public and third persons are con. cerned, and can only be questioned in a direct proceeding to try their title, or in some suit in which they seek to establish in their own favor some right growing out of or depend. ent upon the official character. Seo cases above cited. Also, Bucknan o. Ruggles, 15 Mass. 180; Attorney General 0. Lothrop, 24 Mich. 235; Blackstone o. Taft, 4 Gray, 250; Samis o. King, 40 Conn. 298; Downer o. Woodbury, 19 Vt. 329; Ex parte Strang, 21 Ohio, (N. 8.) 610; Gregg o. Jamison, 55 Penn. St. 468; Cabot o. Given, 45 Me. 144; State o. Tolan, 33 N. J. 195; Leach o. Cassidy, 23 Ind. 449; McCormick o. Fitch, 14 Minn. 252, and cases, p. 351, n. 3, supra.
· Longacre o. State, 3 Miss. 637; Marshall 0. Hamilton, 41 Miss. 229;
Borden o. Houston, 2 Texas, 594; Bil. lingsley o. State, 14 Md. 369. The principle has often been applied to persons who have assumed the functions of collectors of the public revenue. Sandwich o. Fish, 2 Gray, 298. 301; Williamstown o. Willis, 15 Gray, 427; Johoston v. Wilson, 2 N. H. 203, 206; Horn d. Whittaker, 6 N. H. 88; Jones o. Scanland, 6 Humph. 195; Trescott o. Moan, 50 Me. 347; Wentworth o. Gove, 45 N. H. 160.
2 Persons undertaking to act as agsessors of a town, without having been legally elected as such, are personally liable for the acts of a col. lector to whom they have issued a warrant for the collection of taxes assessed by them. Allen o. Archer, 49 Me. 346. Same rule applied to fish commissioners. Bearce o. Fossett, 34 Me. 575. So a justice is personally liable who issues process without having taken the oath of office. Cour. ser v. Powers, 84 Vt. 517.
IMMUNITY OF JUDICIAL OFFICERS FROM PRIVATE SUITS.
In the last chapter it was shown that where an officer is charged with a duty to an individual which he fails to perform, an action will lie against him on behalf of the person to whom the duty was owing. It was also shown that where a duty is only imposed as a duty to the public, no individual action will lie, though the consequence of a breach may happen to fall exclusively upon one or more individuals. It was adınitted at the same time that it is not always easy to determine whether a particular office is charged with duties to individuals, and that the question must usually be decided on a consideration of the nature of the duty, and whether it contemplates only general protection and benefit, or the protection and benefit of such individuals as are liable to be specially affected. When the latter is the case, the duty is distributive, and arises in behalf of any one who is exposed to the injury meant to be guarded against whenever the exposure
The general subject requires further examination, as it concerns a class of official duties which are public in their nature, though in their discharge specially affecting individuals; but the time, manner and extent of the performance of which are left to the wisdom, integrity and judgment of the officer himself. In these cases it is conceded that, as a general rule, the only liability of the officer is to the criminal law, in case he shall wrongfully aud maliciously neglect to perform his duties, or shall perform them improperly. Duties of this nature are usually spoken of as duties in the exercise of discretionary and judicial powers, and it is deemed a conclusive answer to any private action for an injury resulting from neglect or unfaithful performance to say that where a matter is trusted to the discretion or judgment of
an officer, the very nature of the authority is inconsistent [*404) with *responsibilty in damages for the manner of its
exercise, since to hold the officer to such responsibility wonld be to confer a discretion and then make its exercise a wrong. Lord Chief Justice North expressed the idea very tersely in the following language: “If a jury will find a special verdict, if a judge will advise and take time to consider, if a bishop
a will delay a patron and impanel a jury to inquire of the right of patronage, you cannot bring an action for these delays, though you suppose it to be done maliciously and on purpose to put you to charges; though you snppose it to be done scienter, knowing the law to be clear; for they take but the liberty the law has provided for their safety, and there can be no demonstration that they have not real doubts, for these are within their own breasts; it wonld be very mischievous that a man might not have leave to doubt without so great peril." !
When it is said there can be no demonstration that there were not real doubts, or what were the real motives within the official breast, it is not meant that it is impossible for the law to investigate the fact. In many cases suits are allowed where a bad motive must be the gravamen of the complaint, and the motive is arrived at by showing that while the defendant has done one thing, all honest inducements, so far as they can be presented in evidence, should have inclined him to do something different. An inspection of his motives is thus invited in the light of the exposure which the facts known by or accessible to him makes : and though he asserts one motive, it may satisfactorily appear that he must have indulged another, because these facts, with the motive he pretends to, should have impelled him in a direction the opposite of that he took. And in the case of officials of even the highest station, when the State calls them to account for misconduct, they do not put aside the charge by pleading that their duties were discretionary or judicial, and by denying the competency of the State to look into their breasts and make demonstration that their motives were not pure and their purposes not honest; the State rejects such an answer, and does not hesitate to inflict very serious punishment when it is satisfactorily shown that the discretion was abused through malice, or the judgment *perverted through favoritism or other im- [*405] proper motive. It is not, therefore, the mere difficulty of an inquiry into the facts that precludes civil liability to the
* Barnardiston o. Soame, 6 State Downes, 3 Moore, P. C. C. 36; Ran. Trials, 1063, 1099. And, see Taaffe v. dall v Brigham, 7 Wall. 523.
party who has been injured by a neglect of judicial duty or an abuse of discretion.
If, however, we select the case of any judicial officer and endeavor to satisfy ourselves what would be the practical working of the opposite doctrine, we shall not be long in doubt that reasons abundant exist why the judge shonld be exempt from individual responsibility to those interested in the discharge of his duties. We shall also be able to perceive that while the upright judge may have reasons for desiring to be shielded against harassing litigation at the suit of those who may be displeased with his action, the general public has interests still more important which demand for him this immunity.
First, as regards the interest of the judge: Whoever brings his controversy before the courts may be assumed to believe that his case is sonnd both on the law and on the facts, and that if justice is done him, judgment will pass in his favor. Whoever defends a suit brought against him, may also be supposed to believe that he ought to succeed in his defense. One of the two must fail, and when he fails he can generally attribute it to some ruling of the judge which either conclusively determined the case, or gave such direction to the deliberations of the jury as required the result which they reached. The reasons assigned by the judge for his rulings may or may not be satisfactory to parties, and necessarily in the case of the defeated party, they are received by a mind prepared in advance not to agree to them. If, now, the judge can be held responsible to the defeated party for his action, it must be on the ground either, First, that by a wrong judgment, where duty required of him a right judgment, he has inflicted injury; or, Second, that he has done wrong by not making use of his honest judgment, but allowing passion or prejndice to control his action. One or the other of these is the only conceivable ground on which an action against the judge can be supported.
If an action were maintained on the first ground, it would be apparent that no man fit for the position, and having anything either of property or reputation to put at stake, would consent to occupy a judicial position. If at the peril of his fortune, he
must justify his judgments to the satisfaction of a jury [*406] *summoned by a dissatisfied litigant to review them, it
would be presumptuous for any man to place himself in that position. Nor would the protection be sensibly greater if his liability were to depend upon a showing of bad motive. And here we cannot do better than to reproduce the language of an important decision. “ Controversies involving not merely great pecuniary interests, but the liability and character of the parties, and consequently exciting the deepest feelings, are being constantly determined in the courts, in which there is great conflict in the evidence, and great doubt as to the law which should govern their decision. It is this class of cases that impose upon the judge the severest labor, and often create in his mind a fearful sense of responsibility. Yet it is in precisely this class of cases that the losing party feels most keenly the decision against him, and most readily accepts anything but the soundness of the decision in explanation of the action of the judge. Just in proportion to the strength of his conviction of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property, or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision often finds vent in imputations of this character, and from the imperfection of human nature this is hardly a sub. ject of wonder. If civil actions could be maintained in such cases against the jndge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons, sufficiently irritated to institute an action against a judge for his judicial acts, would hesitate to ascribe any character to the acts which would be essential to the maintenance of the
Turning, now, to the public aspect which such a suit would present, the following may be assigned as reasons why the public interest could not suffer such a suit to be brought:
1. The necessary result of the liability would be to occupy the *judge's time and mind with the defense of [*407) his own interests, when he should be giving them up
FIELD, J., in Bradley o. Fisher, 13 Wall. 348. To the same effect is
Fray o. Blackburn, 3 Best & S. 576.