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. 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 v. Canfield, 6 Blackf. (Ind.) 410.

1. Kelly v. Bemis, 4 Gray (Mass.) 83; Sumner v. 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 v. 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 v. Thompson, 3 A. K. Marsh. (Ky.) 76.

2. Henke v. McCord, 55 Iowa 378, 385. And see State v. McNally, 34 Me. 221; Sessums v. Botts, 34 Tex. 335.

3. Reid v. Burdine, 2 Nott & McC. (S. Car.) 168; Bradley v. Fisher, 13 Wall. (U. S.) 335; Clarke v. May, 2 Gray (Mass.) 410; McClure v. 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.2 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 seizIn 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

ure.

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, Conn. 107. (Compare Lancaster v. Lane, 19 Ill. 244). See also Maguire v. Hughes, 13 La. An. 281; Beaurain v. 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. 11, where prosecution was barred by limi

Entick v. Carrington, 2 Wils. 275; Grumon v. Raymond, 1 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. Benedíct, 73 N. Y. 12; Maguire z. Hughes, i3 La. Ăn. 281.

6. Piper v. Pearson, 2 Gray (Mass.) 120, 124; McClure v. Hill, 36 Ark. 268;

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

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, 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; requirement of security or additional security, from guardian.12 Whether refusal to receive appeal is judicial or ministerial, has been disputed.13

Houlden v. Smith, 14 Q. B., N. S. (68 E. C. L. R.) 841. See note 1, p. 34. 1. Truesdell v. Combs, 33 Ohio St. 186. See also Cohoon v. Speed, 2 Jones (N. Car.) L. 133. See contra, ante, note 5, p. 36.

2. Clark v. Spicer, 6 Kan. 440. See cases cited, supra, note 5, p. 36.

3. Cave v. Mountain, I Scott's N. R. 136; Gwynne v. 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.) 841; 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

attorney to practice does not render
the judges of the court liable, where
they have a right to remove attorneys.
Manning v. French, 119 Mass. 391.
7. Miller v. Hope, 2 Shaw App. Cas.
125.

8. Morrison v. McDonald, 21 Me.

550.

9. Metcalfe v. Hodson, Hutton 170. Excessive bail. Evans v. 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 Äla. 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 v. 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; in entering on his docket stay of execution.

The issue of execution is ministerial; but the award of execution is judicial.9 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,

V.

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 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 で。 Robinson, 3 Cush. (Mass.) 543; Way v. Townsend, 4 Allen (Mass.) 114.

1. Ferguson 7. Earl of Kinnwall, 9 CI & Fin. 251.

2. Tozer v. Child, 7 El. & B. (90 E. C. L. R.) 377; Ward v. Freeman, 2 Irish C. L. 471; Luiford v. Fitzroy, 13 Q. B. 245.

3. Grider v. 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 v. Wardwell, 10 Mass. 356; Percival v. 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 . Young, 11 Johns. (N. Y.) 150.

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 . Gowgill, 12 Iowa 495; Pappa v. Rose, L. R., 7 C. P. 32 (affirmed, L. R., 7 C. P. 525).

15. 1 Chitty on Pleading S9; 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 8. See ELECTIONS, vol. 6, p. 308.

17. Massachusetts.-Lincoln v. Hapgood, 11 Mass. 350. See also Larned

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; 5 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. 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