Allegations that the act complained of was done "maliciously and corruptly," that words were spoken "falsely and maliciously," or the like, will not serve to make an action of this kind maintainable against a judge either of a superior (2) or of an inferior (a) court.

Liability by statute in special cases. There are two cases in which by statute an action does or did lie against a judge for misconduct in his office, namely, if he refuses to grant a writ of habeas corpus in vacation time (b), and if he refused to seal a bill of exceptions (c).

Judicial acts of persons not judges. The rule of immunity for judicial acts is applied not only to judges of the ordinary civil tribunals, but to members of naval and military courts-martial or courts of inquiry constituted in accordance with military law and usage (d). It is also applied to a limited extent to arbitrators, and to any person who is in a position like an arbitrator's, as having been chosen by the agreement of parties to decide a matter that is or may be in difference between them. Such a person, if he acts honestly, is not liable for errors in judgment (e). He would be liable for a corrupt or partisan exercise of his office; but if he really does not use a judicial discretion,

(z) Fray v. Blackburn (1862), 3 B. & S. 576.

(a) Scott v. Stansfield (1868), L. R. 3 Ex. 220, 37 L. J. Ex. 155.

(b) 31 Car. II. c. 2, s. 9.

(c) 13 Edw. I. (Stat. Westm. 2) c. 31, cf. Blackstone, ili, 372; [See Horne v. Pudil (Ia.), 55 N. W. Rep. 485.]

(d) This may be collected from such authorities as Dawkins v. Lord Rokeby (1875), L. R. 7 H. L. 744, 45 L. J. Q. B. 8; Dawkins v. Prince Edward of Saxe Weimar (1876), 1 Q. B. D. 499, 45 L. J. Q. B. 567, which however go to some extent on the doctrine of "privileged communications," a doctrine wider in one sense,

and more special in another sense, than the rule now in question. Partly, also, they deal with acts of authority not of a judicial kind, which will be mentioned presently.

(e) Pappa v. Rose (1872), Ex. Ch. L. R. 7 C. P. 525, 41 L. J. C. P. 187 (broker authorized by sale note to decide on quality of goods); Tharsis Sulphur Co. v. Loftus (1872), L. R. 8 C. P. 1, 42 L. J. C. P. 6 (average adjuster nominated to ascertain proportion of loss as between ship and cargo); Stevenson v. Watson (1879), 4 C. P. D. 148, 48 L. J. C. P. 318 (architect nominated to certify what was due to contractor).

the rightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable.

The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States (f).

Executive acts.

3.- Executive Acts.

As to executive acts of public officers, no legal wrong can be done by the regular enforcement of any sentence or process of law, nor by the necessary use of force for preserving the peace. It will be observed that private persons are in many cases entitled, and in some bound, to give aid and assistance, or to act by themselves, in executing the law; and in so doing they are similarly protected (g). Were not this the rule, it is evident that

(f) Cooley on Torts, Ch. 14. See ACTS OF QUASI-JUDICIAL DISCRETION, post, p. 110.

(g) The details of this subject belong

to criminal law. [Payne v. Green, 18 Miss. 507; Kilpatrick v. Frost, 2 Grant Cas. 168; Elder v. Morrison, 10 Wend. 128; Hooper v. Smith, 19 Vt. 151.]

Executive acts. The general doctrine stated in the text prevails in the United States. Thus, it has been held in numerous cases that, trespass does not lie for acts done by a ministerial officer under process regular on its face and issuing from a court of competent jurisdiction. Ludington v. Peck, 2 Conn. 700; Waterburg v. Lockwood, 4 Day, 257; Warner v. Shed, 10 Johns. 138; Taylor v. Alexandria, 6 Ohio, 144; McHugh v. Pundt, 11 Bailey, 441; Norcross v. Nunan, 61 Cal. 640; Beatty v. Perkins, 6 Wend. 382; Camp v. Mosley, 2 Fla. 171; Tefft v. Ashbaugh, 13 Ill. 602; State v. McNally, 34 Me. 210; Milburn v. Gilman, 10 Mo. 64; Woods v. Davis, 34 N. H. 328; Gray v. Kimball, 42 Me. 299; Mason v. Vance, 1 Sneed (Tenn.), 178; Ortman v. Greenman, 4 Mich. 291; McLean v. Cook, 23 Wis. 364; Hicks v. Dorn, 1 Lans. 81; 54 Barb. 172; Shaw v. Davis, 55 Barb. 389; Dunn v. Gilman, 34 Mich. 256; Breckwoldt v. Morris, 149 Pa 291; 24 At. Rep. 300; Van Kewren v. Switzer, 58 Hun, 602; 11 N. Y. S. Rep. 263; Frowbridge v. Ballard, 81 Mich. 451.

the law could not be enforced at all. But a public officer may err by going beyond his authority in various ways. When this happens (and such cases are not uncommon), there are distinctions to be observed. The principle which runs through both common law and legislation in the matter is that an officer is not protected from the ordinary consequence of unwarranted acts which it rested with himself to avoid, such as using needless violence to secure a prisoner; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the face of it he was

If the process is merely voidable it will be a defense to the officer acting under it. Cogborn v. Spence, 15 Ala. 549; Sheldon v. Stryker, 54 Barb. 116; Wilton Mfg. Co. v. Butler, 34 Me. 431; Averett v. Thompson, 15 Ala. 678; Mower v. Stickney, 5 Minn. 397; Billings v. Russell, 23 Pa. St. 189. But not where the process is void. Kerr v. Mount, 28 N. Y. 659; Stephens v. Wilkins, 6 Pa. St. 260; Lincoln v. Cross, 10 Wis. 91. Nor where the process shows its irregularity upon its face. Clark v. Bond, 7 Baxt. 288; Elsmore v. Longfellow, 76 Me. 128.

Where an officer exceeds the original lawful authority of his warrant he becomes a trespasser ab initio. Mussey v. Cummings, 34 Me. 74; Burton v. Calloway, 20 Ind. 469; Bradley v. Davis, 14 Me. 44; Jarrett v. Gwathmey, 5 Blackf. 237; Taylor v. Jones, 42 N. H. 25; Camp v. Ganley, 6 Ill. App. 499; Parmelee v. Leonard, 9 Ia. 131.

There are late authorities holding that an officer is not liable for exceeding his lawful authority unless it appears that the original lawful act was done with an unlawful purpose. Grafton v. Carmichael, 48 Wis. 660; Davis v. Webster, 59 N. H. 471; State v. Martin, 77 Mo. 670; Wentworth v. Sawyer, 76 Mo. 434; Page v. Du Puy, 40 Ill. 506; Gates v. Lonsburg, 20 Jolms. 427; Aeton v. Cooper, 29 Vt. 44; Stoughton v. Mott, 25 Vt. 668.

A sheriff or constable is responsible for his mistakes in making a levy or an arrest. Atkinson v. Gatcher, 23 Ark. 101; Sims v. Reed, 12 B. Mon. 51; Fosso v. Stewart, 14 Me. 312; Bean v. Hubbard, 4 Cush. 85; Caldwell v. Arnold, 8 Minn. 265; Meadow v. Wise, 41 Ark. 285; Oliver v. White, 18 S. C. 235; Sullivan v. Farley, 63 How. Pr. 238; Bailey v. Tipton, 29 Mo. 206; Markley v. Rand, 12 Cal. 275; Atkinson v. Atkinson, 15 La. An. 491; Lathrop v. Arnold, 25 Me. 136; Brownell v. Carnley, 3 Duer, 9; Rafferty v. People, 69 Ill. 111; 72 Ill. 37; 18 Am. Rep. 601; Savacool v. Boughton, 5 Wend. 170; State v. Weed, 21 N. H. 262; 3 Am. Dec. 188; Hubbard v. Lord, 59 Tex. 384; O'Shaughnessy v. Baxter, 121 Mass. 515; McGuire v. Galligan, 57 Mich. 38.

bound to obey (h). This applies only to irregularity in the process of a court having jurisdiction over the alleged cause. Where an order is issued by a court which has no jurisdiction at all in the subject-matter, so that the proceedings are, as it is said, "coram non judice," the exemption ceases (i). A constable or officer acting under a justice's warrant is, however, specially protected by statute, notwithstanding any defect of jurisdiction, if he produces the warrant on demand (k). Many particular statutes contain provisions which give a qualified protection to persons acting under the statute, by requiring notice of action to be given, or the action to be brought within a limited time, or both. It would serve no useful purpose to attempt a collection of such provisions, which are important, and sometimes intelligible, only in connexion with the special branches of public law in which they occur (7).

As to a mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril, the only exception being on the principle of estoppel, where he is misled by the party's own act (m).

Acts of naval and military officers. Acts done by naval and military officers in the execution or intended

(h) Mayor of London v. Cox (1867), L. R. 2 H. L. at p. 269 (in opinion of judges, per Willes J.). The law seems to be understood in the same way in the United States. Cooley on Torts, 459-462.

(i) The case of The Marshalsea, 10 Co. Rep. 76 a; Clark v. Woods (1848), 2 Ex. 395, 17 L. J. M. C. 189.

(k) 24 Geo. II. c. 44, s. 6. (Action lies only if a demand in writing for perusal and copy of the warrant is refused or neglected for six days.)

(1) Cf. Dicey on Parties, 430. Sect. 170 of the Army Act, 1881, will serve as a recent specimen. Cf. the Indian Code of Civil Procedure (Act XIV. 1882), 8. 424.

(m) See Glasspoole v. Young (1829), 9 B. & C. 696; Balme v. Hutton, Ex. Ch. (1833), 9 Bing. 471; Dunston v. Paterson (1857), 2 C. B. N. S. 495, 26 L. J. C. P. 267; and other authorities collected Fisher's Digest, ed. Mews, sub. tit. Sheriff.

in

Acts of naval and military officers. Where the military duty of obedience amounts to duress it is a defense to trespass. Witherspoon v. Woody, 4 Coldw. 605; Barrow v. Page, 5 Hayw. (Tenn.) 197; Pollard v.

execution of their duty, for the enforcement of the rules of the service and preservation of discipline, fall to some extent under this head. The justification of a superior officer as regards a subordinate partly depends on the consent implied (or indeed expressed) in the act of a man's joining the service that he will abide by its regulations and usages; partly on the sanction expressly given to military law by statutes. There is very great weight of opinion, but no absolute decision, that an action does not lie in a civil court for bringing an alleged offender against military law (being a person subject to that law) before a court-martial without probable cause (n). How far the orders of a superior officer justify a subordinate who obeys them as against third persons has never been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an apparently regular civil process, namely, that he is protected if he acts under orders given by a person whom he is generally bound by the rules of the service to obey, and of a kind which that person is generally authorized to give, and if the particular order is not necessarily or manifestly unlawful (o).

Of other public authorities. The same principles apply to the exemption of a person acting under the orders of any public body competent in the matter in hand. An

(n) Johnstone v. Sutton (1786-7), Ex. Ch. 1 T. R. 510, 548; affirmed in H. L. ibid. 784, 1 Bro. P. C. 76; 1 R. R. 257. The Ex. Ch. thought the action did not lie, but the defendant was entitled to judgment even if it did. No reasons appear to have been given in the House of Lords.

(0) See per Willes J. in Keighly v. Bell (1866), 4 F. & F. at p. 790. In time of war the protection may perhaps be more extensive. As to criminal responsibility in such cases, cf. Stephen, Dig. Cr. Law, art. 202, Hist. Cr. Law, i. 200-206.

Baldwin, 22 Ia. 328; Hess v. Johnson, 3 W. Va. 645; Kammell v. Bassett, 24 Ark. 499. But there are decisions holding that no authority can justify an unlawful act. Hogue v. Penn, 3 Bush, 663; Wilson v. Franklin, 63 N. C. 259; Smith v. Tsenhour, 3 Coldw. 214; Mitchell v. Harmony, 13 How. 115; Brown v. Howard, 14 Johns. 119.