1. The court erred in ruling out evidence for the defendant, that a complaint was made before him as a magistrate, and that his causing the plaintiff to be arrested was an official act, which was presented as his justification.
As a general principle a trespass cannot be justified under plea of right, therefore, in announcing that principle; but the evidence offered was really not in justification, but in disproof of the tresspass. A judge acting within his jurisdiction is not a trespasser, though judgment be wrong on the facts. This is a fundamental principle. The denial of it would be fatal to the administration of justice; a produce greater evils than any which can result from holding the judge exempt from being sued as a trespasser. Any wrong done the individual by an illegal arrest, may be speedily redressed by the writ of habeas corpus; and for malice or corruption, the judge may be punished; but how can justice be administered, if every opinion or judgment of the magistrate may subject him to a civil suit? There is no safety but in the rule that holds a judge, acting in good faith, irresponsible to the party for error in judgment.
The question was presented at the trial without much argument, and without reference to authorities. On this motion the matter has been more fully examined, and the authorities presented. They leave no doubt on my mind that the evidence was admissible.
In Yates vs. Lansing, (5 Johns. Rep., 282,) Chief JusticeKent reviewed the decisions on this question, premising that such a review would "teach us to admire the wisdom of our forefathers, and *Page 471 revere a principle on which rests the independence of the administration of justice." He quotes Sergeant Hawkins for the principle "that the law has freed the judges of all courts of record from all prosecutions whatsoever, except in Parliament, for any thing done by them openly in such courts as judges." He cites the Book of Assise, 27 Edward 3, pl. 18, where A. was indicted for that being a judge of Oyer and Terminer, certain persons were indicted before him for trespass, and he had entered upon the record that they were indicted for felony, and judgment was demanded if he should answer for falsifying the record, since he was a judge by commission, and all the judges were of opinion that the presentment was void. In 9 Edward, 1, 3 pl., 10, it was held byLittleton, Judge, and not denied, that an action of assault and battery would not lie against a justice of the peace for what he did as a judge of record. The same principle was afterwards more solemnly advanced by all the judges, in 21 Edward, 4, pl., 49. They all concurred in opinion that for what a justice of the peace did in the sessions, he was not amenable.
Tracing the principle down through more modern cases, English and American, Judge Rent concludes with the case of Phelps vs. Sill, (1Day's Ca. in Error,) where the Supreme Court of Connecticut said "it was a settled principle that a judge is not to be questioned in a civil suit for doing, or for neglecting or refusing to do, a particular official act, in the exercise of judicial power." No man would accept the office of judge, if his estate were to answer for every error in judgment; or if his time and property were to be wasted in litigations with every man whom his decisions might offend."
The case of Hammond vs. Howell, (1 Mod., 184; 2 Ibid, 218,) is remarkable for the attempt made by counsel to make it an exception to the admitted general rule, on the ground that the magistrate (the recorder of London) was guilty of so gross an abuse of power, that it was not warranted by his commission, and that therefore he did not act as judge. But the author says "the court did not yield to such miserable sophistry; for they held that the bringing of the action was a greater offence, than the imprisonment of the plaintiff, for it was a bold attempt both against the government and justice in general."
In Groenvelt vs. Burnwell, (12 Mod., 386; 1 Salk., 396; 1 Lord Raym., 454,) Sir John Holt, after showing "that judges were not *Page 472 liable to an action by the party for what they did as judges," added "that even if a justice of the peace should record that, upon his view, as a force, which was no force, he could not be drawn in question; for it is a judicial act; and that in like manner jurors were not responsible for their verdicts, because they were judges of fact."
I will not follow out the cases cited; for all of them, and many others which I have examined, maintain the same principle. I shall refer only to one other, which is in point, both on the principle, and on the question of admitting the evidence under the plea of not guilty. It is the case of Mills vs. Collett, (12 Eng. Com. Law Rep., 11,) which was an action of trespass for assault and imprisonment against a justice of thepeace, for committing the plaintiff to the county jail, "where he lay among felons for three months," on a charge of felony, when his offence amounted at the most to trespass only. The plea was not guilty. The prosecution was under an act of parliament, for felling timber trees; and as it appeared in evidence that the trees were in the plaintiff's own occupation, it was argued against the magistrate that he had no jurisdiction, and he must have known that he had none; and that the plaintiff had not been guilty even of trespass. But the court held, that the offence charged being within his jurisdiction, the magistrate could not be sued as a trespasser. Tindale, Chief Justice: "If a party charged with an offence be brought before a magistrate, he must exercise a judgment in the case, and he is not liable for a mere error in judgment." Park, Judge; "If when a charge is before him, a magistrate does not exceed his jurisdiction, he is not liable to an action."Burrough, Judge: "If a magistrate has jurisdiction, as he had here, he never can be liable in an action of trespass, nor in any form of action for a mere mistake in matter of law, and whether an occupier could commit a felony under the statute, on his own premises, was clearly a matter of law." Gasalee, Judge: "The defendant acted on his general authority; and if there was a probability of a felony having been committed, he was bound to proceed as in other cases. Suppose a committal on suspicion of murder, and it turns out not to be murder; shall the magistrate be liable ?"
The only question then in the present case is, whether Justice Wiggins had jurisdiction to commit for felony, and whether there was a charge before him upon which he acted judicially. The affidavit ruled out at the trial presented such a charge, namely, "that a certain Yarnall Bailey, did, at the hundred of Christiana, in the *Page 473 county aforesaid, on the eleventh clay of November instant, by threats and putting in fear one Thomas Braceland, did forcibly take or cause to be forcibly taken away from the said Thomas Braceland, one large bay gelding of the value of sixty dollars; one saddle and bridle of the value of six dollars; said horse, saddle and bridle, being the property of him, the said Charles Murphy." This was not necessarily a charge of felony, but it might prove to be such, and the magistrate had jurisdiction of the matter, and was bound to exercise his judgment upon it. That judgment, though erroneous, protected him from this suit; and he should have been allowed to prove this defence under the general issue.
2. The jury erred in finding a verdict for the plaintiff on the proof before them. The transcript of the record which was put in evidence by the plaintiff, presented this matter of justification, namely, that the defendant was acting as a justice of the peace, on a charge preferred under oath, and that as such magistrate he issued the warrant upon which the plaintiff was arrested. For such an act he cannot be held liable as a trespasser. His judgment on the complaint before him may or may not have been wrong; that remains to be tried in Crossan's case, for he has been indicted for a felony in the same transaction. It would be monstrous to hold a justice of the peace liable as a trespasser, for erroneously judging that to be a felony which the prosecuting officer of the State, and a grand jury of the county, have treated as a felony. In Bailey's case, who was with Crossan, it may be assumed that the judgment of the justice was wrong, and that he had no felonious intent. The grand jury have ignored the bill against him, and I think properly; but he was engaged in an unlawful, if not in a criminal act, in aiding Crossman to take away forcibly the property of Murphy. He has, therefore, no cause of complaint, if the character of his offence was mistaken by the magistrate; and however much mistaken or erroneous the judgment of the magistrate may have been in the case, it does not make him a trespasser, and Bailey can have no action, against him for the arrest and imprisonment. On the evidence, therefore, the jury ought to have rendered a verdict for the defendant.
Judge WOOTTEN concurred in making the rule absolute, and granting a new trial, on the ground that the evidence offered by the defendant was admissible, not under the general issue, but in reply *Page 474 to the transcript offered by the plaintiff, showing the character in which he acted. On the other points, he expressed no opinion.
Chief Justice Booth was opposed to laying the rule; and dissented from the decision made by the majority granting a new trial. He expressed his reasons, briefly, for dissenting, which he designed to draw out in writing, but his subsequent sickness and death prevented this. He thought a plea of justification was necessary to let in the evidence offered, and that a blank process was so irregular and the complaint on which it was issued so defective, that it was no protection to the magistrate who issued or the officer who executed it.