The opinion of the court was delivered by
THOMPSON, J".In the criminal prosecution against the plaintiff instituted before the defendant as a justice of the peace, he had jurisdiction of theperson of the plaintiff, of the offense charged and of the process issued to apprehend the plaintiff, by which he was brought before the justice to answer to the alleged assault and battery. Having at the outset jurisdiction of the subject matter, the person and the original process, it is insisted by the defendant that all his subsequent acts as alleged and complained of in the plaintiff’s declaration and admitted by the demurrer, were done by him while acting in a judicial capacity, and that consequently he is not answerable therefor in a civil action.
A judicial officer, acting within his jurisdiction and in a judicial capacity, is not liable in a private action for his judicial acts. In this respect a justice of the peace has the same immunity as a judge of the Supreme Court. Pratt v. Gardner, 2 Cush 63; Yates v. Lansing, 9 Johns. 395 (6 Am. Dec. 290 and note); Randall v. Brigham, 7 Wall. 523 (L. Ed. Book 19, 285); *208Bradley v. Fisher, 13 Wall. 335 (L. Ed. Book 20, 646); Lange v. Benedict, 73 N. Y. 12 (29 Am. Rep. 80); Floyd v. Barker, 12 Coke 24; Scott v. Stanfield, L. R. 3 Ex. 220; Munster v. Lamb, 28 Alb. Law Jour. 445 (49 L. T. Rep. [N. S.] 253.) The reason of this rule is well stated by Judge Powers in his dissenting opinion in Vaughn v. Congdon, 56 Vt. 111, where he says : Immunity from liability in favor of the judges rests upon the broad ground of public policy, which declares that a judge, for acts done by him in his public capacity, is absolutely privileged ■from action. It is an official privilege, which, thotigh it covers a multitude of sins, is still absolutely essential to the due administration of justice. It is a privilege not primarily designed for the protection of the judge, but for th & protection of the public, by making the judges free, independent and fearless in the discharge of their duties. No judge could act independently if conscious that he was exposed to an action by every disappointed suitor in his court. If a judge were liable to action, then the question whether he has properly discharged his judicial duties must be submitted to jury to determine according to their notions. In like manner the judge trying his case could be sued, his conduct reviewed, and so on ad injmitumL
This exemption of judges from civil liability is not affected by the motives or intent with which their judicial acts are performed. The purity of their motives and conduct cannot in this way be made the subject of judicial inquiry. Floyd v. Barker, Scott v. Stanfield, Bradley v. Fisher, Randall v. Brigham, Pratt v. Gardner, Munster v. Lamb, supra. Taylor v. Doremus, 16 N. J. Law 473. In Fray v. Blackburn, 3 Best & S. 576, one of the judges of the Court of Queen’s Bench was sued for a judicial act, and on demurrer, one point taken was that there was no allegation of malice. After argument, the plaintiff applied‘for leave to amend by introducing an allegation of malice and corruption, which leave was refused. In denying the motion the court said: “ It is a principle of our law that no *209action will lie against a judge of one of the Superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being hai’rassed by vexatious actions.”"
The defendant, as the justice holding the court before which the plaintiff was tried, had the right to interrogate the witnesses produced on trial. This is often done by the presiding judge in the County Court when deemed necessary to elicit the facts in issue or to prevent a miscarriage of justice. It is a matter which rests in the sound discretion of the court before which the trial is had, even to the extent of asking leading questions.
It is alleged that the defendant at the trial of the plaintiff excluded witnesses and rejected evidence • offered by him. Whether the witnesses were competent .or the evidence offered was relevent to the issue on trial, was a question clearly within the judicial power of the defendant as justice to determine, and he is not answerable for his • decision excluding the same. In short, all the acts of the defendant to and including the sentence imposed upon the plaintiff; as alleged .in the declaration, were such judicial acts that he cannot be made answerable for the same in a civil action.
R. L. s. 1673 provides that “the respondent may appeal from any judgment or sentence of a justice against him, if the appeal is claimed within two hours after the rendition of judgment.” The plaintiff was entitled to an appeal to the County Court from the judgment and sentence of the defendant as justice, without offering or procuring bail for his appearance at the County Court. In Re Kennedy, 55 Vt. 1. It is admitted that the plaintiff asked for an appeal from the judgment and sentence of the justice within two hours after the rendition thereof. The *210statute grants the appeal and it became operative by virtue of the statute when demanded ■ and there was nothing left for the magistrate to do in respect to it, except to make the record show, ing that an appeal had been taken, which record is a mere ministerial act. 5 Bac. Abr. (Bouvier’s Ed:) 401. He had no right nor power to refuse the appeal for it was not, on the conceded facts, an open question for him to pass upon.
"When the plaintiff said “ I appeal,” the appeal was then taken and. at once became operative to suspend the judgment and sentence of the justice, and his authority to issue a mittimus to cany his sentence into effect was at an end until after the adjournment of the court to which the appeal was taken, and even then his power to issue such mittimus would not be revived unless both the respondent and the prosecuting officer failed to enter the case in the appellate court. R. L. s. 16Y6.
It is argued that the issuing of the mittimus by the defendant was a judicial act. This contention is not sound. The issuing of mesne and final process in civil actions and of a mittimus of this kind in criminal proceedings is a ministerial act. The distinction between the judicial and ministerial powers and duties of justices of the peace, is well settled. As before stated, when acting in the former capacity and within the limits of the jurisdiction conferred upon them, they are exempted like judges of other courts from liability to answer elsewhere in private actions for their official orders, decrees and judgments. But they are responsible in civil suits to individuals for all damages arising from every illegal act they may have done in the exercise of their ministerial powers or in the discharge of their ministerial duties. A justice has no clerk for his court, but he acts as clerk as well as court. His court is a court of record. By R. L. s. 828 it is made the duty of every justice to keep a record of his judicial proceedings in civil and criminal cases. In issuing mesne and final process his duty and liability are the same as that of the clerk of any other court issuing like process. Graham v. Todd, *2119 Vt. 166; Insurance Co. v. Cummings, 11 Vt. 503; Albee v. Ward, 8 Mass. 84; Briggs v. Wardwell, 10 Mass. 356; Kendall v. Powers, 4 Met. 553; Blanchard v. Waters, 10 Met. 185; Sullivan v. Jones, 2 Gray 570; Noxon v. Hill, 2 Allen 215; Taylor v. Doremus, 16 N. J. Law 473; Allen v. Gray, 11 Conn. 103; Coltraine v. McCain, 3 Dev. 308; Jones v. Elliot, 35 Maine, 137; Tyler v. Alford, 38 Maine 530; Tompkins v. Sands, 8 Wend. 462; (24 Am. Dec. 46 & Note); Houghton v. Swarthout, 1 Denio 589; Hill v. Bateman, 1 Strange 710.
The defendant is therefore liable for whatever damages were occasioned to the plaintiff by the unlawful issuing of the mittimus. If he issued it with the malicious and wrongful intent to injure the plaintiff, that is a fact for the jury to consider in deciding whether or not-they will allow exemplary damages.
Judgment reversed, demurrer overruled, and the -first count adjudged sufficient. Oause rememded with leave to plead.