CHAPTER IV.

EXCEPTIONS, SECTION 2. JUDICIAL ACTS.

GROVE V. VAN DUYN.

(44 N. J. L. 654. — 1882.)

THIS was an action for trespass for assault and unlawful imprisonment. The defendant, Cornelius Van Duyn, pleaded the general issue of not guilty to the declaration, which was in its usual form in trespass, for assault and unlawful imprisonment.

The defendant, Charles L. Stout, also pleaded the general issue to the said declaration, and gave the notice of special matter in evidence under said plea, setting up that he was one of the justices of the peace of the county of Middlesex, and that upon the sworn complaint of Cornelius Van Duyn, he issued his warrant in the ordinary form, directing the persons named in the complaint to be brought before him to answer; and such three persons having been arrested by a constable, on such warrant, and being brought before said justice, and having waived an examination, were by him committed to the jail of the county for the cause mentioned in the complaint, to await the action of the next grand jury. Having given bail the next day the persons so arrested were discharged, and thereupon one of them, William H. Grove, Jr., brought this suit in trespass for the above mentioned imprisonment. At the trial the plaintiff was nonsuited, and to review that judgment this writ of error was brought.

For the plaintiff in error, A. V. Schenck and E. T. Green.

For the defendants in error, J. II. Stewart.

The opinion of the court was delivered by

BEASLEY, Ch. J. Most of the general principles of law pertaining to that branch of this controversy which relates to the alleged liability of the defendant in this suit, who was a justice of the peace, are so completely settled as not to be open to discussion. The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act made or done by him in hist judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. Such an exemption is absolutely essential to the very existence, in any valuable form, or of the judicial office itself; for a judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malignant or disappointed suitor. Hence we find this judicial immunity has been conferred by the laws of every civilized people. That it exists in this State in its fullest extent, has been repeatedly declared by our own courts. Such was pronounced by the Supreme Court to be the admitted principle in the case of Little v. Moore, 1 South. 75; Taylor v. Doremus, 1 Harr. 473; Mangold v. Thorpe, 4 Vroom, 134; and by this court in Loftus v. Fraz, 14 Vroom, 667. To this extent there is no uncertainty or difficulty whatever in the subject.

But the embarrassment arises where an attempt is made to express with perfect definiteness when it is, that acts done by a judge and which purport to be judicial acts, are such within the meaning of the rule to which reference has just been made.

It is said everywhere in the text-books and decisions, that the officer, in order to entitle himself to claim the immunity that belongs to judicial conduct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be "the authority of the law to act officially in the particular matter in hand." (Cooley on Torts, 417.) But these maxims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appertains to a court or judge exercising a general authority. Their defect is that

they leave out of the account all those cases in which the officer in the discharge of his public duty is bound to decide whether or not a particular case, under the circumstances as presented to him, is within his jurisdiction, and he falls into error in arriving at his conclusion. In such instance, the judge, in point of fact and law, has no jurisdiction according to the definition just given, over "the particular matter in hand,” and yet, in my opinion, very plainly he is not responsible for the results that wait upon his mistake. And it is upon this precise point that we find confusion in the decisions. There are certainly cases which hold that if a magistrate in the reg ular discharge of his functions, causes an arrest to be made under his warrant on a complaint which does not contain the charge of a crime cognizable by him, he is answerable in an action for the injury that has ensued. But I think these cases are deflections from the correct rule, they make no allowance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decides one way, and exercises a cognizance over the case; if the superior court in which the question arises in a suit against the justice differs with him on this close legal question, is he open, by reason of his error, to an attack by action? If the officer's exemption from liability, is to depend on the question whether he had jurisdiction over the particular case, it is clear that such officer is often liable under such conditions, because the higher court, in deciding a doubtful point of law, may have declared that some element was wanting in the complaint which was essential to bring this case within the judicial competency of the magistrate. But there are many decisions which, perhaps, without defining any very clear rule on the subject, have maintained that the judicial officer was not liable under such conditions. The very copious brief of the counsel of the defendants abounds in such illustrations. As an example, we may refer to the old case of Gwynne v. Poole, 2 Lutw. 387, in which it was held that the justice was justified because he had reason to believe that he had jurisdiction, although there was an arrest in an action which arose out of the justice's jurisdiction. This case has been since approved in

Kemp v. Neville, 10 C. B. (N. S.) 550. Here, if the test of official liability had been the mere fact of the right to take cognizance over the particular matter in hand, considered in the light of strict legal rules, this decision would have been the opposite of what it is. In the same way the subject is elucidated in Brittain v. Kinnard, 1 B. &. B. 432, the facts being a conviction by a justice of a person of having gunpowder in a certain boat, a special act authorizing the detention of any suspected boat; and when the magistrate was sued in trespass for an illegal conviction, it was declared that the plaintiff, in order to show the defendant's want of cognizance over the proceedings leading to the conviction, could not give evidence that the craft in question was a vessel and not a boat, because the justice had judicially determined that point. And in this case likewise, the test of jurisdiction in the magistrate in point of fact and of law, was rejected; an inquiry into the authority, by force of which the proceedings had been taken, being disallowed for the reason that such question had been passed by the magistrate himself, the point being before him for adjudication. The same doctrine was promulged in explicit aud forcible terms by Mr. Justice Field, delivering the opinion of the Supreme Court of the United States, in the case of Bradley v. Fisher, 13 Wall. 335, this being his language: "If a judge of criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which it is not, and proceed to the arrest and trial of a party charged with such act, . . . no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him; for these are particulars for his judicial consideration, whenever this general jurisdiction over the subject matter is invoked."

These decisions, in my estimation, stand upon a proper footing, and many others of the same kind might be referred to, but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the references above given are amply sufficient as illustrations for my present purposes. The assertion, I think, may be safely

made, that the great weight of judicial opinion is in opposition to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case, that thereby, in all cases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judicature, must, at his peril, pass upon the question, which is often one difficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers acting under a general authority, and it would thus involve in its liabilities all tribunals except those of last resort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this State, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendant, and judgment should be entered by default against him, and if, upon error brought, this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court jurisdiction in the case, no reason can be assigned why the justices of the Supreme Court should not be liable to suit for any injurious consequence to the defendant proceeding from their judgment. As I have said, in my judgment, the jurisdictional test of the measure of judicial responsibility must be rejected.

Nevertheless, it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge, will impose upon him a liability to an action in favor of the person who has been injured by such excess. If the magistrate should, of his own motion, without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an illegal larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offences, for the conclusive reply would be, that particular case was not, by any form of proceeding, put under his authority.