Art. 5. Liability for Arrest on Void or Invalid Process.

imprisonment, and the action of the plaintiff cannot be interfered with by imposing a condition that the plaintiff should not sue for false imprisonment on vacating the attachment. So held in a case where attachment issued for failure to obey a subpoena issued under an act which gave no authority to compel attendance of witnesses. Matter of Bradner, 87 N. Y. 171.

An order for the discharge of an imprisoned debtor must be made by the court, and hence if an order does not show on its face whether it was made by the court or a judge out of court, the sheriff is not liable for false imprisonment upon such an order, especially if such debtor is advised that the order is defective. Hayes v. Bowe, 65 How. Pr. 347, 12 Daly, 193.

In respect to an arrest made by an officer upon information submitted before a magistrate, who issued a warrant thereon, Herrick, J., in Hewitt v. Newburger, 66 Hun, at p. 232, 20 N. Y. Supp. 913, says: "Courts of minor criminal jurisdiction are courts where people are expected and invited to initiate prosecutions without counsel and it is the policy of the law to encourage them to do so; and the proceedings there should be so regulated that the unlettered and unlearned may enter freely, without fear that their ignorance of forms of law and its terms may lead them into greater dangers or difficulties than those from which they seek protection or redress. A plain statement of the acts of which they complain, without stating the evidence, it seems to me, is sufficient. The magistrate then becomes the responsible party, he is to determine from the statement, or information, whether the warrant should issue, and he, not the person lodging the information, is responsible for its form. The person lodging the information being liable in an action for malicious prosecution, if he willfully, corruptly, or maliciously misleads the magistrate by any false statement in his information." Reversed 141 N. Y. 238.

The defendant made a complaint, under the Game Law, on which a warrant was issued and plaintiff arrested. Plaintiff had violated sections 210-217 of the Game Law, which forbid trespassing upon private grounds for the purpose of hunting, fishing, etc., and section 217 provides that for violation of such article the person is liable to exemplary damages to not more than $25. The arrest was made under section 246, providing an arrest for violation of the Game Law. Held, that the latter section was applicable to a criminal offense and did not warrant an arrest

Art. 6. Liability of Judicial Officers.

for a trespass which was a civil action, and, therefore, the defendant was liable. Stahl v. Roof, 164 N. Y. 162.

ARTICLE VI.

LIABILITY OF JUDICIAL OFFICERS.

The liability of a magistrate or judge has been considered under chapter V relating to exemptions from liability for torts, article III of that chapter treating of judicial and quasi-judicial officers and proceedings.

In view of the fact that only the leading authorities with regard to the liability of judicial officers were cited under that head, attention will be called to the authorities bearing upon the subject, although necessarily involving somewhat of repetition.

The foundation of exemption of judicial officers lies in the rule thus recently formulated. In the absence of malice, persons acting in a quasi-judicial capacity are not liable for errors of judgment in erroneously determining matters in their jurisdiction affecting the personal or property rights of others. Lurman v. Jarvie, 82 App. Div. 37 (44).

The rule was laid down in Weaver v. Devendorf, 3 Den. 117, that a public officer is not responsible in a civil suit for a judicial determination in a matter over which he had jurisdiction, however erroneous it may be or however malicious the motive which produced it. This language is cited in East River Gas Light Co. v. Donnelly, 93 N. Y. 557, Danforth, J., adding: "The principle upon which the rule rests was applied by the late Supreme Court in the case of Weaver v. Devendorf, 3 Den. 117, sustained by a great array of authorities, to which many later ones might be added, but none to the contrary. These authorities are cited and followed in Hommert v. Gleason, 38 St. Rep. 342, where it is said that it is elementary law that no judge or magistrate can be held responsible in a civil suit for a judicial determination, however erroneous.

A judge who is required to pass upon a question as to which different minds might reach different conclusions cannot be held. liable for false imprisonment for an error in his decision when made by him in good faith and without malice, even though an appellate court subsequently reverses his decision and holds that the judge had no power to render or enforce the same. So held

Art. 6. Liability of Judicial Officers.

where the plaintiff, convicted of a crime punishable with a fine or imprisonment, having paid the fine, was subsequently sentenced to imprisonment. Lange v. Benedict, 8 Hun, 362. See this decision for a discussion of the judicial function.

The judge of a superior court or court of general jurisdiction is not liable for a judicial act in a matter within his jurisdiction, although the act is in excess thereof. So held where the defendant, a judge of the United States District Court, sentenced the plaintiff to pay a fine and be imprisoned where the crime was punishable only by fine or imprisonment, and where upon habeas corpus the sentence was vacated by the defendant and the plaintiff resentenced to imprisonment only. Lange v. Benedict, 73 N. Y. 12, affirming 8 Hun, 362, reversing 48 How. Pr. 465.

Where a warrant is issued by a judicial officer upon an affidavit giving him jurisdiction, in issuing the order he acts judicially and makes a judicial determination. Neither the judge nor the person furnishing the affidavit are liable for false imprisonment, although the warrant is subsequently set aside upon discovery of other facts. Marks v. Townsend, 97 N. Y. 596.

See this case for a discussion of the theory upon which this determination is founded.

In Fischer. v: Langbein, 103 N. Y. 84, the rule as to jurisdiction is summed up as follows: "The power of the court to entertain jurisdiction of an action or proceeding does not depend upon the existence of a sustaining cause of action, but upon the performance by the party of the prerequisites authorizing it to determine whether one exists or not."

66

At p. 94 of the opinion the court points out the proper rule, after a consideration of the authorities, as follows: The rule to be deduced from these authorities seems to be that when a court is called upon to adjudicate upon doubtful questions of law or determine as to inferences to be drawn from circumstances, reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial function in their determination, its decision thereon does not render an order or process based upon it, although afterward vacated or set aside as erroneous, void, or subject the party procuring it to an action for damages thereby inflicted. Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the

Art. 6. Liability of Judicial Officers.

premises, and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void and afford no justification to the parties instituting them as against parties injuriously affected thereby. But if the facts presented to the court call upon it for the exercise of judgment and reason upon evidence which might in its consideration affect different minds differently, a judicial question is presented which, however decided, does not render either party, or the court making it, liable for the consequences of its action."

In discussing the liability of a judicial officer the rule is thus stated by Peckham, J., in Austin v. Vrooman, 128 N. Y. 235: "It is not a question of jurisdiction to proceed with the trial, notwithstanding the demand, but it is a question of jurisdiction to decide whether he has or has not that right. Manifestly he does not, as a matter of law, acquire jurisdiction to proceed by deciding that he has it; but, being confronted with the question of jurisdiction, has he the power to decide it so far that his erroneous decision that he has it exempts him from liability on the ground that he has only made a judicial error or an error of judgment upon a question of law, which he was bound to decide?"

It will be seen that this decision holds that under some circumstances the decision of a justice as to whether or not he has jurisdiction is a determination of the matter apparently pending before him and over which he has jurisdiction, and that he will be protected in his decision, although it be erroneous. The court distinguishes this case from cases where a justice decided to exercise power that he does not and never did possess, as where a justice of the peace proceeded to try a civil action for assault and battery. Woodward v. Paine, 15 Johns. 492. In such case the justice never obtained jurisdiction over the subject-matter, and he could not obtain it by deciding that he had it. Where a justice has no jurisdiction over the subject-matter he acts as a trespasser from the beginning in assuming it, and his decision that he has it is no protection to him.

See this case for discussion of the authorities upon this question. In Wilson v. Mayor, 1 Den. 595, it is held that where a duty, judicial in its nature, is imposed upon a public officer or municipal corporation, a private action will not lie for misconduct or delinquency in its performance, even if corrupt motives are charged.

Art. 6. Liability of Judicial Officers.

A judicial officer is not liable to an action for false imprisonment for convicting plaintiff of a criminal offense as long as his conviction remains unreversed, unless the plaintiff shows the fact that the conviction was obtained by fraud or conspiracy in which the court participated. Cuniff v. Beecher, 84 Hun, 140, 32 N. Y. Supp. 1067.

The general rule is that where a judge who has jurisdiction errs in his judgment as to whether the facts presented do or do not confer jurisdiction, he is not liable for false imprisonment, though he make an error of judgment. Nowak v. Waller, 31 St. Rep. 458, 10 N. Y. Supp. 199, citing Ayres v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338.

A justice of the peace in issuing a criminal warrant is exercising general jurisdiction over the subject-matter, and not special jurisdiction over the particular offense. All that is required to protect him in so doing is that the evidence produced is colorable, or something that the judicial mind is called upon to act in determining the question of probable cause. It is not necessary for him to state in the criminal warrant the evidence by which the charge is supported. All that is required in that particular is that he recite the accusation. Pratt v. Bogardus, 49 Barb. 89.

In regard to imprisonment by a magistrate, see the opinion of Herrick, J., in Hewitt v. Newburger, 66 Hun, 232, 20 N. Y. Supp. 913, quotation from which is given in last subdivision.

Where a magistrate issues a warrant on a complaint for violation of the statute as to the observation of Sunday, it was held that he was not liable for false imprisonment, although he might have misjudged as to the facts bringing the offense within the meaning of the statute. The court says: "It cannot be doubted but that the justice, by means of the complaint in this action and the warrant issued thereupon, acquired jurisdiction over the subject-matter and the person of the defendant, and that his error, if any, was an error of judgment." Stewart v. Hawley, 21 Wend.

552.

In Kenner v. Morrison, 12 Hun, 204, it was held that where a justice of the peace committed plaintiff to the county jail upon his failure to give bail, such commitment was an error of judg ment, and that as he had jurisdiction of the person and of the subject-matter, he was protected in an action for false imprison

ment.