
    *David Reid v. Robert Hood and Samuel Burdine.
    A judicial officer is not liable for an injury which may come to a party, by reason of an error of judgment which the officer may have committed by his adjudication, in a trial before him. 
    
    Tried before Mr. Justice Richardson, at Pendleton, October Term, 1819.
    The defendant, Burdine, being a justice of the peace, had issued an attachment at the suit of the other defendant, Hood, against the plaintiff, Reid, by virtue of which the plaintiff’s horse, saddle, bridle, &c., were taken from him, and out of his immediate possession.
    The proceeding was founded on that clause of the Attachment Act of 1785, P. L. 3G8, 1 Brev. Dig. 39, which allows an attachment to be issued on oath, by the creditor, that he believes his debtor intends to remove his effects, returnable to the next Court.
    The debt was above fifteen dollars. The attachment was made returnable before Burdine, who proceeded to give final judgment, and condemned the property to be sold, which was done at less than half its value.
    This action was trespass, and was brought on the belief, that the magistrate had exceeded his jurisdiction in making the process returnable before himself, instead of the District Court, as required by that clause of the Act under which it was issued, and thus he gave himself cognizance of the case. And because the jurisdiction of a justice, in cases of attachment, is limited by the same Act to three pounds.
    It was proved on the trial, that the justice, Burdine, on being told a suit would be brought by Reid, said he thought he might be doing wrong, but that he was safe, having taken a bond from Hood of five hundred dollars, to indemnify him.
    The presiding Judge charged the jury, that the justice was not liable, unless he had acted wilfully wrong; and that Hood, the plaintiff, iu attachment, was not liable if the justice was not.
    *The jury found verdict for the defendant. r*lfQ
    The plaintiff moved the Constitutional Court for a new trial, on these *- grounds:
    1. Because, in this case, the justice was liable for assuming jurisdiction, whether knowingly or not.
    2. Because the verdict of the jury was manifestly contrary to evidence, there being proof that he knew he was wrong.
    3. Because one of the jury, that tried the cause, had received, without the plaintiff’s consent or knowledge, all the remainder of the proceeds of the sale, after paying the attachment, for a debt said to be due to him from the plaintiff ; he was, therefore benefited by the proceeding, and interested in establishing its legality.
    
      
       7 Stat. 214.
    
    
      
      
         John Young v. Walter Herbert.
      Tried before Mr. Justice Colcock, at Newberry, October Term, 1815.
      This was an action on the case against the defendant, as a magistrate, for refusing to admit the plaintiff to bail, who was charged with having begotten a bastard child.
      It appeared that the defendant was a magistrate, and that the plaintiff was brought before him on a charge of being the father of a bastard child. That *when before the magistrate, he rather confessed himself (in the language of the witness,) to be the father of the child, by saying he supposed the girl would not swear to a lie. But he required that he should be bailed, saying he would have a trial before a jury. He offered Henry O’Neal and Benson Jones, as his securities for his appearance at Court, to stand his trial. But they refused to be his securities for the maintenance of the child. The magistrate refused to bail him, thinking it was his duty to commit him. Henry O’Neal, who was also a magistrate, said it was his opinion, on reading the Act, that it was the duty of the defendant to commit the plaintiff; but that he, defendant, appeared willing to avoid it: that he had nothing like malice. The plaintiff was committed, and remained in goal about eight days. It also appeared that the defendant offered to bail him after his confinement, if he would give a note for fifty dollars, for the use of the woman and child, and good security for his appearance at Court. The defendant refused two applications for bail unless these terms were complied with.
      On this evidence the jury found a verdict for the defendant, and the plaintiff now moved for a new trial:
      Because the verdict is against law, inasmuch as it was the obvious duty of the magistrate to bail, and not to commit to prison, when the party insisted on a trial by jury.
      Because it was the duty of the magistrate to admit to bail, if the party was unable to give security for the maintenance of the child.
      Because the verdict was against both law and evidence, in the following particulars :
      The plaintiff insisting on a trial by jury, was a sufficient denial that he was the father of the child.
      The plaintiff offered good bail for his appearance, but was unable to give security for the maintenance of the child.
      Because the plaintiff was immediately hurried away to prison in the night, without the opportunity of giving the security, were he able to do so.
      Because the plaintiff was ultimately admitted to a trial by j ury.
      Because the defendant requiring a note of fifty dollars, as a consideration of bail, and hurrying the plaintiff so suddenly to prison, was evidence of malice and oppression.
      The opinion of the Court was delivered by Mr. Justice Colcock.
      When a public officer is called on to discharge a duty merely ministerial, and which he has frequently discharged, the non-performance of it will, of itself, imply malice. But where he is called on to exercise his judicial authority, malice must be proven, to malee him answerable in damages.
      In the case before me, the magistrate was called on to decide whether the plaintiff was entitled to bail, and this depended on the construction of an Act, which, to say the least of it, is by no means perspicuous in its language. The witness, O’Neal, who was the friend of the plaintiff, and a magistrate, upon reading the Act, declared it, as his opinion, that the defendant was bound to commit the plaintiff, and if the plaintiff’s expressions are to be construed into a confession, that he was the father of the child, the defendant was unquestionably bound to commit. But as he claimed the trial by the jury, and the offence was a bailable one, I think he was entitled to bail.
      It is stated in the grounds for a new trial, that the defendant was hurried to *1 'in *Sat4 and that, it is said, is evidence of malice ; but the testimony does 
         J not warrant the assertion ; for it is obvious that he did deliberate for some time, and consulted with the witness, who was a magistrate, and who declared that he, the defendant was unwilling to commit the plaintiff.
      It is also urged, that his offer to bail if the defendant would give a note for fifty dollars, is evidence of malice ; but when it is recollected that the note was to be given for the benefit of the woman and child, it cannot be considered in that light, but rather as an evidence that he was desirous to relieve the defendant if he would make provisions for the immediate wants of a child which he himself had given reason to believe he was the father of.
      
        It is said tlie plaintiff was admitted to a trial. Tlie fact may have been so. But it did not appear in evidence, and if lie had been tried and acquitted, he could easily have proven it. Upon the whole, I can see no ground for a belief that the magistrate was actuated by malicious or corrupt motives, although he did err in his judgment.
      I am, therefore against the motion.
      Geuike, Nott, Ciieves, Ganti and. Johnson, JJ., concurred.
      
        Crenshaw, for the motion. StarJc, contra.
      See, also, Living v. Bentham, 2 Bay, 5 ; Brodie v. Rutledge, do. 69 ; Sill v. Phelps, 1 Day. Rep. 315 ; Seaman v. Patten, 2 Caine’s Rep. 312 ; Yates v. Lansing, 5 John. 295; S. C. 9 John. 424; Greenvelt v. Burwell, et al., 1 Salk. 396; S. C. 1 Lord Raymond, 454; 1 Com. Rep. 76; Miller v. Seare and others, 2 Black. Rep. 1145 ; Mostyn v. Fabrigas, 1 Cowp. 172. R.
      Harp. 66, and note.
    
   The opinion of the Court was delivered by

RichaRDson, J.

The first ground requires this Court to consider whether a judicial officer is liable for any injury which may come to a party, by reason of any error of judgment which the officer may have committed by his adjudication, in the trial before him ? There is no view which can be taken of this inquiry which does not answer it in the negative.

The essential and characteristic distinction between a judicial and a ministerial officer, is, that the former is to give judgment, which requires perfect freedom of opinion ; but the latter is to execute, which supposes obedience to some mandate prescribing what is to be done ; and leaving nothing to opinion.

Now, as opinion upon any subject is various and uncertain, we cannot direct the judgment, but must leave it to the honest dictates of the officer’s peculiar intellect, upon information acquired : and both information and intellect are so different, in different men, that it is vain to loot for the same correctness of adjudication. In all judicial questions, then, the very aim and duty of the officer is to give his true opinion after due inquiry; if erroneous, he can no *more answer for the error ~ than for the head which heaven has given him. All we ask of such an officer is the just picture which has been impressed upon the tablet of his intellect by the facts and the law together; and however discolored and distorted it may come out, yet if it be the true image of his intellectual impression,'we get just what we require, and all that he can give. Opinion, then, having no fixed test, nor measure, no equal scales, nor weights, all we can answer for is its honesty.

Turning from the intrinsic character of the judicial officer, let me ask if there is a known instance of a judge being rendered liable for a mere error of judgment ? I believe not one. Nor does the immunity I have alluded to, belong to judicial officers, properly so called, alone It belongs, I conceive, to every one whose mere opinion is called for, whatever may follow from the opinion offered. Suppose a cousellor to err in his opinion, is he liable? Never; unless wilfully wrong or negligent, or at least convicted of such ignorance as shows a depravity in undertaking to give an opinion.

Suppose a jury to give an unfortunate and mistaken verdict; or the governor, in a question referred to his opinion, were to commit an error, to my injury, or a legislator to introduce a law, which brings down ruin upon me ; and suppose either of these were sued at law; what would be the only safeguard in a court ? Simply, that his opinion being required, he honestly gave it as dictated by duty. At the same time there is no doubt that an extreme tuildness of opinion may prove a depravity or a wanton disregard of doing a wrong, either of which may make an officer liable. The pretence of ignorance, or the mantle of opinion, cannot protect or hide enormities. These would, in themselves prove the heart depraved, and not the head merely mistaken. And then, as was observed to the jury in the case before us, the judicial officer would be liable to any extent; and perhaps become more culpable than any other whatever; evidently, I *think, because there is reposed in him a -* higher confidence and greater discretion; and touching these, he, of course, commits greater treachery, than others whose integrity is less confided in.

Let us turn now to the probable effects of holding a judicial officer accountable for errors of judgment. Errors, not a few, he must of course commit, and many more in the opinion of those who judge his acts. His post would not be tenable by the ablest; for pecuniary ruin must attend his best exertions ; while he, in turn, would pursue those who misjudged his judgment. Suppose, for instance, the judge and jury had given judgment, for a mere mistake, against the justice, in the case before us ; might he not, in turn, have sued this judge and jury for their mistake ? And judgment being rendered for or against these, no matter which, the losers would have a right still to pursne, in like manner, their mistaken judge and jury, and so on to infinity. If there could be a sea of litigation, wide, deep, and stormy, we should have it here, and all that I have noticed, the well meaning magistrate, and the faithful counsellor, the honest juror, and the upright judge, the patriotic statesman, and the magnanimous governor, steeped in litigation, would be all adrift in a perilous deep. Ño doubt some few would still venture out; but could we find a Palinurus able to swim three days and three nights to catch even the glimpse of his destination, without hyperbole, would not any judicial officer become interested to do no business ? And what an interested feeling might it not introduce, interchangeably, to cloak each other’s errors ; for man is man, and the selfish principle rules him.

B. J. Earle, for the motion. M'Euffie, contra.

As to the second ground, I have already said, if the justice acted wil-fully, he is liable ; and certainly when a judicial officer takes a bond of indemnity, for his acts, it is good proof that he suspected his own proceedings were erroneous. It is very reprehensible indeed. But many of the justices, though honest, are so ignorant, and are yet so indipensa-ble, that we *cannot, after the jury have found that the defend- r*i wo ant’s error was not wilful, consent to give a second chance to a hard L action. The error, too, is not palpable. Justices have jurisdiction in cases of attachment to three pounds, and many imposing arguments of analogy may be drawn, both from the constitution and from decisions upon the extent of their jurisdiction, to show that it is extended to twenty dollars, even in such cases, and the very doubt is some excuse. And though I may still suspect all that was meant by that bond, did not meet the eye, and though he probably went beyond his jurisdiction, which is much against him, yet, after the verdict, at least, I am disposed to treat Justice Burdine with the forbearance towards his errors, recommended by Sir, Wm. Blackstone, (see vol 1, 354,) to be observed towards justices generally.

And though I cannot add with the good Prior, (speaking of women,) “ let all their ways be unconfined,” yet I will say with him,

“ Be to their faults a little blind,
And to their virtues very kind.”

TJpon the third ground, there is scarcely such an interest in the juror as to render him incompetent to try the case. And were it greater, it is too late to take advantage of it after the trial, without notice to the jurors,- as has been before decided.

The motion is dismissed.

Colcocic, Nott, Gantt and Johnson, JJ., concurred. 
      
       Post. 264; ante, 79; 1 McC. R. 348.
     