
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1808.
    Armstrong v. Campbell.
    Trespass on the case lies against a justice of peace, for neglecting to pursue the plain directions of the act of assembly respecting estrays, in which case he acts rather' as a ministerial, than a judicial, officer, al» though he may err from pure ignorance.
    Motion for a new trial. Trespass on the case, tried in Laurens district, before Brevard, J. The defendant was charged with ig. iterance, and neglect in his duty as justice of peace, under the es-tray act, in consequence of which, the plaintiff sustained an injury; It appeared in evidence, at the trial, that an estray horse was taken up, and brought before the defendant, as a justice of peace; that the defendant caused the horse to be appraised by two persons only, and not on oath. An act of 1803, requires that the magistrate before whom an estray is brought, shall cause the same to be appraised on oath, by three proper persons of the vicinage, who shall certify, a duplicate of which certificate he shall send to the clerk of the court of the district; and that the defendant had not transmitted a duplicate certificate of appraisement to the clerk of the court. That the said horse was sold under the estray act, and the plaintiff was the purchaser. That the plaintiff was afterwards sued by the owner of the horse, and judgment given against him for $100, and costs, it appearing on the trial, that the defendant, as magistrate, in ^'ansact*ons relative to the estray, had not acted conformably to the act of assembly.
    
      Note. 1 Day’s Cases in Error, 315, Phelps v. Sill. A judge shall not be questioned in a civil suit, for doing, or neglecting, or refusing, to do a particular official act, in the exercise of judicial power. See 5 Johns, 287, Yates v. Law-sing.
    Brevard, J., in charging the jury, told them that this was an ac^on against a justice of peace, for an act done, or omitted, in performing the duties of his office. That the defendant had not acted voluntarily, but in compliance with his duty in a public capacity ; that if the omission, or mistake, proceeded from an error of judgment, or from an ignorance of law, which he could not help, and not wilfully, or from no ill motive, he was not liable. That ju. dicial officers, acting in their public characters, are not answerable in their private characters, unless they act maliciously, corruptly, or oppressively ; or otherwise wilfully abuse, or neglect their duty. That improper motives might be inferred from gross mistakes, or omissions, yet these were not conclusive evidence of a bad motive, or wilful neglect.
    The jury found for the defendant.
    The motion in this court was argued by Yancey, for the plaintiff, and FaRROw, for the defendant.
    It was insisted on the part of the plaintiff, that the defendant had been guilty of a culpable omission of duty, as no man of common understanding could have innocently made such a mistake, or omission. That the act required of him was rather a ministerial than a judicial act, because it required no skill, nor the exercise of any judgment, in the performance of it.
   Waties, J.,

declared the opinion oí the court, that this was not a case which would excuse the magistrate, who had neglected to follow the plain directions of the act. That he could not shelter himself under his judicial character, from the consequences re-suiting from such gross neglect. That in performing the duties enjoined by the act, the magistrate acts in a two fold capacity. I. In a ministerial capacity, as it relates to the appraisement and trans. mission of the duplicate; for in regard to this he has only to follow the literal directions of the act. 2. In a judicial capacity, as respects other matters, where he must, from necessity, exercise his discretion.

New trial granted.  