
    *H. E. Macon v. Nathan Cook, et al.
    The officers who compose a Court Martial are not liable to an action of trespass, for seizures under their sentence, unless malice or corruption be proven.
    Tried before Mr. Justice Richardson, at Fairfield, Spring Term, 1820.
    
      This was an action of trespass, for taking the plaintiff’s horse,
    The defendants were officers in a troop of cavalry, and had holden a Court Martial in November, 1817, to try defaulters at a regimental muster; and had fined the plaintiff in $7 21, for his absence therefrom, had issued execution and taken the horse, and had him sold to pay the fine.
    The charges were, that the defendants had acted illegally, &c., and finally, it was contended that their motive was corrupt, &a. To prove the plaintiff’s case, Samuel Barber was called. He swore that the plaintiff was notified several times of the fine imposed, in December. In January, the witness received the warrant of Captain Babb, and levied upon the horse of the plaintiff, who said he should not get the fine, but by selling the horse, and forbid the sale. But the witness sold him by virtue of the warrant, for $130, which he deemed the full value, and returned the overplus to the plaintiff.
    Colonel Havis swore, that he had ordered the Court Martial to be holden, and afterwards approved of the fines imposed. He supposed this one among the rest; but hearing there was a misunderstanding, he ventured to suspend the sale, in order to adjust the difference, or give the plaintiff an opportunity of appealing ; and that he once actually met at-, to hear any appeal which might be made, and plaintiff knew it; but still never appealed. Lieutenant Delany swore, that the plaintiff was absent at the muster; that a general notice, according to the custom of the regiment, for all concerned to attend the Court Martial, was given; but no return of a personal notice to the plaintiff *was made to the Court, of which the witness was a member, and he rs-doa was fined by default, as all others were under the same circumstances. L This witness concurred in the sentence, which was correct, according to his own judgment, and thought the other members did the same, without practising any thing like malice; and they afterwards gave time, that the plaintiff might pay the fine, &c., but he said he had nothing to appeal from, as he had not been notified, &e. This witness said the members of the Court took but one oath, (Mil. Mil. Law, 54,) but deemed it unnecessary to take the other, (see Miller, 20,) to keep secret each other’s opinion, &c.
    The Court charged the jury, that in order to render the defendants (who had clearly acted.as judicial officers,) liable in this action, it must have been made to appear that they had acted corruptly; as, for instance, maliciously towards the plaintiff; that this had been decided in the case of Reid v. Bardina, wherein a justice of the peace had been holden not liable for mere error of judgment, while acting as a judicial officer. That two errors appeared to have been made: 1. In finding the plaintiff without proof that he had been personally notified to attend the Court Martial. 2. In not taking the oath prescribed by the militia law, requiring the members to keep secret each other’s opinions, though they had taken the other oath prescribed. But as to the first, it had been proven that it was the custom of the regiment to give no more than a general notice on the day of the muster, as to the time and place when the Court is to be holden, and that all were tried alike, which were reasonable proofs there was no corruption or malice in the particular instance before us, against the plaintiff.
    That as to the other error, in taking but one oath, the witness declared the C ourt had deemed it unnecessary to take the other oath; and that from its purport, (see Miller, 20,) “ to keep secret, &c., the omission did not appear to argue corruption or malice, but a mere error, which may have been very innocently ■^committed. That upon both those points, Mr. Delany’s evidence had r*9oi gone far to exempt the defendants from the charge of corruption or ma- L lice ; and that their indulgence afterwards to the plaintiff, in postponing the execution, was a further favorable circumstance. But that the jury must judge for themselves; and if the jury perceived any corrupt motive in the defendants, they ought to be punished by a verdict of heavy damages. The Court also noticed, that the plaintiff had neglected to appeal, which he might have done at any time within fifteen days after notice of the fine imposed.
    The jury found a verdict for the defendants, whereupon the plaintiff gave notice that he would move the Constitutional Court, at Columbia, for a new trial in the above case, upon the following grounds, viz.:
    1. Because the Court misdirected the jury, in charging them, that it was incumbent upon the plaintiff, in order to support his action, to have proved that the defendants acted corruptly and maliciously; and that it made no difference whether they were trespassers or not, so they did not act corruptly.
    
      ,2. Because the verdict was contrary to law and evidence, inasmuch as it was clearly proved that the plaintiff’s property was sold by the directions of the defendants, without legal authority.
    
      Clarke, for the motion. Peareson, contra.
    
      
       Ante, 168.
    
   The opinion of the Court was delivered by

R,ichab.dson, J.

These two grounds are expanded into four in the brief; but they constitute but one in addition to the foregoing, namely, that the judge erred in charging that the plaintiff might have appealed in fifteen days after notice of the fine imposed.

In the written argument of the counsel of the plaintiff, he candidly concludes thus : But the great question is, whether the motive must have been corrupt, &c., according to the charge of the Court to the jury. But this is no longer questionable. In the case noticed by the judge, it was unanimously decided, that for mere error of opinion, without corrupt motives, a judicial officer is not liable. And the proper tribu- *'-* nal, the jury, have decided by the verdict, that there was no corruption. Indeed, it was not seriously argued before them, that the motive was corrupt, so deficient was the testimony upon that point; though the plaintiff has had the full consideration of it, as well as of that of the additional ground, which supposes that the plaintiff could not have appealed within fifteen days after notice. But the Act of 1809, (see Mill. 44, and 2 Brev. Dig. 7 9,) is explicit, that the fifteen days are allowed after the notice, and not merely after the fine imposed. Not one of the grounds is then tenable. And to conclude, it is evident that the action must have been predicated either upon the expectation, that corrupt motives would be proven, but of which there appeared but little proof, if any at all, or upon the supposition, that error in the Court Martial was sufficient, without corruption, which would seem to have been the case, from the argument before the jury. But this view is es-topped by the decision in Reid v. Burdine, ante, 168, to which I must refer for the reasons of the principle. The motion is, therefore, dismissed unanimously.

Coloook, Nott, Johnson and Huger, .JJ., concurred. 
      
       6 Stat. 616, § 5.
     