
    Howe v. Mason et al.
    
    1. Ministerial and judicial acts. A ministerial officer is liable for damages caused by liis misfeasance and non-feasance in office; but a judicial officer is not liable for judicial acts when it is not shown that he acted corruptly.
    2. Same: approving bond. The approving of a replevin bond by a justice of the peace so partakes of the nature of a judicial act as to release him from liability for error of judgment. To make him liable for such error it must be shown that he acted corruptly.
    3. Same. When a justice of the peace approved a replevin bond upon which a married woman was the only solvent surety, it was held, that as it was not shown that he acted corruptly, he was not liable.
    
      Appeal from Clayton District Court.
    
    Thursday, April 9.
    This action is upon the official bond of the defendant, Mason, as justice of the peace. The breach assigned is the careless, negligent, willful and corrupt discharge of the duties of said office. It appears that one Teeter brought an action of replevin against the plaintiff, for the possession of a colt. The defendant as justice, issued the writ of replevin, under which the officer took possession of the colt and delivered it to Teeter. As soon as Teeter became pos: sessed of the property he abandoned his action. It is claimed by the plaintiff that defendant issued the writ of replevin without taking a sufficient bond; that the only responsible person on the bond was a married woman; that the bond as against her is worthless; that defendant knew’at the time he issued the writ that the sureties were not responsible. Issue being joined, trial by jury, verdict for plaintiff, defendant appeals.
    
      Odell & TJpdegraff for the appellant.
    
      Noble & Beelcmth for the appellee.
   Baldwin, C. J.

The Court was asked by tbe'defendant to instruct the jury as follows: “A justice of tbe peace is a judicial officer, and is not liable to answer ■ for any judgment whether of law or fact.” To this instruction tbe Court added tbe following: “But on approving a bond which is required to be approved by him, be does not act as a judicial, but as a ministerial officer, and ministerial officers may be liable for errors of law and of fact.” Tbe instruction as thus modified was given to tbe jury, and to this ruling tbe defendants except.

It appears that one of tbe sureties in the replevin bond was a married woman. Under tbe ruling of this court in the case of Rodemeyer v. Rodman, 5 Iowa, 426, it was held that in order to make a wife liable in her separate property, upon a contract entered into during coverture, tbe plaintiff should show that such contract related to tbe expenses of tbe family, or to other proper purposes as contemplatéd by section 1455 of the Code, or that it related to tbe separate property, or ‘that tbe contract purports to bind herself only. During coverture a wife cannot be sued in law as a feme sole unless tbe contract is of tbe character contemplated by §§ 1454 and 1455 of the Code. It appears also that tbe principal and other surety in tbe bond were at' tbe time insolvent. Tbe bond was, tbérefore, unavailing to tbe plaintiff.

It is not insisted that tbe justice acted corruptly or willfully wrong in tbe acceptance of a bond that proved to be unavailing, but that be acted carelessly, and negligently in ascertaining tbe responsibility of tbe sureties. Under the instruction thus modified there is but one question "to be determined, and that is, whether tbe justice in approving and passing upon the sufficiency of tbe bond acted judicially or ministerially. If it was a judicial act, tbe rule is well settled that no judicial officer is liable for an error of judgment unless it is proven that hé has acted corruptly. This rule applies to inferior courts as well as to superior, to the actions of a justice of the peace as well as to the judges of courts of equity and common law jurisdiction. The reason'for this rule is clearly and ably stated by Judge Kent in the case of Yates v. Lansing, 5 John., 282.

So also in the case of Pratt v. Garden, 2 Cush., 63, Shaw, C. J., says, that “It is a principle lying at the foundation of all well-ordered jurisprudence, that every judge, whether of a higher or lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of others, should act upon his own free, unbiased convictions, uninfluenced by any apprehensions of consequences.

* * A judge or justice is not bound at the peril of an action for damages or of a personal controversy, to decide right in matters of either law or of fact, but to decide according to his own convictions of right, of which his recorded judgment is the best, and must be taken as conclusive evidence.” ■ The authorities are abundant recognizing the correctness of these decisions.

“It may sometimes,” says Savage, C. J., “be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds which are ■clearly distinguishable. He issues process in the first instance, and in doing so acts ministerially; his judgment is not at all exercised, where the parties appear before him and the cause is heard, he renders'judgment, he then acts judicially, after judgment he issues execution, he then again acts ministerially. The justice is both judge and clerk. See Tompkins v. Sands, 8 Wend., 462. In the opinion of the Court in this case, reference is made to that of Smith v. Trawl, 1 Root, 165, in which an action was held to lie against a justice of the peace in Connecticut for granting a writ of replevin without requiring security. The plaintiff recovered in the County Court, and the judgment was reversed in the Superior Court, on the .ground that the law had made the justice the judge of the sufficiency of the security. The judgment of the Superior Court was reversed in the Supreme Court of Errors, on the ground that the party’s bond was no security, and the act of the justice was compared to a sheriff letting a man to bail on his own bond."

But in Phelps v. Sill, 1 Day, 315, it was held, that an action will not lie against a judge of probate for neglecting to take security from the guardian of an infant, although the infant had personal estate and the guardian was a bankrupt. The court places his indemnity from damages upon his judicial character, and that the omission on his part was by mistake. After a reference to other decisions upon this question, the Chief Justice, in Tompkins v. Sands, supra, says, “ the principle must be considered as settled, that for a judicial act no action lies, but for an injury arising from misfeasance or nonfeasance of a ministerial officer, the party has redress in an action on the case, but in all cases where the defendant is sued for an act in which he was bound to exercise his discretion the action will not le sustained, unless it appear that the act complained of was done willfully and maliciously.” In the concluding paragraph of this1 opinion, the Chief Justice remarks, that “it is his opinion that a justice in approving or refusing to approve an appeal bond, does not act judicially; he does indeed exercise his discretion, biit it i's the same discretion exercised by every ministerial officer who takes bail." This however appears to be his individual opinion and not that of the court. It was not necessary to go thus far in the decision of the case before them. Then the justice, it is alleged, unjustly and oppressively prevented the plaintiff from appealing, by refusing to accept the bond. The declaration particularly charges the justice with oppressive conduct. He refused to act.

In the case before us tbe justice did not refuse to act, but, on the contrary, accepted tbe bond in good faith, supposing that the sureties were sufficient to protect tbe rights of tbe plaintiff. We are constrained to admit tbe force of tbe argument that a justice of tbe peace, in approving a bond, exercises tbe same discretion that is exercised by every ministerial'officer who takes bail, and whose duties are solely ministerial. But a justice of tbe peace, by virtue of bis office, is both a judicial and ministerial officer. In tbe same cause in which be acts ministerially be has to bear evidence, determine legal questions, and pass judgment upon' tbe merits of tbe case. Being required by law to act in both capacities, we cannot perceive any reason why tbe rule that is held to apply to all judicial officers, should not for like causes apply to a justice of the' peace where there is a discretion to be exercised.

We are inclined to tbe opinion, and so bold, that tbe act of approving a bond by a justice of tbe peace is of a judicial character, or at least tbe determining tbe question whether tbe sureties in a bond are competent to contract, so partakes of a judicial act as to release a justice from liability if be should honestly err in bis judgment. And we feel strengthened in our conclusion by tbe ruling of tbe Supreme Court of Massachusetts in tbe case of Chickering v Robinson, 3 Cush., 543, in which it was held, that an action on tbe case would not lie against a justice of tbe peace for an error in judgment in taking a recognizance to prosecute in a form not authorized by law and therefore invalid.

This decision was concurred in by a full bench, composed of able jurists, and in view of tbe decisions of tbe Courts of England and of tbe United States upon this subject, to which reference was bad when tbe decision was made. Tbe instructions asked should have been given without modification.  