52 N.C. 525 | N.C. | 1860
The defendant Moss was a magistrate, the defendant Marshall sheriff of the county of Stanly. A number of citizens were gathered together in the said county for the purpose of paying public taxes, where the two defendants were present, attending to that business. During the day one Linker became very disorderly and committed a breach of the peace by assaulting one Parks, to which he was encouraged by the plaintiff. The defendant Moss ordered the defendant Marshall to take Linker into custody and tie him, which he did, and taking Linker outside of the assembly, tied him to a tree, where he remained tied for the space of *405 ten minutes. The defendant Moss was engaged in writing a warrant against Linker when the plaintiff's demeanor and conversation afforded the occasion for the acts complained of. The evidence was somewhat contradictory as to the deportment of the plaintiff on the occasion, the plaintiff's witnesses representing that he was taken up (526) and tied because he questioned the legality of the treatment Linker was receiving from the defendants, while the defendant's witnesses stated that the plaintiff violently interfered and abetted the attack of Linker on Parks, and that after he (L.) was tied, grossly abused, derided, and insulted the magistrate while engaged in writing the warrant against Linker; that for this the magistrate, Moss, ordered Marshall, the sheriff, to take the plaintiff into his custody, and to tie him, which was done without violence or disorder, the plaintiff submitting quietly to the act, but protesting against its legality, and declaring that he would have redress from the law; that after having been thus confined for a short space of time, he was released by order of the defendant Moss.
The court charged the jury that the facts deposed to by the witnesses, either on the part of the plaintiff or defendant, formed no justification for the acts of the defendants in seizing and tying the plaintiff as described; that it was the duty of the jury, on the evidence adduced, to find for the plaintiff, and that the amount of damages which they should give ought to be governed by the view which they should take of the circumstances of the transaction; that if they believed the defendants acted in good faith, believing they had the right to tie the plaintiff, and from a desire to keep the peace and preserve order, and the plaintiff's conduct and language was disorderly and insulting to the magistrate while engaged in the performance of a public duty, these were circumstances to be considered by them in the mitigation of damages. Defendant's counsel excepted.
Verdict for the plaintiff. Judgment, and appeal by the defendants. When a justice is acting in a judicial capacity within the sphere of his jurisdiction no action will lie for any judgment, however erroneous or malicious. This principle has been steadily (527) adhered to by our courts as indispensable in order to protect such officer from the peril of being arraigned for every judgment he may pronounce and to prevent the public justice of the country from thus being brought into scandal.
It is not so, however, with regard to such acts as are not judicial, but merely ministerial. With respect to the latter, if the officer transcend *406 his power, maliciously (mala fide), he will be amenable to the action of the person injured.
It is not always easy to say when an act is judicial and when it is ministerial; but assuming that the justice was acting in the latter capacity on the occasion complained of, still we think the instructions to the jury were incorrect. The court held that the act of tying, which was executed by the sheriff under the order of the justice, subjected them, without further proof, to damages. In this we do not concur.
In S. v. Stalcup,
If an officer whose duties are exclusively ministerial may, in his discretion, tie a prisoner, there seems to be no reason why a justice may not order it. It is laid down in Chitty Criminal Law, 24, upon high authority, that if one be committing an affray, a peace officer may not only arrest, but may confine by putting in the stocks until the heat be over, and then proceed according to law. At our country places of resort, where taxes are gathered, there are neither stocks nor prison to which resort can be had to secure order, and in such case we see no legal obstacle or just ground of complaint, in tying, as a substitute for stocks, (528) when it is apparently necessary. Happily for our country, the necessity for such means of repression is rare, and we add a hope that it may become still rarer. The power of the justice, under the facts of the case before us, was unquestionable. The justice was engaged at the time in writing a warrant for one who had been just arrested in an affray, when he was disturbed and grossly insulted by the plaintiff. It is within the sphere of every magistrate's power to protect himself from annoyance while in the execution of his official duties, by removing the source of annoyance and holding him in custody as long as it may be needful. The liability of the justice, then, would depend upon whether he used his authority to gratify his malice under a pretext of duty or acted honestly according to his sense of right.
And the liability of the sheriff would, in like manner, depend upon whether he acted in good faith in obedience to the order of the justice or availed himself of it to gratify his malice.
There was error, therefore, in assuming that it was a trespass to tie the plaintiff. The trespass, and consequent liability of the parties, *407
would depend upon whether there was an abuse of power according to the definitions given above. Cunningham v. Dillard,
PER CURIAM. Venire de novo.
Cited: S. v. McNinch,
(529)
