| Md. | May 11, 1866
delivered the opinion of this Court.
An indictment was found against the plaintiff in error, charging that on the 1st of June, 1863, at the City of Baltimore, Silas Wright, a negro, was arrested and brought before the plaintiff in error, who was then and there a Justice of.the Peace of said city, accused of stealing certain bank notes and promissory notes, and upon a hearing by the Justice was discharged ; that at the time of the arrest, Wright was searched and certain bank notes taken from him and delivered to the plaintiff in error, who was in duty bound to deliver the same to the person legally entitled to demand and receive the same ; that William Daniel afterwards became and was legally entitled' to receive the same, and the plaintiff in error, then and there, unlawfully, wilfully, oppressively, corruptly, and in violation and contempt of his duty in that behalf as Justice of the Peace, did neglect and refuse to deliver the bank notes, etc., to the said Daniel, being then and there requested so to do, well knowing the said Daniel was so entitled, etc. Upon which indictment, the plaintiff in error being arraigned, pleaded not guilty, and put himself upon his country, and being found guilty, moved in arrest of judgment, which being overruled, the traverser sued out his writ of error.
The points relied on by the plaintiff in error, are :
1st. That a Justice of the Peace is not liable to indictment for error of judgment in the discharge of his official duties.
2nd. That the indictment did not charge any offence for which the traverser was criminally liable.
3rd. That he was under no legal official obligation to receive or pay over the money.
It is one of the most ancient, fundamental and cherished maxims of the common law, that a Judge should not be
“ This freedom from action and question at the suit of an individual (it has been observed) is given by the law to the Judges, not so much for their own sake as for the sake of the public and the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer justice ought to be.” * * * But the law distinguishes between error of judgment and corruption, or wilful neglect of duty. For these there is, and always will be, some due course of punishment by public prosecution. Brooms’ Legal Maxs., p. 41, L. L., vol. 50. Garnett vs. Ferrand, 6 B. & C., 625, 626. Vaugh, R., 383.
Another venerable authority declares, “Justices of the Peace are not punishable civilly for acts done by them in their judicial capacity, but if they abuse the authority with which they are entrusted, they may be punished criminally at the suit of the King by way of information. But in cases where they proceed ministerially rather than judicially, if they act corruptly, they are liable to an action at the suit oí the party, as well as to an information at the suit of the King. Hale’s Pleas of the Crown, 2 vol., 57.
Lord Mansfield, in a case in Burrows, said, “ If it clearly appears that the Justices have been partially, maliciously or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information ; or even, possibly by action, if the malice be very gross and injurious. 3 Burns’ Justice, 31. See also, 2 Bay, 385. 4 Bibb, 28. 15 Wend, 277. 6 Cowen, 661. Cited, 5. Bacon Abr., title, Justices of the Peace, Letter J, p. 429.
These principles are plainly recognized in Brevard vs. Hoffman, 18 Md. Rep., 484, which was an action against Judges of Election, for refusing the plaintiff’s vote ; the defence was, that the Judges acted in a judicial capacity, and were not liable. Referring to which, this Court thus defined the law : “ When the act in question is that of a judicial officer, all the law can secure is a guarantee that they shall not with impunity do wrong, wilfully, fraudulently or corruptly. If they do so act, they are liable, both civilly and criminally; but for an error of judgment they are not liable either civilly or criminally. ’ ’
All the elements of crime are enumerated in the indictment, the wilful, unlawful, corrupt violation and contempt of duty, as a Justice of the Peace, in neglecting and refusing to deliver the bank notes to the said Daniel, being then and there requested so to do, knowing him to be entitled to the same. . It is immaterial whether the law imposed upon him the duty to receive the property, (of which we express- no opinion,) it was received by him, under color of his office, if not “ virtute officio,” and there can be no doubt of his legal obligation to restore it to the person entitled.
The plaintiff in error having been tried and found guilty of the facts as charged, whether by a jury or the Court, upon submission, those facts must be assumed to be true. They constitute in our judgment an offence amounting to a misdemeanor, for which the plaintiff in error was indictable and punishable at Common Law. Finding no error in the judgment below, it must be affirmed.
Judgment Affirmed.