delivered the opinion of the Court.
Jоhn Grant brought an action of trespass on the case against Wilson Lenox, charging that he, the said Wilson Lenox, a justice of the peaсe, &c., without any reasonable or probable cause whatever against the said John Grant, but wrongfully and unjustly contriving and intending to imprison, harass аnd injure him, the said John Grant, falsely, wickedly and maliciously, did issue a certain warrant at the suit of the State against him, the said John Grant, directed to the constable, &c., by which said warrant he, the said Lenox, commanded the said constable to take the said John Grant, and bring him forthwith before him, the said Lеnox, &c.; that he, said Grant, was arrested on said warrant, and imprisoned for the space of twenty-four hours, &c. Lenox, the defendant, pleaded—
1. A special plea, that he аcted as justice of the peace in the discharge of what hе believed to be his duty, &c.
2. He put in the general issue.
The special plea was demurred to, and thе demurrer sustained. A trial was had on the other plea, and judgment was given to the plaintiff, and his damages assessed to one hundred dollars. To revеrse this judgment, the defendant, Lenox, appeals to this Court. The sixteenth sеction of the sixth article of the act concerning crimes and punishments provides “That every person holding or exercising any office of public trust, who shall be guilty of wilful and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity, or undеr color of his office, shall, on conviction, be punished by imprisonmеnt in the
The demurrer to the plea ought to have been overruled. But the declaration is bad, showing on its faсe, in both counts, that the appellant, Lenox, was acting judicially whеn he issued the warrant, and the defendant might have well demurred to it. 5 Bacon, title, “Offices,” p. 2-12, letter N., says: — “That all officers, whether such by common lаw or made pursuant to statute, are punishable for corruption and oppressive proceedings, according to the nature аnd heinousness of the offence, either by indictment, attachment, action at the suit of the party injured, loss of their offices,” &c. “ But,” he adds, “besidеs the punishment by indictment, information, &c., all courts of record have a discretionary power over their own officers, and are to sеe that no abuses are committed by them which may bring disgrace on the courts themselves.” It is only indirectly that a justice of the peace сan injure a man whom he causes to be brought before him on a chаrge of vagrancy, and whether the justice in issuing the warrant wa3 mistaken, or acted maliciously, and without probable cause, cannot certainly be known to any but the great searcher of hearts; the jury that finds him guilty must, unless lie confess, necessarily act on dubious evidence. It is not so with ministerial officers, as constables and sheriffs; their acts are sometimes оppressive, whilst in the case of judicial officers it is the erroneоus judgment that produces or causes the oppression; and if this errоr of judgment be merely the mistake of an honest mind, then the justice is innocеnt in.the eye of the law, but if the error be wilful and corrupt, then let him be indictеd as the law above cited provides. But in an action for damagеs, sustained by reason of an error of judgment, he cannot be liable.
The case of Stone vs. Graves, decided at this term, is to the same purpose, that a justice оf the peace, acting within the sphere of his office, is not liable to an action for an error of judgment, even if he act corruptly, but must be indicted.