61 Miss. 310 | Miss. | 1883
delivered the opinion of the court.
The general rule is that a judicial officer cannot be made civilly or criminally liable for his acts as such, save upon an allegation and proof that they were corruptly done, and many courts deny that he can be made liable even where there has been corruption, if the judge is one of superior and general jurisdiction, though his act transcends his jurisdiction. As to courts of inferior and limited jurisdiction the general rule laid down is that the judge is not liable when he acts within, but is liable when he acts without, his jurisdiction. This rule makes the liability depend upon the jurisdiction, using the latter word not as applicable to a case of mistaken exercise of a doubtful jurisdiction, but when under the pleadings and admitted or clearly proven facts there could be no possible jurisdiction. Lange v. Benedict, 73 N. Y. 12; Yates v. Lansing, 9 Johns. 395; S. C., 6 Am. Dec. 290, and notes; Stone v. Graves, 8 Mo. 148; S. C., 40 Am. Dec. 148, and notes; Cunningham v. Bucklin, 8 Cowen 178; 8. C., 18 Am. Dec. 432, and notes. The averments of the declaration bring this case within the latter category, that is to say, under the facts averred in this declaration, the mayor of the town was not only without power to render the judgment which he did render, but was wholly powerless to render any judgment whatever. The conviction was utterly null and void and an acquittal would have been no protection to another prosecution. Without complaint, affidavit, or charge of any sort, he caused the plaintiff to be brought before him, and without the preferring of any charge of any kind proceeded or pretended to try, sentence, and imprison him. He was in so doing not a judge, but a mere trespasser. To hold such action judicial would be equivalent to saying that he was a judge, not of any court, but of the citizens at large, with power to arrest at his own pleasure and try at his own volition, without any charge. So far as the declaration shows, the arrest was not “ upon the view,” or while the party was actually committing or about to commit any violation of any law in the presence of the party making the arrest, but it took place by the order of the mayor alone, under none of the circumstances warranted by the statute, and the trial was entirely without an
Judgment reversed, demurrer overruled, and defendant permitted to plead in the usual terms.
