2.—: Judicial Acts.

Judicial acts. Next as to judicial acts. The rule is that “no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice”. And the exemption is not confined to judges of superior courts. It is founded on the necessity of judges being independent in the exercise of their office, a reason which applies equally to all judicial proceedings. But in order to establish the exemption as regards proceedings in an inferior court, the judge must show that at the time of the alleged wrong-doing some matter was before him in which he had jurisdiction (whereas in the case of a superior court it is for the plaintiff to prove want of jurisdiction); and the act complained of must be of a kind which he had power to do as judge in that matter.

Thus a revising barrister has power by statute “to order any person to be removed from his court who shall interrupt the business of the court, or refuse to obey his lawful orders in respect of the same”: but it is an actionable trespass if under colour of this power he causes a person to be removed from the court, not because that person is then and there making a disturbance, but because in the revising barrister’s opinion he improperly suppressed facts within his knowledge at the holding of a former court. The like law holds if a county court judge commits a party without jurisdiction, and being informed of the facts which show that he has no jurisdiction; though an inferior judge is not liable for an act which on the facts apparent to him at the time was within his jurisdiction, but by reason of facts not then shown was in truth outside it.

A judge is not liable in trespass for want of jurisdiction, unless he knew or ought to have known of the defect; and it lies on the plaintiff, in every such case, to prove that fact. And the conclusion formed by a judge, acting judicially and in good faith, on a matter of fact which it is within his jurisdiction to determine, cannot be disputed in an action against him for anything judicially done by him in the same cause upon the footing of that conclusion.

Allegations that the act complained of was done “maliciously and corruptly,” that words were spoken “falsely and maliciously,” or the like, will not serve to make an action of this kind maintainable against a judge either of a superior or of an inferior court.

Liability by statute in special cases. There are two cases in which by statute an action does or did lie against a judge for misconduct in his office, namely, if he refuses to grant a writ of habeas corpus in vacation time, and if he refused to seal a bill of exceptions.

Judicial acts of persons not judges. The rule of immunity for judicial acts is applied not only to judges of the ordinary civil tribunals, but to members of naval and military courts-martial or courts of inquiry constituted in accordance with military law and usage. It is also applied to a limited extent to arbitrators, and to any person who is in a position like an arbitrator’s, as having been chosen by the agreement of parties to decide a matter that is or may be in difference between them. Such a person, if he acts honestly, is not liable for errors in judgment. He would be liable for a corrupt or partisan exercise of his office; but if he really does use a judicial discretion, the rightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable.

The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States.