maliciously" set fire to or burn, carry off or destroy any barrack, cock, crib, rick or stack of hay, corn, wheat, rye, barley, oats or grain of any kind, or any trees, herbage, growing grass, hay or other vegetables, etc. Now, although the misconduct described in the complaint is not the misconduct described in this act, nevertheless the question of their identity was colorably before the magistrate, and it was his duty to decide it; and under the rule above formulated he is not answerable to the person injured for his erroneous application of the law to the case that was before him.

As to the other defendant, all he did was to make his complaint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judicial action which ensued, even if such action had been extrajudicial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant nor any other person could be treated as a trespasser for his co-operation in procuring a decision and commitment which were valid in law, until they had been set aside by a superior tribunal.

Let the judgment be affirmed."

SECTION 34.-SAME-AGAINST ADMINISTRATIVE OFFICERS, ERROR AND ILLEGALITY

MOSTYN v. FABRIGAS.

(Court of King's Bench, 1774. Cowp. 161.)

Lord MANSFIELD." This is an action brought by the plaintiff against the defendant for an assault and false imprisonment; and part of the complaint made being for banishing him from the Island of Minorca to Carthagena in Spain, it was necessary for the plaintiff, in his declaration, to take notice of the real place where the cause of action

5 See Queen v. Wood. 5 El. & Bl. 49 (1855), post, p. 534. French Code of Civil Procedure, art. 505:

Judges may be sued in the following cases:

(1) If there is malice, fraud, or corruption alleged to have been committed in the course of the examination, or in rendering judgment.

(2) If the right to sue is expressly given by law.

(3) If the law declares the judges liable in damages.

(4) If there is denial of justice.

Decisions of German Imperial Court, vol. 38, p. 338:

A judge in deciding causes must not be exposed to the risk of being held responsible for errors in rendering judgment. He may be held liable where he perverts justice deliberately. Otherwise he would be deprived of the independence indispensably necessary to the performance of his functions. 6 The statement of facts and portions of the opinion are omitted.

arose. Therefore he has stated it to be in Minorca, with a videlicet, at London, in the parish of St. Mary le Bow, in the ward of Cheap. Had it not been for that particular requisite, he might have stated it to have been in the county of Middlesex. To this declaration the defendant put in two pleas: First, "not guilty;" secondly, that he was governor of Minorca by letters patent from the crown, that the plaintiff was raising a sedition and mutiny, and that in consequence of such sedition and mutiny, he did imprison him, and send him out of the island, which as governor, being invested with all the privileges, rights, etc., of governor, he alleges he had a right to do. To this plea the plaintiff does not demur, nor does he deny that it would be a justification in case it were true; but he denies the truth of the fact, and puts in issue whether the fact of the plea is true. The plea avers that the assault for which the action was brought arose in the island of Minorca, out of the realm of England, and nowhere else. To this the plaintiff has made no new assignment, and therefore by his replication he admits the locality of the cause of action.

Thus it stood on the pleadings. At the trial the plaintiff went into the evidence of his case, and the defendant into evidence of his; but on behalf of the defendant evidence different from the facts alleged in this plea of justification was given to show that the Arraval of St. Phillips, where the injury complained of was done, was not within either of the four precincts, but is a district of itself more immediately under the power of the governor, and that no judge of the island can exercise jurisdiction there, without a special appointment from him. Upon the facts of the case the judge left it to the jury, who found a verdict for the plaintiff, with £3,000 damages. The defendant has tendered a bill of exceptions, upon which bill of exceptions the cause comes before us; and the great difficulty I have had upon both the arguments has been to be able clearly to comprehend what the question is which is meant seriously to be brought before the court.

If I understand the counsel for Governor Mostyn right, what they say is this: The plea of not guilty is totally immaterial, and so is the plea of justification, because upon the plaintiff's own showing it appears, 1st, that the cause of action arose in Minorca, out of the realm; 2dly, that the defendant was governor of Minorca, and by virtue of such his authority imprisoned the plaintiff. From thence it is argued that the judge who tried the cause ought to have refused any evidence whatsoever, and to have directed the jury to find for the defendant; and three reasons have been assigned. One, insisted upon in the former argument, was, that the plaintiff, being a Minorquin, is incapacitated from bringing an action in the King's courts in England. To dispose of that objection at once, I shall only say it is wisely abandoned to-day; for it is impossible there ever could exist a doubt but that a subject born in Minorca has as good a right to appeal to the King's courts of justice as one who is born within the sound of Bow bell: and the objection made in this case, of its not being stated

on the record that the plaintiff was born since the treaty of Utrecht, makes no difference.

The two other grounds are: 1st. That the defendant being governor of Minorca, is answerable for no injury whatsoever done by him in that capacity. 2dly. That the injury being done at Minorca, out of the realm, is not cognizable by the King's courts in England. As to the first, nothing is so clear as that to an action of this kind the defendant, if he has any justification, must plead it; and there is nothing more clear than that, if the court has not a general jurisdiction of the subject-matter, he must plead to the jurisdiction, and cannot take advantage of it upon the general issue. Therefore by the law of England, if an action be brought against a judge of record. for an act done by him in his judicial capacity, he may plead that he did it as judge of record, and that will be a complete justification. So in this case, if the injury complained of had been done by the defendant as a judge, though it arose in a foreign country where the technical distinction of a court of record does not exist, yet sitting as a judge in a court of justice, subject to a superior review, he would be within the reason of the rule which the law of England says shall be a justification; but then it must be pleaded. Here no such matter is pleaded, nor is it even in evidence that he sat as judge of a court of justice. Therefore I lay out of the case everything relative to the Arraval of St. Phillip's.

The first point, then, upon this ground, is the sacredness of the defendant's person as governor. If it were true that the law makes him that sacred character, he must plead it and set forth his commission as a special matter of justification, because prima facie the court. has jurisdiction. But I will not rest the answer upon that only. It has been insisted, by way of distinction, that supposing an action. will lie for an injury of this kind committed by one individual against another, in a country beyond the seas, but within the dominion of the crown of England, yet it shall not emphatically lie against the governor. In answer to which I say that for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor.

In every plea to the jurisdiction, you must state another jurisdiction; therefore, if an action is brought here for a matter arising in Wales, to bar the remedy sought in this court, you must show the jurisdiction of the court of Wales; and in every case to repel the jurisdiction of the King's court, you must show a more proper and more sufficient jurisdiction; for if there is no other mode of trial, that alone will give the King's courts a jurisdiction. Now in this case no other jurisdiction is shown, even so much as in argument. And if the King's courts of justice cannot hold plea in such case, no other court can do it. For it is truly said that a governor is in the nature of a viceroy; and therefore locally, during his government, no civil or criminal action will lie against him. The reason is because upon

process he would be subject to imprisonment. But here the injury is said to have happened in the Arraval of St. Phillip's, where without his leave no jurisdiction can exist. If that be so, there can be no remedy whatsoever, if it is not in the King's courts, because when he is out of the government, and is returned with his property into this country, there are not even his effects left in the island to be attached. It does not follow from hence that, let the cause of action arise where it may, a man is not entitled to make use of every justification his case will admit of, which ought to be a defense to him. If he has acted right according to the authority with which he is invested, he must lay it before the court by way of plea, and the court will exercise their judgment whether it is a sufficient justification or not. In this case, if the justification had been proved, the court might have considered it as a sufficient answer; and, if the nature of the case would have allowed of it, might have adjudged that the raising a mutiny was a good ground for such a summary proceeding. I can conceive cases in time of war in which a governor would be justified, though he acted very arbitrarily, in which he could not be justified in time of peace. Suppose, during a siege or upon an invasion of Minorca, the governor should judge it proper to send an hundred of the inhabitants out of the island from motives of real and genuine expediency; or suppose upon a general suspicion he should take people up as spies; upon proper circumstances laid before the court, it would be very fit to see whether he had acted as the governor of a garrison ought, according to the circumstances of the case.

* * *

Therefore, in every light in which I see the subject, I am of opinion that the action holds emphatically against the governor, if it did not hold in the case of any other person. If so, he is accountable in this court or he is accountable nowhere; for the King in council has no jurisdiction. Complaints made to the King in council tend to remove the governor, or to take from him any commission, which he holds. during the pleasure of the crown. But if he is in England, and holds nothing at the pleasure of the crown, they have no jurisdiction to make reparation, by giving damages, or to punish him in any shape for the injury committed. Therefore to lay down in an English court of justice such a monstrous proposition as that a governor, acting by virtue of letters patent under the great seal, is accountable only to God and his own conscience, that he is absolutely despotic, and can spoil, plunder, and affect his Majesty's subjects, both in their liberty and property, with impunity, is a doctrine that cannot be maintained.

In Lord Bellamont's Case, 2 Salk. 625, cited by Mr. Peckham, a motion was made for a trial at bar, and granted, because the Attorney General was to defend it on the part of the King, which shows plainly that such an action existed. And in Way v. Yally, 6 Mod. 195, Justice Powell says that an action of false imprisonment has been brought

7 See Hill v. Bigge, 3 Moore, P. C. 465, 481 (1841), contra.

here against a governor of Jamaica, for an imprisonment here, and the laws of the country were given in evidence. The governor of Jamaica in that case never thought that he was not amenable. He defended himself, and possibly showed, by the laws of the country, an act of the assembly which justified that imprisonment, and the court received it as they ought to do. For whatever is a justification in the place where the thing is done ought to be a justification where the cause is tried.

I remember, early in my time, being counsel in an action brought by a carpenter in the train of artillery, against Governor Sabine, who was governor of Gibraltar, and who had barely confirmed the sentence of a court-martial, by which the plaintiff had been tried, and sentenced to be whipped. The governor was very ably defended, but nobody ever thought that the action would not lie; and, it being proved at the trial that the tradesmen who followed the train were not liable to martial law, the court were of that opinion, and the jury accordingly found the defendant guilty of the trespass, as having had a share in the sentence, and gave £500. damages. * * Judgment affirmed.

BASSETT v. GODSCHALL et al.

(Court of Common Pleas, 1770. 3 Wilson, 121.)

Action on the case for refusing to receive from plaintiff a certificate. of character tendered upon an application for a license to keep a common inn and alehouse.

WILMOT, Chief Justice. The legislature hath intrusted the justices. of peace with a discretionary power to grant or refuse licenses for keeping inns and alehouses; if they abuse that power, or misbehave themselves in the execution of their office or authority, they are answerable criminally, by way of information, in B. R. I cannot think

8 See Pollock, Torts, c. IV, 1, "Acts of State"; also Musgrove v. Chun Teeong Toy, [1891] A. C. 272, 282, 283.

As to statutes for protection of officers, see Chitty, Pleading, I, 545, 546; Public Authorities Protection Act, 1893, 56 & 57 Vict. c. 61.

Compare Martin v. Mott, 12 Wheat. 19, 6 L. Ed. 537 (1827), post, p. 548; Wise v. Withers, 3 Cranch, 331, 2 L. Ed. 457 (1806).

There seems to be no precedent in the United States for an action against a chief executive (President or Governor) during his term of office to recover damages for an alleged wrongful act done in his official capacity or in connection with his office.

For such an action, brought after the expiration of the term of office, see Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8.411 (1811), which was, however, dismissed on a point of venue.

For actions against heads of departments, see Kendall v. Stokes, 3 How. 87, 11 L. Ed. 506 (1845), and Spalding v. Vilas, 161 U. S. 483, 16 Sup. Ct. 631, 40 L. Ed. 780 (1896); also 5 Ops. Attys. Gen. 759 (1823).

9 As to criminal liability, see Rex v. Williams, 3 Burr. 1317 (1762); People v. Norton, 7 Barb. (N. Y.) 477 (1849).