#### GEORGE CUNNINGHAM vs. JOHN L. DILLIARD.

Dec. 1839

Whetler in granting an appeal and accepting the security which the law requires, a justice of thepeacedoes not act in a judicial character, and on a matter within his jurisdiction, query? If he does, then no action can be sustained against him for taking insufficient security; for no action can be supported against a judge or justice of the peace, acting judicially and within the sphere of his jurisdiction, however erroneous his decision, or malicious the motive imputed to him. But if he does not, he is still not liable, if he acted bona fid$, and according to his best information.

This was an action on the case against the defendant, a justice of the peace, for misfeasance in the performance of the duties of his office, whereby the plaintiff alleged that he had sustained damage. Plea — the general issue.

[ On the trial at Haywood, on the last circuit, before his hon- or Judge Pearson, the case was, that the plaintiff had sued [out a warrant against one Daniel "Woodfin, for the penalty for obstructing a public road in the county of Haywood, upon [vhich he obtained a judgment before the defendant for fifty [lollars, and thereupon the defendant craved an appeal to the Bounty court, which was granted upon his giving one Thomas |Voodfin, his father, for security, the plaintiff objecting to the Iprety for insolvency; that after remaining in the County itourt for some time, the suit was referred to certain arbitra*352tors, who awarded in favour of the plaintiff; but in the mean time the defendant, Daniel Woódfin, having become insolvent, and his surety having removed to the west, the plaintiff failed to make the amount of his recovery. The plaintiff then called several witnesses, to shew that Thomas Wood-fin was insolvent at the time he became surety to the appeal of his son; and to rebut this testimony, the defendant introduced some witnesses to prove the contrary.

The plaintiff “ insisted that if he had sustained damage by the oppressive act of the defendant, as a magistrate, in taking insufficient security, and thereby compelling him to pay costs and lose the amount of his judgment, he was entitled to recover; and further, that although ignorance would protect a magistrate in a criminal proceeding, it did not protect him in a civil suit by one who had suffered damages by his act.”

His Honor charged the jury that to subject a magistrate to a recovery of damages for an act of his in the discharge of the- duties of his office, it was not sufficient to shew that damage had been sustained, because of his having been mistaken in opinion, or having acted ignorantly; hut it was necessary to prove that he had acted wrong knowingly and corruptly. That in the case under consideration, if the evidence satisfied them that the plaintiff had sustained the damage alleged, by the act of the defendant, they would then enquire whether Thomas Woodfin was insolvent at the time when he was taken as security. If he was insolvent, then they would en-quire whether his insolvency was known to the defendant. If the jury were satisfied that he was insolvent, and that the defendant knew it, then the law would imply that he, the defendant, had acted corruptly, because he could have no otb motive for taking him as security; and in that case the pla.ii! tiff would be entitled to recover. But if the surety was so] vent, or, supposing him insolvent, the defendant believed thf he was solvent, and acted under a mistake, he would be e; titled to their verdict. There was a verdict and judgme for the defendant, and the plaintiff appealed.

No counsel appeared for either party in this Court.

Gaston, Judge.

Upon the trial of this cause, it seems j *353have been taken for granted that the defendant was liable in damages, if he took insufficient security for the appeal, with ° ■ J rr 7 a knowledge that it was insufficient. We do not mean to decide whether this opinion was correct or erroneous, and , , r , , , . , tice it only, lest our silence might be construed into approbation of it. Whether in granting the appeal and accepting the security, the magistrate did not act in a judicial character, and on a matter within his jurisdiction, is a question that may be well worthy of deliberate examination. If he did, then the action was not maintainable. The law is clear, that in general no action can be supported against a Judge or justice of the peace, acting judicially and within the sphere of his jurisdiction, however erroneous his decision, or malicious the motive imputed to him. This doctrine is to be found in the earliest judicial records, and has been steadily maintained as essential to prevent <! the slander of justice,” and to protect those who are bound to administer it “ from continual calumniations"—Floyd v. Barker, 12 Co. 23—and from the peril of being arraigned for every judgment they might pronounce. Grœnvelt v. Burnwell, 1 Ld. Ray. 454.

But if the act complained of be not a judicial act, then we concur with his Honor in the opinion that the defendant was not liable, if he acted bona fide and according to his best information. In the case of the Governor v. McAffee, 2 Dev. 15, this limitation of responsibility was not only recognized as attaching to all common law remedies for omission of duty in a magistrate, but was held impliedly to restrain the general words of a statute creating a responsibility for failure to perform a duty in a prescribed form.

Per Curiam. Judgment affirmed.