#### PAUL W. FURR v. A. S. MOSS et al.

Where a justice of the peace, in good faith, and to preserve order, by parol, ordered one into the custody of the sheriff, and to be tied, who interrupted and insulted him, while officially engaged, and was otherwise behaving in a disorderly way, it was Held that he was not liable to an action.

This was an action of trespass for an assault and battery and ealse imprisonment, tried before Osborne, J., at the last Spring Term of Cabarrus Superior Court.

The defendant, Moss, was a magistrate, the defendant Marshall, sheriff of the count}' of Stanly. A number of citizens were gathered together in the said county for the purpose of paying public taxes, where the two defendants were present, attending to that business. During the day, one Linker became very disorderly, and committed a breach of the peace by assaulting one Parks, to which he was encouraged by the plaintiff. The defendant, Moss, ordered the defendant, Marshall, to take Linker into custody, and tie him, which he did, and taking Linker outside of the assembly, tied him to a tree, where he remained tied for the space of ten minutes. The defendant, Moss, was engaged in writing a warrant against Linker, when the plaintiff’s demeanor and conversation afforded the occasion for the acts complained of. .The evidence was somewhat contradictory as to the deportment of the plain*526tiff on the occasion, the plaintiff’s witnesses representing that he was taken up and tied because he questioned the legality of the treatment Linker was receiving from the defendants, while the defendants witnesses stated that the plaintiff violently interfered and abetted the attack of Linker on Parks, and that after he (L.) was tied, grossly abused, derided and insulted the magistrate while engaged in writing the warrant against Liner; that for this, the magistrate, Moss, ordered Marshall, the sheriff, to take the plaintiff into his custody, and to tie him, which was done without violence or disorder, the plaintiff submitting quietly to the act, but protesting against its legality, and declaring that he would have redress from the law; that after having been thus confined for a short space of time, he was released by order of the defendant, Moss.

The Court charged the jury that the facts deposed to by the witnesses, either on the part of the plaintiff or defendant, formed no justification for the acts of the defendants in seizing and tying the plaintiff as described; that it was the duty of the jury, on the evidence adduced, to find for the plaintiff, and that the amount of damages which they should give, ought to be governed by the view which they should take of the circumstances of the transaction; that if they believed the defendants acted in good faith, believing they had the right to tie the plaintiff, and from a desire to keep the peace, and preserve order, and the plaintiff’s conduct and language was disorderly and insulting to the magistrate while engaged in the performance of a public duty, these were circumstances to be considered by them in the mitigation of damages. Defendants’ counsel excepted.

Yerdict for the plaintiff. Judgment and appeal by the defendants.

Fowle, for the plaintiff.

No counsel appeared for the defendants in this Court.

Manly, J.

When a justice is acting in a judicial capacity within the sphere of his jurisdiction, no action will lie for any *527judgment however erroneous or malicious. This principle has been steadily adhered to by our courts as indispensible, in order to protect such officer from the peril of being arraigned for every judgment he may pronounce, and to prevent the public justice of the country from thus being brought into scandal.

It is not so, however, with regard to such acts as are not judicial, but merely ministerial. "With respect to the latter, if the officer transcend his powers, maliciously, {mala fide) he will be amenable to the action of the person injured.

It'is not always easy to say when an act is judicial, and when it is ministerial; but assuming that the justice was acting in the latter capacity, on the occasion complained of, still, we think the instructions to the jury were incorrect. The Court held that the act of tying, which was executed by the sheriff, under the order of the justice, subjected them, without further proof, to damages. In this, we do not concur.

In the case of the State v. Stalcup, 2 Ire. Rep. 50, it -was held that a prisoner, in the custody of an officer, under State process, might be tied. The officer is bound to keep safely, and may resort to all the ordinary means used for such a purpose, and their propriety or necessity, should not be enquired into by a jury. But if he grossly abuse his powers, that is to say, if the facts testified to, convince the jury that the officer did not act honestly and according to his sense of duty, but under the pretext of duty, was gratifying his malice, he would be liable.

If an officer, whose duties are exclusively ministerial, may, in his discretion, tie a prisoner, there seems to be no reason why a justice may not order it. It is laid down in Chitty’s Criminal Law, 24, upon high authority, that if one be committing an affray, a peace officer may not only arrest, but may confine by putting in the stocks until the heat be over, and then proceed according to law. At o.ur country places of resort, where taxes are gathered, there are neither stocks nor prison, to which resort can be had to secure order, and in such case, we see no legal obstacle or just ground of com*528plaint, in tying, as a substitute for stocks, when- it is apparently necessary. Happily for our country, the necessity for such means of' repression, is rare, and we add- a hope that it may become still rarer.. The power of the justice, under the facts of the case before us, was unquestionable. The justice was engaged at the time in writing a warrant for one, who had been just arrested, in-an affray, when he was disturbed and grossly insulted by the plaintiff. It is within the sphere of every magistra.te-’s power to protect himself from annoyance, while in the execution of his official duties, by removing the source of anno^yance, and holding him in custody as long as it may be needful. The liability of the justice, then, would depend upon whether he-used his authority to gratify his malice under a pretext of duty, or acted, honestly according to his sense of right.

And the liabilty of the sheriff would, in like manner,, depend upon whether he acted in good faith in obedience to the order of the justice or availed himself of it to gratify his malice.

There was error, therefore, in assuming that it was a trespass to tie the plaintiff. The trespass, and consequent liability of the parties, would depend upon whether there was an abuse of power according to the definitions given above. See Cunningham v. Dilliard, 4 Dev. and Bat. 315, and State v. Stalcup, supra. There must be a venire de novo.

Per Curiam,

Judgment reversed.