Odger's English Common Law

INJURIA ET DAMNUM. 419
the judge of an Inferior Court of record in discharge of his
duties and within his jurisdiction is a judicial act, and is
therefore protected. 1 But he will be liable as an ordinary
subject for any acts done or words spoken in any proceeding
which he knew or ought to have known was outside his
j urisdiction.
'
' English judges, when they act wholly without
jurisdiction, whether they may suppose they had it or not,
have no privilege." 2
It is enough if the defendant was acting as a judge ; he
need not prove that he was acting as a judge ought to act •
questions of judicial propriety are not to be submitted to a
jury. The honesty and integrity of one of our judges when
acting in his judicial capacity cannot be brought in question
by an action for damages, though of course, if a mistake be
committed by him in point of law, his decision may be
reviewed in a Court of appeal.
" The law dofch so much respect the certainty of judgments and the credit
and authority of judges, as it will not permit any error to be assigned that
impeacheth them in their trust and office, and in wilful abuse of the same,
but only in ignorance and mistaking either of the law or of the case and
matter in fact." s " No action will lie against a judge for what he does
judicially, though it should be laid falsd malitiose et scienter. They who are
entrusted to judge ought to be free from vexation, that they may determine
without fear ; the law requires courage in a judge, and therefore provides
security for the support of that courage." 4 Therefore, " by the law of
England, if an action be brought against a judge of record for an act done
by him iu his judicial capacity, he may plead that he did it as a judge of
record and that will be a complete justification." 5
The reason for this exemption from liability is obvious. It is necessary
to the free and impartial administration of justice that those who have
been appointed to dispense it "should be uninfluenced by fear and un-
biassed by hope. Judges have not been invested with this privilege for
their own protection merely ; it is calculated for the benefit of the people
by insuring to them a calm, steady and impartial administration of
justice." 6
Again, Lord Tenterden lays down as a general rule of very great anti-
1 Scott v. Stansfield (1868), L. E. 3 Ex. 220.
2 Per cur. in Colder v. Halket (1839), 3 Moo. P. C. C. at p. 75 ; and see Houlden
v. Smith (1850), 14 Q. B. 841.
8 Lord Bacon's Maxims, 17 ; and see Floyd v. Barker (1607), 12 Eep. 23.
i Per North, C. J., in Barnarduton v. Soame (1674), 6 St. Tr. at p. 1096.
5 Per Lord Mansfield, C. J., in Mostyn v. Fabrigas (1774), 1 Smith, L. C, 12th
cd. at p. 675.
Per Fox, J., in Taaffe v. Downed (1812), reported in the note to Colder v.
Halket (1839), 3 Moo. P. C. C. at pp. 51, 52.
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