Odger's English Common Law

420 PRIVATE EIGHTS OF ACTION.
quity " that no action will lie against the judge of a Court of record for
any matter done by him in the exercise of his judicial functions. ... In
the imperfection of human nature it is better, even, that an individual should
occasionally suffer a wrong, than that the general course of justice should be
impeded and fettered by constant and perpetual restraints and apprehensions
on the part of those who are to administer it. Corruption is quite another
matter ; so also are neglect of duty and misconduct. For these, I trust,
there is and always will be some due course of punishment by public
prosecution." 1
Any arbitrator, or any person occupying the position of an arbitrator, if
properly appointed, is not liable for negligence. 2 But, where an indivi-
dual acts in a judicial capacity under an invalid appointment or commission,
he is not exempt from civil liability. Thus certain individuals, exercising
the office of judges of a colonial Court, Were held liable in an action for
trespass and false imprisonment, because the. commissions from the governor
under which they were acting were informal and void. 3
So with the judge of a Court not of record, 4 such as a
police magistrate or a justice of the peace, if he has jurisdic-
tion in respect of the matter before him, the person charged
and the place where the offence was committed, he cannot be
made liable for any words spoken in the exercise of his
judicial functions. 5
Thus where a magistrate, while sitting
in court and in the course of his judicial duties, said with
respect to a prosecutor who had just withdrawn a criminal
charge, " It is our opinion that this has been a gross attempt
to blackmail, and it would have been well if the matter had
come before the Public Prosecutor. Prom what we have
heard of this man [the prosecutor], he has been in the habit
of trying to extort money from persons by illegal means,
and if he found himself in gaol for twelve months it would
possibly do him a good deal of good," it was held that such
words were not actionable, even though it was alleged that
they were spoken falsely and maliciously and without reason-
able cause. 6
There are still further cases in which for one reason or
another our law interferes to protect parties from civil
1 Ga.rn.ett v. Ferrand (1827), 6
2 Pappa v. Rose (1871), L. R.
B. & C. at pp. 625, 626.
7 C. P. 32, 525 ; Tharsti Sulphur Co, v. Loftvs
(1872), L. R. 8 C. P. 1.
8 Gahanv. Lafitte (1841), 3 Moo. P. C. C. 382.
4 As to which Courts are "of record" and which
post, pp. 1038—1043.
are "not of record," see
« Kemp v. Neville (1861), 10 C. B. N. S. 523, 547, 551.
6 Law v. Llewellyn, [1906] 1 K. B. 487.