Opinion of the Court, per PECKHAM, J.

diction had thus been confided to the justice over subjectmatter and person at the time when the plaintiff was arraigned before him. In the absence of a proper demand and the giving of sufficient bail it was the duty of the justice, and his jurisdiction continued, to try the accused. This would seem to be a case where, jurisdiction having thus attached, the decision of the justice to try the plaintiff was only an erroneous exercise of such jurisdiction. It is unlike the case where jurisdiction has never been conferred, and the justice decides to exercise a power that he does not and never did possess. Here, in the course of proceedings which he, was forced to entertain, and in the case of one over whose person he has properly acquired jurisdiction, the justice is confronted with the necessity of deciding a question depending upon the construction to be given to a statute, and that question must be decided by him one way or the other before he can take another step in those proceedings which, up to that moment, have been legally and properly pending before him, and over which he has had full and complete jurisdiction. It seems plain that his decision upon the question is one in the course of a proper exercise of the jurisdiction first committed to him, and that his error in deciding that he had jurisdiction to proceed was an error of judgment upon a question of law, and that he is, therefore, not responsible for such error in a civil action. It is unlike the case where a justice of the peace proceeded to try a civil action for assault and battery. (Woodward v. Paine, 15 John. 492.) The justice never had in such case obtained jurisdiction over the subject-matter and he could not obtain it by deciding that he had it. The case falls under the principle of law that where a judge never has had jurisdiction over the subject-matter, he acts as a trespasser from the beginning in assuming it, and his decision that he has it is no protection to him. I know it was stated in Gordon v. Longest (16 Peters, 97), in a case where the defendant took the proper steps to remove an action brought against him in the state court to the United States court and where the judge of the state court persisted, not withstanding those steps in trying the cause, that every step

Opinion of the Court, per PECKHAM, J.

subsequently taken by the state court in the exercise of jurisdiction was coram non judice. Yet in such a case the question is put whether the state judge would be liable for proceeding with the case in the honest exercise of his judgment. (Lange v. Benedict, 73 N. Y. 12 at 36.) And in a case where a plea of title to real estate is put in before a justice of the peace, which ousts him of jurisdiction, would the justice be liable in case he erroneously decided that he continued to have jurisdiction? This question is also put in the course of the opinion in the case of Lange v. Benedict (supra) and with, as I think, a leaning on the part of the learned judge toward the position of non-responsibility. The jurisdiction existed in both cases at one period and it was on account of the steps taken in the course of the proceedings in the cases that the court or judge was called upon to say whether his jurisdiction had ceased or not. It seems to me that the erroneous decision of that question did not render the judge liable in either case. Unless the proper steps were taken the judge had power in each case to proceed and try it, and so, although the application to remove is properly made, it is addressed to the legal discretion of the judge upon the papers presented and a question of law is presented for him to decide. His erroneous decision, while conferring no jurisdiction upon him, is still such a judicial determination of a matter already properly pending before him and over which up to that moment he had jurisdiction, that he must be protected from a civil action in regard to it.

It has been held (Butler v. Potter, 17 Johns. 145) that where a justice entered judgment for more than $5 costs, when the statute prohibited judgment for more than that sum for costs, the judgment was voidable but not void. The justice had jurisdiction to give judgment for some amount, and hence his decision to give it for more than the statute allowed was not void. The case of Prigg v. Adams (2 Salk. 674) was cited as sustaining the principle. The judgment in that case was declared to be void as in violation of an act of parliament because rendered in a case arising in Bristol, where the act provided that in such a case no judgment should be entered in

Opinion of the Court, per PECKHAM, J.

a court of Westminster for less than a certain sum, and this judgment was for less. The defendant, an officer, took the plaintiff on a ca sa issued on the judgment, and it was held that the same was a protection to the officer. See, also, Clark v. Holdridge (58 Barb. 61).

So it has been held that granting an adjournment to the plaintiff in a Justice's Court in a case where by law he was not entitled to it, acted as a discontinuance and that the case, as between the parties, was out of court and the justice had no jurisdiction to proceed further. (Proudfit v. Henman, 8 Johns. 391.) In such case the justice, notwithstanding the adjournment, assumed to retain jurisdiction and rendered judg ment and issued execution and defendant's property was sold under it. It was held that the justice was not liable as a trespasser. It was said the court had jurisdiction over the parties and over the question of adjournment, and although he had in reality no legal power to grant the adjournment, and the case was thereby discontinued as between the parties and any judg ment thereafter rendered liable to be reversed, yet the justice was not liable because his decision to grant the adjournment, although in a case where he legally had no power, was yet an error of judgment and he was not liable because he had juris diction and was called upon to decide. (Horton v. Auchmoody, 7 Wend. 200.)

So in the case In re Faulkner (4 Hill, 598), it was held that in order to give jurisdiction to the officer to whom an application is made for a warrant against a person as an absconding or a concealed debtor, the affidavits of the two witnesses required by 2 R. S. 3, § 5, must state facts, and mere infor mation and belief will not answer. And yet in Harman v. Brotherson (1 Denio, 537), the affidavit stated the facts only on information and belief, and it was held that though insufficient to sustain the order to hold to bail against a motion to set it aside, it protected an officer making the arrest against an action for false imprisonment. The court said it was a case where, upon proper proof, an order to hold to bail might be made. The officer had jurisdiction of the matter and acted

Opinion of the Court, per PECKHAM, J.

judicially in making the order, and it was clear he could not be made answerable as a trespasser for an error in judgment.

In Stewart v. Hawley (21 Wend. 552), the case arose upon the statute in regard to the observance of the Sabbath, which prohibited servile laboring or working on that day. The defendant, who was a magistrate, issued his warrant for the arrest of the plaintiff upon a complaint charging that he was on the Sabbath day personally engaged in circulating a memorial to the legislature at its next session, and upon proof made of that fact on the trial, the plaintiff was convicted of a violation of the statute. The plaintiff brought this action of trespass to recover damages, but the court held that when complaint was made the defendant was bound to entertain it and exercise his judgment on it, and whether the facts disclosed show prima facie a violation of the statute was a question of law for the erroneous decision of which the defendant was not liable; that he had jurisdiction to try a person for a violation of the law, and he was, therefore, compelled to decide in a case where jurisdiction over the subject-matter belonged to him.

Other cases of a somewhat similar import are cited in the learned opinion of Mr. Justice HARDIN in the court below.

We are inclined to think that this was not a case for holding the magistrate liable to an action on the part of the plaintiff in the nature of a trespass to recover damages for his illegal imprisonment.

In this case there seems to have been no question but that the justice in all that he did, acted in entire good faith.

The district attorney appeared for the people before the magistrate, and contended that the magistrate had exclusive jurisdiction to try the case under the particular statute., The justice so decided. The Court of Sessions of Jefferson county upon appeal concurred in that construction of the statute, and although the General Term of the Supreme Court came to a different conclusion, in the correctness of which we concur, it is yet manifest that there was at least color for different constructions of the terms of the act. It would be a pretty hard rule which under such circumstances should hold a magistrate

Statement of case.

liable to be cast in damages for an honest mistake in judgment upon a question of law in a proceeding over which he had jurisdiction up to the moment when he was called upon to decide the question. It seems to us there is no public policy which demands such a measure of liability on the part of inferior magistrates, and we think we are not overruling any case in this or in the old Supreme Court. The rule is clear enough, but in this as in so many other cases the difficulty consists in its proper application.

We have, as we believe, properly applied it in this case.

We have also looked at the other questions appearing in the record, the exceptions of the plaintiff taken on the trial, and the rulings of the court thereon, and we think no error was committed calling for a new trial.

The order of the General Term granting a new trial should, therefore, be reversed and the judgment of nonsuit affirmed, with costs to the defendants in all courts.

All concur.

Order reversed and judgment affirmed.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE ULSTER AND DELAWARE RAILROAD COMPANY, Appellant.

Upon the trial of an action, brought by the attorney-general in the name of the people, under the Code of Civil Procedure (§ 1798), to enforce the forfeiture of the charter of a corporation, it is incumbent upon the state to show that a cause of forfeiture has not only been incurred by the defendant, but that it continues to exist, that its existence involves some public interest, and that the court has authorized the bringing of the action.

Such an action is always within the control of the state, as the sole party interested, to prosecute or abandon at its will or pleasure, and it may, through its legislature, not only discontinue the action, but waive or abolish causes of forfeiture, declare rights of action and limit the operation of the statute by forbidding the prosecution of such an action in specified cases.