to the case, and it does not appear what the particular breaches assigned are, nor the manner of the assignment.

It was not competent for Hinman, under the circumstances of this case, to show that Scott had a good defense against the suit of the Utica insurance company, or that Stranahan's administrator might have successfully defended the suit brought by Scott against him upon the note in question; nor was he entitled to notice of the pendency of that suit from the plaintiff. It is evident that the defense of the writ of error was amicably and jointly conducted by Stranahan and Hinman, at the exclusive expense of the latter, or of the insurance company, whose agent Hinman undoubtedly was, and that it was the understanding and the wish of both of them that the judgment should be reversed. Hinman treated Stranahan throughout as the party in interest in the writ of error. Stranahan so considered himself, and well he might, for he was not only the first indorser, and liable over to Scott in that character, but he had also, as early as 1819, bound himself in a penal bond to Scott to pay him whatever sum the insurance company might recover against him as second indorser upon the note, with costs, etc. Admitting Stranahan to have been solvent at that time, he was in truth the only party in interest. Scott was a mere nominal party, and to say the least of it, it would have been a violation of good faith on the part of Stranahan or his administrators, to have interposed a defense to the suit of Scott, on the ground of the illegality or usurious character of the original transaction; and if Hinman is to be considered the agent of the insurance company, the complaint that such defense was not interposed does not come with a very good grace from him. His attempt to show that Stranahan had been indemnified by the maker of the note, entirely failed.

The plaintiff is entitled to judgment.

RIGHT TO SUE FOR INDEMNITY, WHEN ACCRUES.-The obligee in a bond of indemnity, it is held in Ramsay v. Gervais, 1 Am. Dec. 635, may sue at the moment of the first breach of the condition, without waiting to pay the debt. But in Brentnal v. Helms, Id. 44, and note, it is held that a surety can not sue on a general promise of indemnity until he has been compelled to pay the debt. The New York courts recognize Chace v. Hinman as a leading case on this subject, with respect to the distinction between an indemnity against damages, etc., and an indemnity against legal liability to damages, etc. They have not, however, uniformly approved this distinction in some of its applications. In Aberdeen v. Blackmar, 6 Hill, 326, it was held that to sustain an action on a promise to save one harmless from the "claim or demand" of a third person, the obligee must show actual daninification. Bronson, J., in delivering the opinion, thus commented on the principal case: "In Chace

v. Ilinman, 8 Wend. 452, the contract was to indemnify against 'liability,' as well as against actual damage; and even there the court was somewhat influenced by the decision of the court of errors in Rockfeller v. Donnelly, 8 Cow. 623, which, to say the least of it, is a very questionable case. This is not an agreement to indemnify against liability, but it is the common case of an agreement to indemnify against the 'claim or demand' of a third person; and before the plaintiff can recover he must show that he has been damnified."

The case is criticised also in Churchill v. Hunt, 3 Denio, 321. In Gilbert v. Wiman, 1 N. Y. 550, the distinction between indemnity against "liability" and indemnity against damage is fully approved. The case was an action brought by a sheriff on a bond of his deputy, conditioned that if the said deputy should "so demean himself in all matters touching his duty as such deputy sheriff," that the sheriff should "not sustain any damage or molestation whatsoever, by reason of any act from this date done, or any liability incurred by and through said deputy," then the bond should be void, otherwise of force. It appeared that the sheriff had been sued and a judgment recovered against him for a default of the deputy in not returning an execution. It appeared also that other judgments had been recovered against him and his sureties on certain bonds given by him to discharge himself from arrest under attachments, issued against him for not returning other executions in the hands of the said deputy. None of these judgments had been paid, nor was it shown that any actual damage had been incurred by the sheriff, and it was held that he could not maintain the action. Gardiner, J., who delivered the opinion, after commenting on Rockfeller v. Donnelly, 8 Cow. 623, proceeded to state the doctrine of the principal case. He said: "The case of Chace v. Hinman, supra, was an action on a bond, the condition of which was that the obligor should 'save harmless and indemnify the obligee against all damages, costs, and charges, to which he might in any way be subjected, or become liable for,' etc. No money was paid; and it was held by the court that by the instrument itself a distinction was ob viously taken between damages actually sustained, and a fixed legal liability for such damages, and that the indemnity was against both." His honor then stated the condition of the bond in the case before the court, and pointed out the distinction between it and the bonds in litigation, in Rockfeller v. Donnelly and Chace v. Hinman, as follows: "The distinction between the bond in question, and those above mentioned, consists, I apprehend, in this, that by the former a 'charge' or 'fixed legal liability,' is declared to be the injury from which the obligee is to be saved harmless. By the condition of the latter, the obligor stipulates that the sheriff shall not sustain any damage or molestation by reason of any liability, etc. By the former, he is to be saved from the thing specified. By the latter, from its consequences; or, in other words, from the damage or molestation which may result from the liability. The distinction is very important. It is recognized in the cases to which reference has been made, and in others will be found to pervade most of the authorities which have been cited. It is the distinction between an affirmative covenant for a specific thing and one of indemnity against damage by reason of the non-performance of the thing specified. The object of both may be to save the covenantee from damages, but their legal consequences to the parties are essentially different." As illustrating this distinc tion, he referred to and commented upon Kip v. Brigham, 7 Johns. 168; S. C., 6 Id. 159; Warwick v. Richardson, 10 Mee. & W. 284; Thomas v. Allen, 1 Hill, 145; Churchill v. Hunt, 3 Denio, 321, and 1 Saund. 116, n. Ir Web v. Pond, 19 Wend. 424, it was held, following Chace v. Hinman,

that an action could be maintained on a covenant to save the obligee harmless "from his liability" on a certain bond and mortgage without showing actual payment. The same principle is approved in Crippen v. Thompson, 6 Barb. 535. So, in Jarvis v. Sewall, 40 Id. 454, where it was held that, on a bond to indemnify certain persons for becoming sureties on an appeal conditioned to pay the obligees the taxable costs which they might "incur and become bound to pay" by reason of having executed the appeal bond, the obligees became "bound" as soon as the judgment was affirmed, and could sue without actual payment. So, in Westervelt v. Smith, 2 Duer, 449, 462, a bond to indemnify a sheriff against all damages, costs, and charges to be imposed or demandable of him in consequence of his deputy's defaults, was held to be a bond of indemnity against "legal liability," and so within the doctrine of Chace v. Hinman. So, in Turnure v. Hohenthal, 36 N. Y. Sup. Ct. (4 Jones & S.), 79, 81, where one became surety in a bond for the payment of certain rent, by his principal, the same doctrine was applied. The distinction between bonds of indemnity against "legal liability" and those against actual damage, as laid down in the principal case, is approved also in Rector etc. Trinity Church v. Higgins, 44 Barb. 374; S. C. in court of appeals, 48 N. Y. 537; McGay v. Keilback, 14 Abb. Pr. 144; Baggott v. Boulger, 2 Duer, 170; Scott v. Tyler, 14 Barb. 202. In Iowe v. Buffalo etc. R. R. Co., 37 N. Y. 299, the case is relied on as authority for the position that where a creditor accepts a surety's note in satisfaction of his demand, it is equivalent to payment, and the surety may resort to the principal for his indemnity. It is cited also in Kemble v. Wallis, 10 Wend. 377, to the point that where there is an absolute undertaking to pay, if another does not in a specified time, notice of such other's default is unnecessary.

TOMPKINS V. SANDS.

[8 WENDELL, 462.]

NO ACTION LIES FOR A JUDICIAL ACT, but case may be brought for an injury resulting from a ministerial officer's misfeasance or non-feasance.

WHERE AN OFFICER IS BOUND TO EXERCISE DISCRETION in an act, he is not liable to an action therefor, unless such act was done willfully and maliciously.

ALLEGATION THAT A JUSTICE HAS UNJUSTLY AND OPPRESSIVELY prevented an appeal to reverse a judgment rendered by him, is equal to a charge of corruption.

JUSTICE ACTS MINISTERIALLY IN APPROVING AN APPEAL BOND, or refusing to do so, and if he corruptly refuses to approve such a bond, he is liable to an action on the case.

ERROR from the common pleas to reverse a judgment of nonsuit entered against the plaintiff in error in an action on the case brought by him against Sands, a justice of the peace, for refusing to accept an appeal bond tendered by the plaintiff for the purpose of taking an appeal from a judgment rendered by such justice against the plaintiff. The declaration set out the facts. specially, and also charged generally that the defendant, acting

as a justice of the peace, had unjustly and oppressively prevented the plaintiff from appealing and reversing a certain judgment unjustly obtained before and rendered by him, which could have been reversed on appeal or greatly reduced. Pleas, the general issue and justification. The evidence showed that, within the time allowed for taking an appeal from the judgment referred to in the declaration, the plaintiff tendered an appeal bond, in due form, with a surety, who offered to swear that he was a freeholder and worth double the penalty of the bond, but that the justice, after whispering with the plaintiff in said judgment, refused to accept such bond, and angrily told the surety that he would not take him or his oath, and when the surety told him that his conduct was oppressive, he said he would take the responsibility. There was evidence that the surety was sufficient, and that when the justice was asked whom he would take, he named sundry persons who could not be got. There was other evidence tending to show that the defendant's refusal . was malicious and corrupt. On motion of the defendant, a nonsuit was directed, and judgment entered thereon, on the ground that refusing bail on appeal was a judicial, and not a ministerial act, and that the defendant was not liable, even though he acted maliciously. The plaintiff then brought this writ of error.

A. J. Parker and J. A. Spencer, for the plaintiff in error, cited 7 Cow. 314; 6 Wend. 597; 2 Saund. 59; 1 Dunl. 155; 15 East, 320; 2 Mod. 31; 7 Johns. 138; Yates v. Lansing, 5 Id. 282; 2 Esp. 245; 2 Ld. Raym. 948; 1 East, 563.

C. P. Kirtland, for the defendant in error, cited Main v. Prosser, 1 Johns. Cas. 130; 12 Johns. 466; Wells v. Newkirk, 1 Johns. Cas. 228; 1 Cai. 191; 3 Id. 129; Crawford v. Reid, 1 Id. 594; 11 Johns. 114; 1 East, 563, a; Jac. L. Dict., tit. Justices of the Peace; 8 Johns. 50; 12 Id. 356; 8 Cow. 178.

By Court, SAVAGE, C. J. The question presented in this case is whether a justice, who willfully and maliciously refuses to approve the surety in an appeal bond, and thereby prevents a defendant from appealing his cause, is liable to an action therefor. The plaintiff in error does not impugn the doctrine of judicial irresponsibility, but relies on the point that the act complained of was not a judicial but a ministerial act. It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds, and which are clearly distinguishable. He issues process

in the first instance, and in doing so he acts ministerially; his judgment is not at all exercised. When the parties appear before him, and the cause is heard, he renders judgment; he then acts judicially. After judgment he issues execution; he then again acts ministerially. The justice is both judge and clerk. In Yates v. Lansing, 5 Johns. 282, it was held that an action would not lie against the chancellor for imprisoning one of the officers of his court for malpractice and contempt. Chief Justice Kent, in delivering the opinion of the court, states that the allowance of a writ of habeas corpus in vacation is a ministerial act. The statute imposes a penalty on the chancellor and judges for refusing to allow the writ when properly applied for in vacation. Such application may be denied or granted at their discretion in term, because there they act judicially; but when they act ministerially, they are liable to the penalty for a refusal; in this instance it would seem that the same act may at one time be judicial, and at another ministerial. In the case of Hammond v. Howell, 2 Mod. 218, the court of oyer and · terminer improperly imprisoned a juror, but the court of common pleas held that no action lay against the court of oyer and terminer, for it was a judicial act; that court had power to. punish a juror for misconduct, but they were mistaken in deciding what was misconduct or misdemeanor. The recording of force under the statute is a judicial act: 8 Johns. 50. A justice of the peace is liable in an action to the injured party, where he acts without jurisdiction: Case v. Shepherd, 2 Johns. Cas. 27; Adkins v. Brewer, 3 Cow. 206 [15 Am. Dec. 264]. A justice acts ministerially in issuing executions; and if in doing so he acts irregularly and officiously, he is liable; though if he had committed the irregularity as the agent of the party, and was acting within his jurisdiction, he would be excused: Percival v. Jones, 2 Johns. Cas. 49; Taylor v. Trask, 7 Cow. 249.

There may be cases, I apprehend, when magistrates or others are intrusted with a discretion, where it would be difficult to say that they acted either judicially or ministerially. Such are the acts of the commissioners of excise in the several cities and towns in granting or refusing licenses. Such, also, are the acts of inspectors of elections; and in both these cases there have been decisions declaring the liability of such officers, in case of a willful, corrupt, and malicious exercise of their authority; but if they have acted honestly, though erroneously, no action lies. In the case of Rex v. Young and Pitts, 1 Burr. 556, a motion was made for an information against two justices