On the trial only one question of evidence arose. The defendant’s counsel asked Burwell, who was both prosecutor and witness, whether the other parties in the indictment against him and them did not do the tres-” passes mentioned in the indictment, to which he replied, he could not answer without criminating himself; and the court held he need not answer tlie question. In this ruling there was no error, for it is well settled that a witness is not bound to answer a question which tends to his own crimi-nation, and we. think the case of the witness falls within the rule.
There were several exceptions taken to the refusal of His Honor to give certain instructions prayed:
1. To his refusal to charge the jury that as the magistrate’s warrant recited that it was made on the oath o-f Nelson Sneed who was offered by the state, and was the only witness to the point, to prove that he made no affidavit before the defendant, and did not ask him to bind over the defendants in August, 1879, his evidence was not sufficient to warrant the jury in finding against the truth of the magistrate’s recital; that the same was under oath and that the same evidence was necessary to controvert it, as would be required in an indictment for perjury. The court assigned as reasons for declining to give the instruction, that there was no such rule in law, and further that the evidence of the witness did not contradict the magistrate’s statement in his warrant, it appearing that Nelson Sneed had made oath to the same facts in February, 1879. The ruling on this instruction we hold was not erroneous, for admitting *823there was such a rule of evidence as that contended for, the evidence of Nelson Sneed did not contradict the recital in the warrant. The warrant is dated the 23d of August, 1879, and it is fair to presume, was founded on the affidavit of February, 1879, for it does not state that the information was made before the defendant on that or any other day, the recital being, “Nelson Sneed has made oath before me, W. M. Sneed, a justice of the peace for the county aforesaid, that Henry H. Burwell,” &c. If the recital had been in the usual form, and stated, “Whereas Nelson Sneed this day made oath before me,” &c., then there would have been a contradiction between the evidence of Nelson and the recital, but as it stands, there is none; and it js reasonable to conclude that the date in the recital was purposely omitted because the warrant was based' upon the affidavit made on the 3d of Februarj1', 1879. Such was evidently the understanding of the defendant’s counsel who argued before this court, that the act of the defendant was lawful, because the affidavit made in February was still in force when the-second warrant issued, and that the defendant was warranted in.issuing that warrant because there were four offences charged in the affidavit, and .the parties were only indicted for two.
2. To his refusal to charge the jury that as the facts sworn to by Nelson constituted four distinct offences, and as the indictment in the superior court only covered two of these offences, the ease at the most only constituted the meritorious performance of a lawful act. His Honor very properly refused this instruction because it was not warranted by the facts of the case. The affidavit of the 3rd of February, 1879, does charge the prosecutor, Burwell, besides several forcible trespasses upon the land and personal property of Nelson Sneed, with an assault and battery upon his person with a heavy stick. He was not indicted for that in the superior court, but only for the forcible trespasses, and yet there is *824no mention of the assault and battery in the warrant of the 23d of August, but the accused were bound over to the inferior court to answer the complaint recited in said warrant,, which is, that the defendants with force and arms entered' into Nelson’s dwelling house, tore off the top of his house- and threw into the yard all the furniture, provisions and other private, property therein contained. If the warrant of the 23d of August had been issued, charging the commission of the assault and battery, there might have been the semblance of bona fides in the aet. But the offences with which the accused are charged and bound over to the inferior court to- answer, were identically the same offences for which they had been theretofore indicted in the superior court; and it is to be presumed the defendant knew of those indictments and the offences for which they were preferred, notwithstanding the memorandum appended to his judgment on the warrant, which is relied upon by his counsel as evidence of his candor and bona fides, for he was both prosecutor and witness in each of the indictments which were still pending. The memorandum looks very like an after-thought, a sort of quia timet affixture to the illegal proceedings, to guard, it may be, against an indefinite apprehension of'responsibility.
3. To his refusal to charge that as it did not appear that the cases in the inferior court had ever been finally disposed of, this indictment could not be maintained. There is nothing in this exception and the judge committed no error in refusing it.
The last exception taken by the defendant was to the charge given by Iiis Honor to the jury, and in this we hold there was no error.
The functions of a justice of the peace are either ministerial or judicial: They are ministerial, in preserving the peace, hearing charges against offenders, issuing somrnons or warrants thereon, examining the informant and bis wit*825nesses and in taking those examinations, binding over the parties and witnesses to prosecute, bailing the offenders or committing them for trial, &e. They are judicial, as when he convicts for an offence; and his conviction drawn up in due form and unappealed against, is conclusive,.and cannot be disputed in a civil action. 1 Blk. 354 and note 33.
In Bacon’s Abridgment (Am. Ed. by Bouvier,) p. 426, it is laid down that a magistrate “ is not punishable at the suit of a party, but only at the suit of the King for what he doth as judge, in matters which he hath power by law to hear and determine without the concurrence of any other; for regularly no man is liable to an action for what he doth as judge; but in cases wherein he proceeds ministerially rather than judicially, if he act corruptly, he is liable to an action at the suit of the party, as well as to an information at the suit of the King. But he must have acted corruptly to subject himself to punishment by information; for though he should even act illegally, yet if he acted honestly and candidly, without oppression, malice, revenge, or any bad view or intention, an information will not be gran ted against him, but the party complaining will be left to his ordinary remedy by action or indictment.” In addition to these authorities, see 1 Brod. & Bing., 432; Gregory v. Brown, 4 Bibb 28; 1 Burr., 556; 2 Burr., 683; 3 Burr., 1317; Rex v. Cozens, 2 Doug., 426.
From these authorities the principle is clearly deducible that where a magistrate is acting ministerially, if he act corruptly or oppressively, or from any other bad motive, he is answerable to the criminal law. And the examination and binding over of Burwell and the others, was a ministerial act. 1 Blk., 354, supra. We are not called upon in this case to decide when he is liable to a civil action. We are dealing with the law in its criminal aspect. The jury have found the defendant guilty in manner and form as charged in the bill of indictment, and the bill charges -that he un*826lawfully, maliciously and corruptly did issue his warrant as a justice of the peace against the said Henry H. Burwell (and the others named) for forcible trespass on the property of Nelson Sneed.
But it is contended before this court that His Plonor should have charged the jury that the evidence was not sufficient to warrant rhe jury in finding the defendant guilty, because he acted lawfully in binding over the prosecutor and the others in August, for the affidavit made by Nelson Sneed in February preceding was still in force, and as there were several offences charged in the affidavit and as they had been indicted in the inferior court only on two of them, he had the right to issue his warrant upon that affidavit, in August afterwards, for the offences contained therein for which no indictments had been found by the grand jury in the superior court. In this we do not concur. We hold that when the two magistrates took cognizance of the matters contained in the affidavit of February and bound over the parties to the. superior court, the justice had no further authority over the subject and was fu,ndus officio as to all matters contained in the affidavit, and is as amenable to the law as in cases where he issues his warrant without a previous oath.
There is no error. Let this be certified to the superior court of Granville that further proceedings may be had according to law.
Pee Curiam. No error.