as weakening the importance of the preservation, without impairment in ever so slight a degree, of constitutional guaranties.

I am, therefore, constrained to withhold my assent to the judgment just announced, and am authorized to say that Mr. Justice FIELD and Mr. Justice BREWER concur in this dissent.17

17 Compare Colon v, Lisk, 153 N. Y. 188, 47 N. E. 302, 60 Am. St. Rep. 609 (1897).

See, also, Fisher v. McGirr. 1 Gray (Mass.) 1, 61 Am. Dec. 381 (1854); Lincoln v. Smith, 27 Vt. 328 (1855); Bridge Street, etc., Co. v. Hogadone, 150 Mich. 638, 114 N. W. 917 (1908); Freund, Police Powers, §§ 525-527.

PART II

RELIEF AGAINST ADMINISTRATIVE ACTION

CHAPTER VII

ACTIONS TO RECOVER DAMAGES OR MONEY

SECTION 33.-AGAINST OFFICERS-JUDGES

LANGE v. BENEDICT.

(Court of Appeals of New York, 1878. 73 N. Y. 12, 29 Am. Rep. 80.) FOLGER, J. The plaintiff has brought an action against the defendant for false imprisonment, and detention in prison. He alleges that it was wrongful and willful, without just cause or provocation. He does not allege that it was malicious or corrupt. The complaint in the action sets out the facts in extenso upon which the plaintiff relies. To this the defendant has demurred, stating three causes of demurrer; but the one cause relied upon is that the complaint does not state facts sufficient to constitute a cause of action.

It is well, therefore, to state with some particularity the facts which are alleged, or are conceded. In October, 1873, the defendant was judge of the District Court for the United States of the Eastern District of New York. As such, by virtue of an act of Congress, he presided at and held the Circuit Court of the United States for the Southern District of New York for the October term of that year. The plaintiff was at that term arraigned upon an indictment of twelve counts, the general purport of which was that he had stolen, embezzled, or appropriated to his own use, certain mail-bags, the property of the United States, of the value of twenty-five dollars. He was tried upon the indictment. The verdict of the jury was, generally, that the plaintiff was guilty, and that the value of the mail-bags was less than twenty-five dollars. He was indicted under an act of Congress, which declared the offense and affixed the punishment. By that act, if the value of the mail-bags taken was found to be less than twenty-five dollars, the punishment for the offense was a fine of $200 or im1 Only a portion of this case is printed.

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prisonment for one year. The defendant, sitting as such judge and holding that court at that term, passed judgment upon the plaintiff, and sentenced him to pay a fine of $200, and to be imprisoned for one year. It is manifest that the punishment thus imposed was more than that affixed to the offense by the act of Congress. The plaintiff paid to the clerk of the United States Circuit Court, intending it in full payment of the fine so imposed, the sum of $200. This was done on the 4th day of November, 1873, and during the same term of the court; and the clerk made certificate that that sum was then on deposit in the registry of that court. The clerk paid the money into the office of the Assistant Treasurer of the United States, in New York City, in that circuit, to the credit of the Treasurer of the United States, as the fine thus imposed. There is no direct allegation in the complaint that the plaintiff was imprisoned under that sentence. There is an allegation that during the same term of that court a writ of habeas corpus was granted and returned into that court, in which the imprisonment of the plaintiff was made to appear. It may be taken as conceded, however, that the plaintiff was actually in prison for the space of five days after the pronouncing of that sentence, and before further proceedings were had. At the same term of that court, the defendant sitting and holding that court, and as the judge thereof, on the return of that writ vacated and set aside the sentence above set forth, and at the same time, and as a part of the same judicial act and order, passed judgment anew upon the plaintiff, and resentenced him to be imprisoned for the term. of one year. Under this action of the defendant the plaintiff was imprisoned, which is the alleged wrongful imprisonment and detention of him by the defendant.

Judicial proceedings were afterwards had in behalf of the plaintiff, the end of which was that the Supreme Court of the United States adjudged the resentence, above stated to have been pronounced, without authority, and discharged the plaintiff from his imprisonment.' It does not appear that the defendant was a party to the proceedings in the Supreme Court, or was heard or represented there. On this state of facts the plaintiff insists that the defendant is liable to him in damages. The defendant claims that the facts show that all which he did he did as a United States judge, and that the judicial character in which he acted protects him from personal responsibility.

In our judgment, the question between the parties is brought to what, in words at least, is a very narrow issue: Did the defendant impose the second sentence as a judge; or, although he was at the moment of right upon the bench, and authorized and empowered to exercise the functions of a judge, was the act of resentencing the plaintiff so entirely without jurisdiction, or so beyond or in excess of the jurisdiction which he then had as a judge, as that it was an arbitrary and unlawful act of a private person? A narrow issue, but not to be easily determined to the satisfaction of a cautious inquirer. * *

*

The general rule which applies to all such cases, and which is to be

observed in this, has been in olden times stated thus: Such as are by law made judges of another shall not be criminally accused, or made liable to an action for what they do as judges; to which the Year Books (43 Edw. III, 9; 9 Edw. IV, 3) are cited in Floyd v. Barker, 12 Coke, 26. The converse statement of it is also ancient: Where there is no jurisdiction at all, there is no judge. The proceeding is as nothing. Perkin v. Proctor, 2 Wilson, 382-384, citing the Marshalsea Case, 10 Coke, 65-76, which says: "Where he has no jurisdiction, non est judex." It has been stated thus, also: No action will lie against a judge, acting in a judicial capacity, for any errors which he may commit, in a matter within his jurisdiction. Gwynne v. Pool, Lutw. 290. It has been, in modern days carried somewhat further, in the terms of the statement: Judges of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously and corruptly. Bradley v. Fisher, 13 Wall. 351, 20 L. Ed. 646. It is to be seen that in these different modes of stating the principle there abides a qualification. To be free from liability for the act, it must have been done as judge, in his judicial capacity. It must have been a judicial act. So it always remains to be determined, when is an act done as judge, in a judicial capacity? And this is the difficulty which has most often been found in the use of this rule, and which is present here: To determine when the facts exist which call into play that qualification.

For it is plain that the fact that a man sits in the seat of justice, though having a clear right to sit there, will not protect him in every act which he may choose or chance to do there. Should such an one, rightfully holding a court for the trial of civil actions, order the head of a bystander to be stricken off, and be obeyed, he would be liable. Thus, a person in the office of judge of the ecclesiastical court in England excommunicated one for refusing to obey an order, made by him, that he become guardian ad litem for an infant son, and though the order was made in a matter then lawfully before the court for adjudication, and of which he as judge had jurisdiction, he was held liable to an action. Beaurain v. Sir Wm. Scott, 3 Campb. 388. He had not, as judge, jurisdiction of the person to whom he addressed the order. On the other hand, one rightfully holding a court for the trial of a criminal action fined and imprisoned a juror, for that he did not bring in a verdict of guilty against one on trial for an offense, after the court had directed the jury that such a verdict was according to the law and facts. The juror was discharged from imprisonment on habeas corpus brought in his behalf, and it was held that the act of fining and imprisoning him was unlawful, inasmuch as there was no allegation of corruption or like bad conduct against the juror. The juror then brought action against him who sat as judge and made the order for the fine and imprisonment, but took nothing thereby, for it was held that the judge acted judicially, as judge, as he had jurisdiction of the

person of the juror, and jurisdiction of the subject-matter, to wit, the matter of punishing jurors for misbehavior as such, and that his judgment that the facts of that case warranted him in inflicting punishment was a judicial error, to be avoided and set aside in due course of legal proceedings, for which, however, he was not personally liable. Hammond v. Howell, Recorder of London, 2 Mod. 218; Bushell's Case, Vaughan, 135. So a judge of oyer and terminer was protected from indictment when he had made entry of record that some were indicted for felony before him; whereas, in fact, they were indicted for trespass only. 12 Coke, 25.

Thus it appears that the test is not alone that the act is done while having on the judicial character and capacity, nor yet is it alone that the act is not lawful.

We have seen, too, that the test is not that the act was in excess of jurisdiction, or alleged to have been done with malice and corruptly; for, even if it is such an act, it does not render liable the doer of the act, if he be a judge of a court of general or superior authority. Bradley v. Fisher, supra.

We think it clear that there is no liability to civil action, if the act was done "in a matter within his jurisdiction," to use the words of Gwynne v. Pool, supra. Those words mean that, when the person assumed to do the act as judge, he had judicial jurisdiction of the person acted upon, and of the subject-matter as to which it was done. Jurisdiction of the person is when the citizen acted upon is before the judge, either constructively or in fact, by reason of the service upon him of some process known to the law, and which has been duly issued and executed. What is meant by jurisdiction of the subject-matter we have had occasion to consider lately in Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129. It is not confined within the particular facts, which must be shown before a court or a judge, to make out a specific and immediate cause of action. It is as extensive as the general or abstract question, which falls within the power of the tribunal or officer to act concerning.

Our idea will be illustrated by a reference to Groenvelt v. Burwell, 1 Ld. Raym. 454. There the defendants, as censors of a college of physicians, had imposed punishment on the plaintiff for what they adjudged was malpractice by him. He brought his action. They pleaded the charter of the college, giving them power to make by-laws for the government of all practitioners in medicine in London, and to overlook them and to examine their medicines and prescriptions, and to punish malpractice by fine and imprisonment; that they had, in the exercise of that power, adjudged the plaintiff guilty of mala praxis. and fined him twenty pounds, and ordered him imprisoned twelve months, nisi, etc. It was held that the defendants had "jurisdiction over the person of the plaintiff, inasmuch as he practiced medicine in London, and over the subject-matter, to wit, the unskillful administration of physic." That is the language of Holt, C. J., in that case.