from custody.28 To the complaint the defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the New York Supreme Court and the plaintiff appealed to this court.29

FOLGER, J.: 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.

There are not many topics in the law which have received more discussion and consideration than that of the liability of a person holding a judicial, or quasi judicial office, to an action at law, for an act done by him while, at the same time, exercising his office. The principles which should govern such action are, therefore, well settled. The difficulty in satisfactorily disposing of a particular case is, not in finding the rule of law upon which it is to be decided, but in determining on which side of that rule the facts of the case do lie.

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., 3, 9; 9 Id., 4, 3) are cited in Floyd v. Baker 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.)

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

"Ex parte Lange, 85 U. S. 163 (1873). The Supreme Court held that the judgment of the court having been executed so as to be a full satisfaction of one of the alternative penalties the power of the court was ended. Clifford and Strong, J. J., dissented.

The statement of facts is condensed from the opinion of the court, portions of which are omitted. Reported below in 8 Hun (N. Y.) 362.

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 an 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 Reps., 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.) 30

30 Accord: Taylor v. Doremus, 16 N. J. L. 473 (1838); Pratt v. Gardner, 56 Mass. 63 (1848); Fray v. Blackburn, 3 B. & S. 576 (1863); Woodruff v. Stewart, 63 Ala. 206 (1879); Anderson v. Gorrie, L. R. (1895) 1 Q. B. 658 (1894); Scott v. Fishblate, 117 N. Car. 265 (1895); Webb v. Fisher, 109 Tenn. 701, 72 S. W. 110, 60 L. R. A. 791, 97 Am. St. 863 (1902); Wyatt v. Arnot, 7 Cal. App. 221 (1907); Kruegel v. Cobb, 124 S. W. 723 (Tex. 1910); Casser

LANGE V. BENEDICT

25

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). 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. And because the defendants had power to hear and punish, and to fine and imprison, it was held that they were judges of record, and because judges, not liable for the act of fining and imprisoning. (See also Ackerly v. Parkinson, 3 Maul. & Selw. 411.) It is the general abstract thing which is the subject-matter. The power to inquire and adjudge whether the facts of each particular case make that case a part or an instance of that general thing-that power is jurisdiction. of the subject-matter. Thus in Hammond v. Howell (supra), the defendant was saved from liability to civil action, inasmuch as he, he had as judge jurisdiction of the subject-matter of punishing jurors for a misdemeanor upon the panel. He made an error in deciding that the facts of that case made an instance of that subjectmatter. But the jurors were within his jurisdiction of their persons, and he had jurisdiction of the subject-matter, and his error was a judicial error; an act done quatenus judge; not an act as Howell, the private person, though it was an act contrary to law, grievous and oppressive upon the citizen.

leigh v. Malone, 50 Colo. 597 (1911); Broom v. Douglass, 57 So. 860 (Ala.) (1912). Contra: Hollon v. Lilly, 100 Ky. 553, 18 Ky. L. 968, 38 S. W. 878 (1897); Willis v. Linn, 148 Ky. 841 (1912); Gault v. Wallis, 53 Ga. 675 (1875) semble.

The inquiry, then, at this stage of our consideration of the case is this: Whether the defendant, sitting upon the bench of the circuit court and being on that occasion de jure et de facto the circuit court, and having as such jurisdiction of all persons by law within the power of that court, and jurisdiction of all subject-matters within its cognizance; whether he had jurisdiction of the person of the plaintiff, and of any subject-matter where from he had authority to hear and adjudge whether the facts in the case of the plaintiff, as then presented to him fell within any of those subject-matters. It is not the inquiry whether the act then done as the act of the court was erroneous and illegal; that is but another form of saying whether it could or could not be lawfully done as a court by the person then sitting as the judge thereof. It is whether that court then had the judicial power to consider and pass upon the facts presented, and to determine and adjudge that such an act based upon them would be lawful or unlawful.

That the defendant, as that court, had jurisdiction of the person of the plaintiff is manifest. He was before it on a return of a writ of habeas corpus, sued out by him, and was produced in court by the marshal to whom the writ was sent. He was in the custody of law upon a judgment and sentence of that court, the validity of which he was questioning, and seeking from that court a vacating and annulling thereof. At least until the order for vacating it was made the plaintiff was lawfully within the power of the court.

The court also had jurisdiction of the subject-matter. It might by law indict and try persons charged with stealing and appropriating mail bags; it might pass sentence upon them, when duly convicted, of fine or imprisonment; during the same term of the court at which one sentence had been imposed, it might vacate it or modify it, as law and justice would require. (Ex parte Lange, 18 Wall. 163). If it had imposed a sentence greater than that prescribed by law, it could vacate it and inflict one in accord with the law. If no part of the invalid sentence imposed had been executed, it could vacate and inflict one different in kind or degree. (Ex parte Lange 18 Wall. 163; Miller v. Finkle, 1 Park. Cr. R., 374, and cases cited there.) In England it has been held that at the same term the judgment might be altered, and by reason of subsequent conduct of the convicted person the punishment be increased. (Reg. v. Fitzgerald, 1 Salk. 401.) And another sentence has been given after a portion of the former one had been suffered. (Rex v. Price, 6 East, 323.) The judgment, as expressed in the prevailing opinion in Ex parte Lange (supra), is not in accord with those two cases, and we cite them without expression of approval or otherwise.

This was the subject-matter-the general matter then before the court. The particular matter or question presented was the sentence of fine and imprisonment passed upon the plaintiff; was it erroneous and unlawful in that it went beyond the limit of the law, he having been some days in imprisonment under it, and having paid a sum of money equal in amount to the fine, to the clerk of the court, who in turn had paid it to an officer of the United States government; was it lawful to vacate the sentence if in excess of the law;

if that sentence should be vacated, was it lawful, under the facts of the case, to impose another sentence which should be in accord with the statute-did all these things present a case for the exercise of power, by virtue of the jurisdiction over the subject-matter? The court, we have seen, had the jurisdiction last named; did it not also have jurisdiction to adjudicate upon that state of facts? If it did have it, and did adjudicate erroneously, was it not a judicial error to be relieved from, by such writ as would bring it up for review, rather than a wrong done personally to be answered for in a civil action? Is not the person who filled the office of judge and by his presence on the bench made that court free from liability for that adjudication, though the act done by him was erroneous and unauthorized by law?

It is true that the United States Supreme Court upon a certain state of facts before it, and in a proceeding by certiorari to which this defendant was not a party, and in which he was not heard by that court, reached the conclusion that the second sentence of the circuit court was pronounced without authority, and discharged the plaintiff from his imprisonment thereunder. (Ex parte Lange, supra.) In the prevailing opinion given in the case are repeated expressions to the effect that the power of the circuit court to punish, further than the first sentence, was gone; that its power to punish for that offense was at an end when the first sentence was inflicted, and the plaintiff had paid the $200 and laid in prison five days; that its power was exhausted; that its further exercise was prohibited; that the power to render any further judgment did not exist; that its authority was ended.

The opinion also says: "A judgment may be erroneous and not void; and it may be erroneous because it is void. The distinctions between void and voidable judgments are very nice, and they may fall under the one class or the other, as they are regarded for different purposes." We do not think that learned court would disregard the reasoning of Howell's Case (supra) and others like unto it. Yet in Bushnell's Case (supra), he was discharged on habeas corpus, on the ground that Howell as judge had no power or authority to fine or imprison him for the cause set up; it was called "a wrongful commitment" (1 Mod. 184), as contrasted with “an erroneous judgment" (12 Mod. 381, 392); and yet when Howell was called to answer in a civil action for the act, it was held that though without authority it was judicial. In Bushnell's Case (1 Mod, 119), Hale, C. J., said: "The habeas corpus and the writ of error, though it doth make the judgment void, doth not make the awarding of the process void to that purpose," i. e., of an action against the judge, "and the matter was done in a court of justice," he continued. So is the comment upon that case. (Yates v. Lansing, 5 Johns 290.) "It had jurisdiction of the cause because it had power to punish a misdemeanor in a juror, though in the case before the court the recorder made an erroneous judgment in considering the act of the juror as amounting to a misdemeanor, when in fact it was no misdemeanor." (2 Mod. 218.) So in Ackerley v. Parkinson (supra) the defendant was held protected though the citation issued by him