was considered as a nullity; on the ground that the court had a general jurisdiction over the subject-matter.

Let it be conceded, at this point that the law is now declared, that the act of the defendant was without authority and was void, yet it was not so plain as then to have been beyond the realm of judicial discussion, deliberation and consideration, as is apparent from the fact that four judges, other than the defendant, acting as judges, have agreed with him in his view of the law.

He was, in fact, sitting in the place of justice; he was at the very time of the act a court; he was bound by his duty to the public and to the plaintiff to pass as such, upon the question growing out of the facts presented to him, and as a court to adjudge whether a case had arisen in which it was the demand of the law, that on the vacating of the unlawful and erroneous sentence or judgment of the court, another sentence or judgment could be pronounced upon the plaintiff. So to adjudge was a judicial act, done as a judge, as a court; though the adjudication was erroneous, and the act based upon it was without authority and void. Where jurisdiction over the subject is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other involved in the case; although upon the correctness of his determination in those particulars, the validity of his judgment may depend. (Ackerly v. Parkinson, supra.) For such an act, a person acting as judge therein is not liable to civil or criminal action. The power to decide protects, though the decision be erroneous (see Garnett v. Farrand, 6 B. & C. 611).

There is another view of this case. It is certain that the defendant as the circuit court, had at first jurisdiction of the plaintiff, and jurisdiction of the cause and the proceedings. That jurisdiction continued to and including the pronouncing of the first sentence; nay, until and including the giving of the order vacating that sentence. If it be admitted that at the instant of the utterance of that order jurisdiction ceased, as is claimed by the plaintiff, on the strength of the opinion in Ex parte Lange (supra), as commented upon Ex parte Parks (93 U. S. R. 18), and that all subsequent to that was corum non judice, and void; still it was so, not that the court never had jurisdiction, but that the last act was in excess of its jurisdiction. Thus in the opinion (Ex parte Lange, supra, p. 165) it was said that the facts very fairly raised the question whether the circuit court in the sentence which it pronounced, and under which the prisoner was held, had not exceeded its powers. (See, also, p. 174.) We think, that the whole effect of the opinion is, not that the court had no jurisdiction, no power over the prisoner and the case, but that it had no authority to impose further punishment.

This act of the defendant was then one in excess of, or beyond the jurisdiction of the court. And though when courts of special and limited jurisdiction exceed their powers, the whole proceeding is coram non judice, and void, and all concerned are liable, this has never been carried so far as to justify an action against a judge of a

superior court, or one of general jurisdiction, for an act done by him in a judicial capacity. (Yates v. Lansing, supra; Bradley v. Fisher, supra; Randall v. Brigham, 7 Wall. 523.)31

* *

In the case last cited it is said of judges of superior courts: They are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps they are done maliciously or corruptly. (Pp. 536, 537.) And in the other cases a distinction is observed and insisted upon between excess of jurisdiction and a clear absence of all jurisdiction over the subjectmatter. And to the same effect is this: "For English judges, when they act wholly without jurisdiction * have no privilege.' (Per Parke, B; Calder v. Halket, 3 Moore P. C. C. 28, 75.) Now it may be conceded that the circuit court is not a court of general jurisdiction; that in a sense it is a court of limited and special jurisdiction (Kempe's Lessee v. Kennedy, 5 Cranch 173); inasmuch as it must look to the acts of congress for the powers conferred. But it is not an inferior court. It is not subordinate to all other courts in the same line of judicial function. It is of intermediate jurisdiction between the inferior and the Supreme Courts. It is a court of record; one having attributes and exercising functions, independently of the person of the magistrate designated generally to hold it; per Shaw, C. J. (Ex parte Gladhill, 8 Metc. 168, 170); it proceeds according to the course of the common law; it has power to render final judgments and decrees which bind the persons and things before it, conclusively, in criminal as well as civil cases, unless revised on error or appeal (Grignon's Lessee v. Astor, 2 How. (U.S.) 341; see Er parte Tobias Watkins, 3 Pet. 193). "Many cases are found wherein it is stated generally that when an

1 In Piper v. Pearson, 68 Mass. 120 (1854), it is said, per Bigelow, J.: "The common law affords to all inferior tribunals and magistrates complete protection in the discharge of their official functions so long as they act within the scope of their jurisdiction, however false and erroneous may be the conclusions and judgments at which they arrive. But on the other hand, if they act without any jurisdiction over the subject-matter; or if, having cognizance of a cause, they are guilty of an excess of jurisdiction; they are liable in damages to the party injured by such unauthorized acts. In all cases therefore where the cause of action against a judicial officer, exercising only a special and limited authority, is founded on his acts done colore officii, the single inquiry is whether he has been guilty of an excess of jurisdiction." Accord: Clarke v. May, 68 Mass. 410, 61 Am. Dec. 470 (1854); Miller v. Searle, 2 W. Bl. 1141 (1776); Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102 (1821); Blood v. Sayre, 17 Vt. 609 (1843); Waterville v. Barton, 64 Maine 321 (1874); Hanna v. Slevin, 8 Pa. Super. Ct. 509 (1898) semble; Stephens v. Wilson, 115 Ky. 27 (1903); Duffin v. Summerville, 9 Ala. App. 573 (1913). But in Thompson v. Jackson, 93 Iowa 376, 61 N. W. 1004, 27 L. R. A. 92 (1895), the rule that protects superior judges exceeding their authority and refuses the same protection to inferior judges is described as "unreasonable, unjust and illogical," and in other jurisdictions the tendency is to hold that a judge of an inferior court acting in good faith without malice in excess of his jurisdiction ought not to be civilly liable. Brooks v. Mangan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. 137 (1891); Bell v. McKinney, 63 Miss. 187 (1885); Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 477, 14 L. R. A. 138 (1891); Robertson v. Parker, 99 Wis. 652, 75 N. W. 423 (1898); Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am. St. 254 (1898); Bowman v. Seaman, 152 App. Div. (N. Y.) 690 (1912).

inferior court exceeds its jurisdiction its proceedings are entirely void and afford no protection to the court, the party, or the officer who executes its process. I apprehend that it should be qualified when the subject-matter of the suit is within the jurisdiction of the court, and the alleged defect of jurisdiction arises from some other cause." (Marcy, J.; Savacool v. Boughton, 5 Wend. 172.) How much more so when the court is not inferior?

For these reasons we are of the opinion that the defendant is protected by his judicial character from the action brought by the plaintiff. We have not gone into a written consideration of the matters urged by the learned and zealous counsel for the plaintiff in his very elaborate and exhaustive brief and printed argument. We have read them with great interest and benefit. To follow them in an opinion, and to comment upon all the cases cited and positions taken, would be to write a treatise upon this subject. That would be no good reason why they should not be followed and discussed, if the requirements of the case demanded it. The case turns upon a question more easily stated than it is determined: Was the act of the defendant done as a judge? Our best reflections upon it, aided by the reasonings and conclusions of many more cases than we have cited, has brought us to the conclusion that as he had jurisdiction of the person and of the subject-matter, and as his act was not without the inception of jurisdiction, but was one no more than in excess of or beyond jurisdiction, the act was judicial. We are not unmindful of the considerations of the protection of the liberty of the person, and of the staying of a tendency to arbitrary exercise of power, urged with so much eloquence by the learned and accomplished counsel for the appellant. Nor are we of the mind of the court in 2 Mod. (218, 220), that "these are mighty words in sound, but nothing to the matter." They are to the matter, and not out of place in such a discussion as this. Nor have we been disposed to outweigh those considerations, with that other class, which sets. forth the need of judicial independence, and of its freedom from vexation on account of official action, and of the interest that the public have therein. (See Bradley v. Fisher, supra; Taffee v. Downs, in note to Calder v. Halket, 3 Moore P. C. C. 28, 41, 51, 52.) These are not antagonistic principles; they are simply countervailing. As with all other rules which act in the affairs of men, preponderance may not be fondly given to one to the disregard of the other; each should have its due weight yielded to it, for thus only is a safe equipoise reached.

We have arrived at our decision upon what we hold to be long and well-established principles applied to the peculiar facts of this interesting case.

The judgment of the general term should be affirmed.

All concur, except Andrews, J., absent.

Judgment affirmed.32

"Accord: Ross v. Rittenhouse, 2 Dall. (Pa.) 160 (1792), s. c. 1 Yeates 443; Phelph v. Sill, 1 Day (Conn.) 315 (1804); Yates v. Lansing, 9 Johns. (N. Y.) 395 (1811); Doswell v. Impey, B. & C. 163 (1823); Garnett v. Ferrand, 6 B. & C. 611 (1827); Tompkins v. Sands, 8 Wend. (N. Y.) 462, 24

NATHANIEL LORD v. JOHN W. VEAZIE.

SUPREME COURT OF THE UNITED STATES, 1850.

This case was brought up by writ of error from the Circuit Court of the United States for the District of Maine.

It appeared that in 1842 the Bangor and Piscataquis Canal and Railroad Company executed a deed to the City Bank at Boston by which the bank claimed the entire property of the company. By an act passed in 1847 the company was reorganized and the bank claimed to be sole proprietors under the new charter. John W. Veazie, a shareholder in the original company, claimed that control was granted to the stockholders. In August, 1848, Veazie and Lord executed an instrument purporting to be a conveyance from Veazie to Lord of 250 shares of the company which Veazie covenanted to warrant and defend, and in September, 1848, Lord brought this action of covenant and a statement of facts agreed upon under which the opinion of the court was to be taken. In October, 1848, judgment pro forma was given for defendant at the request of the parties in order that the question might be brought before this court. Mr. Moor on his own account as counsel for the City Bank moved to dismiss the appeal on the ground that it was a fictitious case contrived to settle legal questions upon which he, Moor, and the City Bank had a large amount of property depending. A number of affidavits were filed in support of and against the motion.33

TANEY, C. J.: The court is satisfied, upon examining the record in this case, and the affidavits filed in the motion to dismiss, that the contract set out in the pleadings was made for the purpose of instituting this suit, and that there is no real dispute between the plaintiff and defendant. On the contrary, it is evident that their interest in the question brought here for decision is one and the same, and not adverse; and that in these proceedings the plaintiff and defendant are attempting to procure the opinion of this court upon a question of law, in the decision of which they have a common interest opposed to that of other persons, who are not parties to this suit, who had no knowledge of it while it was pending in the circuit

Am. Dec. 46 (1832); Dicas v. Brougham, 1 M. & Rob. 309 (1833); Morrison v. McDonald, 21 Maine 850 (1842); Stone v. Graves, 8 Mo. 148 (1843); Bailey v. Wiggins, 5 Harr. (Del.) 462, 60 Am. Dec. 650 (1854); Burnham v. Stevens, 33 N. H. 247 (1856); Lancaster v. Lane, 19 Ill. 242 (1857); Way v. Townsend, 4 Allen (Mass.) 114 (1862); Scott v. Stansfield, L. R. 3 Exch. 220 (1868); Pappa v. Rose, L. R. 7 C. P. 32 (1871); Busteed v. Parsons, 54 Ala. 393, 25 Am. Rep. 688 (1875); s. c. 25 Am. Rep. 688, note; Jones v. Brown, 54 Iowa 74, 6 N. W. 140, 37 Am. Rep. 185 (1880); Grove v. VanDuyn, 44 N. J. L. 654, 43 Am. Rep. 412 (1882); Rudd v. Darling, 64 Vt. 456, 25 Atl. 479 (1892); Marks v Sullivan, 9 Utah 12, 33 Pac. 224 (1893); Webb v. Fisher, 109 Tenn. 701, 72 S. W. 110, 60 L. R. A. 791, 97 Am. St. 863 (1902); Krugel v. Murphy, 126 S. W. 343 (Tex. 1910); Alzua v. Johnson, 231 U. S. 106 (1913).

"The statement of facts is abridged and the arguments of counsel omitted.

court, and no opportunity of being heard there in defense of their rights. And their conduct is the more objectionable, because they have brought up the question upon a statement of facts agreed on between themselves, without the knowledge of the parties with whom they were in truth in dispute, and upon a judgment pro forma entered by their mutual consent, without any actual judicial decision by the court. It is a question, too, in which it appears that property to a very large amount is involved, the right to which depends on its decision.

It is proper to say that the counsel who argued here the motion to dismiss, in behalf of the parties to the suit, stand entirely acquitted of any participation in the purposes for which these proceedings were instituted; and indeed could have had none, as they were not counsel in the circuit court, and had no concern with the case until after it came before this court. And we are bound to presume that the counsel who conducted the case in the court below were equally uninformed of the design and object of these parties; and that they would not knowingly have represented to the court that a feigned controversy was a real one.

It is the office of courts of justice to decide the rights of persons. and of property, when the persons interested can not adjust them by agreement between themselves, and to do this upon full hearing of both parties. And any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purpose, when there is no real and substantial controversy between those who appear, as adverse parties to the suit, is an abuse which the courts of justice have always reprehended, and treated as a punishable contempt of court.

The suit is spoken of, in the affidavits filed in support of it, as an amicable action, and the proceeding defended on that ground. But an amicable action, in the sense in which these words are used in courts of justice, presupposes that there is a real dispute between the parties concerning some matter of right. And in a case of this kind it sometimes happens, that, for the purpose of obtaining a decision of the controversy, without incurring needless expense and trouble, they agree to conduct the suit in an amicable manner, that is to say, that they will not embarrass each other with unnecessary forms of technicalities, and will mutually admit facts which they know to be true, and without requiring proof, and will bring the point in dispute before the court for decision, without subjecting each other to unnecessary expense or delay. But there must be an actual controversy, and adverse interests. The amity consists in the manner in which it is brought to issue before the court. And such amicable actions, so far from being objects of censure, are always approved and encouraged, because they facilitate greatly the administration of justice between the parties. The objection in the case before us is, not that the proceedings were amicable, but that there is

34

34

Dubuque & P. R. Co. v. Litchfield, 23 How. (U. S.) 66, 16 L. ed. 500

(1859).