Opinion of the Court, per FOLGER, J.

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.)

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 prac

Opinion of the Court, per FOLGER, J.

titioners 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, Ackerley 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 subjectmatter. Thus in Hammond v. Howell (supra), the defendant was saved from liability to civil action, inasmuch as 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 subject-matter. 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.

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 wherefrom he had authority to hear and

Opinion of the Court, per FOLGER, J.

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 to 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 judg ment 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.

That 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 it 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

Opinion of the Court, per FOLger, J.

of the former one had been suffered. (Rex v. Price, 6 East, 323.) The judgment, as expressed in the prevailing pinion 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 boen 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 was held by this court, in Roderigas v. East River Savings Bank (63 N. Y., 460), that where general jurisdiction is given to a court of any subject, and that jurisdiction, in any particular case, depends upon facts which must be brought before that court for its determination upon the evidence, and where it is required to act upon such evidence, its decision upon this question of jurisdiction is conclusive until reversed, so far as to protect its officers, and all other innocent persons, who act upon it. How does it differ

Opinion of the Court, per FOLGER, J.

when general jurisdiction is thus given, and depends upon the legal conclusion from a conceded state of facts, and when the court is required to act thereon, and draw a conclusion therefrom? Is not the adjudication of that court conclusive until reversed, so as to protect? Is not the act of adjudication, and the judgment given thereon, an act done with jurisdiction; hence a judicial act, an act done as a judge, or as a court? In Howell's Case (supra) there was no disputed question of fact. It was upon a conceded state of facts that he acted. He erred in his judgment of the effect in law of those facts; yet it was deemed a judicial error.

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 judg ment did not exist; that its authority was ended.

It is claimed from these expressions that the force of the decision in that case, is that the defendant in pronouncing the second sentence upon the plaintiff did not act as a judge. It is plausible to say that if an act, sought to be defended as a judicial act, has been pronounced without authority and void, it could not have been done judicially. But we have yet to learn that the eminent court which used that language in adjudging upon the case made upon that writ, would hold that the defendant did not act as a judge in pronouncing the judgment which was deemed without power to sustain it. The opinion also says: "A judgment may be erroneous and