Opinion of the Court, per FOLGER, J.

The

not void; and it may be erroneous because it is void. 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 Bushell'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 Bushell'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 J. R., *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 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

Opinion of the Court, per FOLGER, J.

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 adjuge 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. (Ackerley 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 coram 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, page 174.) We think that the whole effect of the opinion SICKELS.-VOL. XXVIII. 5

Opinion of the Court, per FOLGER, J.

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. "All further exercise of it in that direction was forbidden." (Page 178.) What is an act in excess of judicial authority is shown by Clarke v. May (2 Gray, 410). There a justice of the peace having jurisdiction of a case summoned a person to appear before him as a witness therein. That person disobeyed. The case was tried and ended. Thereafter the justice issued process to punish for contempt the person summoned as a witness. He was arrested, fined, and not paying, was committed. It was held that the power to punish for contempt was incidental to the power to try the main case; that when the latter was ended jurisdiction had ceased, and the power to punish for contempt no longer existed, and that the proceedings had to that end were in excess of jurisdiction, and the justice was liable. And the distinction between a case where the magis trate acts with no jurisdiction at all, and one where his act is beyond or in excess of his jurisdiction, is shown by the case last cited, and that of Piper v. Pearson, in the same volume, page 120.

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 proceedings 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.)

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. (Pages 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 subject-mat

Opinion of the Court, per FOLGER, J.

ter. 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 tine 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 Ex parte Tobias Watkins, 3 Pet., 193.) Many cases are to be found wherein it is stated generally that when an 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." (Per MARCY, J.; Savacool v. Boughton, 5 Wend., 172.) How much more so when the court is not inferior?

66

There are analogies in the law. Take the case of a removal of a cause from a State court to the Circuit Court of the United States. When the party petitioning for a removal has presented his papers in due form and sufficiency to the State court, and has in all respects complied with the terms of the act of Congress, the State court cannot refuse. Though it does, all subsequent proceeding in it are coram

Opinion of the Court, per FOLGER, J.

non judice. (See Fisk v. U. P. R. R. Co., 6 Blatchf., 362; Matthews v. Lyall, 6 McLean, 13.) Though the judge of the State court has a legal discretion to exercise as to the right of removal (Ladd v. Tudor, 3 Woodb. & M., 325); if the facts entitle to a removal, it may not be withheld, and when they are shown it is the duty of the State court to proceed no further; each step after that is coram non judice. (Gordon v. Longest, 16 Peters, 101.) Yet, in case a judge did, in the honest exercise of his judgment, refuse a removal and proceed with the case in the State court, would it be contended that he was liable in a civil action? He had jurisdiction of the cause originally. That jurisdiction had ceased. His further acts were beyond or in excess of his jurisdiction.

A plea of title, put in in a court of a justice of the peace, in accordance with statute, ousts of jurisdiction. That court had jurisdiction of the cause originally, and the power to pass upon the sufficiency of the plea and accompanying papers. If it should err, and hold that jurisdiction had not been taken away, when it had; would the magistrate be liable in a civil action, always allowing for the difference in the respect that that court is of limited and special jurisdiction? (See Striker v. Mott, 6 Wend., 465.)

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 all 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 reflection upon it, aided by the reasonings and conclusions of