have, to the extent of the demand made or property claimed by the United States, but not so far as to allow any affirmative relief against it. Application of this principle was made in the case of The Siren (22) where a steamer attempting to violate the blockade at Charleston was seized as prize and ordered to Boston for condemnation. While passing through Hell Gate, near New York, she ran into and sank another vessel and on her condemnation as prize the owner of the sunken vessel asserted a claim upon the proceeds of the sale for the damage sustained by the collision. The case came before the Supreme Court of the United States and it was admitted by the court that the exemption of the sovereign included exemption of its property, but that when it came into court, as it had here, for the condemnation of the vessel that opened to consideration all claims and equities in regard to the property involved. They held that the mere fact that this claim for damages would not have been enforceable against the vessel if the United States had not brought it into court, did not prevent its recognition by the court when the United States had done so. § 124. Statutory relief. For affirmative relief directly against the United States it is necessary to turn to the court of claims legislation. This was under review in the case of Dooley v. United States (23). In that case suit was brought against the United States to recover back certain duties paid under protest in Porto Rico on goods shipped from New York, on the ground of the occupation and subsequent acquisition of Porto Rico by the United States. (22) 7 Wall. 152. Suit was brought in the circuit court under a provision of the Tucker act making the circuit and district courts courts of claims up to a certain amount. The court said that the first section of that act evidently contemplated "four distinct classes of cases: (1) Those founded upon the Constitution or any law of Congress, with an exception of pension cases; (2) cases founded upon a regulation of an executive department; (3) cases of contract, express or implied, with the government; (4) actions for damages, liquidated or unliquidated, in cases not sounding in tort. The words 'not sounding in tort' are in terms referable only to the fourth class of cases.' The court said that, while it had previously held that for goods not imported at all a common law action might be had against the collector to recover the money back, that remedy was not exclusive, and that the case also came within the first class of cases above mentioned as being founded on a revenue law. It was urged, however, that there was an element of tort in the wrongful exaction of duties, but the court said that, even conceding this for the purposes of the case, the restriction as to cases not sounding in tort applied only to the fourth class of cases and that an element of tort would not therefore be fatal to a case brought under a law of the United States. If the court had cared to, however, it could well have brought the case within the third class, on the ground that the wrongful exaction of the duty raised an implied promise (quasi-contract) to pay it back and that the injured party was at liberty to waive the tort and sue in contract. This is a principle that has found wide application in cases against the United States. For instance, where the United States had occupied property without claim of title, it was held that there was an implied promise of compensation and that the tort could be waived and suit brought in contract (24). § 125. Suits in which the government is the real party in interest: Suits between states. The exemption of the states and of the United States from suit, except in the cases expressly provided by the Constitution and those cases where they have waived their exemption, is not confined to cases where the state or the United States are directly made parties defendant. It applies to all cases of suits to compel officers to discharge purely official duties owed on behalf of the government. See the article on Constitutional Law, §§ 374-78, in Volume XII of this work. Suits between states, or between states and the United States are also dealt with in that article, §§ 361-62, 371. SECTION 3. LIABILITY OF OFFICERS. § 126. Criminal liability. Officers are subject to a very wide criminal responsibility for failure to perform ministerial duties and for the corrupt or malicious performance of discretionary duties, and the common law liability has been supplemented extensively by statute. The control which the public prosecutor has over criminal prosecutions in this country, however, often renders the criminal liability of officers difficult of enforcement. § 127. Liability in contract. Public officers are less likely than private agents to be considered as parties to contracts so as to bind themselves personally, and yet in (24) United States v. Great Falls Mfg. Co., 112 U. S. 645. the case of Brown v. Bradlee (25) where three selectmen had offered a reward of twenty-five hunderd dollars for the furnishing of certain evidence, the selectmen were held personally liable. The offer of a reward was signed by the selectmen with the words "Selectmen of Milton" after their signatures, and the court said that if the offer had been authorized, its form was sufficient to bind the town, but that that did not preclude the liability of the officers also, and applied much of the reasoning used in ordinary cases of agency. It said that the lack of authority was a reason for reading the words of the contract as directed against the officers themselves, where the construction of the contract was doubtful. Contracts relative to office are often void and thus unenforceable against the officer. Thus in Robertson v. Robinson (26) where a candidate for tax assessor had agreed to appoint another his chief deputy and pay him from the fees of the office twenty-five hundred dollars, if the latter would perform practically all the duties of the office and make his official bond, it was held that the agreement was void as amounting to a sale of the office. § 128. Civil liability of judges. In the case of Bradley v. Fisher (27) a justice of the supreme court of the District of Columbia had ordered the name of the plaintiff stricken from the roll of the attorneys practicing in that court, because the latter had threatened the judge with personal chastisement. The attorney claimed that the action of the judge in disbarring him was malicious (25) 156 Mass. 28. and brought suit, but the court said: "Judges of courts 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 or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. When there is clearly no jurisdiction over the subject matter, any authority exercised is an usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject matter 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 questions involved in the case, although upon the correctness of the determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of the estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority." In the case at hand the court held that the order of disbarment was irregular in that the attorney had not been cited, but that within the above principles the judge could not be held liable. |