force arid effect to such adjudication, so far as the sa.memay effect the proceedings before it, and in this Way the assignee can be entirely protected from any actual hardship. Upon the grounds, therefore, upon which the motion for a discharge of the garnishee has been based in argument, the same must be overruled. Whether the deed of ment executed to the assignee can be attacked by making up an issue on the answer,or whether a billin equity should be filed, is not considered, as the question of the proper mode of presenting the issue has not been discussed. Motion is overruled.
(OirCtl-tt (lourt, D. Minnesota.
June Term, 1887.)
JUSTICE OF PEACE-LIABILITY FOR FALSE IMPRISONMENT.
Where a justice of the peace having power to. commit for contempt, as In Minnesota; commits a person for contempt, and on such person being liberatedon habea8 CorPU8 recommits him on a fresh warrant for the same offense, such justice is not amenable to a civil action for false and malicious imprisonment, though his action in making the second commitment was erroneous, and is alleged that he acted maliciously.
This was an action for false and malicious imprisonment brought by plaintiff against the defendant, who is a justice of the peace, residing at Glyndon, Minnesota. The complaint states that on April 8, 1885, the defendant, being a justice of the peace, did of his own motion, no complaint having been made by any person, falsely, maliciously, and without reasonable or probable cause, issue the following false and pretended warrant for the arrest and apprehension of the plaintiff:
STATE OF MINNESOTA, COUNTY OF CLAY-sa.:
..The state of Minnesota to the Sheriff or any Constable of said County: .. Whereas, - - - has this day complained in writing to me on oath that - - - , on the twenty-eighth day of October, A. D. 1884, at Glyndon, in said -county, H. Dell Cooke, on being required to sign a recognizance to appear at the next term of the district court for the county of Clay, did beg to be ex-cused from the same, and did agree to consult with the county attorney of said -county as to the necessity of his being present at said term of said court, and did agree to report to me, by a note from the said county attorney, the result of said consultation, the intention of this court being to excuse him from signing the recognizance only in case of direct permission of said county attorney; and wherea.s, said Cooke did fail to report the result of any such visit to me, but, instead, did leave the state privately, and without signing the said recognizance: now, therefore, the said Cooke is Charged by me with contempt against the form of the statute in such case made and prOVided, and against the peace and dignity of the state of Minnesota. Now, therefore, you are commanded forthwith to apprehend the said H. Dell Cooke, and bring him
before me, to be dealt with according to li!w, and you are also commanded to summon material witnesses in said complaint to appear and testify concerning the same. "Given under my hand this eighth day of April, 1885. "WILLIAM H. BANGS, Jr., J'ustice of the Peace."
-That by virtue of said warrant the plaintiff was arrested, 'hlrQught before this defendant, and, without hearing any evidence, the defendant imposed a fine agaiIist plaintiff of $24.30, including costs; and in default of payment adjudged that he be confined in the county jail for two days; and that, on his refusal to pay said fine, plaintiff was taken to Moorhead, in charge of an officer, and imprisoned in the countyjail of Clay county for 24 hours. That at the expiration of that time he was taken before a court commissioner on a writ of habea8 corpus, who, after due hearing, adjudglOld and determined that the charge against this p)aintiff was, false, sham, illegal, and void, and that plaintiff be then and there discharged from CUEltody, fully acquitted, and that said prosecution is Wholly ended and determined. For a second cause of action;plaintiff alleges that on the fifth day of June, 1885, the defendant issued another commitment, for thesame charge and judgment as before, authorizing this plaintiff: to bidm.prisoned in the county jail for the space of two da.ys, and by, virtue thereof he was imprisoned, in the county jail for the space of 12 hours; and on the sixth day of June, 1885, on another writ otkabeas Corp1J,8, was examined before said court commissioner, who, after hearing the case, adjudged and determined that said arrest and imprisonment were malicious, ,illegal, and void, and then and there ordered the plaintiff to be dischaJ;'ged out of custody, fully acquitted, and that the said last tio» is wholly ended and determined. The defendant answered, denying malice, and justifying his actions in the premises. The case came on· trial, and with It jury, and the defendant to any evidence being introduced, tending to show malice on ilie part of the defendant, on the ground that no action would lie against a justice of the peace who was acting within his jurisdiction, even if, malice were shown to exist. O. MOsne88 and C. K. Davis, for Cooke, appellant. F. D. Larrabee and Gordon E. Cole, for appellee.i
BREWER, J. The question which was argued and submitted is one of great public importance, and that question is this: Under what cumstances can 1\ justice of the peace be held liable to a civil action for damages for an act done by him in his ca,pacity as justice of the peace? Nothing is more important in any country than an independent judiciary; and nowhere is it so important, so absolutely essential, as under a popular government. No man can be a good judge who does not feel perfectly free to follow the dictates of his own judgment ,wheresoeve,r they may lead him. And in a country where the people rule, aud where popular clamor is apt to sway the multitude, nothing is more important than that the judges should be kept as independent as possible. And it is universal experience, and the single voice oLthe law-books, that one thing essential to their independence is that they should not be exposed v.31F.no.11-41
to a private adtiSn for damages for anything that they may do as judges. It goes without saying that no man would feel free if he knew that, the moment that his [email protected]
not liable to a Civil, hiction for' liny; §:udicial .act dohe' wIthin' their diction." , A more extensive in the case of Bradley v. Fisher, 13 Wall. 335, where the court go a step further,and hold that judges of courts of reodrd of superior or general jurisdiction are not liable to civil actions for their judicial acts, such acts are in excess of their jUrisdiction, and toh.ave been done maliciously or This was ,all that was necessary todeciqe; peoause the a a .superior ,court. caM there .is a very careful exposition of the reasons which' underlie the rule; and that the court, affirm,both in the case of Randallv. Brigham, and in the case whichlhavejust cited, the rule that justices; as well as all !iability to an action other for acts done \Vlthlll IS made clearer by opinion .of 'Mr.J u'stice ,p AV:tS, with whom concurred, Justi'ce CLIFFORD:
"I agree jndicial officers are exempt from responsibility inaci.Vilaetion for all 'their jUdicial acts in. respect to matters of controversy within their jurisdiction; I agree, further, that jUdges of superior or general authori;ty are equally exempt from liability; even when they have exceetled their diction, unless the.acts complained of were done maliciously or corruptly; But 1 dissent from the rule .laid down by the majority of the doutt, that a jUdge is exempt from liability 'in a case like the present. where it is alleged, not only that his proceeding was in excess of jurisdiction. but that he acted corruptly." He dissented. :¥one upont1;Iatproposition. In the supreme court o'f this state J against the judge of a court of record, it is true, in the case of Stewartv. Cooley, 23 Minn. 350, it was held that "no private action could be maintained upon any of these acts, deciSions, 6r omissions, however erroneous they may have been, or by whatever motivel! prompted. An independent judiciary is justly re. garded as essential to the public welfare and the best interests of society. Hence the doctrine has become settled that for acts done in the exercise of judicial authority, clearly conferred, an officer or judge shall not be held liable to any one in a civil.action. so that heroay feel free to act upon his own convictions, uninfluenced by any fear or apprehension of quences personal to himself." Obviously, they do not limit it to judges of a court of record, forthey say, "an officer or judge;" so, whatever may be the decisions elsewhere, or other expressions of opinion, I think it is settled law for this court that no judge is amenable to a civil action for damages for an act done within his jurisdiction, no matter how malicious or corrupt may have been his Illotives. . But the further question arises as to the rule when an act of a justice of the peace isihexcess of his jurisdiction, and done maliciously. Can he, in such a case, be made amenable to a private action for ages? Here, the authorities are far from being in accord.! find no express adjmlication on this question in the supreme court of the United States. A distinction should be but has not always been drawn, and that is between a caSe where a justice of the peace is acting simply in
excess "of bis jurisdiction, and one in which he attempts to act in respect to a subject-matter of which he clearly has no jurisdiction. That distinction is noticed in this case of Bradley v. Pishm-, supra, and it is very important to be borne in mind: " Adiatinction must be here observed between excess of jurisdiction and a clear absence of all jurisdiction: over the sUbject-matter. ,Where there is clearly no jurisdiction over the ,subject-matter, any authority exercised is a usurped authority; ,and for tho. exercise of such authority, when tho want of is known'to the Judge, nO excuse is permissible. But where jurisdiction over the subject-matter 'is invested by lliw in the judge, or in the court wh1ch:he holds, the manner and extent in which the jurisdiction shall . be exercised 'are :generally as much questions for his, determination as any involved in the,pase, although upon the cOrrectness of his deother tennination ip these particulars the validity of his jUdgment may depeml. Thus, if a ,Probate court, invested only with authprity over, wUls, and, the settlement of estates of deceased persons, should proceed to try parties for public offenses;jll1'isdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its jUdge, his commission would &ffol'd nQ, protection to him in the exercise of the usurped authority. But if,onthe'otller hand, thejudge of a criminal court, invested with generalcriminaljurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law :plade an offense, and proceed to arrest and trial of the party charged with such act, or should sentence the party convicted to a greater punishment than that authorized by the law, upon its proper construction, no personal liability to civil action for, such acts would attach to thejudge, although those acts would be in excess of his jurisdiction, or of the jurisdiction court held by him; his general for these are particulars for his judicial jurisdiction .over the subject-matter is invoked. Indeed, some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his· jurisdiction, or thataf the court held by And the him, or the'mannerin which the jurisdiction shall be same principle of exemptipn liability which obtains for errors committed where there is j1Jrisdiction of both subin the ordinary prosecution ject and person, applies in casE1s of this kind. and for the same reasons." Many' illustrations be suggested. A justiqe of the peace in most states, and in this, has no jurisdiction to try a man for felony, or to sentence to the ,penitentiary. That is a subject-matter which is entirely outside of his jurisdiction. lfhe assumes to try a man for manslaughter, and sentences him to the penitentiary, he is proceeding in a direction which is entirely o.utside of the scope of his jurisdiction.. On the other hand, he may have jurisdiction of assaults and batteries"and does in most states. Suppose he pr()ceeds to try a man chll:rged with assault and battery, and suppose, in fact, the assault and battery was committed outside of the county over which his jurisdiction then, although his judgment would be erroneous, and in excess of his jurisdiction, yet, having jurisdiction of the subject-matter of assault and battery, and of th.e person the defendant, it lies with him to whether such particular assault and battery comes within his and his determination, though erroneous, ought not to subject him to an action for damages. He has jurisdiction of the subject-matter, and it is for him to determine whether the case is within hisjurisdic-
tion. He has the to determine the question; and although he may determine wrongly, and although it may be a case which does not come within the limitation of his jurisdiction, and although he may have exceeded his authority, yet he had the power and the right to determine whether or no he had that jurisdiction, and it cannot be said to be a case wherein the entire subject-matter was outside of his jurisdiction. . In two cases cited, which I have examined with some care,-the cases of RutherJ(Yf'd v. Holmes, 66 N. Y. 368, and of Vaughn v. Oongdon, 56 Vt. 111, in both of which cases there wasadissentingopinion,-the majority of the court failed, as it seems to me, to recognize orapprecillite that distinction. In the latter case, the complaint filed before the justice charged an ofl'ensebarred by the statute of limitations, and the majority of the court held that the act of the justice in issuing the warrant was beyond his jurisdiction, and that he was liable for damages. Mr. Justice; POWERS, in his dissenting opinion, draws this distinction very clearly and justly,and holds that, where a complaint was filed before a justice of the peace charging anofl'ense whose general nature was within his jurisdiction, it was for him. to determine whether that particular offensewas cognizable by him, and that for any error on his part in that respect he ought not to be held liable. There is a very long citation of authorities in the discussion of the principle in that dissenting opinion. I think that distinction becomes important in this case. This is in some respects not unlike the case of RutherJ(Yf'd v. Holmes, 66 N. Y. supra, where a justice of the peace adjudged a person in contempt, and the majority of the court held him amenable to an action for damages because he erred in that particular matter in adjudging i".:1a party guilty of contempt, and committing him. Two judges there dissented. A justice of the peace had power at the common law, and has power under your statutes, to punish for contem pt. Now, if the statutel:l took away from him all power to punish for contempt, then it might well be argued that, jJ he attempted to exercise that power, he was proceeding In a matter over which he had no jurisdiction. The entire subject-matter was taken from ;him. He was usurping authority just as plainly as if he a man for murder. But where, by clear authority coming down from the common law, and under all the limitations imposed by your statutes, he has power to determine whether a man is guilty of contempt through disobedience of his legal orders and processes, then, if he determine that question, it cannot be said that he is walking in territory over which he has no jurisdiction, but only that he is attempting to determine whether the particular case is one which brings the party within the scope of the law. Whether he determines rightly or wrongly,-whether he is mistaken or not,-he has determined the question of jurisdiction judicially, having jurisdiction over the subjectmatter, anCl. that this party was in contempt; and, having made suchjudicial determination, I see no reason or principle why he may not be accorded the immunity which is accorded to any other judicial officer. Of course, it becomes a very close question when you come to the second count in this complaint; for there it is charged that after the
habeaS corpuS' had 'issued, and the plaintiff discharged, a second warrant ofcommitmentwfis issued, and the plaintiff agiiin incarcerated; and the claim is made, and forcibly made, that such an acton the part of the justice was a clear invasion of the privileges which are sacredly guarantied to the individual under the writ, of habeas COTpU8., It is very doubtful whether this action of this justice was not in respect to a subject-matterover which he hOOno'jurisdiction; and yet, while it is doubtful, 1 still think that: the protection which should be accorded to him goes with him in that respect.: The writ of habeas corpus lies to discharge a ,person from any illegal imprisonment. It U1ay be illegal because the writ which: the officer holds is technically deficient; it may be illegal be-cause the proceedings6fthe court which ordered the commitment are so 'far ,irregular that they cannot be sustained; or it may be because the officer or judge who isstied the' bommitment had no power in the prem-ises.When:a party ispischarged while under commitment, the judge who. in the first instance issued that commitment may have the power to inquire upon what the discharge was granted, and to determine whether the case is one where a second warrant should issue. As I suggested during the argument, if a man is convicted, in a coutt of proper jurisdiction, of the crime of manslaughter, and all the proceedings in court down to the juclgment are regular, but the'lllittimus which is issued is technically deficient, ,in that the seal of the court is not affixed to the a writ. of habeas COrplL8 may discharge the prisoner from that confinement; but would it, even if the judge issuing the writ of habeas corpus shouldhoL1 that it released him from the whole burden of that sentencer-would it preYent thEi trial court from issuing a new commitment, with the seal of the court attached, based upon the judgment already entered, and sending the defendant to the penitentiary? A trial courtr the court which issued the commitment,may not in all cases be absolutely debarred, from the mere fact that a party is discharged upon habeaacorpU8, from the power of inquiring into and determining whether the mise is one in which a second writ of commitment can issue. At least, his action in that respect cannot be held to be in respect to a matter over which he clearly had no jurisdiction. Of course, the officer arresting a party cannot arrest him upon that first writ, because it has beenexhausted,-it has become functu8 officio; but the trial court may have the right to inquire whether the circumstances are such that a new commitment shall. issue. The defendant in this case, in issuing this second warrant, I think, clearly acted erroneously. But the proceeding, although erroneous, Was within the limits of a jurisdiction vested in him, for he -had jurisdiction over the matter of contempt; and it seems to me that the public policy which requires an independent judiciary cOlllpels that he' should be held not amenable to a civil action for damages. The objection to the intraductionofthetestimony is sustained. .
LIBBY V. OROSSLEY.
(Oircuit Court, D. Maasachusett8. July 29, 1887.)
A debtor assigned to his four brothers, to whom it was claimed he owed about $57,700, an unsettled claim for fire insurance money, for an expressed consideration of $60,000, the ditIerence between the two amounts being made up by cash contributed in varying sums by the several brothers. The brothfor wages ers. who were aU under 40 years of age, were mechanics, which were large, but hardly sufficient to enablethem to maintain themselves, and to accumulate so much money. Afterwards tbe claim against the insurance companies was fixed by settlement at $57,500. Held, in a controversy between the brothers and an attaching creditor, whose claim was due when the assignment was made, that, although the testimony was open to suspicion, yeti being uncontradicted, the bona fides of the transaction was estabJished, and that the'assignees should take the fund.
At Law. '. JaB. McKeen and Oliver 0. Steven8, for plaintiff. ThamaB Hilliaand John Hillw, for claimants.
CARPENTER, J. This action was brought by attachment of the funds of the defendant Crossley in the possession of certain insurance companies, who have answered, disclosing funds which have since, by settlement, been ascertained to amount to $57,500, and also disclosing the facttbat they have been notified of an assignment of the funds. The assignees were then cited in, and the case has now been heard on the question of charging the trustees. The writ in this case was served by attachment, April 2, 1886. The assignment was made January 8, 1885, and,.for a consideration of $60,000, purports to assign all sums of money due from the companies who are served as tr,ustees in this action. The assignees, who here appear as claimants, are brothers of the defendant. It appears by the testimony that, on the day the assignment was made, the defendant was indebted to his brothers for various advances of money theretofore made, and for interest thereon, amounting in the whole to $57,772.77; and that on that day they paid him in cash, in various sums contributed by each of them, an amount sufficient to bring the sum up to $60,000, and took from him the assigi.ul1ent. The plaintiffs contend that this assignment is void, because it was made. to hinder, delay, and defraud creditors. At the time of the assignment, as is 'ascertained by the judgment in this case,. the defendant was indebted to the for.a sum .above $12',000... This claim appears to have been in dispute,but,for the purpQj3e Of dispussion, I it'hlust pe'assurne'd that there. was a valid debt. On the other hand, he was indebted' to his brothers ina sum above $,5.0;000, besides interest: Underth!lse circumstances, I am not prepared to say that the transaction was' other than a preference of' one creditor over another, and therefore not within the statute of Elizabeth against fraudulent conveyances. I have therefore reached the conclusion