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Kendall v. Stokes. 3 H.

manner as he is liable to an action for an act beyond his jurisdiction. The refusal to do the ministerial act is as little within the scope of his functions as judge, as the act where his jurisdiction is exceeded. In the act beyond his jurisdiction, he has ceased to be a judge."

And the house of lords, without a dissenting voice, affirmed, on the above principles, the judgment.

2. An officer is liable where he does an act injurious to another, which is clearly not within his jurisdiction.

In the case of Tracy et al. v. Swartwout, 10 Pet. 95, this court say: “It would be a most dangerous principle to establish, that the acts of a ministerial officer, when done in good faith, however injurious to private rights, and unsupported by law, should afford no ground for legal redress. The facts of the case under consideration will forcibly illustrate this principle. The importers offer to comply with the law by giving bond for the lawful rate of duties; but the collector demands a bond in a greater amount than the full value of the cargo. The bond is not given, and the property is lost, or its value greatly reduced in the hands of the defendant.

Where a ministerial officer acts in good faith, for an injury done, he is not liable to exemplary damages; but he can claim no further exemption where his acts are clearly against law.”

In the language of Lord Campbell, above cited, “ where a judge does an act, which is clearly beyond his jurisdiction, he ceases to be a judge.” And if he cease to be a judge, all the immunities connected with his official character, as relates to the act, also cease.

The treasurer of the United States, in the exercise of his discretion, withholds the salary of a judicial or other officer, on the ground that such officer has not faithfully discharged his duties. Now this is a matter about which the treasurer can exercise no discretion. He is, therefore, liable to an action. And on this principle, any and every officer may be made responsible for injuries done to another.

3. That an officer is liable where he acts wilfully, maliciously, and unjustly in a case within his jurisdiction, would seem to result from the foregoing considerations. But, as there is no pretence that this action is to be maintained on this ground, I shall not consider it further than to say, that the law is clear where the facts are established.

The third instruction prayed by the defendant, and refused by the court, is as follows: “ If the jury, in addition to the facts above supposed in the last preceding form of instruction, further find, from said evidence, that the defendant, in refusing to credit plaintiffs with such parts of the solicitor's awards as he refused to credit them with

Kendall v. Stokes. 3 H.

as aforesaid, acted from a conviction that the solicitor had ng lawful jurisdiction or authority to audit, settle, or adjust the claims or items of claims upon which he awarded the several sums of money, constituting the sum of what defendant refused to credit them with as aforesaid, and from a conviction that it was therefore his official duty to refuse to credit them with so much of the amount awarded by the solicitor as aforesaid; and if plaintiffs suffered no oppression, injury, or damage, from such refusal of the defendant, but the inconvenience necessarily resulting thereupon, then he is not liable to plaintiffs in this action for such refusal."

This instruction, as the one preceding it, rests the liability of the defendant upon the intention with which the act was done; and consequently, however injurious it might have been to the plaintiffs, if done with a bona fide intent, they are without remedy. This principle has been examined under the preceding instruction, and nothing further need here be said, than that this court, in the mandamus case above cited, held that the act referred to in this instruction was ministerial; that the defendant had no discretion over it, but was bound to enter the credit under the act of congress. And for not doing so, they held he was liable to an action.

The fourth instruction refused was, "that the defendant is not liable in this action for any of his said acts in the premises, if, in addition to the facts supposed in the last two preceding forms of instruction, the jury believe, from the whole evidence, that he acted in the premises with the bona fide intention to perform duly the duties of his office, and without malice or intention to injure and oppress the plaintiffs."

The record shows no evidence of malice against the defendant below. His liability on other grounds has been already discussed.

The third and last bill of exceptions, was, " the plaintiffs, further to support the issues on their part, above joined, produced and offered evidence to prove their special expenses, losses, &c., in consequence of the defendant's acts in the premises, to wit, such expenses and losses as are set out in the papers annexed, marked A, B, C, D, (copied in pages 633–638;) and also their expenses and losses in the form of bank discounts, paid by Stockton and Stokes, on post-office acceptances, and interest paid by them on money borrowed from May 30, 1835, to November 9, 1836, amounting to $9,749.14, a particular account whereof (being the same as the document 52, annexed to the solicitor's report above given in evidence by plaintiffs) they produced, as taken from the books of Stockton and Stokes, and proved that all the original entries in the said account were in the handwriting of one A. Matter, at that time the clerk who

Kendall v. Stokes. 3 H.

kept the said books, and has since deceased; and further evidence to prove that Stockton and Stokes were in good credit up to May, 1835, when said suspensions were made by order of the defendant, and that their credit was afterwards destroyed in consequence of such suspensions.” To the admission of which evidence defendant objected, but the court overruled the objection. This objection goes to the entire evidence in the case. And although a part of that evidence thus objected to should have been overruled, if specially objected to; yet as the exception extended to other evidence clearly admissible, it was properly overruled. This point has been so often decided, and is, in itself, so evident, that I shall not cite any authority. The objection, to prevail, must always be limited to that part of the evidence offered, which is incompetent.

Does the mandamus suit bar this action ? My brethren think it does; in my opinion it does not.

There is no plea in bar, and how the proceedings by mandamus can constitute a bar, without being pleaded, I am at a loss to determine. It is true, those proceedings were given in evidence by the plaintiffs, to show what expense they had incurred, in prosecuting that suit, for the balance of the award, which should have been credited promptly by the postmaster-general. But how can this constitute a bar to this action ?

What was the object of the mandamus; not to recover money, but to obtain an order from the court directing the postmaster-general to enter a credit to the plaintiffs for the balance of the award, on the books of the department. And such an order was made by the court, in pursuance of which the credit was given. The act of the 2d of July, 1836, referred the claims of the plaintiffs against the post-office department, to the solicitor of the treasury, who was authorized to make them “such allowances, therefor, as, upon a full examination of all the evidence, may seem right according to the principles of equity; and that the postmaster-general be, and he is hereby directed to credit the plaintiffs with whatever sum or sums of money, if any, the said solicitor shall so decide to be due to them, &c.” The solicitor reported in favor of the plaintiffs $161,563.89, as the amount of principal and interest due to them by the department. Of this sum $122,101.46 were credited to the plaintiffs on the books of the department. But the postmaster-general refused to credit the balance, and for this cause the mandamus was brought.

Could the mandamus have been pleaded in bar of the present action? The objects of the two suits are entirely distinct. By the mandamus, a credit for the full amount of the sum awarded to the plaintiffs was sought. By the present action the plaintiffs seek to

Kendall p. Stokes. 3 H.

recover damages sustained by them, in their business as contractors for the transportation of the mail, by reason of the suspension of more than $120,000 which they had earned, and which had been allowed and credited to them by the predecessor of the defendant; but which the defendant had recharged against them. And also for the refusal to credit $39,000 of the award, as the law required.

Notwithstanding this suspension and refusal, the plaintiffs allege that they were required rigidly to perform their contracts with the department, which they did at a great expense and sacrifice; and that in the prosecution of their rights, they were subjected to great expense in employing counsel, loss of time, &c. This is the foundation of the present action. And it is only necessary to state it to show that the mandamus, if pleaded, could have been no bar. The two actions are distinct in their character and objects, and also in the evidence on which they rest. Interest was allowed to the plaintiffs for the sums of money withheld from them by the department; but no allowance was made by the solicitor to the plaintiffs for the consequential damages sustained by them in the premises. The evidence acted upon by the solicitor, as stated in document 52, was before the jury, but the plaintiffs could claim no item which had been allowed by the solicitor. The sums allowed by the solicitor had been credited to the plaintiffs. Those sums, therefore, constituted no part of the present case. Still, the document was proper evidence to prove the award of the solicitor, as a part of the proceedings in the mandamus case. Indeed, the record in that case was properly received as evidence to show the delays and expenses to which the plaintiffs were subjected by the acts of the defendant.

It is said that in an action against the postmaster-general, the sum awarded might have been recovered, and also the damages claimed in this action, if such damages constitute a legal right of action. And from this an argument is drawn in support of the position, that the mandamus suit bars the present action. The force of this argument is not perceived. For if the damages as above stated could have been recovered by an action against the postmaster-general, it does not follow that the same damages were recoverable by the mandamus. In fact, no damages were recovered by the mandamus suit. It is true that that proceeding would bar an action on the award, as it procured a credit to be entered for the amount of the award. But the solicitor was not, by the act of congress, authorized to inquire, and he did not inquire into any consequential damages suffered by the plaintiffs, beyond the interest on the sums suspended. And the present action is brought for the consequential injuries sustained by the plaintiffs, under the peculiar circumstances of the case.

Er parle Dorr. 3 H.

From this view it must be apparent that the mandamus suit, if technically pleaded, could be no bar to this action. The history of judicial proceedings, it is confidently believed, affords no similar bar to this, which has been sustained. Nor does the award constitute a bar, for the reason that the arbitrator did not allow, nor was he authorized by the law to allow, a single item which is claimed in the present action. All the items allowed by the arbitrator were before the jury, as they could not be separated from the proceedings in the mandamus case; but all those items were shown to have been credited to the plaintiffs, and, therefore, the plaintiffs could not insist that those items should be any ground of recovery in this action.

therefore, that the evidence in this action, on which the verdict was rendered, is the same as that in the mandamus suit, is, in my judgment, wholly unsustained by the facts in the case. I think the judgment of the circuit court should be affirmed.

4 H. 131 ; 12 H. 284.

To say,

Ex PARTE DORR.

1031 3931 191 132 597 234

3 H. 103. No court of the United States can issue a writ of habeas corpus to bring up a prisoner con

fined by state process, for any other purpose save to examine him as a witness. A writ of error cannot be allowed on the application of the friends of a party, without

authority from himself. 27 [ * 104 ] * TREADWELL moved for a writ of habeas corpus to bring

up Thomas W. Dorr, of Rhode Island.

M'LEAN, J., delivered the opinion of the court.

Thomas W. Dorr was convicted before the supreme court of Rhode Island, at March term, 1844, of treason against the State of Rhode Island, and sentenced to the state's prison for life. And it appears from the affidavits of Francis C. Treadwell, a counsellor at law of this court, and others, that personal access to Dorr, in his confinement, to ascertain whether he desires a writ of error to remove the record of his conviction to this court, has been refused. On this ground the above application has been made.

Have the court power to issue a writ of habeas corpus in this case ? This is a preliminary question, and must be first considered.

The original jurisdiction of this court is limited by the constitution to cases affecting ambassadors, other public ministers, and consuls, and where a State is a party. Its appellate jurisdiction is regulated by acts of congress. Under the common law, it can exercise no jurisdiction.

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