
    William S. Harvey v. Charles Huggins.
    Where the Court possesses jurisdiction, irregularity in the process is no justification to the sheriff, in an action against him for the escape of a prisoner, confined under such process.
    The Court of Common Pleas will not question the regularity of process awarded by the Court of Equity, in a cause, of which that Court possesses jurisdiction. They are co-ordinate tribunals, and each is the exclusive judge of the form of its own proceedings.
    Where, after a voluntary escape, the defendant, of his own accord, returns to prison, the plaintiff, if he did not consent to his liberation, may elect to consider the defen dant as still in execution, or to charge the sheriff for the escape.
    In an action against the sheriff for the escape of a prisoner in custody under process from the Court of Equity, the proceedings in that Court, on an application by the prisoner to discharge the process, under which he was confined, are admissible in evidence.
    Justices of the peace and quorum have no jurisdiction in cases of habeas corpus, unless the prisoner is confined for “ criminal, or supposed criminal matter.”
    Whatever be the form or title of a process, it cannot be regarded as ■ criminal process, except so far as it is employed to induce or enforce punishment for some criminal offence.
    The judgment of a Court of limited jurisdiction in favour of its jurisdiction, is not conclusive.
    An order by a justice of the peace and ajustice of the quorum, to discharge a prisoner confined under civil process, and who was brought before them under a habeas corpus, is no justification to the sheriff, in an action against him for an escape.
    A verdict will not be set aside for excess of damages, where the amount of damages depended upon facts and circumstances, of which the jury were the proper judges.
    Tried before Mr. Justice Kichardson, at Georgetown, Spring Term, 18^0.
    This was an action of trespass on the case. The declaration contained four counts; the two first of which charged the defendant with wilfully neglecting, as sheriff of Georgetown dis~ trict, to make a levy under process of execution from the Court of Equity; the third charged that he combined and confederated with the defendant in the same execution, and with other persons, to eloign beyond the jurisdiction, certain property, which was subject to the execution; and the fourth count was for the voluntary escape of a prisoner, in custody of the defendant as sheriff, under process from the Court of Equity. Plea, not ■ guilty, to the whole declaration. The verdict of the jury having, in effect, excluded the three first counts from consideration in the present appeal, it becomes unnecessary to detail more of the evidence and proceedings in reference to them, than may be necessary to elucidate the case made under the fourth count.
    In February, 1820, the present plaintiff, by a decree of the Court of Equity for Georgetown district, recovered against John R. Murrell the sum of five thousand nine hundred and ninety-six dollars and thirteen cents, with costs of suit: And, in order to compel payment of this sum, successively sued out of the said Court, and lodged in the sheriff’s office, a writ in nature of a fi.fa. an alias, pluries, and second pluries. The two first of these were returned nulla bona; under the first pluries, which was lodged in 1823, Murrell’s land was levied on and sold; and under the second pluries, which was lodged 26th March, 1825, three negroes were levied on and sold in October, 1825. The sales of the land and the three negroes produced, together, the sum of three thousand six hundred dollars, leaving, at the date of the last sale, a residue of four thousand five hundred dollars due for principal and interest of the decree.
    Previous to the suing out of the secondpluries, to wit, on the 9th of February, 1825, on affidavit by the present plaintiff, that he* had good reason to believe, and did believe, that active measures were taking, or had been taken, to remove certain negroes of Murrell’s out of the jurisdiction, it was ordered by the Court of Equity, Chancellor Desaussure presiding, that a writ in nature of a ne exeat should issue, to compel Murrell to give good and sufficient security, that none of the property owned by him, or claimed by him, in his own possession, or in the possession of any other person for him, or which had been within one month in his possession or otherwise, and subject to the plaintiff’s execution above-mentioned, should be removed beyond the jurisdiction of the Court. On the same day a writ, intitled a writ in nature of a ?ie exeat was sued out, to take the body of until he should give security conformably to the order; and was lodged with the present defendant as sheriff, who two days afterwards arrested Murrell, and committed him to gaol by . , ,, n virtue thereof.
    Soon after Murrell’s arrest, a negotiation was entered into with him by Dr. Wragg, a friend and agent of the plaintiff, with a view to an amicable adjustment of their differences ; and articles of agreement were drawn up, in which it was stipulated, that Murrell should, within fifteen days, surrender all his negroes, with the exception of eight, of which it was agreed that he should have the use during his life, but that after his death they also should be subject to the plaintiff’s execution. These articles were signed in duplicate on the 7th April, 1825, both by Murrell and plaintiff, each retaining a copy. Nothing was stipulated in them as to Murrell’s continuance in, or discharge from confinement, previous to his making surrender of his negroes. After the articles had been signed, and on the same day, on Murrell’s stating that it was impossible for him to fulfil the articles by surrendering his negroes, unless he were set at liberty, Dr. Wragg gave a written order to the sheriff, informing him that as agent of the plaintiff he had made arrangements with Murrell, which rendered his further confinement unnecessary to secure any debt due to the plaintiff, and directing, therefore, that he should be discharged upon payment of 1ns gaol fees. Mr. Wilkes, a witness, testified, that in a conversation with plaintiff, the latter stated that Dr. Wragg was fully authorized to make any arrangement with Murrell for the settlement of plaintiff’s claims upon him, and that whatever terms were agreed to by Dr. Wragg would be satisfactory to him. This conversation, however, took place a day or too before the articles of agreement were signed. The sheriff released his prisoner, as directed by Dr. Wragg’s order, without taking security as he was required to do by the writ; and Murrell remained at large until the 14th June, when he returned to gaol of his own accord, and there remained, not having surrendered any of his negroes, as by the articles he had agreed to do.
    In September, 1825, Murrell applied to Chancellor Desaussure in chambers, either to be released from confinement, or to have the terms of the order modified; but the application was refused. The proceedings on this application were given in evidence on the trial of the present case, his Honor overruling an objection which was made to their admissibility.
    On the 2d March, 1826,- he was brought before a justice of the peace and a justice of the quorum, under a writ of habeas corpus issued by them, and indorsed “ Per statutum tricessimo primo Caroli secundi Regis, and by the Common Law.” , The sheriff exhibited as the cause of his detainer, the writ in nature of a ne exeat; and informed the magistrates of the former discharge of Murrell by the order of Dr. Wragg, and of his voluntary return to prison, without any new warrant of commitment. The magistrates regarded the further confinement of Murrell as illegal, and ordered him to be discharged. The sheriff discharged him accordingly; and Murrell died shortly after his release.
    It was very clearly established in evidence, that a large number of valuable slaves, the property of Murrell, and subject to levy under the plaintiff’s fi.fa. were eloigned from the jurisdiction, some time in the early part of the year 1825 ; by which means the. execution was disappointed, and plaintiff’s debt remained unpaid. It was also fully made out, that the removal of the slaves was effected by the agency of-Robert Huggins, a cousin of the present defendant; but the evidence which was .offered to connect the present defendant with a conspiracy to defeat the plaintiff’s execution by the removal of Murrell’s slaves, does not appear to have been satisfactory to the jury. There was also evidence of considerable sums of money being in the possession, or within the control of Murrell during his confinement: This, however, is sufficiently referred to in the opinion delivered by the Court of Appeals, to render any further detail of particulars unnecessary. At the trial of the present issue, there remained due to the plaintiff on the decree against Murrell, a residue of principal and interest to the amount of five thousand seven hundred dollars.
    His Honor, the presiding Judge, charged in reference to the fourth count, that the discharge of Murrell, in April, 1825, was wholly unauthorized; and that upon Murrell’s return, he was as lawfully in custody, as if he had never been at large. That the magistrates were authorized to issue the writ of habeas corpus, and the sheriff acted correctly in obeying it, and bringing up his prisoner; but that the moment it appeared, that he was in custody> under civd process, their jurisdiction terminated. That their order for the discharge of Murrell was illegal and void, and the sheriff was not justified in obeying it. His Honor, however, remarked, that the sheriff was in some degree excusable, inasmuch as to disobey a legal order under a habeas corpus would have subjected him to heavy penalties: That the sheriff was in fact between two fires, and although he had violated the strict law, yet if he had acted in good faith, the jury were at liberty in this form of action, to give nominal damages ; and as Murrell had died shortly after his release, little injury to the plaintiff could have resulted from his discharge.
    The jury found for the plaintiff the sum of three thousand two hundred dollars, on the fourth count.
    The defendant moved to set aside their verdict, and for a non-suit, or a new trial; on the several grounds, that the fourth count, on which a verdict had been found for the plaintiff, contained no cause of action against the defendant; that the proceedings before Chancellor Desaussure were improperly admitted in evidence; that the verdict was contrary to law and the evidence; and that in any case the damages were excessive, and altogether unwarranted by the evidence.
    Duniun, and Hunt, for the motion.
    Contended, that the writ, under which Murrell had been arrested, was a process unknown to the laws and the constitution, and in the highest degree arbitrary, tyrannical, and unreasonable. It required Murrell not only to exercise a control over property in his possession, but over any which might have been in his possession a month before, and over which he might have lost all control. Independently however, of its unreasonableness and injustice, the writ itself was utterly illegal and void; and neither justified the sheriff in making the arrest, nor rendered him responsible for discharging his prisoner, after he had been arrested under it. The case of Edmonds v. Crenshaw and McMorris, 1 M’C. Ch. 252, in which a ne exeat and commission of sequestration were ordered, is not in point. The process in that case was awarded pendente lite, to compel an answer: but here the defendant, had already answered; the decree had been pronounced, and the suit had become in every respect res judicata. The plaintiff was intitled to nothing more than process of execution; and the only compulsory process for that purpose, under the English practice, was an attachment. 1 Harrison’s Ch. Pr. 442. To which the act of 1785, P. L. 361, has added the writ in nature of a fi.fa. The process in question, therefore, purporting to be a ne exeat, is, on its face, a process which the Court of Equity had no authority to award after decree.
    If disregarding the title which the Court of Equity has itself given to this process, we were to consider it a legitimate attachment to compel performance of the decree, there is still a fatal objection to it, apparent upon its face. An attachment to enforce a money decree, is in its nature and effect a ca. sa.; and a defendant confined under it is intitled to his discharge under the insolvent debtor’s act. Lowe ads. Blake, 3 Desaus. 269. Exparte Perkins. Ib. 549. No reason can be given, why a creditor should in Equity, any more than at Law, be allowed to proceed upon a fi. fa. and a ca. sa. at the same time. 1 M’C. 176. And yet, the process in this case directs the arrest of the defendant, for the express purpose of compelling him to surrender property, in order that it may be levied on under a fi. fa. whilst the plaintiff is actually proceeding on his ca. sa. and after the debt itself had, in contemplation of law, been satisfied by the arrest of the body of the debtor. 2 Bay, 209. •
    It will be said, however, that the legality of the writ was not a question for the sheriff; but that he was bound to obey the mandate of the Court without inquiry. This would be true, if the process had been irregular merely: But where the process is illegal, the sheriff executes it at his peril; and of course is intitled to decide whether he will incur the peril or not. In Ray v. Hogeboom, 11 Johns. 433, the sheriff suffered a debtor to escape after arrest. The debtor was a soldier of the U. States’ army, and thereby privileged from arrest; and, it was held, that the process was void, and that the sheriff was not liable. So here the process was not irregular merely, but absolutely void. The Court of Equity had no power to award such process. It possesses no authority to coin new writs at pleasure. Its powers and jurisdiction are derived entirely from the grant of the Legislature ; and the Legislature have provided that its process and practice, shall be regulated by the practice of the English Chan-eery, except where the Legislature itself may direct otherwise-, v^e acts -*-721, P. L. 110. and of 1791, 1 Faust, 29. Now there is neither in any act of the Legislature, or in any precedent, in any of the books, any warrant or authority whatever, for the process now in question. And it issued, therefore, without authority, and was-utterly null and void.
    Admitting, for a moment, the legality of the process, under which Murrell was originally confined, yet the written order of Dr. Wragg, the agent of the plaintiff, for the discharge of Murrell, not only justified his release, in April, 1825, but rendered the process itself afterwards inoperative. Murrell’s subsequent voluntary return to prison made no difference ; it could not revive the process, nor authorize his being detained against his will. The plaintiff, having consented to the discharge of his debtor, could not afterwards enforce the same process, or any other founded on the same decree. On this point the authorities are clear. Vigers v. Aldrich, 4 Bur. 2482. Clarke v. Clement, 6 T. R. 525, Tanner v. Hague, 7 T. R. 416. Blackburn v. Stupart, 2 East, 243. Murrell was intitled to go away as freely as he had come; and the sheriff could not be liable for an escape. But his Honor charged, that the release of Murrell, in April, 1825, was wholly unauthorized. Whether the plaintiff was competent to authorize the discharge of his debtor, can hardly admit of question ; but even if he was not, it is not for him now to say that he was not. That Murrell was discharged by the authority of the plaintiff, was proved abundantly: Dr. Wragg, in the order given by him, styles himself the plaintiff’s agent; the plaintiff himself acknowledged to the witness Wilkes, that Dr. Wragg was clothed with full power as his agent in the business; and besides all this, the plaintiff by his subsequent acquiescence in the release of Murrell, recognized that it had taken place by his authority, and with his consent. His Honor erred, therefore, both as to the law and the fact, in his charge on this point, and the verdict must be set aside for this misdirection, even if there were no other ground.
    With regard to the proceedings before Chancellor Dcsaussure, in chambers, in September, 1825, they have nothing to do with the present case. The present defendant was not a party to, nor is be bound by them. Their admissibility was objected to, and the objection ought to have been sustained. It was over ruled, but now, at least, these proceedings will be excluded from the consideration of the Court.
    If, however, the imprisonment of Murrell had been legal up to the time of his discharge under the habeas corpus, it would not have been so afterwards. Under the act of 1712, P. L. 21, the magistrates had full power to award the writ, and to order the discharge of the prisoner: And the sheriff was bound under the severest penalties to yield implicit obedience to their order. vide 2d. and 3d. sections of the act, P. L. 23-4-5. It will be said, however, that the jurisdiction of magistrates to award a habeas corpus, is confined to criminal cases. Suppose it to be so; yet an attachment is quasi a criminal process. 1 Atk. 58. And the process in this case, if it has any legal character at all, must be regarded as a criminal process ; for its obvious effect and intent was, not to prevent Murrell’s eloigning his negroes, but to punish him criminally for having already eloigned them. Again, it may well be questioned, whether this is not taking too narrow a view of the power of magistrates in relation to the writ of habeas corpus: vide 3 Bl. Com. 130. et. seq. But waiving that question; who, but the magistrates, were to decide whether the case was within their jurisdiction, or not 1 The act gives them the power to decide, and their decision must be conclusive. It is strange, that it should at the same time be contended, that the sheriff had no right to question the legality of the anomalous process, under which Murrell was arrested ; and yet that he was bound to question the decision of the magistrates. Both of these positions cannot be true; and the case resolves itself into this proposition : Either the sheriff had a right to question both, or he had no right to question either; and let the plaintiff choose whichever horn of the dilemma he pleases, he is in neither event intitléd to maintain this action.
    In any view of the case the plaintiff could only have recovered nominal damages. The gravamaii of the fourth count is, that Murrell’s negroes were eloigned; and as it was proved that the negroes were eloigned more than a year before his discharge, the discharge did not, and could not, have produced the injury complained of. The process purported to be ancillary to the Jifa.; and there was not only no evidence that Murrell’s final release in March, 1826, defeated the f.fa., but it is obvious from the whole case, that it neither did, nor could do so. Indepen°f the other circumstances in mitigation of damages, this v>ew of the case is conclusive to shew, that the verdict must be set aside for excessive damages. The jury have obviously estimated the plaintiff’s damages under the three first counts, which they have said by their verdict, that the evidence did not establish; and the verdict is therefore founded in mistake, and on that ground must be set aside. If the damages are regarded as vindictive, the verdict must equally fail: These actions against sheriffs are always ungracious in their character, and neither receive nor deserve countenance from the Courts. In Feeter v. Whipple, 8 Johns. 369, which was an action against the sheriff for an escape, the Court refused to set aside a verdict for the defendant, although it was admitted to be against the weight of evidence. For the same reason, but on far stronger grounds, a new trial must be awarded in the present case.
    Petigru, contra.
    
    There are but two questions for the consideration of the Court in this case: Was the sheriff hound to yield obedience to the process from the Court of Equity ? Was he justified in yielding obedience to the order of the magistrates I And the answer to both depends upon the inquiiy, whether those tribunals had, respectively, jurisdiction of the subject matter. If the Court had jurisdiction, the sheriff had no authority to question the regularity of the process; but he was bound to yield obedience. If the magistrates had not jurisdiction, their order was a mere nullity. Bac. Abr. Escape, A. 1. In Ray v. Hogeboom, 11 Johns. 433, the Court did not possess jurisdiction of the person of the defendant. And every case, which has, or can be cited, will be found to turn upon the same plain and obvious distinction.
    It is not denied that the Court of Equity did have full jurisdiction, of all the matters involved in the suit of Harvey v. Murrell. And yet it is contended, that the process was illegal, and that the sheriff was justified in refusing to obey it. The alleged illegality amounts to this, that the process did not go far enough; but that it should have directed Murrell to be attached until he paid the debt: And because it stops short of this, and directs him to be discharged upon surrendering his property, although it might be insufficient to discharge the whole decree, it is therefore utterly illegal and void. But were the objeotion substantial, according to the rule laid down in all the books, it did not lie with the sheriff to make it. Murrell alone was competent to do so; ■and to have made the objection, he must have gone to the Court of Equity, and moved to set aside the process. The Court of Common Pleas assuredly has no authority to review the judgments of the Court of Equity.
    Then, as to the order made by the magistrates. It would be somewhat strange, if the magistrates possessed an authority to review the proceedings in Equity, which the Court of Common Pleas does not pretend to. In fact they possess no such autho.rity. They have ho jurisdiction in habeas corpus cases, except that conferred upon them by the act of 1712, to carry into execution the statute of 31st Charles the Second, which is confined in terms to cases of commitment for “ criminal or supposed criminal matters.” P. L. 21. But then it is urged, that the process in this case was criminal process. That is not the question. Was Murrell committed for “ criminal or supposed criminal matter” 1 If he was not, then the magistrates had no jurisdiction. It may be conceded, that an attachment is quasi criminal process, and that, according to • the authority from 1 Atk. 58, the defendant may be taken on a Sunday, and that the process in question is quite as energetic. Still all this does not render the cause of Murrell’s imprisonment a criminal matter. And in fact whatever may be the original character of any process, and how great soever the degree of violence which the sheriff may justify under its authority, if it is used as a civil remedy in a private cause, it is quoad a civil process. 1. Harr. Ch. 176. Gilberts’ Forum Romanorum, 72. Gist v. Bowman, 2 Bay, 182. Exparte Thurmond, decided at Columbia, May, 1830. and see Harberts’ case, 8 Rep. 11. a. and Semayne’s case, 5 Id. 91. a. The process in question was used as a civil remedy in a private cause; and the magistrates therefore, had no jurisdiction. Their order was a mere nullity, and affords no justification to the sheriff. Bac. Abr. Escape. A. 2.
    It was urged, however, that the decision of the magistrates in favour of their own jurisdiction, was conclusive. The admission of this principle would put an end to the very idea of a limited jurisdiction. But it is a well settled rule, that to render the judgment of any Court conclusive, it must appear in the first place, that it possessed jurisdiction ’of the cause. Rose v. Himely, 4 Crauch, 241,
    
      These two questions dispose of the whole ease. Every other, ^ich ¡las jjeen raise¿5 was either one purely of fact for the jury, and their verdict is conclusive; or if it involved any point of law, it was one which did not admit of argument. For instance, whether Dr. Wragg was, or was not, authorized to order Murrell’s discharge in April, 1825, was a question entirely of fact. The jury say, by their verdict, that he was not authorized; and they could not, under the evidence, have said otherwise. That he was the plaintiff’s agent, is not denied; but his agency extended no further than to settle the terms of the compromise with Murrell. The release of Murrell was not one of the terms, and the moment that the agreement was made, Dr. Wragg’s agency was determined. This case bears a good deal of resemblance to that of Kellogg a. Gilbert, 10 Johns. 220; where it was held, that an order by the attorney on record of the plaintiff, to permit the defendant in execution to go at large, no satisfaction having been made, was no justification to the sheriff for the escape. An agency of this kind is never to be implied. As has been shewn, the debt would have been discharged, if the plaintiff had consented to Murrell’s release. 4 T. R. 416. And the agreement itself would have been defeated; unless perhaps the act of 1815 might be held to apply.
    
    Again, as to the legality of Murrell’s confinement after his return, the law is equally plain. As the plaintiff had not consented to his going at large, he had an undoubted right to elect, whether he would again charge the defendant in execution, or the sheriff for the escape. Bac. Abr. Escape, C. Ib. E. 1. This question, however, was decided by the proper tribunal, when Chancellor Desaussure refused the application made in September, 1825. The admissibility of the proceedings under that application has been objected to, on the ground, that it was res iiiter alios acta. If the objection were worth any thing, it would apply with equal force to the decree against Murrell, and the process under which lie was confined, and to the proceedings under the habeas corpus. But the objection is specious merely, the proceedings were part of the res gestee, of which the sheriff was bound to take notice. Stark. Ev. 1 part. 52-3. If the application had been granted, it would have justified the sheriff in discharging his prisoner; and its refusal establishes, that the prisoner was not intitled to a discharge.
    The .only remaining question, the amount of damages, was also one exclusively for the jury. It is a mistake to suppose, that the amount was estimated by the three first counts, fiad that been the case, the verdict must have been for the whole debt. It is, however, for much less; and it is obvious, that the jury were governed in their estimate of the damages, by the evidence relative to the moneys proved to have been in the possession or under the control of Murrell, during his confinement; and which, the jury may have thought it quite probable, that the plaintiff would at length have received, if the scheme of getting out under the habeas corpus had failed. As to the excuse for obeying the order of the magistrates, that the sheriff acted under compulsion, and with the penalties of the habeas corpus act hanging over his head, it was for the jury to judge of its value. The evidence may not have satisfied them that he acted in good faith: they may have believed from the evidence that there was a collusion with Murrell, which stripped this defence of all merit; and their verdict is conclusive.
    
      
      
        Vide Hall v. Moye, ante, p. 9.
    
   O’Neall, J.

delivered the opinion of the Court.

This case has received from the Court all the consideration, which either its importance to the defendant, or the able and and ingenious argument of the counsel, seemed to require. The result of that consideration it is now my duty to give; and to do so, I shall resolve the various grounds taken for a non-suit, or new trial, into the four following: viz. 1st. That the process under which Murrell was confined, was void: 2d. That the discharge by Dr. Wragg was a good discharge, in law, of the prisoner Murrell; and that his subsequent return to gaol was purely voluntary, and did not authorize the sheriff to detain him in custody against his will: 3d. That the discharge by the justices, under the habeas corpus, was legal, and justified the defendant: 4th. That the damages are excessive.

1st. To establish the first ground, it ought to have been shewn, that the Court of Equity had no jurisdiction of the case in which the process was issued; if this had been done, then the objection must have been fatal. But it is conceded, that the Court had jurisdiction; and the whole force of the objection' is, that the process is not according to the practice of that Court, and not warranted by it. This, I have no doubt, is true; and I have as ]¿tt]e that on a proper application by Murrell, the Court °f Equity would have set it aside. But this not being done, it is a subsisting process of a Court of competent jurisdiction, in a cauge witliiia its jurisdiction. In a Court of law, it must be taken to have been regularly issued, for each Court is the judge of its own proceedings. Both are co-ordinate tribunals, possessing equal powers over the cases, respectively within the jurisdiction of each; and neither have the right to look into, or correct, in point of form, the proceedings of the other.

The sheriff, however, cannot even raise the question of regularity. The rule is stated in Bac. Abr. Escape, A. 1. to be “that wherever a sheriff, or other officer, hath a person in custody, by virtue of an authority from a Court which hath jurisdiction over the matter, the suffering such person to go at large is an escape; for he cannot judge of the validity of the process, or proceedings of such Court, and, therefore, cannot take advantage of any errors in them.” In the “ Compleat Sheriff,” 308. it is said: “ Another difference is, where the Court hath jurisdiction of the cause, and where not; where the Court hath jurisdiction, and doth mis-award process, this is but error: But if the Court hath not jurisdiction, jmd doth mis-award process, then all is void, and the sheriff may show this in discharge of himself.” It is hence obvious, that a mere irregularity can never avail the sheriff. It is his duty to execute the process, and however irregular it may be, it will justify him in so doing. Bac. Abr. Escape, A. 1. Comp, Shff. 360. If it justifies him in taking and detaining the prisoner, he cannot be allowed to excuse the escape for want of regularity in it. If the process be void, it is no justification; and hence he is allowed to protect himself against an action for escape, by showing it to be so. In other cases, where the defendant is priviledged from arrest, and, notwithstanding the privilege, the sheriff does arrest, and afterwards suffers an escape, the law permits him to show the privilege in his defence; for the plaintiff can have sustained no damage by the escape of a person not liable to arrest. Ray v. Hogeboom, 11 Johns. 433. But in a case where the process is iiregular merely, if the party, against whom it is issued, does not think proper to make the objection, it does not lie in the mouth of third persons to make the objection for him; but it must, in such case, be regarded as legal and valid. If the sheriff could object to the regularity of the process, it would be allowing him, at his own pleasure, to execute it or not; and this capricious power cannot be allowed to the executive officer of the Court.

2d. The second ground presents a mixed question of fact and law. It is said that Dr. Wragg was authorized to order the discharge of Murrell. This is purely a question of fact, and the finding of the jury negatives it. The presiding Judge had the right to advise the jury, that the discharge by Dr. Wragg was wholly unauthorized. This was his opinion of the facts, and if the jury thought with him, they had the right to find accordingly ; if they differed from him, they had an equally undisputed right to find against his opinion. If the Judge had said, that the plaintiff, Harvey, could not have discharged Murrell, then it would have been error in law, and the defendant would have been intitled to a new trial; but as I understand the charge of the Judge, he expressed an opinion to the jury, that the discharge by Wragg was unauthorized by Harvey, and therefore unlawful. In this opinion I agree. The evidence of Wragg’s authority is derived from a conversation between the plaintiff and Mr. Wilkes. If this conversation had taken place after the written agreement, then it would, have been very strong to shew, that Wragg had authority to do whatever Harvey could. But it was before the agreement was entered into, and related unquestionably to the compromise which that paper sets out; and so soon as the parties agreed upon the terms, on which the case was to be settled, and reduced them to writing, the agency of Dr. Wragg ceased. He had performed the office which the plaintiff had assigned to him, by making the arrangement to which both parlies agreed: And I have not been able to discover any thing in the testimony which would authorize me to conclude, that Harvey either expressly or impliedly delegated any other authority to Dr. Wragg. Dr. Wragg, then, had no authority to order the discharge of Murrell, nor had the the sheriff any right to obey such order; and, permitting the prisoner to go at large under it, was a voluntary escape.

The defendant Murrell afterwards returned to gaol, and the plaintiff has elected to charge him again in execution. This " w he had an unquestionable right to do. In the case of Rawson v. Turner, 4 Johns. 472. Mr. Justice Van Ness said, “if a new sheriff regularly receives a prisoner from his predecessor, he is bound to detain him, and is answerable for his escape, although a voluntary escape may have existed in the time of his predecessor.” In the case of James v. Peirce, 2 Lev. 132. the Court held, that notwithstanding the first voluntary escape, when the prisoner was in prison again, he was so far in custody, that the plaintiff had an election, either to take him as now in execution, and to charge the new warden for the last escape, or to admit him out of execution and charge the old warden. See also Bac. Abr. Escape, E. 1. In the “ Compleat Sheriff,” 325, it is said, “if A. be taken on execution at the suit of B., and voluntarily escape by the assent of the sheriff, and after the sheriff retakes him and keeps him in prison, he shall be in execution to B.; because though B. may bring an action against the sheriff on this voluntary escape, yet this is at his election, for the party in execution of his own wrong shall not put B. to his own action against the sheriff against his will, and it may be that the sheriff may not be able to make him recompense.” Murrell, after his voluntary return to gaol, being rightfully in execution to the plaintiff, it was the duty of the sheriff to detain him. This is the general law; but in this case it is further supported by an adjudication in the case of Harvey v. Murrell, on the application by Murrell to Chancellor Desaussure, to be discharged, after his voluntary return. This was refused, and this decision may be regarded as an adjudication by a Court of competent jurisdiction on the legality of his imprisonment; and until set aside or reversed, it must forever conclude Murrell from making the question. If Murrell could not question the legality of his imprisonment, much less can the sheriff.

3d. Justices of the peace and the quorum are, by the habeas corpus act, P. L. 21. authorized to grant the writ of habeas corpus in all cases, where the Judges could under that act. Their authority, however, is derived exclusively from the act, and is confined to the very cases, in which it was intended to afford a remedy. They have no such common law power. The habeas corpus act applies solely to cases, where the prisoner is in confinement for “ criminal, or supposed criminal matter.” It is, therefore, in this case alone that justices of the quorum and thcj peace have the right to grant the writ, and on its return, to bail j. , . 6 r *1, • f v ■* a or discharge the prisoner. In the exercise even or this limited jurisdiction, so many and so great abuses exist as to prevent any one from wishing to see it extended.

The question then, is, whether the prisoner Murrell was confined for any “ criminal, or supposed criminal matter.” In auy point of view, he was not. If the process, under which he was confined, is regarded as an attachment for not performing the decree, it was a civil process. It is in all legal consequences the same as the capias ad satisfaciendum of the Court of law. It is to compel the party to pay the decree; if this is done he is liable to no punishment, and he would have been intitled to be discharged from it under the insolvent debtor’s act. See Exparte Thurmond, decided at Columbia, May, 1830. If the process is regarded as a compound of the properties of the ne exeat, injunction, and attachment, it is still a civil process. For all of them are of that character; and let it be called by whatever name it may, and I confess it is difficult to give it any, it cannot be said to be a criminal process. It does not profess to subject the prisoner to any criminal charge, or punishment; and unless it did, the confinement under it could not be for “ criminal, or supposed criminal matter.”

It is said, however, that the justices were to judge whether the prisoner was confined for “ criminal, or supposed criminal matter;” and having so decided, their decision must be conclusive. This would be, perhaps, true, if they had a general jurisdiction ; but theirs is limited and confined by the law, under which they are authorized to act, to a single class of cases. The moment it appears that their decision was made in a case, of which they had no jurisdiction, their whole proceedings are void; and they themselves would be liable for exceeding their jurisdiction. If it were otherwise, every prisoner confined for debt would only have to apply to justices for a habeas corpus, and upon being brought up before them, move to be discharged. In many cases, the motion would be granted; and if the decision of the justices were to conclude the plaintiff from shewing that it was a civil, and not criminal matter, for which the prisoner whs confined, all distinction between civil and criminal process would be broken down, and all the objects of imprisonment for debt be defeated.

But I will not do the justices the injustice to suppose, that they thought Murrell was confined on criminal process. They were acting under the mistaken belief, that they possessed not only the power of granting a habeas corpus under the statute of Charles the Second, but also the great common law writ of habeas 'corpus ad subjiciendum. The writ was marked “ Per statutum tricessimo primo Caroli secundi Regis, and by the Common Lawand it is plain, that they made the mistake of supposing, that they had a common law jurisdiction, which they had not. Their judgment proceeded upon an erroneous view of their powers; and having exceeded such as the law gave them, was void, and is consequently no justification to the sheriff in discharging the prisoner.

4th. I agree, however, with the presiding Judge, that it was a great excuse to the sheriff, and if the jury had thought proper to give nominal damages, I should not have been disposed to disturb their verdict. Neither am I disposed to disturb it now, when they have given damages to a very large amount, but less thdn the plaintiff’s debt. The plaintiff had made out a case, in which he was intitled to recover something; what that should be, was very properly to be decided by a jury of the vicinage, who were acquainted with the parties and witnesses, and were fully competent to say, to what extent the plaintiff was injured, and how far the defendant should make him compensation. The reason assigned by the presiding Judge, that Murrell died soon after his release, why Harvey should not be intitled to recover more than nominal damages, might in some cases be not only satisfactory, but also conclusive. In this case, however, it is neither. From the testimony, it seems, that while in gaol, Murrell was in possession of a considerable sum of money, probably the greater portion of the proceeds of the sale of his negroes, and that after his release, he gave his friend Capers two thousand dollars, and to another friend, Halfield, some other money and property. If he had not been released, it is probable the plaintiff would, at least, have got the money, which by his release he was enabled to squander. This was a plain and obvious injury, to a considerable amount, resulting from the discharge. The actual amount of the loss may be perhaps greater-or less, than the verdict. But the opinion of the jury is much more likely to be correct, than any we could form; and having by their verdict said, that notwithstanding the matter of ° excuse presented by the sheriff, he should respond in damages; we can neither say that these damages are excessive, or that they are not authorized by the case made by the proof. The motions for a nonsuit, and new trial, are therefore refused.' 
      
       By Hgat. Printed at London in 1698,
     