
    No. 29. No. 30.
    McKenzie, Cadow & Co., plaintiffs in error, vs A. N. Hargrove & Co. defendants in error. A. N. Hargrove & Co., plaintiffs in error, vs. McKenzie, Cadow & Co., defendants in error.
    These two cases were by consent, heard and argued together.
    Judgment of the Inferior Court discharging an imprisoned debtor is void if the Court have not jurisdiction of the case, and it Is no error for the Court to commit the discharged debtor to jail, if he appear at Court not prepared to comply with the terms of his bond.
    Ca. sa. from Gordon Superior Court. Decision by Judge Brown, at October Term, 1856.
    The facts of this case were as follows: McKenzie, Cadow & Co., merchants of Charleston, South Carolina, recovered judgment against A. N. Hargrove & Co., and issued thereupon a capias ad satisfaciendum, against Augustus N. Hargrove, James E. Hargrove and Byron Hargrove, who constituted said firm of A. N. Hargrove & Co.; and A. N. Hargrove and Byron Hargrove were arrested by the Sheriff of Gordon county, and James E. Hargrove by the Sheriff of Paulding county, and the Sheriffs of these counties respectively took bonds for the appearance of the defendants, at the Superior Court of Gordon county. The plaintiffs were at the time citizens of South Carolina.
    The defendants were surrendered by their securities to the Sheriff, in the vacation preceding the Court, and immediately thereafter, on the same day, they were discharged by the Justices of the Inferior Court of Gordon county, sitting as a habeas corpus Court, on the ground that plaintiffs were residents of another State, and no bond had been given bythem or their agent or attorney for the maintenance and jail fees of defendants. No notice was given to the plaintiffs or their attorneys of defendants application for discharge, and it was admitted that a week had not passed without the jail fees having been paid as provided by the Act of 1847, and that defendants had remained in the custody of the Sheriff less than one day, before their discharge, and that they never were committed or imprisoned in thejail.
    
    The case being called, plaintiffs counsel moved the Court for an order to enter judgment on the ca. sa. bonds of the defendants. The Court refused the motion, and plaintiff’s counsel excepted.
    Counsel for plaintiffs, then moved the Court for an order to commit the defendants to the custody of the jáiler, they having failed to give the notice and comply with the provisions of the Act of 1823, for the relief of honest debtors, as required by the- conditions. of their bond, to which order defendant’s counsel objected and after argument, the Court granted the ord§r committing defendants to jail, till they should give the necessary notices, &c., as required by the statute ; and counsel for defendants excepted.
    It was agreed that the exceptions of both parties be embraced and carried up in one bill of exceptions and argued together.
    Hooper & Rice, represented by Walker, for Cadow & Co. '
    Francis, for Hargrove & Co.
   By the Court.

McDonald J.

delivering the opinion.

The members of this Court concur in opinion in regard to a judgment of affirmance of both judgments of the Court below, but for different reasons. My brethren are of opinion that, inasmuch as the Act of 1845, (Cobb ‘391,) declares that “it shall not be lawful for any Court to discharge a. debt- or from custody, because of the jail fees not being paid or secured, unless the Sheriff or Jailer shall give at least ten days prior notice in -writing, to the plaintiff or his attorney, who shall be allowed that time, within which to pay or give security for the jail fees, and thereby prevent such discharge †’ if the record shows that the discharge was in violation of this act, it shows a want or absence of the jurisdiction of the Court, and the judgment for that reason, is void. If there was no power to act, there was no jurisdiction. I cannot concur with my brethren in that view. It being my own opinion, that there is a distinction between the want of jurisdiction of a Court, and the unlawfulness of the judgment of the Court, and that the Legislature may pass an act that it shall be unlawful for a Court of .unquestionable jurisdiction, to do a particular thing, or pass a particular judgment upon a specified state of facts; and if the Court proceeds to give judgment, it is good until it is set aside. The defendants in the ca. sets, were no doubt discharged in disregard of the statute just recited, and the decision of the Court ought to have been set aside for that cause, if there had been proceedings to set it aside, that is, admitting that the Court had jurisdiction. But if the Court had- no jurisdiction it was a proceeding coram non judice, and the judgment was void without a proceeding.

In matters of this sort the Inferior Court is a Court of limited jurisdiction. The habeas corpus Act, does not extend to persons confined under civil process. The Judiciary Act of 1799, gives the Superior and Inferior Courts jurisdiction of such cases only as the habeas corpus Act extends to. The Act of 1803, is the first act which confers authority on any Court to discharge persons confined on civil process. The áuthority to act is not conferred by that statute on the Justices of the Inferior Court, except when a debtor is committed under an execution or mesne process, at the suit of a person residing out of the county or State, and the agent or attorney of the plaintiff, shall fail to give security for the maintenance and jail fees of the defendant, the maintenance to be paid weekly. In affirmance of this construction, I will refer to the Act of 1847, Cobb, 544. That act declares that if the jail fees are not paid weekly by the plaintiff, his agent or attorney, the Inferior Court may, and are hereby authorized to discharge, &c. Before these acts,-the Inferior Court had no jurisdiction in such cases, and these confer jurisdiction on specified terms. Parties applying to the Court for relief under these acts, must present themselves with a case of which the Court has jurisdiction. The petition at least must show it It ought to be supported by affidavit If the petition shows a case of imprisonment, and failure to give security and pay, the Court has jurisdiction to hear the case. If the return should falsify the petition, or should show that the petitioner, on his arrest, had given bail or security, and had been surrendered by his bail or security; in the former case, it would be illegal to discharge, and in the latter case it would also be unlawful to discharge, unless the ten days notice required by the act, had been given; but if the party in these last cases were unlawfully discharged, the proceedings showing cases where the Court had jurisdiction, the judgment would be good until set aside. This is my view of the case. In neither of the cases presented in the record does the petition show a case in which the Court has jurisdiction, and all concurring in opinion that, as the case appears in the record, the Court had not jurisdiction, we unanimously affirm the judgment of the Court below.

Judgment affirmed.  