
    Claiborne Steele vs. James Shirley.
    No appeal lies under the ¡aw and constitution of this state from the decision of a circuit judge sitting in vacation on the trial of a writ "of habeas corpus.
    
    The right of appeal to the high court of errors and appeals is regulated by law ; therefore, where there is no law authorizing an appeal and prescribing its terms and mode, no right of appeal exists.
    A judge of the circuit court in this state may lawfully sit in vacation on the trial of a writ of habeas corpus returnable before him ; and his opinion can only be revised by the high court of errors and appeals by means of a writ of error.
    On appeal from the decision of the Hon. George Coalter, on the trial of a writ of habeas corpus.
    
    James Shirley, on petition obtained from the Hon. George Coalter a writ of habeas corpus directed to Thomas J. Randolph, the coroner of Warren county, requesting him to summon Claiborne Steele, the sheriff of the county, to appear before him on the 11th of August, 1847, and to bring with him the bodies of seven slaves, alleged by Shirley to have been forcibly taken from his possession by Steele. Steele appeared and filed a written answer to the petition, which answer was admitted to be true, and stated that Steele, as sheriff of W arren county, took the slaves named in the petition of Shirley, out of Shirley’s possession by virtue of a fiat from the chancellor of the state, and an injunction and attachment thereon, requiring him so to do, sued out by Robert L. Mathews against Shirley.
    Steele objected to the jurisdiction of the judge; the objection was overruled and Steele ordered to deliver the slaves to Shirley. From this order Steele appealed.
    On the part of Shirley a motion was made to dismiss the appeal; and on the part of Steele, in case the motion in favor of Shirley should prevail, a motion accompanied with a petition for a writ of error with supersedeas.
    
    
      
      Jefferson M. Graybill, for motion to dismiss.
    1. The circuit judge had no power to grant an appeal. The judge in term time of some courts can grant an appeal from his opinion or judgment. H. & H. 482. A judge in vacation has no Such authority.
    2. An appeal does not lie from the judgment of a judge in vacation. In the trial of a habeas corpus for the recovery of slaves there is no remedy by appeal or writ of error. First, because the judge in such case is not a court, and second, because the statute was passed by the legislature to afford a speedy remedy to persons who might be forcibly or unlawfully deprived of the possession of such property. H. & H. 665, 666. And third, an appeal bond cannot be taken and approved in vacation. 1 Howard, 269. The judge, in such a case as the present, like the remedy before justices of the peace in forcible entry and detainer, is appointed specially, without any of the prerequisites of a court, to try the particular case, and after his opinion and judgment is delivered, his functions as a court are at an end. In fact, he is not a court, but more properly an inquest. 6 Howard, 579. The judgment is final. 4 S. & M. 770. Because the judges are nominated by law to this separate and independent jurisdiction, not by virtue of their otherwise judicial character, but by a special and actual grant of power. Ibid. In criminal cases, if the judge discharges the accused, the judgment is final. 6 Johns. R. Yan Ness, J. 397; Spencer J. Ibid., contra. A majority of the court deciding with Justice Van Ness, precludes even a proceeding by writ of error in the appellate court of New York. See also Dunlap’s Practice, 1120. Upon the trial of this case there was neither sheriff nor clerk, nor does the law require there should be. It is true, that this proceeding might have been before in court, from which appeal to this court might have been taken. H. & H. 665, 666.
    
      W. C. Smedes, for Steele.
    1. It is admitted at the outset, that there is no express statute authorizing an appeal from the decision of a judge on a writ of 
      habeas corpus. There seems to have been no legislation since 1822 on the subject of this writ. By reference to the Rev. Code, p. 221, it will be found, under the old constitution, a writ of error could be granted by the supreme court. H. & H. 664, sec. 7. Though not in express words applicable to judgments on writs of habeas corpus to recover the possession of slaves forcibly taken, yet as originally they all formed parts of one act, the mere circumstance that the allowance of the writ of errror is in a section prior to the authority given to issue the writ of habeas corpus, cannot destroy the right to such writ of error. If therefore the court should be of opinion that the appeal is not sustainable, it is respectfully asked to grant a writ of error with supersedeas, under the accompanying petition.
    2. The constitution, Art. 4, sec. 4, is in these words, “ The high court of errors and appeals shall have no jurisdiction, but such as properly belongs to a court of errors and appeals.” In this section all such jurisdiction is certainly conferred upon the high court of errors and appeals, “ as properly belongs to such a court,” otherwise it has no constitutional jurisdiction over any matter. The right of appeal or writ of error to this court from the decrees of the superior court of chancery or the judgments of any of the other courts of record or otherwise is not conferred by the constitution unless found in the clause which makes it a court of errors and appeals. The very term a high court of errors and appeals, in itself implies the right to appeal to it from the decision of any inferior tribunal. The right to a writ of error and appeal to this court is a constitutional right, not dependent on legislation. A contrary doctrine would in effect declare that this court is dependent on legislation for its powers and jurisdiction; that it has no inherent power of its own; that its jurisdiction is conferred by law and not by the constitution ; that the constitution merely gave it birth as a court, but conferred upon it no authority whatever. In any other view, it would at any time be in the power of the legislature to make the judgments of inferior courts conclusive and irreversible by simply repealing all laws providing for appeals and writs of error.
    
      3. The constitution, Art. 4, sec. 1, provides that “ the judicial power of this state shall be vested in one high court of errors and appeals, and such other courts of law and equity as are hereafter provided for in this constitution.” There is no judicial power in this state except what is to be exercised by one of the courts of law or equity provided for in the constitution. It is certainly an exercise of judicial power, to direct the issuance of a writ of habeas corpus, to receive the answer of the accused party, to hear the witnesses, to award judgment, to direct a change of possession of property. All these are instances of the exercise of judicial power; they have all been enforced in this case. By the constitution all judicial power is vested in the courts. It would seem to follow that a judge sitting on the trial of a writ of habeas corpus is under our constitution sitting as a court. If the chancellor is sitting on the trial of the writ, the proceedings are by law, (Rev. Code, ; H. & H. 663, sec. 6,) to be entered of record in the chancery court. He sits as chancellor; he adjudges as chancellor, and his decrees are appealed from as chancellor; and this court has entertained jurisdiction from his decrees in habeas corpus on appeal. Foster v. Alston, 6 How. 406. If the circuit judge sits, the proceedings are to be entered of record in the clerk’s office of the county among the records of the circuit court, by the clerk of the court. Thus he sits as the circuit court. He has all the attributes of a court; and unless he be regarded as sitting as a court, he is in the exercise of judicial power not conferred by the constitution and in violation of that instrument.
    4. I admit that this reasoning, otherwise seemingly conclusive, does not embrace the case of a judge of the-high court of errors and appeals, sitting upon a writ of habeas corpiis.
    
    If the proceeding on a writ of habeas corpus be an exercise of judical power, and that it is, hardly seems to admit of a doubt, then as that power in this state is vested in courts and courts only, the conclusion appears irresistible that a single judge of the high court of errors and appeals, not being a court, cannot exercise judicial power. It is true, under the act of 1822 and the old constitution, the judges of the supreme court who were also judges of the circuit courts, had the power to issue the writs of habeas corpus and try them; they sat as circuit courts. H. & H. 663, sec. 6, shows that they sat as courts. It provides, “the proceedings and judgment shall in all cases be entered of record. If they be had in vacation,” &c. Yacation of what? Vacation of the courts between term and term. This important writ shall not be suspended even in vacation of the court; but the doors of justice shall at all times be open for this writ; and a court immediately held for its trial, at a time and place to be appointed. Now courts only may exercise judicial power. If the court, then, can construe the act of 1822 so as to make judges, sitting on writs oí habeas corpus, courts, they may continue to exercise that right in vacation. If not, there is no power under the present constitution, and organization of courts for judges in vacation to grant writs of habeas corpus and try them; and their whole action is void, and neither appeal or writ of error lies from them.
    Guion, on same side.
   Pee Curiam.

The appeal must' be dismissed; it is not authorized by law. There is no mode of bringing to this court for revisal the judgment of a judge on a writ of habeas corpus, but by means of a writ of error.

The circuit judge is empowered by the statute (H. & H. 664) to sit in vacation on the trial of a writ of habeas corpus.

The application for the writ of error must be granted; not to operate as a supersedeas, however, until bond be given. A writ of error is the remedy given by the statute.  