
    Franklin County,
    January Term, 1828.
    
      Shadrach Hathaway vs. Shiveric Holmes.
    
    Any Justico of the Supreme Court, or a Chief Justice of any County Court in vacation, has jurisdiction to issue a writ of habeas corpus in favor of one imprisoned on execution, in civil process, and to decide on the question of the . party’s imprisonment; and though the cause assigned for the discharge of the prisoner be clearly insufficient, and the judge err in discharging him, and al« though the proceedings be not strictly regular, for want of notice to the creditor in the execution, yet the discharge will be a protection to the sheriff a-gdinst an action for an escape.
    This was an action on the case for the escape of one Silas Hathaway, who had been committed to jail on an execution in favor of the plaintiff. The declaration stated, that the plaintiffin January, 1821, recovered a judgment in the Supreme Court in Franklin County against said Silas tor $ 1919,54 damages, and $37,30 costs of suit — that he afterwards took out an execution on said judgment, dated Feb. 10, 1821, and delivered the same to the defendant, then being sheriff of said county — that the defendant on the 30th day of March, 1821, arrested the said Silas by virtue of said execution, and committed him to the common jail in St. Mbans — and that the said defendant afterwards voluntarily suffered him to escape, without the consent of the plaintiff.
    H The defendant pleaded in bar — “That the legislature of the state of Vermont, at their session holden at Montpelier, on the second Thursday of October, 1819, passed a special act or statute law on the first day of November, A. D. 1819, in favor of the defendant; which said act is in the words and figures following to wit;
    “ An act for the relief of Silas Hathaway. It is hereby enact- “ ed by the General Assembly of the state of Vermont, that the “ body of Silas Hathaway of St. Albans, in the county of FranJc- “ lin, and state aforesaid be, and hereby is, freed from arrest and “ imprisonment by virtue of any writ of attachment, or execution, “ issued, or. chat shall be issued, by, or under the authority of this “ state, for the recovery of any debt due by bond, bill, note, cqv- “ enant, contract, or promise, heretofore made, or entered into, for “ and during the term of three years from and after the passing “ of this act; and every sheriff, deputy sheriff, jailor or constable, “ or other officer, who shall have the “said Silas Hathaway in custody, by “ virtue of any writ of attáchment or execution, issued, or that shall be issued, as aforesaid, for the recovery of any debt) “ or sum of money, due as aforesaid,within the said term of three “years, shall, on receiving a copy of this act,, certified by the “ secretary of state, discharge him, the said Silas Hathaway, from “ such custody 5 for doing which, this act shall be his sufficient “ warrant. Passed November 3, 1819 j” as by said special act or statute law, a copy whereof, duly authenticated, is ready here in court to be shown., will appear* And the defendant further says, that at the term of the supreme court, holden at St. Albans, within and for the county of Franklin, on the 29th day of January, A. D. 1821, the said Shadrach recovered against the said Silas Hathaway the said judgment mentioned in the plaintiff’s declaration, as therein set forth, the said judgment being for a sunt of money due by a promise made and entered into, by the said Silas, to and with the said Shadrach before the said first day of November, A. D. 1819, upon which judgment,the said Shadrach prayed out, and caused to be issued, his writ of execution, as the plaintiff in his said declaration hath also set forth 5 and the saidSi-las, having been arrested on,and by virtue of, said execution, and committed to the custody of the defendant, within the common jail in St. Albans, within and for the county of Franklin, on the 30th day of March, A. D. 1821, the defendant then and still being keeper of the said jail; and the said Silas being in close custody of the defendant, within the walls of said prison, by virtue of said' execution, did, on the said 30th day of March, A. D. 1821, complain in writing to Joseph D. Farnsworth, chief judge of the county court of the said county of Franklin, (it then being between terms, or in vacation of said county court,) stating as follows, to wit:
    “ To the Hon. Joseph D. Farnsworth, Chief Judge of the “ Franklin county court, in the state of Vermont. — -The subscriber is imprisoned in the common jail in St. Albans, in the coun- “ ty of Franklin, by virtue of an execution in favor of one Sha- “ drach Hathaway against your complainant, issued and dated the “ 10th day of February, 1821, and signed by Horace Janes» “•clerk. The complainant further states, “ that the Legislature of the state of Ver-t mont, at their October session, hoklen at Montpelier, in the “ year 1819, passed a special act for his relief, entitled “An act “ for the relief of Silas Hathawayand the said writ was is- “ sued by and under the authority of this state,' for the recov- “ ery of a debt due by an implied contract, made before the “ first day of November, 1819, if ever made, and before the pas- “ sing of the aforesaid act: and he prays that a writ of Habeas “ Corpus may be granted him, and an inquiry made into the cause “ of his said commitment.
    “ Silas Hathaway.
    “ St. Albans Jail, 30th March, 1821.”
    Which complaint was duly presented to the said Chief Justice. And upon such complaint, and upon a view of the copy of said writ of execution, the said Joseph H. Farnsworth, Chief Judge, as aforesaid, in vacation,on the day and year last aforesaid, at St. Albans aforesaid, awarded a writ of habeas corpm, directed to the Sheriff of Franklin county, and keeper of the jail in St. Albans. And said writ of habeas corpus, being duly presented to the defendant, sheriff and keeper of said prison, as aforesaid, the defendant received the same, .and afterwards, on the said 30th •day of March, A. D. 1823,’ the said defendant returned the said writ to the said Joseph D. Farnsworth, Chief Judge,as aforesaid, together with the body of the said Silas Hathaway, with the following return and causes of confinement, to wit: — “To the Hon. “ Joseph D. Farnsworth, Chief Judge of Franklin county court: “ In obedience to the within writ, I now have the body of the with- “ in named Silas Hathaway at the place appointed, and for the “ cause and day of commitment of the said Silas Hathaway to “ my custody, show that the said Silas was, on the 30th day of “ March, 1821, committed to the keeper of the jail in St. Albans, “ in the county of Franklin, by virtue of an execution to me di- “ rected, as sheriff of the county aforesaid, by one Shadrach Hath “ away, Esq. against said Silas Hathaway.”
    [Here follows a copy of the execution, in common form, and ■the sheriff’s return thereon.]
    And on the day last aforesaid, in St. Albans, as aforesaid, .the said Silas Hathaway, being brought, by vif-tue of said writ of habeas corpus, before the L-aid Joseph D. Farnsworth, Chief Judge, as aforesaid, the said Chief Judge then and there proceeded to examine into the causes of the said confinement of the said Silas; and it appearing to said Chief Judge, that the said Silos was confined without sufficient cause, he, the said Chief Judge, did then and there adjudge and determine, that the said Silas Hathaway was confined without sufficient cause, and did then [and there discharge the said Silas Hathaway, and did then and there order and direct the defendant, being sheriff and keeper of said prison, as aforesaid, to discharge the said Silas from his said confinement, as by the record and proceedings of the said Joseph J). Farnsworth, Chief Judge as aforesaid, in the premises, a copy whereof is ready here in court to be shown, will more fully appear. And afterwards, to wit, on the same day and year aforesaid, the said Silas, by virtue of the said judgment and determination of said Chief Justice, and of the said order and direction of said Chief Justice, for the discharge of the said Silas, he the said Silas, not having before committed any escape, did depart from said prison, and out of the custody of the defendant; which is the same escape complained of in the plaintiff’s declaration. All of which the defendant is ready to verify. Wherefore he prays judgment, if from having and maintaining bis said action thereof against the defendant, the plaintiff ought not to be barred, and for his costs.”
    • The plaintiff’s replication, after protesting that the Legislature had no right,or lawful and constitutional authority whatever,to pass-a special act or statute for the relief of said Silas Hathaway, in manner and form as set forth in said plea; and that the said Chief Judge had no right or lawful authority to discharge said Silas, as mentioned in said plea, stated, “That after said act was p'Jssed, that is to say, on the 10th day of October A. D. 1820, sb* r, 1 > Silas Hathaway became holden to the plaintiff, in the r.o.m .'i .'•V.C>o j, A'" r. 0".\y ' ..Ir!, X:1 out, and exnended for him the C'.iC ; ciy..... •. N .,- •: JT-O'p ■'or money lkibL:.t.o ré jv.í.vN r.:X. í ■ \c r,...i Hi ... .ry.Kd' and íüf'cCii s.Uu..r_ of .ySoCKS, r./c. 1 L..:v e.riry:. ■ ed r cad, tbers-tconi, the said lL¿ put-pose of collecting his aforesaid demand against the said Silas Hathaway, on the 30th day of October, 1820, took out his writ of attachment in his favor against the said Silas Hathaway, demanding damages;$ 3,-000, declaring upon the aforesaid general counts in assump-sit ; which writ was duly served and returned, and the same, in due course of law, came on to be tfied before the Supreme Court, at the January Term, 1821: by the consideration of which court, after a verdict for the said Shadrach Hathaway, against the said Silas Hathaway, he, the said Shadrach, recovered the judgment for his damages and costs, mentioned in his declaration aforesaid : and.the said Silas thereupon moved said court in writing, that the execution which should be issued upon that judgment,should notissue against his body, but against his goods, chattels and lands only; and relied on the provision contained in the aforesaid act of the Legislature, passed November 1, 1819, entitled “an act for.the re- ' lief of .Silas Hathaway.” Whereupon the said Supreme Court, then and there, at the January Term, 1821, aforesaid, proceeded to hear, try and determine the aforesaid motion of him the said Silas Hathaway, and did then and there consider, order and adjudge, that the said Silas Hathaway should take nothing by . his aforesaid motion; and that the execution should issue in the usual form against the body, goods, chattels and estate of said , Silas ; which said judgment remains in full force, strength and , effect, not reversed, annulled, vacated,of in any wise impaired, or . set aside, as by the record and proceedings of the Supreme Court, there remaining of record, will appear. And the said Shadrach .Hathaway further says, that the aforesaid judgment in his favor .against the said . Silas Maihaway, as set forth ih his declaration against the said Shiveric Holmes, was rendered for the recovery of a debt due by promise, made and entered into after the said . act was passed, to wit, on die 10th day of Oct. 1820. And this the said Shadrach Hathaway is ready to verify.”
    To this replication there was a.demurrer, and several special causes were assigned not necessary to be mentioned.
    . JVetmore and Royce, for the defendant. It is contended that whether the act of suspension is available or not, the decision of the judge upon the habeas corpus furnishes a" conclusive defence. The writ of habeas corpus is an ancient common law writ, and lies for one to be relieved from unlawful confinement upon criminal and civil process, and not merely to be bailed or transfered from one jurisdiction or prison to another, but to be bailed, remanded or discharged, as justice may require. — 3 Sac. Ab. 421. — 2 Sellout Pr. 257. — 1 Sw. Dig. 568. — 1 Chit. C. L. 97. — 1 Tyler, 274, exparte Hall. — 18 Johns. R. 305, Bank TJ. S. vs. Jenlcins. — 2 N. Y. -Dig. 1067.- — 3 Sac. Ab. 1. The habeas corpus act of 31 Ch. II. extends only to criminal cases, and expressly excepts or ■excludes from its operation all persons confined under sentence in execution, or by any civil process. — 1 Chit. C. L. 100-1,104j ,. and the statute of JYew Yorlc is similar. — 15 Johns. 152, Cable vs. Cooper. — 1 N. Y. Dig. 496. But the persons thus excluded from these statutes are not deprived of their habeas corpus at ■common law. — 3 Bl. Com. 137. — 18 Johns. 305, above cited ; :and JV. Y. Dig. 1067. And the habeas corpus, at common law, . extends to commitments on execution. — 3 Sac. Ab. 13, Bushnell’s case, cited and approved'. — :3 WiU. 175; also, 3 Sac. Ab. 5.— Cro. Eliz. 821. — 3 Cranch, 448. — 6 Johns. 337, Yates vs. People of N. Yorlc. The courts of the United States have decided thatthey possess no common law jurisdiction of this writ. — Chit. >C. L. 101, (note) and hence the decision in ex parte Willson, 6 Cranch 52. This writ in Vermont, Connecticut, Pennsylvania, and other-places, where the English practice does not prevail, extends to commitments upon executions in civil cases. — 1 Sw.. Dig. 568 — Simmon’s case, béfore the Supreme Court in Franklin County, A. D.. 1810, and other cases in the recollection of lawyers. Nothing has been more common than the discharge of -witnesses in execution by this writ. — 2 'Sw. Dig. 582-3.
    There áre ample reasons for adopting this remedy here, which - do hotexist poder the English and New York practice, especially When the object of the writ, as in this case, is not to impeach, ,pr vacate a previous judgment, but merely to control the party for ,a time, .in attempting to. hold the body of the debtor, in pris.on, Our statute . also authorities the writ in case' of civil execution. The act of 1797 conferecí on the County [and Supreme Courts the power to issue this writ agreeably to the usages of law j but added an express provision, that it should not be granted in vacation to bring up a person in jail before trial.-— Statute'^. 62. By the statute of 1814, this writ is extended to every person confined, for any cause, and upon any pretence whatever, and contains no such restraining provision. — Siat. 106. The Co?t-necticut act was like ours of 1797, without the provision aforesaid. —1 Siv. Dig. 569. The statute of Pennsylvania is like ours of 1814. — 3 JBinney, 404, Meeker vs. Jar-rat. Under all these statutes this writ has been extended to execution in civil cases. See also acts of 1825, p. 6, and acts of 1826, p. 4.
    The defendant was not obliged to allege notice to Shadrach .Hathaway of Silas Hathaway’s ‘application for discharge on habeas corpus, for notice is a matter between the parties only, with which an officer has no concern.- — 18 Johns-. 49, Hassin vs, Griffin. - ■
    
    In this case the judge had all the jurisdiction and authority on the subject of this writ which existed in the government, and his discharge was therefore as effectual to protect the defendant, as ifmadebytheSupremeCourtinfullbench. — Stat. 105. — 6 Johns. ‘ 337, and 1 JY. T. Dig. 493-4.
    It is contended that the defendant must be excused in obeying the order of the judge, whether his decision were right or wrong; for the judicial order of every superior tribunal or jurisdiction must protect its own officers and servants. — 1 Sw. Dig. 499.'— 1 Chit. PI. 183. — 3 Binney, 406, Meeker vs. Jarrai.---Cro. Eliz. 5. — 3 Bac. Jib. 13. It is contended, that if the Judge had authority to issue the writ, and if the defendant would have been excused for bringing up the body of Silas Hathaway, in obedience , to it, he must be equally excused in yielding obedience to the final order of the Judge ; for it is not possible that a court or magistrate shall have a right to act upon any subject, and that the ministerial officers of the court shall be responsible for the cor- ’ rectness of its decision.. For the plaintiff to recover, he' must therefore shew that an action would have’been sustainable against ?he defendant for (he act of bringing up the body of Silas Hath
      
      away under this writ, though lie had been immediately remanded arid recommitted; and that the same consequences would have resulted if the writ had been awarded by the Supreme or County Court in session.
    
      Áldis and Richardson, for the ‘plaintiff.
    
    The plaintiffcontends, that the special act of the Legislature, giving Silas Hathaway the privilege of being exempt from imprisonment, is void — that this is legislating, not forcommuniiy,but for an individual — it is an exemption of one from the operation of a general law. If the Legislature have power to exempt him from the confroul of one general law, they might exempt him from the controul of all. — 11 .Mass. 396, Holden vs. James.
    
    It appears by the pleadings, that [Silas Hathaway, before the issuing of the writ of execution, presented to the court his special act, praying that no writ of execution might issue against his person — that the court adjudged that the special act did not protect him from arrest in that casé. Plaintiffcontends that this adjudication cannot be inquired into, or set aside, by any other tribunal. But if the court should consider that the pleadings do not shew that the subject has been determined by the court issuing the execution, the plaintiff further contends, that Hathaway’s omitting to claim his privilege, (if any he had) before the court issuing the execution, is such a waiver of his privilege, that he cannot irf that case ever after claim it, and more especially, as it does not appear that he claimed his privilege at the time of his arrest, nor even till after his commitment. — 4 Dal.Rep. 107, Geyer vs. Irwin. Id. 321, Dupont vs. Pichón. — 15 Johns. Rep, 155. — 18 Id. 52.
    The plaintiff further contends, that the special act, (without faking into consideration the above mentioned 'objection) would not justify the sheriff in permitting Hathaway to escape, because the process was regular on the face of it, and would therefore justify him in detaining Hathaway. — 2 Esp. Dig. 233. — Cro. Eliz. 576, 'Sheriff of Durham’s case. — 3 T. R. 185, Belk vs. Broad-' bent & wife. — 1. Salic. 273,Shirley vs. Wright. — 4 B'ac.Ah. 450.
    ' ■ It appears in this case there was a regular judgment — that execution issued in legal form ¿nd due time, and that 'Hathaway was legally committed — that the proceedings on the face of them were 'good.. It is contended that the question, whether Hathaway had the privilege of being free from arrest and imprisonment, is not a subject for a writ of habeas corpus.
    The question between him and his' cred itor could not be tried by such a writ. The habeas' corpus ad subjiciendum,,, which is the writ in question, lies only' in criminal cases, or when a person is imprisoned without any authority.— Cro. Car. 466,14. — 3 Bac.Ab.2, 3, 4, 7, 16. — 6 Crunch, 62, Wilson’s case. — 8 T. R. 325, The King vs. Flower. — 3 Wilson’s Rep. 1S8, Crosby’s case. — 5 Johns. Rep. 282. — 4 Id. 315. Jacob’s L. D. title, Habeas Corpus.
    
    The statute of 16th Charles, is declaratory of the common law> and does not embrace the present case. — Jacob’s Die. Habeas Corpus. The statute of 31st Charles II. does not alter the common law, as it respects the subjects proper for a writ of habeas corpus. It creates new tribunals to issue the writ, and corrects the abuses of delays. The third section applies to bailing, and excepts treason or felony plainly expressed in the warrant of commitment, and persons convict, or in execution by legal process. These exceptions did not alter the common law in this respect.— 3 Bac.Jlb. 7, 8.
    The 8th section provides, in substance, that a discharge on a criminal, offence should not Operate to discharge him from debt or other action, or from process in civil causes. This is a cautionary direction to the Sheriff.
    The statute of this state declares the writ of habeas corpus to be a writ of right, and like the statute of 31st Chs. II. does not alter the law as it respects the subjects proper for this writ. It creates new tribunals to issue it, and prescribes modes by which it may be more easily and certainly obtained. The 6th and 10th •sections shew that it was designed to discharge only in criminal proceedings, aud when the prisoner is imprisoned without any authority, and also to bail in certain cases. It is clear, the Legislature, by this statute, did not contemplate the writ of habeas Corpus as an advérsary suit to try a question between creditor and debt- or, as to the right of imprisonment. It prescribes no mode Of trial, nor requires any notice to the adverse party. In most cases, for want of time, notice would be impossible.
    The tribunal created by the habeas corpus act of-this state, áu-: thorized to act .in vacation, acts in a ministerial, and not in a jud-I-cial capacity; but if judicially, ic is at most only a court of special and limited jurisdiction, and has nd power to act unless in those cases expressly, mentioned in the statute } and if the judge presume to order a discharge in a Case not within the stattite, bis acts are void, and-the sheriff is not justified in obeying the order. — 5 Johns. Rep, 282. — 15 Id. 154. — 3 BU. Com, 71 to 85. — 10 Mass. 356, Briggs vs. Wordtbelh
    
    In this case the defendant does not in his plea aver that the plaintiff had notice of'the habeas corpus, or was present at the trial. It is fdr the defendant to aver notice in his plea: it cannot bn presumed. Hence the proceedings of the Judge in this habeas Corpus are eucparte. It would be inconsistent with the principles df justice that this exporte trial should affect the rights of the plain-' tiff. On this ground the proceedings are void. — 14 Mass, 222. —13 Mass.'264.
    
    
      ■ The habeas corpus is not necessary to correct abuses of imprisonment in civil process. The law provides other remedies by which the rights of contending parties maybe tried and determined, ít may be by motion in Court for a rule on the adverse party to shew .cause, or by audita querela. In this state, the writ of audi-> ■ia querelaisu proper and efficacious remedy * and was the proper-remedy in this case. — Jacob's L. B. tit. Audita Querela.- — 4 Bane's Mr. 313-14. — 1 Bac.Ab. 196, 19'8.
    ' This case was argued at a previous term of the court, and was continued for advisément until the present term, when the decision of the court was pronounced fay
   Prentiss, J.

The general question arising upon the pleadings is, whether dr not the discharge of the party, upon the writ of habeas corpus, from imprisonment on the-plaintiff’s execution,constitutes a defence to this action. ■ The determination, .of; this question involves the inquiries, whether, the Judge who issued the •writ,’ arid ordered the discharge; had jurisdiction of the caseand if he ha'd'; '-whether the discharge,' although the proceedings were errone'ous- dr -irregular; is, notwithstanding a protection .to. the sheriff? ''' ; _

The 'act of 1797 (Comp. Stat. p. 61, s. 13,) empowered the Supreme CoOrt, and tbs. several County Courts fn lhis state, in term time, to' issue writs of habeas corpus, agreeably to the principles and usages of law; and also 'invested either judge of • the-Supreme Court, m the recess of the court, with power to grant the writ, for the purpose of an inquiry into the cause of commitment-, with this restriction, that the writ should, in no instance, extend to persons in gaol, unless when committed for trial, or were necessary to be brought into court to testify, or to be surrendered in discharge of bail. This was the only enactment which existed in relation to the writ of habeas corpus, until the act of 1814 was passed, making further provision on the subject, and declaring the writ to be a writ of right, to obtain relief from every wrongful imprisonment, or unlawful restraint of personal liberty. The latter act provides, that any person imprisoned in any common gaol, or otherwise restrained of personal liberty, by any officer or officers,» or any other person or persons, for any cause, or upon any pre-tence whatever, or any one in his behalf, may complain in writing to the Supreme Court, in term time,or to either judge thereof in vacation, or to the county court where such person is imprisoned, in term time, or to the chief judge thereof in vacation ; and upon such complaint,and upon view of the copy of the warrant, or process, if any'there be, by which such prisoner stands committed,, or upon affidavit of the prisoner, or of any other person in his behalf, that a copy of such warrant has been demanded and denied, or. that such prisoner is imprisoned or restrained of personal liberty without due process of law, the supreme court in term time, and.eithejr judge thereof in vacation, and the several county courts in term time, and the chief judge thereof in vacation, in their respective counties, are authorized and required to award a writ oihabees-cor-pus, and to bail, discharge, or remand the complainant,as- the case may require. (Comp. Stat. p. 105, s. 2, 3.) This act is certainly not confined to cases of imprisonment on criminal charges, but.extends to persons imprisoned in jail, or otherwise restrained of personal liberty, for any cause, or upon any pretence whatever. The words are large and comprehensive, and it-would be doing violence to the act to say, that it did not comprehend cases of imprisonment on civil process,, whether-original-or final.- . In this respect, the act is unlike the statute of 31--Car. 2, c 2., as-weli as the stat-me of JYew Yorlc. The English Sfót» «le authorizes the award of a habeas corpus, in vacation, in behalf of any person committed, and charged with any crime, except persons convicted or in execution by legal process, or committed for felony or treason plainly expressed in the warrant, and extends only to the case of commit- ' ment for criminal charges; all other causes of unjust imprisonment, as Sir William Blacksione says, being left to the habeas corpus at common law.—3 Black. Com. 137.— The Statute of JYew York, requires a judge in vacation to allow the writ to all persons imprisoned, other than persons convict, or in execution bp legal process. The act of this state contains no exception of this nature? and we cannot thus limit its application,without narrowing the operation of the act, contrary to the plain letter and .intent. It is worthy of notice, that the act of 1825, passed in explanation of the act of 1814, extends the benefit of the writ of habeas corpus, under the provisions of the latter act, to any person admitted to the liberties of the prison. This appears to be a plain declaration of the sense of the legislature on the subject, and shews unequivocally thatthe act of 1814wasconsidered asextendingto persons in execution on civil process. In Hecker vs. Jarret, 3 Binney, 404, it was determined that the statute of Pennsylvania, giving the writ in all cases, where any person shall be confined or restrained of his personal liberty, under any color or pretence whatever, extended to cases of imprisonment on execution. The statute of Connecticut also gives the writ, in general words, to any person illegally con- ' fined, or deprived of his personal liberty; and it is there held that a habeas corpus may be granted, where a person is imprisoned undercolor oflaw, by some process or warrant in civil or criminal cases ; and as instances where a person imprisoned by civil "process may be discharged by this writ, the cases are mentioned where a person is committed on an- execution which has been superceded by a writ of error, or when he was privileged' from ' arrest, or when .one so committed is detained in prison after taking the poof debtor’s oath.—1 Sw. Dig. 568.— In Massachusetts, in , exporte Mc Neil,6 Mass: 245, a habeas corpus was granted to discharge á party, who had been arrested upon execution, issued against him upon a judgment in a civil action, while attending court as a party in a causé pending. And in Exparte Hatch, 2 Aikin’s Reports, 28, this court issued a writ of habeas corpus, and discharged the party from imprisonment on execution, upon the ground of the irregularity of the execution and arrest. Indeed, at common law, the instances in the books aré numerous, in which a habeas corpus, awarded by. a superior court, and returnable therein, has been issued to inquire into the legality of a commitment on execution. The j urisdiction to grant the writ, to inquire into the cause of commitment, appears to be genérál, extending to all cases either civil or criminal; but when the party is brought up, if it appears from the return that he iá in éxecútion by the judgment of another court, having competent jurisdiction, the court will not examine into the merits of the judgment, nór discharge him, if the execution is regular and valid,iipon the face of it, unless some matter is presented extrinsic of fhé judgment, which entitles him to be discharged.

By the statute of this state, a judge of the Supreme Court, of the chief judge of the County Court, in vacátión, has thé same power to grant the writ of habeas corpus, and discharge from imprisonment, which this court has in term time. Although the power may be a high and delicate one, to be exercised by a judge in vacation, yet if it be plainly given by the act, we aré not authorized to deny it to him. Whether it was expedient to give such extensive powers to a judge in vacation, ivas á matter exclusively within the province of the legislature fo determiné; and if they have given it, it is in vain to object to his jurisdiction, by saying that'he may abuse the power, by discharging persons from imprisonment on execution, upon false or frivolous pfeténces. Objections founded on the possible abuse of power may be urged against it, and if allowed to prevail, would preclude the cxcrcisé of all delegated authority whatever. But if the power iii question did not exist in a single Judge, perhaps the evils might be' greater than could be apprehended upon any reasonable supposition, from an abuse of the power. A person may be imprisoned on an execution issued without any judgment to warrant'it, or from a court having no jurisdiction, or where the execution has been superseded,' or.the party', was. .privileged from arrest, as a witness or party in a cause, or a member of the legislature or of congress, or may be detained in prison after taking the poor debt- or’s oath"; and if there was no mode of discharging from imprisonment on execution, but in term time, there might be these and other violations of personal privilege and personal liberty, without the power ofimmediate relief. But the objections founded on the supposed abuse of the power wiilbe found, on examination, to be less formidable, than they may at first view appear. Although a judge in vacation has the power to discharge from imprisonment on execution, yet we do not admit that his decision can control the. judgment, or defeat the jurisdiction of this or any other court of record. The judgment of a court of record, acting within its jurisdiction, is conclusive,until set aside by error, or other proper proceeding, and it cannot be vacated, nor its merits examined into, on a habeas- corpus. The execution itself may be irregular and void, or there may be other reasons,. extrinsic of the judgment, for relieving from the imprisonment; and in such case the discharge leaves the judgment in full force, and only relieves the party from the present effect of it. The provision in the 10th section of the act, that the party discharged shall not be again imprisoned for the same cause, was never intended to apply to a court of record, and to make the decision upon a habeas corpus final,so that the court may notissue anew execution to enforce the judgment. In Yates's case, 4 Johns. R. 357, Kent, C. J. said, “that a discharge by a judge in vacation could not have the effect to preclude the court having jurisdiction of the cause of commitment, from making a new order, or signing a new process for the imprisonment of the party.”

The cause assigned for the discharge of the party, in the application for the habeas corpus in this case, was, that he was privileged from arrest and imprisonment, by virtue of a special act of the legislature. As the act, undér which the privilege was claimed, was unconstitutional ánd void, according to the decision in Ward vs. Barnard, 1 Aik. Rep. 121, the cause assigned was clearly insufficient, and the judge erred in discharging the party. But although the proceeding was erroneous in this respect, or. as is further insisted, was not strictly regular for want of notice to the plaintiff in the execution, yet the discharge, on common principles, must be a protection to the sheriff against an action for an escape. The doctrine established by the adjudged cases is, that the order of a court of competent jurisdiction,, or of a magistrate, acting within the scope of his jurisdiction, will protect the officer. In-the case of the Marshalsea, 10 Co. 76, it is laid down, that when a court has jurisdiction of the cause, aud proceeds erroneously, no action lies against the officer who executes the process^ but if the court has not jurisdiction of the cause, the whole proceeding is coram non judice, and he is not protected. An officer is justified in executing a writ of execution, if the court had jurisdiction, though the judgment was irregular, and is aftervvards vacated.— 1 Lev. 95, Turner vs. Felgate.—2 Wils. 382, Perkin vs. Proctor.—In Brown vs. Compton, 8 T. R. 424, where the discharge of an insolvent debtor was held to be- void, and the sheriff liable in an action for an escape, for want ofjurisdictioninthe court granting the discharge, it was admitted that if the court had jurisdiction over the question,the sheriff would have been justified in obeying the order, although the proceeding might not have been strictly regular, or the court exercised their jurisdiction in an improper manner. In Cable vs. Cooper, 15 Johns. R. 152, the question was whether a judge in vacation had jurisdiction upon a habeas corpus, to discharge a party imprisoned on execution. A majority of the court held, that as the statute of JVew York prohibited a judge in vacation from granting a discharge, whenever the party was in execution By legal process, the judge in that case had assumed a jurisdiction which did not belong to him, and the discharge was void. Spencer, J. was of opinion, that as the judge had power to award the writ in all cases of persons imprisoned or restrained» it was necessarily referred to him, and was within his jurisdiction to decide, whether the party applying for the writ was in execution by legal process. All the court agreed, that if the Judge had jurisdiction, and acted within the scope of his powers, it would be entirely immaterial, as it respected the sheriff, whether he decided right or wrong; for the officer would be protected in yielding obedience to the decision. Whether in the present case the judge ought to have remanded the patty, instead of discharging him, is not tbe question here. If the judge had jurisdiction to issue the writ of habeas corpus, and decide upon the question of the party’s imprisonment, as we have already seen that he had, the sheriff cpuld not be guilty of an escape, either in bringing up the party in obedience to the writ, or in afterwards obeying the order made for his discharge, whether the proceeding was in all respects regular, or the judge erred in th.e exercise of his judgment, or not.

Richardson and Aláis and Davis, for the plaintiff.

Wetmore and Royce, for the defendant.

Judgment for the defendant.  