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 *415term 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-*416me 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 *417court 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 *418a 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 *419the 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 *420him, 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.