1 Vt. 405 | Vt. | 1828
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
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issued without any judgment to warrant'it, or from a court having no jurisdiction, or where the execution has been superseded,' or.the party', was.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
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
Judgment for the defendant.