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preme Court of the United States is a shame and a disgrace to jurisprudence.

Appellants wait three years before they can be heard. This is established fact. The pace of the court through its list is measured with accuracy, so that you may learn at the beginning of a term with well nigh precise certainty on what day your case will be reached aud called. Cases, by the time they reach that tribunal, are largely winnowed of unnecessary matter. Printed briefs, rather say arguments, are in the hands of the court before. hearing. Counsel are economically restricted in time. The court gives four hours each week day but one to hearings. Their sessions begin in October and, with little intermission, conclude in May. While they last their labor is burdensome. Perhaps they might increase the length of their daily sessions and the length of their terms. But this doubtless would interfere with time for incubation, and might not really benefit the suitors. Outside relief must somehow be given. Could this association have united on a scheme, it would have had great weight. But unfortunately, minds have differed. That variance of opinion was represented in Congress. Besides legislation, even upon such a subject, is embarrassed by political strife. The advantage of one plan discussed in the association was that it created no new judges, and therefore neither party as such had any motive to oppose or delay it. The great practical objection to the other plan is that one party or the other will always be in the way of its passage, because it will not agree that its opponent should supply all the new judges, and as for arranging for a division, that would be contrary to that established maxim already mentioned superior in political force to Holy Writ, "To the victors belong the spoils." So the only effort on our part to promote the administration of justice has failed.

What other effort have we made? We have done something tending to promote "uniformity of legislation throughout the Union." A very valuable paper on the recording laws of the United States, by an eminent lawyer, judge and author, projected changes which commended themselves to every mind, and which were duly discussed, published, and there was the end. I believe that one State has adopted an act as to the acknowledgment of conveyances which was approved by this association. An able report has been made on the subject of marriage and divorce, and the necessity of uniform law on this subject. If any thing further has been done, or any change of any State law recently been made in this most important direction, I have not been so fortunate as to hear of it.

We have done something too "to advance the science of jurisprudence;" that is, papers have been read at our annual meetings by distinguished and able lawyers discussing subjects of great moment, and thus have tended, as does every thesis upon the law, to accomplish this high end. And yet comparatively has much been done?

I do not think our Constitution is at fault, nor its machinery. Annually, in conformity with the Constitution, committees are appointed for the year ensuing on jurisprudence and law reform, on judicial administration and remedial procedure, on legal education and admissions to the bar, on commercial law, on international law.

What has been done by these committees? How many reports have been made? That on legal education and admissions to the bar has reported, and beneficial effect has followed in at least one State. The agitation of that subject, and of the proper education for the bar has, I believe, done much good. It has braced up the practice, if it has not improved the rules, in one State that I know of at least; I have hope that it has elsewhere.

But what about jurisprudence and law reform?

What about judicial administration and remedial pro-
cedure? What about commercial law? What about
international law?

Perhaps there is defect in the practicalness of other-
wise well-devised machinery. It must be difficult to
report generally upon such subjects. Any report to
be profitable must select some one topic from those
connected with the large subject-matter, and devote
attention exclusively to that. It has occurred to me
to suggest an addition or a change in the present plan
of our meetings. It is the same successfully adopted
in a leading religious denomination for a meeting
termed its congress. Let the executive committee de-
termine upon some question or topic connected, we
will say, with law reform, and request four members
whom they shall select, to prepare and conduct a dis-
cussion of it, arranging, if possible, that there shall be
difference in the views presented. Then let the sub-
ject, after they are through, be open to debate by
speakers limited in time.

Besides this addition to the interest of our meetings let the efficiency of our association be enhanced by determining upon some one or two amendments to the law, say upon the subject of the acknowledgment and record of conveyances, and upon that of marriage and divorce, as to which all will admit the laws of the States should be uniform. And then let a committee be appointed of one from each State, whose duty it shall be to bring the measure before its Legislatare, and if possible secure its adoption. The mere motive of obtaining uniformity will be a strong argument with every Legislature, and by prudent action on the part of the committeemen it will not be difficult to secure the adoption of a wisely-drawn statute.

"Ars longa, vita brevis." Let us strive, brethren and friends, to make these delightful convocations something more than simple occasions of enjoyment. Let us strive to become a power, a power for good, a power which shall be recognized, a power which through the welding together of strong minds and earnest hearts of the many thousands engaged in our noble profession, and through the attainment by means of uniform laws governing social and business life, shall aid the rail and the telegraph in that glorious work, the fruition fully of that which is our National motto; a motto adopted, I must believe, not simply as descriptive, nor even as also prophetic, but besides, as briefly declaring the duty of every citizen in reference to the State and to the Nation, "E Pluribus Unum."

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D. S. Rose, for J. W. Crow, petitioner.

H. W. Chynoweth, Asst. Atty. Gen., for sheriff.

ORTON, J. This is an original petition by J. W. Crow for writ of habeas corpus, and for his discharge from imprisonment in the county jail of the county of La Fayette, and from the custody of the sheriff of said county. The petition was filed and the writ issued on the 18th day of March, 1884. By the petition and the return of Nelson Bower, the sheriff of said county, the following facts of record appear.

On the 14th day of December, 1883, the petitioner was sentenced by the Circuit Court of La Fayette county, on four several convictions for misdemeanors, to pay fine and costs, and if not paid forthwith, to be imprisoned in the county jail, on the first conviction, for 10 days; on the second, for 10 days; on the third, for 10 days; and on the fourth, for 40 days; to be so imprisoned on the second after the termination of the first, on the third after the termination of the second, and on the fourth after the termination of the third, for the aggregate term of 70 days. The defendant was present in court when said sentences were pronounced, and on the same day the clerk of the court duly made his certificates of the said convictions and sentences, and the same came to the hands of said sheriff. On the 10th day of March, 1882, the said sheriff arrested the petitioner, and held him in custody in the county jail by virtue of said certificates; whereupon the said Crow presented his petition, reciting the above facts, to the Hon. John W. Blackstone, court commissioner of the Circuit Court for said county, for a writ of habeas corpus, and for discharge thereon from said imprisonment, alleging as the ground of such discharge, in respect to the first three of said sentences, "that at the time of rendering said judgments by said court, he was present in open court and ready to enter upon the service of said terms of sentence, and did in law so enter upon the service of said terms of sentence, and that said terms of sentence expired, and that he became entitled to his discharge under said judgments and certificates of conviction on the expiration of the terms mentioned therein; " and in respect to the fourth of said sentences, "that (in addition to the above) said term of imprisonment was fully served and has completely expired." It is further stated in said petition "that the petitioner, since the rendition and entry of each and all of said several judgments, has been in the city of Darlington, in said county, upon the streets and in the public places, and has almost daily during said term met and conversed with said sheriff."

It may be noted here that there is nothing in this petition inconsistent with the fact that the petitioner had been imprisoned in the county jail upon those certificates of sentence for the full aggregate term of seventy days. (1) He was in the city of Darlington, upon the streets and in the public places, since the rendition and entry of the several judgments. This might have been long after he had been imprisoned in the jail for the full terms. (2) He almost daily, dur ing said term, met and conversed with said sheriff. This he could have done within the county jail. But besides there being nothing in the petition to show that the petitioner had not suffered his full term of imprisonment in the county jail, as to each of the first three sentences it is stated that he entered upon the service of said terms of sentence, and that said

terms had expired, and as to the fourth that said term of imprisonment "was fully served and had completely expired." The return to the first writ on this petition was simply that he, the said Nelson Bower, "imprisons and restrains said John W. Crow, as aforesaid, under and by virtue of four certain certificates of conviction and sentence, issued out of said court by the clerk thereof, December 14, 1883, in four separate actions of record in said court," etc. The certificates referred to are appended to the return the same as to the petition. On the hearing of this petition and return the honorable court commissioner discharged the petitioner on the 11th day of March, 1884.

The decision of this court upon the case made here, upon the petition and the return of the sheriff to the writ, must exclusively depend upon the question whether the commissioner had jurisdiction of the first writ to hear and decide the case made by the petition and return. The argument of this case was especially able on the part of the learned counsel of the petitioner, and on behalf of the State, by the learned assistant Attorney-General, Mr. Chynoweth, who not only made a very cogent argument, but presented and commented upon a very large number of cases, which he claimed to be authority for his positions; (1) that the commissioner had no jurisdiction whatever over the case; (2) that if he had jurisdiction to issue the writ, he had no lawful authority to discharge the petitioner; and that in either case his judgment was absolutely void, and not conclusive, or a bar to this second hearing upon habeas corpus of the same causes of imprisonment. He contends (1) that when it appeared by the petition that the petitioner "had been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such order or judgment," it then appeared that the petitioner was "not entitled to prosecute such writ" according to section 3408, Rev. Stat.. so providing. It might be a sufficient answer to this contention that the petition in that case did not claim that the Circuit Court had no jurisdiction to render judgment of sentence in those four cases of conviction, or that the certificates of such convictions and sentences, as commitments of the petitioner in execution of the judgments, were not in every respect sufficient and valid, but that he claimed only that he had endured and suffered the full punishments and imprisonments thereon, and that he was imprisoned long after the full expiration of said terms of imprisonment to which he had been so sentenced. If in such a case however as claimed, or in any other, the facts in the above prohibition of the statute appearing, the petitioner is not entitled to prosecute such writ, that of course is the end of the case, and a prisoner held in custody and imprisoned long after he has completely fulfilled the whole sentence, and been imprisoned for the whole term, cannot procure his liberty by this writ. If not by this writ, especially made a part of Magna Charta for the express purpose of delivering a subject or citizen from unlawful imprisonment, and which has been used always since effectually for such purpose in all possible cases of unlawful imprisonment, where is the remedy? If a person sentenced to imprisonment may be saved from all of it except the arrest, when the judgment, though just, may be without jurisdiction, or the execution, though formal, may be without authority, why may not one be released and enlarged by this writ, after he has suffered the full measure of the imprisonment for which he was sentenced, when he is still held without the pretense of any lawful authority? The question auswers itself. But such has always been proper ground for the writ, and it is no answer by return of the officer that he holds the prisoner by virtue of a valid judgment and

an authorized execution of it. "A prisoner held by valid process may be discharged by habeas corpus by reason of some omission or event occurring since the issuing of it." Wood Mand. Hab. Corp., etc., 174.

Many of the cases cited by the learned assistant attorney-general, and many other cases, affirm this jurisdiction on habeas corpus.

In Trotter v. Mills, 6 Wend. 42, in a suit on a judg ment, the defendant pleaded nul tiel record, and discharged from imprisonment. Held, that if discharged by reason of payment or satisfaction of the judgment, such discharge was final and conclusive.

In Hoose v. Sherrill, 16 Wend. 38, the defendant was served by summons when he was a non-resident, and not amenable to summons. The case went to judg ment of fine and imprisonment for 30 days, unless the fine was paid. Held, that a judge at chambers had jurisdiction in habeas corpus to issue the writ, but that the former judgment was final, because the court bad jurisdiction to issue a summons in a proper case, and whether it was a proper case could only be inquired on certiorari. So here the commissioner had jurisdiction to issue and hear the writ of habeas corpus for such cause, and such cause could only be reviewed on certiorari.

In Rex v. Collyer, Sayers, 44 (26 Geo. II.), defendant was convicted of an assault, and sentenced to impris onment for one month, but it was added that he ask pardon of the injured party, and publish the sentence in the daily Advertiser, and be imprisoned until he had done so. The month's imprisonment had not expired. Held, that king's bench had jurisdiction to discharge him on habeas corpus, for excess of jurisdiction.

In Cleek v. Com., 21 Grat. 777, the conviction and sentence were in July, for 10 months. Defendant escaped in September, was recaptured in January, and remained in prison until May, 10 months from date of sentence. On habeas corpus and refusal to discharge an appeal was taken to the Court of Appeals on error, and it was held that the three months he was out of prison on escape must be added to his sentence, because his escape was his own fault and crime. It is said in the opinion that the sheriff had the right to continue his imprisonment without any further order than the original sentence, because he was cognizant of the facts, and if the prisoner desired to have the question decided he could have had a writ of habeas corpus and the facts inquired into, and that the court would have jurisdiction in such a case. Here the same or a similar question was involved on the first habeas corpus, viz., whether the term of imprisonment had expired.

In State v. Chancellor, 1 Strob. (S. C.) 378, the defendants were sentenced to receive twelve lashes, but were pardoned on condition that they leave the State and not return. They returned to the State. They were then brought before the court for resentence. The question was raised whether this was the proper practice in such cases. It was held that it was, because the defendants had the right to be heard on the question whether they should be punished after the day had passed by; and that they might show reasons for their return to the State, such as that they were kidnapped and brought back by force, or other reason why the condition of their pardon was violated; or that they were not the same persons; and that such a case presented questions of both law and fact which ought to be inquired into by the court; and that such was the practice in England in such cases-citing cases. So here, whether the defendant had fully suffered his imprisonment, and was therefore entitled to go at large, was a question of fact to be inquired into by the

commissioner on habeas corpus. Can there be any doubt that the commissioner had jurisdiction in such a case to inquire further than the judgment of senteuce, which was unquestionably valid, and rendered by a court having jurisdiction? The same practice was followed in State v. Fuller, 1 McCord (S. C.). 178.

In State v. Smith, 1 Bailey (S. C.), 283, the defendant was pardoned on condition of his leaving the State. He left the State and then returned, and after staying some time, he returned to the foreign State, and while there was arrested and brought back, and re-imprisoned on the old sentence. He was then brought before the chief justice at chambers on habeas corpus, and was remanded on resentence by the court, on rule to show cause. On the hearing before the chief justice on habeas corpus there was proof by affidavits of the prisoner's voluntary return to the State. The opinion of Chief Justice Harper is appended to the case, affirming his jurisdiction in habeas corpus in such

a case.

In People v. Potter, 1 Parker Crim. 47, the defendant was sentenced to imprisonment, and pardoned on condition of leaving the State, but returned and was rearrested, and remanded by the general sessions of New York city to serve out the remaining part of the term The jurisdiction of the General Sessions was denied, and Judge Edmonds held by authority of Judge Bronson that the prisoner should have been brought before one of the judges of the Supreme Court, in Oyer and Terminer, on habeas corpus, to inquire into the facts before the defendant should be reimprisoned.

In People v. Porter, 1 Duer, 709, it was neld that a judge at chambers had jurisdiction on habeas corpus to discharge or remand an infant, although he had no authority to provide for the future custody of the infant, and the court of chancery only had such authority; but in Wilcox v. Wilcox, 14 N. Y. 575, it is held that the judges there could also provide for such future custody because they succeeded to this chancery jurisdiction.

In Haggarty v. People, 53 N. Y. 476, the sentence for robbery had not expired when the prisoner escaped. He was recaptured and brought before the court on information for resentence for balance of the term. Held on error, that such a proceeding was unnecessary because if there was any good cause why the prisoner should not be so reimprisoned, it could be shown on habeas corpus, when the facts could be inquired into.

In People v. Cowles, 4 Keyes, 38, a judge at chambers discharged a prisoner imprisoned on a fine, on habeas corpus, and admitted him to the jail liberties; the reason for the discharge being that he was entitled to such liberties. Held, on error, that the judge had jurisdiction to discharge the prisoner for such reason, but had no jurisdiction to admit to the jail liberties, that power being only in the court; and the judgment was reversed.

In Ex parte Milburn, 9 Pet. 704, the defendant was under indictment and out on bail, and was rearrested on capias, and discharged from such restraint by habeas corpus. He was then arrested on a bench-warrant for trial. On a second habeas corpus it was held that he was imprisoned the second time on a very different process and cause, and therefore his first discharge was no bar to the second writ. The jurisdiction under the first writ was conceded, and the judgment on the same cause was held final until reversed. This case was cited for the State, as in point that the same case might be twice tried on two distinct and successive writs of habeas corpus. But it is really very much in point the other way.

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In Rowe v. Rowe, 28 Mich. 353, it is held that a common-law writ of certiorari may be granted by the Supreme Court to a court commissioner for the review of his proceedings on habeas corpus to discharge from unlawful restraint infant children, and that this is the only remedy in such a case where the commissioner had jurisdiction, and that in this case, he had no jurisdiction to order or decree the custody of such children.

In the celebrated McLeod case, 1 Hill, 377, and in note, the following principles in respect to habeas corpus are established: (1) When the petition shows a proper case the writ must issue. (2) If the petition states the prisoner is not held in the case made prohibitory by the statute, it must issue, although the records referred to in the petition may show an apparent lawful authority. (3) An apparent authority by judgment and process may not be a real or legal authority, and therefore on the return of the writ this question must be examined and decided, and even if such decision is wrong, it is nevertheless final until reversed on certiorari or error. (4) When the petition claims and asserts that proceedings in a Federal court which resulted in the imprisonment, though appar ently authorized and valid, are not so in truth and fact, the writ must issue, and a discharge by a State court in such a case is final. Whart. Dig., tit. "Habeas Corpus." (5) The court or judge, having thus acquired jurisdiction, has the power to decide rightly or wrongly, and discharge or remand the prisoner, and all persons must yield obedience to the judgment, and it is final until reversed, even if there has been gross error. 1 Chit. Crim. Law, 128; Bacon Abr., tit. "Habeas Corpus." (7) The power within the jurisdiction is judicial, and such jurisdiction and power are precisely the same in judges at chambers, or court commissioners, as in the courts. (8) Jurisdiction attaches when the petition verified states that the prisoner is held without lawful authority. Betts v. Bagley, 12 Pick. 572. (9) If the officer returns a good writ and legal authority, even that does not end the case, or divest of jurisdiction, for there may be no good writ or legal authority in fact; either the writ or the person named in it may be wrong, and not the writ or person in question. (10) Jurisdiction may be given by a petition stating some proper ground for discharge, ex post facto to the judgment and writ, such as discharge, or satisfaction of the judgment or pardon, or the full penalty suffered. (11) After a discharge of a prisoner by the judge, commissioner, or court having jurisdiction, he cannot be rearrested, under the penalty of the statute, until the judgment of the judge or commissioner had been reversed by certiorari, or of the court by writ of error. Milburn case, supra. And such judgment is a bar to another writ of habeas cor pus to remand the prisoner after his rearrest. Holmes v. Jennison, 14 Pet. 540. On the writ, as enlarged by statute, the officer or court must inquire (1 as to the jurisdiction in the case in which the prisoner is confined; (2) the excess of such jurisdiction; (3) whether the judgment has not been satisfied. People v. Liscomb, 60 N. Y. 566. A court commissioner, on habeas corpus, has jurisdiction to inquire whether the court, by whose process the petitioner is imprisoned, had jurisdiction in the case in question, not in any such case. The jurisdiction of a court cannot be protected against inquiry by merely asserting it. People v. Cussels, 5 Hill, 164; Ex parte Lange, 18 Wall. 163. There is full jurisdiction in a judge or court to discharge by this writ, when the court which rendered judgment exceeded his jurisdiction (Crepps v. Durden, Cowp. 640), or when the term of imprisonment has expired, as Rex v. Collyer, supra.

In McConologue's case, 107 Mass. 171, a minor enlisted in the army was discharged by a single judge

at chambers, and was recaptured by the army officers. On second habeas corpus the judge was advised to discharge the prisoner by the whole court, ou the ground that his first discharge was final and conclusive on all persons and courts until reversed. This is a full and instructive case, and quotes the Booth case, in this State.

In Clarke's case, 12 Cush. 320, a witness was held under an attachment for contempt for disobeying a subpoena. After trial and judgment in the case it was held that he was properly discharged on habeas corpus, although the process was valid, on the ground that ex post facto to the arrest there was no legal cause for his detention.

In Feeley's case, 12 Cush. 598, the sentence was a fine and imprisonment, when the statute only authorized a fine or imprisonment. The prisoner was properly discharged, after the fine was paid, on habeas corpus. The question may be whether the prisoner was arrested on legal process, or whether he is now lawfully held thereon, by reason of something ex post facto the process. Hurd Hab. Corp. 326. Habeas corpus against habeas corpus is never allowed except in connection with the writ of certiorari. Ex parte Yerger, 8 Wall. 85; Ex parte Collier, 6 Ohio St. 55.

In Mead v. Deputy Marshal, 2 Wheel. Crim. Cas. 569, it is held that a person imprisoned for the non-payment of a fine, by a court-martial was properly discharged on habeas corpus on the ground that he had no notice of the proceedings. The judgment of diacharge, not actually void for want of jurisdiction to issue the writ, is a final judgment, and cannot be impeached collaterally. It can only be reviewed on error or certiorari. Fx parte McGehan, 22 Ohio (O. S.), 442; Hurd Hab. Corp. 563; Ex parte Milburn, supra; 9 Pet. 704; Com. v. McBride, 2 Brewst. 545; Mathis v. Colbert, 24 Ga. 384.

If it is the judgment of a court, a writ of error lies without any statutory provision; and if by a judge or court commissioner, a certiorari lies at common law. Com v. Biddle, 6 Penn. Law J. 287. The attorney-general may appeal or take the writ in case of discharge. Ex parte Lafonta, 2 Rob. (La.) 495; Waddington v. Sloan, 15 B. Mon. 147; State v. Potter, Dud. Law (S.C.), 296; Hurd Hab. Corp. 575. A judge at chambers has plenary power and jurisdiction in writs of habeas corpus. In re Blair, 4 Wis. 531. A county judge, as court commissioner, has jurisdiction to inquire into the legality of the commitment, but when jurisdiction is shown in the court to issue it, he cannot discharge for mere errors or irregularities, but must remand the prisoner. This case was heard on certiorari. To ascertain jurisdiction the petition and papers annexed thereto can alone be consulted. Petition of Semler, 41 Wis. 517.

When the petition presents a proper case, then the writ must issue under the penalty of the statute, and the writ will not be denied without the most weighty reasons. In re Pierce, 44 Wis. 411. The statute prohibiting a commitment after a discharge on habeas corpus applies strictly to criminal proceedings. Beyer v. Vanderkuhlen, 48 Wis. 320; S. C., 4 N. W. Rep. 354. Certiorari will lie to a judge at chambers on habeas corpus proceedings to review his order remanding the prisoner, and the order will be reversed if this court finds that the court that issued the commitment had no jurisdiction. In re Eldred, 46 Wis. 530; S. C., 1 N. W. Rep. 175. Courts, judges at chambers, and court commissioners have equal jurisdiction of habeas corpus and must grant the writ unless the petition shows that the petitioner is clearly not entitled to it. Bagnal v. Ableman, 4 Wis. 163.

These authorities clearly establish (1) the jurisdiction of the commissioner to issue the writ and to hear it; (2) the finality and conclusiveness of his judgment

of discharge; (3) the entire waut of jurisdiction in this court to review, reverse, or annul that judgment by another writ of habeas corpus in respect to the same cause of imprisonment or grounds of discharge, or in any other way than by certiorari; (4) the writ of jurisdiction in the Circuit Court to order the petitioner's rearrest and imprisonment for the same cause; (5) the want of authority in the sheriff to make such rearrest, or to recommit the petitioner to the county jail on the same sentence; and (6) the jurisdiction of the commissioner to determine the question whether the petitioner had already suffered and served the full terms of the imprisonment fixed by the sentence, and the conclusiveness of his adjudication of such fact.

The assistant attorney-general cited some cases other than the above, which he claimed were adverse to these positions.

In Re Buddington, 29 Mich. 472, it was held that a court commissioner had no power to review any proceeding of a court, and that his power under the writ was less than that of a court.

In re Frank, 39 Mich. 203, it was held that a court commissioner had no power to review on this writ the proceedings of a court, and had no judicial power, and his judgment was not conclusive. Our Constitution, in relation to the judicial power of a court commissioner (§ 23, art. 7), must be different from the Constitution of that State. We have seen that in many of the States, as well as in our own, the judicial power in habeas corpus is plenary, and equal to that of the


Spalding v. State of New York, 4 How. (U. S.) 21, was a case of imprisonment for contempt.

Ex parte Robinson,6 McLean,355, was a case of a fugitive from labor, adjudicated to be a slave, and remauded to his master by a commissioner of the United States, under the act of Congress, and at tempted to be discharged by a State judge on habeas corpus, and has no application to this case.

In Wright v. State, 5 Ind. 290, the jurisdiction of the judge of the Common Pleas to remand the prisoner is affirmed, and his jurisdiction to discharge him is not denied.

In Yates' case, 4 Johns. 317, a master in chancery was imprisoned for malpractice by the court of chancery, and discharged by a judge of the Supreme Court at chambers on habeas corpus, and he was rearrested and imprisoned for the same cause. Judges Yates and Spencer held that the judge had jurisdiction to discharge, and that his discharge was final; but Chancellor Kent and Judges Van Ness and Thompson held that the judge had no plenary jurisdiction at chambers, and could not enforce his orders or judgments; and that they were not therefore final and conclusive. Not so however in this State, for he may imprison for contempt, etc., and so may a court commissioner.

In Yates v. Lansing, 5 Johns. 282, it was held only that courts could not be prosecuted for the penalty of the statute for rearrest of prisoner after his discharge on habeas corpus, and that the statute only referred to officers. In this case it is said that there had been a long contest since the Chamber case, in Cro. Car. 168 (as. I.), between courts of chancery and of law, over the right of interference by the law judges with the prisoners of the chancery courts. This controversy, no doubt, affected the decision of such cases in the early courts of New York, while the old court of chancery existed there.

In Cable v. Cooper, 15 Johns. 152, the imprisonment was on civil process, and the discharge under the statute for the relief of poor debtors. He was arrested again in a suit on the former judgment, and failed to plead his discharge. Then on habeas corpus, and a subsequent discharge thereon, and in a suit against

the sheriff for an escape, on appeal it was held that the last discharge by a court commissioner was void because the prisoner was held on civil process. Many things are said in the opinion in this case, in which there was another dissent by Judge Spencer, not applicable to the case, and obiter in respect to the jurisdiction of court commissioners, and the conclusiveness of their judgments of discharge on habeas cor: pus.

In Com v. Deacon, 8 Serg. & R. 72, the defendants were tried on an indictment of sixteen counts, and convicted by the jury on nine of them, and the jury said nothing as to the other seven. The court issued a commitment, without rendering judgment on the verdict, to hold the defendants for trial on these remaining counts. The court was the mayor's court of Philadelphia, of special and limited jurisdiction. Ou habeas corpus the prisoner was remanded, and on error to the Supreme Court this judgment was affirmed; the court holding that the mayor's court had jurisdiction by the indictment, and that although the defendants had been acquitted by the verdict, the imprisonment was not without jurisdiction, and erroneous only, and could not be reviewed on habeas corpus; and also that the court had jurisdiction of the habeas corpus by the petition, and the judgment thereon was final, because if the prisoner ought to have been discharged instead of remanded, it was error only, which might be reviewed. Many other cases might be cited to the same effect, that the judgment on habeas corpus on the same cause of commitment, where jurisdiction is had by the petition, is final and conclusive. In the above case, Duncan, J., said in his opinion: "You need not use any argument to prove that the plaintiffs cannot be tried on this indictment;" and then insisted that this was one of the facts or questions of law to be decided in that case, and there was jurisdiction for that purpose. So in this case, the question of fact, or perhaps the mixed question of law and fact, whether the petitioner had served out his sentence, and that it had expired by limitation of time, was within the jurisdiction of the commissioner to try and determine, and if he decided wrongly it could be corrected only on certiorari.

It is somewhat strange that the learned judge who ordered the rearrest and imprisonment of the petitioner should have overlooked the penal prohibition of the statute against a rearrest after discharge on habeas corpus. This prohibition is older than the statutes of our various States, and was early adopted as a necessary incident of this great writ of liberty, to protect its full, complete, and beneficent results, and secure its full operation and effect in favor of liberty by the statute of Charles II. We have seen that the petition and return in the former case before the commissioner show jurisdiction by alleging that the term of imprisonment had expired, and that the petitioner was then imprisoned without any legal authority. The above authorities show that such is a good and sufficient cause for the writ. But our statute, in effect, provides that it is.

Section 2427, Rev. Stat., sub. 4, provides, as one of the grounds upon which the court or officer must remand the prisoner, "that the time during which such party may be legally detained has not expired." This is equivalent to providing that he shall not be remanded, but shall be discharged if such time has expired. It is proper to say here that the learned assistant attorney-general insists that the petition in the first case showed that the petitioner had never been imprisoned in the county jail on such sentences; but as we have seen, the petition in that case did not so show, but for aught that appeared in that case, he was unfawfully imprisoned after the full term of the sentence had been suffered and had expired. The peti

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