The opinion of the Court was pronounced by
Baylies, J.In this case, the County Court rendered judgement for the defendants to recover their costs, and the plaintiff appealed to this Court for their decision on the pleadings.
The several statutes, which have relation to this case, as far as it is necessary to quote them, are as follow:— The act of March 9th, 1797, Sec. 12, says, “ Such prisoner (after having received a certificate, that he or she had taken the poor debtors’ oath, and having paid certain charges) shall thereupon be discharged ; and his or her body be thereafter exempt from execution for the same debt or debts. Sec. 13, “ That all and every judgement obtained against any such prisoner, shall, notwithstanding such discharge, be and remain good and effectual in law, to all intents and purposes, against any estate whatever, which may then, or at any time afterwards, belong unto any such prisoner; and a new execution may issue at any time, against the goods, chattels or lands of such prisoner, in the same way and manner, as might have been done, if the prisoner had never been in execution.” Sec. 14, “That if any person to whom the aforesaid oath or affirmation shall have been administered, shall be convicted of false swearing therein, he or she shall be liable to all the pains of wilful and corrupt perjury; and shall take no benefit by this act.” The act of Nov. 3,1806, Sec. 2, says, “ That the body of any person, who shall be legally discharged firom prison, by virtue of either of the aforesaid acts, shall *596thereupon be forever free from arrest and imprisonment, for any debt due and owing at the time of his being discharged as aforesaid, to the creditor or creditors, on whose suit he had been discharged.”
1. The plaintiff’s discharge from imprisonment, mentioned in his replication, should have been pleaded to the action, in which Lamb and Bay recovered §¿14,33 debt and damages against the plaintiff, as mentioned in the defendants’ plea in bar. But as the plaintiff did not plead his discharge in abatement, nor in bar in that action; nor express that he placed any reliance upon his discharge before the Court; but suffered himself to be defaulted in that action, and judgement to be rendered therein, and execution to issue against his body, and himself to be carried to jail, and to be committed on the execution; and then to be discharged from his imprisonment, on taking the poor debtors’ oath. All this, in judgement of law, was a waiver of his discharge, mentioned in the plaintiff’s replication ; and he shall not now be permitted to set up his discharge to make his aforesaid imprisonment unlawful, that he may recover damages in this action for false imprisonment.
There is a strong resemblance between our statute of 1797, and the statutes of Massachusetts and New-York, as to the exemption from arrest, and imprisonment of a person, who has taken the poor debtors’ oath. If the writ of Lamb and Day against the plaintiff, in the action in which they recovered $ 14,33, debt and damages, was an attachment, and the plaintiff was arrested thereon, and at the same time he was exempt from arrest, he might have pleaded his privilege in abatement of the writ, according to the case of Willington vs. Stevens, 1 Bick. 497.—(See also Cooper vs. Gibbs, 3 M. R. 193.)
B.ut if the writ was merely a summons, the plaintiff might have pleaded his discharge in bar of the execution issuing a-gainsthis body. I so understand the opinion of the Court in Cable vs. Cooper, 15 J. R. 152. — In that case, Judge Van JYess says, “ The defendant, in the original action, was bound to plead his discharge, and he wished to avail himself of his exemption from imprisonment for the same cause, secured to him by statute. If he had been convicted of perjury in procuring his discharge, he was, notwithstanding *597his discharge, liable to be again imprisoned, either on the old judgement, or under a new judgement recovered upon the old one, in an action of debt; and if the discharge had been pleaded, the plaintiff might have replied to it such conviction, which would have been conclusive to bar him of his exemption.”
So in the action at bar, if the plaintiff had pleaded his discharge, Lamb and Day might have replied facts, within the 14th section of our act of 1797 ; or they might have replied, “that at the time the plaintiff obtained his discharge, the note in suit was not then due, and owing to them, but was due and owing to A. B. to whom they had previously assigned said note, and this action is brought for his benefit.” — Proving these facts would take the case out of the statute of 3d November, 1808. Butin the case above, (15 J. R. 152) Judge Van JVess says, “ The privilege from imprisonment to which Brown (the debtor) was entitled under the statute, certainly might be waived, and the omission to plead the discharge in proper time was a waiver.
“ So the protection, which a person has from arrest, while attending Court, or a party to a suit, is a personal privilege, of which the party, entitled to rely upon it, may avail himself to prevent, or defeat an arrest: but if he waives the privilege, and willingly submits himself in custody to the officer, he cannot afterwards object to the imprisonment as unlawful, or as made by a bad authority. A waiver and voluntary submission are to be presumed; at least there are no allegations to the contrary in the bar on which the defendants rely.”-Brown vs. Getchell et al. 11 Mass. Rep. 11.
“ Every privileged person must, at a proper time, and in a proper manner, claim the benefit of his privilege. The Judges are not bound, judicially, to notice a right of privilege, nor to grant it without claim. In the present instance, neither the defendant, nor his attorney, suggested the privilege, as an objection to the trial of the cause : and this amounts to a waiver, by which the party is forever concluded.” — Geyer’s Lessee vs. Irwin, 4 Doug. 107.
The same principles are recognized as law in Hess vs. Morgan, 3 J. C. 84; and in Fletcher vs. Baxter, 2 Aik. 224. in Error.
*598It cannot necessary to produce more authorities to show, that the plaintiff could wraire his personal privilege ; nor to produce more evidence to show, that he did waive it in this case. .
. 2. It is a rule of law, that a judgement of a court oí record, having jurisdiction, must have the effect of a regular judgement, however erroneous it may be, until it is reversed ; and it cannot be reversed in a collateral action. And no judgement is absolutely void, but such as was rendered by a Court having no jurisdiction. The judgement of $14,33 debt and damages, mentioned in the plea in bar, was a regular judgement, rendered by a court of record, possessing competent jurisdiction; and the writ of execution, which issued thereon, was a regular writ, in due form of law, and is a justification of every act of the defendants done under it, in pursuance of its precept. — It justifies the defendants, one as creditor, and the other as his attorney, in taking out the execution, delivering it to a proper officer for collection, and imprisoning the plaintiff by it, he having refused and neglected to pay and satisfy said judgement. But I go further, and say, if the writ of execution should not have issued against the plaintiff’s body on account of his privilege, and it did issue against his body, it is not void on that account; but merely voidable, and is a justification of every act of the defendants under it. But if it was absolutely void, it Would justify no act whatever.
The English and American Reports fully establish the doctrine which I have advanced: See 17 J. R. 145, Jackson vs. Wilkinson.—3 Caine 267, Reynolds vs. Cope et al.—3 Hen. & Mumf. 260, Moore vs. Chapman.—4 Crunch 238, Blaine vs. Ship Charles Carter et al.—2 Salk. 674, Prigg vs. Adams.—2 Aik. 249, Allen vs. Huntington et al.-1 Stra. 509, Philips vs. Biron et al.—Doug. 671, Tarlton vs. Fisher et al.—10 Petersd. 279, also 2 Black. 1190, Camron vs. Lightfoot.—15 East. 612, King vs. Harrison et al.—3 Con. Rep. 537, Swift vs. Chamberlain.—2 N. H. Rep. 491, Blanchard vs. Goss.
The case at bar is not entirely new in principle in this State: At Caledonia County Supreme Court, February Term, 1816, the case of John Johnson, Appellant, against W. W. M. Gaffey, Appellee, came on for trial: It was an *599action for Assault and Battery and False Imprisonment.— The defendant plead in bar a regular judgement, and execution in his favor, and against the plaintiff, and a lawful imprisonment of the plaintiff by said execution; which imprisonment the defendant averred to be the supposed trespass complained of by the plaintiff. The plaintiff replied his exemption from arrest and imprisonment by this execution, becacse it was a debt due and owing from him to the defendant, when the plaintiff on a former day, took the poor debtors’ oath, and was legally discharged from his imprisonment on another execution in favor of the defendant against the plaintiff; and relied on the act of 3d November, 1806. The defendant demurred to the plaintiff’s replication, and the plaintiff joined in demurrer. The Court rendered judgement for the defendant. There is a short note of this case in Brayton’s Reports, p. IIS.
The plaintiff has referred to several cases where trespasses were committed under void precepts; but we consider that these cases do not apply. — Here the writ of execution was not void, but valid.
Judgement, that the plaintiff’s replication is insufficient; and that from having, and maintaining his action against the defendants, he ought to be barred, and they recover their costs.