Campbell, J.,
delivered the opinion of the Court.
The trial before Chancellor Peyton was the trial of a writ of habeas corpus. Had the judgment been in favor of the prisoners it would have been conclusive in their favor according to the statute, and it must, as against them, have its full effect as a judgment rendered on the trial of a writ of habeas corpus. It is true that Chancellor Peyton, by consent of all concerned, might have sat as a substitute for the justice of the peace, and then his judgment'would have had no greater effect than one by the justice of the peace would have had ; but the record of the proceeding must govern, and it shows that the writ of habeas corpus was petitioned for, and issued and returned and tried as such, [139]*139and the fact that the chancellor announced that he was examining the case as if he was a justice of the peace does not change the aspect of the case as made by the record.
The second section of “ An act to regulate the place of trial of writs of habeas corpus,” approved February 16, 1884, Acts, p. 75, made no change in the law as it existed before. Every judge in. this State authorized to issue and try writs of habeas corpus, is, by the constitution and laws, a conservator of the peace, and his plain duty was, before the act of 1884, to hold the party before him on habeas corpus, if the evidence showed the party guilty of some crime, however defective or irregular the proceedings for his commitment may have been; and the time never was in this State when any judge, with an intelligent comprehension of his position and duty, would discharge a party in such case. Where, on habeas corpus, the view of the judge is restricted to an inspection of the process by which the person is held, if that is' so defective as not to authorize his detention, the only judgment is a discharge; but where the whole evidence is heard, as in this State, a judge who before the act of 1884 would have discharged from custody on trial of a writ of habeas corpus one shown by evidence before him to be guilty of some crime, would have erred and deserved censure.
The second section of the act of 1884 was merely declarative of pre-existing law.
Section 2543 of the Code is constitutional. It antedates the constitution, and has been the law of this State since 1822. The constitutions of 1832 and 1869 were adopted with reference to it, and no provision of the constitution is inconsistent with it. The declaration in the Bill of Rights against suspension of the writ of habeas corpus is not in the remotest degree inharmonious with the statute, which does not suspend the privilege of the writ in any way. The whole purpose of the statute is to declare the effect of a judgment on the trial of a writ of habeas corpus as a bar to another writ in the same cause to bring the same matter in question, and as a protection to the person discharged against further confinement for the same cause, except by a court of competent jurisdiction. But for the statute the judgment for or against the person on the trial of the writ of [140]*140habeas corpus would not be final. It could not be appealed from. If it was for the petitioner it would not protect him against another arrest and further confinement. If it was against him he could not correct an error by appealing, but could sue out another writ before the same or another judge who might follow the first decision, and he could get no redress unless he could find a judge who would discharge him; and when thus discharged he might again be immediately arrested on new proceedings before any justice of the peace, and be again confined in the face of the former discharge. To remedy this evil this statute was passed. It makes the judgment rendered on the trial of a writ of habeas corpus conclusive until reversed, and a bar to another habeas corpus in the same cause to bring the same matter again in question. This is a restriction of the right of the individual. He alone could have another writ of habeas corpus or appeal from the judgment or have an action for false imprisonment.
All of §2534, except the last part, relates to the effect of the judgment as against the prisoner, and declares its effect as a bar to proceeding by him. The last part of the section declares the effect of such judgment in his favor as a protection to him against being afterwards confined for the same cause. So now, by virtue of the statute, the judgment on the trial of a writ of habeas corpus is conclusive until reversed, (and provision is made for an appeal by the individual decided against) and bars the person decided against from having another writ of habeas corpus in the same cause to bring the same matter again in question, and a judgment in favor of the party shields him from being afterwards confined for the same cause by the order of any magistrate sitting as a committing court. The bar of the judgment against the prisoner operates throughout the cause to prevent the same matter from being again brought in question at his instance. The judgment against him on the trial of the first writ is continuously and perpetually throughout the same cause conclusive against him as a bar to ■another writ to contest the same matter involved in the first trial. The bar in favor of the prisoner discharged on the first trial is operative in his favor to protect him from being afterwards con[141]*141fined for the same cause, except by a court of competent jurisdiction. The English statute and the statutes of some of the American States in order to prevent vexation by reiterated commitments for the same offence, provide that one delivered upon habeas corpus shall not again be imprisoned for the same offence except by the court having jurisdiction of the cause. Our statute has exactly this meaning, and secures immunity from imprisonment for the same cause, except by the proper court before which the cause is -brought. These views have been heretofore announced by this court in ex parte Pattison, 56 Miss., 161; ex parte Bridewell, 57 Miss., 177, and ex parte Nichols, 62 Miss., 158, and are adhered to after careful re-examination of the whole question.
Newly discovered evidence, which, added to the evidence on the first trial, would vary the case cannot avoid the bar of the former judgment. If some decisive fact, in itself conclusive of the innocence of the prisoner without regard to the evidence in the first trial (such as the person charged to have been killed being produced on the like) would avoid the bar of the first judgment, it is sufficient to say that is not the case before us. The evidence offered here was of the sort which it was claimed would, when considered in connection with that taken on the first trial, show the prisoners to be entitled to bail. In this ease the evidence given on the first trial was preserved, but in many cases and probably in most the evidence heard by the judge is not written down or preserved, and even if a bill of exceptions is signed, that is for the appellate court only. How then is the second writ of habeas corpus to be tried ? If, before the same judge who tried the first, is he to rely on memory for the evidence ? If before another judge, what then ? Are the witnesses first heard to be again produced, or shall their testimony as given on the first trial be proved by those who heard it ? Shall the discovery of a new witness necessitate a new investigation to ascertain if the old and the new together show the case to be bailable ?
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Campbell, J.,
delivered the opinion of the Court.
The trial before Chancellor Peyton was the trial of a writ of habeas corpus. Had the judgment been in favor of the prisoners it would have been conclusive in their favor according to the statute, and it must, as against them, have its full effect as a judgment rendered on the trial of a writ of habeas corpus. It is true that Chancellor Peyton, by consent of all concerned, might have sat as a substitute for the justice of the peace, and then his judgment'would have had no greater effect than one by the justice of the peace would have had ; but the record of the proceeding must govern, and it shows that the writ of habeas corpus was petitioned for, and issued and returned and tried as such, [139]*139and the fact that the chancellor announced that he was examining the case as if he was a justice of the peace does not change the aspect of the case as made by the record.
The second section of “ An act to regulate the place of trial of writs of habeas corpus,” approved February 16, 1884, Acts, p. 75, made no change in the law as it existed before. Every judge in. this State authorized to issue and try writs of habeas corpus, is, by the constitution and laws, a conservator of the peace, and his plain duty was, before the act of 1884, to hold the party before him on habeas corpus, if the evidence showed the party guilty of some crime, however defective or irregular the proceedings for his commitment may have been; and the time never was in this State when any judge, with an intelligent comprehension of his position and duty, would discharge a party in such case. Where, on habeas corpus, the view of the judge is restricted to an inspection of the process by which the person is held, if that is' so defective as not to authorize his detention, the only judgment is a discharge; but where the whole evidence is heard, as in this State, a judge who before the act of 1884 would have discharged from custody on trial of a writ of habeas corpus one shown by evidence before him to be guilty of some crime, would have erred and deserved censure.
The second section of the act of 1884 was merely declarative of pre-existing law.
Section 2543 of the Code is constitutional. It antedates the constitution, and has been the law of this State since 1822. The constitutions of 1832 and 1869 were adopted with reference to it, and no provision of the constitution is inconsistent with it. The declaration in the Bill of Rights against suspension of the writ of habeas corpus is not in the remotest degree inharmonious with the statute, which does not suspend the privilege of the writ in any way. The whole purpose of the statute is to declare the effect of a judgment on the trial of a writ of habeas corpus as a bar to another writ in the same cause to bring the same matter in question, and as a protection to the person discharged against further confinement for the same cause, except by a court of competent jurisdiction. But for the statute the judgment for or against the person on the trial of the writ of [140]*140habeas corpus would not be final. It could not be appealed from. If it was for the petitioner it would not protect him against another arrest and further confinement. If it was against him he could not correct an error by appealing, but could sue out another writ before the same or another judge who might follow the first decision, and he could get no redress unless he could find a judge who would discharge him; and when thus discharged he might again be immediately arrested on new proceedings before any justice of the peace, and be again confined in the face of the former discharge. To remedy this evil this statute was passed. It makes the judgment rendered on the trial of a writ of habeas corpus conclusive until reversed, and a bar to another habeas corpus in the same cause to bring the same matter again in question. This is a restriction of the right of the individual. He alone could have another writ of habeas corpus or appeal from the judgment or have an action for false imprisonment.
All of §2534, except the last part, relates to the effect of the judgment as against the prisoner, and declares its effect as a bar to proceeding by him. The last part of the section declares the effect of such judgment in his favor as a protection to him against being afterwards confined for the same cause. So now, by virtue of the statute, the judgment on the trial of a writ of habeas corpus is conclusive until reversed, (and provision is made for an appeal by the individual decided against) and bars the person decided against from having another writ of habeas corpus in the same cause to bring the same matter again in question, and a judgment in favor of the party shields him from being afterwards confined for the same cause by the order of any magistrate sitting as a committing court. The bar of the judgment against the prisoner operates throughout the cause to prevent the same matter from being again brought in question at his instance. The judgment against him on the trial of the first writ is continuously and perpetually throughout the same cause conclusive against him as a bar to ■another writ to contest the same matter involved in the first trial. The bar in favor of the prisoner discharged on the first trial is operative in his favor to protect him from being afterwards con[141]*141fined for the same cause, except by a court of competent jurisdiction. The English statute and the statutes of some of the American States in order to prevent vexation by reiterated commitments for the same offence, provide that one delivered upon habeas corpus shall not again be imprisoned for the same offence except by the court having jurisdiction of the cause. Our statute has exactly this meaning, and secures immunity from imprisonment for the same cause, except by the proper court before which the cause is -brought. These views have been heretofore announced by this court in ex parte Pattison, 56 Miss., 161; ex parte Bridewell, 57 Miss., 177, and ex parte Nichols, 62 Miss., 158, and are adhered to after careful re-examination of the whole question.
Newly discovered evidence, which, added to the evidence on the first trial, would vary the case cannot avoid the bar of the former judgment. If some decisive fact, in itself conclusive of the innocence of the prisoner without regard to the evidence in the first trial (such as the person charged to have been killed being produced on the like) would avoid the bar of the first judgment, it is sufficient to say that is not the case before us. The evidence offered here was of the sort which it was claimed would, when considered in connection with that taken on the first trial, show the prisoners to be entitled to bail. In this ease the evidence given on the first trial was preserved, but in many cases and probably in most the evidence heard by the judge is not written down or preserved, and even if a bill of exceptions is signed, that is for the appellate court only. How then is the second writ of habeas corpus to be tried ? If, before the same judge who tried the first, is he to rely on memory for the evidence ? If before another judge, what then ? Are the witnesses first heard to be again produced, or shall their testimony as given on the first trial be proved by those who heard it ? Shall the discovery of a new witness necessitate a new investigation to ascertain if the old and the new together show the case to be bailable ?
To so hold would nullify the statute. It denies to the prisoner denied bail on habeas corpus another writ to try the same question involved in the first trial,i. e., the right to bail in [142]*142the then existing state of his case. The nature of the proceeding precludes the adoption of the rule applicable to new trials for newly discovered evidence, and vindicates the conclusion at which we have arrived. That the statute makes the judgment conclusive until reversed is indisputable. There is no precedent for avoiding the bar of a judgment when set up by questioning its correctness and producing evidence to show that a different judgment should have been given. It was never heard that evidence could be produced in such case for such purpose. The only way known to avoid the bar of a judgment is to show it to be void or that it did not embrace the matter involved.
In this case the effort to show the former judgment void for fraud was abortive, and indeed counsel for the appellants disclaim any charge of fraud in obtaining the judgment.
The former judgment did embrace the matter involved in the new writ, viz.; The right to bail on the state of facts existing when the first writ was tried.
The propriety of the change of venue cannot be determined in this proceeding. If the law authorizing it was to be declared unconstitutional, that would not affect the question of .grunting bail; but we would not be understood as suggesting a .dopbt of the constitutionality of the statute on that subject.
1 There is nothing in the complaint that Hamilton was not before the chancellor.
4, It is not true, as argued by counsel, that the subsequent indifctment of the parties for murder made a new case so as to ■entitle them to another writ of habeas corpus, and so as to cause theft appeal from the judgment against them on the first writ to be dismissed by this court. As held in Ex parte Bridewell, supra, the bar against them continues after indictment throughout -the cause, so as to prevent the right to bail on the state of facts existing when the judgment was given. Their appeal from that judgment will not be dismissed because of the indictment, but will be heard; and if the judgment shall be reversed, it will be thereby vacated, and no longer a bar to another writ of habeas corpus.
In Bridewell’s case it was claimed that the judgment granting him bail was conclusive in his favor of the right to bail after [143]*143indictment; but this court held that it was not; that its protective force in his favor ended when the court of competent jurisdiction took charge of him. The former judgment was. in his favor, but was not conclusive after indictment for murder, because the conclusiveness of a judgment in such a habeas corpus trial depends wholly on the statute, and it makes the judgment in favor of the prisoner conclusive only until he shall be dealt with by a court of competent jurisdiction.
In citing the cases above mentioned, we would not be understood to approve all of the language of the opinions. Each case was undoubtedly decided right. But the language of the opinions might have been more happity chosen, as we are now ■convinced by the thorough revision to which our investigation of this case has led. We are especially dissatisfied with the announcement in Ex parte Patterson, that a mistrial will furnish ground for a new writ and the production of new testimony, ■and the remark about giving jurisdiction is not accurate. It is not a question of jurisdiction, but of the conclusiveness of the former judgment as a bar. We are satisfied that the only thing which can avoid the bar is some new state of case which in and ■of itself presents a ground for granting bail, without regard to .and independent of the testimonj^ on the first trial. The cir■cumstance of a mistrial might be influential on hearing, but cannot of itself be held to avoid the bar. In no case can the testimony on the first trial be looked to as a factor in the second. It has no place in the second trial. ■
The language of the opinion in Ex parte Bridewell might well have been more specific; but, applied to the case before the ■court, cannot be misunderstood.