7 Cow. 472 | N.Y. Sup. Ct. | 1827
We agree with counsel, that we may discharge as to imprisonment upon the ca. sa. though it be regular upon the committitur in the other suit. The bail piece which was followed by the ca. sa. had lost its force by an imprisonment of the body upon that writ; and there was no right to surrender upon the limit bond. This creates the relation of principal and surety, not of principal and bail. The latter relation is necessary to warrant a surrender. We are not aware that this rule has ever been departed from, except in the case mentioned as having been before the late judge Wan Hess, upon a recognizance of bail in a criminal case. Without expressing an opinion upon that case, we are clear that a case of surety for the jail liberties, which is not matter of record, but exists merely in pais, does not warrant a surrender, any more than the case of any other surety. The prisoner must be discharged as to this cause of imprisonment.
Eule accordingly.
See N. Y. Dig. vol. 2, tit. Habeas Corpus.
