12 Wend. 229 | N.Y. Sup. Ct. | 1834
The facts of this case fully appear in the following opinion, delivered by the Chief Justice.
The petitioner, David Beatty, is brought up on a habeas corpus allowed at the last special term of this court, and asks to
1. Has the court jurisdiction of this matter?
2. Should not the application have been made to the vice chancellor of the 4th circuit ? >
3. Has proper notice been given ?
4. Is the case within the first section of the act ?
I. It is not'denied that the court at the general terms have jurisdiction. The revised statutes, 2 R. S. 563, declare that every person restrained of his liberty, may, except in two specified cases, prosecute his writ of habeas corpus or certiorari, to inquire into the cause of such restraint. Application for such writ may be made, 1. To the supreme court during its sitting ; or 2. To certain officers named, being or residing within the county where the person is detained, &c. Authority is expressly given to the supreme court during its sitting. This it is said, is confined to the terms of the court as they were organized on the 1st January, 1830, when the revised statutes went into operation; and it cannot be doubted that such was the intention of the legislatnre at that time, for then the court held no sitting at any other time. But the legislature in 1830, passed an act authorizing the justices of the supreme court to hear and dispose of non-enumerated business in vacation, by which all non-enumerated business is to be heard and decided in vacation, except such as the said justices shall by rule direct to be heard in term time. The rules of the court, made in pursuance of this law, specifying such business as shall continue to be transacted at the terms ; all other non-enumerated business must therefore be done at the sittings of the court in vacation, which have been denominated special terms. Applications for habeas corpus belong to the class of non-enumerated business, and must be made at the special terms - and there can be no doubt that the court, in these sitting or special terms, have by statute, all the authority in transacting the business assigned to them, that previous to 1830 was possessed by the court in term time.
1 have remarked that there were two cases in which persons restrained of their liberty were not entitled to the benefit
II. It is argued that the application should have been made to the vice chancellor, out of whose court the process issued, upon which the applicant is imprisoned. There is no doubt that the vice chancellor has power to discharge, but the statute to which I have just referred has conferred the same power upon this court, and upon any supreme court commissioner residing in the county where the prisoner is detained ; and in case there be no such officer in that county who is competent and willing to act, then any supreme court commissioner residing in an adjoining county has the like power. 2 R. S. 563, § 23. The jurisdiction of the court, as a court, does not depend upon the fact of there being no commissioner in the county, or one or more who is incompetent or unwilling to act. I think, therefore, that it cannot well be doubted that this court, sitting in special term, has power to issue the writ, and to inquire into the cause of the detention of the prisoner.
III. It is next objected that proper notice has not been given. The 46th section of the habeas copus act, 2 R. S. 569, directs, that when it appears from the return to the writ, that any person has an interest in continuing the imprisonment, he shall have like notice of the time and place at which such writ shall have been made returnable, as is required to be given of special motions in the supreme court of this state. This notice must be given in all such cases, whether the application be made to the court, or to any officer at chambers. The
IV. Is this a case embraced within the first section of the act of 18311 By the return of the sheriff) it appears that the prisoner is confined by virtue of a ca. sa. issuing from the equity court of the 4th circuit for costs upon a decree against him. By the bill and answer before the vice chancellor, it appears that the complainant, the applicant here set forth a contract as the foundation of his suit, alleged a violation of that contract as the gravemen, and prayed that the defendant, A. Allen, might be compelled to perform his contract specifically, and asked for further relief, agreeably to equity and good conscience. The defendant Allen unequivocally denied the existence of any such contract as the complainant relied on. It appears by the affidavits that the principal ground of argument on the part of the complainant before the vice chancellor was} that the defendant Allen was guilty of a fraud; but we must look to the pleadings to ascertain the grounds upon which the suit was founded, and the remedies asked for, or which might be granted. From the bill and answer both, it is very clear that the complainant could not succeed, without proving a contract, and the allegation of fraud in the bill is no more than what is usually contained in a declaration in assumpsit. The statute is as follows : “No person shall be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the non-performance of any contract.” If the suit instituted by Beatty was for the recovery of money due upon a contract, or damages for the non-performance of a contract, then it is within the statute, otherwise not. Were á bill filed purely for a specific performance, and the chancellor were
