Martin v. Wood

7 Wend. 132 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

No complaint is made of the manner in which the defendant executed the writ of habeas corpus. Lasher' was carried before the justice, and returned to prison with all convenient despatch. The only question is whether it was a case in which a writ of habeas corpus could properly be issued. If it was, the officer who allowed the writ had jurisdiction, and the sheriff was bound to obey it, and will be protected.

The case discloses, that the suit against Lasher, before the justice, had been commenced by warrant, and that he had obtained an adjournment, under the 5th section of the act of 1824, page 281, and had given scurity to appear on the day to which the cause was adjourned, and in default of such appearance, to pay the debt or damages and costs which might be recovered against him. Vide 1 R. L. 389, § 4, which contains a similar provision. It has been held that the appearance here spoken of must be apersonalappearance oftheparty, and not an appearance by attorney ; and that unless the defendant does personally appear in such a case, his security or bail will be liable for the amount which the plaintiff in the action may recover against him. 7 Johns. R. 381. 1 Cowen, 242, 254. After the adjournment before the justice, and previous to the day to which the cause was adjourned, Lasher wag arrested upon the ca. sa. of the plaintiffs, and committed to prison. The object of the habeas corpus was to allow him to appear personally before the justice in exoneration of his bail or surety.

The writ was probably allowed by the judge, from the analogy existing between this case and the case of a defendant in custody, either upon civil or criminal process, who may be brought up upon habeas corpus, in order that he may be surrendered in discharge of his bail. The practice in such cases is perfectly well settled, even where the principal is in custody on a charge of murder, or is under sentence of transportation. 7 T. R. 226. 15 East, 78. 2 Strange, 1217. 4 Burr. 2034. 3 East, 232. 1 Strange, 641. 1 Willes, 248. 1 Burr. 339. 3 Bos. & Pul. 550. Bignel v. Forrest, 2 Johns. R. 482. 1 Archb. Pr. 285, and cases there cited. 2 Archb. 168. 1 Tidd’s Pr. 298. 1 Dunlap, 209. Mr. Archbold states the practice to be, that where the principal is in custody upon an execution in a civil suit, the bail are entitled to bring him up upon habeas corpus, for the purpose of surrendering him, as a matter of course ; and the writ in such case may be sued out in vacation, and be made returnable before a judge at chambers. 1 Archb. 285. 2 id. 168. 3 Burr. 1875. Where the principle is in custody on a criminal charge, or conviction, application must be made to the court for leave to sue out the habeas corpus.

I know no mode in which the rights of the surety of the defendant in the execution could have been saved except the one adopted. It is in principle precisely analogous to the case •of bail; and the benign spirit of the common law allows of the extension and application of established principles to new cases, as they arise. The writ was adapted to the particular exigency of the case. It directed the prisoner to be carried before the tribunal, where it was necessary he should appear, in order to save the rights of his bail. It was, in this respect? in the form of a habeas corpus ad testificandum. 5 Cowen, 176.

There appears to me to be no force in the objection that the appearance of Lasher before the justice, in the custody of ¡the sheriff, upon the habeas corpus, was not a valid appearanee under the 5th section of the $50 act, and that the habeas corpus therefore was unavailing, and of course, as the counsel for the plaintiffs contends, illegal and unauthorized. This objection will appear to be entirely unfounded, by adverting to the mode in which a surrender is made under similar circumstances in exoneration of bail, as pointed out by Mr. Archbold. 1 Archb. Pr. 285. 2 Archb. 168.

The plaintiff was properly nonsuited, and the motion for a new trial must be denied.