#### Bank of the United States *against*Jenkins and others.

Where seve-are arrested on 9^*® ver,al <-°unties0 and all put ire. special ba¡4 and the plaintiff issues a *fi, fa.*against aU the defendants the county, m themon°y°wa3 arrested,which is returned ^thereupon, issues & against the da-fendants, di« reefed to ths sheriff of a different county, in which none of the defendants were arrested ; and one of the defendants who was arrested in another county into which *aoji.fa*had been issued, is thermit* ken on the ca.$a.itis irregular,not being pursuant to the provision of *the. act concerning judgments and executions ?*(I *N. R*L. 500. sess, 36, ch. 50. s. 7.) and the defendant so taken in execution, may be discharged on motion.

Though this Court has power, at common law, to relieve against all illegal imprisonments ire civil or criminal cases, yet an *habeas corpus*is not the proper remedy for a defendant imprisoned on a *ca. sa*so irregularly issued; hut the party should apply to the Court, on motion and affidavit, fo? that purpose. *

ONE of the defendants, *Thomas Jenkins,*was arrested on a *capias ad respondendum,*issued in this cause at the suit of the plaintiffs, in the city of *New-York,*and *Elisha Jenkins,*and the other defendant, were arrested in the county of *Columbia,*and the same person was bail for all the defendants. *y r*# A iudgtnent having been entered up against all the defend- ° . , • , . ants, a *fíen facias*was issued against them, m *August*term _ „ r . . - - _ last, directed to the sheriii of the city and county oí *Jvezo-York,*who returned thereon, that no goods or chattels, lands or tenements, could be found, &c. A *test. ca. sa,*was, there*306for, directed to the sheriff of the county of *Oneida,*on which jen/cjMS? wjj0 happened then to be in that county, was arrested and imprisoned.

*Sill*now moved, that the *test. ca, sa.*be set aside, on thé ground, that no *Ji. fa.*had been previously issued into the county of Columbia, where *Elisha Jenkins*was arrested on the *mesne*process. By the seventh section of the *act concerning judgments and executions,*(1 *N. R. L.*500. segs. 36. ch. 50.) if is *provided,*“ that no execution shall issue upon any judgment, &c. in any action in which special bail shall have been filed, against the body of any defendant, unless he is already in prison on execution, until an execution against the goods and chattels, lands and tenements, of *such*defendant, shall have been issued on such judgment, to the proper officer of the county in which the *capias ad respondendum*in such action was served, and such officer shall have returned thereon, that no goods or chattels, lands or tenements, could be found whereon to levy the whole sum directed to'be levied by such execution.”

*Talco't,*contra,

contended, that a *fieri facias*having been issued against all the defendants,.to the sheriff of the city and county of *New York,*in which county the *capias ad respondendum*had been served on one of the defendants, and such execution returned, it was a sufficient compliance with the terms of the act, so as to authorize the issuing of a *ca, sa.*against all the defendants. The act speaks of any defendant.

*Gold,*in reply,

said, that by the true construction of the act, the previous *fi.fa.*must be issued to the sheriff of the county in which *such*defendant was arrested; meaning *the*defendant against whom the *ca. sa.*is issued. Now, *Elisha Jenkins*was arrested on the *capias ad respondendum*in the county of *Columbia,*where he resides, and no *fi. fa.*has ever been issued into that county.

*Per Curiam,*This proviso of the statute was intended to prevent the plaintiff from taking out an execution against *307the body of a defendant who might have property enough to pay the debt. Though the terms of the act may seem to apply only to a single defendant; yet it, no doubt, was intended, and such is the sound construction of the act, to apply also to the case of several defendants. The presumption is, that the party resides in the place where he is arrested, and the defendants, who were arrested in the county of *Columbia,*may have property there enough to satisfy the debt due to the plaintiffs. This construction of the act will produce .no delay or injury to a plaintiff, for he may issue writs of *fi. fa.*into as many counties as he pleases, at the same time ; but all of them must be returned, before he can be authorized to issue a writ of *ca. sa.*We are of opinion, that the motion ought to be granted; but as the attorney of the plaintiffs would be liable to an action for false imprisonment; and as there might be some doubt as to the meaning of the act, and he may have acted in good faith, we think, that we have a right to impose terms on the defendant; we, therefore, grant the motion, on condition that he stipulates not to bring an action for false imprisonment.

The defendant refusing to enter into such a stipulation, *Gold,*on a subsequent day, applied to the Court for the allowance of an *habeas corpus,*saying, that he supposed it to be the proper remedy to relieve the defendant from his imprisonment ; the writ of *audita querela*being an equitable remedy, applicable rather to the case where the defendant is entitled to relief against the judgment, than to a case of mere irregularity in the issuing of an execution. (2 *Saund.*148. n. 1. 1 *Comyii’s Dig. Audita Querela, (A.) 1 Bac. Abr. Audita Querela.*(A.) (B.)

Spencer, Ch. J. The Court have, no doubt, more extensive powers than a judge in vacation, in regard to writs of *habeas corpus.*We allow the writ, though we do not well see what effect it is to have.

The defendant was, afterwards, on the last day of the term, brought up on the *habeas corpus,*to which the sheriff returned, that he held the defendant in his custody, by virus of a writ of *test. ca. sa.*issued out of this Court, and *308directed to him in the above cause. *Sill*moved, that the defendant be discharged; ánd stated, that the Court had power to examine into facts *dehors the*return. To show this, he read the *preamble*to the “ act to amend the act, entitled, an act to prevent unjust imprisonment, by securing the benefit of the writ of *habeas corpus,”*passed the 21st of *April,*1818, which says, among other things, that “whereas doubts are also entertained whether returns made to writs of *habeas corpus*issued under the said act, are tra-versable, or examinable by facts *dehors*the return.” -,

Spencer, Ch. J.

I do not consider that statute as applying to this Court in term time. The Court have.no doubt as to their powers. The only questioh is, whether the writ' of *habeas corpus*is the proper remedy.

*Talcot,*for the plaintiffs.

The proper mode Of proceeding on the part of the defendant, to be relieved from this imprisonment, was the one pursued by him on the first day of the term, that is, by motion, and which Was granted to him, on terms. He has refused to comply, with those terms, and now resorts to this writ to avoid the condition which the Court thought it right to annex to the order which they granted for^his discharge. The defendant, then, stands on his strict rights, and is entitled to no favour. The 20th section of the “ *act concerning sheriffs and their duty in respect to process?*arrest, *and the keeping of*prisoners,” (1 *M. R, L.*418. sess. 36. ch. 67,) is expressly applicable to writs of ha-beas corpus returned in vacation, but not in term. It declares, that “ if any writ shall be granted, commanding the sheriff or, keeper of the prison where any person shall be so charged in execution, for any debt or damages aforesaid, to have the body of such prisoner, with the cause of his imprisonment, in the Chancery or in any other court, or before the chancellor or any judge, and it be returned upon the said writ that such prisoner is charged in execution as aforesaid, then and in every such case, such prisoner shall be immediately remanded, and shall remain in prison according to law,” &c. In *Cable*v. *Cooper,*(15 *Johns, Rep,*152.) *Van*Mess, J. who delivered the^opinion of the Court, said, that it *309might well be doubted, whether the *habeas corpus act,*(1 AT. *R. L.*354, sess. 36. ch. 5?.) gives to a judge or the chancellor in vacation, a right to discharge a party imprisoned on *civil process.*In the case of Wilson, *ex*parte, (6 Cranck, 52.) the Supreme Court of the *United Stales*refused to allow a writ of *habeas corpus,*where the person was in custody on a *ca sa.,*being of opinion that it was not the proper remedy in afcasé of arrest under a *civil process.*The truth of the return to a writ of *habeas corpus*is not to be controverted, though the Court may examine into the circumstances of a fact, by *affidavit,*in order to determine whether it be reasonable to bail the prisoner or not. *(Hawk. P.*G. B. 2. ch. 15. s. 73. 79.)

*Gold*said,

that the Court might look to matters *dehors*the return, and that it was so decided in Yates* *case. (Fates*V. *The People,*6 *Johns. Rep.*337.)

Spencer, Ch. J.

This Court has power to relieve against all illegal imprisonments, either in civil or criminal cases. It is a power derived from the common law, and I know of ^no limit to it, but our sound discretion. But we are of opinion, that the writ of *habeas corpus*is not the proper remedy for the defendant in this case, and shall not, therefore, discharge him from imprisonment on this writ. We have again looked into the affidavits on which the motion was made on the first day of the term, and on reconsidering the case, we are satisfied that there was nothing to warrant the practice pursued by the attorney of the plaintiffs 5 and that it was merely an experiment on their part, to get their money, supposing, probably, that if the defendant was taken in execution, at so great a distance from his home, he would find some means to satisfy the debt. We, therefore, direct that the rule granted on the first application, be amended, by striking out that part of it, making it a condition of his discharge, that the defendant should stipulate not to bring an action for a false imprisonment.

Rule accordingly.