The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1844-01-30
At Chambers.
At Chambers.
Before the Hon. +. A. Talimajge Recorder Of the City
ofNew York &c

ofNew York. &c.
In The matter Of Day ct al, Framkiin-Liabeas Cor.
pusThis was very important and exciting case under
the Stilwell act Itappeas the plaintiffs claim $4,000
of the defendant for goods sold &C., and that they had
sued defendant in the Common Pleas and hereupon pro-
cured from Judge lnglis Stilwell warrant and that the
Judge convicted the defendant and committed him to
prison.
Nessrs. Reynolds and Patt sued out writ of habeas
corpus before Judge Kent. and hearing had, in
which Charles 0Connor Esq, appeared as plaintiffs
counsel The only question there raised, was whether
Judge lngls had jurisdiction of the matter The Hon.
Joseph White appeared associate counsel for Messr
Reynolds and Plat, and Judge Kent after argument re-
manded the defendant His Counsel thereupon sued out
another habeas corpus before the Recorder similar to
the first but containing certain specifications of the
lcgality Of the commitment itself pursuant to the 9Th
subdivision OF 9th scconon page i67 ID RS N ed The
petition was III the usual form, except that it alleged,
specially,
That your petitioner is advised, and charges the said
process as illegal insufficient informal and void because
1t does not appear that your petitioner had been
rested the warrant therein mentioned was ever
brought before the officer issuing it, present the
alleged inquiry before said officer had any opportunity
the facts on which such
warrant was Issued and Also that said does not
Of snan s to- 1o
qurements OF said act or that the officer had any right to
commit"
Mr. George Wood engaged as counsel for the de.
PENDANT but owing to other pressing engagements Sa
lem butcher, Esq, was retained
Mr. butcher opened the the of the kabeas
corpus, and stated that the defendant illegally CON-
med and restrained Of his liberty commitment utter.
~ void on It's face and took the following points =:
lst That the commitment issued by a court Off
Ger Of Inferior jurisdiction and therefore should show
its face jurisdiction Of the and where liberty
concerned, OF the person OF the party. lie cited Saun
ders, "a and 70; Cowan, 221 10 John 40; and other
| cases.
ID. That the provisions Of the Stlwcll act it being
special statute required that the party should be sued in
court ofrccord complained Of warrant issued arrest
ed, and brought before the officer who issued the
rant have opportunity to c0pr0veft &c have hear
ing and be judiciaiiy convicted before commitment
could ISSUE Vide the statute.
3D. THAI the essential requisites OF this commitment to
wthe arrest, appearance, and trial before the magis
trate or Judge were not apparent on the face OF it, and
followed, without trial notice the defendant
THE learned counsel commented with great severity
the looseness and Illegally OF the whole eeiink and
the bungling and inconsistent way the law framed
Mr.. Benedict and Mr. OConor, in reply offered to in
troduce certain afdavits and show that this OF
adudca, Judge Kent had refused to discharge the
defendant another habeas corpus in the matter
Mr.. butcher objected. saying that the return of the
officer only could be inquired into and afdavts beyond
that could not be received, and he cited ID r. - AL
Sec 4s and go and the case of Casses 1885, 9th Hills
ports.
The Recorder admitted these afidavits condtonally
not deciding the question raised by the counsel and then
Mr. Patt introduced his affidavit, showing that the
only question before Judge Kent was that of the urisc-
ton OF the case by Judge ngs and not OF the legality Of
! the commitment.
The cause was then argued by Messrs. Benedict and
OConnor for the plaintiffs and Messrs Plat and butcher
| for defendant-the latter gentlemen contending, and
clearly showing by numerous authorities that the com.
mitment void its face and that the plaintiffs Judge
nglis the sheriff. and all concerned in the imprisonment
were liable TO the defendant in action for false mpri
sonmcnt which he said should be brought at
On the next day the Recorder delivered the following
| opinion =
siews that the defendant Is he'd by him under commit
ment granted by Judge ngs pursuant the act to abo
ish imprisonment for debt, and to punish fraudulent
Debtors passed 26th April 1884, copy of which
mitment is annexed to the petition in this
The petition alleges that this commitment il Illegal and
void its face and specifies according the statute the
particular in which the illegaly consists II is we'll
settled rule law laid down by Chief Justice Spencer
in Bigeow w. stevens 10 John 49, that to Justify an in.
| "A q