Wattles v. Marsh

Curia, per Sutherland, J. There was nothing upon the face of the writ, showing it to be void, or to have been issued without competent authority. The omission in the writ, of the words to testify, was not material. It still appeared to be a habeas corpus ad testificandum. It directed the sheriff to bring the prisoner before the officer, to answer unto those things that might be there required of him, pursuant to the act entitled an act to abolish imprisonment for debt in certain cases. Under that act, he would be required to answer only as a witness. It was substantially good ; and was in the words of the statute. The omission of a place in the writ where the prisoner was to be brought did not render it void. He was directed to be brought before Joshua Forman, Esq. First Judge of the Court of Common Pleas in and for the county of Onondaga. If the words, at his office, in said county, had been added, it would have been in terms, sufficiently explicit; and I think they are fairly to be understood. The writ was allowed by an officer of competent authority to allow writs of habeas corpus. He had the same powers as a Judge of the Supreme Court at chambers; and the case of Hassam v. Griffin, (18 John. 48,) shows that a habeas corpus ad testificandum may be allowed by a Judge at chambers, to bring up a prisoner charged in execution. (And vid. 5 id. 357.) If the writ was issued by an officer of competent authority, and was not void on its face, the defendant was bound to obey it. (5 John. 357. 3 Esp. Rep. 283. 3 Burr. 1340. 4 East, 587.) Whether the writ was regularly issued or not; whether upon the application of the ere ' itor, or the insolvent, the sheriff had no means oi knowing snd [181] was Lot bound to inquire. Admitting it to have issued erroneously, there being no defect of jurisdiction in the officer, it is a justification to the sheriff. (13 John. 444. 19 John. 39. id. 7. 1 Cowen, 309.) The alteration of the writ, subsequent to its execution, could not deprive the sheriff of his justification under it, if it was originally sufficient to justify him. The alteration was made without his authority; and he was not responsible for the act of his deputy in that respect. But the principle ijlied on by the defendant’s counsel, does not apply to a case like this. The motion for a new trial must he denied. New trial refused.