Corlies v. Wyckoff — 7 Cow. 145

Majority

p. 144-1

*Corlies and others against Wyckoff, impleaded with Pickens and Mulky.

NEW YORK

May, 1827.

Headnote

Where joint theaQ p., and the ygeds^on Pthe arrest of one. tute, (l R. R. ^ move th« ^.8 and ^put

How the deckr^iisucii case.

Whether the plaintiff may bring in the other debtors on process simnlwm, in the supreme court.

A CAPIAS AD RESPOHDEHDUM was issued against all thre of the defendants jointly, to answer the plaintiffs in a of trespass on the case; returnable in the New York common pleas, September 3d, 1826. Wyckoff was taken, as to whom the sheriff returned cepi corpus, and as to the others non sunt inventi. The plaintiffs declared below, Whereupon Wyckoff sued out a writ of habeas corpus cum causa, in his own behalf, as being impleaded with Pickens and Mulky, returnable the 3d Monday of February last. This writ being returned, on the 19th of February, plaintiffs entered and gave notice of a rule to the defendant, (WyckofPs) attorney, for whom alone they were re-

p. 145

tamed, and had sued out the- habeas corpus, that- tht- defehdants appéaránd put in bail in 20 days, &c.-; or that "a procedendo issue. The rule and notice wére entitled against all three of the defendants, as if they had' all been "taken,' and sued- out their habeas corpus jointly. The return from tke:C. P. did not'state that-any of the defendants except Wyekoff had been taken'or detained in custody; but spoke ■ of Wyekoff, impleaded with the other defendants," as" being . taken and detained. Wyekoff put in special bail in the " same form, -'and notice was given in the'like form- to the plaintiffs’ attorney on "the- 10th:'day of :March "last.This the plaintiffs’ attorney ."disregarded, ;ahd issued "a procedendo.5

T. Fessenden

now moved -to -set aside the procedendo-asirregular. He conceded that1 in" England,"(and so in this court where all"the defendants are taken), the cause "must" be" removed as-to all the defendants. (1 Str. 527; 1 Tidd, 347; id. 341, 2; 4 Cowen, 69.) But he - insisted that the rule is different in this case, which was a proceeding against joint debtors, under our statute, (1 R. L. 521, s. 13.)

*B. Clark, contra,

cited 11 John. 199 ; 1 Dunl. Pr. 225; 4 Cowen, 69.

He said that, without bail, the plaintiffs "could nbt proceed in this court. The statute of joint debtors contemplates the case of a defendant’s being brought into court by the plaintiff’s process. Here he comes in by ..his own act. Had the cause remained below, we still' had a right to go on against the-other debtors- by-- process simul cum; and thus • obtain a final and conclusive judgment against all. The habeas corpus takes away this -right.- Here can be no outlawry.; for-we sued by capias.

- Neither our own cases cited," nor the English,- apply to the present. ■ They are cases at the common law. But the present is upon the statute of joint -debtors. This statute is unknown in England ; and" the practice under it has not been settled "by any "case in this couit'. The questibrf- before"' us - was" stated, but* not

p. 146

decided, in Youle v. Graham, ( 11 John. 199 ;) and the point is put with a~T"~re.

The only difficulty that can arise from allowing a habeas corpus to the defendant taken, is, where the plaintiff may wish to bring in the others. That difficulty does not arise here; for the plaintiffs declared, and were proceeding below against the debtor taken. Ho embarrassment arises from the distinction set up, that the defendant does not appear to be on the plaintiffs’ process; and the statute, therefore, not applicable. It-may be shown, to apply by .a special-introduction in the declaration, stating the defend.ant taken as in custody; and the others as returned by the sheriff of New York, on the process issued in the 0. P., not found; from which court, the cause has been removed into this court by habeas-corpus.

The motion must be granted. But as there was real doubt of the practice, we grant it without costs.

Motion granted.