Ex parte Badgley — 7 Cow. 472

Majority

p. 472

Ex parte Badgley.

ALBANY,

Oct. 1827.

Headnote

Where there are two causes of imprisonment, 0110 good and tile other invalid, the court niay, on lzabeos corpus, discharge as to the invalid cause, re• manding the prisoner as to the other.

The force of a special 1)011 piece is spoilt by arrest on a Ca. sa., though the prisoner escape; and be cannot afterwards I,e surrendered by his special bail.

A surety for the jail liberties has no power, assuch, to surrender his principal to close confinement.

To warrant this, the technical relatioti of principal and bail must exist.

ON habeas corpus to the sheriff of Oolumbia. Two suits were commenced, and judgments obtained in this court against Badgley; in both of which Wager became special bail. In one, a Ca. sa. issued; and the defendant being arrested by the sheriff of Columbia, Wager became surety for the jail liberties; whereupon Badgley escaped. Wagei pursued, took and surrendered him to the custody of the sheriff of Columbia, claiming to do so in virtue of corn~?rn~ttiturs indorsed on both of the original bail pieces, and as surety for the liberties. Badgley was accordin~y detained in close custody, having declined to renew his surety bond for the liberties in the suit wherein he was committed upon the Ca. sa.

S. Cleveland

now moved that he be discharged from close confinement as to the suit in which the ca. sa. issued. He said this might be done; though he conceded that he stood properly committed as to the other suit. The prisoner could then obtain sureties as to the latter; and go at large on both. This was not denied on the other side. But

E. Williams, for Wager,

insisted, that he had a right of surrender, on fresh suit, as surety for the liberties. He likened it to the case of surety by recognizance in a criminal case, upon which he said Van Ness, late justice, had expressed an opinion that there might be a surrender. And one Gardinier ~ras, upon that opinion, surrendered to the sheriff.

p. 473

He said the sheriff had this right on proper cause. (1 R. L. 429, s. 6; 10 John. 549 .) And the surety should *be allowed to stand in bis place. (Barry v. Mandell, 10 John. 563 , on error.)

Cleveland, in reply,

supposed the point too plain for argument. He said the statute gave this right to the sheriff in the single case of his supposing the .sureties to be insufficient. Independent of the statute, he had no such right. It is confined to the particular case mentioned. The statute pre-supposes no general right of close confinement at common law; and is so far an argument against the surety. The two cases rest on different principles. The case supposed by the statute can never exist as to the surety.

We agree with counsel, that we may discharge as to imprisonment upon the ca. sa. though it be regular upon the committitur in the other suit. The bail piece which was followed by the ca. sa. had lost its force by an imprisonment of the body upon that writ; and there was no right to surrender upon the limit bond. This creates the relation of principal and surety, not of principal and bail. The latter relation is necessary to warrant a surrender. We are not aware that this rule has ever been departed from, except in the case mentioned as having been before the late judge Wan Hess, upon a recognizance of bail in a criminal case. Without expressing an opinion upon that case, we are clear that a case of surety for the jail liberties, which is not matter of record, but exists merely in pais, does not warrant a surrender, any more than the case of any other surety. The prisoner must be discharged as to this cause of imprisonment.^[1]

Eule accordingly.

[1] [1] See N. Y. Dig. vol. 2, tit. Habeas Corpus.