majority">

The opinion of the court was delivered by

Royce, J.

The complainant does not deny, that, under the proviso to section 63 of chapter 28 of the Revised Statutes, his arrest and commitment were legal; but he claims, that his imprisonment has since became unlawful, in consequence of his compliance with the provisions of the statute of Nov. 5, 1845.

It is first objected, in behalf of the creditors, that the case is not proper for the writ of habeas corpus, but that the complainant should be put to his audita querela. This objection would have much force, and probably be decisive, did the party ground his claim to be discharged upon any matter in pais, upon which an issue suitable for a jury trial might be expected to arise. But, when all is made to depend upon certain papers, or documents, prescribed by statute, the objection does not hold.

It is farther objected, that the statute of 1845 does not apply to a case, where an execution has issued against the body, oh the ground *404of conformity with the original writ, and not by virtue of an affidavit filed at the time of praying it out. As the statute of Nov. 1, 1843, has required the previous statute to be so construed, as to embrace an execution under the name of a writ of attachment, so that an affidavit may be filed at the praying out of an execution, as well as an original writ, it is assumed, that the statute of 1845 has reference only to the case, where an affidavit has .been filed, at the praying out of the very writ, on which the arrest is made. This objection would be entitled to weight, did the statute direct an endorsement, or minute, of the affidavit to be made upon the process. But this is not required. And as the statutes upon this subject should be liberally construed, in furtherance of the general policy of abolishing imprisonment for debt, a class of cases coming within the reason of these enactments ought not to be excepted from their operation, so long as they are not excluded by express words, or manifest intention. And hence we consider it a just conclusion, that, whether an affidavit under the first statute has been the immediate or remote cause for issuing the writ in the form of a capias, the debtor, if arrested, is entitled to the benefits of the statute of 1845.

It is also claimed, as the only proper construction of this last statute, that its provisions must be complied with before the commitment of the debtor. The statute certainly requires great diligence and expedition on the part of the debtor; — he is to notify the officer, at the time of his arrest, that he intends to avail himself of the benefit of the statute; — he is thereupon to give a like notice to the creditor, and immediately thereafter to appear and have a hearing before the authority signing the writ. And it is doubtless the more obvious inference, that all these measures will be taken before commitment. But the statute imposes no restraint, or delay, upon the officer, while it professes to secure this right to the debtor. And we are unwilling to admit, that the purpose of the statute can be defeated by the creditor, or the officer, if the debtor is guilty of no neglect, and is able to complete the requisite proceedings after his commitment. In many cases this would, indeed, become impossible. But in this instance the complainant was enabled to follow out the provisions of the statute. He gave the several notices in due time, appeared before the clerk, had a hearing, and procured a .sufficient certificate to be duly endorsed upon the execution.

*405It is also urged, as an objection to the relief now sought, that the complainant procured the liberties of the prison by executing a jail bond. That fact, however, did not operate to put an end to his imprisonment, but only to change the mode and character of it; to most, if not all, legal purposes he was a prisoner upon the execution still. And it appears, that-he has since been recommitted by his surety, and is again confined in the walls of the jail. Hence it is only as a waiver of protection under the statute of 1845, that the giving of the bond can be insisted on as any bar to the present application. It may be conceded, that such an act would, of itself, furnish some evidence of the waiver supposed, it having a slight analogy to the act of procuring bail on mesne process, when the party might have claimed his.immediate discharge from arrest. But upon all the facts before us no such waiver would necessarily be implied by law, and it is certain that none was intended by the complainant, since he continued to prosecute his claim for relief under the statute.

I have thus noticed all the grounds taken in defence, which can be regarded as peculiarly applicablé to this new case arising under the statute. The other objections urged have never been allowed to prevent the discharge of a party upon the writ of habeas corpus.

We therefore come to the conclusion, that the prisoner must be discharged.

Citation profile

How this case has been treated — in progress