Corlies v. Wyckoff

7 Cow. 145

• Court: New York Supreme Court
• Decided: May 15, 1827
• Status: Published

Opinion

Curia, per Savage; Ch. J.

- 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 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.