Hornblower, C. J.
After giving this case all the consideration which the summary nature of the proceeding will admit of, and under all the light which the numerous cases cited, and the very able arguments of counsel have shed upon the subject, I find myself bound by law to remand the prisoner. In doing so, it is not my intention to intimate any opinion, upon the various points that have been discussed respecting the legality and regularity of the proceedings on the part of the plaintiffs. I wish to leave the defendant at liberty, without prejudice by any thing now said, to apply at bar, if he thinks proper to do so, for his enlargement on those grounds. But in my opinion, this is not a proper case for the discharge of a defendant out of custody, upon a writ of habeas corpus. Whether this defendant is lawfully or unlawfully imprisoned, does not depend upon any settled and fundamental principles of law; but upon rules and questions of practice that have arisen in the progress of an ordinary suit at law, which are under the control, and ought only to be settled at the bar of the court in which the suit is depending. The doctrine contended for by the defendant’s counsel, if once established, would soon draw into discussion and decision upon habeas corpus at chambers, a very great proportion of the ordinary litigation in civil suits. Every man conceiving [316]*316himself improperly arrested upon mesne or final process, or entitled to his. discharge upon the ground of some supposed mistake, irregularity or laches of the adverse, attorney, would at once sue out a habeas corpus for his enlargement. In short, it would lead to utter confusion in the prosecution of suits, and bring into conflict the different tribunals and officers of justice. We should be called upon in this way, not only to settle the law and practice in suits depending in the Supremé Court, but to interfere with the business and decide upon the rules and practice of the courts of common pleas. Not only so, but the justices of this court would be appealed to on habeas corpus, to determine upon the sufficiency of affidavits for bail, and the legality or regularity of discontinuances and other interlocutory proceedings in other courts. I do not wish to restrict the use of this valuable writ; but we must not suffer our partiality for a proceeding so justly dear to freemen, as is the writ of habeas corpus, to beguile us into an abuse of it. We must not apply it to cases it was never intended to reach; and in which the well settled rules and principles of the common law, as administered in our courts, have furnished sufficient guards, against the unlawful imprisonment of the citizen. It is true, the defendant is restrained of his liberty, and it may be, that he is improperly restrained. But in this case it is not by force or violence; nor yet, by mere pretence or color of law. It is upon process, by which, and for a cause of action for which, all other matters being right, he may be lawfully imprisoned. The only questions are, whether the writ was issued with legal and technical regularity ; and whether the defendant, under all the circumstances of the case, was properly arrested : questions, the court out of which the writ issued, is perfectly competent to decide, and which, the legal presumption is,'it will decide, when called upon to do so, according to law.
That the defendant may have to remain in custody until the next, or even to a subsequent term, proves nothing. His detention will be a lawful one until it can be decided by the proper tribunal, whether the plaintiffs have a right to detain him or not. His case is not an uncommon one; but like a great many others in which defendants are arrested and detained in custody, either of the sheriff or their bail, until by some interlocuto[317]*317ry or final order or judgment, it is ascertained that they never ought to have been arrested; or that the plaintiff had no cause of action against them. But it does not always follow, from such interlocutory or final decision, that the defendant was unlawfully imprisoned, in that sense of the expression which would entitle him to an action or to discharge upon habeas corpus.
If a judge, at chambers, upon a habeas corpus, is to inquire into and decide upon the right of a plaintiff to arrest a defendant, and hold him to bail in a civil suit, in which, upon general principles, the plaintiff is entitled to bail, where shall he stop ? Shall he limit himself to the inquiry, whether the proceedings are technically correct; or may he go further and enquire into the merits of the case, the honesty and justice of the plaintiff’s demand ? A defendant may be as unjustly and oppressively arrested on a regular, as on an irregular writ. So there may be a regular arrest without a just cause of action, and an irregular arrest where there is a just cause of action. In either case, the defendant in the general sense of the term, is unlawfully arrested. Where then shall the judge at chambers, terminate his inquiries ? If he substitutes himself, in the place of the court out of which the process has issued, I do not see where the practice is to end.
I am not a little strengthened in my opinion against entertaining this application by the singular and striking fact, that not a single case has been cited, which, either upon facts or principle, sustains the doctrine contended for. If the important and beneficial writ of habeas corpus ad subjiciendum, was designed for, or was in its nature susceptible of such a use, it is hardly conceivable that the love of liberty, and the ingenuity of counsel, would not, long before this late period of our legal history, have brought it into constant and familiar use. Although Congress has never passed any law similar to the celebrated habeas corpus act of 31 Car. II, or any act prescribing the cases in which writs of habeas corpus ad subjiciendum may be issued; yet, under a just construction of the constitution, and of the judiciary act, the Supreme Court of the United States have decided, that the federal courts and judges have as full jurisdiction and powers upon this subject, as the courts [318]*318at Westminster Hall. Ex parte Watkins, 3 Peters U. S. Rep. 201; Ex parte Bollman, 4 Cranch, 75; Ex parte Burford, 3 Cranch, 448 ; Ex parte Kearney, 7 Wheat. Rep. 38. In the case, Ex parte Watkins, just cited, Chief Justice Marshall says, “ the writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is, the liberation of those who may be imprisoned without sufficient cause. It is,” he says, “ in the nature of a writ of error, to examine the legality of the commitment.” And yet no case can be found, it is believed, in which any of the federal courts or judges have, upon habeas corpus, liberated a person from confinement on civil process. On the contrary, in the case, Ex parte Wilson, 6 Cranch, 52, Marshall, chief Justice, after consulting with the other judges, stated, that the court was not satisfied, that a habeas corpus is the proper remedy in a case of arrest under a civil process; and although in that ease, the prisoner was clearly entitled to his discharge under an act of Congress, the writ was refused.
The habeas corpus act of New-York, is more extensive than the British statute. The latter, like our statute, Rev. Laws 193, is confined to commitments for crimes and criminal matters. The former extends to and gives the judges in vacation, cognizance in all cases of imprisonment generally.
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Hornblower, C. J.
After giving this case all the consideration which the summary nature of the proceeding will admit of, and under all the light which the numerous cases cited, and the very able arguments of counsel have shed upon the subject, I find myself bound by law to remand the prisoner. In doing so, it is not my intention to intimate any opinion, upon the various points that have been discussed respecting the legality and regularity of the proceedings on the part of the plaintiffs. I wish to leave the defendant at liberty, without prejudice by any thing now said, to apply at bar, if he thinks proper to do so, for his enlargement on those grounds. But in my opinion, this is not a proper case for the discharge of a defendant out of custody, upon a writ of habeas corpus. Whether this defendant is lawfully or unlawfully imprisoned, does not depend upon any settled and fundamental principles of law; but upon rules and questions of practice that have arisen in the progress of an ordinary suit at law, which are under the control, and ought only to be settled at the bar of the court in which the suit is depending. The doctrine contended for by the defendant’s counsel, if once established, would soon draw into discussion and decision upon habeas corpus at chambers, a very great proportion of the ordinary litigation in civil suits. Every man conceiving [316]*316himself improperly arrested upon mesne or final process, or entitled to his. discharge upon the ground of some supposed mistake, irregularity or laches of the adverse, attorney, would at once sue out a habeas corpus for his enlargement. In short, it would lead to utter confusion in the prosecution of suits, and bring into conflict the different tribunals and officers of justice. We should be called upon in this way, not only to settle the law and practice in suits depending in the Supremé Court, but to interfere with the business and decide upon the rules and practice of the courts of common pleas. Not only so, but the justices of this court would be appealed to on habeas corpus, to determine upon the sufficiency of affidavits for bail, and the legality or regularity of discontinuances and other interlocutory proceedings in other courts. I do not wish to restrict the use of this valuable writ; but we must not suffer our partiality for a proceeding so justly dear to freemen, as is the writ of habeas corpus, to beguile us into an abuse of it. We must not apply it to cases it was never intended to reach; and in which the well settled rules and principles of the common law, as administered in our courts, have furnished sufficient guards, against the unlawful imprisonment of the citizen. It is true, the defendant is restrained of his liberty, and it may be, that he is improperly restrained. But in this case it is not by force or violence; nor yet, by mere pretence or color of law. It is upon process, by which, and for a cause of action for which, all other matters being right, he may be lawfully imprisoned. The only questions are, whether the writ was issued with legal and technical regularity ; and whether the defendant, under all the circumstances of the case, was properly arrested : questions, the court out of which the writ issued, is perfectly competent to decide, and which, the legal presumption is,'it will decide, when called upon to do so, according to law.
That the defendant may have to remain in custody until the next, or even to a subsequent term, proves nothing. His detention will be a lawful one until it can be decided by the proper tribunal, whether the plaintiffs have a right to detain him or not. His case is not an uncommon one; but like a great many others in which defendants are arrested and detained in custody, either of the sheriff or their bail, until by some interlocuto[317]*317ry or final order or judgment, it is ascertained that they never ought to have been arrested; or that the plaintiff had no cause of action against them. But it does not always follow, from such interlocutory or final decision, that the defendant was unlawfully imprisoned, in that sense of the expression which would entitle him to an action or to discharge upon habeas corpus.
If a judge, at chambers, upon a habeas corpus, is to inquire into and decide upon the right of a plaintiff to arrest a defendant, and hold him to bail in a civil suit, in which, upon general principles, the plaintiff is entitled to bail, where shall he stop ? Shall he limit himself to the inquiry, whether the proceedings are technically correct; or may he go further and enquire into the merits of the case, the honesty and justice of the plaintiff’s demand ? A defendant may be as unjustly and oppressively arrested on a regular, as on an irregular writ. So there may be a regular arrest without a just cause of action, and an irregular arrest where there is a just cause of action. In either case, the defendant in the general sense of the term, is unlawfully arrested. Where then shall the judge at chambers, terminate his inquiries ? If he substitutes himself, in the place of the court out of which the process has issued, I do not see where the practice is to end.
I am not a little strengthened in my opinion against entertaining this application by the singular and striking fact, that not a single case has been cited, which, either upon facts or principle, sustains the doctrine contended for. If the important and beneficial writ of habeas corpus ad subjiciendum, was designed for, or was in its nature susceptible of such a use, it is hardly conceivable that the love of liberty, and the ingenuity of counsel, would not, long before this late period of our legal history, have brought it into constant and familiar use. Although Congress has never passed any law similar to the celebrated habeas corpus act of 31 Car. II, or any act prescribing the cases in which writs of habeas corpus ad subjiciendum may be issued; yet, under a just construction of the constitution, and of the judiciary act, the Supreme Court of the United States have decided, that the federal courts and judges have as full jurisdiction and powers upon this subject, as the courts [318]*318at Westminster Hall. Ex parte Watkins, 3 Peters U. S. Rep. 201; Ex parte Bollman, 4 Cranch, 75; Ex parte Burford, 3 Cranch, 448 ; Ex parte Kearney, 7 Wheat. Rep. 38. In the case, Ex parte Watkins, just cited, Chief Justice Marshall says, “ the writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is, the liberation of those who may be imprisoned without sufficient cause. It is,” he says, “ in the nature of a writ of error, to examine the legality of the commitment.” And yet no case can be found, it is believed, in which any of the federal courts or judges have, upon habeas corpus, liberated a person from confinement on civil process. On the contrary, in the case, Ex parte Wilson, 6 Cranch, 52, Marshall, chief Justice, after consulting with the other judges, stated, that the court was not satisfied, that a habeas corpus is the proper remedy in a case of arrest under a civil process; and although in that ease, the prisoner was clearly entitled to his discharge under an act of Congress, the writ was refused.
The habeas corpus act of New-York, is more extensive than the British statute. The latter, like our statute, Rev. Laws 193, is confined to commitments for crimes and criminal matters. The former extends to and gives the judges in vacation, cognizance in all cases of imprisonment generally. It is co-extensive with the common law. Per Spencer, Just, in Cable v. Cooper, 15 Johns. Rep. 152; 2 Kent’s Com. 1 Ed. 25. Yet the courts or judges in New-York, have never gone so far as I am called upon to do on this occasion ; but on the contrary, it has been expressly decided there, that a judge at chambers, has no power to discharge on habeas corpus from imprisonment, on an execution out of a court of record. Yeates’ case, 4 Johns. Rep. 318; 2 Kent’s Com. 1 Ed. 28; Cable v. Cooper, 15 Johns. Rep. 152. In the last mentioned case, Van Ness, Justice, who delivered the opinion of the court, says, “ It may well be doubted, whether the statute gives to a judge in vacation, a right to discharge a party imprisoned on civil process. If it were necessary to decide that question in this case, and for the first time, I should say it does not.”
In the ease of the Bank, &c. v. Jenkins, 18 Johns. Rep. 305, it was admitted, that the ca. sa. under which the defendant was [319]*319in custody, had been unlawfully issued; yet the relief was refused. Spencer, chief justice, said, “ This court has power to relieve against all illegal imprisonments, either in civil or criminal cases. It is a power derived from the common law, and I know of no limit to it, but our sound discretion. But, we are of opinion that the writ of habeas corpus is not the proper remedy for the defendant in this case.” Kent, chief justice, in the case of Yeates, 4 Johns. Rep. 858, says, “ I apprehend that there is not an instance in the English law, of a judge in vacation, undertaking to decide upon the legality of a commitment in execution by the judgment of any court of record.”
The case of Hecker v. Jarrett, 1 Bin. Rep. 374, was an action for a penalty for re-committing a party who had been discharged from confinement on a ca. sa. by a judge at chambers on a writ of habeas corpus. But the judge in that case, had acted under the broad and extensive provisions of the act of Pennsylvania ; whether correctly or not, the court did not directly decide, and it is the only instance I have been able to find of such a proceeding in the reports of that state.
I do not intend by anything I have said, to interfere with the decision of Mr. Justice Ford, in the case of The State v. Ward, in 3 Halst. 120. The prisoner, in that case, had been committed on an execution out of a court for the trial of small causes. The imprisonment was not, perhaps, unlawful in such a sense as to render the plaintiff or the officer liable in an action for false imprisonment ; yet he was manifestly in confinement, contrary to the spirit and intention of the law, and under circumstances that entitled him to his liberation by some legal authority. If relief could not be extended to him upon habeas corpus, he was probably without remedy. At any rate, it will be time enough to question the correctness of that decision, when it shall be brought into review upon certiorari, or upon a proper state of pleadings in some action growing out of that, or some other such proceeding. Without committing myself at present, I will only say, the decision of Justice Ford does not really conflict with my views upon this subject, nor with the principles expressed by Spencer, chief justice, and Kent, chief justice, in the cases above cited. The court for the trial of small causes, is a statute tribunal of limited and specific jurisdiction; and [320]*320though, declared by the act creating it, to be a court of record, it is so only for the special purposes therein mentioned ; and is not to be assimilated to common law courts of record. Nor do I intend to limit the remedy by writ of habeas corpus in any other way than by- the exercise of a sound, legal discretion. I do not think the eighth section of the habeas corpus act, Rev. Laws 196, nor the thirtieth section of the act concerning sheriffs, Rev. Laws 243, excludes an inquiry into the cause of confinement, in every case where it is, or purports to be, by execution or other process in a civil suit. If only colorable or palpably illegal; as if in disobedience or contempt of a plain and unequivocal rule or order of a competent court: or if the execution or other civil process, was issued by a court not having jurisdiction over the party, or of the subject matter, the writ of habeas corpus may, for all I now see, be resorted to as a legitimate and speedy remedy. But it will be time enough to discuss such cases when they arise. It is sufficient to say, the case now before me is of a very different character. The writ on which the defendant is detained, is, in itself a legal and pr.oper one; the court out of which it issued is of competent jurisdiction. The only matter in dispute is the regularity of the process, and the validity of the arrest. These are points that must and ought to be debated at bar, before the court in which the cause is pending. They ought not, by means of a habeas corpus, to be drawn into discussion before a single judge at chambers. They are matters in the cause upon which the parties have a right to be heard before, and to have the opinion, of, all the judges composing the court.
Let the defendant be remanded.
Cited in State v. Sheriff of Middlesex, 3 Gr. 69.