[indorsement]

Ex parte Benj. Irish:

Filed July 12th 1841 A. Treadway Clerk

Sup Court 4th Circuit

[opinion]

Ex parte Benjamin Irish

Habeas Corpus ad Sub[m:i

The party (Irish) was brought before me by virtue of a writ of Habeas Corpus: The writ was directed to the Sheriff of Oakland County, who returned, in obedience to the writ that he held Irish in custody by virtue of a capias ad Satisfaciendum issued out of the Circuit Court of the County of Genesee.

It appears that judgment was rendered in Genesee *96County, in favor of Ge0 W Wisner & against Irish for $50 & costs: that the action brought by Wisner was for a libel, which I take it for granted authorized the suing out of a ca sa, on the judgment:

The only objection to the writ is, that it directs the Sheriff of Oakland County to commit Irish to the jail in Genesee, in the event that no goods & chattels &c can be found to satisfy the execution: it is contended that if imprisoned at all, he must be imprisoned in the County in which he resides, & that, therefore, the writ should have directed the Sheriff accordingly.

Upon a review of the Statutory provisions on the subject, I am clearly of opinion that the objection to that part of the writ, which commands the Sheriff to commit the defendant to the Keeper of the jail in Genesee is well taken: It is a well established principle that the Sheriff must obey the command in the writ: by it he must be guided: If that officer, contrary to the command in the writ, should undertake to incarcerate Irish in this County, he would, I think, be liable in action for false imprisonment: this would result from the disobedience of the command in the writ, not withstanding the place of confinement is the one designated by law; for the Sheriff is a mere ministerial officer, & cannot of consequence exercise a discretion which is strictly judicial: So much, then, of the ca sa as directs the Sheriff to deliver Irish to the Keeper of the jail in Genesee, is irregular, & therefore void:

It is, therefore, ordered & adjudged, & I do accordingly order & adjudge that the Sheriff of Oakland County do release & discharge from his custody the said Benjamin Irish, provided he be held by none other than the writ of capias ad satisfaciendum aforesaid:

Chas W Whipple

Pontiac 12 July 1841. Asso Jus Sup Court.