New York Supreme Court, 1824

Bryne v. Morris

New York Supreme Court · Decided February 15, 1824

2 Cow. 472

Counsel

J. Anthon, for the defendant,, R. Emmet & C. White, jun. contra., Anthon, in reply.

Opinion of the Court

Curia.

The question is, whether this is to be considered the ordinary return of cepi corpus, or cepi corpus in custodia. It is perfectly evident that the latter was not intended. The Sheriff served the writ,and the defendant was so. sick that he could not be conveyed to prison with safety. If he was in the custody of the Sheriff in the county prison, it is immaterial whether he was sick or well, and it would be *477idle to mention this fact of sickness in the return, unless it was intended as an excuse for not committing' him to jail. He never was committed to prison ; and it is in this case only, that the plaintiff is bound to designate the place of imprisonment in his declaration, or serve it either personally upon the defendant, or deliver it to the jailer. If "the defendant has never been in jail, service on the jailer would be a nullity. We think this is to be considered a return of cepi corpus, simply, and all the additional matter contained in the return may be rejected as surplusage, though it would form a very good ground for a Judge’s enlarging the time to plead, or an excuse for omitting to defend, upon motion to set aside a default on the ground of merits. By a return of cepi corpus, the defendant is considered in custody, for the purpose of giving the Court jurisdiction.

This was treated on the argument for the defendant, as the English return of languidus ; but it is not so. In England, the King’s Bench and Common Pleas have their respeetive prisons: the Marshalsea belongs to the former—the Fleet to the latter; and sometimes, when the defendant is sick in a remote part of the kingdom, the Sheriff, instead of committing him to one of these prisons, as he is required to do by the process, confines him in the county prison, and then makes the return quod est languidus in prisona domini regis. But the practice upon a return of languidus has no application to this case. The moment the Sheriff arrests the defendant, he is in custody, and the Sheriff may so return, though in fact he suffer him to go at large without bail. The plaintiff has proceeded regularly, and the motion to set aside the proceedings must be denied.

Motion denied.(a)

Before the 23 H. 6, on. 9, A. D. 1445, (enacted in this state, 1 R. L. 423, s. 13,) the sheriff was not obliged to let to bail persons arrested on mesne process ; and in case of his refusal, they we, e obliged to sue out a writ de manucaptione, (2 H. BI. 433, 4.) If to a capias he returned cepi corpus et paratum Jiabeo, he was bound to have the body at the return of the writ; and, on failure, was amerced. (Dalt. Sh. 211, 213.) But if he returned cepi corpus, et quod est languidus in prisona this was a good re*478turn, if true that the party was sick; and a duces tecum might be awarded to the Sheriff to bring in the prisoner; or the defendant, if he would appear, might be received so to do. (Id. 213.) If the return was false, the Sheriff was liable to be punished by fine and imprisonment. (Id.) Whether a return of languidus est was good, without adding in prisona, was, in the time of Dalton, not well settled. (Id.) The returns of languidus given by him are as follows: “ By virtue of this writ, A. B. within named, is taken by his body and is detained in prison or jail, so sick that I cannot have his body at the day and place within contained, without danger of his death.” Another: “ By virtue of this writ to me directed, I have taken the body of the within named J. S., which said J. S. is in the prison of our lord the king of C. so sick that, for fear of his death, I cannot have him before the Justices within written, at the day and place within contained, as within I am commanded.” Another : (like the last as to the caption) “ Which said J. is afflicted with so many infirmities, that I cannot have him without great danger of his death, on account of the debility of his body, before the Justices within written, at the day and place within contained, &c. (Id. 211.)

Am action did not lie for a false return of languidus. (Boles v. Lassels, Cro. Eliz. 852.) The Sheriff was liable to an amercement only. But an action lay for a false return of cepi corpus, if he had not taken bail. (Roll. Ab. 807. Bac. Ab. Sheriff, (O).)

Where there was a return of cepi corpus, and the Sheriff did not produce the defendant, the ancient mode of compelling him so to do was by amercement ; and this practice appears to have continued from the earliest times down to the beginning of the reign of Geo. 2, and to have given way to the proceeding by attachment at some period between the years 1724 and 1729. (Vid. 2 H. Bl. 434, a, (a) where all the authorities on this subject are fully cited.)

It will be seen by the opinion of the Court, and the argument in the principal case, that this bringing in the body, or in the language of our capias, having it before the Justices, &c., anciently meant an actual delivery of the defendant to the Marshal of the Marshalsea. But in this state every county prison is a Marshalsea for the Supreme Court, and a return of the defendant cepi corpus in custodia gives the Court jurisdiction, though it import no more than that the defendant is in the jail of the particular Sheriff who makes the return. (1 R. L. 353, s. 11.)

The rule to bring in the body has entirely lost its ancient meaning, and in the process of time has come to require no actual interference whatever with the body of the defendant, but a putting in special bail. (Vid. Dunl Pr. 195, and cases there cited.) This bail is the Marshal, upon a cepi corpus, as the Sheriff is upon a cepi corpus in custodia.

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