M. Temple Taylor v. Frederick J. Syme.

are no creditors of the decedent within the State the reason of the rule has little force (Parsons v. Lyman, 20 N. Y., 103; Petersen v. Chemical Bank, 32 N. Y., 21; Toronto Gen. Trust Co. v. Chicago B. & Q. R. R., 123 N. Y., 37). The administration in the State of Louisiana, however, was, under the Revised Code of that State, as follows:

"Article 1220. The succession of persons domiciled out of the State of Louisiana and leaving property in this State at their demise shall be opened and administered upon as are those of citizens of the State, and the judge before whom such succession shall be opened shall proceed to the appointment or confirmation of the officer to administer it under the name and in the manner pointed out by existing laws."

"Art. 1668 (1681). Testaments made in foreign countries and other States of the Union cannot be carried into effect on property in this State without being registered in the court within the jurisdiction of which the property is situated and the execution thereof ordered by the judge."

Thus, the professed purpose of the administration in Louisiana was that the will of the testatrix might "be carried into effect on property in this (that) State." It did not purport to extend to the propery of the testatrix in the State of her domicile or in any other State, or to be a universal administration, but to cover the administration in that State, like the ancillary administraton sought in this State, the ancillary being supplemented to the principal administration, and, except as to domestic creditors, subordinate to it ($2700, Code Civil Pro.).

It is said that this is a collateral attack, but, as it is a question of the jurisdiction, the attack can be made collaterally. The defendant had no interest in the proceeding or standing to challenge it until the plaintiff asserted against him his right to represent Mrs. Kenner. He could do no more than raise the issue at his first opportunity.

The defendant also urges the Statute of Limitations of

Matter of Laura Leggat.

Louisiana as a defense. The Appellate Division held that it was not well taken, because the defendant took up his residence in this State before the expiration of five years after the maturity of the note. The question is an interesting one, but it is not necessary for us to decide it.

It follows that the plaintiff did not show his right to maintain this action.

The judgment must be reversed, with costs; granted; costs to abide the event.

new trial

PARKER, Ch. J.; O'BRIEN, BARTLETT, HAIGHT, MARTIN and VANN, J. J., concur.

Judgment reversed, &c.

IN THE MATTER OF THE APPLICATION OF LAURA LEGGAT TO PUNISH WILLIAM V. MOLLOY, SHERIFF OF

WESTCHESTER COUNTY, FOR CONTEMPT OF COUrt.

NEW YORK COURT OF APPEALS, APRIL TERM, 1900.

SS 2032, 2037, 2038 subd. 1.

Habeas corpus-Liability of sheriff for illegal discharge of prisoner committed in civil cause.

A county judge has no power, in habeas corpus proceedings, to order the discharge of a prisoner committed in a civil cause, without notice to the person who has an interest in continuing the imprisonment, or to his attorney, of the application to discharge.

An order made by a county judge discharging a prisoner who had been committed under an order of the Surrogate's Court, without any notice of an application for the order to the party interested in continuing the imprisonment, is void and affords no protection to the sheriff.

The sheriff who discharges a prisoner under such circumstances is liable to a fine, as for a civil contempt, imposed by the surrogate ordering the imprisonment (Code Civ. Pro., section 2038, sub. div. 1).

(Decided April, 1900.)

Matter of Laura Leggat.

Appeal from an order of the Appellate Division, Second Department, reversing an order of the Surrogate's Court of the County of Westchester, adjudging William V. Molloy, Sheriff of said County, guilty of a civil contempt of Court and imposing a fine upon him of $250, for that he discharged from the County Jail of said County Susie Slater Weeks, committed thereto by the mandate and commitment of said Surrogate's Court until she should make payment according to said mandate, without receiving such payment.

Jacob Marks, for appellant.

Justus A. B., E. B. & C. P. Cowles for respondent.

LANDON, J.-We assume that the sheriff, notwithstanding the informality of his proceedings in obedience to the command of the writ of habeas corpus issued to him by the County Judge of Westchester County, produced the body of Susie Slater Weeks before the Judge, and made return thereto that he held her in custody by virtue of the order of the Surrogate's Court of that County, and a commitment entered by the said Surrogate's Court upon that order and issued to the Sheriff, whereby he was commanded to take the body of Mrs. Weeks and commit her to the common jail of his County, and keep and detain her therein under his custody until she should have fully paid the sum of $935.53 and his fees thereon, or until she be discharged according to law.

The order and the commitment recited that in certain proceedings in the said Surrogate's Court of Westchester County, entitled "In the matter of the judicial settlement of the account of Susie Slater Weeks, executrix of the last will and testament of Loretta Slater, deceased," Susie Slater Weeks had been directed directed to pay to the persons therein named certain sums of money aggregating $935.53, and that such proceedings had been

Matter of Laura Leggat.

duly had in said Surrogate's Court as resulted in that Court adjudging her guilty of a civil contempt of court for disobedience of the order.

In the body of the commitment, and also indorsed thereon, were the names, among others, of Laura Leggat, this petitioner, and of her attorney, Jacob Marks, with his office address, also the names of other parties to whom payment was directed to be made, and of their attorneys.

The County Judge, upon the production of Mrs. Weeks before him with the order and commitment, and on motion of her attorney and without notice to any of the persons or their attorneys for whose benefit the Surrogate had committed Mrs. Weeks, indorsed upon the certified copy of commitment: "Discharged May 31, 1899, Smith Lent, County Judge," and thereupon the Sheriff discharged her.

The next day the County Judge signed a formal order which recited the production before him, by the Sheriff, of the body of Susie Slater Weeks, and the presentation to him by the Sheriff of the order and commitnent of the Surrogate's Court, and then proceeded: "The County Judge having examined the said commitment and order so presented by the Sheriff in response to said writ, and finding the same void upon the face, now, on motion of David H. Hunt, of counsel for relator, it is ordered that said relator, Susie Slater Weeks, be forthwith discharged."

In subsequent proceedings in the Surrogate's Court, instituted by the petitioner herein, that Court adjudged the Sheriff guilty of a civil contempt in releasing Mrs. Weeks, and imposed a fine of $250 upon him. The Appellate Division unanimously reversed the order of the Surrogate's Court.

The order of the County Judge was in direct conflict. with Section 2038 of the Code of Civil Procedure, which provides: "Where it appears from the return to either writ, that the prisoner is in custody by virtue of a mandate an order for his discharge shall not be made, until notice of the time when, and the place where, the

Matter of Laura Leggat.

writ is returnable, or to which the hearing has been adjourned, as the case may be, has been either personally served, eight days previously, or given in such other manner, and for such previous length of time, as the court or judge prescribes, as follows:

"1. Where the mandate was issued or made in a civil action or special proceeding to the person who has an interest in continuing the imprisonment or restraint, or his attorney."

It is said that the County Judge had jurisdiction of the person and of the subject-matter, and that, if he thereafter disobeyed the statute, it was but an irregularity or error to be corrected by appeal.

The proposition will not stand the test of examination. While the writ of habeas corpus to inquire into the cause of detention is of great antiquity, and the privilege of the writ is protected from suspension by the National and State constitutions, nevertheless, since the Revised Statutes, the law respecting it has been statutory in form. The revisers remark in their notes "that the law in relation to it should be brought into one general institution." The idea was that the law should be precisely stated, and not exposed to the differing views and modes of expression of different judges. This court said in People ex. rel. Tweed v. Liscomb (60 N. Y., 559) that the provisions of the Revised Statutes were in full accord with the common law. The sections of the Code of Civil Procedure relating to the writ are a re-division of the provisions of the Revised Statutes in harmony with a supposed more scientific method of expression and with some adjudications.

The judge before whom the prisoner is brought is not a law to himself; he finds the law already written. While Section 2031 provides that the Judge or Court “must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprisonment or restraint of the prisoner; and must make a final order to discharge him therefrom, if no lawful cause