of New York, where its own process was set aside, because it conflicted improperly with the jurisdiction of a state officer which had previously attached.

In the matter of Martin, 2 Paine C. R. Rep., 348, Thompson, J., said:

"This is a motion to quash the writs de homine replegiando, issued out of and made returnable in this court, by which the marshal is commanded that he cause to be replevied Peter Martin, otherwise called Lewis Martin, a citizen of the state of New York (whom John Enders and John Grace, citizens of the state of Virginia, have taken and do keep, &c.). From the affidavits upon which this motion is founded, it appears that Peter was claimed as the slave of John Enders, and owed labor and service to him at the city of Richmond, in the state of Virginia, from whence he escaped. Upon satisfactory proof of these facts being given to the Recorder of New York, he allowed a habeas corpus, upon which Peter was taken and brought before him. But before the Recorder had decided upon the case, the writs of homine replegiando were issued to the marshal of this district, and the custody of Peter was transferred from the sheriff to the marshal. Certain proceedings were afterwards had in the Supreme Court of the State, which it is not material here to notice. At a subsequent day, to wit, on the 20th of October last, Peter was brought before the Recorder, who after having heard the proofs and allegations of the parties, granted a certificate according to the provisions of the act of Congress, of February, 1793.

"It is not material to examine whether or not the Recorder had authority to allow a habeas corpus to bring before him the party examined as a slave. Admitting he had no authority to allow it, yet when the party was brought before him he acquired jurisdiction of the case, unless the act of Congress is unconstitutional and void. The claimant had a right to arrest the fugitive without

any process, and that right is not taken away or relinquished by having such process.

"The Recorder, therefore, had jurisdiction of the case, and authority to proceed in the inquiry whether the person so seized and brought before him, doth under the laws of the state from which he fled, owe service or labor to the person claiming him.

"This inquiry may take up some time and require some delay for the purpose of procuring testimony; and whilst such examination is pending, the party must be deemed in the custody of the law, and the magistrate must necessarily have authority to imprison him for safe keeping.

"When, therefore, the writs of homine replegiando were served, the fugitive was taken out of the custody of the law; and this was an illegal execution of those writs whether the habeas corpus was void or not.

"If it was valid, the fugitive was in the custody of the sheriff of the city and county of New York, a state officer. And to permit the marshal, a United States officer, under a process issuing out of this court to take a party from the custody of the State officer, would be sanctioning a conflict that might be very serious in its consequences, and cannot be justified or excused.

"But if the habeas corpus was void, the execution of the writs of homine replegiando was illegal, for the fugitive was either in the custody of the law under the order of the recorder, or was in the custody of the complainant. If in the custody of the law, it was irregular to execute the writs pending the examination before the recorder; and if in custody of the claimant, a penalty of five hundred dollars is incurred by any person who shall knowingly and willingly obstruct the claimant in seizing such fugitive, or shall rescue such fugitive from such claimant when so arrested."

After considering the objections to the constitutionality of the act of Congress, of February 12,

1793, the judge concludes, "We are of opinion that the act of Congress, under which the certificate of the recorder was given is a valid and constitutional law; and that the writs of homine replegiando were irregularly issued, and must be set aside."

In the Commonwealth v. Whitney, 10 Pick., 434, which was a habeas corpus directed to the deputy jailer, it appeared that the prisoner had been seized and committed to prison on a judgment after the death of the plaintiff. Shaw Ch. J., said:

"The court are not prepared to say that the imprisonment was unlawful, so as to entitle the prisoner to his discharge forthwith, as a matter of right, but if it was, he has his remedy by writ of audita querela, in which the facts could be put in issue, and the rights of the parties more regularly settled. Lovejoy v. Webber, 10 Mass. R., 101. But it is readily perceived that it might be a case of great hardship, should an unreasonable time elapse after the death of a creditor, and no administrator be appointed, and may require an extraordinary remedy.

"The writ of habeas corpus is a summary process; the power given by it, is to be exercised under a sound discretion, and with reference to all the circumstances of the case. The proceeding at present is of necessity ex parte. No unreasonable time has yet elapsed (about a month) since the death of the creditor, for the appointment and qualification of an administrator. Whatever claims the prisoner might have to the extraordinary interposition of the power of the court for his relief under other circumstances, we do not at present perceive sufficient ground upon which to discharge him from his imprisonment, on this process."

Instances have occurred however, where relief against irregular commitments on civil process, has

been granted on habeas corpus, notwithstanding it might have been obtained, though not so speedily, on motion to the court from which it issued. In Ex parte Beatty, 12 Wend., 229, the Supreme Court discharged a man irregularly committed by process from the court of chancery. In Jones v. Kelley, 17 Mass., 116, the court relieved against excessive bail, which had been required in a civil action. In Nelson & Graydon v. Cutler & Tyrrell, 3 McLean, 326, the court discharged the defendants on habeas corpus, on the ground that the affidavit was insufficient, upon which the capias ad respondendum issued.

It would appear therefore, and it was conceded in The Bank of U. S. v. Jenkins, 18 John., 305, that relief might be afforded by either mode.

It deserves to be noticed, however, that in all these instances the power to interfere was exercised or asserted by a court not only superior to the court, or officer under whose process the imprisonment was claimed, but having by its constitution an appellate jurisdiction over such court or officer.

SECTION III.

CORRECTIVE JURISDICTION.

A superior court, in the exercise of its revisory jurisdiction, may discharge a prisoner held under criminal process, where the commitment is voidable only, or where the grounds of commitment are insufficient; but to justify this it must have, by its constitution, appellate jurisdiction in the given case,

and should exert its corrective power through process designed to bring under review the errors complained of, or the grounds of commitment.

1st. The court issuing the writ in such cases must be clothed with a supervisory power in the given

case.

It is not enough that it is a court of more extensive jurisdiction or of higher dignity; it must have the power of revision in the particular case; the power to correct or reverse the action of the inferior court.

Thus, In re Dimes, 68 Eng. C. L., 554, it was held that where a commitment was by a court over which the court issuing the writ of habeas corpus had no appellate jurisdiction, the grounds of the commitment could not be inquired into.

And the King's Bench would not on habeas corpus examine into the correctness of decision of a commissioner in bankruptcy remanding the prisoner, because it had not appellate power in such a case. Ex parte Partington, 51 Eng. C. L., 648.

Nor will the writ be granted where the party is held under a commitment of a coördinate court, on the ground of fraud on the court or collusion with the officer. Ex parte Cobbett, 53 Eng. C. L., 185.

2d. The court should exercise its corrective power by means of process calculated to bring under review the errors complained of, or the grounds of commitment. The process commonly employed for this purpose is the writ of certiorari. This writ is used in connection with the writ of habeas corpus-sometimes merely as ancillary to it, and sometimes as a writ of error.