
    Jackson against Smith, Sheriff, &c.
    where, on the eosts^on'a’j'uis“jfl ejectnient°Vjy A. but while be the tenant who had entered into the consent rule, an attachment was issued to bring A. before the court to answer, and the sheriff to whom the attachment was issued arrested was in custody was served with an order for ms mseharges made by the court of common pleas, from ms eustouy; m an auuuii aptwi me auuiui uj- uie piaunm m tne action oí ejee,. ment, it was bebí, that the order of the court of common pleas was void, as A. was not in custody on a conviction for a contempt, but only to answer; and that the sheriff was liable for the amount of the costs recovered against A.
    
    THIS was an action on the case. The declaration stated, that an action of ejectment was commenced in this court, in November term, 1806, by the plaintiff, on the demise of Christopher Humphrey, against John Stiles; and that one Oliver Brown, the tenant in possession, appeared and was made defendant, in the place of the casual ejector, and entered into the usual consent rule. That at the circuit held in the county of Seneca, on the 22d of June, where the said cause was noticed for trial, the said Oliver Brown refused to appear, and confess lease, entry and ouster, according to his stipulation in the consent rule, by reason whereof the plaintiff could, not further prosecute his suit, but became nonsuit; that at the next August term, the plaintiff took a judg-. ment by default against the casual ejector, agreeable to the terms of the consent rule, as appears, &c, and the costs thereon were, afterwards, taxed at 63 dollars and 79 cents, and were duly demanded of the said Brozvn, who refused to pay the same; that such proceedings were thereupon had; that, in the term of November, 1807, it was ordered by this court, that an attachment should issue against the said Brozvn for his contempt, jn not paying the said costs ; that in pursuance of such, order, a writ of attachment was made out and delivered to the defendant, as sheriff of the county of Seneca, on the 11th January, 1808, commanding him to attach the said Brozvn, &c. so that he might have his body before, the justices, &c. of this court, at, &c. on the 8th February, to answer, &c. That the defendant, afterwards, and before the return of the attachment, arrested the said Brozvn, and had him in his custody. Yet the defendant, afterwards, contriving, &c. on the 5th February, 1808, without the consent of the plaintiff, suffered the said Brown to go at large, out of his custody, See, by reason whereof, &c. and therefore, &c.
    The defendant pleaded in bar, that while the said Brozvn was in his custody, on the said attachment, the court of common pleas of the county of Seneca, on the petition of the said Brozvn, and pursuant to the act for the relief of debtors, with respect to the imprisonment of their persons, made an order for the discharge of the said Brozvn, from the custody of the defendant, on the said attachment; and that, on the same day, the defendant being served with a copy of the said order, he, in obedience thereto, discharged the said Brown from put of hi§ custody, on the said attachment; and this, •See.
    
      ■ X o this plea the plaintiff demurred, and the defendant „ . , . , joined in demurrer.
   Per Curiam.

The court of common pleas discharged Brown upon the supposition, that he was in custody after a conviction of a contempt, for not paying the costs of the action in ejectment, pursuant to the stipulation in the consent rule. In this they were mistaken. The attachment, by virtue of which he had been arrested, was nothing more than a process to bring him into court, to answer the interrogatories which, upon the return of it, Were to be exhibited against him. This is necessary to be done in every case, before a party can be convicted of a contempt. If the answers to the interrogatories show that no contempt has been committed, the party is entitled, at law, to his discharge; but if the contempt be admitted, .the court proceed to pronounce such judgment as the circumstances of 'the case may require. If he is ordered to be committed, then, and not before, is he in custody upon a conviction. (4 Bl. Com. 483.) The court of common pleas, therefore, interfered prematurely, and their discharge is void.

'J’he plaintiff is entitled to judgment.

Judgment for the plaintiff.  