
    The People vs. Cassels.
    The judgment or decision of a court or officer having competent jurisdiction can- ■ not be reviewed on habeas corpus ad, subjiciendum; but if the decision be erroneous, the remedy is by certiorari or writ of error.
    Accordingly, where the return to a habeas corpus showed that the person sought to be relieved was detained under a commitment by a magistrate for contempt as a witness in refusing to answer questions relating to a criminal complaint; held, that the officer before whom the writ was returnable had no right to en-quire into the truth of the facts adjudged by the committing magistrate, nor whether the questions put to the witness were proper, nor whether he was privi leged from answering.
    The officer, however, may enquire whether the process of commitment be valid on its face, and also whether any cause has arisen since the commitment for putting an end to the imprisonment. Per Bronson, J.
    The officer may also enquire whether the committing magistrate had jurisdiction; and this, notwithstanding a recital of the necessary jurisdictional facts in the commitment.
    Where the return shows that the party is restrained of his liberty without the authority of legal process—e. g. by a parent, husband, master or guardian—the truth of all the matter's returned is open to investigation. Per Bronson, J.
    A justice of the peace has no power to issue process of arrest for a crime committed in another county, though the offender be in the county where the justice resides. Semble.
    
    Otherwise, where the crime was committed in the county where the justice resides, though the offender has escaped into another county.
    Where a witness was committed by a justice for refusing to answer questions put with the view of eliciting facts on which to found a criminal warrant of arrest, the party accused not being in the county where the justice resided, and the offence itself committed elsewhere; held, that the justice acted without jurisdiction, and that the witness was entitled to be discharged on habeas corpus.
    
    In such case, however, notice of the proceeding by habeas corpus must be given to the district attorney pursuant to 2 12. S. 569, § 47; and if an order of discharge be made without such notice, it will be reversed on certiorari.
    Certiorari to Samuel McKoon, judge of the Chenango county courts, counsellor &c., to remove proceedings before him upon habeas corpus. On the 12th of July, 1842, he issued a writ of habeas corpus directing the sheriff of Chenango to have before him the body of John M. Cassels, together with the cause of his imprisonment &c. The writ was executed the same day, and the sheriff returned that he detained Cassels in his custody in the jail of the county by virtue of the following commitment:
    “ Chenango county, ss : F. S. Edwards, Esquire, a justice of the peace of said county: To any constable of the said county, and to the keeper of the common jail of the said comity. Whereas, on the trial of a cause this day before me, the said 'justice, upon the examination of one Sally Grant on a criminal complaint, John M. Cassels was called and sworn as a witness on the part of the people, and on his examination as such witness the said John M. Cassels was asked by Roswell Jackson, Esq’r, counsel for the people, whether he knew or had learnt in what manner Betsey L. Stafford went to Troy, to which question the said John M. Cassels refused to make any answer, and the said Amos Stafford having made oath before me that the testimony of the said John M. Cassels was material upon said examination. These are, therefore, in the name of the people of the state of New-York, to command you, the said constable, forthwith to convey and deliver the said John M. Cassels into the custody of the keeper of the said common jail, and you, the said keeper, are hereby required to receive the said John M. Cassels hito your custody in the said common jail and there him safely keep until he shall submit to answer the said question so put to him on the said examination or shall be discharged by due course of law. Given under my hand and seal this 11th day of July, 1842.
    F. S. Edwards, [l. s.]
    Justice.”
    The judge, without causing notice to be given to the district attorney, proceeded to enquire into the matter. Cassels, the prisoner, was examined on oath,
      
       and a witness was examined on his behalf. The testimony tended to establish the following facts: In June, 1842, Cassels was arrested and examined before Justice Briggs on a charge of kidnapping and carrying off one Betsey L. Stafford from the county of Chenango to the city of Troy, Rensselaer county. After having been kept under examination about a week, he was discharged by the justice for the want of evidence. He was then summoned to appear before Justice Edwards as a witness on the 11th of July, and was then sworn and examined, for the purpose, as was said, of eliciting facts upon which a warrant might be issued against one Sally Grant, of the city of Troy, for her alleged agency in procuring the abortion of Betsey L. Stafford at the city of Troy, which was followed by the death of said Betsey. When Cassels was sworn, he was not examined touching the supposed guilt of Sally Grant, but was required to state what he knew about the transportation of Betsey L. Stafford from Chenango to Rensselaer county. Wlien asked the question mentioned in the commitment he declined answering it, on the ground that it might form a link in a chain of evidence tending to criminate himself. Sally Grant was not before the justice, and it was not alleged that she was in the county of Chenango, or that she had ever committed any crime in that county—the crime imputed to her having been committed in Rensselaer county, where she resided.
    The judge decided, that Justice Edwards acted without authority in the proceeding upon which Cassels was sworn as a witness, for the reason that Sally Grant was neither before the justice, nor in the county of Chenango at the time, and it was not alleged or pretended that she had committed any offence in that county, but only in the comity of Rensselaer where she lived: and on that ground an order was made discharging Cassels from imprisonment. The district attorney brought this certiorari to reverse the proceedings before the judge.
    
      G. M. Smith, (district attorney,) for the people.
    
      B. F. Rexford, for Cassels.
    
      
       See The United States v. Wyngall, (ante, p. 16.)
    
   By the Court, Bronson, J.

If the justice had authority to inquire into the alleged offence of Sally Grant, the commitment of Cassels could not be impeached upon habeas corpus for any supposed error of the justice in requiring the witness to answer an improper question. A contempt was specially and plainly charged in the commitment, and it was the duty of the judge forthwith to remand the prisoner. (2 R. S. 567, § 40.) The statute expressly forbids an inquiry into the justice or propriety of the commitment in such a case. (§ 42.) If there had been no such statute, it is clear upon principle, that the judgment or decision of any cotut or officer of competent jurisdiction cannot be reviewed on habeas corpus. If there has been error, the remedy is by certiorari or writ of error. When the return states the imprisonment to be by virtue of legal process, the officer may inquire whether in truth there be any process, and whether it appears upon its face to be valid; and he may also inquire whether any cause has arisen since the commitment for putting an end to the imprisonment, as a pardon, reversal of the judgment, payment of the fine, and the like. But he cannot rejudge the judgment of the committing court or magistrate. (Matter of Clark, 9 Wend. 220; The People v. McLeod, 1 Hill, 404; Sheriff of Middlesex, 11 Ad. Ellis, 273; 3 Hill, 658, note, pl. 30, 31.) The principal, if not the only object of the forty-eighth section of the habeas corpus act, was to provide for cases where the party is restrained of his liberty without the authority of legal process. In such cases the return is usually made by a person having an interest in the question, and who has exercised the restraint upon his own responsibility, as the parent, husband, master, or guardian of the person imprisoned; and it is very proper that the facts which they state in the return should be open to investigation, But it is otherwise when the return is made by an officer having legal process. It is evident from the fortieth section of the statute that the legislature did not intend to provide for a re-trial by habeas corpus in such a case. The review is by certiorari or writ of error. It is quite clear, therefore, that the judge had no authority to inquire into the truth of the fact adjudged by the committing magistrate, to wit, that the prisoner was in contempt for not answering á question put to him when giving his evidence; nor could he inquire whether the question was a proper one, or whether the prisoner was privileged from answering it.

But the prisoner had an undoubted right to show that the committing magistrate acted without authority; and this is so, notwithstanding the commitment recite the existence of the necessary facts to give jurisdiction. No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends. Now it turns out, as the judge has found the facts, that this supposed contempt did not happen, as the commitment states, on the trial of a cause” before the justice, nor upon the examination of one Sally Grant on a criminal complaint.” Sally Grant was never brought before the justice. She was not in the county of Chenango, nor was it pretended that she had ever committed any offence in that county. The crime which they were attempting to fasten upon her was committed in the county of Rensselaer, where she lived. A justice of the peace is for some purposes a town officer and for other purposes a comity officer. He may issue process for the arrest of offenders where the crime was committed in his county, although the criminal may have escaped into another county. (2 R. S. 706, § 1 to 5.) And possibly he may issue process when the offender is in his comity, although the crime was committed elsewhere. We are, however, inclined to a different opinion. But it is not now necessary to settle that question. Here, neither the crime nor the offender was in Chenango, and the justice was without the shadow of authority in attempting to inquire into the matter. The whole proceeding was coram non judice. Indeed it wears the appearance of an attempt to pervert justice, by getting up a sham complaint against Sally Grant, for the purpose of compelling Cassels to criminate himself, after a failure to find evidence to sustain the charge which had previously been made against him. But I ought to mention that the justice has not been heard upon this matter; and as there are usually two sides to every case, it is not improbable that the facts may hereafter assume a different appearance.

This leads to the remark, that no notice of the proceedings upon the writ of habeas corpus was given to the district attorney. The statute provides that he shall have notice before the discharge, when it appears from the return that the prisoner is detained “upon any criminal accusation.” (§ 47.) The proceeding for contempt against Cassels was criminal in point of form, and it grew out of a criminal proceeding, where, if the alleged crime had been committed in Chenango, it would have been the duty of the district attorney to see that the ends of public justice were not defeated by permitting the witness to be discharged before he had submitted to answer a proper question ; and 1 think notice should have been given. When the prisoner is in custody under process in which any other person has an interest, such .person, or his attorney, must have notice. (§ 46.) Taking the two sections together, I think the legislature intended there should he notice to some one in all cases where the prisoner is in custody under legal process; and that the words criminal accusation” in the forty-seventh section were intended to include all cases where the public, and not an individual, is interested to continue the imprisonment. Here the statute has been so construed that nobody has had notice, and it is a dangerous mode of administering justice to hear only one side. I may add, that the evidence upon which the judge acted in discharging Cassels was not of the most satisfactory character.

We think the want of notice to the district attorney a fatal objection.

Proceedings reversed. 
      
       See 3 Hill, p. 660, note, and the cases there cited.
     