
    In the matter of Lewis Sweatman.
    “ Oneida, ss. Fortune C. White, being duly sworn, says, that the within named Lewis Sweatman is a prisoner in the gaol of said county, on the within mittimus.
    Proceedings by habeas corpus, under the statute, (sess. 36, ch. 51, 1 R. L. 354.) Affidavit up-
    Sworn, &c. • F. C. White.”
      
    
    on which to procure allowance of tire writ.
    The preceding affidavit was indorsed upon the following mittimus :
    Mittimus or execution on conviction, or judgment, by special session, in a case of petit larceny.
    “ Oneida County, ss. To the keeper of the common gaol of the county of Oneida. At a Court of Special Sessions, held at the house of Asahel Curtiss, in Paris, in said county, on the 24th July, 1823—Present, Asahel Curtiss, Eliphaz Tyler and Samuel H. Addington, Justices of the Peace— Lewis Sweatman, labourer, being brought before us, by William Gere, constable, charged, on the oath and complaint of Abner Bacon, Jun. with having feloniously taken and carried away a quantity of wool in the rolls, from his carding machines, on the night of the 19th July, instant; and on being asked what he pleaded, acknowledged he did, on the 19th inst. take, steal, and carry away said wool, to the value of six or seven shillings; Therefore, we, A. C., E. T- and Sí H. A. ■, Justices, after hearing the prisoner in his defence, and due deliberation had, adjudge him, the said Lewis Sweat-man, guilty of petit larceny. Therefore, we adjudge and impose a fine of 15 dollars, and 30 days’ imprisonment in the county gaol at Whitestown, in said county ; and, on his neg-led or refusal to pay said fine, 4 months’ imprisonment in said county gaol. His having paid said 15 dollars to you, the keeper of the common gaol of the county of Oneida, at Whitestown, you are hereby required to keep him, the said L. S. in the said gaol, in close confinement, the full end and term of 30 days. Paris, July 24th, 1823.
    Whether ^ Stated" ex' pressly, that committed withm the der to give the ™®dmttfrapS^uQuet-e. And vid-. The People- v. Miller, 14 John. 371, that this is necessary in the record of conviction.
    (l. s.) Samuel H. Addington
    
    (l. s.)” Eliphaz Tyler.
    
    Whereupon the following writ issued:
    “ The people of the state of New-York, by the grace of God, free and independent;—To the Sheriff of the county ■ . r J of Oneida, Greeting. We command you, that you have the "body of Lewis Sweatman detained, a prisoner, under your custody, (as it is said) under safe and secure conduct, togetber with the day and cause of his being taken and detained, by whatsoever name he may bfe called in the same, before Nathan Williams, Esquire, a Circuit Judge, at his chambers, in the town of Utica, in the county of Oneida, immediately upon the receipt of this writ, to do and receive all and singular those things which our said Circuit Judge shall then and there consider of him in this behalf. And have you then there this writ. Witness, John Savage, Esquire, our Chief Justice, at the city of Neto-York, the 17 th day of May, 1823.
    Writ of h-i-teas corpus ad subpaendum, returnable be-ant the 5th sth1 article of *®n constitu-
    Breese, Clerk,
    FI C. White, Att’y.”
    Indorsed—“ By the statute.’*
    Allowed, August 4th, 1823.
    Indorsement and al owancQ thereon,
    Charges of bringing the prisoner, cents per mile.
    
      Ji. Williams, Circuit Judge,”
    
      Returned thus :
    the sheriff by his deputy,
    “ In obedience to the within writ, I, John E. Hinman, Sheriff of the county of Oneida, return, that the within name<I Lewis Sw caiman is detained in my custody, in obedience to the process hereto annexed. And I have the body °f Hie said Lewis, as by the within writ I am commanded, before the Hon. Nathan Williams, Esquire, a Circuit Judge, at his chambers in Utica. Dated August 4th, 1823.
    
    For John E. Hinman,
    
    
      F. Tibbeis, Deputy.”
    When the prisoner was brought up, the Supreme Court were in session at Utica ; and Judge Williams submitted the matter to them, by the following note, indorsed upon the wrj£ .
    . remitted to the supreme court.
    “ The within writ and return, together with the prisoner, are remitted to the Supreme Court, for adjudication.
    Respectfully,
    JV. Williams, Circuit Judge.”
    ■ And the mat- ° uedthere ar"
    Whereupon, {Aug. 4th) H. R. Storrs, for the prisoner, moved for his discharge. He took exception to the judgment of the Justices, that it was in the alternative, viz. to be imprisoned 30 days, and pay a fine of 15 dollars ; and, if such fine be not paid, that the same imprisonment be extended to 4 months. , He said the extent of the punishment was uncertain, and. made to depend upon a condition precedent—the payment or non-payment of the 15 dollars—of which the'gaoler is made the judge. It is, therefore, void.
    S. S. Beardsley, (District Alt’y) contra.
    It is true that all judgments and sentences must be such as are known to the law : and where a term of imprisonment makes a part of the sentence, it should bo certain and definite as to time. This is the rule, especially at the common law. But the sentence complained of is under a statute, which prescribes the sentence. And it is equally a rule, that in imposing a statute punishment, the Court must conform to its provisions. By this statute, (2 R. L. 508, s. 4,) on a conviction by a special session, the Court may impose a fine not exceeding twenty-jive dollars, or imprison in the common gaol of the county, not exceeding 6 months, or both, as the case may require.
    Thus, by the statute, an alternative judgment may be given. As to the fine and the imprisonment for 30 days, the judgment is certain; and even if it be void for the other side of the alternative, the prisoner must be remitted for the remainder of this term. A judgment may be reversed as to part and affirmed as to part. (Nelson v. Andrews, 2 Mass. Rep. 164. Glover v. Heath, 3 id. 252. Waite v. Garland, 7 id. 453. Whiting v. Cochran, 9 id. 532. Frederick v. Lookup, q. t. 4 Burr. 2018-22. Id. 2490. Smith et al. v. Jansen, 8 John. 111,116, and the cases there cited.) Suppose a sentence, by a special session, to four months’ imprisonment, and that the party pay a fine of $100 : the latter would be void, but could not affect the sentence of imprisonment, which is separate and disconnected with it. (Rex v. Collyer & Capon, Say. 44; mentioned, with approbation, by Spencer J. in the case of J. V. N. Yates, 4 John. 344. Id. 353.) Thus, in Rex v. Collier & Cape, (1 Wills. 332) the defendants were convicted of a misdemeanour, and sentenced to a term of imprisonment, of one month, which was holden well; but, by the same judgment, they were sentenced to ask pardon of the prosecutor, and advertise it in the Daily Advertiser. The latter was holden void, but the sentence of imprisonment had its effect. In that case, the prisoners were not brought up to be discharged, till the term had expired. In the present case, the application is premature, and the prisoner must be remanded, for the residue of the 30 days. But the Justices have done no more than to adjudge that the party be imprisoned, till the fine be paid, which is not to exceed 4 months. This is the fair interpretation of the sentence. Thus, they have kept within their powers, as delegated by the statute. Is there any doubt that they might have confined the convict, by sentence, till his fine be paid, indefinitely ? Where a fine is imposed, the statute makes the payment a condition of the discharge from prison. The words are : “ And the said offender, hav^ ing paid the fine, remained his term in imprisonment, or both, as the case may be, shall be forthwith discharged.”
    When a conviction is returned as the cause of commitment, the Court will not interfere, unless it be merely void. They will not discharge, if it be a doubtful case, but will tura the party over to his certiorari. (Bushell's case, Vaugh. 157-8. Rex v. Chandler, 1 Ld. Raym. 545-6. Anon. Cro. Car. 579. Brice's case, id. 593, Rex v. Collier & Cape, 1 Wills. 332.)
    So far as jurisdiction is concerned, the Justices must doubtless pursue their power strictly; but when found to have acted within their jurisdiction, their proceedings are, in all other respects, construed liberally. (Jones & Crawford v. Reed, 1 John. Cas. 20.) Being after conviction, the Court is bound by the strict legal right of the case. An exercise of discretion, in discharging prisoners, is confined to the period before conviction, when they are in custody merely for safe keeping.
    
      Storrs, in reply.
    We agree in the principle which requires certainty. The only difference is in its application to this case. It is denied on our part, that a judgment can be¡ in the alternative. Such a judgment is void ; and paying the fine, or lying in prison, can have no effect upon it. A compliance does not alter its nature or make it valid. 11. must be considered in itself. Being void, it is as no judgment. I agree, that where part of a judgment is good, and there is an excess of jurisdiction as to the residue, as in Rex v. Collier & Cape, cited from Wilson, a part may be good. That case presents a cumulative punishment, not an alternative one, like this, which is to pay a fine of Í 5 dollars, or be imprisoned four months. Which branch of the sentence will the Court affirm—the fine or the imprisonment ? But it is said the judgment is certain for thirty days at least, and putting the fine and four months out of question, the prisoner must be remanded ; and that we have brought our habeas corpus prematurely. But the judgment is not certain even as to the thirty daj s. It is for that term, or four months^ according to contingencies. Suppose the sentence had been for thirty days ; but if the prisoner had misbehaved himself during that time, then for four months. In one event, it shifts into a new judgment. So here, if the fine is not paid, the thirty days are expunged, and the sentence shifts into one of four months. The cases alluded to, of judgments affirmed as to damages, and reversed as to the costs, are different. Such a judgment is not contingent. This case is like a judgment for 30 dollars ; but if not paid in thirty days, then for 120 dollars. It is contingent both in respect to the thirty days, and the four months; and no one can tell for which term the prisoner is holden. The Court will always discharge, or not, according to the dictates of a sound discretion, whether the judgment be void or voidable. Suppose the latter, it would be mockery to turn us round to a certiorari. The delay of such a remedy would subject us to the whole penalty, whether right or wrong.
    
    Where a special session found s guilty °yPe^,Va^I fenced him to f^'po^ays, and ™posed a fine of 15 dollars; and also should be paid, Imprisoned for tlie term of 4 months; held, that the sen^ce ^asfd but void for ^ThatTspecial session, under the act, (ses. 36, c. 104, impt'ison move than 30 days, f°r non-payment°f afine,
    
      
      
         A sworn copy of the warrant of commitment, or an affidavit that it has been denied, is enough, without the original. (1 Ch. Cr. L. 125. Hand’s Pr. 3.) The mere affidavit of the prisoner is not enough, on which to allow this writ, but the application must be supported by other evidence. (1 Ch. Cr. L. 125, and the cases there cited.) For the different forms of the affidavits, vid. 4 Ch. Cr. L. 121-2.
    
    
      
       For the practical forms in England, vid. 4 Ch. Cr. Law, 123-4, writ, return, &c.
      
    
    
      
      
         In Rex v. Collyer & Capon, (Say. 44,) the Court say, “ It has been said that the proper way for the defendants to be relieved against any part of this judgment, is by writ of error ; but it would be very hard that the defendants should continue in prison under the illegal parts of this judgwent, until they can obtain a reversal of those parts by a writ of error.”
    
   Curia.

It is supposed that the prisoner is entitled to his , . . , discharge, because the judgment of the Justices is so entirely indefinite and uncertain, as to render the whole void. We think differently. The power of this Court of special sessions is derived from the statute; by which it will be perceived that, on conviction, the Justices are authorized toim- . posc a fine or imprisonment, or both. These are distinct punishments. They do not necessarily stand or fall togeth; er. As we read the judgment, Sweatman is unconditionally sentenced to imprisonment for 30 days. This branch of the sentence is certain, and being disconnected with that part 1-1 1 n ..... . , . , , which awards a fine, and the term not having expired, the prisoner must be remanded for the residue of that term at least. With regard to the other branch of the sentence there is more difficulty. But, without determining whether it be void, as uncertain or contingent, we are satisfied, on another ground, that the Justices have no power, in any shape, imprison 4 months absolutely, for non-payment of a fine imposed under this statute. The fine is limited to 25 dol*ars—imprisonment to 6 months. Under the latter clause of the statute, their power was exhausted when they pronounced the sentence of imprisonment for 30 days. The term of imprisonment for non-payment of the fine is limited by another statute, not adverted to in the argument. The aC^/"°r the relief of debtors, with respect to the imprisonment of their persons, (sess. 36, ch. 81, s. 1, 1 R. L. 348) prov^cs> “ that every person, not being a freeholder, who shall he confined in gaol upon any execution or other process, or by virtue of any judgment or order of any Court of Justice, 0r by warrant from any Judge or Justice, for any debt, sum ^ ° J 3 of-money, fine or forfeiture, not exceeding twenty five dollars, exciusiYe °f costs, and shall have remained in gaol for thirty days, if not detained for any other cause, shall be discharged from imprisonment by the keeper of the gaol, on application to him by the person so confined.” The terms of this act are sufficiently broad. to meet the case under consideration ; and we have no doubt, that it is one of the cases intended by that act. The Justices might perhaps have adjudged that the convict be committed for 30 days absolutely, v o . . » • for the non-payment of the fine ; but, upon this point, it is not necessary to give an opinion. A sentence of imprison- ' ment, for an indefinite term, if valid, is controlled by this act, and cannot be extended beyond the 30 days, if the party be. not a freeholder. In this view of the case, the Justices clearly exceeded their jurisdiction, in awarding the 4 months imprisonment, unqualified by the terms of this statute. As to this the sentence is void, and inoperative even for 30 days of the additional term. The prisoner must, however, be remanded for the residue of the first term of -30 days.

they may sentence to a term ment’mTexmonths' and then to 30 mmt^hedde" for non-payQuere.

Their power to imprison, for not paying up“n’thePstaU ute, (sm. 36, ¿j 24s.j 1

Rule accordingly. 
      
      
         The words judgment or execution, though tiie words or other process were omitted, seem to be broad enough to reach a conviction and commitment by a special session. In Rex v. Vipont and others, (2 Burr. 1165,) Ld. Mansfield says, that every conviction ought to contain a judgment1 of the forfeiture, and at p. 1166, Wilmot, J. says that a conviction is equal to a verdict and judgment; that there must be a judgment of forfeiture in a conviction ; that there must be a judgment to levy it; for every execution is founded on a judgment. The same language was held by Ld. Kenyon, in Rex v. Harris, (7 T. R. 238,) and vid. Nares on Penal Convictions, 57 to 71. The warrant for the purpose of levying the fine, or committing the offender, is sometimes said in the books to he in the nature of an execution, (id. 64,) and sometimes is called an execution, (id. 65.) So that imprisonment upon a summary conviction, by our special sessions, seems to come not only within the spirit, hut the very words of the 1st section of the act for the relief of debtors, See.
      
      In tiie higher courts, the analogy between a conviction and fine, and a judgment for a debt or damages in a civil action, is perfect. In The King v. Wade, (Skin. Rep. 12,) upon a conviction and fine of 1001. for barratry, it was levied by levari facias; and in the same case, reported in SirT. 
        
        Jones, 185, it appears that a capias was first issued for this fine, and after-wards a levari facias ; and, in 2 Show. 173, the same case is mentioned, by the name of The King v. Webb, as one where a levari facias issued even after the defendant’s body was in execution. In 1819, this writ of lev. fa. was hunted out in the Crown office, and the form thereof is given in 1 Ch. Rep. 431-2. Accordingly, in the great case of The King v. Woolf et al. (1 Ch. Rep 401 to 443,) a similar writ was, under the advice of Mr. Chilly, issued against Woolf, for 10,0001. fine, for a conspiracy, and goods were taken thereon, to 8,0001.; and that too, after the defendant, W. had been committed for a term of imprisonment, pursuant to the sentence of the Court; and on motion to set the same aside, the K. B. held it regular. And some of the Judges held, with the case in Shower, that, had he been in prison for the fine, this would not vary the right to a lev. fa. and it was hoiden that it might issue out of the Court which imposed the fine, as well as the exchequer; for that the imposition of the fine, constituted a debt of record due to the King, like any other judgment.
     
      
       It seems that, in England, a fine does not come within any general act for relief from imprisonment, or insolvency, (1 Ch. Cr. L. 811, and the eases there cited. Rex v. Norris, 4 Burr. 2142.)
      The first act, authorising a trial for petit larceny, by a special session, composed of three Justices, was passed by the legislature of the late colony of New-York, Sept. 1st, 1744. (1 Smith & Livingston, 339. Van Schaick, 240.) Petit larceny is not mentioned in this act, but jurisdiction is given of misdemeanors, breaches of the peace, and other criminal offences under the degree of grand larceny ; and the Justices (one whereof to he of the quorum) are authorised to inflict corporal punishment, (not extending to life or, limb.) By an act of the same date, (id. 340, ibid. 241) the same jurisdiction is given to the Mayor, Deputy Mayor, Recorder and Aldermen, for the time being, or any three of them, in the city of New-Tork,—Bythe 3d sec* ^on °f the first mentioned act, the Justices might, in lieti of corporal pun» ishment, fine not exceeding 3Z. After the revolution, by the act of the 24th March, 1787, the same powers were extended to three Justices, and to the Mayor, Recorder and Aldermen of the city of New-Yoik, or any three of them, of whom the Mayor or Recorder was to be one. They were, however, not to punish beyond 39 lashes in one day. The Mayor, &c. might, moreover, sentence to hard labour in Bridewell, &c. not exceeding the term of six months ; or might inflict corporal punishment or imprisonment at hard labour only, as they should d^em expedient. The Justices were confined to 39 lashes per day, a nd were not allowed to fine over ten pounds, which, when imposed, was to he instead of corporal punishment. (2 Jones & Varick, 127 to 131. 1 Greenleaf, 422 to 425 ) The law stood thus, till the revision of 1801, by Kent Sc Radcliff, when it was modified, and the punishment restricted to imprisonment or fine, or both, as the law now stands in the revision of Woodworth & Van Ness.
      
      The 1st section of the act for the relief of debtors, with respect to the imprisonment of their persons, which relieves from imprisonment for a fine, was first passed Feb. 13th, 1789. (2 Jones & Varick, 409. 2 Greenleaf, 231.) At first it extended to all persons, whether freeholders or not. In other respects it is still the same as when first enacted. By the act of the 24th March, 1801, it was confined to persons not being freeholders, (1 Kent k Radcliff, 290) and has so continued since that time.
     