
    Luther M. Hayes, Appellant, against Peter Bowe, Respondent.
    (Decided June 25th, 1883.
    A sheriff is not liable to an action for false imprisonment for refusing to discharge from his custody an imprisoned debtor upon an order for such discharge which upon its face does not appear to be an order made by the court; especially in a case where the debtor was advised on behalf of the sheriff that the order was defective.
    Appeal from a judgment of this court entered upon the verdict of a jury directed by the court.
    The facts are stated in the opinion.
    
      Solomon F. Higgins, for appellant.
    
      Charles F. MacLean and Fdward W. Crittenden, for respondent.
   Charles P. Daly, Chief Justice.

The application for the discharge of an imprisoned debtor must be either to the court where the judgment was rendered, and under which he was arrested and imprisoned, or to the Court of Common Pleas of the county; and the order for his discharge must be made by the court (Mather's Case, 14 Abb. Pr. 45 ; Matter of Walker, 2 Duer 655).

Whether the order in this ease was made by the court does not appear upon the face of the discharge. For all that appeared, it may have been an order made by Judge Larremore out of court. It is entitled in the Court of Common Pleas, and so are the orders made by a judge at chambers. It refers to a petition presented to the court, and to an assignment of all the real and personal estate of the debtor having been made and executed by the plaintiff in pursuance of an order of the court. But whether anything further was done by the court does not appear on the face of it. All that it states afterward is that, on the motion of the counsel for the defendant, “ It is ordered that the defendant be discharged from custody,” and it is signed R. L. LARREMORE, J. C. P.

It may be that if the sheriff had acted upon this order, and discharged the defendant, he would' have been protected by showing the proceedings in court in connection with it, though I am inclined to think, as the counsel for the sheriff claims, that the assignment is defective. But, be that as it may, the sheriff is not to be subjected to an action like this, for false imprisonment, because he refused to discharge the plaintiff from imprisonment upon this order, especially after the plaintiff was advised that the order was defective by the legal gentleman who was acting for the sheriff, that gentleman having, by letter, upon the previous day, advised the plaintiff that there were some irregularities in the order of discharge that had been filed with the sheriff which rendered the validity of the discharge questionable, and requested him to call at his (Mr. Graham’s) office in relation to it. It was an easy matter, if all the previous proceedings were regular, to have had the order entered in the usual way, as an order of the court, and to obtain a copy of it authenticated by the clerk in the ordinary form. This it appears the plaintiff did not do, and being retaken within the jail limits on a remand, he brought this action for false imprisonment.

As it did not appear on its face that this discharge was an order of the court, the sheriff was not bound to ascertain whether it was, or to examine to see upon what proceedings it was founded (Earl v. Camp, 16 Wend. 562, in which case, the court say “that, in general, ministerial officers ought not to look beyond the process, and in no case need they do so ”). The sheriff did all that he was required to do, when both by the under sheriff and by his legal adviser, he called the plaintiff’s attention to the irregularity appearing on the face of the process.

I think, therefore, that the action was properly dismissed and that the judgment by the judge at Special Term should be affirmed. '

■ J. F. Daly, J., concurred.

Judgment affirmed.  