This is a motion for discharge of the relator on habeas corpus.
*38He is detained by virtue of an execution against his body, issued on a final judgment against him. The judgment was recovered for the value of a leather travelling-bag and contents, deposited writh him for safe keeping, as innkeeper of the Irving House, the plaintiff in the action being a guest at said house. The action was brought upon the custom of this State, which is alleged to be, that innkeepers are bound to keep safely such property for their guests. The breach alleged, for which the judgment is recovered, is, that “ defendant did not keep said bag and contents safely and without diminution, but, on the contrary, he and his servants so negligently and carelessly behaved and conducted, that said bag and contents were, by mere carelessness of defendant and his servants, carried away by some person unknown, and were wholly lost to plaintiff.”
On this judgment an execution against the body of defendant was issued, on which he is now in custody. The question on which the legality of the imprisonment depends is, whether the execution against his body was authorized by the judgment. But there is a preliminary question here, viz., whether the regularity or propriety of that process can be inquired into in this proceeding on habeas corpus. Section 22, subdivision 2, of the habeas corpus act (2 Rev. Stats., 1st ed., 563, 4th ed., 797, § 36) provides that persons detained by virtue of the final, judgment of any competent tribunal, or of any execution isáued on such judgment or decree, are not entitled to prosecute the writ. It is said that the relator is included in this class, and therefore cannot prosecute this writ. Whether he is held by virtue of an execution on a final judgment of a competent tribunal, is the question raised by the preliminary objection, and the question on the merits is very much the same. The mere claim that he is so held should not, I think, conclude me. There is a case, however, in Johnson’s Reports (The Bank of the United States v. Jenkins, 18 Johns., 305) which seems to indicate that a writ of habeas corpus is not the proper remedy for a person detained in this manner, and that is the principal authority on the subject. In that case, as in this, the principal question was, whether the ca. sa. was regularly issued. There the objection to the regularity was, that the foundation for it had not been laid by'a previous execution against property to the proper county. Here the objection is, that it is not warranted by the judgment in its own *39nature. In those days, however, an execution upon a judgment was issued by the court, theoretically at least. It had to be sealed and signed by the clerk. Row it is not even in theory issued by the court, but by the party or his attorney. That case, moreover, seems to have been but little considered. The court before' whom it was brought had just denied the same relief on motion ; or rather had granted it on terms which the applicant would not accept, and although the court said they did not think the writ was the proper remedy, they did, nevertheless, on the same motion, direct the order previously made to be modified so as to give ah the relief sought. It was therefore an election of the court in which way it would give the relief, perhaps, or a refusal to review on this writ a decision just made in a different proceeding, rather than an adjudication against the propriety of the writ, which should be deemed an authority that the writ is not a proper remedy in such a case. The relief asked was granted, but was credited to the account of a motion, previously made and decided, rather than to that of the writ itself, although that was the only proceeding before the court at the time. Moreover, that case was before the Revised Statutes, under an act of 1813, not entirely similar to the present act. I am not inclined, under all the circumstances of that case, to defer to it as a controlling authority in this, but I shall examine to see whether the relator is detained by virtue of an execution upon a judgment of a competent tribunal. I am more ready to adopt this course, because I find in section 41 of the same act (2 Rev. Stats., 1st ed., 568 ; 4th ed., 801, § 56), that a person may be discharged on this writ from custody, by virtue of civil process, from a court legally constituted (subd. 4), when the process, though in proper form, has been issued in a case not allowed by law: (subd. 6) when the process is not authorized by any judgment, &c., of any court, or any provision of law. Whether process, which is set up as a justification for detention, has been issued in a case allowed by law, and whether it is authorized by any judgment of a court, therefore, I am authorized by those provisions of the statute to inquire; and a decision of these questions will dispose of the matter before me.
The judgment and execution are before me, and the remaining question is, whether, on the whole, the execution is justified in law. The suit was brought to recover the value of certain *40articles, on the ground that the defendant was hound by the custom of this State to receive and safely keep the property of his guests, and that having received that of the plaintiff, he kept it so negligently that it was lost. This custom of the realm would seem in the absence of express contract to take the place of it, and an action for not preserving the property according to it would seem to be in the nature of an action for breach of contract. But, on a more careful consideration, the grounds of the action appear to be, not the failure to beep safely and restore the property, which would probably be only a breach of implied contract, but the negligent, careless, and improper behavior and conduct of the defendant, the wrongful (tortious) conduct of defendant and his agents (negative, perhaps, to be sure, but nevertheless wrongful and tortious), by which the property was lost to the plaintiff. This negligent, careless, and therefore wrongful and tortious conduct, rather than the failure to fulfil the contract, is the ground of the action. (See Runkle v. Ells, 4 How. Pr. R., 288 ; The Bank of Orange v. Brown, 3 Wend., 158; Bretherton v. Wood, 3 Brod. & B., 54; 2 Lord Raym., 909 ; 2 Chilt. Pl., 155, 320; Hallenbacks v. Fisk, 8 Wend., 547; 4 Ib., 618.)
In the cases above cited, it is settled that an action on the custom. is founded on the tort or misfeasance, and not on the contract, express or implied, which often attends the transaction, and is in many of the cases proved. It is often difficult to determine whether the action is on the contract or on the custom; and the confusion seems to have arisen from the difficulty in ascertaining which constituted the basis of the action, the custom or the contract, rather than whether an action ascertained to be on the custom was founded on tort or on contract. (Bank of Orange v. Brown, 3 Wend., 158, 168.)
The suit against Burroughs was founded on tort; the judgment record shows this fact. With this fact apparent, was the execution properly issued against the body of defendant ? Under the non-imprisonment act (Laws of 1831, 396), by which this question would have been controlled prior to the Code, he would have been liable to arrest; for, under that, a defendant in an action in tort could be held to bail. (Runkle v. Ells, 4 How. Pr. R., 288.) But by the Code, which now embraces the law on the subject, the only provision under which there is any *41pretence for the claim, is contained in section 179, subdivision 1, which authorizes the arrest of a party “ in an action * * * on a cause of action not arising out of contract where the defendant is not a resident of the State, or is about to remove therefrom, or where the action is for an injury to person or character, or for "injuring or wrongfully taking, detaining, or converting property.” It does not appear that the defendant is not a resident of this State, or being so is about to remove therefrom; nor does it appear that the action is for an injury to person or character for wrongfully taking, retaining, or converting property; and it only remains to be considered whether it is for injuring property. On this subject the decision of the Superior Court in Tracy v. Leland (2 Sandf., 729), which has not, that I am aware, been overruled, seems to relieve us of all doubts, and leads to the conclusion that this is not an action for an injury to property. The relator was not liable to arrest by the judgment as entered, at any rate, without an order from a judge; and whether it was a proper case for an order, cannot be decided here, for the facts do not appear. He certainly was not, in the view I have taken of the case, unless some other fact, such as non-residence or an intent to remove from the State, be superadded to all that appears in the judgment-record before me. He could not therefore have been arrested on the facts shown to me, under sections 179 and 181, and it follows from section 288 that he was not properly arrested on the judgment obtained in that suit, and he therefore must be discharged.
My conclusions are,—•
First. That on this writ of habeas corpus I am authorized to inquire,
1. (2 Rev. Stats., 1st ed., 568, § 43, subd. 4; 4th ed., 801, § 56) whether the process, though proper in form, is allowed by law in this case; and,
2. (Jb., subd. 6) whether the process is authorized by a judgment, order, or decree of a court, or by a provision of law.
Second. That an action on the custom against an innkeeper or common carrier, is founded in tort or misfeasance, and not on contract.
Third. That in such an action a defendant cannot properly be held to bail, except under section 179, by order of a judge, on proof, in addition to the facts constituting the cause of ac*42tion, that defendant is a non-resident of the State, or is about to remove therefrom.
Fourth. That as the record of judgment in such a case does not show all the facts necessary to authorize an arrest in the suit before judgment, execution against the body cannot properly be issued on it, at least without the order of a judge, and on proof of the additional facts required to entitle the plaintiff to it.