The court, or a majority of the judges, are decidedly of opinion, that in this case we cannot review the regularity of the proceedings had before his honor Judge Edmonds; and that upon the writ of habeas corpus we cannot look beyond the colorable authority of the judge to issue the warrants. We cannot inquire into the technicalities, or the strict regularity of the proceedings. This writ is not intended to review the regularity of the proceedings in any case, but rather to restore to his liberty tbe citizen who is imprisoned without color of law. In these cases we can merely look into the sheriff’s return, which contains the several warrants by virtue of which he detains the relators; and also into the affidavits contained in the traverse and upon which the judge issued the warrants, so far as to see that the judge had colorable jurisdiction. Or, in other words, if we find that the judge had jurisdiction of the process, and assumed to take proof upon the issuing of the same, and which proof he adjudged to be suffi-' cient, we will not, upon the writ of habeas corpus, review his adjudication upon that question ; nor undertake to say whether he erred in adjudging the proof to be sufficient. In looking into the warrants under which the present relators are imprisoned, we find them regular upon their face, and prima fade sufficient to justify the imprisonment; -and when we come to look beyond the warrants, and examine the affidavits upon which they were issued, we are satisfied that at least there was colorable proof, in these cases, before the judge, upon which he might exercise his judgment in awarding the process. And this is as far as we intend to go in these cases.
We cannot but remark that the 50th section of the habeas corpus act, under which the relators claim to traverse and review the whole merits of these cases, is very loosely drawn; and, taking the very letter of the statute, it might seem to admit of a broader inquiry; but on looking into the notes of the revisers, and their reasons for reporting this section, we see they cite the case of United States v. Jenkins, (18 John. Rep. 305,) where it was doubted whether the return of the officer could be traversed at all. And in the case of The People v. McLeod, *350(1 Hill’s Rep. 377,) the late Mr. Justice Cowen declares this to be the reason of the amendment. And the late Reporter Hill, in a very elaborate note to the review of the case of McLeod, (3 Hill’s Rep. 634,) shows, in my opinion, the design and scope of this 50th section; and after reviewing all of the cases, he comes to the same conclusion which we have adopted in this case. And it seems to me that all of the objects of this 50th section, and of the writ of habeas corpus itself, will be accomplished by giving the statute this construction. The best guide in construing the statute undoubtedly is, to ascertain what the law was before, and what was the evil intended to be remedied by the amendment. It was said in the case above cited in 18 Johnson’s Reports, and which is the only reason assigned by the revisers for reporting the amendment to this section, that the officer’s return could not be controverted. But what does the officer return? Nothing more than that he detains the relators by virtue of certain warrants of which he annexes certified copies to his return. The strict traverse of the return would be t.o deny and controvert the fact that the sheriff does detain by such process as he returns, and that the same is valid, or good upon its face. But I prefer not to give the statute so strict a construction. Again; the general provisions of this habeas corpus act show most clearly that it was never intended as a writ of review to correct the errors of inferior tribunals. It has none of the guards which are usually thrown around such writs. This is a writ of right which every citizen can demand of the court, and the refusal of which is attended with severe penalties upon the court or officer that refuses it. And its design is to liberate, in a very summary way, every citizen who shall be deprived of his liberty without color of law. To this end the act is most remarkably well guarded; and if confined to its original purpose, is worth all the efforts and struggles it cost our ancestors to obtain it.
In these cases, as the warrants upon their face appear to be valid; and as the judge, to say the least, had colorable jurisdiction and authority to issue them, the relators must be remanded to the custody of the sheriff.
*351McCoun, J.I am compelled to dissent from the opinion just expressed by my brother Mason, and which is the opinion of a majority of the bench. I agree with my brethren, that upon a writ of habeas corpus, where the officer returns the warrant upon which he holds the party, if the warrant is good upon its face, that is all that can be inquired into, provided it is issued from a court of general jurisdiction. If, however, the writ is issued by a court having a special jurisdiction conferred by statute, then it is legitimate for us, under a writ of habeas corpus, to inquire whether the officer had the case properly within his jurisdiction, so as to exercise rightfully the power vested in him by statute. Such is the case before us upon this writ, and I am of opinion that we are obliged here to look into the affidavits upon which the judge acted. I think these papers properly before the court. The case of Ex parte Randolph, (9 Peters' Rep. 12, note a,) was a case where Lieut. Randolph was brought before a court on a writ of habeas corpus. He had been arrested for not paying over certain moneys alleged to have been collected by him, and payable to the treasury department. The court, in that case, looked into all the proceedings before the court below, for the purpose of seeing whether Randolph was properly subject to its jurisdiction; and they decided that he was not such an officer of government as to be subject to such a summary process, and the prisoner was discharged. I mention this case, for the purpose of confirming the position I have assumed, that when a judge acts in a summary proceeding, under a special power, the court before whom the habeas corpus is, can look into the affidavits. This brings us to the affidavits upon which these proceedings were founded. The affidavits are explicit enough as to the nature of the demand, and they also show that the parties were in possession of certain assets of their firm, dioses in action, <fcc. to the amount of about $>40,000; that these creditors made a demand of the defendants, that they should apply these assets in payment of their demand, and that the defendants unjustly refused. As these assets could not be reached by a fi.fa., they very properly come under the head of intangible property. This is what *352the affidavits made out as matters of fact. In my judgment, however, it is not a mere refusal which will authorize a judge to issue the warrant. It must be an “unjust refusal;” and whether the refusal is unjust or not, is a matter of law, to be determined from the facts which appear in the affidavits. I am at a loss to perceive how, in this case, there was an unjust refusal. The reply of the defendants, as appears from one affidavit, is, we are insolvent, and we are willing to apply all our property to the payment of our debts pro rata; that they did not want to prefer one creditor over another, and expressed their willingness to make an assignment. And yet, in this case, the magistrate felt authorized to issue a warrant, which could only be grounded upon an unjust refusal. The affidavits do not show any facts whatever, which can warrant such an inference. The mere statement, in the affidavit, that the refusal was unjust, amounts to nothing; as it is a mere conclusion of law, and not a proper subject of an affidavit. My brethren, however, contend that this expression, as it appears in the affidavit, gives a colorable authority to the judge to issue the warrant, and that behind this, we have no right to look.(b) If this case were before me upon the hearing, I should require some more facts to satisfy me that these parties have been guilty of fraud, such as amounts to an unjust refusal; and they will be at liberty to urge this ground before the judge. This statute, commonly called the Stilwell act, is one which undertakes to give a remedy in cases of fraud on the part of debtors, either in the original contracting of the debt, or in subsequently attempting to remove their property. Where these circumstances of fraud do not exist, we have other means by which to reach intangible property, viz. by creditors’ bills. This is a proceeding, likewise, which will reach property attempted to be *353disposed of fraudulently; so that this remedy may be resorted to not only in cases where there is no fraud, but in some cases where fraud exists. The Stilwell act was not intended to supersede the jurisdiction of the court of chancery. It was only intended to be applied to cases of actual fraud. In 1840, a law was passed extending the time within which execution might issue, to thirty days after the rendition of the judgment. And in addition to this, the sheriff has sixty days from the issuing of the fi. fa. before he is compelled to make his return. These are all an extension of credit, and an indulgence shown to the debtor, and abundantly prove that in ah cases where he is honestly disposed, the law favors him. And it cannot be presumed that the statute commonly called the Stilwell act, was intended to authorize proceedings against all judgment debtors, when they may refuse to turn out their property in compliance with a demand of a creditor. They may have good reasons for so doing. This remedy, I repeat, is only for the cases where the creditor has committed, or contemplates, a fraud. It is a remedy involving severe proceedings, and cannot be considered as of general application.
And what sort of an application is the debtor to make ? The statute does not say that he shall turn out his notes, &c. Shall he make an assignment 1 He is to apply them in payment. If they consist of outstanding claims, how can he apply them ? In relation to such, I think it would be right for him to say, I will apply them when I have collected them. It is unnecessary however, for me to go further with this subject. In The People v. Recorder of Albany, (6 Hill, 429,) Mr. Justice Bronson states the true ground. In this case, it is not pretended that these defendants concealed their property: nor are they charged with the commission of any unjust act, save the mere refusal. And in my opinion, the allegations of the affidavits on which the warrant was issued were insufficient to justify the proceeding ; and the parties should be discharged.
Mason, J.The refusal of the defendants is not a criminal act, by the terms of the statute. My opinion is, that we can*354not look behind the colorable nature of the proceeding. It is not within the province of a habeas corpus to look into the character of the facts, beyond those sufficient to give colorable authority.
Hurlbut, P. J.I myself doubt whether any thing is properly before the court, upon this proceeding, except the warrant itself. If that is regular on its face, and if the sheriff would be protected in an action of trespass, it .is sufficient; and we cannot discharge the prisoners. But my brethren differing with me, in this view of the subject, I joined them in going back and looking into the affidavits. In the case of the Jefferson County Bank, it is alleged that there were not sufficient facts to authorize an inference of an unjust refusal. No member of this court intends deciding that there has been a fraudulent, or even an unjust refusal. Our simple object is to determine what are the functions of a writ of habeas corpus. I find here that certain facts were adduced before the officer, from which he inferred an unjust refusal. If he erred, it was a judicial error, and cannot be reviewed on a writ of habeas corpus. Whether he erred or not, is not for us now to say. We cannot entertain a writ of habeas corpus to review errors of judgment, where there is colorable proof to authorize the process. That can only be done by a writ of certiorari.
McCoun, J.I consider this a void process, and it can be reviewed for that reason. '
Order remanding relators to the custody of the sheriff.
*357III. If, however, the defendant in the receipt of the money, may be claimed to have been the agent of the United States, yet the plaintiff would be entitled to recover the money back from the defendant in this action, on the ground of its having been parted with under mistake of material facts : the defendant not having paid it over to his principal before suit brought. Rapelje supposed he had authority given to him to take the recognizances, when he had not. This was a mistake of fact, and not of law. The commissioner might have had power to take bail in criminal cases. The court could have conferred it upon him, but had not done so. Whether they had or not, was a fact. And the plaintiff, when he executed the recognizances, and when he deposited the money with the defendant to be paid over to the United States, supposed and believed that Rapelje had had authority given to him to take such recognizances. These were mutual mistakes of material facts supposed to exist, and which did not exist, and which alone influenced the plaintiff to part with his money. (Story on Agency, § 300. Lazall v. Miller, 15 Mass. 207. Milnes v. Duncan, 6 Barn. & Cress. 671. Putnam v. Westcott, 19 John. 73. Mowatt v. Wright, 1 Wend. 355.)
IY. As it does not appear that the United States have made any claim, or pretence of claim, to the money in the defendant’s hands, the only question before the court is whether the plaintiff, or the defendant, as between them personally, is entitled to the money; and personally the defendant has neither a legal or equitable right to retain the money from the plaintiff.
The exceptions on the part of the plaintiff were well taken; and the judgment rendered by the superior court in favor of the defendant was erroneous, and should be reversed.
In the case of The British Prisoners, (1 Wood. & Minot’s Rep. 66,) which was an application under the treaty with Great Britain, for the surrender of fugitives from justice, the objection was raised upon habeas corpus, that the inquiry into the conduct of the prisoners, preliminary to their commitment, was not had by a competent officer. And the court said they had no doubt it was proper for them to look behind the warrant, so far as to see that it was issued in a proper pase, and by a competent officer.