The hill of exceptions in this case shows that Daniel A. Yan Harnee was arrested under the nonimprisonment act. The warrant was issued by one of the justices of the supreme court in the first district, and was in the usual form, except that it was made returnable before one of the justices of this court at their chambers, in the City Hall, &c. It appears, however, that the warrant was in fact returned before the justice who issued it, and that an examination was had before him, and that after, several adjournments, sometimes by his order, and sometimes by the stipulation of the parties, he being satisfied that the plaintiff’s allegations had been substantiated, issued a commitment accordingly. It further appears that, at the time of the issuing of the final commitment Yan Harnee was not in the custody of the sheriff, by reason whereof the process could not be executed. It is to recover the damages, which the plaintiff claims that he has sustained by this alleged delinquency, that this action is brought.
*426It was proved upon the trial that on the first adjournment of the proceedings, no recognizance was taken, and that the defendant was not specially remanded by the justice to the custody of the sheriff. Upon these grounds the plaintiff was nonsuited.
The statute provides that the warrant shall command the officer, to whom it shall be directed, to arrest the person named therein, and bring him before the officers issuing the same, without delay. (Laws of 1831, ch. 300, § 5.) It further provides that the officer to whom the warrant shall be delivered “ shall execute the same by arresting the person named therein, and bringing him before the officer issuing such warrant; and shall keep him in custody until he shall be duly discharged or committedf «fcc. (Ib. § 6.) The seventh section of the act goes on to point out the manner in which the examination shall be conducted, and in contemplation of the necessity of an adjournment, provides that the officer before whom the proceedings are pending may take a recognizance for the defendant’s appearance at the adjourned hearing. It will be observed that the statute does not say that an adjournment may be granted on giving a recognizance ; nor does it say that in case of an adjournment a recognizance shall be taken; it simply gives the right to take a recognizance. Suppose, then, that nothing had been said about a recognizance, would it be contended that the duty of the officer serving the warrant would be fulfilled by merely arresting the defendant and bringing him before the officer by whom the warrant was issued? If so, what is to be done with the- section which declares that the officer serving the warrant shall keep the defendant in custody until he shall be discharged or committed ? The different sections taken together, as I understand them, mean that the party arrested shall be detained in custody by virtue of the statute, until a final adjudication; unless, in case of adjournment, he shall give a recognizance. The statute allows a recognizance to be taken, but it contemplates that in case none is taken, the defendant shall remain in custody, as provided by section six,, and no order is necessary for that purpose. For these: reasons'I. think that the nonsuit, ought: no.t to. have, been «granted.
*427[New-York General Term, October 3, 1853.Edmonds, Edwards, Mitchell, Roosevelt and Morris, Justices.]
It is contended, however, that the nonsuit can be sustained on another ground; and that is, that the warrant was made returnable before one of the justices of this court instead of being returnable before the justice who issued it.
The 30th section of the original code of procedure provided that every proceeding commenced before one of the justices elected in this district, might be continued before another justice, with the same effect as if commenced before him. This was intended to apply particularly to special proceedings. The result is that if the warrant had been made returnable before the justice who issued it, the proceedings might have been continued before any other justice in the first district. It follows then that the command in the warrant to bring the party before the particular justice issuing the warrant, is merely a matter of form, and not of substance; inasmuch as the proceedings may be carried on before any other justice who may be in attendance at chambers, and at most the warrant would only be voidable. Whether the alleged error would even have that effect, it is not necessary now to inquire. It is sufficient for the present that it does not render the warrant void; and if it be a defect, it is one which cannot be taken notice of collaterally.
The judgment must be reversed, and a new trial granted; costs to abide the event.