People ex rel. Market Commissioners v. Common Council of N. Y. that section. In short, there is no mistaking the intent and meaning of the enactment. The duty is imposed upon "the mayor, aldermen and commonalty of the city of New York," that is, the municipal corporation, to create a public fund or stock, to be denominated market stock,' and, after the fund or stock has been thus created, and not till then, on requisition of the market commission, the comptroller is to prepare and issue it and offer it for sale; sell it to the highest bidder (but not at a rate less than its par value), and forthwith deposit the proceeds with the chamberlain of the city, to the credit of the market commissioners. 2. As to the objection that the common council owe no duty to the relators. It is based an the ground that the statute, in language, imposes the duty to create the stock upon "the mayor, aldermen and commonalty of the city of New York," that is, the municipal corporation, and not upon the common council. This objection is equally groundless with that which has been considered. The rule is well established that the writ lies to the person or the body whose legal duty it is to perform the required act; as, where a corporation is required by law to do a particular act, the mandamus is addressed to that organ of the corporation which is to perform it. In the language of some of the cases, the writ lies against the body upon whom the duty of "putting the necessary machinery in motion" is imposed. The common council is the only organ of the corporation of the city of New York, which can create the stock under the statute. It must be done by an ordinance, and that can only be enacted by the legislative department, viz: the common council. City Charter, Laws of 1857, vol. 1, p. 874. The order of the supreme court should be affirmed. Judgment affirmed, with costs.* * When the remittitur was ordered to be filed (March 8, 1867), in the supreme court, application was made ex parte for an order for an alias mandamus to be incorporated in the formal order; but LEONARD, J., who was in the court of appeals when the cause was decided, held that the order on People ex rel. Crouse v. Cowles. PEOPLE ex rel. CROUSE v. COWLES. December, 1868. Reversing 34 How. Pr. 481. A commitment of a judgment debtor, on an attachment issued for refusal to obey an order, made in supplementary proceedings, that she apply, to the satisfaction of the judgment, a sum of money belonging to her which it has been duly found she has in her possession, is a the remittitur should not contain such a provision, but that relators could proceed at once on the original order. Accordingly, an application for an alias was made ex parte to INGRAHAM, J. (March 18, 1867), who held that notice must be given. An order to show cause was then obtained, and on the return day (the corporation counsel having declined to appear and having by letter advised the common council to enact the ordinance), Judge INGRAHAM declined to issue an alias, doubting the power of the court to do so. He suggested that the court of appeals should, in its order, provide for the new writ. This question was then argued at length, in writing, for the relators; and the court, having taken time to consider, finally issued the alias mandamus (April 24, 1867). The common council did not obey the last writ, and proceedings to obtain an attachment were taken; but the day before that motion was to be heard, the ordinance was enacted. According to this, the true practice seems to be, where a mandamus has been issued, and has failed of its purpose by reason of a stay of proceedings on appeal, upon the affirmance of the order granting it, to apply, on notice to the respondents in the writ for an alias. No decisions were found directly in point, out from analogy to the proceedings in the old writs, in FITZ HERBERT, and upon intimations in various cases, it was argued that alias writs were allowable. Judge INGRAHAM took the ground that an alias writ could not be issued, but that the court of appeals must provide for the case in their order. He requested the counsel for the relators to consult the judges of the court of appeals, which was then sitting in this city. Counsel consulted DAVIES, Ch. J., who conferred with his associates, and then informed counsel that it was not within the province of that court to do more than affirm or reverse the order appealed from; that the supreme court must provide for the enforcement of its own order. For the foregoing information, I am indebted to CEPHAS BRAINERD, Esq., counsel in the cause. People ex rel. Crouse v. Cowles. commitment for contempt; and the debtor is not entitled to the liberties.* A judge cannot, on habeas corpus, determine whether the sheriff is bound to admit an imprisoned debtor to the liberties. Crowel and others, in October, 1866, recovered a judgment in the supreme court against Marinda Wheeler, a married woman, for seven hundred and twenty-three dollars and twentyfour cents. Execution was issued and returned unsatisfied. The defendant was examined before a referee in proceedings supplementary to the execution. The referee reported that she had nine hundred dollars in cash in her possession; and the judge made an order, requiring her to pay the amount of the judgment and forty dollars costs, within ten days, or that, in default thereof, an attachment issue against her. Reported in 33 How. Pr. 337. The order was duly served upon her, and she refused to comply. A writ of attachment was then allowed by the court, and issued, commanding the sheriff to attach her, and commit her to the county jail, and detain her there in close custody until she should obey. She was, accordingly, arrested and committed to the county jail. The county judge, on her application, granted a habeas corpus, directed to the sheriff; and, upon the return showing these facts, decided that said Marinda was entitled to the liberties of the jail, upon executing the proper bond; and he ordered her discharge from close custody upon executing such a bond. The supreme court, on certiorari, reviewed the proceedings of the county judge, and held that the statute authorized the at * It is otherwise of disobedience of an order merely for the payment of money where the defendant is not adjudged to have had it. People v. Campbell, 40 N. Y. 133. The significance of this case is in its applying the rule of contempt to the disobedience of the order, because it had been adjudged that the defendant had in her possession sufficient money to pay the judgment, although there had been no adjudication that a contempt had been committed in the refusal to pay over. See also Matter of Watson, 5 Lans. 466, affirming 3 Id. 408, where the general princi ples laid down by WOODRUFF, J., are approved, in application to an order of a surrogate in a case in which it did not appear that the executor ever had the fund. People ex rel. Crouse v. Cowles. tachment; but that the process was a mere substitute for an execution against the person (citing Van Wezel v. Van Wezel, 3 Paige, 38; People v. Bennett, 4 Id. 282); although they conceded that if the order had directed the payment of the judgment out of any particular fund, or had directed the defendant to do any act to effectuate such payment, disobedience would have been a contempt for which, on a proper conviction, a fine might have been imposed, upon which defendant, even though a married woman, might have been imprisoned as upon criminal process. As in this case there was no hearing and no adjudication of contempt, and no fine, they were of opinion that the attachment was merely a civil process, and defendant, being a female, could not be arrested thereon, and the county judge might properly have discharged her. They accordingly affirmed his order. Reported in 34 How. Pr. 481. The plaintiff appealed. George F. Comstock, for the appellant ;-Insisted that a married woman could be imprisoned for contempt; and that in this case she was not entitled to the liberties; and even if she were, the statute made it the duty of the judge to remand absolutely. Besides cases cited in the opinion, he cited Reynolds v. McElhone, 20 How. Pr. 454; People v. Kelly, 22 Id. 309; Seaman v. Duryea, 10 Barb. 523; 13 Abb. Pr. 459; 11 N. Y. (1 Kern.) 324; Brush v. Lee, vol. 1 of this series, p. 238. J. Welling, for respondent;-Insisted that the order was simply a proceeding as for a contempt, to enforce a civil remedy. Pitt v. Davidson, 37 N. Y. 235; S. C., 3 Abb. Pr. N. S. 398; 4 Blackst. 284. That a woman is not liable to imprisonment in such a case, by construction. Hovey v. Starin, 42 Barb. 435. The process was civil process, the judgment only bound the separate estate; and the return of the execution unsatisfied was conclusive on the relator. WOODRUFF, J.-The distinction between a commitment upon a precept issued for the disobedience of an order for the payment of a sum of money and a commitment upon a conviction of misconduct, punishable by fine and imprisonment, is very People ex rel. Crouse v. Cowles. clearly indicated in the statute, and has been repeatedly declared by the courts. 2 R. S. pp. 534, 535, 536, 537. The proceedings are unlike, and the decision and penalties imposed are different. A precept to commit (section 4), for the non-payment of money, in obedience to a rule or order, issues of course, and ex parte, on proof by affidavit that personal demand has been made, and that the money is not paid. No proof that the party has money wherewith to pay, is necessary. The order for such payment being made, and presumptively made on sufficient grounds, it is not open to examination upon its merits to raise an excuse for disobedience; insolvency will not prevent the is suing of the precept, nor entitle the party committed to its revocation. Under the act of 1843, the party showing inabil ity has, after commitment, an appeal to the discretion of the court; but in the first instance, whether there be actual contumacy or not, whether the party be able to pay or not, if a case has been presented in which the court had jurisdiction to make the order for the payment, the precept and the commitment follow if the money is not paid, whatever excuse the party may have for disobedience. 2 R. S. 535, § 4. Nor is there any adjudication or conviction of misconduct, nor anything in the nature of punishment imposed. The defaulting party is and can be subjected to no infliction punitory in its nature. By whatever technical name such a precept be called, and whether the consequences in respect to the right to the liberties of the jail are or are not the same, the nature and the object of such a precept and of a capias ad satisfaciendum are identical, and the period of commitment and mode of satisfying their requirements in order to a release, are also identical. A commitment of the other description is preceded (§ 5 et seq.) by a judicial inquiry into the question of the guilt or innocence of the party charged, in which he has an opportunity to appear and answer, and be heard in his defense; and the conviction is followed by punishment, punishment in form and in fact; the judgment pronounced is fine or imprisonment, or both, as the nature of the case may require, and where the misconduct whereof the party was convicted has produced in |