| N.Y. Sup. Ct. | May 15, 1853
This is an appealable order. {Code § 349.) An order to arrest is one of the provisional remedies under the Code, and the denial of the motion at special term, substantially continues that order.
The defendant by giving hail, or procuring an “ undertaking ” to be given, did not thereby waive his objections to the legality of the arrest, unless he did so voluntarily. Under the former system, the execution of a bond to be discharged from arrest, by the defendant himself, did not have that effect. (6 J. B. Moore, 64; 10 Id. 322; 2 D. & R., 73; Id. 237.) And I am inclined to think, that requesting and obtaining further time to answer was not a waiver of any irregularity in the arrest. The party, no doubt, must not be guilty of laches in moving to be discharged. Pixley agt. Winchell, (7 Cow. 366;) Webb agt. Mott, (6 How. Pr. R., 439;) Primrose agt. Badderley, (2 Cr. & M., 468;) Queen agt. Burgess, (8 A. & E., 275;) Farrell agt. Petre, (5 A. & E., 818.) But now an arrest is no part of the
But the proceedings, on the part of the plaintiffs, have been entirely regular. The defendant, who is a non-resident, gave bail, which was not excepted to, and the sheriff has made a formal and full return of the service of the order by himself; and the question in the case is, can the defendant set aside the proceedings without any fault on the part of the plaintiffs, or is his remedy against the sheriff, or the man who arrested him! The sheriff swears the agent of plaintiff’s attorney requested him to depute Halstead, but this is positively contradicted hy the agent, who, with Patterson, also swears he had no authority to do so.
If the service is good, the undertaking is good. And if we cannot look behind the return, there is no proof that the service is not good; but on the contrary, there is conclusive evidence that the sheriff arrested the defendant.
And it seems to be clear, that there can be no averment against the return of the sheriff in the same action. (Watson on Sheriffs, 12; Dalt. 189; Allen on Sheriffs, 57; Cow. and Hill’s Notes, 1087, 1090;) Putnam agt. Man, (3 Wend., 252;) Allen agt. Martin, (10 Id. 300;) Townsend agt. Olin, (5 Id. 209;) Boomer agt. Laine, (10 Id. 525;) Huntington agt. Taylor, (15 Hast. 318;) Wilson agt. Executors of Horst, (1 Pet. C. C. R. 441;) Gardner agt. Horner, (8 Mass. 325, 19 Vin. 210;) Return of Andrews agt. Lynton, (1 Salk. 265;) Clerk agt. Withers, (2 Ld. Raym. 1012, Code § 138.) It may sometimes be questioned when it comes in collaterally, and in a suit against the Sheriff; and in some cases in this State, a return on a fi. fa. has been disproved. Dubois agt. Dubois, (2 Wend. 416;) Bank of Orange county agt. Wakeman, (1 Cow. 46;) Armstrong agt. Garrow, (6 Cow. 465.) The judge who delivered the opinion in Van Rensselaer agt. Chadwick, (1 How. Pr. R. 291,) expressed an opinion, obiter, against the conclusiveness of the
This view of the case renders it unnecessary to inquire into the validity of the arrest. See Blatch agt. Artcher, (Cowper, 65; 2 Greenleaf Evi. § 589;) Townsend agt. Olin, (5 Wend. 209;) Boardman agt. Halliday, (10 Paige, 232;) Hunt agt. Burrell, (5 J. R., 137;) Parker agt. Kett. (1 Ld. Ray. 658;) Martin agt. Bell, (1 Stark. JV. P. R., 413;) Saunderson agt. Baker, (2 W. Bl. 832.),
The order should be affirmed with posts.