Col. Insurance v. Force, 8 How. Pr. 353

Col. Insurance v. Force

8 How. Pr. 353 | N.Y. Sup. Ct. | 1853

By the Court—Hand, P. J.

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 *355commencement of the suit; and an order for that purpose, in a proper case, may he obtained at any stage of the suit, notwithstanding the defendant has appeared therein. I very much doubt, therefore, whether an answer would have been a waiver unless there had been unreasonable delay.

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 *356return of a sheriff, but cited no authority; and the case was one of service by a private person. It would be detrimental to the administration of justice, if the official returns of the sheriff, in a cause, were liable to be contradicted. No doubt, in proper ' cases, the court will always give a party an opportunity to be heard upon the merits, where a default has been taken, if the application is in season. But, beyond that, the remedy should be against the officer.

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.