32 How. Pr. 230 | New York Court of Common Pleas | 1866
The defendant was arrested upon a warrant founded upon affidavits alleging that the defendant made certain representations which induced the plaintiffs to let him on hire, coaches, horses and a wagon, from time to time, until the defendant ran up a bill of $233.75, which representations are alleged to have been false, and to have been made with a fraudulent intent. When the defendant was brought before the justice he offered to read a number of affidavits to show that the representations made by him were strictly true, but the justice refused to hear them, upon the ground that he had no authority. The arrest in this case was made under subdivision 3, of section 16, of the act of 1857, in relation to district courts, for fraudulently contracting the debt for which the action was brought. The right to arrest in such a case does not arise from the nature of the action, for the defendant may be hable for the debt but not hable to arrest, which is a collateral remedy wholly independent of the cause of action. If hable to arrest, the defendant must give security for his appearance, or remain in custody until the action is tried, and if judgment is rendered against him, and if sufficient property cannot be found to satisfy the execution, the defendant is committed to jail until he pays the judgment, or is discharged according to law. The warrant issues upon the affidavit of the plaintiff and of another person, proving to the satisfaction of the justice the facts upon which the apphcation is founded, and if the affidavits are defective, if sufficient does not appear upon-the face of them to authorize the issuing of a warrant, the-defendant upon being brought before the justice, and before pleading, may move to set the proceedings aside as irregular.
The judgment should be reversed.
Beady, J., concurred.
Cabdozo, J. “ I take no part in the decision of this appeal.”
Judgment reversed.