Barker v. Cook — 40 Barb. 254

Majority

p. 254

Barker and others vs. Cook.

Headnote

It is erroneous to vacate an order of arrest, merely because the copy affidavit served contains no signatures of the affiant or of the officer before whom the affidavit was sworn to.

If no copy, or paper purporting to be a copy, of the affidavit is served by the sheriff, on arresting the defendant, the omission is an irregularity only, and will not entitle the defendant to his discharge.

The provision of the code requiring the sheriff to deliver a copy of the order and affidavit to the defendant, on arresting him, is merely directory.

If an order to show cause why an order of arrest should not be vacated, on the ground of irregularity, does not point out the irrregularity, the order cannot be vacated for that reason.

1ST order of arrest was granted in this case, on an affidavit stating that the defendant had disposed of his property with the intent to defraud his creditors. The affidavit, duly signed and sworn to, was filed with the clerk at the time the order of arrest was granted. Subsequently the defendant, on an order to show cause not specifying the ground of objection, and without any affidavit, moved, on a general notice, to vacate the order. On the bearing of the motion, he insisted that the arrest was void, because the copy affidavit served on him did not contain the signatures of the affiant, to the affidavit, or of the officer to the jurat. 'The court, at special term, vacated the order of arrest, and discharged the defendant, although the objection was raised, by the plan tiffs, that the irregularity was not specified in the moving papers. The plaintiffs appealed.

p. 255

John N. Lewis, for the appellants.

H. M. Whitehead, for the respondent.

It does not appear from the appeal papers upon what ground the judge at special term vacated the order of arrest. If, as stated by plaintiff's counsel, he vacated it exclusively on the ground that the copy affidavit served contained no signatures or copy signatures, I think he erred.

If no copy, or paper purporting to be a copy, of the affidavit had been served by the sheriff, upon arresting the defendant, such omission would I think have been an irregularity only, and would not have entitled the defendant to his discharge. (Keeler v. Betts, 3 Code Rep. 183 . Courter v. McNamara, 9 How. Pr. R. 255.)

.The provision of the code requiring the sheriff to deliver a copy of the order and affidavit to the defendant, upon arresting, is directory merely.

The facts stated in the affidavit ujion which the order of arrest was granted, to show that the defendant had removed or disposed of,, or was about to remove or dispose of his property with intent to defraud his creditors, are certainly slight.

The matters stated in the affidavit on which the order of arrest was granted, authorized the order of arrest. But the copy affidavit served was not subscribed by the party, nor did it purport to show that the original paper was signed by any affiant; nor was the jurat signed by any officer authorized to administer oaths; nor did it purport that the original was signed by any such officer. If it was necessary to the validity of the order that these names should appear from the copy to have been signed to the original, then the order of arrest was correctly vacated; otherwise not.

In Graham v. McCoun ( 5 How. 353 ) Justice Willard reviewed the practice as to the necessity of serving the signatures

p. 256

of the affiant and officer to an affidavit, and he came to the conclusion that in cases where the opposite party had an opportunity to inspect the original, and it was properly signed, it was not necessary to annex such signatures to the copy, nor that the copy should purport that the original was so signed; but where such opportunity was not given, as in the verification of pleas in abatement under the former, and of pleadings under the new practice, the papers served must contain the signatures, or they may be disregarded. The. cases cited by the learned justice sustain his views of the practice.

[New York General Term,

May 4, 1863,

It follows that the affidavit in this case is not one which must contain the names.

The copy affidavit served was not void. If it was irregular, the order to show cause did not point out the irregularity, and hence the order could not, under the rules, be vacated for that reason.

I am of opinion the order of arrest was improperly vacated; and the order of the special term should be reversed, with ten dollars costs.

Order reversed.

Sutherland, Clerke and Mullin, Justices.]