Majority
p. 518Mott against Jerome. ALBANY, Oct. 1827.
Headnote
_ A motion to common6 i«!j” after a hK,sp’a er’s order to under section of the imprisonment (°gSSde42 &eii’ 101,) must be founded on some defect in the proof on which the order was founded; which defect must be shown by theallegation of fraud before the commisp^^’irf^facts showing pro-the seems, be Wra¿tnthe°order"
The defendant, after obtaining a discharge under the act to abolish imprisonment for debt in certain cases, (sess. 42, ch. 101,) was, under an order of a commissioner, arrested and holden to give bail to the sheriff in this suit for a debt due previous to the discharge.
A motion was now made to discharge him on common bail, founded on an affidavit of the discharge. But the affidavit on which the commissioner made the order was not shown.
H. D. Barto, for the motion.
H. V. R. Schermerhorn, contra.
said they could not grant the motion, because it was not shown what was the proof on which the orders . . r were made by the commissioner. For aught that appears, a plain case of fraud may have been made out before him. If so, the statute, (sess. 42, p. 117, s. 3,) warrants this order; and the court must, till the contrary appear, mtend that the commissioner acted on competent proof.
*But they said, if the affidavit before the commissioner had been shown, and seen to be insufficient, they would have granted the discharge: as if it had contained a mere general allegation of fraud, or a belief of fraud in the discharge, without setting forth facts which would amount to probable cause for such belief.
Motion denied.