Majority
p. 246Oliver Arnold vs. Benjamin Thomas.
Headnote
An affidavit to hold to bail in an action of trover, should state facts which show a conversion.But an affidavit to hold to bail in an action of trover is not necessary; the plaintiff can hold to hail of course, and defendant must apply to mitigate the amount or discharge on common bail.
Motion by defendant to vacate an order to hold bail.—This was an action of trover; the affidavit to hold defendant to bail, is as follows: (title of the cause,) “ Cortland county, ss. Oliver Arnold, of Homer, being duly sworn, says, that Benjamin Thomas, the above named defendant, has possessed himself of divers, goods, wares, and chattels of the deponent of the value of five hundred dollars, which he has refused to deliver to this deponent, and has converted the same to his own use.”
Upon this affidavit the defendant was held to bail by a supreme court commissioner.
M. T. Reynolds, Lefts Counsel. J. H. Thomas, Lefts Mty.
S. Stevens, Plffs Counsel. I. A. Gates, Plffs Mty.
R was insisted by defendant, that the affidavit was insufficient, for the reason that the facts stated in it, did not show a conversion; the defendant might have hired the property from plaintiff.
Held the affidavit insufficient, for the reason mentioned, and decided that no order was necessary; that plaintiff could hold to bail of course, and defendant must apply to mitigate the amount or discharge on common bail. Order to hold bail vacated, without costs