Meech v. Loomis — 28 How. Pr. 209

Majority

p. 209

NEW YORK SUPERIOR COURT.

Alexander Meech agt. Kellogg H. Loomis.

Headnote

The release of a defendant from arrest by the consent of the plaintiff’s attorney, does not per se, operate as a discharge of the order of arrest. And the defendant is thereafter liable to arrest on final process where the judgment warrants it.

It seems that if the order- of arrest had been vacated, the defendant could not again be arrested upon final process.

Special Term,

July, 1862.

Motion by defendant to set aside an execution issued against his person.

After the defendant had been arrested under an order of arrest in this action, and while in the custody of the sheriff, he transferred to the plaintiff’s attorney certain articles of -personal property, which it was agreed should be held “ as security for payment by said defendant of the amount claimed in said suit, and defendant to be released from arrest.” Whereupon the defendant was dis

p. 210

charged from custody. It is averred in the moving affidavits that by reason of such consent the order of arrest became vacated before the entry of judgment. No vacatur of the order by a judge of this court appears to have been made, and the most that can be claimed is that the consent of the plaintiff’s attorney, releasing the defendant from arrest, operated as a discharge of the order.

Subsequently the plaintiff obtained judgment for the amount claimed in his complaint. The complaint, alleged facts showing that the debt had -been fraudulently contracted by the defendant, and’ the judgment so adjudged. Upon a return unsatisfied of an. execution against the property of the defendant, an execution against his person was issued, and he was arrested.

A motion is now made to set aside this last execution, on the ground that the defendant having been discharged from arrest upon the. order of arrest, cannot be arrested upon an execution issued upon a judgment in the action. Had the order of arrest been vacated, it might be a question whether an execution could issue against the person of the defendant. The consent tó release the defendant from arrest did not operate as a' vacatur or discharge of the order of arrest. At most I think it is to be regarded in the light of a voluntary escape, or like the entry of common bail under the old practice. I do not understand that in such cases under the former practice the defendant could not be arrested upon final process. A discharge, or an escape,’ voluntary or otherwise, from arrest Upon mesne process, never precluded a subsequent arrest upon final process. • •

Had the order of arrest been discharged, it might be as if no order had been granted, and in that case I think an execution against the person could not be issued. The allegation of fraud in the complaint in an action of this .kind, would not of itself authorize the execution. The counsel for the moving party has not furnished me with.

p. 211

any citations to authority for his motion, nor can I upon an examination of the books find any. Upon principle I see no reason-for setting aside the execution.

The motion must be denied with costs.