Foxell v. Fletcher

Headnote

Extension of time of payment of debt — vacates a prior order of a/rresi.

Appeal from an order denying a motion to vacate an order of arrest.

The order was granted January 2, 1877, on an affidavit showing that an action was about to be commenced for commissions received by the defendant, which he had fraudulently neglected to pay over to the plaintiffs. On the fifth of January, one Jones entered into an agreement with the plaintiffs, by which he transferred to them certain real estate in consideration that the defendant should have thirty-eight months to pay the amount of his indebtedness, the conveyance being made to insure the payment of the debt. The agreement also contained a provision for the payment of twenty-five dollars monthly, but whether this was obligatory upon, or optional with, the defendant, was disputed. The defendant having failed to pay any thing under the agreement, the plaintiffs caused his arrest under the original order, on March 26, 1877.

The court at General Term said: “ The conveyance from Andrews, whether absolute or as security, was a good consideration for the plaintiffs’ agreement. And whether that agreement be construed as an unqualified extension for thirty-eight months, or as an extension, contingent on the prompt payment of the installments, in either case ■there was an extension of the time, as' the plaintiffs themselves admit, for one month at the least. For one month, therefore, at the least, the plaintiffs had no cause of action on which they could sue. It seems to us, then, that an order of arrest, granted before this

extension, onglit not to be in force, after the plaintiffs’ right of action had thus been suspended. Nor should it be again in force after the suspension of the right of action had expired. The suspension was more than a stay of proceedings in an action.

We do not say that a new order of arrest might not be granted, if the suspension has expired, or when it shall expire.”