Lewis v. Truesdell — 3 N.Y. Super. Ct. 706

Majority

p. 706

Lewis v. Truesdell.

Headnote

An application to vacate an order of arrest, pursuant to section two hundred and four of the code, must be made before the bail has become perfect. It must be made before the bail have justified, if excepted to ; and if no exception be taken, then before the time for excepting has expired.

Jan. 25, 1851.

MotioN to set aside an order of arrest. The defendant was arrested under the order, and was required to give bail. He accordingly put in bail to whom no exception was taken by the plaintiff. In March last, judgment was recovered against the defendant in the suit, an execution was issued and returned unsatisfied, and supplementary proceedings thereon ensued against the principal. An action was subsequently commenced against his bail, whereupon this motion was made.

A. Anson, for the defendant.

C. Shaffer, for the plaintiff.

(With the concurrence of Sandford and Paine, Justices.) — This motion is made with a view to discharge the bail from his responsibility, and it is bottomed on the language of section two hundred and four of the code of procedure, which provides that a defendant arrested may at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail. The defendant’s idea is, that as the bail never justified in this case, the matter is still open for him to move to vacate the order under which he was arrested. The plain meaning of the code is, that the application must be made before the bail have justified if excepted to; and if not excepted to, before the time for taking an exception has elapsed, and the bail has thereby become perfect. The defendant, by submitting to put in and perfect bail, accedes to the regularity of his arrest and the

p. 707

sufficiency of the grounds for it. The object of the provision in the code, is to give him time to move before bail shall have been perfected.

Motion denied.