Lee v. Averill — 4 N.Y. Super. Ct. 621

Majority

p. 621

Lee v. Averill.

Headnote

Under the act to abolish imprisonment for debt, a warrant for the arrest of the defendant, issued before the service of the summons by which the suit is commenced, is void.

On discharging a party arrested under such a warrant, the judge cannot impose as terms, that he shall not bring an action.

Nov. 1848.

Motion before a justice of the court at chambers, to discharge a defendant from arrest upon a warrant issued under the act of 1831, to abolish imprisonment for debt in certain cases. The summons and complaint were delivered to the sheriff to be served on the defendant, before application was made for the warrant, but the warrant was issued, before either the summons or complaint were served. In fact the sheriff served all three at the same time.

p. 622

J. W. Gilbert, for the defendant.

P. Reynolds, for the plaintiff.

The warrant was clearly void. Section 106 of the code (of 1848,) applies, and the suit was not commenced when it was issued. The 79th section relates merely to saving the statute of limitations. The defendant must be discharged. I am asked to impose as a condition that he will not sue for false imprisonment, but I have no control over the matter.

Defendant discharged.