Majority
p. 602Stoddard vs. Coffin. ALBANY, Dec. 1833.
Headnote
On a motion to be discharged under the provisions of the statute to abolish" imprisonment for debt from an arrest by capias, the facts authorizing an arrest byuximmt under that act will not be heard in opposition to the motion.The defendant was arrested on a capias ad respondendum in an action of assumpsit, and gave bail to the sheriff He now applies to set aside the arrest, and that the bail bond be delivered up on the ground that he was a resident of this state at the time of the arrest, and had been for at least one month previous thereto. The motion was attempted to be resisted, on the ground that the debt respecting which the suit was brought was fiaudulently contracted.
By the Court,
The defendant having been a
resident of this state for at least one month previous to the commencement of the suit against him, the motion must be-granted. Law of 1831, p. 396, §. 2. The objection that the-debt respecting which the suit is brought was fraudulently contracted, cannot be heard in opposition to-this motion. If facts exist authorizing the arrest of a party within the provisions of the statute, the mode pointed out in the statute must be pursued, and the defendant then will have an opportunity to controvert the allegations of the plaintiff which now he-would not have,, should the opposition to his motion now set up be entertained.
Motion granted.