Allen v. Hyde.

The only application the defendant can make is to be released on security.

V. The plaintiff can introduce affidavits in opposi tion to the motion, as in cases of other application to vacate or modify a provisional remedy (Flack v. Holm, 1 Jac. & Walk. 405, 414). The denial of all indebtedness by the defendant will not avail as a reason for discharging a ne exeat, when such indebtedness has been previously sworn to by the plaintiff (Jones v. Alephsin, 17 Ves. 470).

LAWRENCE, J.-The motion to vacate the writ of ne exeat issued in this case should, I think, be granted, for these reasons: 1st. The preponderance of proof is to the effect that Hyde was not a member of either of the firms which are alleged, in the affidavits on which the writ was obtained, to be indebted to the late firm of Merryweather & Co., of which the plaintiff is the receiver. 2nd. It is an inflexible rule that to entitle a complainant to the writ of ne exeat there must be a present debt or duty or some existing right to relief against the defendant or his property, either at law or in equity (2 Wait's Pr. 274, and cases cited). In this case the weight of the testimony is that the defendant is not a member of the firms alleged to be indebted to the receiver. 3rd. As a general rule the writ does not issue except in cases of equitable demands, and is not allowed on a merely legal claim (2 Wait's Pr. 273). The claim in this case is an ordinary legal claim, arising out of an ordinary commercial transaction. 4th. The papers before me do not appear to show what security the defendant has given, if he has given any at all, bringing the case within the rule as to waiver, as stated by the chancellor in Jesup v. Hill (7 Paige, 95). I do not feel constrained, therefore, to hold that the defendant has done anything which amounts to a waiver of his right to move to vacate the writ. It

Anonymous.

should be vacated for the reasons above stated, but the defendant must stipulate not to sue for false imprisonment or arrest.

N. Y. Supreme Ct., First Department; Chambers,

February, 1877.

ARREST.-SPECIAL BAIL.

Where a defendant in an action has been arrested under the non-imprisonment act of 1831, he should be discharged upon giving special bail as required by the statute.

Whether the Code has not changed the form of bail in all actions, quære.

Motion to discharge from imprisonment a defendant arrested under non-imprisonment act.

The defendant in this action was arrested under the "act to abolish imprisonment for debt and to punish fraudulent debtors," passed April 26, 1831. He controverted the facts and circumstances alleged, and testimony was given thereon. At the conclusion of the trial he was adjudged guilty, and committed. He thereupon sued out a writ of habeas corpus, claiming that as there was an action pending to recover the amount in controversy, he was entitled to bail during the pendency of the suit, which was argued before Mr. Justice BARRETT on February 6, 1877. On February 7, Mr. Justice BARRETT delivered the following opinion:

"I have examined the law applicable to this case, and my impression is rather in favor of the right to a discharge on putting in and perfecting special bail

Anonymous.

under the act of 1845. But I will hear counsel further before finally making up my mind."

The motion was re-argued, when the justice intimated his opinion was the same as before, but dismissed the writ on the ground that it was not the proper form in which to bring the matter before him.

An order to show cause was then obtained by defendant's attorney, and argued before Presiding Justice DAVIS.

Adolphus D. Pape, for the defendant, in favor of the motion, contended:-I. Defendant is entitled to bail, during the pendency of this action, under the Laws of 1845, ch. 214. The legislature intended by said act to relieve a man from the necessity of making an assignment or paying the debt, until judgment has been obtained. The justice adjudging a defendant guilty does not pass upon the fact whether a debt is due or not, but only upon the fact whether fraud has been committed. The act leaves the plaintiff in the same condition when judgment is obtained, as at the time the commitment is issued (Laws of 1845, ch. 214; Graham's Practice, 3d ed. title Special Bail; Burrill's Practice, titles Special Bail and Non-Imprisonment Act. And as to form of bail, see Burrill's Appendix).

C. Fine, for plaintiff, opposed, contended:-I. The act of 1845 only applies when defendant has made application for an assignment (See Laws of 1831, Nonimprisonment Act, and Laws of 1845, ch. 214).

DAVIS, P. J.-The defendant in the action is entitled to be discharged, upon giving special bail, as required by the statute. The order is not to be effective until such bail shall be entered upon notice to plaintiff's attorney. There may be some doubt whether the Code has not changed the form of taking bail in all

Spaulding . Lyon.

actions, but for greater safety the bail will be taken in the form of a bail-piece, under the old practice, and also by executing an undertaking in the form prescribed by the Code.

There was no appeal.

SPAULDING v. LYON.

N. Y. Supreme Ct., First Department; Chambers, November, 1876.

AFFIDAVIT OF SERVICE. JUDGMENT.-EXECUTION.

An affidavit of service of summons, made by an attorney and founded on information received from his clerk, who made the alleged service, but without proof that the clerk knew the person served to be the defendant, and that he left with him the summons, &c., and without stating the place and manner of service, is insufficient, and judgment entered thereon is without jurisdiction.*

Although a motion for leave to issue execution cannot be opposed by impeaching the judgment, yet if on a cross motion the judgment is vacated, the execution must fall with it.t

Motion for leave to issue execution, and motion to set aside judgment.

On December 21, 1867, the plaintiff entered up judgment by default against the defendant, upon an affidavit of service made by the plaintiff's attorney, which stated that his clerk had in the month of June, of that year, personally served the defendant with a summons in the action. That deponent's knowledge

* This rule is the same under the new Code of Civil Procedure, §§ 434, 927.

The new Code of Civil Procedure does not appear to alter the rule on this subject. See §§ 1375, 1282-1290.

Spaulding v. Lyon.

was derived from a statement of his clerk, made to him at the time of the service, and the entry made by him in the register at that time; that the clerk had subsequently left his employ, and could not be found after diligent effort, and that he knew the party so served to be the defendant in the action. Execution was immediately issued, and returned unsatisfied.

On November 8, 1876, application was made by another attorney for the plaintiff, for leave to issue another execution. Defendant's attorney thereupon made a motion to vacate the judgment, on the ground that the court had never acquired jurisdiction over the party, and that the judgment was void on the face of the judgment roll.

The two motions were heard at the same time.

Charles S. Simpkins, for motion for leave to issue execution.

Samuel Brown, for motion to set aside the judg

ment.

Upon the motion to vacate the judgment the following opinion was delivered:

LAWRENCE, J.-The proof of the service of the summons upon defendant was defective and insufficient, and did not authorize the entry of judgment against defendant. Section 138 of the Code requires that the person making the service should make his affidavit thereof, and section 139 provides that from the time of the service of the summons the court shall be deemed to have acquired jurisdiction, &c. Section 246 requires the plaintiff, in an action arising on contract, to file proof of personal service of the summons on the defendant. There is no such proof in this case, as the affidavit of Mr. Meeks, the plaintiff's attorney, amounts only to a declaration that his office clerk had told him that he had made such service. This does not amount to proof of personal service on the defendant. The