Col. Insurance v. Force
New York Supreme Court
This was an appeal from an order made by Mr. Justice C. L. Allen, at special term, denying a motion that an undertaking given on the arrest of the defendant, Force, be delivered up, and an exoneretur entered.
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This was an appeal from an order made by Mr. Justice C. L. Allen, at special term, denying a motion that an undertaking given on the arrest of the defendant, Force, be delivered up, and an exoneretur entered. The sheriff of Oneida county stated in his affidavit, that on the 25th day of August, 1852, as he was about to leave home, an application was made to him to depute one J. Halstead to serve the summons, complaint and order of arrest in this cause; and that he verbally so deputed said Halstead; and was next day informed by Halstead that he had made such service, whereupon he, (the…
1Opinion of the Court
By the Court—Hand, P. J.
This is an appealable order. {Code § 349.) An order to arrest is one of the provisional remedies under the Code, and the denial of the motion at special term, substantially continues that order.
The defendant by giving hail, or procuring an “ undertaking ” to be given, did not thereby waive his objections to the legality of the arrest, unless he did so voluntarily. Under the former system, the execution of a bond to be discharged from arrest, by the defendant himself, did not have that effect. (6 J. B. Moore, 64; 10 Id. 322; 2 D. & R., 73; Id. 237.) And I am inclined to…
2Cases cited4 opinions
- Boardman v. HallidayNew York Court of Chancery · 1843
- Pixley v. WinchellNew York Supreme Court · 1827
- Bank of Orange County v. WakemanNew York Supreme Court · 1823
- Dubois v. DuboisNew York Supreme Court · 1829
3Cited by3 opinions
- Splahn v. GillespieIndiana Supreme Court · 1874
- Petrie v. FitzgeraldNew York Court of Common Pleas · 1864
- Douglass v. . HaberstroNew York Court of Appeals · 1880