Merchants' National Bank v. Mosher
New York Supreme Court
The defendant, prior to March 9, 1877, was a member of a banking firm in Canandaigua. He became indebted with his partners to plaintiff and liable to arrest. On the 24th of March, 1877, this action was brought, and Mosher was arrested that day and gave bail in Ontario county.
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The defendant, prior to March 9, 1877, was a member of a banking firm in Canandaigua. He became indebted with his partners to plaintiff and liable to arrest. On the 24th of March, 1877, this action was brought, and Mosher was arrested that day and gave bail in Ontario county. Judgment was entered April 28, 1877, for plaintiff, and execution issued against the property the same day to the sheriff of Ontario county and returned nulla bona, June 20, 1877. Prior to April twenty-eight, the defendant Mosher with his family removed to Monroe county, and he informed the sheriff he would deliver…
1Opinion of the CourtHardin, J.
Under the former practice, the plaintiff could defeat the application for a supersedeas by issuing a ca. sa. before the application for a discharge was heard (1 Burrill, p. 427; 1 Caines, 167; Walsh agt. Hill, 3 John., 446; Bostwick agt. Goetzel, 57 N. Y., 586).
The amendment of section 288 of the Code in 1870 provided for a case when a defendant “ was in actual custody under an order of arrest.” The court of appeals say, that- *417“ provides only for the case of a defendant in actual custody ” (57 N. Y., 586). Section 572 of the Code of Civil Procedure provides, “ if the defendant is in actual…
2Cases cited5 opinions
- Smith v. . KnappNew York Court of Appeals · 1864
- Bostwick v. . GoetzelNew York Court of Appeals · 1874
- Renaudet v. CrockenNew York Supreme Court · 1803
- Bostwick v. WildeyThe Superior Court of New York City · 1871
- Walsh v. HillNew York Supreme Court · 1808