by affidavits, or other proofs, in addition to those on which the order of arrest was made.

a. Affidavits.—The motion may be made without affidavits on the part of the defendant, that is, upon the plaintiff's own showing (Geller v. Seixas, 4 Abb. 104; Baker v. Swachamer, 3 Code Rep. 248; 5 How. 251); in which case. the sole question is whether the affidavits of the plaintiff authorize the granting the order (Martin v. Vanderlip, 3 How. 265); or upon the affidavit of the defendant or others (Corwin v. Freeland, 6 N. Y. 565). In such a case the plaintiff may, to sustain the order and resist the motion, introduce additional affidavits and show contemporaneous frauds by the defendant (Scott v. Williams, 23 How. 393). The evidence of contemporaneous frauds must be legal evidence (Stewart v. Potter, 37 How. 68).

b. A defendant who moves upon the plaintiff's affidavits to vacate an order of arrest, admits those affidavits to be true (Lovell v. Martin, 21 How. 238; Hathorn v. Hall, 4 Abb. 227), although the allegations they contain may be made on information and belief only (Wolfe v. Brower, 5 Rob. 602). And where the defendant moves on the plaintiff's affidavits, and affidavits in response thereto, he so far adopts the plaintiff's affidavits as to waive the right to object to them for being erroneously entitled (City B'k v. Lumley, 28 How. 397).

c. On a motion to discharge from arrest on the ground that the debt has been barred by a discharge in bankruptcy or insolvency, the court may examine the validity of the discharge. If the discharge is found to be valid, the order of arrest should be vacated (Amer. Flask Co. v. Son, 3 Abb. N. S. 333; 7 Rob. 233).

d. If the action is one in which the plaintiff cannot be arrested, and he has given bail, his proper remedy is to move to vacate the order of arrest, and not move for an exoneratur and the discharge of his bail (Holbrook v. Homer, 6 How. 86).

e. Where the right to arrest is derived from the nature of the action, the defendant will not be allowed to introduce affidavits to show that there is no cause of action; for that would be trying the merits of the action by affidavits (Solomon v. Wass, 2 Hilton, 179). But the Code, even in such a case, permits a partial trial of a cause on motion to vacate (Corwin v. Freeland, 6 N. Y. 565). And where the facts constituting the cause of action and the facts authorizing the arrest are identical, the order of arrest will not be set aside on the merits, unless the defendant clearly makes out such a case as would call on the judge at the trial either to nonsuit the plaintiff, or direct a verdict for the defendant (Levis v. Noble, 15 Abb. 475; Barrett v. Gracie, 34 Barb. 20; and see Cousland v. Davis, 4 Bosw. 619; Lorillard Ins. Co. v. Meshural, 7 Rob. 308). In Mecklin v. Berry (23 How. 380), the order of arrest was vacated, on the ground that the balance of proof, as to whether or not there was fraud, was in favor of the defendants. When the arrest is founded upon extrinsic facts, wholly independent of the cause of action, as where the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors, then the defendant may contest the truth of the facts upon which the arrest was ordered; and if he satisfies the court, either by his own affidavit or otherwise, that there is no foundation for the arrest, he is entitled to be discharged (Geller v. Seixas, 4 Abb. 104; Bedell v. Sturta, 1 Bosw. 634; 6 Abb. 319, n.; Coope v. Wells, 6 Abb. 540; Falconer v. Elias, 1 Code Rep. N. S. 155; Corwin v. Freeland, 6 N. Y. 565). A denial by the debtor of the facts sworn to on the part of the plaintiff is not sufficient to vacate an order of arrest; there must be a preponderance of evidence (Phillips v. Benedict, 20 How. 265; see Allen v. McCrasson, 32 Barb. 662; Brodsky v. Ihms, 25 How. 471; 16 Abb. 251). On such motion the question is, whether, upon the whole case, as made by the affidavits on both sides, the court, if called upon to act upon the application as res nova, would grant the order of

But if,

arrest. If it would, then the motion to vacate should be denied. after hearing both parties, it should appear that a case for arrest has not been made out, the order should be vacated (Chapin v. Seeley, 13 How. 493; Barron v. Sanford, 14 id. 443; 6 Abb. 320 n.) For to sustain an order of arrest, the plaintiff is bound to make out his case beyond a doubt (Mulrey v. Collett, 3 Rob. 716). Thus, where the order of arrest was for obtaining goods on a check which defendant represented would be paid on presentment, and which on presentment was not paid, it appearing that the drawer of the check, on the day it was delivered to plaintiff, and on the following day, had in bank to his credit funds sufficient to pay the check if it had been presented, the order of arrest was vacated (Stewart v. Potter, 37 How. 68). In other cases it is held that the principle on which the court should act in such a case is to inquire whether, upon the whole case as presented, it appears that a verdict ought to be given for the plaintiff or defendant. If the questions are doubtful, then the plaintiff has not made out his case, and the defendant should be discharged (Hernandez v. Carnobelli, 10 How. 449; Republic of Mexico v. Arrangois, 11 id. 576; 5 Duer, 634; Barron v. Sanford, 14 How. 443; 6 Abb. 320 n.; Sachs v. Bertrand, 12 Abb. 433; 22 How. 95; Allen v. Mc Crasson, 32 Barb. 662). In Frost v. Mc Carger (14 How. 131), Marvin, J., reviewed the cases on this point very fully, and concluded that, when the facts justifying the arrest differ from the facts constituting the cause of action, and are not to be passed upon by the jury on the trial there, on a motion to discharge the order of arrest, the court may decide the disputed question of fact; but where the facts on which an order of arrest issued are those which constitute the cause of action, and their truth has to be passed upon by the jury, there the court ought not, except in a very clear case, to try the question on a motion to vacate the order of arrest (see Royal Ins. Co. v. Noble, 5 Abb. N. S. 54; Merritt v. Heckscher, 50 Barb. 452; Stuyvesant v. Bowran, 3 Abb. N. S. 270; 34 How. 51; Merwin v. Playford, 3 Rob. 702; Nelson v. Blachfield, 54 Barb. 630; Woodward Steam Pump Co. v. Stokes, 33 How. 396; Ely v. Mumford, 47 Barb. 629; Jaroslawski v. Saunderson, 1 Daly, 232). An issue as to fraud is for the jury (Francheris v. Henriquez, 24 How. 165; see Warren v. Leland, 13 Abb. 187). The capacity in which a defendant receives money of the plaintiff, so as to subject him to arrest for withholding it is part of the cause of action, to be proved on the trial, and the question cannot be tried by affidavits (Swift v. Wylie, 5 Rob. 680). And where the action was for the wrongful conversion of stock certificates left with defendant for safe keeping, the court refused to try the question of conversion on affidavits (Butler v. McIlvaine, 31 How. 379; see Jananique v. De Luc, 1 Abb. N. S. 419).

a. In an action to recover the possession of personal property, the sheriff's return is prima facie evidence that the property has been concealed or removed to prevent its being taken; but the defendant may rebut the presumption thus raised, and on its appearing that the defendant neither concealed, removed, nor disposed of the property to prevent its being taken, the court will vacate the order of arrest (Manley v. Paterson, 3 Code Rep. 89).

b. It is not a ground for vacating an order for arrest, that the case made by the complaint varies from that made by the affidavits, if the affidavits are themselves sufficient, and disclose a ground of arrest which is consistent with the allegations of the complaint (Stelle v. Palmer, 7 Abb. 181). Nor will an order of arrest be vacated because the summons is erroneously entitled (Bedell v. Sturta, 1 Bosw. 634), nor because since the granting the order the summons has been amended (Union B'k v. Mott, 6 Abb. 316), nor because an attachment proceeding between the same parties, and for the same cause of action, is pending in another State (Litheau v. Turner, 1 Code Rep. N. S. 210), nor because the defendant has been sued for the same cause in a foreign tribunal (Arthurton v. Dalley, 20 How. 311), nor because there is an improper joinder of parties plaintiff (Webber v. Moritz. 11 Abb. 113), nor because the defendant was arrested at a time when he was exempt from arrest (Hart v.

Kennedy, 15 Abb. 290), nor because the debt is barred by the statute of limitations, no such defense being set up in the answer (Arthurton v. Dalley, 20 How. 311), nor because the plaintiff has not served a complaint in the action (Skinner v. Noyes, 7 Rob. 228), nor because the first names of the plaintiffs are omitted in the summons and order of arrest (Ballouhey v. Cudot, 3 Abb. N. S. 122), nor because there is a defect of parties defendant (Clark v. Pinckney, 50 Barb. 226), nor in an action for converting chattels, on the ground that the defendant has a demand against plaintiff exceeding the amount claimed in the action (Huelet v. Rogers, 1 Abb. N. S. 27). But the defendant will be discharged from arrest when it appears that the arrest was effected by enticing him by false representations, within the bailiwick of the sheriff holding the process (Goupil v. Simonson, 3 Abb. 474; Stein v. Valkenhauser, 27 Law Jour. N. S. Q. B. 236).

a. Where the amount of the defendant's indebtedness is verified in the affidavit on which the arrest is founded, the order will not be modified merely because the affidavits submitted by the defendant on a motion to vacate the order, contain some evidence that the claim is overstated (Noble v. Prescott, 4 E. D. Smith, 139).

b. Condition upon vacating order.-Upon vacating an order of arrest, the court assumes the power, in some cases, to make the order conditionally on the defendant's stipulating not to bring any action for false imprisonment, or for damages by reason of his arrest (Northern Railway Comp. v. Carpentier, 4 Abb. 47; Alden v. Sarson, id. 102; Croden v. Drew, 3 Duer, 655; Merchant's Bank v. Dwight, 13 How. 371; and see Decker v. Judson, 16 N. Y. 446; Williams v. Riel, 5 Duer, 603; Gould v. Spencer, 5 Paige, 541; Rigney v. Tallmadge, 17 How. 558; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Lee v. Averill, 2 Sand. 622; Aldridge v. Barry, 3 Dowl. Pr. Cas. 450; Dominick v. Eacker, 3 Barb. 19).

c. The discretion exercised by the court at general term, in imposing such a stipulation, is not to be reviewed at a subsequent general term, nor by the court at special term (Edgerton v. Ford, 11 Abb. 415).

d. Where, on appeal from an order denying defendant's motion to vacate an order for arrest, the order was to be reversed on defendant stipulating not to sue, or in default of such stipulation, the order was to be affirmed, the defendant declined so to stipulate,-held that the order was conclusive on defendant, on his motion to set aside an execution against his person, and the court would not review the order on the ground that the condition was oppressive (id.)

e. Renewing motion.—A motion to vacate an order of arrest, cannot be renewed in any case without leave of the court (Lovell v. Martin, 21 How. 238). After a defendant has moved upon plaintiff's affidavits to vacate the order of arrest, and his motion has been denied, he should not have leave to renew it on affidavits contradicting those of the plaintiff (Lovell v. Martin, 12 Abb. 178).

f. Appeal from order.—An order denying a motion that an undertaking given on the arrest of the defendant be delivered up and an exoneratur entered is an appealable order to the general term (Col. Ins. Co. v. Force, 8 How. 353), but not to the court of appeals (Genin v. Tompkins, 1 Code Rep. N. S. 415).

g. Where the defendant has been arrested, and his motion to reduce the bail been denied by the justice who granted the order, another justice, before whom a motion to vacate the order or reduce the bail is made, founded upon new affidavits, should not reduce the bail unless new facts are presented bearing on that question; and the fact that, since the denial of the first motion, the defendant has been held to bail in a much smaller amount in a criminal proceeding on the same facts, is not a reason for reducing the amount of bail in the action (Union B'k v. Mott, 6 Abb. 316).

h. An appeal from an order of a county judge vacating an order of arrest, may be taken to the general term of the supreme court (Lancaster v. Boorman, 20 How. 421).

a. An appeal from an order denying a motion to vacate an order of arrest, is not prejudiced by the entry of judgment against the defendant, and the bail becoming charged pending the appeal (Pacific Mut. Ins. Co. v. Machado, 16 Abb. 451).

b. An order reducing the amount of bail, will not, under ordinary circumstances be reviewed on appeal (Hart v. Kennedy, 15 Abb. 290).

c. On an appeal from an order vacating an order of arrest, the court will, on the absence of the complaint, presume that the complaint is consistent with the affidavit on which the order was granted (Levins v. Noble, 15 Abb. 475).

d. The defendant moved to vacate the order of arrest; his motion was denied, and he appealed to the general term. Pending the appeal he obtained leave to move again on new facts, and that motion being denied he appealed to the general term,-held, on reversing the order on the second motion and vacating the order of arrest, that the first order should be dismissed with costs (Lambert v. Snow, 9 Abb. 92).

e. Appeals from orders denying motions to vacate orders of arrest after defendant has given bail, are not to be encouraged (Moers v. Morro & Martin, 17 How. 280; 18 Abb. 257; 29 Barb. 261).

f. On an appeal from an order denying a motion to vacate an order of arrest, the objection that the affidavit on which the order of arrest was granted was made on information and belief, can have but little weight with the appellate court, where the principal allegations in such affidavit are not explained or denied (Union B'k v. Mott, 9 Abb. 106; 17 How. 354).

9. The court at general term, on appeal from a judgment, cannot consider whether an order of arrest in the action was properly granted (Ross v. West, 2 Bosw. 360).

CHAPTER II.

Claim and Delivery of Personal Property.

SECTION 206. Claim of delivery of personal property.

207. Affidavit and its requisites.

208. Requisition to sheriff to take and deliver the property. 209. Security by plaintiff.

210. Exception to sureties.

211. Defendant, when entitled to delivery.

212. Justification of defendant's sureties.

213. Qualification and justification of sureties.

214. Property, how taken when concealed in building or en

closure.

215. Property, how kept.

216. Claim of property by third person.

217. Notice and affidavit, when and where to be filed.

§ 206. (Am'd 1849.) Delivery of personal property.

The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter.

a. The provisions of this chapter are a substitute for the former action of replevin (Roberts v. Randall, 3 Sand. 707; Rockwell v. Saunders, 19 Barb. 481; Chappel v. Skinner, 6 How. 339; B'k of France v. Carpenter, 4 Abb. 51; Nichols v. Michael, 23 N. Y. 269). And in contingencies not provided for, the former practice in the action of replevin must be resorted to (Brockway v. Burnap, 16 Barb. 314; Wilson v. Wheeler, 6 How. 49). As to verdict and judgment, see §§ 261, 277.

b. The object of the proceeding under this chapter is the recovery of the property in specie; and if, before action brought, the defendant unconditionally offers to restore the property, the object is already attained, and the proceeding under this chapter is unnecessary. Such an offer is equivalent to a tender before action brought (Savage v. Perkins, 11 How. 17). And where, after delivery of a requisition, &c, to the sheriff, before the defendant was served with the summons in the action, the property in suit was restored to plaintiff, held the plaintiff could not recover in the action (Nosser v. Corwin, 36 How. 540; Christie v. Corbit, 34 How. 19).

c. In an action for the recovery of the possession of personal property, where the property has been delivered to the plaintiff, and the defendant has answered, the plaintiff cannot discontinue on payment of costs merely (Wilson v. Wheeler, 6 How. 49). If in such a case the plaintiff neglects to proceed before issue, the defendant may, under section 274, have judgment for a dismissal of the complaint, for his costs and a return of the goods; or, if he neglect to proceed after issue, defendant may notice the cause for trial under section 258, and have a dismissal, verdict, or judgment, as the case may require (Schroeder v. Kohlenback, 6 Abb. 66). An order that the complaint be dismissed unless the plaintiff bring the cause to trial within a specified time, is improper in such a case (id.) If the plaintiff serves notice of discontinuance at any stage of the action, the defendant may accept it, and sue on the undertaking given by the plaintiff on procuring the delivery of the property to him.

d. The actions for injuries by force to property, and claims to recover the possession of personal property, are different causes of action; and these actions, are concurrent actions, the same state of facts sustaining the action in either form, it is the judgment demanded which determines to which class it belongs (Spalding v. Spalding, 3 How. 297; and see Dows v. Green, 3 How. 377).

e. The remedy given by this chapter is applicable to every case in which the action of replevin, as given by the Revised Statutes, would lie. The remedy may be had notwithstanding the defendant has wrongfully parted with the possession of the property before the action was commenced (Ross v. Cassidy, 27 How. 416; Knapp v. Smith, 27 N. Y. 277; Nichols v. Michael, 22 N. Y. 269; Ellis v. Lersner, 48 Barb. 539).

f. Semble, the spirit of section 207, subd. 4 of the Code, seems to forbid a resort to the remedy provided by this chapter against a sheriff who has taken goods upon an attachment (Smith v. Orser, 43 Barb. 187).

g. Property taken from the owner for a tax assessed on him under a law of the United States cannot be replevied by him (O'Reilly v. Good, 42 Barb. 521; 18 Abb. 106). But the owner of goods unlawfully seized, under a warrant against another person for nonpayment of a State or city tax, may take proceedings of "claim and delivery" for such goods (Stockwell v. Vietch, 15 Ább. 412).

h. A requisition in proceedings of claim and delivery, against one who purchased the property at a wrongful sale, justifies the sheriff in taking it, although the defendant acted merely as agent in making the purchase, if the papers are served and the seizure made while the goods remain in his actual possession (Haskins v. Kelly, 1 Abb. N. S. 63).

i. A plaintiff has his election to proceed under this chapter to recover possession of the property, or to recover damages for the taking or detention; and having made his election, he must abide by it. He cannot have the de