Ashworth v. Wrigley

1 Paige Ch. 301

Opinion

The Chancellor :—There is no allegation of fraud in these bills; they are simply for an account and payment of demands founded on contract. There is therefore nothing *to prevent the discharge, if valid, operating to exempt the body of the defendant from imprisonment for these demands. The mere fact that a certiorari has been allowed, without stating in what the proceedings before the recorder were erroneous, so that this court could judge whether there -is probable cause to reverse the same, is not sufficient. The discharge is at least prima facie evidence that the defendant is exempt from imprisonment. If there was fraud or irregularity in obtaining it, there should have been an affidavit of the fact. Whether this court would have retained the writs on an affidavit of irregularity merely, it is not necessary now to inquire. Cases of fraud are provided for in the second section of the act. (Laws of 1819, page 116.)

Footnotes

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[1] This court may hold to bail upon evidence of fraud.

The writs of the ne exeat must he discharged.

2 R. S. (4th ed.) 210, sec. 10.