Bedell v. Sturta

1 Bosw. 634

Opinion

Bosworth, J.

As the cause of action is one which would authorize an execution'against the body, in case of a recovery, the order will not be vacated merely because the cause of action is denied. The opposing affidavits sustain that on which the order was granted. The complaint will not be set aside after an answer put in, merely because the summons was irregular. If the order of arrest is not wholly void, it should not be set aside for such irregularity, on a motion made after answer; if wholly void, the defendant does not need the interposition of the Court. Motion denied, with seven dollars costs to plaintiff, to abide the event See Union Bank v. Mott, 6 Abb. P. R. 315, and the cases cited, in a note to it.