Godfrey v. Pell

17 Jones & S. 206

Opinion

By the Court.—O’Gorman, J.

—So far as the merits of this case are concerned, and on the facts as they appear in the affidavits and papers used on the motion, this court holds that there was enough to justify the order of arrest.

A question, however, has been raised on the argument whether the learned judge who granted the order of arrest, did not err in failing to require from the plaintiff an undertaking in an amount at least equal to one-tenth of the amount of bail required' by the order, in compliance with, section 599 of the code, and whether such error rendered the order of arrest void for want of jurisdiction.

The amount of bail required, was $6,000, whereas the amount of plaintiff’s undertaking was $250.

The defendant’s order to show cause on which the order appealed from was granted, claimed relief in the alternative, either that the order of arrest should be vacated and set aside for irregularity and on the merits, or that the amount of hail required, in said, order he reduced. The learned judge by his order did reduce the amount of bail from $6,000, to $2,500.

We fully concur in the opinion of Judge Lawrence, in the case of The Southern Navigation Co. v. Sherwin (1 Civ. Pro. Rep. 46), cited by counsel for the defendant here, “ that the liberty of the citizen is of quite as much importance as the preservation or security of his property, and that the provisions of the Code should be as strictly construed in cases of arrest as in cases of attachment.”

The defendant in the case at bar, however, has in his order to show cause, complained of the defect, not as going to the jurisdiction of the court to grant the order of arrest, but only as an irregularity ; and he has failed to specify in his order to show cause the irregularity complained of as required by Rule of Court 37.

The order appealed from is in compliance with one of the prayers of his order to show cause, to wit, that the amount of bail be reduced ; and from that part of the order, no' appeal -has been taken.

The defendant’s objection as to the insufficient amount of the plaintiff’s undertaking, has in our judgment been waived by the defendant, and cured by the court.

The amount of defendant’s bail having at the instance of defendant been reduced, the amount of the plaintiff’s undertaking is sufficient.

The order appealed from is affirmed, with $10 costs.

Sedgwick, Ch., J., and Ingraham, J., concurred.