Lovell v. Martin

12 Abb. Pr. 178

Opinion

Brady, J.

—In this case, the defendant having moved to discharge the order of arrest upon the affidavits on the part of the plaintiff, and on which the order of arrest was granted, the order having been sustained and affirmed on his appeal to the general term, the defendant has waived his right to move on affidavits, on his part, to discharge the order of arrest. When — : the order is predicated. of the charge of having fraudulently-contracted the debt, the right of arrest being a provisional remedy, the examination of the question of fraud, if not a trial, as suggested in Corwin a. Freeland (2 Seld., 560), is certainly a judicial determination of the question, which partakes of all the force and effect of the finding of a judge on a question of fact, and can be reviewed only on appeal to the general term. If the defendant relies upon the insufficiency of the plaintiff’s affidavits, refusing to produce proof on his own behalf, his proceeding assimilates to that of a defendant, who, on the trial, submits the case proved against him to the consideration of the court, refusing or declining to produce evidence on his own behalf. The Code (sections 204, 205) provides for one motion only; and when one is made by a defendant and decided against him, especially if he appeal from such decision, he cannot, and, in justice, ought not, to be permitted to renew his motion on his own proof, and thus subject the court to two distinct considerations of his case on the same subject.

The motion must be denied, but without costs, the question being new.