Watson v. McGuire , 33 How. Pr. 87 ( 1867 )

By the Court.—Cardozo, J.

The action is to recover certain personal property, and upon an affidavit and the certificate of the sheriff that the property has been eloigned and concealed by the defendant, so that it could ndt be taken by the sheriff, an order under subdivision three of section 179 of the Code was granted, to arrest the defendant. A motion to vacate the order on the papers on which it was issued was made and denied. The grounds on which the motion was based, and on which we are asked to reverse the decision below, are, 1st, That no fact is stated from which the judge could conclude that the property was eloigned or concealed; and, 2d, That, at all events, there is no fact from which it can be inferred that such eloigning or concealment was with intent that the property should not be found, or taken, or with intent to deprive the plaintiff of the benefit thereof.

Perhaps the statement that property has been eloigned, that is, removed to a distance, may be considered as an assertion of a fact, and not being disputed in this case by any opposing affidavit, it is to be regarded as established that the defendant did remove and conceal the property. But that is not enough, under the statute, to justify an order of arrest. The statute requires, before that remedy shall be allowed, that two matters shall be established, viz.: 1st, That the property has been removed or concealed by the defendant; and, 2d, That such removal or concealment was with intent that it should not be found or taken by the sheriff, or with the intent to deprive the plaintiff of it. The former of these propositions is established, but not the latter, unless we infer it from the existence of the former, which the statute does not permit.

Both before and since the amendment of 1857, this section has been construed in accordance with these views ( Van Neste v. Conover, 5 How. Pr, 148; Roberts v. Randel, 5 How. Pr. 327; Pike v. Lent, 4 Sand. S. C. R. 650; Mulvey v. Davison, 8 How. Pr. 111; Reimer v. Nagel, 1 E. D. Smith, 258). To give any other construction to the statute is practically to declare that an order of arrest may be allowed in every ease where the property has either been removed or concealed.

I think the order below should be reversed.