Ely v. Lyons , 18 Wend. 338 ( 1836 )

By the Court,

Bronson, J.

This is not a renewal of the motion made on the 8th instant. That was a motion to set aside the order of the recorder. It-was regarded as an appeal from the order, and the motion was denied on the ground that the defendant had not presented the papers which were before the recorder. The merits were not considered.

The second objection involves the inquiry whether the recorder had authority to make the order to hold to bail. If he had, the proper course was for the defendant to apply to the officer to discharge or vacate the order, and in the event of his refusal, the matter should then be brought before the court by way of appeal, and be heard on the same papers that were before the commissioner But if the recorder had no power to make the order, the defendant is right in making a direct motion to the court to be discharged from the arrest.

[646] Before the passing of the act to abolish imprisonment for debt, (Laws of 1831, p. 396,) all persons might be held to bail in the action of assumpsit, without any order for that purpose. The first and second sections of that act only exempt from imprisonment persons who are residents of this state, and not those who reside abroad. If the defendant was in truth a resident of Indiana at the time, no order to hold to bail was necessary. He was subject to arrest in the same manner as though the act had not been passed. But if he was a resident of this state, and had been so for at least one month previous to the commencement of the suit, the statute expressly exempts him from arrest or imprisonment; and no judge or commissioner could make a valid order to hold him to bail. Where the plaintiff proceeds on the ground that the defendant is a non-resident, the law has not authorized any public officer to order the arrest, and the party must act at his peril.

On the affidavits presented, there can be no doubt that the defendant at the time of the arrest was, and for several years immediately preceding it had been, a resident of this state. As the order to hold to bail was nugatory, it is only necessary to order the bail bond to be delivered up and cancelled, on the defendant’s entering his appearance. Motion granted.