Elston v. Potter , 9 Bosw. 636 ( 1862 )

By the Court —Moncrief, J.

The authority and direction to the Sheriff “ to hold the defendant to bail,” are contained and to be found only in the order of arrest. (§ 183, Code.) The order of arrest in this action states “ that the plaintiff has a sufficient cause of action against said defendant for wrongfully detaining or converting personal property,” &c. Under such an order the Sheriff could demand only such an undertaking as is required under subdivision 1 of section 179 of the Code, “ that the defendant shall at all times render himself amenable to the process of the Court,” &c. (§ 187.) Such an order of arrest was obtained in the action in the Supreme Court and voluntarily abandoned by the plaintiff. The counsel for the respective parties conceded, and it appears by the papers used upon this appeal, that this is an action “ to recover the possession of personal property, &c., and in such an action the order of arrest is granted upon the ground that the property is concealed, &c., by the defendant so that it cannot be found, and with the intent that it shall not be found and taken by the Sheriff, and requires the Sheriff to take from the defendant an undertaking to pay the amount which may be recovered against the defendant. (Sub. 3, § 179 and § 211, Code.)

The order of arrest was therefore properly discharged, and the order made at Special Term must be affirmed.