Fritts v. Slade

Baenaed, P. J.:

In August, 1868, the defendant is charged by plaintiff with having made a false representation to him as to his property, with an intent to obtain merchandise of plaintiff on credit. That soon thereafter, goods were delivered from time to time and large payments made thereon as the time of the credits expired, until the 26th of May, 1869, when the account was closed, and on a settlement thereof, the defendant gave to the plaintiff his promissory note for $274.16, payable one month after date. The note was not ■paid, but payment has been made thereon within six years. The plaintiff, in January, 1876, brought an action upon this. note. The defendant made no answer, and after the time for answering expired obtained an order of arrest upon an affidavit charging fraud in the month of August, 1868, by means of which the business dealing commenced between the parties.

I think this remedy does not exist in this case. The action is upon the note. No fraud is claimed as to that. An arrest is not authorized for a fraud, whereby a prior and different obligation was incurred to pay the same money. (Mallory v. Leach, 23 How., 507; Merchants' Bank v. Dwight, 13 id., 366; Alliance Ins. Co. v. Cleveland, 14 id., 408.) The statute of limitations furnishes another and a complete defense to this order. The fraud, if any, was perpetrated over six years before this action was commenced. The note itself would be barred, but for the payment upon it; payment upon the note does not revive and keep alive a fraud. (Oothout v. Thompson, 20 Johns., 277.)

The order should be reversed and the order of arrest vacated, with costs of the motion at Special Term and upon appeal, besides disbursements, to be deducted from the plaintiff’s claim.

Pbatt and DyKMAN, JJ., concurred.

Order reversed, with costs and disbursements.