
    BARKER a. WHEELER.
    
      Supreme Court, Fifth District; General Term,
    
    
      April, 1862.
    Vacating Order of Arrest after Judgment.
    The provision of section 204 of the Code is obligatory, not permissive, so that a motion to vacate an order of arrest cannot be made after the entry of judgment in the action.
    
    Appeal from an order vacating an order of arrest.
    This was an action brought by John W. Barker and another, against William W. Wheeler, upon two acceptances made by him. The action was commenced on the third day of September, 1861, by the service of a summons and complaint, the latter containing no allegations of fraud. The plaintiffs procured an order of arrest against the defendant upon affidavits imputing fraud in contracting the debt. The defendant was taken upon the order at Trenton, Oneida county, on the 25th day of September, 1861, at about 11 A. m. On the afternoon of the same day plaintiffs entered judgment for want of ah answer in the Onondaga county clerk’s office. The defendant moved upon affidavits to set aside the order of arrest. The plaintiffs resisted the motion upon new affidavits. The court vacated the order, and the plaintiffs took the present appeal.
    
      Andrew H. Green, for the appellants.
    
      Montgomery M. Throop, for the respondent.
    
      
       Compare, however, section 183, as amended in 1862, which provides that “the defendant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action, and to move to vacate the order of arrest, or to 1 educe the amount of bail.”
    
   By the Court.—Mullin, P. J.

I am of the opinion that on the facts presented by the papers on this appeal, the learned justice was right in granting the motion to set aside the order of arrest. The defendant’s affidavits fully meet and rebut the allegations on which the order was granted.

The plaintiffs’ counsel insists, however, that the defendant could not move, after judgment was entered, to vacate said order.

The Code (§ 204) provides “ that a defendant arrested may at any time before judgment apply on motion to vacate the order of arrest, or reduce the amount of bail.” If there was no statutory provision or rule of practice in the way, there could be no doubt of the power of the court to relieve a defendant improperly arrested at any time.

It only remains to inquire whether the provision of the Code above cited takes away from the court the power to grant relief, or whether there is some rule of practice which has that effect.

Hie language of section 204 is, that a defendant arrested, may, at any time before judgment, apply on motion to vacate the order, &e. Judgment was in fact entered before the motion was made; and hence, if the provision is obligatory and not permissive, the motion was too late and the order must be reversed.

Although the language of the section is permissive, still that is by no means decisive; for in the construction of statutes may” not unfrequently has the force of the imperative “ must” or “ shall,” and the latter words have no greater force than may.” In order to ascertain somewhat more clearly than is disclosed by the words of the statute what the intention of the Legislature was in enacting the section cited, let us ascertain what the practice was in regard to motions to vacate arrests before the enactment of the Code. At common law, in those cases in which the defendant might be arrested and was obliged to give special bail, he was entitled after .arrest to an order from the judge at chambers, requiring the plaintiff to show cause of action at a time and place to be specified in the order. (Graham's Pr., 159.)

The plaintiff, at the time and place designated, produced the affidavit on which the defendant was held to bail,—or one prepared for the occasion,—and thereupon the judge either permitted the defendant to introduce counter-affidavits, vacated the order to show cause, or discharged on common bail, or on indorsing an appearance on the writ, or he mitigated the bail. (Ib., 162.)

If the defendant was a privileged person, or for any other reason was not subject to arrest, the judge discharged him on filing common bail.

If he was arrested without an affidavit to hold to bail, or without a judge’s order of arrest, or if the affidavit to hold to bail was defective, the judge discharged the defendant on filing common bail or indorsing his appearance. (Ib., 163.)

When the defendant had voluntarily given bail without being arrested, it was held that he had thereby waived objection to the affidavit to hold to bail. (Ib.)

Ror could the affidavit be objected to after bail had been perfected or even put in, or after judgment by default and notice of executing a writ of inquiry. (Ib., 164.)

It will be perceived, that if the common-law practice was in force, the motion to set aside the order of arrest could not be made after judgment.

The Code swept away the old practice and substituted its own provisions in the place, and in many instances adopted the rules of the old practice into the new. Section 179 of the Code of 1848 provided that a defendant arrested might, at any time “ before the justification of bail,” apply on motion to vacate the order of arrest, &c. By section 167 of the Code of 1848 and the subsequent sections, it was the duty of the sheriff to deliver to the plaintiff’s attorney the undertaking of bail, and the attorney had ten days within which to except to the bail, and if he did not except, he was deemed to have accepted it. If the bail was excepted to, it was made the duty of the sheriff or the defendant to justify the bail, or to put in new bail on notice to the plaintiff. If the bail was allowed, the sheriff was discharged. If not allowed, new bail must have been put in. Bail became perfected at the end of ten days from the delivery of the undertaking by the sheriff to the plaintiff’s attorney, and, also on allowance after exception, and notice of justification. This uncertainty, as to when the motion to set aside the order of arrest under the provisions of the Code above cited could be made, led to the amendment of the section prescribing the time within which the motion must be made, by striking out the words the justification of bail,” and inserting in lieu thereof the word “judgment,” so as to make the section (204) read as copied above.

Before the amendment, section 179 was treated by the courts as mandatory. (Barber a. Hubbard, 3 Code R., 156, 169; Lewis a. Truesdell, 1 Ib., N. S., 106; Baker a. Dillon, Ib., 206.)

If such was the correct interpretation of the provision before the amendment, it is none the less so now. We have then, 1st, The well-settled practice of the courts before the adoption of the Code, which would not permit a defendant to move to set aside his arrest after j udgment; 2d. The Code, as first adopted, prescribed a time within which the motion might be made, and the courts held it to be mandatory; and 3d, An amendment of the same provision without altering in any sense the meaning of the section.

It seemed to me that we must hold, in view of the authorities, that the motion cannot be made after judgment.

If we should disregard the statute altogether, and fall back on the practice as it was before the Code, the same result must follow.

• The defendant’s counsel insists that the construction above" suggested ought not to be given to the section of the Code under consideration, because, by the alteration in the practice brought about by the Code, the right which the former practice secured to the defendant, to be relieved from arrest, is, under the construction wé give to section 204, taken away; or it may he defeated by the plaintiffs’ serving the order so near the time of recovering judgment, as to altogether prevent the defendant from making his motion “ before judgment.”

It is true that if we are right in our construction the plaintiff may, in all cases, defeat a motion to set aside the order of arrest. But the remedy is not with the court. A case has occurred which the codifiers did not anticipate, and which requires legislative interference. That it was the intention of the authors of the Code to designate a time before which the motion must be made I entertain no doubt, and it is for them to furnish a remedy against the abuse to which the section under consideration gives rise.

I am of the opinion the order appealed from should he reversed. Ordered accordingly. 
      
       Present, Mullin, P. J., Morgan and Bacon, JJ.
     