
    MOERS a. MARTENS.
    
      Supreme Court, First District; General Term,
    May, 1859.
    Motion to vacate Order or Arrest.—Appeal.
    Appeals from orders denying motions to vacate orders of arrest after the party is out on bail, are not to be encouraged.
    In case of such an appeal, the order should he affirmed, unless the appellant can affirmatively show that facts necessary to sustain the order were not established.
    Of the rule, that the acts and declarations of one of several conspirators are admissible in evidence against the others.
    Appeal from an order denying a motion to vacate an order of arrest.
    The necessary facts appear in the opinion.
   By the Court.—Davies, J.

In this case an order of arrest was granted by one of the justices of this court, by which all of the defendants have been arrested. On a motion, on their behalf, to discharge the order of arrest, the same was denied. This motion was founded solely on the affidavits on the part of the plaintiff, without any denial or counter-affidavits on the part of the defendants, or either of them. From this order the defendant Martens alone has appealed.

We do not think appeals from orders of this character are to be encouraged. The order of arrest is a provisional remedy, not affecting the merits of the case; and when the party is on bail, he cannot be seriously prejudiced by its remaining in force until the final termination of the action.

The attention of the court has already twice been called to these facts, once on granting the order, and the second time, on the motion to vacate it. Two adjudications have therefore already been had, that a prima facie case has been made out for the arrest of all the defendants, and the facts found by the court below necessary to sustain their adjudications are, on appeal, to be deemed as established, unless the contrary can be clearly pointed out.

We are not prepared to say that the learned justice who heard the motion and granted the order, has found facts not warranted by the evidence before him.

It is charged in the affidavits, and not denied, that a conspiracy to cheat and defraud the plaintiff was formed by all the defendants; that each did certain acts as part of the general scheme, having that object in view; and the acts and declaration of each defendant in thus aiding and carrying out this general scheme are particularly detailed. The actual conspiracy being charged and not denied, is to be assumed to be established. Each of the defendants is deemed in law a party to all acts done by any of the other parties in furtherance of the common design. (3 Greenl. Ev., § 93.)

And the acts and declarations of the other conspirators are admitted as evidence against each, upon the principle, that by the act of conspiring together they have jointly assumed to themselves as a body the attribute of individuality, so far as regards the prosecution of the common design ; thus rendering whatever is done or said by any one, in furtherance of that design, a part of the res gestos, and therefore the act of all. It is the same principle of identity with each other that governs in regard to the acts and admissions of agents when offered in evidence against their principals, and of partners against the partnership. (3 Greenl. Ev., § 94.)

In the affidavits before us it is alleged, and not denied, that Martens, at the time he agreed to discount and pay cash for the note of Morro & Nehmeyer, for the tobacco to be sold to them by plaintiff, and on the faith of which the plaintiff let them have the tobacco, “ well knew that said firm of Morro & Nehmeyer was insolvent, and that judgment had been obtained against them, and that said firm had no credit whateverand that at the time said firm of Morro & Nehmeyer was indebted to Martens, he was intimately acquainted with the business and transactions of said firm, and then claimed to own all the property then in the apparent possession of said firm, and that he made the representation stated, with the design to cheat and defraud the plaintiff, and with the design to get said tobacco into the possession and under the control of Morro & Nehmeyer, that he might' by means thereof succeed in realizing the amount due to him from the said firm.

With these statements uncontradicted before the justice at special term, we are not surprised that he refused to vacate the order of arrest. We think such refusal to be correct, and the order appealed from is affirmed with costs.

Roosevelt, P. J. and Clebke, J., concurred.  