
    NEW YORK COMMON PLEAS.
    Charles Johnson and James Lownsberry agt. William Florence, Jr.
    Where a, defendant is amsted for fraudulent representations in contracting the debt upon which the action is brought in the N. Y. district court, on being brought before the justice upon the warrant, he may read counter affidavits to those of the plaintiff, and move thereon to discharge ihe arrest. But this must be done before issue joined.
    
    
      New York Common Pleas, General Term, December, 1866.
    
      Before Daly, Brady and Cardozo, Justices.
    
    This was an action commenced in a district court by the granting of a warrant for the defendant’s arrest, upon the ground of fraud in contracting a bill of $233.75, for the use of certain coaches, horses and a wagon, hired by the defendant from plaintiff’s stable. The defendant on being brought before the justice, proposed to read certain affidavits explaining the representations made, and showing them to be true. The- justice refused to allow the defendant to read such affidavits, on the ground that he had no power to hear them, and rendered judgment on proof of the plaintiff’s claim, for the amount claimed, from which judgment the defendant" appealed, upon the ground that the justice erred in refusing to receive such affidavits on behalf of the defendants.
    0. A. Hbnbiques, appellant’s attorney.
    
    David MoAdam, respondent’s attorney.
    
   By the court, Daly, F. J.

The defendant was arrested upon a warrant founded upon affidavits alleging that the defendant made certain representations which induced the plaintiffs to let him on hire, coaches, horses and a wagon, from time to time, until the defendant ran up a bill of $233.75, which representations are alleged to have been false, and to have been made with a fraudulent intent. When the defendant was brought before the justice he offered to read a number of affidavits to show that the representations made by him were strictly true, but the justice refused to hear them, upon the ground that he had no authority. The arrest in this case was made under subdivision 3, of section 16, of the act of 1857, in relation to district courts, for fraudulently contracting the debt for which the action was brought. The right to arrest in such a case does not arise from the nature of the action, for the defendant may be hable for the debt but not hable to arrest, which is a collateral remedy wholly independent of the cause of action. If hable to arrest, the defendant must give security for his appearance, or remain in custody until the action is tried, and if judgment is rendered against him, and if sufficient property cannot be found to satisfy the execution, the defendant is committed to jail until he pays the judgment, or is discharged according to law. The warrant issues upon the affidavit of the plaintiff and of another person, proving to the satisfaction of the justice the facts upon which the apphcation is founded, and if the affidavits are defective, if sufficient does not appear upon-the face of them to authorize the issuing of a warrant, the-defendant upon being brought before the justice, and before pleading, may move to set the proceedings aside as irregular. (Dewey agt. Greene, 4 Denio, 94; Miller agt. Brinckerhoff, Id. 118.) If the affidavits are sufficient upon then face, then the defendant may move upon affidavits for the discharge of the warrant, for the ex parte affidavits are not conclusive as to the right to wrest .(Shannon agt. Comstock, 21 Wend. 458), and if the justice upon hearing the affidavits, is satisfied that no ground existed for the arrest, he should dismiss the proceeding and discharge the defendant. (Bennett agt. Ingersoll, 24 Wend. 113; Malone agt. Clark, 2 Hill, 658.) In some cases the objection has been raised by a plea in abatement (Swartwout agt. Ruddes, 5 Hill, 118), but the more appropriate mode of testing the right to arrest by warrant, is by a motion to dismiss it, founded upon proof of the same nature as that upon which it is obtained; the proceeding being analogous in this respect to that which prevails under the Code (Corwin agt. Freeland, 2 Seld. 565), and the motion should be made before, plea—for if the defendant joins issue upon the merits without raising the objection, he waives it, and admits that he was properly brought into court upon the warrant. (Andrews agt. Sharp, 1 E. D. Smith, 615; Malone agt. Clark; 2 Hill, 657.) The act of 1857 does not point out what course a defendant is to pursue who has been wrongfully arrested by a warrant, but this was also the ease in the part of the non-imprisonment act relating to justices’, courts, which authorized the arrest of non-residents, and the issuing of attachments, where the latter had assigned or secreted, or was an out to remove his property from the county with intent to defraud, under which act the cases above cited were decided. The affidavits which the defendant offered to read, contradicted the allegation in the affidavit of the plaintiff, that the representations made by the defendant were false and fraudulent, and the justice would not hear them; and the defendant was thereby deprived of his right to move for his discharge from the arrest.

The judgment should be reversed.

Beady, J., concurred.

Cabdozo, J. I take no part in the decision of this appeal.”

Judgment reversed.  