The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-19

Superior Court-speciai Term.
SOLDIERS PENSIONS ARREST OF EDWARD BlssSLs
AND NOTION TO DISCHARGE ORDER or AkRFs
DENIED.
Nov l7.-7urexee Bradyogainst Edward Bi''sh
Motion 70 discharge arrest.
HOFFMAN, Jan order OF arres. was granted on
the 9th Of October 1854, recting tina, il appeared
by affidavit that sufficient cause Of action exssec,
AID that the Was Of those mentioned in the
l79th section Of the Code. The defendan. was or
deed TO be held to bail in 5000. The ana iavit wss
made BY one Charles jackson, stating tha. he had
been 9 SOLDIER IN the Mexican war mac received .
wound, and became entitled TO q person; that the
defendant had advertised be On agent. or attor
Dey, to collect pensons, and that at the dsfendaA1s
solicitation, = (JscAson) had employed him 10 pre-
was to receive 800; that defendant forwarded sucn
psf ers to Waahin gfOD. That on the Sd OF June
1854, defendant, by false representations Of the
difficulties in getting the pc nson, and the doubtful
ness of the plaintiffs claim, 0btaSned from him Q
paper which was resd to him by defendant, and
purpor ed to be m assignment Of all arrears Of pen
sion TO defendant, for which the sum Of 500 was
paid. That on the same day, and within Al hour a.
ter such interview, Vsuburgh Livingston, pension
agent Of the United States, paid 70 one Simeon
Ward, who purpcrtsd TO he the attorney Of plaintiff,
the sum Of 1863 70, the OF pension due the
plaintiff That the plaintiff never authorized Ward
TO receive su,h pension, bu, II he hkd any
letter Of attorney, the signature must have
been obtained by fraud, and by BAssll's
reading to him diiiertD; paper. Il Is then stated,
that previous to tie Transaction with defendant On
the Sd Of June, the latter mad obtained positive In
formation that the pension md hen allowed tina.
Bissen c0nspiTed with Ward 70 cheat him, and that
defendant, through Ward, received the $3.50 IS,
uno converted the same 10 his own rais att
dsvit was sworn 10 the Attn OF October, and Toe
der OF arrest YVES dated the 9Th. Toe ccmpia o.
wac sv0rn 10 on tire 29,h OF september. Alioougn
il appears from the SaeT's certificate thatthe
dam ,.lut.r nj he Ia Hr
he order Of arrest aud affidavit, yet II is ADMITTED
that such service bai been made on the 29ta OF SEQ
ten bsr. The arrest @as made on the 7In Of OcEO-
Der. 1t is now adMitcd that the sum mons and cOm-
plsint we've before The Judge when he granted tue
GIoer OF arrest. l. Is oja ;ed, that on the affidavit
it does IT appear bat ~ plaintiff has any cause II
SctcI ard that the fast Of the complain. being be
the Judge cannot make difference. II sstated
in the complaint thai jackson, the psnsioner, had
sssie ned all his interest HIM, the plaintiff and
the complaint demands Judgment for ire Gum q
1868 %, and interest but on the affidavit tas: DOES
Lot appear. The lSlst section prov dcs that tie
rest may be ordered the cases in which il 10 Of all
allowed upon the sfidavit Of the plaintiff or Of any
OF er person, showing sufi lent cause VI actloG
exist 1t Is reasonable 80 conssrue this meaning
cause Of acti n to exist In the plaintiff. By sec
toD 1888, the order may be made to Occooa oany toe
summons, or at any time forwards, before judg>
nent go thst the arrest you'd be voii If made
without service Ct q Summons al the time, unless
the suit had been commenced by service ysvi0ualy
By section 1874, the sffieavit and order Of arrest
fhall be delivered to tie thsri, who shal deliver
copy to the defendant II the deiendans mad not
been served with the com ,laiut, he would have
been arrested upon aft iavis which did not show
any title to bin in The plaintiff. But the con-
plant was served este 29sh OF September Prev.
GUS, ard Is nov shown to nave bean before the
Judge, although not ,cfsIred to in the order, ss
ore ground Of its being granted. A sworn COM
plaLt is equivalent TO affidavit. liz q late Case,
where the affidavit ~as In one point defective, but
the defect was supplied by the compl sint, grant
I'd the order reciriDg thar it appeared by affidavit
AID the complaint duly sworn TO, That cause OF
action existed, &c. sm Of opinion that where the
,un and complaint has bsen served, aud ia isid
before the Judge, upoa an application for an arrest
npor affidavit the p'antf s entitled 70 refer TO
it, In order TO sustain he order where the sf1dav,.
itself js defective. In other Words bob documents
although bnt one Of them is mentioned. Upon tbe
merits, II tits difficulty IL obvstei, should retain
the der Of arrest. In the rss place, the affidavit
u Simeon Ward, produced By the defendant, states
Islly to him, but in fact for Manuel dc puga, q
power Of attorney and SAFE and assignment Of all
arrears Of pension due on sny pension ,ertid,ste
that might have been ssoed TO jackson. Unoer tbs
states he ecsiv.d from Livingston or we 30 o.
june, 1854 1853 49, az arrears q pension ol Jack.
sons pension sert fc,t- 20 tie Alb o. Marce,
ls54. And yet IL pears that on the 80 Of June
1854. be swpe tia. be tad ~ iotsisst
D the mupey 10 os receives, .i ser ~
any pledge, sa!e, assignment, or lsausfsr,
that nc DID boz know or o.li==s saa. he
fre bad Dftu 30 dslsO-e1 or - coy DsfsOJS
~ atev-r. Agsis, b. n 8 lie - iafJ,Ge, -od ba
ev.- that the sur hns4 sale and sssjg VI sne
sad JstbsODe pefs syye,rag-s ge q ma, by sa,d
4, e, cant IN account eI sa,j Manuel DE- pa.a. -
4 - sDys that Jsek.,n iiefed 70 SCI, BID claim
i. eco. 10 be paid rs d. Pngs through d.'aneao;
~ - ag.rt, aId for money pal. sua setaie.s
r.ud BIZ fbe,ie's bda . IS SCENT, in or 1ui g
(Ja tsoL's) bu II ess; ard said Jackson cid Eben
aid ihe;e fel ard assign Ia part 10 De Pug,
SIS opga Ionir ally toward ell s1ch are AIS OF per
sioI ard the pr )position by the defendant rs
such agent agi eed ~. ar q cont act between tie
usii.@s tltn and t. ere agreed. IL Is ,emsrkabls
thai Bssell W. ere explicitly denies having read
Sc NE paper 10 jackson, in bis office, az. getting
him 70 sign it, purpcr,iog 10 transfer his pension
claim; is there sny explicit OF intsljgibla denial
Of his having then Stone info nation TIA. the pen
sior bad been allowed. think there Is enough in
q case tn sustsi1 the 6rfest The frame OF the
mp'aDt, and If tie order il employment Of the
dsf.n dant as sgsD. to collect the pension, and
frs aad acts by him, through
Which the peDssoper was induced to transfer IL 20
him for small amount, and hence tbst the origi
nsl Of c'O. Is uusf cted by any such trans-
fer and the defet DAFT must be sdju6 ged 10 pay the
amt mt. II the CONT lsihs had stated the employ
meIt and reception Of the money merely, and The
answer had set an asst oment or transfer NO
reply would have beer allawed to stale fs u to set
IL aside. see objection {, making allie cations to
* ct effect In tie complaint, and they viii not
change the real Lature of tee action as oLe upon
contrsct Tits view answers the objection that the
claim is not sssgoable ard s,so the otior 70 amer,
the complaint. BJh m AtioDa are denied @isb fiv;
Ill 80 To- all.