The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-02-15
Superior COurt-Spcclal Term.
IMPORTANT AS TO ARRESTS.
H,sore Uon ludce e,osson

Before Hon. Judge Siosson.
FEB. 14-Daria O'yeM and Others, agt F,edsri-t r.
Dnle -rbis motion 10 vacate order Of arres.
der Sec 2o4 Of Code.
Tie defendant arrested the 2lst II December
1855. the 22d December gave BAIL with the usual
Qualification tho undertaking. On the 29th Of Desem
ber the pAinti excepted to suiciency OF the bail
On he 9th of January, the defendsn. gave notice of
justification for the 18th OF that mouth. On the 18th
January defendant gave notice of the motion v.cate
the Of arrest the 18th of that On the
in pursuance Of the notice Of Justification and motion
ct tho Defendants attorney, the justification I'D
j.urned by order Of the Court TO the next day.
On the following day oth the attorneys for each party
attended at cham oers ard the Defendants bail
ahmed In the matter of the justification. The ezanina
ton of Of the bail signed and to By
him. but the other BAIL being examined found 70
be clearly insufficient his deposition not to-
and the q bal ass further Adjourned by or
What done that day does appear, but there
is pretence that other bail has yet been ubmed
the .sth Of January the motion to vacate tie order
said and preliminary objection Is made that the de-
fen1Ant has precuded himself from the motion By the
steps he has taken to justify his bail.
SlcssoS Justico-By section 2o3 Of the Code motion
TO vacae the order Of arrest must be made, II at a bs
fore the justification of bail" The defendant is tine
he makes his motion before the bail is actually Per-
fected The bail became perfect not excepted to by
by the plaintiff within ten days afsr receiving from the
Sheriff copy OF the undertaking. and if that period ex
vacate the order OF arrest, he is Then too late II the
plsintfH gives notice of exception the ball. they be-
cone perfect BY actual Justification and the motion TO
vacate the arrest Is In time at period before such jus
i6caicn. The OF the rule is that the defendant
by permitting the bail 10 become perfect in the case
and by actually periecting them in the other without in
either taking the necessary steps to the order Of
arrest TO Re vacated before the bail became perfect al
Inits that the arrest regular and su ficient
grounds. (Lewis Tiuesde, Sendf., FOG; Wilmer
ding Moon, Duer Gi5 In the pre.ent instance the
the defendant gave notice Of Justification within the time
allowed by Las. see 1 Code and before the expiration
Of the time embraced in the last notice. gave the
Of tic present motion 10 the order of arrest.
On the day prescribed the notice for justification
both parties appeared and Of the bail established his
suffciency by affidavit but toe other found clearly
insufficient, and the further justification adjourned
by the court. The bail therefore dd not justify the
18th. Both must justify, and It Is clear but that
the omission OF to justify Is fatal TO both Further
time being given by the court would probably prevent
the proof Of their suency merely which constitutes
the justification of bail. Such jusiihcaon IL
pete il the Judge has endorsed his allowance the
undertaking, ard caused the same 70 be fled with the
Cerk-unl that Is done, the bail Is not PERFECTED and
the Sheriff Is liable. (ec. 196 Code Arch Pr 8o) Had
the bail been actually perfected the ed fJanuary
10 which day the court adjourned the Justification
question might arise whether this motion made the
2h Of January would not be toe late though noicet
that day early the IT, OF that month but 1t is
necessary TO consider that question, do not under
fact ever yet taken place. There nothing therefore,
preclude the defendant from making his motion aui tn
preliminary obec Jon must be oyerrued and the motion
10 proceed, Costs to abide The event OF the notion