The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-04-20
The Union Bank Case.
SUPREME COURT.

Before Hoo. Judge Davies.
Arm l9--Jacob H. Aot u.s. The Unios Bork This was
application to discharge Mr. Mo from reduce
the bail $4,000 The Judge gave the following de-
oision, denying the notion
The new ns,tor presented this motion Is found on
the Ats OF the defendant the examination before the
Recorder and the rebuting adavis the part OF the
plaintiff and the change which has taken place tho form
of the summons since the original order The
examination Of Arthur, who made the afidavts upou
which the defendant originally arrested, shows
ta,ny that the matters stated in that affidavit though
affirmed TO posiavcly, derived from others. ns
cesssry 10 state the OF Information when matters
stated TO be information and the original affidavit
and ire before the Recorder taken togesher
with neihns else 10 explain justify them would sub
jet co the us criticism OF Mr. Justice Mitchell In
s,oore VS.. Calvert, How, Ala. And il the
stood before alone that affidavit and exsm-
nation, should feel IL my duty W discharge the de-
fendant Bu. as understood the subsequent sidavit Of
Mr. Arthur he swesrs positively ana OF MA Own know
ledge 10 the by him oI One OF his assistants 70
the defendant OF the moneys drawn from the plaintiffs
1868 snd 10 amount OF Indebtedness Of defendant
the plaintiff stated in his original affidavit Bat the
Inc defendant should be held to bail In otner words,
should order Of arrest now be granted upon the facts
presenter This point Is we'll aud cleary stated
BY harris Justice, In Chaplin against Seely Is How, Ago.
Al page 493 he saysAs understand the provisions OF
the O4h 2o6h sections Of tho CODE the question upon
every motion like this Is whether upon the whole case
as made by the adavis both sides the Court called
upon to act upon the application roua would grant
the order of arrest II il would, then the motion 70
cate should be denied. But II, amer hearing both
parties upon the question: 1t should appear that oise
for arrest had not been made OUT the order should be
vacated" lie cites Hernandez against Carbouoli, 10
How, 448 the Republic Of Mexico against Arransus II
How, and then cited Cady President, &C. against
EdmoDds IL How is, What are The facts as now pro
account the Union Bank from jan 1870, to Feb.
1858, the OF Gxrret Mott, his biother and that
the moneys during thai time drawn out by the de
O checks
Mott That for the period aforesaid there was drawn Out
than entered In the deposit book by the receiving
teller who received the deposits snd who testified that all
tie deposiia received were entered On examining the
e5fer containing the accounts OF the defendant with ae
bsbk kept by Brohsrson appears that in the ledger
the deposits defendant increased by false
tries TO the amount thus overtrawn by the defendant.
these facts leads to the inevitable couoiu
sion Of the completely of the ndalt with Bctherson in
reference to these entries ane his knowledge thai the
deposi's made by him had been fradueusy increased
On the 4th OF October 1866 the defendant opened
account in his own name in the bank, and from that
time 70 March 10, 1858, he drew out OF tho bank
and there was paid to him on his own checks the
Of so 1891 SO than be deposited The deposits
then increased 10 this sum by false and fraudulent en-
tries made the ledger by Broherson and Is impo6-
sbe doubt that the defendant had knowledge Of such
fraudulent II any doubt could exist az TO such
knowledge the acts Of tho defendant and which
clearly established dispeled by the aadavit OF Mrs.
BroheMon. She shews In contradiction Of the statement
made by the defendant that he and Brodefson we're on
terms OF considerable intimacy and had business coonec
toes Incompatible with the acquaintance which the de
feneant says no had with him. arrive at these coucu
sons irrespective OF the declaration OF Broheso e5
fed to by his wife, II objected 10 on the argument
that should exclude the decsr alton from consideration.
But tho rule is we'll settled that when the found alton ia
laid by proof sufficient pra facie 10 establish the fact OF
q conspiracy TO do unlawful act between parties, the
acts and Araons OF each OF the parties 10 reference
plan, axe in concn pla,on OF law, tho acts and decls
retiops OF them all, and arc therefore original evi
Ssn q 1s sss fS
enter into common purpose design, in in law party
to every ~, which bad before been doae by the Others
and party 10 every act which may afterwards be done
by any of the others in fUrtnerance OF such purpose or
design Apply these principles TO this case u spps
reut that deicndaat is party TO the ass Of Brother
&C., and that his acts and declarations may be used
against the defendants Mrs Bro.herson says that Bro
thereon FREQUENTLY told her tina, he was welt acquainted
with the defendant Mott. and had had business -ansac
ons with him regard TO Motifs busiEess with tae Union
Bank that BohersoD told her that no had got into avery
serious difficulty at the Union Bank owing TO said Mott,
ard thai Mott had promised TO exicas him when his
mother should die and be should come into property by
s' means Ina, ne also 0a mn ina a MOI. IA. he vea
merely tool IN hotts hands and thai Mott alone would
help hin out Of the difficulty With these facts before
me, cannot doubt the application had been matc for
order Of Court would be my duty TO grant 1t; and
ouch being the state OF the case, equally my duty
yscaie the order already granted. Bu, Il is contend
cd that the form OF the summons having been changed
the order OF Court fails no order can 90 granted "a .ao
whether not the defendant liable 70 arrest depend at
all the form Of the acton upon tho fso appearing
1 )
facts TO authorize the should not appear the
cord In Cheny Vs. sacke How ACT, referring 70 the
substitutes and Of 179 Of The code, the Court
saJs"There Is no provision requiring the complaint 70
contain ale which authorize the DEFENDANTS arrest
or imprisonment By sec. 1sS The order for the arrest
may be MADE at any tine before Judgments" :.
The learned Judge In that considered that the Legs
aiure did not contemplate any different form OF The
plant between bacle and baiable actions and that
IN cases where the defendant may be arrested
Ger Is9, the ground OF arrest Is something wholly
aside from and nderendent OF tho form OF actlo, la
HAL ard ; lu1CIu
thai all, Cations ana statements In The complaint tending 70
them, shov that TIE deb, ffad4aenuy contracted
and constituted part OF the oause OF action, aud
should be stricken out irrelevant and redun
dart He adds ths, "the doctrine CT the case Of
Cteuy Ienoath g How. 1T. X. 467) Bu oeea since
The decision Of thai distinctly recosnis .ad ap-
proved by the Court OF Appeals The case referred 10 Is
doubtless that Of Corwn feeland, sold $50 There
the Court Appesf say that examination OF the dne
sections OF the code will satisfy any that the lie
gisature intended 10 oogc the party alleging tho
baud 70 embrace In his complaints. In the first place
the order " arrest DO procured upon the plead.
ngs, matter bow broadly the fraud may be alleged In
thtm but must be afdaviis showing that cause Of
action exs ami that the one OF those mentioned
In section 17e The order 70 arrest may be made any
time after the summons before Judgment These provi
sions show clearly thai the order 70 hold 10 bail vAs 10
tended 10 he independent Of the plsangs and although
such orders may In some nsances be founded on the
same fActa which constitute the cause OF action IN other.
action and In All the fact, must appear by adavts
before any order OF arrest can be made" BY sub Of
section lie OF the code In soton when appears A.
must by afdavh and Independent entirely d every
thing IN the summons OF complaint that the defend
M has been s1 fssos b n sas s s' aeo
he nay be arrested and held IN bail In Gendine
Clark, IL Besl GA This Court held that under sub Of
this section tho defendant may be arrested for the fraud
contracting the debt mourning the obligation for
which the action n brought And in Wangen agt De
Bonn d Smith Rop 2ei, the summons for relief,
the action being commenced on Judgment recovered In
another state. The question was whistler the defendant
could be held W bail on adsyv sbo wing fraud in con
tracing the original debt for which the judgme of had
been obtained. woodruff, Justice, In delivering the
opinion Of the Court saysThe statute has abroSaied
the right hold 70 bail certain but no, when the
debt frsudulepty contracted. results, think,
that whom debt s ffaudulently contracted, he rghs
hold 10 bail remains 10 the plaintiff whatever may
the form OF hs action, and through whatever change his
security mar pass until bis debt satisfied or dls
charged" II beng apparent 70 my mind from the facts
before me- that the defendant has been guilty Of fraud
In contracting the debt mourning the obligation for
which this action IL brought, follows thai II n O
proper 10 hold him 10 ball. whatever may be the form
Of the summons the allegations OF the complaint
The only question remaining be contdered that Of the
reduction Of the amount Of bail Az that has bseu passed