The New York herald., 1879-03-18
THE FREEMAN CASE.

DECISION By THE SUPREME COURT, GENERAL
TERM, REFUSING TO vAcATE THE ORDER OF
ARREST.
Frederick A. Freeman. who is stili confined in
Ludlow Street Jail in default Of $500 900 bail in the
suit brought against him by Henry is pierson. the
facts of which have been fully published. has o
promise OF remaining there for indefinite timo to
come. The Supreme Court General Term. yester-
day rendered it's decision in the appeal taken from
the order of Judge Donohue refusing to vacate the
order Of arrest. Tho Court refused to set aside
Judge Donohue's order. Judge. Daniels writes the
opinion of the Court. which is concurred in by
Judges Brady and Potter. The following is the
opinion IN FULL
OPINION OF JUDGE DANIELS.
The motion was simply to discharge the order Of
arrest, and for nothing besides that Consequently
tho point whether the bail required is than the
facts would justify is not in the presented for
decision. The objections which have been taken in
support of the appeal relate wholly to the suihcency
OF the order and the ahidavits on which 1t was
founded BY the order the cause OF the arrest il
stated to be that the defendants fraudulently
spired to cheat and defraud the Guardian Mutual
Life Insurance Company its policy holders and cred
itors This formed defective compliance with rule
49, by which brief statement Of the grounds
which the order made was to be contained III it,
To render complete it should have been added that
the conspiracy had been carried into effect. to the
injury OF the company. But as all that section 561.
Of the Code required to be shown by this order
tho imperfecton of it because Of the omission. It
not for that reason urisdictonl in its nature,
authority provided by sections 722 and 72A of the
present Code, and as no injury can have been
stoned to the defendant by the granting Of it, leave
to supply should be given, the objection takan
on account OF 1t should be disregarded.
MOST IMPORTANT POINT
The most important point in the case. and the one
to which the attention OF the Court was more par
ticulary directed, Is the su1ciency OF the ahdavts
upon which the order itself was made. As to them
buoh he aryaisc
based only upon information. and for that
reason constitutes no proper foundation for the
to be Misrepresentation of its nature; for. far
the moving defendant has been implicated tho facts
a. the q Ds oa the .f aSs nas
was preceded by the assertion that the person
making it had been engaged in an examination
that ' was ' not foiloSod % by " any % disclosure @
that the facts were averred upon what had
Of ofe that was further added that hs
had been for long time In tho employment OF the
plaintiff and then the statepent was made in terms
indicating 1t to have been the intention or the person
deposing to make positive allegation OF facts setting
forth the circumstance forming the grounds OF the
what his employ and examination had alone led
to the discovery Of But that s not the form which
was given to tho affidavit.
ontained on tho other hand. direct gtstement
Of facts showing that tine defend4nts had uhlawfuly
conspired for their own benefit for the purchase st
rntc above rsr. OF large amount Of deprecated
stock In another company; that they had made the
purchase and misappropriated the funds OF the
Guardian Life Insurance Company TO tho pay
ment Of the price. And ut that time il is
sverred that the defendant and at least of his
confederates, knew that the stock purchased
worth less than par As 10 others this allotment Of
knowledge is predicated upon information but not
to these two persons. And that circumstance
shows thata distinction intended in the state
ments of the afdavit distinguishing the facts set
forth in that from those to which that quail
fcation not affixed. The afndsvit showed loss
to the company by means of these transactions
ceeding the amount mentioned in the order Of
rest and as they were such as must have been within
the knowledge of tho defendant his omission to
deny them very materially advances the probability
that they have been truly stated in tho afslavits
which the order made. ThA order appears to
have been warranted by the facts. and the order de-
nyina the motion to vacato it should be affirmed