Falconer v. Elias , 3 Sandf. 731 ( 1851 )

Oakley, Ch. J.

The defendants were arrested, and held to bail in an action instituted by the plaintiff, charging them with obtaining goods under fraudulent representations. They now move to be discharged from the order of arrest. The motion is made upon an affidavit of the defendants, denying all the allegations of fraud set up in the complaint and in the affidavits, on which the order of arrest was granted.

The main question raised upon the argument, and which is the important question in the case, is this, whether where the fraud depend on specific facts, which are denied in the affidavits on which the motion to discharge is made, the court have the power to look into the affidavits, and determine the probability or improbability of the alleged fraud, or whether, like the case of an injunction, a denial of the allegations upon which it is obtained, is fatal to the arrest. I am of opinion that the court has the power of looking into the affidavits, and deciding on their probable truth, and in this opinion, my brethren all concur. There is no other way of accounting for that provision of the code, which allows the plaintiff in a case of this kind to introduce affidavits in opposition to the application to make the order of arrest. This section can have no meaning or object, unless it permits the court to weigh the affidavits, and decide upon the truth of the facts. (The chief justice then examined the affidavits, and decided that the arrest should be retained, with a mitigation of the amount of bail.)