Dent v. Watkins

An order of arrest was granted in above action on the 3d day of May, 1875, against defendant for fraudulently obtaining money from the plaintiff, and defendant was held to bail. He was arrested by the sheriff on the tenth day of June, instant, and gave the usual undertaking, to which plaintiff’s attorney duly excepted. Defendant then served notice of justification of sureties, and they were examined as to their sufficiency on the twenty-second instant. Since that time a motion has been pending tó set the sureties aside as insufficient, the parties appearing daily in court for the purposes of the motion. Yesterday an order to show cause was granted^ by judge Speir why the order of arrest should not be vacated by reason of the failure to comply with rule six, requiring the indorsement of the rule upon the order of arrest. In the argument of the motion it appeared that the rule was indorsed upon the original order delivered to the sheriff, but not upon *276the copy served upon defendant. Attorney for the plaintiff insisted that the rule had been complied with, and that being simply directory to the sheriff, did not go to the merits of the arrest, even if it had been omitted from the original. The court thought otherwise, and vacated the order of. arrest, holding that the rule should be indorsed upon the copy order as well as original. TSTo other point came up for argument on the motion.