Kinney v. Green

By the Court,

The plea interposed before the justice was a good defence to the action, and the matter set up by the plaintiff, viz. that he has proved to the satisfaction of the justice, before the issuing of the warrant, that the defendant was about to abscond, constituted no answer to it. The pendency of a suit commenced by summons having been pleaded, the plaintiff to sustain his action, was bound to prove on the trial that the defendant was about to abscond from the county when the warrant issued. 2 R. S. 234, § 49. This fact should have been replied, instead of the matter alleged by the plain*525tiff by way of replication. The justice erred in deciding the replication to be sufficient, and the common pleas were right in reversing the judgment. The provision in the revised statutes above referred to, is unlike the seventh section of the act of 1824, page 282, and was intended to reach an abuse under that act, by requiring proof on~ the trial, as of any other fact that the defendant was about to abscond when the warrant issued,

Under the act of 1824, the issuing of the. warrant was conclusive, and the fact whether the defendant was about to abscond, was not inquirable into on the trial.

Judgment affirmed.