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Entered according to act of Congress, in the year eighteen hundred and sixty-seven.
BY WILLIAM GOULD & SON,
In the Clerk's Office of the District Court of the Northern District of New York.
Rec. May 26.1866
THE FLOUR CITY NATIONAL BANK OF ROCHESTER, appellant, agt. PHILANDER E. HALL, impleaded, &c., respondent.
Under subdivision 5, of section 179 of the Code, a party may be arrested, "when he has removed or disposed of his property, or is about to do so, with intent to defraud his creditors."
A defendant has a lawful right to change his residence from the state of New York to any other state; and where he makes no secret of his intention to do so; and it does not appear that he owes any debt but the one due to the plaintiff; nor that he is not abundantly able to pay that; the fact that he had been disposing of his property in view of such removal, does not tend to establish an intention to defraud his creditors.
Where acts or statements of a party are susceptible of two interpretations, one indicating a fraudulent, and the other an honest and lawful purpose, the latter is to be adopted.
An affidavit corroborative of the principal affidavit to found an arrest, adds no additional strength to the principal affidavit, where all its statements are upon information and belief, and is no evidence except so far as facts are stated as the grounds of belief.
Submitted Monroe General Term, December, 1862.
Before WELLES, E. DARWIN SMITH and JOHNSON, Justices. APPEAL from order of special term setting aside order of arrest.
T. C. MONTGOMERY, for appellant.
E. HICKS, for respondent.
By the court, WELLES, J. The order for the arrest of Hall was granted under subdivision 5, of section 179 of the Code, which provides that the defendant may be arrested "when he has removed or disposed of his property, or is about to do so, with intent to defraud his creditors;" and was founded upon two affidavits-one made by F. Gorton, and the other by H.D. Mallory—both of which were sworn to on the 28th day of May, 1866.