Steinhardt v. Beir 28 Jones and Spencer's Super. Ct. Rep. 489

EMANUEL STEINHARDT, et al., Appellants v. MAX BEIR, Respondent.

Order of arrest—Intent to defraud must be stated in moving papers.

The plaintiffs obtained an order of arrest alleging in the affidavit in support of the order that defendant made certain promises to plaintiffs thereby inducing them to sell and deliver to him certain goods, and defendant wholly failed and neglected to keep said promises. There was no allegation that defendant made such promises with intent to deceive. The defendant moved upon the papers on which the order of arrest was granted to vacate the same, which motion was granted. Held no error ; that no facts are set forth showing the defendant guilty of fraud ; that because defendant failed to perform his agreement does not raise a presumption that he intended non-performance at the time he made the agreement ; retroactive presumptions are not applicable to cases of this character.

Before Sedgwick, Ch. J., and Dugro, J.

Decided November 10, 1891.

Appeal from an order vacating an order of arrest, upon motion made upon the papers supporting the order of arrest.

Edward Jacobs, for appellants.

David M. Neuberger, for respondent.