Acalus L. Palmer, Respondent, v. Erwin A. Hussey, Appellant

Acalus L. Palmer, Respondent, v. Erwin A. Hussey, Appellant. (Argued December 8, 1874; decided December 15, 1874.) A sworn complaint may be regarded as an affidavit when presented with other affidavits for the purpose of procuring an order of arrest. This was an appeal from a General Term order, affirming an order of Special Term, denying a motion to vacate an order of arrest. The papers showed that the plaintiff, transferred to the defendant certain United States bonds under an agreement by which, after specifically describing the bond shy numbers, it was stated that they were to be held subject to plaintiff’s order at ten days’ notice, defendant to collect the coupons free of charge and to allow two per cent per annum interest on the par value of the bonds. Defendant refused to deliver them on demand, made pursuant to the agreement. Held, that, although by the agreement it appeared that some use might be made by defendant of the bonds, yet the agreement clearly implied that no use was authorized inconsistent with defendant’s duty to return the specific securities, and defendant was bound to so keep them under his control that he could, within the time limited, return them ; that defendant was, therefore, liable to an action for conversion, and the order of arrest was properly granted. The order of arrest was granted upon affidavits, and upon the complaint, which was verified, and was presented with the affidavits. Held, that the complaint might be regarded as an affidavit for this motion. Erwin A. Hussey, appellant, in person. Samuel Hand for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance of order. All concur. Order affirmed.