Howell v. Kingsbury

fty ike Court, Dixon, 0. J. The order is appealable. The [275] writ of attachment is clearly a provisional remedy. An order refusing to set it aside, “ continues” it, within the ing of the first clause of the third subdivision of section 10, chap. 264, Laws of 1860. Otherwise this word would be without effect as to all provisional remedies save an injunction, and then only in the instance of an order which by its terms expires on a given day. The legislature evidently did not intend thus to limit its application. They use it with reference to every provisional remedy, and their intention cannot be effectuated but by supposing that they considered a refusal to vacate as equivalent to a continuance of the order, in those cases where an opportunity to appeal from the original order is not given. The subsequent express provision for orders setting aside or dismissing writs of attachment for irregularity, cannot be regarded as a restriction of the previous general words. It was inserted to extend the right of appeal to a class of cases not before provided for. Such orders not being included by the previous words, no appeal could have been taken from them but for this provision. The motion was properly denied. The affidavit is not hearsay. The information and belief of the affiant as to the indebtedness of the defendants, as appears from the affidavit, were founded upon facts and circumstances which would have been adducible in proof against the defendants in a court of justice. 18 Wend., 611; 7 Barb., 656. They are founded upon the defendants’ written admissions, in the possession of the affiant; and though the admissions are not recited, yet they are stated with sufficient certainty and positiveness to authorize the issuing of the writ — more especially since no preliminary order of the court or judge is required for that purpose. Order affirmed.