would be done in his case that day, on his return home stopped at his attorney's office to announce that fact,-held he was privileged (Salhanger v. Adler, 2 Rob. 704). A person brought into this State as a fugitive from justice is liable to arrest (Williams v. Bacon, 10 Wend. 536). A person under arrest on a justice's warrant is privileged (Love v. Humphreys, 9 Wend. 204); where a defendant was arrested on a pretended criminal charge, in order to detain him until he could be arrested in a civil action, on his being so arrested the court set aside the order of arrest (Benninghoff v. Oswell, 37 How. 235). A person acquitted of a criminal charge has a reasonable time to reach home before he can be arrested in a civil action (Lucas v. Albee, 1 Den. 666; Gilpin v. Cohen, 4 Law Rep. 131, Ex.) As to the privileges of attorneys and counsel, while attending court, see 4 Wend. 204; 1 id. 32; 5 id. 90; 4 Hill, 59; 18 Johns. 52). An attorney not the attorney in the cause is not privileged from arrest while attending with his client, who is about to become bail (Jones v. Marshall, 40 Eng. Law and Eq. R. 421). A plaintiff attending before an arbitrator is privileged from arrest (Re McIntosh, 92 Eng. Com. Law Rep. 1094). As to privilege from arrest after discharge from criminal process, see Montague v. Harrison, 36 Law Jour. C. P. 24.

a. The arrest on an order of arrest of a person while temporarily exempt from arrest is not a ground for vacating the order of arrest, but only for discharging the defendant out of custody (Hart v. Kennedy, 15 Abb. 290; 14 Abb. 432; 23 How. 417). Therefore it is not a ground for setting aside an order of arrest that the party had been previously arrested in the same suit, and on the same process, on a day of general election. The exemption expires with the day of election, and the parties afterward stand toward each other as if no previous arrest had been made (Petrie v. Fitzgerald, 1 Daly, 401). As to the privilege of an insane person, see post, in note to section 179. A sheriff is not privileged from arrest (Hill v. Lott, 10 How. 46).

b. Non-imprisonment act.-The provisions of the non-imprisonment act are still in force (The People v. O'Brien, 6 Abb. N. S. 63; The People v. Goodwin, 50 Barb. 562), and a warrant may issue in all cases prescribed by the act (Gregory v. Weiner, 1 Code Rep. N S. 210; Corwin v. Freeland, 6 N. Y. 560; Latham v. Westervelt, 26 Barb. 256; Krauth v. Vial, 10 Abb. 139). An assignee of a judgment, in an action founded on fraud and misrepresentation, may avail himself of the act (King v. Kirby, 28 Barb. 49). The indebtedness does not change its character by being assigned (id.; see French v. White, 5 Duer, 256).

c. Arrest. After a defendant has been arrested under the code he cannot be arrested for the same cause under the non-imprisonment act (Re Johnson, 7 Rob. 269.)

d. Attachment.-To justify the issuing of an attachment under section thirty-three of the act, an affidavit must be presented to the officer issuing such attachment, showing a demand arising upon contract and the amount of such demand, that no warrant can issue, and that defendant resides out of the county (Morgan v. House, 36 How 326). A bond by the plaintiff with one surety is sufficient on issuing an attachment under this act (Williams v. Barnaman, 19 Abb. 69; see ante, p. 45 e.)

e. Warrant.-The remedy given by this act was in lieu of a remedy taken away, and it must appear, before a warrant is granted under this act, that the defendant is not and cannot be arrested in the action on mesne process (Re Johnson, 7 Rob. 269).

f. Discharge.-Where a defendant is arrested under this act, on a charge of fraudulent purchase of goods on credit, and the charge is substantiated, and he committed to jail, he cannot be discharged under 2 R. S. 25 (The People v. O'Brien, 5 Abb. N. S. 224; 54 Barb. 38). To entitle him to a discharge, he must make an assignment for the benefit of the prosecuting creditor (Spear v. Wardell, 1 N. Y. 114).

g. Commitment.-A commitment under this act need not specify what property, money and rights of action the debtor is adjudged to have fraudulently concealed or refused to apply to the payment of the judgment, or to

have assigned with intent to defraud his creditors (The People v. Kelly, 7 Rob. 592).

a. City Judge.-Semble, the City Judge of New York has not jurisdiction of proceedings under this act (The People v. Goodwin, 50 Barb. 562; contra, The People v. Kelly, 7 Rob. 592).

6. Action commenced.-For the purpose of issuing a warrant 'under this act, the action is sufficiently commenced by lodging the summons with the sheriff, with the intent that it should be served (Gregory v. Weiner, 1 Code Rep. N. S. 210).

c. Ne exeat.-The superior court of the city of New York hold that this writ is abolished by the code (Johnson v. Johnson, 16 Abb. 43; 25 How. 181; 1 Rob. 642). The supreme court hold that it is not abolished (Forrest v. Forrest, 5 How. 125; 10 Barb. 48; Bushnell v. Bushnell, 7 How. 393; 15 Barb. 399; Rogers v. Michigan, &c. R. R. Co. 28 Barb. 539; Glenton v. Clover, 10 Abb. 422; Neville v. Neville, 22 How. 500; Breck v. Smith, 54 Barb. 212). It is as much a writ of right as any other process (Gibert v. Colt, Hopk. 496; Mitchell v. Bunch, 2 Paige, 606). It may be applied for at any stage of the action, e. g., pending an appeal (Dunham v. Jackson, 1 Paige, 629); before decree (Denton v. Denton, 1 Johns. Ch. 441); before service of the summons (Bushnell v. Bushnell, 15 Barb. 399; 7 How. 389). Formerly it issued only to enforce equitable demands in the nature of debts actually due (Forrest v. Forrest, supra); and would not be granted where the demand was purely legal, nor where the defendant was an executor or administrator not shown to have assets in his hands (Smedbury v. Mark, 6 Johns. Ch. 138); nor where the amount in question is less than $100 (Palmer v. Doran, 2 Edw. Ch. 425); nor after the defendant has obtained a discharge from imprisonment (Ashworth v. Wrigley, 1 Paige, 301); nor where the defendant could be or had been held to bail at law (Pratt v. Wells, 1 Barb. 425); or was held to bail for the same cause in another court (Mitchell v. Bunch, 2 Paige, 606); nor where the defendant could not be arrested under the act for imprisonment for debt (Gleason v. Bisby, Clarke, 551), unless it was a cause of equitable cognizance (Brown v. Haff, 5 Paige, 235), or unless it was to prevent a failure of justice (Porter v. Spencer, 2 Johns. Ch. 169). It may issue on a creditor's bill to reach equitable assets (Ellingwood v. Stevenson, 4 Sandf. Ch. 366), or against a citizen of another State or country, on demands arising abroad (Woodward v. Schatzell, 3 Johns. Ch. 412; Gibert v. Colt, Hopk. 496; Mitchell v. Bunch, 2 Paige, 606); or against a foreign administrator or executor for an account (McNamara v. Dwyer, 7 Paige, 239); against a married woman (Neville v. Neville, 22 How. 500); but not against a nonresident coming into the State as a witness (Dizon v. Ely, 4 Edw. Ch. 557; Merrill v. George, 23 How. 331); nor on a demand against a vendor for specific performance (Cowdin v. Cram, 3 Edw. Ch. 231), nor on a demand not judicially ascertained on a penal bond by a surety against his principal (Gibbs v. Mennard, 6 Paige, 258; 2 Edw. Ch. 482).

d. To entitle a party to this writ, his demand must be satisfactorily ascertained, must be positively sworn to, except the amount, which may be on belief. It must be positively sworn that the defendant threatens or purposes to leave the State, and that the demand will thereby be lost or its recovery endangered. A statement of the fears of the applicant is not sufficient. Facts must be stated to enable the court to judge if the case be one in which it is proper to issue the writ (Forrest v. Forrest, 5 How. 125; 10 Barb. 48; Bushnell v. Bushnell, 7 How. 389; 15 Barb. 399; Thorne v. Halsey, 7 Johns. Ch. 189; and see Ordronaux v. Helie, 2 Ch. Sentinel, 69; Denton v. Denton, 1 Johns. Ch. 441; Mattocks v. Tremain, 3 Johns. Ch. 75; Woodward v. Schatzell, id. 412).

e. Any justice of the supreme court, or any county judge, may out of court allow writs of ne exeat in suits and proceedings in the supreme court, according to the course and practice of such court in such cases, and under such regulations as shall be provided by law, or by the rules and regulations of such court not inconsistent with law (Laws 1847, ch. 470, § 13). It is not necessary, although it is usual, that a ne exeat should be by writ; it may be by or

der enforced by attachment for contempt. The granting of this writ is entirely in the discretion of the court, and is granted with much caution (Pratt v. Wells, 1 Barb. 425).

a. The court determines the amount of bail, and the sheriff must take a bond for that sum without any addition (Gibert v. Colt, Hopk. 496; and see McNamara v. Dwyer, 7 Paige, 239). If the sheriff refuses bail, the court will take security and exonerate the sheriff. Time may be given the sheriff to produce the defendant, or to collect on the bail bond from the sureties (Brayton v. Smith, 6 Paige, 489). Sureties may, by statute, surrender their principal (Re Wolf, 3 N. Y. Legal Obs. 383); and may arrest him wherever they can (id.) Semble, leave should be obtained to put the bond in suit, but the objection that no leave to sue was obtained may be waived (Harris v. Hardy, 3 Hill, 393). As to bail on ne exeat, see laws 1845, p. 251; and 1 Barb. Ch. Pr. 647.

b. It is of course to discharge a ne exeat on defendant's giving security (McNamara v. Dwyer, 7 Paige, 239; Mitchell v. Bunch, 2 id. 606).

c. The defendant may move to discharge the writ without security at any time before giving security, and he may, by leave of the court, give security without prejudice to his right so to move (Jesup v. Hill, 7 Paige, 95). But he cannot move while he is in contempt for disobeying an injunction (Evans v. Van Hall, Clarke, 22). On motion to discharge, defendant may deny or explain the affidavits on which the writ issued (Cowdin v. Cram, 3 Edw. Ch. 231), and may read his answer in the action (Gibert v. Colt, Hopk. 496; Thorne v. Halsey, 7 Johns. Ch. 189).

§ 179. (Am'd 1849, 1851, 1863.) Arrest, in what cases.

The defendant may be arrested, as hereinafter prescribed, in the following cases:

1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the State, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring or for wrongfully taking, detaining, or converting property.

2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied, by a public officer or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office or in a professional employment.

3. In an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found, or taken, or with the intent to deprive the plaintiff of the benefit thereof.

4. When the defendant has been guilty of a fraud, in contracting the debt or incurring the obligation for which the action is

brought, or in concealing or disposing of the property for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

But no female shall be arrested in any action, except for a willful injury to person, character, or property.

General note.

a. The causes of arrest enumerated in subdivisions 1, 2, and 4, must, of necessity, exist at the time of the commencement of the action. Those in subdivision 5 may exist at the commencement of the suit; but if they occur after the action is commenced, the plaintiff has ample remedy under the law of 1831 to abolish imprisonment for debt (Corwin v. Freeland, 6 How. 241).

b. In cases arising under the 4th and 5th subdivisions, if the plaintiff wish to obtain the benefit of the execution against the person provided for in section 288, he must set up the fraud at the commencement of the suit, or, at least, before judgment, and cause the defendant to be arrested (Lee v. Elias, 1 Code Rep N. S. 117, and see § 288).

c. Waiver.-A plaintiff who has resorted to a provisional remedy-arrest-waives it by uniting in his complaint causes of action to some of which the provisional remedy does not extend. Thus, where at the commencement of the action the defendant was arrested on an affidavit charging the receipt of moneys in a fiduciary capacity, the complaint, subsequently served, united with a cause of action for moneys received in a fiduciary capacity, a cause of action on contract for which the defendant was not liable to arrest,-held that the defendant was entitled to discharge from the arrest, even after bail given (Lambert v. Snow, 9 Abb. 92; 17 How. 517). If in such a case a plaintiff would resort to the provisional remedy, he must bring separate actions (id.; and see McGovern v. Payn, 32 Barb. 83).

d. Election of remedy.—The plaintiff has his election to proceed (§ 206) to recover possession of property, or to recover damages for the taking or detention; and having made his election, he must abide by it. He cannot have the defendant arrested and have a delivery of the property too, pending the litigation (Chappell v. Skinner, 6 How. 338). The plaintiff may pursue the proceedings pointed out in chapter 2, title 7; and if the property cannot be found, and the case is within this subdivision, have the defendant arrested; but in that case he cannot afterwards obtain the possession of the property pending the action (id.) But where plaintiff institutes a proceeding for claim and delivery of property, and obtains a portion of the property, he does not waive his right to an order of arrest for the residue (Tracy v. Veeder, 35 How. 210; and 50 Barb. 70). The creditor may affirm a contract as to part, and sue for fraud as to the residue (Zinn v. Ritterman, 2 Abb. N. S. 261).

e. Although a debt was fraudulently contracted, or an obligation fraudulently incurred, by a defendant, yet, if subsequently thereto the plaintiff, with full knowledge of the fraud, settles the original debt or obligation, and enters into a new contract with the defendant, upon different terms and upon additional consideration,-in an action upon the new contract, the defendant cannot be held to bail merely because the original debt or obligation was fraudulently contracted or incurred. In such a case, if the debt, for the recovery of which the action is brought, was not fraudulently contracted, the defendant cannot be held to bail (Merchants' B'k of New Haven v. Dwight, 13 How. 366; Alliance Ins. Co. v. Cleaveland, 14 id. 408).

f. Recovery of judgment in another State for goods sold is no bar to an

action for deceit in procuring the credit given on such sale, or for fraudulent representations made to induce the vendor to sell the goods. The defendant may be held to bail in such a case. In an action upon such a judgment an order of arrest may be made, on the ground that the defendant was guilty of fraud in contracting the debt or incurring the obligation for which the action is brought (Wanzer v. De Baum, 1 E. D. Smith, 261; and see Arthurton v. Dalley, 20 How. 311; see contra, Goodrich v. Dunbar, 17 Barb. 644; Mallory v. Leach, 23 How. 507). The issuing of an extent does not change the character of the debt (Peel v. Elliott, 16 How. 485; 7 Abb. 433; 28 Barb. 200). Recovery of a judgment, in a court of this State, merges the original causes of action (McButt v. Hirsch, 4 Abb. 441). The acceptance of the debtors' draft, which is dishonored, does not prevent the creditor proceeding on the original transaction, and obtaining an order of arrest (Harding v. Shannon, 20 How. 25; see Murphy v. Fernandez, 10 Bosw. 665; Hancock v. Palmer, 17 Abb. 335; Nelson v. Blanchfield, 54 Barb. 630; Shipman v. Shafer, 14 Abb. 449; Pettengill v. Mather, 12 Abb. 436; Alliance Ins. Co. v. Cleaveland, 14 How. 408).

a. Partners.-One partner cannot arrest his copartner for receiving and converting more than his share of partnership funds (Smith v. Small, 54 Barb. 223; Cary v. Williams, 1 Duer, 667).

b. In an action against partners to recover a debt of the copartnership, in contracting which some of the partners were guilty of a fraud, only the partners guilty of the fraud, or who knowingly ratify it, are liable to arrest (Claflin v. Frank, 8 Abb. 412; Hanover Co. v. Sheldon, 9 Abb. 240; Wetmore v. Earle, id. 58, note; contra, see Townsend v. Bogart, 11 Abb. 355; Coman v. Allen, 21 How. 114; Sharp v. Mayor of N. Y. 40 Barb. 247; Re Lawrence, 23 Law Jour. N. S. Ch. 79; Bull v. Melliss, 9 Abb. 58).

C. Joint debtors.-A deceit practiced by one of several joint debtors in inducing the creditor to accept his check, post-dated, and indorsed by the others, is not a ground for authorizing his arrest in an action on the check against both (Woodruff v. Valentine, 19 Abb. 93).

d. Contract.-No order of arrest should be granted in an action on contract where the material allegations in the complaint are inconsistent with those in the affidavits on which the order is sought to be obtained (Wickes v. Harmon, 12 Abb. 476; 21 How. 462). Circumstances which will mitigate the damages in the action for breach of promise of marriage, may lessen the amount of bail required, but not necessarily prevent an order of arrest (Kahn v. Freytag, 2 Rob. 678).

e. Tort. Before the code, to hold a defendant to bail, where an order was necessary, something more had to be stated than a cause of action (Brooks v. McLellan, 1 Barb. 627); and now in the superior court and common pleas, New York, an order of arrest is not granted, unless the defendant is a nonresident, or transient person, or there is danger that he will abscond, nor unless in extreme or exceptional cases (Davis v. Scott, 15 Abb. 127; Butts v. Burnett, 6 Abb. N. S. 302). The granting or refusing the order is in the sound discretion of the judge (Knickerbocker Ins. Co. v. Ecclesine, 6 Abb. N. S. 9). In the supreme court, ordinarily, an order of arrest issues of course on the applicant showing a case within the terms of the code.

f. Two arrests.-A defendant should not be twice arrested for the same cause of action, although the form of the action may be changed (Wright v. Ritterman, 4 Rob. 704). But where the defendant had been arrested in a United States court, and was afterwards arrested by order in a court of this State, the court refused to set aside the order of arrest on that ground (Lorillard Ins. Co. v. Meshural, 7 Rob. 310; see Hernandez v. Carnobeli, 10 How. 433; 4 Duer, 642; and see Nonimprisonment act, ante, and Persons privileged from arrest, ante, and The People v. Kelly, 1 Abb. N. S. 432). Although a person cannot be arrested more than once by process out of different courts in the same State for the same cause, the rule does not apply where the first process is absolutely void (Schadle v. Chase, 16 How. 413).