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be arrested. 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.

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 wilful injury to person, character, or property.

The amendment is the insertion of the words in italic in subd. 3. Note to subd. 1.-An action for crim. con. with the plaintiff's wife is an "injury to the person" of the plaintiff, within this subdivision. Delamater v. Russell, 2 Code Rep., 147. 4 Pr. R., 234, and so is an action for seduction. Taylor v. North, 3 Code Rep., 9.

Note to subd. 2.-This subdivision is controlled by subdivision 5, and therefore, in an action by a male against a female for a breach of promise to marry, the defendant cannot be arrested. Siefke v. Tuppey, 3 Code Rep., 23.

Under this subdivision it was held that "all indebtedness not based on credit but

on confidence," came within this provision. (Dunaher v. Mayer, 1 Code Rep., 87.) This proposition does not, however, appear to have been generally concurred in, and it was afterwards held, that an agent employed to collect, and who does collect money, but refuses to pay it over, could not be arrested on the ground of having received the money in a fiduciary capacity, (Smith v. Edmonds, 1 Code Rep., 86. White v. McAllister, ib. 106,) and so where A. conveyed property to B. to enable B. to raise $2,500 on mortgage for A's use, and B. without A's knowledge raised $6,000 on the property, and appropriated it and refused to account, held, that he could not be arrested except on an affidavit of his being a non-resident, or about to quit the State. Smith v. Edmonds, 1 Code Rep., 86.

These decisions were all, however, under the code of 1848. In the code of 1849, subdivision 4 was added to this section, and would perhaps embrace cases similar to the above. As to who are public officers, see 1 R. S., 85.

Note to subd. 3.-(Amended.) The amendment is the part printed in italic. It is made evidently to prevent the recurrence of such a decision as that to which the supreme court felt bound, although most reluctantly, to arrive at in the case of Van Neste v. Conover, 5 Pr. R., 1848. In that case they held that in an action for the recovery of personal property, the defendant was liable to be arrested if the property had been removed, so that it could not be found by the sheriff, and that it was not necessary to justify such arrest, to show that such removal had been made with the intent that it should not be found or taken, or with the intent to deprive the plaintiff of the benefit thereof. The superior court, however, in Roberts v. Randall, 5 Pr. R., 327. 3 Code Rep., 190, did not concur with the opinion of the supreme court, and decided that the defendant could not be held to give the security for the payment of the judgment that might be recovered as required by the third subdivision of section 179 of the code, except in cases where he has removed, concealed or disposed of the property so that the sheriff cannot take it; that he could only be held, to give the bail provided in the other subdivisions of the same section. The court gave no opinion as to cases in which a defendant parts with the possession of the property in fraud of the suit for its recovery. See note to subdivision 5.

Note to subd. 4. See note to subd. 2.

Note to Subd. 5.—" In Starr v. Kent, 2 Code Rep., 3, it was held by a judge of the New-York common pleas, that a female might be arrested in an action to recover the possession of personal property, if the property was concealed, removed, or disposed of, so that it could not be found or taken by the sheriff. But in the subsequent case of Tracy v. Leland, 3 Code Rep., 47. 2 Sand. S. C. R., 729. 8 Leg. Obs. 234; the superior court refused to be bound by the case of Starr v. Kent, and held that the concealment, removal, and disposal of a piano by a female, does not subject her to be held to bail. That a female can be arrested only for wilfully, wantonly, or maliciously injuring property, but not for a detention or conversion of it. A female cannot be arrested in an action against her for a breach of promise to marry. Siefke v. Tuppey, 3 Code Rep., 23.

180. [155.] Order for arrest, by whom made.-An order for the arrest of the defendant, must be obtained from a judge of the court in which the action is brought, or from a county judge.

§ 181. [156.] Affidavit to obtain order.-The order may be made, where it shall appear to the judge by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179.

To what actions this chapter applicable. The provisions of this chapter shall apply to all actions included within the pro

visions of section 179, which shall have been commenced since the thirtieth day of June, 1848, and in which judgment shall not have been obtained.

The principles of the former practice as to affidavits to hold to bail showing cause of action, and counter affidavits remain as under the practice prior to the code.Martin v. Vanderlip, 1 Code Rep., 41. 3 Pr. R., 265. Adams v. Mills, ib. 219. The affidavit to authorize this order must be positive, and make out a prima facie case against the defendant (Ib.) It must show, Ist, that a sufficient cause of action exists. 2nd, that it is among those specified in the 179th section. It is not sufficient to state that" the case is one of those mentioned in section 179." It must appear from the facts stated that it is such a case. Pindar v. Black, 2 Code Rep., 53. 4 Pr. R., 95.

The affidavit need not state that "an action has been, or is about to be commenced." lb.

The "name" of the party to be arrested need not be stated. If unknown, he may be designated as "the real defendant" in the suit or proceeding, and whose name is not known, or by any name, as for instance, "The man in command of the Sloop Hornet." Ib.

The "entitling the affidavit in a suit " may now be disregarded. Ib.

An affidavit stating that a defendant is "going to California" is not sufficient. It must appear that the defendant is "going out of the State with an intent to take up his residence" at the place indicated. Brophy v. Rodgers, 7 Legal Obs., 152. The affidavit must show that the defendant has removed or disposed of his property, or is about to do so, secretly. Anon, 2 Code Rep., 51.

The order may be made before service of the summons and complaint. Dunaher v. Meyer, 1 Code Rep,, 87.

The affidavit may be on information and belief, but must in that case, set forth the source of such information, and a belief in its truth, and the facts and circumstances on which such deponent's belief is founded. And per Edmonds, J.,

"It would not do to lay it down as a general rule, that an order of arrest could never be granted on information and belief, or without a positive averment of facts by persons conversant of them. That would be to forbid an arrest in a large class of cases, where it would be manifestly proper, such, for instance, as those where a purchaser from the country makes representations in the city, the truth or falsity of which can be ascertained only in the country, in the vicinity of the purchaser's residence. Such a rule, in that case, especially, where this contract of sale is rescinded because of fraudulent representations, would require, for a provisional remedy, as much evidence as would be necessary for a final recovery.

But on the other hand, those considerations would not justify the ordering an arrest upon the general allegation contained in this case, that the plaintiff has been informed and believes that the representation was false. The nature and quality, and perhaps the sources of the information obtained, must be set forth, so that the court may be able to ascertain whether the party is right in entertaining the belief to which he deposes. By the code, the officer applied to for the order to arrest, must determine upon the propriety of granting it. There must be something for his mind to act upon. He must entertain a belief that the charge made is true. Such an affidavit as that used in this case would answer none of these requisites, but would substitute the belief of the party for that of the judge.

If, in this case, the plaintiff had stated that he had made inquiries in Michigan, and had there been informed by Churchill and others, who would be likely to know, that there was no such firm as Churchill & Co., or that defendant had never been a member of it; or if he had stated that he had ascertained, stating the source of his information, that Churchill had made oath in court there, that there was no such firm, there would have been something for the judge's mind to act upon, some means for that officer's determining whether the plaintiff was right in believing the representation false; there would have been some means afforded the defendant of testing the accuracy of the plaintiff's affidavit, some mode provided of insuring accuracy by the fear of a conviction for perjury. But upon this affidavit there is not only nothing for the judge's mind to act upon and ascertain whether the plaintiff's belief was well founded, but no means for the defendant's proving the incorrectness of the affidavit,

however false it might be, and no mode of punishing such falsehood. To allow such a practice would be, in fact, substituting the opinion of the party for that of the judge, and removing all control and supervision by the judges, which the law has provided over the power of arresting defendants. So far as the facts may be within the knowledge of the plaintiff, such as the existence of the debt and the manner in which it was contracted, they must be stated positively; but so far as they necessarily rest on information derived from others, they must be so stated, when the sources and nature of the information are particularly set out, and good reason is given, why a positive statement of them cannot be procured.

The original affidavit, therefore, on which the order of arrest was obtained in this case, was defective, and did not warrant the defendant's arrest. The other affidavits used on this motion do not supply the defect. The only material additional allegation contained in them is in reference to Churchill's affidavit in the courts of Michigan. That affidavit is not so verified that it can be referred to as such on this motion, and it is presented simply as a paper which the plaintiff is informed and believes is a copy of one filed in Michigan. There is no statement of the sources of that information, no means of the defendant's ascertaining whether such information had actually been received by the plaintiff, nor for the court's determining whether he was right in believing it. It is, in fact, liable to the same objection that exists against the original affidavit, and both are defective, inasmuch as they substitute the belief of the party for that of the judge. The order of the special term must be affirmed, with costs. Whitlock v. Roth, 5 Pr. R., 143.

§ 182. [157.] Security by plaintiff before order of arrest.— Before making the order the judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking, over all his debts and liabilities.

This undertaking must be filed with the clerk of the court, (sec. 423,) but no copy need be served on the defendant. Leopold v. Poppenheimer, 1 Code Rep., 39. And the omission to serve a copy of the order of arrest, at the time of the arrest, is an irregularity only, and does not entitle the defendant to his discharge. Keeler v. Belts, 3 Code Rep., 183. But the defendant may move for an order on the plaintiff to serve him with a copy of the order of arrest, and his motion will be granted, with costs. Ib. Probably, however, to entitle him to costs, it will be held that he should first demand a copy; and if it were refused him, then he would be entitled to have an order made, with costs.

§ 183. [158.] Order, when made, and its form.—The order may be made to accompany the summons, or at any time afterwards, before judgment. It shall require the sheriff of the county, where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the

plaintiff or attorney by whom it shall be subscribed or endorsed.

No copy of the undertaking need be delivered to the defendant. When the officer issues the order of arrest, he, in effect, decides on the sufficiency of the undertaking, and such decision is res adjudicata. The code deprives the defendant of any benefit of exception to the sureties in personam; the delivery therefore to him, of a copy of the undertaking, would be useless. Per Ulshoeffer, Judge. Leopold v. Poppenheimer. 1 Code Rep., 39.

In actions for penalties or forfeitures, given by statute, an endorsement is required on the order, referring in general terms to the statute upon which the action is brought. 2 R. S., 395, s. 7.

It is provided by statute, that process by which any action shall have been commenced, and on which any defendant shall have been arrested, shall not be amended in the return day thereof. 2 R. S., 3d ed., 519.

An order of arrest is not process, and not, it is believed, within this prohibition. Amount of bail.-Under the former practice the defendant's bail in actions for money demand, had to justify except in certain causes to double the amount of debt or damages endorsed on the writ. 1 Wend. 107, 2 Hill, 279, 1 Hall, 237; but in other actions, the amount was fixed by the judges, granting the order as is the practice now in all cases, and where the sum in which the defendant was held to bail was too large, application might be made, and still may be made, to mitigate it, Bunting v. Brown, 13 Johus. R., 425., section 204 of this code. Under the former practice the ordinary amount of bail was $500. Ballingall v. Burnie, 1 Hall, 237, and where since the code went into effect, in an action for libel, it appeared that the libel was not of an aggravated character, and that one defendant was a permanent resident of the county, and a freeholder and householder therein, and that the other defendant was a permanent resident of the said county, and a householder, the court on motion to reduce the amount of bail fixed the same at $500. Baker v. Swackhamer, 3 Code Rep., 248, and where the defendant is a permanent resident, a less amount of security for his appearance is required than where the defendants are transient persons. Ib.

§ 184. [159.] Affidavit and order to be delivered to sheriff, and copy to defendant.-The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof.

See note to section 182.

$ 185. [160.] Arrest, how made.-The sheriff shall execute the order, by arresting the defendant and keeping him in custody, until discharged by law; and may call the power of the county to his aid, in the execution of the arrest, as in case of process.

The defendant is entitled to the liberties of the jail on giving a proper bond. 2 R. S. 352, 353. § 43 to 47.

If the defendant escape voluntarily, the sheriff may retake him at any time before the return day named in the order, but not after. 4 M. S. 397, but if the escape be negligent, then the sheriff may retake the defendant at any time, even on a Sunday. 1 Arch. Pr., 85. 1 Saund., 35. 6 Mod., 95. If the sheriff do not retake the defendant, he is liable to an action at the suit of the plaintiff for damages, 5 Johns. R. 182.

§ 186. [161.] Defendant to be discharged on bail or deposit. -The defendant at any time before execution, shall be dis

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