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TITLE VII.

Of the provisional remedies in civil actions.

CHAPTER I, Arrest and bail.

II. Claim and delivery of personal property.
III. Injunction.
IV. Attachment.
V. Provisional remedies.

CHAPTER I.

Arrest and bail.

SECTION 178. No person to be arrested in a civil action, except as pre

scribed. 179. Arrest in civil actions, in what cases. 180. Order for arrest, by whom to be made. 181. Affidavit to obtain order for arrest. To what actions this

chapter applies. 182. Security by plaintiff before obtaining order for arrest. 183. Order for arrest, when it may be made, and its form ; time

to answer after or to move to vacate. 184. Original affidavit and order to be delivered to sheriff and

copy to be delivered to defendant. 185. Arrest, how made. 186. Defendant to be discharged on giving bail or making a de

posit. 187, Bail, how given. 188. Surrender of defendant, 189. The like. 190. Bail, how proceeded against. 191. Bail, how exonerated. 192. Delivery of undertaking of bail to plaintiff, and its accept

ance or rejection by him. 193. Notice of justification. New bail. 194. Qualification of bail. 195. Justification of bail. 196. Allowance of bail. 197. Deposit in lieu of bail. 198. Payment of deposit into court. 199. Substituting bail for deposit. 200. Deposit, how disposed of after judgment in the action. 201. Sheriff, when liable as bail. 202. Proceedings on judgment against sheriff. 203. Bail liable to sheriff. 204. Vacating order of arrest or reducing bail. 205. Affidavits on motion to vacate order of arrest or reduce

bail.

$ 178. No person to be arrested, except as prescribed.

No person shall be arrested in a civil action, exce it as prescribed by this act; but this provision shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, n r shall it apply to proceedings for contempts.

a. Persons privileged from arrest.—The following pro" ribed persons are exempt from arrest on civil process: Persons holding o'fices under the Metropolitan Police act, whilst actually on duty (Laws 1860, p. 446, § 34); a Metropolitan police officer is not protected from arrest when not actually on duty by a rule of the police commissioners that he shall be deemed to be always actually on duty (Hart v. Kennedy, 15 Abb. 290 ; 14 Abb. 432 ; 23 How. 417 24 How. 425; Squires’ Case, 12 Abb. 38); senators and representatives in Congress, at certain times (Const. U. S. art. 1, $ 6; 2 Johns. Cas. 222); and also members of the State Legislature (1 R. S. 154, 98 6, 7, 8, 9); and all officers of either house whilst in actual attendance upon the house (id. 10); electors, on day of an election (1 R. S. 126, § 4 ; Laws 1842, ch. 130, $ 2); domestic servants of a public minister (1 Opin. Atty.-Gen'], 26); militia-men on parade days, from the rising to the setting of the sun (1 R. 8. 303. $ 27); noncommissioned officers, seamen, and mariners enlisted in the service of the U. S. during their term of office, for any debt or contract (Laws U. S. vol. 3, p. 97; The People v. Campbell

, 40 N. Y. 133); parties to a suit, their attorneys and witnesses, in coming to, attending upon, and returning from court (2 Rol. Abr. 272; 1 Mod. R. 66; Barnes, 27, 378; Peake Ev. 193; 1 Camp. 229; 11 East, 439; 2 W. Blac. R. 1113;4 Dallas, 387, 329 ; 6 Taunt. 358; 3 Eng. Law and Eq. R. 435 ; 29 id. 331 ; 1 H. Bl. 636; 3 B. & Ald. 252 ; 2 Marsh, 57; 8 Bing. 166 ; Newton v. Constable, 1 Gale&D. 408; 9 Dowl. 933); or any lawful tribunal, as an arbitration (Spence v. Stuart, 3 East, 89 ; Sanford v. Chase, 3 Cowen, 381); or commissioners of bankruptcy, or to give deposition before a magistrate, under an order of the court (Arding v. Flower, 8 T. R. 534; Walters v. Rees, 4 J. B. Moore, 34); and the Revised Statutes (2 R. S. 402, S$ 51, 52, 53, 54, 55), “every person i good faith, subpænaed as a witness to attend any court, officer, comissiont. or referee, or summoned to attend any judge, officer or commissioer, in any case where the attendance of such witness may be enforced by att: chment or commitment, shall be exonerated from arrest in any civil suit, w. ile going to the place where he shall be required by such subpæna to attend while remaining at such place, and while returning therefrom;" and provision is made for the discharge of persons arrested while so privileged, and declaring their arrest absolutely void, and for the means of exonerating the officer for not making the arrest, by an affidavit of the witness. The privilege extends to a nonresident (Merrill v. George, 23 How. 331; and see Seaver v. Robinson, 3 Duer, 622); does not extend to an arrest by bail, semble (Ex parte Lyne, 3 Stark. 470). It is a personal privilege, and may be waived by the witness by willingly submitting himself to the custody of the officer (Brown v. Getehell, 11 Mass. 11, 14; Geyer v. Irvin, 4 Dall. 107); or by putting in bail, or by a general appearance (Steward v. Howard, 15 Barb. 26; Petrie v. Fitzgerall, 1 Daly, 401). The privilege does not extend to a witness who attends vuluntarily, without a subpæna (Hardenbrook's case, 8 Abb. 416 ; Re McNeil, 6 Mass 264), except the witness be from a foreign state or country (Norris v. Beac? 2 Johns. 294 ; Sanford v. Chase, 3 Cow. 381 ; Hopkins v. Coburn, 1 Wend. 29 Where a witness attended on a subpæna before a referee, and was examiz.

his examination closed, and the hearing adjourned ; on the adjournment day, the witness attended without any subpæna, but at the request of one of the counsel in the action, to be further examined,-held, a voluntary attendance, and that he was not privileged (Hardenbrook's case, 8 Abb. 416); where a defei dant, in an action pending, went to the court-house, and on ascertaining that nothing

y and in

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 verson brought into this State as a fugitive from justice is able 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 cyuld 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 rrested in a civil action (Lucas v. Albee, 1 Den. 666 ; Gilpin v. Cohen, 4 L * Re, . 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).

6. Non-imprisonment act. The provisions of the non-imprisonment act are still in force (The People v. O'Brien, 6 Abb. N. 8. 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 8. 210; Corwin v. Freeland, 6 N. Y. 560); Lotham v. Westervelt, 26 Barb. 256 ; Krauth v. Vial, 10 Abb. 139). An assigt of a judgment, in an action founded on fraud and misrepresentation, ay 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. Vhite, 5 Duer, 256).

c. Arrest. --After a defendant has bee 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 John80n, 7 Rob.: 269).

f. Discharge.-Where a defendant is arrested under this act, on a charge audulent purchase of goods on credit, and the charge is substantiate 1, an ? 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).

9. 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).

8. Action commencod.-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. 8. 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. 612). 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: Glonton v. Clover, 10 Abb. 422; Norille v. Noville, 32 How. 500; Brock 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 (8melbury v. Mark, 6 Johns. Ch. 138); nor where the amount in question is less than $100 (Palmor 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 (Brovon 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 å foreign administrator or executor for an account (McNamara v. Dryer, 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 (Dixon v. Ely, 4 Edw. Ch. 557; Merrill v. George, 23 How. 331); nor on a demand against a vendor for specific performance (Corodin 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 posilively 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 y. 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 excat in suits and proceedings in the supreme court, accord. ing 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. Dryer, 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 ereat, see laws 1845, p. 251 ; and 1 Barb. Ch. Pr. 647.

6. It is of course to discharge a ne exeat on defendant's giving security (McNamara v. Dryer, 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 (Corodin 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

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