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 (Corvin 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).

a. Where a party has been once held to bail and discharged for insufficiency in the affidavits, he should not be again arrested in the same action (Enoch v. Ernst, 21 How. 96).

b. Insanity.—At common law a defendant cannot be discharged from arrest in a civil suit on the ground that he was insane at the time of his arrest, or became so shortly afterward (North v. Verney, 4 D. & E. 121; Kernott v. Norman, 2 ib. 391; Steel v. Allen, 2 ib. 362). But, by statute, if a person, imprisoned on civil process, become insane, "the judge may discharge him from imprisonment, and order him into safe custody, and to be sent to the asylum." He may be arrested again when of sound mind. The judge has no power to discharge the insane prisoner, except for the purpose of sending him to the asylum (Bush v. Pettibone, 5 Barb. 273).

c. Stay of proceedings.—An order staying the plaintiff's proceedings has reference to the ordinary proceedings, but does not prohibit him from obtaining an order of arrest (Lapeous v. Hart, 9 How. 541).

d. Resident.-In Burrell's Law Dictionary, Resident is defined: "One who has a seat or settlement in a place; one who dwells, abides or lies in a place. An inhabitant (20 Johns. 208; 8 Wend. 134, 140); one who resides or dwells in a place for some time (Webster)." In Roosevelt v. Kellogg (20 Johns. 210), Woodworth, J., says: A person resident is defined to be "one dwelling or having his abode in any place," an inhabitant, "one that resides in a place." In the matter of Fitzgerald (2 Caines, 317), it was decided that a person that came into this State on a commercial adventure, without any intent of settling here, was not a resident. In the matter of Thompson (1 Wend. 43), the court held, that residing abroad, engaged in business for a time, whether permanently or temporarily, was a "residing out of the State." In The matter of Wrigley, 4 Wend. 602; 8 ib. 134), it was held that a person remaining temporarily for a month in the cities of New York and Brooklyn, intending to commence business in Canada, was not an inhabitant or resident. In Frost v. Brisbin (19 Wend. 11), Nelson, Ch. J., says: "There must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence" In Thorndike v. City of Boston (1 Met. 245), Shaw, Ch. J., says: "The questions of residence, inhabitancy, or domicil, although not in all respects precisely the same, they are nearly so, and depend much on the same evidence." In Cadwallader v. Howell (3 Harrison's Rep. 144), Dayton, J., says: "The word residence (fixed residence, I mean) is generally used as tantamount to domicil, though I am not prepared to say they are, in all respects, convertible terms "" In Crawford v. Wilson (4 Barb. 506), it was held that the words legal residence and domicil are convertible terms.

e. A person, formerly a resident of another State (Indiana), had with his family removed to this State, and was staying with a relative, while looking for an opportunity to engage in business, and whether he should finally settle in this State, was undetermined,—held that he was a nonresident of this State (Burrows v. Miller, 4 How. 349).

f. A person, an emigrant, having left his native land with no intention to return, and who is living in this State without any determination to reside elsewhere, is a resident of this State (Heidenbach v. Schland, 10 How. 477).

g. A person may be a nonresident while his domicil continues within the State. Actual nonresidence, without regard to the domicil of the debtor, is what is contemplated by the statute. A debtor detained abroad, in attendance to business, three years and upwards, though keeping up a house in New York, as he had one for many years before, is a nonresident (Haggart v. Morgan, 5 N. Y. 422; Burrell v. Jewett, 2 Rob. 701; see Shedden v. Patrick, 28 Eng. L. and Eq R 64).

h. Where defendant, a merchant doing business in this State, where he owned real estate, and where he and his family resided in September, 1854, took from his store a large portion of the goods and went to Wisconsin, with the expectation of disposing of them more readily, for cash, to pay his debts, and if the trade proved to be good to continue his trade there in charge of a

clerk, and to return himself and continue his business in this State, retaining in the mean time his store and business in this State in charge of a clerk, where his family remained, intending, as he wrote to his creditors, to return in the spring of 1855, but did not actually return until July, 1855,-held that defendant was a resident of this State on the 29th of June, 1855 (Hurlbut v. Seeley, 11 How. 507; 2 Abb. 138).

a. A person who carries on, within the city of New York, a regular business, and who, in the course of his occupation, spends his time during the regular business hours of the business days of the week in the city, keeping his bank account there, and there in good faith conducting all his business transactions, is not a nonresident within the meaning of the attachment laws; although his family reside in another State, and he himself spends his Sundays, or even all his nights, with them (Towner v. Church, 2 Abb. 299). That case was decided at a general term of the supreme court in the first district. The superior court held otherwise, and that a defendant having all his business property, business capital, and his bank account in New York, where he was engaged in business, and where he spent on an average eight hours of every business day, but for reasons of convenience and economy merely, maintained his family in New Jersey, and spent with them there his nights and Sundays, was "not a resident of the State of New York" (Barry v. Bockover, 6 Abb. 374; and to the like effect (Chaine v. Wilson, 1 Bosw. 673; 8 Abb. 78; Bache v. Lawrence, 17 How. 554; Lee v. Stanley, 9 How. 272); and the supreme court have probably modified their views as expressed by the cases of Hurlbut v. Seeley and Towner v. Church, supra. See Greaton v. Morgan, 8 Abb. 64. In that case it appeared that the defendant had a place of business in New York, but boarded in New Jersey, and had a place of business there, and had stated that to be his place of residence, and was seldom at his place of business in New York,-held, that he was a resident of New Jersey.

b. Residence is the place of a man's fixed habitation, where his political rights are to be exercised, and where he is liable to taxation (Houghton v. Ault, 16 How. 77). Residence depends on intention (The People v. Peralta, 4 Cal. R. 175; Visher v. Visher, 12 Barb. 640; and see Sprague v. Houghton, 2 Scammon, 413; Powers v. Byrant, 7 Porter Ala. R. 15; Isham v. Gibbons, 1 Brad. Sur. Rep. 70; U. S. v. The Penelope, 2 Peters, 450; Hegeman v. Fox, 31 Barb. 475; Larrenville v. Anderson, 17 Jurist, 511; Reg. v. Norwood, 2 Law Rep. Q. B. 457).

c. Enlistment in the volunteer army of the United States, and absence from the State on such service, do not render a debtor a nonresident (Tibbitts v. Townsend, 15 Abb. 221). The residence of a seaman, if married, is where his family dwells, or if unmarried, the place where his domicil was fixed when he first went to sea (Re Scott, 1 Daly, 534, and see Re Hawley, 1 Daly, 531).

Note to subdivision 1.

d. Injury to person.-An action for crim. con. is an "injury to the person," within this subdivision (Delamater v. Russel, 4 How. 234; Straus v. Schwarzwaelden, 4 Bosw. 627); and so is an action for seduction (Taylor v. North, 3 Code Rep. 9). An application for a divorce on the ground of adultery is not, but an application for a limited divorce on the ground of cruel and inhuman, treatment is (M'Intosh v. M'Intosh, 12 How. 289). In an action for a willful injury to plaintiff's property, and for wrongfully depriving her of the use of certain parts thereof, the defendant is liable to arrest (Niver v. Niver, 43 Barb. 411; and see Person v. Civer, 29 How. 432; Jananique v. De Luc, 1 Abb. N. S. 419).

e. Converting property.--In an action against an inkeeper to recover the value of goods of a guest lost in his house, the defendant is not liable to arrest (People v. Willett, 26 Barb. 78; 6 Abb. 37; 15 How. 210). Unless he be a nonresident or about to remove from the State (id).

f. A defendant may be arrested for the unlawful conversion of property in a foreign country, where the property is brought into this State (Blason v.

Bruno, 21 How. 112; and see N'ern R'way v. Carpentier, 13 How. 222; 3 Abb. 259).

a. Not on contract.-An action for falsely and fraudently representing to plaintiff the means and pecuniary ability of a third person, whereby the plaintiff was induced to sell and deliver to the latter goods on credit, is within subdivision 1, and the defendant cannot be held to bail unless it be shown that he is a nonresident, or is about to depart from this State (Smith v. Corbiere, 3 Bosw. 634; Sherman v. Brantley, 7 Rob. 55); but an action for obtaining goods on credit by means of false representations is within subdivision 4, and in such an action no proof of nonresidence or intent to depart is necessary (Hazlett v. Gill, 4 Rob. 627; 15 Abb. 353).

Note to subdivision 2.

b. Fiduciary capacity.-The construction of this subdivision is, that a defendant may be arrested in an action for money received, where he is a factor, attorney, agent, &c., or other person in a fiduciary capacity, and that the same designated persons may be arrested for property embezzled or fraudulently misapplied by them. There are two cases for the arrest, and the enumerated persons may be arrested in either of them. In one class, the order of arrest may be made upon facts which may be entirely independent of the cause of action, which are to be stated in affidavits, and need not be stated in the complaint, and where the arrest may take place after the cause has actually been tried. In the other class, where a defendant is sought to be arrested as an agent for receiving money, the ground of action and the ground of arrest are identical If the cause of action is shown to be unfounded, the cause of arrest must fail. If the affidavits destroy the allegation of a fiduciary character, the arrest cannot be sustained; although that will not terminate the suit (Republic of Mexico v. Arrangois, 11 How. 1-576).

c. For damages sustained by a stockholder from fraudulent acts of directors and officers of a company, an action may be sustained by the stockholder against the officers and directors, and the defendant may be arrested (Crook v. Jewett, 12 How. 19). A defendant may be arrested in an action for money received, or property embezzled or fraudulently misapplied as an agent of the plaintiffs, or while he was acting for the plaintiffs in a fiduciary capacity, such as a peddler of goods for the plaintiffs. It is immaterial whether the facts authorizing the arrest are or are not inserted in the complaint, or whether the action is brought on the contract for not accounting for and paying over the goods and money to the plaintiffs, or in tort for the conversion of the goods and money (Ridder v. Whitlock, 12 How. 209).

d. One who receives money from another to pay directly to a third party, and omits to do so, may be arrested, as well because he received the money as agent, as because of his fiduciary character (Burhans v. Casey, 4 Sand. 707). Where the defendant received as agent or attorney of plaintiff a specific sum for a specific purpose, and while the money was in defendant's hands, not applied to such purpose, the plaintiff demanded its return to him, defendant refused to return it, in the bona fide but erroneous belief that he could not, in justice to a third person, do so,-held he was liable to arrest (Schadle v. Chase, 16 How. 414; and see Hall v. McMahon, 10 Abb. 319; Gross v. Graves, 19 Abb. 95).

e. A factor who receives money to be invested in goods, with the condition that it shall not be employed for any other purpose, acts in a "fiduciary capacity" (Noble v. Prescott, 4 E. D. Smith, 139; Dubois v. Thompson, 25 How. 417). An agent employed to collect moneys for his principal is liable to arrest where he appropriates such moneys to his own use. In such a case, the agent assumes a special trust, and acts in a "fiduciary capacity" (Stoll v. King, 8 How. 298; Shadder v. Shields, 17 How. 420; Ostell v. Brough, 24 How. 274). Where defendant contracted with plaintiffs in writing, to receive a lot of fruit trees from them, to be delivered to different purchasers thereof from the plaintiffs, and the defendant was to and did receive payment therefor on delivery,