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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, except as prescribed by this act.

179. Cases in which defendant may be arrested.
180. Order for arrest, by whom made.
181. Affidavit to obtain order. To what actions this chapter is applicable.
182. Security by plaintiff, before order for arrest.
183. Order, when made, and its form.
184. Affidavit and order to be delivered to sheriff, and copy to defendant.
185: Arrest, how made.
186. Defendant to be discharged on bail or deposit.
187. Bail, how given.
188.

Surrender of defendant.
189.
190. Bail, how proceeded against.
191. Bail, how exonerated.
192. Delivery of undertaking to plaintiff, and its acceptance or rejection

by him.
193. Notice of justification. New undertaking, if other bail.
194. Qualification of bail.
195.
196.

*Justification and allowance of bail.
197. Deposit of money with sheriff.
198. Payment of money into court by sheriff.
199. Substituting bail for deposit.
200. Money deposited how applied, or disposed of.
201. Sheriff, when liable as bail ; and his discharge from liability.
202. Proceedings on judgment against sheriff.
203. Bail liable to sheriff.
204. Motion to vacate order of arrest or reduce bail.
205. Affidavits on motion.

$ 178. [153.] No person to be arrested, except as prescribed by this act.

No person shall be arrested in a civil action, except as pre

* This chapter app'ies to all actions commenced since June 30, 1848, see section 181.

*

scribed 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, nor shall it apply to proceedings for contempts.

a. This section is identical with section 153 of the code of 1848. It was held by the superior court, that the writ of ne ereat or equitable bail was abolished, and that arrest and bail as provisional remedies in civil actions of an eqnitable nature, could be obtained only in the cases and in the manner prescribed by the code. (Fuller v. Emeric, 2 Code Rep., 58.) The same conclusion was come to by the supreme court at special term (Forrest v. Forrest, 3 Code Rep., 121); but on appeal in that case io the general term, it was held, that the writ of ne eceat was not abolished, that it remained as a "provisional remedy," which could not with propriety be denied to suitors when asked for in a proper case. That to authorize the issuing of a ne ereat, facts must be set out sufficiently on which the court or judge can repose its belief. Mere sears and apprehensions of the party are insufficient. Forrest v. Forrest, 5 Pr. R., 125; 3 Code Rep., 141.

b. “ The code is substituted for the old mode of arresting defendants in legal actions. And in view of the fact that the code has not expressly abolished the writ of ne ereat, por given any thing as a substitute therefor, and deeming the power of awarding such process essential to the exercise of the legitimate powers of a court of equity, and not to be taken away by implication, I am constrained to hold that this court still possesses the authority to retain a suitor by ne ereat.” Per Barculo, J., in Bushnell v. Bushnell, 7 Pr. R., 393. It is proper to state in this connection à circumstance not noticed in Forrest v. Forrest, 5 Pr. R., 125 ; 10 Barb. 48, nor in Fuller v. Emeric, 1 Sand. S. C. R., 626, viz. that it was true to a certain extent that the writ of ne ereat was rendered unnecessary by the original code, for that contained a provision for arresting a defendant who is not a resident of the State, or is about to remove therefrom." (Code of 1848, s. 156.) That clause might have been a substitute for a ne ezeat; but it was repealed in 1849, and thus the argument that the writ is unnecessary because of a substitute is annihilated, and by the same rule that we could infer from the declaration of the commissioners their intention to abolish it, we should also infer from the act of the legislature a design to retain it. 1b. And see Bushnell v. Bushnell, 15 Barb. 399.

c. Where the writ of ne exeat was issued and served with the summons in the ordinary manner of issuing and serving an injunction, held sufficient, —that it is not necessary to file the complaint first; under the former system it was otherwise. Ib.

d. Any justice of the supreme court, or any county judge, may out of court allow writs of ne ereat 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.” 2 R. S., 4th ed., 375, s. 55. Laws of 1847, ch. 470, s. 13.

e. It is not necessary, although it is usual, that a ne exeat should be by writ: it may be by order enforced by attachment for contempt. “ I see nothing in the code to prevent such a practice; and in case it should be adopted instead of issuing the writ in the first instance, section 178 would clearly warrant an arrest, per Edmonds, J. 16. By the judiciary act of 1847 (Laws of 1847, p. 640, s. 13), a 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. It is a general rule that if the creditor can arrest his debtor in the ordinary form of law, he is not entitled to a writ of ne exeat ; and the fact that the defendant has been arrested in the ordinary form of law is a salal objection to an application for a writ of ne exeat. The granting of this writ is entirely in the discretion of the court, and is granted with much caution. Pratt v. Wells, 1 Barb. S. C. R., 425. A person coming into this State for the sole purpose of giving testimony as a witness in an action at law, cannot be taken on a writ of ne ereat while waitiog to give evidence. Dixon v. Ely, 4 Edw. Ch. R., 557. For the proceedings as to giving bail,

&c., on a writ of ne exeat, see Laws of 1845, p. 251 ; and see further 2 Barb. Ch. Pr.

a. A warrant may now be issued under the act abolishing imprisonment for debt, in all the cases prescribed by that act. Gregory v. Weiner, i Code Rep., N. S., 210; and see Corwin v. Freeland, 6 Pr. R., 241; 2 Selden 560.

6. In the United States district court for the southern district of New York, a question arose, whether by this section a defendant in the United States admiralty courts, had the same exemption from arrest within this State as a defendant in a State court of this State? And it was determined that he had not. Gaines v. Travis, 2 Code Rep., 102. Subsequently, however, by a supplemental rule in admiralty, to be found in the 10th volume of Howard's United States Reports, it is ordered.

c. "In all suits in personam where a simple warrant of arrest issues and is ex. ecuted, 'bail shall be taken by the Marshal 'and the court in those cases only in which it is required, by the laws of the State where an arrest is made, upon similiar or analogous process issuing from the State courts. And imprisonment for debt on process issuing out of the admiralty court is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been or shall be hereafter abolished upon similar or analogous process issuing from a State court."

$ 179. [154.] (Amended 1849-1851.] Cases in which defendant may 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 con

a

tracting 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 of 1851 is the insertion of the words in italic in subd. 3.

Note to subd. 1. a. An action for crim. con. with the plaintiff's wife is an “injury to the person” of the plaintiff, within this subdivision. Delamater v. Russel, 2 Code Rep., 147 ; 4 Pr. R., 231; and so is an action for seduction. Taylor v. North, 3 Code Rep., 9.

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

Who is and who is not a resident. c. 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. Au inhabitant. 20 Johns. R., 208; 8 Wend., 134, 140; one who resides or dwells in a place for some time. Webster.In Roosevelt v. Kellogg, 20 Johns. R., 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."

d. In the matter of Filzgerald (2 Caines, 317), it was decided that a person who came into this State on a commercial adventure, without any intent of settling here, was not a resident within the meaning of the act for relief against absconding debtors. In the matter of Thompson (1 Wend., 43), the court held, in respect to an absent debtor, that residing abroad, engaged in business for a time, whether permanently or temporarily, was a “residing out of the State,'' within the meaning of the statuto. In the matter of Wrigly (4 Wend., 602 ; 8 16., 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 in habitant or resident within the meaning of the insolvent act of 1813. Savage, Ch. J., in that case, says that in the matter of Fitzgerald (2 Caines, 318), it was held that a resident within the State was one who had a residence of a permanent and fixed character, not one who had a mere residence of a temporary nature. In Frost v. Brisbin (19 Wend., 11), the facts were these : A resident or this State left the State in May, 1836, and went to Wisconsin, and commenced business there as a merchant, with intent to make it his permanent residence, but left behind his wife and child at board at his former residence in this State. In March, 1837, he returned to his former residence on a visit, and remained until May, when he was arrested and held to bail. And it was held that he was not a resident of this State, within the meaning of the act to abolish imprisonment for debt. In that case, 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 within the legil meaning of that term." In Thorndike v. City of Boston (1 Met., 245), Shaw, Ch. J., says, “ The questions of residence, inhabilancy, 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

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(3 Harrison's Rep., 144), Dayton, J., eays, " The word residence (fixed residence I mean), is generally used as tantamount to domicil, though I am not prepared 10 say whether they are or are not, in all respects, convertible terms." But in Crawford v. Wilson (4 Barb., 505), it was held ibat the words legal residence and domicil, are convertible terms. That every person has a domicil, but he can have only one domicil at one and the same time, and that the existing domicil always continues until another is acquired, and by the acquisition of another domicil the former one is relinquished.

a. A person who had formerly been a resident of another State (Indiana), but has with his family removed to this State, and was then residing with a relative, while he was looking out for an opportunity to engage in business, and whether he should finally settle in this State or elsewhere, was undetermined. Held that he was a non-resident of this State. Burrows v. Miller, 4 Pr. ., 349.

6. A. resided and carried on business at Gloucester. In 1841 he hired a furnished bedroom at Tewksbury, which he then still retained. Between January and July, 1844, he slept in said bedroom at Tewksbury twelve times, and during the year ending July, 1844, sixteen times, but he had never taken his meals in the house; it was held he was not a resident of Tewksbury. Withorn v. Thomas, 8 Sc., N. R., 783; 7 M. & G., 1.

c. Where it appeared that the defendant at the time of issuing the attachment against him, kept a house in Bradford, New Hampshire, in which his wife and chil. dren lived, and in which he entertained his friends, and which was frequently called by him his home--held, that such place was the legal residence and domicil of the defendant, and this notwithstanding the positive statement of the defendant that he had since the spring of 1852, and then had, a store of goods, and was doing business as a merchant, and had actually resided, in Franklin county, in this State, with the honest intention of making the latter place his permanent residence. Lee v. Stenley, 9 Pr. R., 272.

d. 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 else v here, is 8 resident of this State. Heidenbach v. Schland, 10 Pr. R., 477.

e. A person may be a non-resident of this State within the ineaning of the statute relative to non-resident debtors, while his domicil continues within this State. Actual non-residence, 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 the city of New York, as he had done for many years before, is a non-resident within the meaning of the statate. Haggart v. Morgan, 4 Sand., 198; affirmed in the court of appeals, 1 Selden, 422.

f. 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.

g. 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.

h. As to who are public officers, see 1 R. S., 85. An attorney is not, 9 Wend., 503.

i. Under the amended code it has been held that one who receives money from another to pay directly to a third party, and omits to do so, may be arrested as well

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