because he received the money as agent, as because of his fiduciary character. Burhans v. Casey, 4 Sand., 707.

a. An auctioneer who receives goods for sale under an agreement that he is to receive all over a certain amount of the proceeds for his compensation, is liable to be arrested for a failure to pay on demand the amount of the proceeds due the plaintiff. Holbrook v. Homer, 1 Code Rep., N. S., 406; 6 Pr. R., 86.

b. In Goodrich v. Dunbar (17 Barb. 644.), the defendant was consignee and agent at San Francisco, of a ship owned by the plaintiffs. His duties were to take a general charge of the ship, pay all expenses relating to her, sell her, and pay the expenses of the sale, and then to account to the plaintiffs, as their debtor, for the balance he might owe them, after deducting all payments previously made by him, and the balance due him from the plaintiffs on a former account; the supreme court held the defendant was not liable to arrest as a factor, agent, or broker, or as having received the plaintiff's money in a fiduciary capacity.

c. The term "in a fiduciary capacity," tends to show what is meant by factor, agent, broker, viz. one in whom a trust is reposed, such as is usually reposed in those persons in their ordinary or regular business; that is a trust that they will sell and immediately account for the balance after deducting their commissions, not that they shall take a general charge of their principals' business, pay various debts of theirs and assume liabilities for them, and then sell their property. In this last case, the agency to sell or collect, which is the only one that the code refers to, was but a small part of the contract, and the agency to superintend and pay out for the plaintiffs was the principal part of the defendant's duty in all respects, except in amount; did not the plaintiffs then mean to trust to the defendant, as a debtor, rather than as an agent, and to depend on his responsibility? If credit was thus given to him he would not be within the meaning of the 179th section of the code." Mitchell, J. Ib.

d. A merchant who received goods upon consigument, upon condition that he would advance to the consignor a certain amount in cash, and then consign the goods with the bills of lading and invoices, to responsible parties in Europe, for sale and returns, guaranteeing the faithful disposition of the property and returns of accounts of sales, together with whatever balance there might be over and above the advances made, the consignor holding himself responsible to the consignee for any deficiency, held, that on a deficiency of the amount of goods returned on sales by the parties in Europe, for which the consignee was liable on his guarantee, and the consignor on his promise to the consignee, the consignee did not act in a fiduciary capacity where he had received the amount of the deficiency from the consignor, and had not paid over the same to the parties in Europe, for which they sought to hold him to bail. Angus v. Dunscombe, 8 Pr. R., 14.

e. An attorney sued for not paying over money collected for his client, is liable to imprisonment, such suit being an action for misconduct in a professional employment. Stage v. Stevens, 1 Denio, 267.

f. Where an attorney residing and practicing in another State, receives money upon demands left with him for collection in that State, which he omits or refuses to pay over, he is liable to arrest here, in an action brought to recover such money. Yates v. Blodgett, 8 Pr. R., 278. Ín such a case, the money is received by the defendant as an attorney, in the course of his employment as such. The action was founded, not so much upon a breach of contract, as the violation of professional duty. Ib.

g. 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 Pr. R., 298.

Note to subd. 3.

h. The amendment of 1851 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., 148). 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 only can 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.

a. In a subsequent case, Mason, J., said, "Since the decision in Roberts v. Randall was made, the third subdivision of the 179th section has been amended by adding to it the clause, that the disposal of the property so that it cannot be found by the sheriff must be with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.' The plaintiff's counsel contends that these latter words authorize the sheriff to demand security for the deliv ery of the property whenever it has been disposed of with the intent that the plaintiff should not get it, whether in view of expected process or not; in short, that it applies to all cases of fraudulent purchases of goods. I do not think so; on the contrary, it appears to me that the amendment in question was intended as a corrective of the decision of the supreme court in Van Nest v. Conover (5 Pr. R., 148), and as a legislative adoption of the construction given to the section in question by this court. This is the plain import of the language, and is in accordance with the tenor and spirit of the act, as was abundantly shown by Justice Sandford, in his elaborate opin ion in Roberts v. Randal." Pike v. Lent, 4 Sand. 652.

b. Since the amendment of 1851 it has been held, that in an action to recover possession of personal property the provisional remedy of an arrest is applicable only to the party having possession, and cannot be had against one who has absolutely and in good faith parted with the possession before suit brought; and the only exception as to the possession is where the defendant has parted with the property with the intent to deprive the plaintiff of it, or prevent its being re-taken. In such case only can the defendant be held to bail. Merrick v. Suydam, 1 Code Rep. N. S., 212; Pike v. Lent, supra.

c. To entitle a plaintiff to an order of arrest under this subdivision, it must be true as a present fact that the property claimed is detained by the defendant at the time the suit is commenced, or at all events when the action is moved by the plaintiffs, or other assertion of their claim to the property is made. Reimer v. Nagel, 1 Smith, 258; 1 Code Rep., N. S., 219. And, therefore, if it appear that the defendant had disposed of the property claimed in the usual course of his business, ante litem motam, and without any intent to prevent the taking thereof by the sheriff, the plaintiff is not entitled to an order of arrest. Ib.

d. To authorize an order of arrest under the 3rd subdivision of this section, it must appear by the affidavits on which it is sought to be obtained, that the property has been removed after suit brought, with intent to prevent its being taken or found by the sheriff, or with intent to deprive the plaintiff of the benefit thereof; or if the disposition or removal took place before suit brought, it must appear to have been done with intent to render ineffectual the proceedings in a suit which the defendant knew or had reason to apprehend the plaintiff intended to bring to recover possession of the property. In the ordinary case of converting property, or detaining it in hostility to the claim of the true owner, the order to arrest must be under the 1st subdivision of this section, which is satisfied with bail that the defendant shall render himself amenable to the process and judgment of the court; whereas an arrest under subdivision 3 of that section can be superseded only by an undertaking to pay any judgment that may be recovered. Mulvey v. Davison, 8 Pr. R, 111.

e. In an action to recover possession of personal property, the plaintiff cannot

have the defendant arrested under section 179 and have the property delivered to him before judgment in the action. Chappel v. Skinner, 6 Pr. R., 338. The plaintiff has his election to proceed under chapter 2, title 7, of the code, to recover possession of the 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. Ib.

a. The plaintiff's course was, to have pursued the proceedings pointed out in chapter 2. title 7; and if the property could not be found, and the case is within section 179, subd. 3, to obtain an order and have the defendant arrested; but in that case he cannot afterward obtain the possession of the property pending the action. Ib.

Note to subd. 4.

b. 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 vender 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 Code Rep., N. S., 280; 1 Smith, 261.

e. In Wanzer v. De Baum, supra, the plaintiff had obtained a judgment against the defendant in another State as the endorser of a promissory note given for goods sold to the maker. The action in this State was commenced by summons, and the affidavit on which the order of arrest was granted showed the recovery of that judgment, and that the original credit was obtained by false representations by the defendant of his own and the purchaser's responsibility. It did not appear (no complaint having been served or filed) whether the defendant intended to rely for a cause of action on the deceit or on the judgment. The court of common pleas held that in either case the plaintiff might have an order of arrest. The idea (says Woodruff, J) that the debt is now in a judgment, does not appear to me to affect the question. It is a debt still. It was fraudulently contracted; and the fraud is fastened upon it through every form which the evidence of the debt may assume, and the fraud will remain until the debt is paid, released, or otherwise discharged." The supreme court in Goodrich v. Dunbar, 17 Barb., 644, intimated the reverse of this

view.

d. An order of arrest under this subdivision was obtained, the defendant arrested and remained imprisoned for want of bail. The complaint was for goods sold and delivered, and contained no averment of fraud. The action was defended, and the plaintiff recovered judgment on proof of the debt only, without proof of any fraud in contracting it. Execution against property issued, and was returned unsatisfied. No execution against the person was issued, and three months after the rendition of judgment the defendant moved to be discharged from imprisonment. The motion was granted. Harris v. Cone, 10 Pr. R., 259. [Without impugning the justness of the decision in this case, we submit with deference that the reasons given for it are not reconcilable with the decision of the court of appeals in Corwin v. Freeland, 2 Selden, 560; and Field v. Morse, 8 Pr. R., 47.-Ed.]

e. The defendant cannot be arrested in an action asking judgment for the possession of real estate, and for the rents and profits; it is not an action "for the recovery of damages, for injuring, or for wrongfully taking, detaining, or converting property." Fullerton v. Fitzgerald, 10 Pr. R., 39.

See note to subd. 2.

Note to subd. 5.

f. When an assignment is made by a debtor of all his property for the purpose of satisfying particular debts, which contains no provision relative to a possible surplus, the omission is not such evidence of an intent to defraud his creditors as will be deemed sufficient to warrant his arrest. Semble (Spies v. Joel, 1 Duer, 669) the omission in the assignment of any provision as to any surplus is not sufficient to warrant the presumption of an actual fraudulent intent; and such a presumption is

well rebutted by proof that the preferred debts exceed the value of the assigned property. Ib.

a. One partner cannot have an order of arrest against his co-partner upon an allegation of the fraudulent removal of the partnership property. Cary v. Williams, 1 Duer, 667.

b. In an action against husband and wife, for a tort committed by the wife, neither defendant can be arrested. Anon., 8 Pr. R., 134; 1 Duer, 613. Thus, on an application for an order of arrest against a husband and wife, in an action against them for an assault and battery alleged to have been committed by the wife alone, was held by Campbell, J. (all the justices of the superior court concurring), that the code had not altered the rule of the common law which exempts a married woman from arrest (on mesne process) in all cases whatever; nor does the code authorize the arrest of the husband in any action founded on the contract or tort of the wife.

c. 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., 729; 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.

General Note.

d. 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 Pr. R., 241.

e. In cases arising under the 4th and 5th subdivisions, I think, 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 and held to bail. Campbell, J., in Lee v. Elias, 1 Code Rep., N. S., 117.

f. 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. and E., 121; Kernott v. Norman, 2 ib., 391; Steel v. Allen, 2 ib., 362. But, by a statute of this State, to organize State lunatic asylums, &c., it is enacted, that if a person imprisoned on civil process becomes inthe 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, 1 Code Rep., N. S., 264. g. A sheriff is liable to arrest in like manner as any other individual. Hill v. Lot, 10 Pr. R., 46.

sane,

h. A defendant cannot be twice arrested by process out of different courts in the same State for the same cause of action. Hernandez v. Carnobeli, 10 Pr. R., 433.

i. Proof of arrest upon process out of one court is sufficient ground to discharge the defendant upon a second arrest for the same cause of action upon process issued out of the other court. The only doubt as to discharging the defendant from the second arrest, is whether the plaintiff is not entitled to elect upon which order of arrest he will hold the defendant. And perhaps the better practice is to reduce the bail in one case to a nominal amount, similar to the discharge on common bail. Ib.

j. An order staying the plaintiff's proceedings in an action, has reference to the ordinary proceedings, but does not prohibit him from obtaining an order of arrest. Thus where, after verdict for the plaintiff, in an action for an assault and battery, the defendant obtained an order allowing him thirty days to make a case, and direct

ing that all proceedings on the part of the plaintiff be stayed in the mean time, and the plaintiff, while such order was in force, obtained an order of arrest, on motion to set aside the order of arrest, it was held that the plaintiff might obtain such order without violating the order to stay the proceedings. Lapeous v. Hart, 9 Pr. R., 541.

a. It being shown that the case is one in which a judge has jurisdiction to grant an order of arrest, the manner in which he has exercised his discretion in the mat ter, is not the subject of an appeal. Ib.

§ 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.] (Amended 1849.) Affidavit to obtain order. To what actions this chapter applicable.

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.

The provisions of this chapter shall apply to all actions included within the provisions of section 179, which shall have been commenced since the thirtieth day of June, 1848, and in which judgment shall not have been obtained.

Requisites of Affidavit.

b. 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.

c. The following case from the English reports, respecting the practice on affida

vits to hold to bail and counter affidavits, we deem worth insertion:

An order of arrest had been obtained in an action on contract on an affidavit of the existence of a sufficient cause of action, and that the defendant was about to quit the country. On a motion to set aside the order of arrest, on the ground that the defendant was an infant at the time of making the contract, Coleridge, J., in denying the motion, said, "It is of no use going into the facts if I cannot consider them. I am clearly against you on the principle. Though this is not an old act of parliament, I believe the practice under it has been quite uniform, and quite contrary to that for which you are now contending. Formerly if an affidavit of debt was made, it was sufficient to ground a capias. The only check on these proceedings was the power of bringing the bail-bond before the court, and the liability to costs under the statute 43 Geo. 3, c. 46, if the party had been held to bail for an excessive amount. The statute 1 & 2 Vict., c. 110, provides, in section 1, that no person shall henceforth be arrested on mesne process except in the cases afterwards provided for in the statute. Section 3 reserves the power of holding the defendant to bail when the plaintiff shall show to the satisfaction of a judge that he has a cause of action to the amount of £20 or upward, or has sustained damage to that amount, and that there is probable cause for believing that the defendant is about to quit England. One of these points goes to the foundation of the action, that is, directly to the merits. The other is a matter collateral, namely, whether the defendant is about to quit the country. Section 6 gives the defendant liberty to apply to a judge, or the court, to be discharged out of custody. I quite agree that there is nothing in the words of the act to show that any distinction is to be made between the two questions; but the judges have held, that as before the act people were never allowed to deny the