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father-in-law's family in New York, seeking employment there, but undetermined as to where he should settle, was held “not to be a resident of this state.'

Considerable diversity of opinion existed under the Code of 1848, as to whether the expression, “ fiduciary capacity," as it stood alone in that measure, embraced the case of an agent who had received and misapplied the monies of his principal. Dunaher v. Meyer, 1 C. R. 87, was authority that such a case was within the meaning of the measure; Smith v. Edmonds, 1 C. R. 86, and White v. McAllister, 1 C. R. 106, that it was not. The matter is now, however, put out of doubt by the insertion in the present enactment, of the words “factor, agent, broker, or other person.” In Holbrook v. Homer, 6 How. 86, 1 C. R. (N. S.) 406, an auctioneer, who had received goods for sale, but had failed in paying over the purchase money to his principal, was held to be liable to arrest under this subdivision.

In Sief ke v.Tappey, 3 C. R. 23, it was held that the provisions of this subdivision are controlled by those of subdivision 5, and that, therefore, in an action against a female for breach of promise of marriage, an arrest cannot be made.

It was held under the Code of 1849, that it was not necessary to allege or prove fraud, to justify an arrest under subdivision 3. The simple, and even bonâ fide removal of the goods, so that they cannot be taken by the sheriff, seems, under that measure, to have been sufficient; nor need the amount in which bail is to be given be specified ; as, under sections 187 and 211, bail must be given, in double the value as fixed by the plaintiff.- Van Neste v: Conover, 5 How. 148; 8 Barb. S. C. R. 509. Under the recent amendments, a fraudulent intent in the removal must now be proved, before the provisional remedy will be granted.

Where, however, the property was not in the possession or under the control of the party, and had not been so for long before the action was brought, it was held, under the former measure, that an order for arrest could not be granted.-Roberts v. Randall, 3 Sandf. S. C. R. 707; 5 How. 327; 3 C. R. 190; 9 L. 0. 144. In this case, it was evident from the very nature of the circumstances, that the property taken could not be restored; and, therefore, the action was, in fact, one more in the nature of a claim for damages, than one in replevin. In Van Neste v. Conover, the case was different; the property there, having been

recently taken away, contrary to the express terms of the sale, and being capable of re-delivery in specie.

In Merrick v. Suydam, 1 C. R. (N. S.) 212, the same conclusion was come to, and it was held that an action cannot be had, against one who has absolutely and in good faith parted with the possession of the property before suit brought; and the only exception is, when the defendant has parted with it, with the intent to deprive the plaintiff of the benefit of it, or to prevent its being re-taken. In such a case only, can the defendant

be held to bail. In Remin v. Nagle, 1 C. R. (N. S.) 219, the

. same conclusion is maintained, and the authority of Roberts v. Randall, confirmed in terms.

In Chappel v. Skinner, 6 How. 338, it was held that a plaintiff was not at liberty to obtain possession of certain goods claimed by him, by means of the usual process of replevin, after having already arrested the defendant, under an affidavit bringing the case within the terms of subdivision 1 of the foregoing section. He must elect between the two remedies, and cannot maintain both simultaneously, in respect of the same transaction.

• The plaintiff's course,” it was said, “ was to have pursued the proceedings pointed out in chapter 2, above referred to, which do not authorize the defendant's arrest; and, if the property could not be found, and the case is within the 3d subdivision of sec. 179, to obtain an order and have the defendant arrested ; but, in that case, he cannot afterwards obtain the possession of the property, pending the action.”

“ Having, in this case, elected to have the defendant arrested and held to bail in the first instance, under one of the subdivisions of sec. 179, 1 think the plaintiff was bound to wait until he was entitled, by the judgment of the court, to the possession of the property, before causing it to be delivered to him. I am

I not able to perceive that the defendant has done anything, by which he waived the right to have the property restored to him."

In Wanzer v. De Baum, 1 C. R. (N. S.) 280, it was held that the recovery of judgment in another state, in respect of goods sold, was no bar to an action in this, grounded, in part, on the fraud by means of which such goods were originally obtained; and that, in such an action, an order for arrest may be obtained under subdivision 5 of the section now in question, in respect


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of such fraud. The cases of Clark v. Rowling, 3 Comst. 216 and Oakley v. Aspinwall, 4 Comst. 513, are authority in support of the right of the court, under similar circumstances, to look behind a judgment, to circumstances existent at the time the. debt was originally contracted, or between that period and the recovery of the judgment.

With respect to subdivision 5, it appears to have been held that, to bring a defendant within this section, it must be shown by the affidavit that he has removed, or is about to dispose of his property, secretly. “The fact that he is about to depart out of the country, taking his property with him, although he owes debts to a large amount, will not subject him to the operation of this section. It is the secrecy which evinces the fraudulent intent, and not the disposal or removal of the property.”--Anon., 2 C. R. 51. It seems strange, that the party, in that instance, should not have shaped his application so as to bring it under subdivision 1.

The questions as to a fraudulent departure or intended removal of property, will be more fully considered in a subsequent chapter, under the head of attachment, to which, and to the cases there cited, the reader is accordingly referred. The proceedings being of an analogous nature, the authorities directly applicable to the one remedy, are collaterally so to the other, in most cases.

The views of the court of common pleas, and of the superior court, are at direct variance on the subject of the illegal detention or concealment of property by a female. It was held by the former tribunal, in Starr v. Kent, 2 C. R. 30, that a female may be arrested in an action to recover the possession of personal property, if that property be concealed, removed, or disposed of, so that it cannot be found by the sheriff: the court considering that such concealment or removal was a wilful injury to property, coming within the terms of subdivision 5. In Tracy v. Leland, 3 C. R. 47, 2 Sandf. S. C. R. 729, 8 L. O. 284, it was held, on the contrary, by the latter, that a concealment of property by a female, under precisely similar circumstances, was not a case of wilful injury to property within that subdivision, and the case of Starr v. Kent, was distinctly and in terms overruled.

A female is not arrestable in an action for breach of promise

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of marriage, under the authority of Siefke v. Tuppy, 3 C. R. 23, before cited.

The provisions of sec. 435, under which, in actions by the attorney general in respect of usurpation of office, the defend. ant is arrestable, must not be overlooked, though, necessarily, the proceeding is one of comparatively infrequent occurrence.

A long and doubtful discussion has taken place as to whether, when an arrest is sought under circumstances of fraud, it is or is not necessary that such fraud should be averred on the complaint. The cases on the subject are numerous, and directly contradictory to each other. The point more immediately at issue is, however, as to an arrest on execution after judgment; and, therefore, though pertinent, they are not directly applicable to that immediately under consideration. They will be found collected and fully commented upon, under the heads of pleading, and execution, and may be referred to accordingly.

In Corwin v. Freeland, 6 How. 241, one of the most recent of those cases, it was, however, laid down, in reference to the section immediately under consideration, that “the causes of arrest enumerated in subdivision 1, 2, and 4, must of necessity exist at the time of the action.” The causes, in subdivisions 3 and 5, may or may not exist at the commencement of the suit. If the latter, the plaintiff has ample remedy under the law of 1831.

Wilson v. Robinson, 6 How. 110, has reference to a criminal arrest, and is therefore not within the scope of this work.

Under the measure of 1848, an arrest might be applied for "at the time of commencing the action," and doubts arose as to the construction of this clause : Dunaber v. Meyer being authority that the order might be made before service of summons; see, also, Gregory v. Weiner, 1 C. R. (N. S.) 210; and Lee v. Averill, 2 Sandf. S. C. R. 621, 1 C. R. 73, to the contrary effect. The point is, however, now set at rest by the present amendment in sec. 183, which provides that “the order may be made to accompany the summons,” which involves, of necessity, its being obtained before the actual service of the latter.

The application for an arrest must, under sec. 180, be made to a judge of the court in which the action is brought, or a county judge. The motion is of course ex parte, and without notice.

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It must be grounded on affidavit, the requisites of which are thus prescribed by sec. 181 :

$ 181. 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.

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Great care must be bestowed upon the preparation of the affidavit in question, as, the remedy being one involving the liberty of the citizen, the court will, in all cases, require a strict compliance with the letter of the statute; and that a clear case warranting their interference should be distinctly shown. The following decisions will throw considerable light upon the subject:

In Adams v. Mills, 3 How. 219 (an application under subdivision 1), the learned judge expressed himself thus : “ To authorize an order to hold to bail, the affidavits must show a good cause of action, and that the defendant is a transient person, or is about to depart beyond the jurisdiction of the court, and this must rest, not merely upon information and belief, but facts and circumstances must be set forth, from which such an inference may properly be drawn. The declarations of the defendant as to his intentions, are, of course, amongst the most satisfactory kinds of evidence, to show that he is about to go beyond the jurisdiction of the court.” The same case is also authority that such affidavits were not open to objection, on the ground of their being sworn before the plaintiff's attorney as justice of the peace, because, when they were sworn to, no suit had been commenced. It would be safer and better, however, to have such affidavit sworn before an indifferent party, in all cases where possible. The action in that case was in slander, and the affidavit omitted to aver that the words spoken were false. The order was accordingly vacated on the ground that no cause of action had been shown.

In Martin v. Vanderlip, 3 How. 265, 1 C. R. 41, it was held to be “ well settled, both in England and in this state, that the affidavit to hold to bail must be positive, and not argumentative," and must make out a primâ facie case against the defendant; and also, that “the former practice,” in similar cases, remained in force, except so far as it is modified by the Code in matters of form."

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