TITLE III. — ATTACHMENT OF PROPERTY.

TITLE IV.-OTHER PROVISIONAL REMEDIES; GENERAL AND MISCELLANEOUS PROVISIONS

TITLE I.

Arrest, pending the action, and proceedings thereupon.

ARTICLE 1. Cases where an order of arrest may be granted, and persons liable to arrest.

2. Granting, executing, and vacating or modifying the order of arrest.

3. Discharging the defendant upon bail or deposit; jurisdiction of the ball and disposition of the deposit.

4. Charging and discharging bail.

ARTICLE FIRST.*

CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND PERSONS LIABLE TO ARREST.

BEC. 548. No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished.

549. When the right to arrest depends upon the nature of the

action.

550. When the right to arrest depends partly upon extrinsic facts. 551 Order, when and where granted; when of right, and when discretionary.

552. Foreign Judgment not to affect right to arrest.

553. Woman not to be arrested, except, etc.

554. Idiot, lunatic, or infant under fourteen, if arrested, to be dis

charged.

555. Person sued in a representative capacity, not to be arrested.

$648. [Amended, 1877.] No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished. A person shall not be arrested

See Laws 1886, chap. 672.

in a civil action or special proceeding, except as prescribed by statute.(1) The writ of ne exeat is hereby abolished.(2)

Substitute for Co. Proc., 178. (1) Goodale v. Finn, 4 T. & O. 432; People v. Clark, 45 How. 12; People v. Tweed, 5 Hun, 382 Smith v. Meyers, 1 T. & C. 665; Adriance v. Lagrave, 59 N. Y. 110: Farmer v. Robbins, 47 How. 415; Thomp. Pro. Rem. 10. (2) See 6 Alb. L. J. 315; Brownell v. Aiken, 6 Hun, 378, Viadero v. Viadero, 7 id. 313; Forrest v. Forrest, 10 Barb. 48. See Walt's Practice, 272; Thomp. Pro. Rem. 567.

549. [Amended, 1877 and 1886.] When the right to arrest depends upon the nature of the action A defendant may be arrested in an action, as prescribed in this title, where the action is brought for either of the following causes:(1)

1. To recover a fine or penalty.

2. To recover damages for a personal injury;(2) an injury to property, including the wrongful taking, detention or conversion of personal property;(3) breach of a promise to marry;(4) misconduct or neglect in office, (5) or in a professional employment;(6) fraud; or deceit,(7) or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received, or to recover property or damages for the con version or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or coun selor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to the new action to recover the money or chattel. 3. To recover money, funds, credits, or property, held or owned by the State, or held, or owned, officially or otherwise, for or in behalf of a public or govern mental interest, by a municipal or other public corporation, board, officer, custodian-agency, or agent, of the

State or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, without right, obtained, received, converted, or disposed of, or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. (8)

4. [Added, 1879; amended, 1886.] In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, or that he has since the making of the contract, or in contemplation of making of the same, removed or disposed of his property with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action; and a judgment for the defendant is not a bar to a new action to recover upon the contract only.

Co. Proc., 179, am'd. For definitions see "Temporary Act," post (1) Elwood v. Gardner, 45 N. Y. 349; Rockford, etc. v. Boody, 56 1d. 456: Goodale v. Finn, 4 T. & C. 432; Toffey v. Williams, 5 id. 294; MoGovern v. Payn, 32 Barb. 83; Lambert v. Snow, 2 Hnt. 501; Smith v. Knapp, 30 N. Y. 581; Claflin v. Frank, 8 Abb. 412; Townsend v. Bogart, 11 id. 355; Coman v. Allen, 21 How. 114. Order discretionary: Knick erbocker Life Ins. Co. v. Ecclesine, 42 How. 201; s. c., 11 Abb. N. S. 9; Davis v. Scott, 15 Abb. 127. (2) See post, "Temporary Act," 2, subd. 8, for definition of libel. Britton v. Richards, 13 Abb. N. S. 258; Blakelee

. Buchanan, 44 How. 97; Knickerbocker Life Ins. Co. v. Ecclesine, Abb. N. S. 9; affirmed, 11 id. 385: s. c., 42 How 201. Seduction: Delamater v. Russell, 4 How. 234. Crim. Con.: Strauss v. Schwarzwal den, 4 Bosw. 627; Taylor v. North, 3 Code R. 9; and see McIntosh v. McIntosh, 12 How. 289. False imprisonment: Grodon v. Upham, 4 E. D. Smith, 9: Vor Latham v. Rowan, 17 Abb. 238. Assault and battery. Davis v. Scott, 15 Abb. 127. (3) Brush v. Mullen, 12 Abb 242: Griswold v. Sweet, 49 How. 171; Goldsmith v. Jones, 43 d. 415; Robbins t. Selthel, 20 id. 366 Chappell v. Skinner, 6 id. 333. (4) Shief v. Tuppey, 3 Code R. 23. (5) Crook v. Jewett, 12 How. 19; Peel v. Elliott, 16 d. 481. (6) Smedes v. Elmendorf, 3 Johns. 185; Yates v. Blodgett, 8 How. 278: Stage v. Stevens, 1 Denio, 267. (7) Fraud and deceit: Woodruff v. Valentine, 19 Abb. 93; Sherman v. Brantley, 7 Robt. 55; Goodale v. Finn, 4 T. & C. 432; Toffey v. Williams, 5 id. 294, Sherman v. Smith, 42 How. 198: Hathaway . Johnson, 55 N. Y. 93; Elwood v. Gardner, 45 id. 349; Kern v. Rachow, 34 N. Y. Supr. 239; Wheeler v. Frenche, 33 id. 63; Claflin v. Frank, 8 Abb. 412; Birchell v. Straus, 28 Barb. 293. (8) Peel v. Elliott, 16 How. 485 s. c., 23 Barb. 200.

550. [Amended, 1877 and 1886.] When the right to arrest depends partly upon extrinsic facts.-- A defendant may also be arrested in an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an

order requiring the performance of the act will be rendered ineffectual.

Substitute for part of 179, Co. Proc. (1) Seymour v. VanCuren, 8 How. 94; Chappell v. Skinner, 6 1d. 338; Roberts v. Randell, 5 id. 327 Pike v. Lent, 4,Sandf. 650; Mulvey v. Davison, 8 How. 111; Watson v. McGuire, 33 id. 87; Tracey v. Leland, 2 Sandf. 729; Elston v. Potter, 9 Bosw. 636; Muller v. Perrin, 14 Abb. N. S. 95. (2) Reid v. Martin, 4 Hun, 590 Hathaway v. Johnson, 55 N. Y. 93; Sherman v. Smith, 42 How. 198; Hall v. Naylor, 6 Duer, 71; 18 N. Y. 588; Nichols v. Pinner, id. 295; Manning v. Solis, 50 Barb. 224; Wilmerding v. Mooney, 11 Abb. 283; Marsh v. Falker, 40 N. Y. 562; Brown v. Ashbough, 40 How. 226; Clark v. Rankin, 46 Barb. 570; Wannemacher v. Davis, 2 Sweeny, 272; Mead v. Bunn, 32 N. Y. 275; Chester v. Comstock, 40 id. 575; and see Wait's Pr. 624; Voorhies' Code, 179, note. (3) Kern v. Rachow, 34 N. Y. Supr. 239; Isaacs v. Gorham, 1 Hilt. 480; Caldwell's Case, 35 Barb. 444; 8. C., 13 Abb. 405: Pacific Mut. Ins. Co. v. Machado, 16 id. 451; Phillips v. Benedict, 12 Abb. 355: Courter v. McNamara, 9 How. 255; McButt . Hirsch, 4 Abb. 441. (4) Prouty v. Swift, 51 N. Y. 594; Roberts v. Prosser, 53 id. 260; German Bank v. Edwards, id. 541; Buchanan, etc., v. Woodman, 4 T. & C. 193; Stoll v. King, 8 How, 298; Morange v. Waldron, 6 Hun, 529; Farmers' Bank v. Sprague, 52 N. Y. 605; Lambertson v. Von Boskerck, 49 How. 266. (5) Forrest v. Forrest, 10 Barb. 48; s. c. 6 How. 125: Bushnell v. Bushnell, 15 Barb. 399; Cowdin v. Cram, 3 Edw. Ch. 231; Gleason v. Bisby, Clark, 551; Viadero v. Viadero, 7 Hun, 313.

§ 551. [Amended, 1877 and 1886.] Order when and where granted; when of right, and when discretionary. In a case specified in the last section, the order of arrest can be granted only by the court, is always in its discretion, and may be granted or served, either before or after final judgment, unless an appeal from the judgment is pending, upon which security has been given, sufficient to stay the execution thereof.(1) In either of the cases specified in section five hundred and forty-nine, the order cannot be served after final judgment; but it may be granted, where a proper case therefor is presented, at any time before final judg ment.(2)

New. (1) Bushnell v. Bushnell, 7 How. 389; Dunham v. Jackson, i Paige, 629; Forrest v. Forrest, 10 Barb. 54; Viadero v. Viadero, 7 Hun 813. (2) Union Bank v. Mott, 16 How. 525; s. c., 8 Abb. 150; affirmed, 17 How. 353; Davis v. Scott, 15 Abb. 127; Lapeous v. Hart, 9 How. 541.

dd§ 552. Foreign judgment not to affect right to arrest.

The recovery of judgment in a court, not of the State, for the same cause of action; or, where the action is founded upon fraud or deceit, for the price or value of he property obtained thereby does not affect the right the plaintiff to arrest the defendant, as prescribed in title.obiet agled out to Jaobi-91 & 10

Settles question considered in Wanzer v. De Baun, 1 E. D 261: Arthurtou v. Dalley, 20 How. Pr. 311; Goodrich v. Dunbar 644: Mallory". Leach, 23 How. Pr. 507: Goodale v. Finn, 4T 8. c., 2 Hun, i51.

§ 553. [Amended, 1877.] Woman not to be arrested, except, etc. A woman cannot be arrested, as prescribed in this title, except in a case where the order can be granted only by the court; or where it appears, that the action is to recover damages for a wilful injury to person, character, or property.

Last sentence of Co. Proc., 179. Duncan v. Katen, 6 Hun, 1; Northern Railway Co. v. Carpentier, 3 Abb. 259; Anonymous, 1 Duer, 613; Wheeler. . Hartwell, 4 Bosw. 684; Schaus v. Putscher, 16 Abb. 353; 8. c., 25 How. 463; Baldwin v. Kimmel, 16 Abb. 353; Tracey v. Leland, 2 Sandf. 729; Neville v. Neville, 22 How. 500; and see Hovey v. Starr, 42 Barb. 435.

§ 654. [Amended, 1877.] Idiot, lunatic, or infant under fourteen, if arrested, to be discharged. - A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose.

New.

§ 555. Person sued in a representative capacity, not to be arrested. A person prosecuted in a representative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act.

Modelled upon 2 R. S. 348, 9 (2 Edm. 359). See Nat. Banks. Temple, 89 How. 432-436; 8. c., 2 Sweeney, 351.

ARTICLE SECOND.

GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST.

Sno. 556. Order required for arrest; how granted.

557, Proof necessary to procure order.

558. When order may be granted; effect of complaint subsequently made.

559. Security, upon order of arrest made by a judge.

560. Id.; upon order of arrest granted by the court.

561. Contents of the order; to whom directed; when to be executed.

562. Copies of papers to be delivered to defendant; originals to be filed.

563. Arrest; how made.

664. General provision as to privilege from arrest; discharge of privileged person.

565. Privilege of officers of courts.

566. Defendant arrested to have twenty days to answer.

567. When application to be made to vacate order of arrest, etc.

568. How and to whom application must be made; opposing it by

new proofs.

672. Supersedeas, unless defendant is charged in execution, etc.