CHAPTER VII. General Provisional Remedies in an Action. Thereupon. TITLE 11.— injunction. 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 ar- 3. Discharging the defendant upon bail of deposit; jurisdiction of the 4. Charging and discharging bail. ARTICLE FIRST. Cases where an order of arrest may be granted, and persons liable to arrest. Sec. 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 discre tionary. 552. Foreign Judgment not to affect right to arrest. 553. Women not to be arrested, except, etc. 554. Idiot. lunatic, or infant under fourteen, if arrested, to be discharged. 555. Person sued in a representative capacity, not to be arrested. § 548. Omitted; see Table, p. lii.] No person to be arrested in civil proceedings, without a statutory provision. Ne exent abolished. A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is hereby abolished. From Co. Proc., § 178. Am'd by L. 1877, c. 416. 549. [Am'd, 1877, 1879, 1886.] When the right to arrest depends upon the nature of the action.1 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. To recover a fine or penalty. 1 When this Code was first enacted, the substantial provisions of what are now subdivisions 2 and 4 of 8 549 (except the first four lines of subd. 2, 1. e., to the words, or to recover a chattel"), were included in & 550, and were thus brought under the heading" Where the right to arrest depends partly upon extrinsic facts." By the amendatory acts of 1879 and 1886, they were transferred (somewhat amended) to 8 549, and thus brought under the heading "Where the right to arrest depends upon the nature of the action." This has affected the relation of 1487 to these sections. See the cases cited under that section in the Table of Cited Cases, post; also Segelken v. Meyer, 94 N. Y. 473. 2. To recover damages for a personal injury; an injury to property, including the wrongful taking, detention or conversion of personal property; breach of a promise to marry; misconduct or neglect in office, or in a professional employment; fraud, or deceit; 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 conversion 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 counsellor, 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 moneys, funds, or property held or owned by the State, or held or owned officially or otherwise for or in behalf of a public or governmental 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. 4. 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. From Co. Proc., § 179. Am'd by L. 1877, c. 416; L. 1879, c. 542; L. 1886, c. 672. § 550. [Am'd, 1877, 1879, 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. New. Intended to provide a substitute for the writ of ne exeat, abolished by § 548. Am'd by L. 1877, c. 416 and c. 422; L. 1879, c. 542; L. 1886, c. 672. 1 See foot-note to § 549. § 551. [Am'd, 1877, 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. In either of the cases specified in section 549, 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 judgment. New. Am'd by L. 1877, c. 416 and c. 422; L. 1886, c. 672. { 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 the property obtained thereby; does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. New. § 553. [Am'd, 1877.] etc. Woman not to be arrested, except, 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. From Co. Proc., § 179, last sentence. Am'd by L. 1877, c. 416. § 554. [Am'd, 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. Am'd by L. 1877, c. 416. 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, excep for his personal act. From 2 R. S. 348 (Part 3, c. 6, tit. 1), % 0. 148 ARTICLE SECOND. Granting, executing, and vacating or modifying the order of arrest. Sec. 556. Order required for arrest; how granted. 557. Proof necessary to procure order. 558. When order may be granted; effect of complaint subsequently made. 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. 564. General provision as to privilege from arrest; discharge of privileged 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 569-571. [Repealed]. 572. Supersedeas, unless defendant is charged in execution, etc. § 556. [Am'd, 1877.] Order required for arrest; how granted. An order for the arrest of the defendant, except as otherwise prescribed in section 551 of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge. From Co. Proc., § 180. Am'd by L. 1877, c. 416. § 557. [Am❜d, 1877, 1879.] Proof necessary to procure order. The order may be granted, in a case specified in section 549 of this act, where it appears by the affidavit of the plaintiff or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section 550 of this act, upon the like proof that a sufficient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in that section. The affidavit may also contain any statement, tending to determine the amount of bail to be required. From Co. Proc., § 181. Am'd by L. 1877, c. 416; L. 1879, c. 542. § 558. [Am'd, 1877, 1879, 1886.] When order may be granted; effect of complaint subsequently made. Subject to the provisions of the last preceding section, the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons, but at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint fails to set forth a sufficient cause of action, as required by section 549 of this act, but where the order is applied for after the filing or service of the complaint the court before granting the same may without notice direct the service of an amended complaint so as to conform to the allegations required in subdivisions two and four of section 549 of this act. From Co. Proc., § 183. Am'd by L. 1877, c. 416; L. 1879, c. 542; L. 1886, c. 672. 317 § 559. [Am'd, 1879.] Security, upon order of arrest made by a judge. Except where the action is brought for a cause specified in subdivision third of section 549 of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars. From Co. Proc., § 182. Am'd by L. 1879, c. 542. § 560. Id.; upon order of arrest granted by the court. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form, and the security to be given thereupon, must be such as the court prescribes. New. Covers case of a no exeat. See §§ 550, 551. § 561. [Am'd, 1877.] Contents of the order; to whom directed; when to be executed. The order must be subscribed by the plaintiff's attorney, and, except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant, if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case, he cannot be arrested afterwards, under the same order. From Co. Proc., § 183. Am'd by L. 1877, c. 416. § 562. [Am'd, 1877, 1879.] Copies of papers to be delivered to defendant; originals to be filed. The order of arrest, or, where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and, in either case, the papers upon which the order was granted, with the undertaking, if any; must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy thereof. The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in section 590 of this act. From Co. Proc., § 184. Am'd by L. 1877. c. 416; L. 1879, c. 542. § 563. Arrest; how made. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law. From Co. Proc., 185. |