Actions between partners-Waiver of exemption.

But a foreign judgment is never conclusive between the parties, and a person who has recovered a judgment upon a cause of action in a foreign court may afterward, at his election, sue in the courts of this State upon the judgment so recovered, or upon the original cause of action. Arthurton v. Dalley, 20 How. 311. See Peel v. Elliott, 16 id. 485; S. C., 28 Barb. 200; 7 Abb. 433; Greenbaum v. Stein, 2 Daly, 223; see note to Andrews v. Herriott, 4 Cow. 510. And where a judgment or decree of a foreign tribunal shows that it was for funds embezzled or misapplied by the defendant acting in a fiduciary capacity, the plaintiff may rely upon the original cause of action in bringing his action here, and causing the defendant's arrest. Arthurton v. Dalley, 20 How. 311.

1. Actions between partners. In actions between partners, neither can be arrested at the suit of the other. If the partnership capital be misappropriated, no remedy is furnished in an action at law unless a balance be struck and a promise to pay given; and, in that case, the action would be based upon the promise and not on the fraud. Smith v. Small, 54 Barb. 223 ; Cary v. Williams, 1 Duer, 667.

m. Waiver of exemption. Wherever the State or federal laws have conferred the right of exemption from arrest, from motives of public policy, and not as a matter of convenience to the individual, the person on whom such right has been conferred cannot waive such privilege. See Valarino v. Thompson, 7 N. Y. (3 Seld.) 576; Davis v. Packard, 7 Pet. 276.

But wherever such privilege is personal, as in case of a witness, sheriff or attorney, it may be waived by act of the parties. Pollard v. Union Pacific Railroad Company, 7 Abb. N. S. 70; Stewart v. Howard, 15 Barb. 26; Cole v. M' Clellan, 4 Hill, 59; Brown v. Getchell, 11 Mass. 11, 14.

So, where a plaintiff has a clear and undeniable right to arrest the defendant, for a cause of action falling under one of the classes of cases in which this right is expressly given by the Code, or by the non-imprisonment act, he may waive his right to the provisional remedy, by joining with the cause of action for which the right to arrest is given, causes of action to which no provisional remedy can be extended. Thus, where a complaint combines a cause of action arising from a failure to pay over money received by an agent in a fiduciary capacity, with a cause of action arising on contract, and for which no arrest can

In what cases an arrest may be made.

be had, the right to arrest for the former cause of action will be destroyed by its improper joinder with the latter cause of action. Lambert v. Snow, 9 Abb. 91; S. C., 17 How. 517; 2 Hilt. 501. Neither can an order of arrest be maintained where the complaint sets forth a cause of action for damages for the fraud and deceit of the defendant in obtaining goods on credit, joined with a cause of action on the promissory notes given by the defendant in the same transaction. Brown v. Ashbough, 40 How. 226. And, in general, if there is one principal cause of action in the complaint which will not justify an order of arrest, it will be vacated on the application of the party against whom it is made. Ely v. Steigler, 9 Abb. N. S. 35. See Robinson v. Flint, 16 How. 240; Redfield v. Frear, 9 Abb. N. S. 449; Petrie v. Fitzgerald, 1 Daly, 401.

ARTICLE IV.

IN WHAT CASES AN ARREST MAY BE MADE.

Section 1. Under the non-imprisonment act.

a. Promise to marry. Any male defendant is liable to an arrest in an action for damages for a breach of marriage promise, under the exception to the general application of the non-imprisonment act, contained in chapter 300, section 2 of the laws of 1831. Prior to the passage of this act any defendant was liable to arrest in any action on contract; and, by the provisions of the second section of the act, the former practice was retained in force so far as it applies to remedies allowed in actions of this nature.

b. Fines and penalties. The same section of this act authorizes the arrest of a defendant in an action for a fine or a penalty. c. Money collected by public officer. Public officers, also, are liable to arrest in actions against them for moneys collected in an official capacity. And this liability attaches whether the cause of action arose in a foreign country, and by the act of an agent or officer of that country, or by an officer of this State. Peel v. Elliott, 16 How. 485; S. C., 28 Barb. 200; 7 Abb. 433; Republic of Mexico v. Arangoiz, 5 Duer, 643. As to who are public officers see 1 R. S. 95 (86).

d. Misconduct in office. So, also, public officers are liable to arrest for any misconduct or neglect in office. Laws of 1831, ch. 300, § 2. To this general liability of public officers to arrest for

Misconduct or neglect in professional employment.

misconduct or neglect in office there is one exception. Commissioners, superintendents of repairs and collectors on any canal are exempt from arrest in any civil suit for any act done or omitted to be done in the exercise of official duty. 1 R. S. 224, $43.

e. Misconduct or neglect in professional employment. Misconduct or neglect in professional employment was also allowed to remain a ground on which to base an order of arrest under the non-imprisonment act. See Laws of 1831, ch. 300, § 2. The non-payment of money collected by an attorney, for his client, falls within the meaning of this provision of the statute. Stage v. Stevens, 1 Denio, 267, overruling Bohanan v. Peterson, 9 Wend. 503.

f. Non-payment of costs, etc. By the laws of 1847, chapter 390, section 2, it is provided that no person shall be imprisoned for non-payment of interlocutory costs, or for contempt of court in not paying costs, except attorneys, solicitors and counselors and officers of court, when ordered to pay costs for misconduct as such, and witnesses, when ordered to pay costs on attachment for non-attendance. See Gardner v. Tyler, 5 Abb. N. S. 33; S. C., 36 How. 62; Buzard v. Gross, 4 How. 23; Vreeland v. Hughes, 2 Code R. 42; Giles v. Halbert, 12 N. Y. (2 Kern.) 32. As a substitute for such imprisonment, the third section gives authority for the issuing of process in the nature of a fieri facias, to be enforced against the personal property of the party liable for such costs. Ib.

But a judgment debtor may be committed for a general contempt in supplementary proceedings, as for the non-payment of a judgment and costs under an order previously granted. The act abolishing imprisonment for non-payment of costs does not apply to such cases. People ex rel. Kearney v. Kelley, 22 How. 309; S. C., sub. nom. Kearney's Case, 13 Abb. 459. See also Contempts," post.

g. Suit pending or judgment obtained. The right to arrest in the cases mentioned in the preceding sections was not given by the non-imprisonment act, but was allowed to remain as it previously existed under the Revised Statutes, by the exceptions to the general provisions of that act contained in section 2. The third section provides for the arrest of a defendant in all cases where, by the preceding provisions of the act, no arrest could be made, but limits the remedy to cases where a suit has

Suit pending or judgment obtained.

been commenced, or a judgment or decree obtained in a court of record. By the amendment of this act in 1838, an arrest can be had on a judgment rendered in a justice's court, as well as in a court of record, provided the judgment exceeds the sum of $25, exclusive of costs, and a transcript thereof has been filed and docketed in the clerk's office, as provided by statute. Laws of 1838, ch. 138, § 1. The same effect was subsequently given to judgments rendered before the justices' courts of the cities of Albany, Troy and Hudson. Laws of 1848, ch. 48. Before a warrant to arrest the defendant can issue, satisfactory evidence must be given by affidavit to the officer to whom application is made, showing that there is a debt or demand due to the plaintiff from the defendant, amounting to more than $25, exclusive of costs, specifying the nature and amount thereof as near as may be, and that the defendant cannot, according to the provisions of this act, be arrested or imprisoned. Laws of 1838, ch. 138, § 2. See Broadhead v. McConnell, 3 Barb. 175; Matter of Johnson, 7 Rob. 269; Green v. Gonzales, 2 Daly, 412. So, one or more of the following particulars must be established:

1. That the defendant is about to remove any of his property out of the jurisdiction of the court in which such suit is brought, with intent to defraud his creditors. Vredenburgh v. Hen

dricks, 17 Barb. 179; or,

2. That the defendant has property or rights in action which he fraudulently conceals; or that he has rights in action, or some interest in any public or corporate stock, money or evidences of debt, which he unjustly refuses to apply to the payment of any judgment or decree which shall have been rendered against him, belonging to the complainant. People v. Recorder of Albany, 6 Hill, 429;

3. That he has assigned, or removed, or disposed of, or is about to dispose of, any of his property, with intent to defraud his creditors; or,

4. That the defendant fraudulently contracted the debt or incurred the obligation respecting which such suit is brought. People v. Recorder of Albany, 6 Hill, 429.

Whenever these facts are established to the satisfaction of the officer to whom the application is addressed, a warrant may issue for the arrest of the defendant, and the defendant be arrested thereon.

But these facts must appear by affidavit, and that affidavit

Trover or conversion of property.

must contain evidence which, in the judgment of the officer, amounts to proof of the charge. Vredenburgh v. Hendricks, 17 Barb. 179; Broadhead v. McConnell, 3 id. 175; Green v. Gonzales, 2 Daly, 412. And before a warrant can be granted under this act, it must appear that the defendant is not, and cannot be arrested and imprisoned in the action on mesne process. Matter of Johnson, 7 Rob. 269.

The assignee of a judgment rendered in an action founded on fraud has all the rights to remedies possessed by the original creditor. The act gives the remedy to the plaintiff; and where the relation of the parties remains the same, and the cause of action has not been substantially changed, the right to the remedies given in the action pass to the assignee. King v. Kirby, 28 Barb. 49.

h. Trover or conversion of property. The act of 1831 applied only to actions arising on contracts. Therefore actions in form ex delicto are in general not affected by this act, but remain as under the Revised Statutes.

Under the Revised Statutes the defendant in an action of trover, or conversion of personal property, could be arrested as of course, and the rule has not been changed by subsequent legislation; 2 R. S. 348 (359), § 7, except that an order of arrest is necessary. See Order of Arrest.

i. Trespass in taking personal property. The same rule applies to trespass for the taking of personal property. This, under the old practice, was a bailable action, and as such it now remains. 2 R. S. 348 (359), § 7.

j. Replevin. Whenever a plaintiff can maintain an action of replevin he can also maintain an arrest of the defendant. This action and its accompanying remedies were not affected by the act of 1831. 2 R. S. 348 (359), § 7.

k. Trespass upon land. The same section of the Revised Statutes gives the right to arrest in actions for trespass upon lands.

Section 3. Arrest under the provisions of the Code.

a. Non-residents and persons about to remove. The first clause of the first subdivision of section 179 relates to the arrest of non-residents or of persons about to remove from the State. All the other cases mentioned in the first subdivision of this section relate to all defendants, whether residents, non-residents or persons about to remove from the State. Where a non