p. 501George Lambert v. Joseph Snow.Headnote
An order of arrest must relate to the whole cause of action presented by the complaint, and not to only a part of it.Where a complaint alleges a cause of action for which an order of arrest had been previously obtained; and an ordinary demand arising on contract, for which no arrest would be granted; Held, that by thus uniting causes of action, to both of which the order did not extend, the right to the order of arrest was waived.
Where two demands, arising on contract, exist against a party, one of which has arisen in a fiduciary capacity, and in respect to which his arrest is desired, that would be a good reason for bringing separate actions. Per Hiltox, J.
Appeals from two orders made at special term, denying applications to vacate an order of arrest. The facts are fully stated in the opinion.
E. More, for the appellant,
cited Code, §§ 179, 181, 200, 289, sub. 3; D’Arrangois v. Republic of Mexico, 5 Duer, 641 ; Corwin v. Freeland, 2 Seld. 564; Dan v. Thompson, MSS., Superior Court, General T., 1859; Robinson v. Flint, 16 How. Pr. R. 243; Chapman v. Forsyth, 2 How. Pr. R. 202; White v. Platt, 5 Denio, 269 ; Stilt v. King, 8 How. Pr. R. 300; Goodrich v. Dunbar, 17 Barb. 644 ; Holbrook v. Homer, 6 How. Pr. R. 86.Francis Byrne, for the respondent.
The plaintiff, on an affidavit alleging that he had consigned to the defendant a quantity of engravings, of the value of $396.47, to be sold by the latter as. his
p. 502agent, and that the proceeds of such sale to said value should be returned to the plaintiff, the defendant paying the expenses in making sales; that the defendant had sold and disposed of the goods, and had refused, after demand, to pay such proceeds ; obtained an order of arrest. The defendant, on affidavits prepared by him, obtained an order to show cause why the order of arrest should not be discharged. The motion to discharge was denied, and the defendant appealed to the general term. Pending that appeal a copy of the complaint was served, and the defendant, having obtained leave thereto, again moved to discharge the order of arrest on the ground that the plaintiff had united in his complaint the cause of action on which the order of arrest was obtained, and a demand arising on contract, for which the defendant could not be arrested under the provisions of section 179 of the Code. The cause of action so united is predicated of a copartnership heretofore existing between plaintiff and defendant, a dissolution thereof, and an accounting, upon which it appeared that the defendant was indebted to the plaintiff $1,050, and which he promised to pay. The second motion to discharge the arrest was denied, and the defendant appealed. Both causes of action arise upon contract, and might be united, whether they grew out of the same transaction or not. § 167, sub. 2.
The right to arrest (§ 179) is a provisional remedy, which may or may not be resorted to, and which is granted in addition to the right to recover, by judgment, the claim asserted The provisions of the Code show clearly that the order to hold to bail was intended to be independent of the pleadings, and in some cases may rest upon facts totally distinct from the cause of action; (Corwin v. Freeland, 2 Seld. 563); but I think it equally clear that, when an order of arrest is obtained, it must relate to the whole case presented, and not to apart of it. Lf the order is applied for in an action to recover moneys which were received in a fiduciary capacity, the plaintiff is entitled to an order of arrest on making proof of that fact; but if the action be for any other claim in addition thereto, then there is no provision
p. 503for granting an order. § 179. The order may be made where it shall appear that “ the case is one of those mentioned in section 179.” § 181. The defendant may give bail to the effect that he shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. § 187. These sections do not contemplate or embrace distinct causes of action, for only one of which a defendant can be arrested. The bail would assume the duty of having their principal in readiness as well for a cause of action for. which he could not be arrested, as for one for which he could be and was arrested. The complaint embracing causes of the same class or character, the judgment would be single, not double. There would not be a judgment for the amount of the claim for which the arrest was ordered, and another for the claim distinctly averred as a separate cause of action. The judgment would necessarily be, if the plaintiff succeeded in establishing both claims, for the united amount of each.
Having arrived at this conclusion, there seems to be no doubt that the order of arrest should have been discharged on the second application therefor. Not upon the ground that the order was improperly held on the facts originally appearing, but upon the ground that the plaintiff, by uniting causes of action to both of which the provisional remedy did not extend, waived the order of arrest. It may be said that the better practice would be to move a discharge of the execution if issued against the person, but there does not seem to be any good reason why the responsibility of the bail should be continued beyond the time when the plaintiff has, by his own act, absolved them. I have not been successful in finding any case in which this question has been considered, and it must necessarily be decided without reference to any authority other than a construction of the provisions of the Code referred to. For the reasons assigned, I think the order at special term should be reversed, with $10 costs of the appeal.
In reference to the appeal from the order denying the first motion to discharge the order of arrest, it is only necessary to
p. 504say that, the order having been in effect discharged by the decision of the second appeal, that appeal will be dismissed without costs.
Ordered accordinglv.
On reflection, I am inclined to the opinion that the order made by me at special term was erroneous, and should be reversed for the reasons assigned by Judge Beady.
When a party has two claims against another, arising on contract, and one of which has been- incurred, or has arisen in a fiduciary capacity, it would be a good reason for bringing separate actions, and in that way the difficulty which this case presents might be avoided.