Injury to person, whether defendant be a resident or non-resident.

But in actions of assault and battery, it has been held that the courts will hesitate to grant an order of arrest unless the defendant is a non-resident, or is about to remove from the State, or unless in extreme cases of outrageous batteries. Davis v. Scott, 15 Abb. 127; Knickerbocker Life Insurance Company v. Ecclesine, 6 Abb. N. S. 9, 23.

In an action for a false imprisonment, the defendant may be arrested, and the order maintained, unless it appears that the plaintiff, in the original action, had a reasonable cause for the arrest. When such fact appears, no arrest can be maintained in the action for false imprisonment, even if, under the rules of evidence, only nominal damages could be recovered in the original action. Gordon v. Upham, 4 E. D. Smith, 9. So, where a party has, in good faith, merely stated his case to a magistrate, and that officer thereon erroneously causes the arrest of a third party against whom no arrest can be maintained, such action, on the part of the party making the complaint, does not render him. liable to an action for false imprisonment, or to an arrest at the suit of the party so aggrieved. Von Latham v. Rowan, 17 Abb. 237; S. C., 38 Barb. 339, sub nom. Von Latham v. Libby. In an action for a limited divorce on the ground of cruel, and inhuman treatment, the defendant may be arrested, as this action comes clearly within the definition of injuries to the person. An action for a divorce on the ground of adultery is not, however, an injury to person or character within the meaning of section 179, subdivision 1 of the Code. M'Intosh v. M' Intosh, 12 How. 289.

The right to arrest a defendant in actions for injuries to the relative rights of the person is well established under the Code. Thus an order for the arrest of a defendant has been allowed in an action for criminal conversation with the plaintiff's wife. Delamater v. Russell, 4 How. 234; S. C., 2 Code R. 147; Straus v. Schwarzwaelden, 4 Bosw. 627.

So the order has been allowed in an action for the seduction of the plaintiff's daughter. Taylor v. North, 3 Code R. 9. And the general rule has been laid down that the right of arrest exists in every case of constructive injury to the plaintiff, arising out of the relation of master and servant, parent and child, or guardian and ward. Delamater v. Russell, 4 How. 334; S. C., 2 Code R. 147; and see 2 Kent's Com. 39; 3 Bla. Com. 139.

f. Injuries to character. Under the head of injuries to character may be classed all actions for slander, libel and malicious

Injuring, taking, detaining or converting personal property.

prosecution. But it has been held that an order of arrest will not be allowed in every case in which the Code provides that the order may issue. That the granting of the order is in all cases discretionary, and it is only where the defendant is a non-resident or a transient person that an order of arrest will be granted in an action for slander or libel. Davis v. Scott, 15 Abb. 127; Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. N. S. 9, 23. In actions for malicious prosecution, the courts require that the facts set forth in the affidavit shall be prima facie evidence of a want of probable cause, or the order of arrest will be vacated and the defendant discharged. Vanderpool v. Kissam, 4 Sandf. 715. See Roberts v. Bayles, 1 id. 47; Bulkley v. Keteltas, 6 N. Y. (2 Seld.) 384.

g. Injuring, taking, detaining or converting personal property. Under the provisions of the Code, as under the former practice, the defendant may be arrested for injuring, or for wrongfully taking, detaining or converting property. Code, $179, subd. 1.

The word "property," as used in the Code, includes property real and personal. Code, § 464. But as the word is used in subdivision 1 of section 179 of the Code, its meaning is limited to personal property only. The word detaining, if used alone, might be applied to real estate; but the expressions "injuring," "taking" and "converting," are used in the same sentence, and apply to the same subject-matter, and these expressions cannot be applied to real property. Therefore, it is evident that the Code furnishes no authority for the arrest of a defendant in an action brought against him to recover the possession of real property, with damages for withholding the same. Merritt v. Carpenter, 2 Keyes, 462; S. C., 33 How. 428; Brush v. Mullen, 12 Abb. 242; Fullerton v. Fitzgerald, 10 How. 37; S. C., 18 Barb. 441. Neither does this subdivision of section 179 authorize the arrest of a defendant in an action for the recovery of the possession of personal property. The only provision authorizing an arrest in such cases is to be found in the third subdivision of that section. Chappel v. Skinner, 6 How. 338. If the facts necessary to sustain an arrest under this latter subdivision cannot be substantiated by affidavit where a right of action for the recovery of personal property exists, and the arrest of the defendant is for any reason important, it may still be possible to procure the arrest of the defendant in an action to recover damages for the

Injuring, taking, detaining or converting personal property.

taking, detention, or conversion of the property. The advisability of adopting this latter form of action should be carefully considered if the right of election exist, as an election once made will be final, and the plaintiff cannot hold the defendant to bail under the first subdivision of section 179, and afterward have the property delivered to him before judgment under the provisions of sections 208, 211 of the Code. Chappel v. Skinner, 6 How. 388.

A plaintiff may be entitled to demand the arrest of a defendant in an action on two or more grounds arising from as many distinct wrongs received at his hands and forming separate causes of action. Thus, he may unite in the same complaint a cause of action for deceit in the sale of personal property, with a cause of action for the taking and conversion of personal property. Both are injuries to property, and the law affords the injured party the same remedy in either case. Cleveland v. Barrows, 59 Barb. 364. Fraud in the sale of property is therefore a ground for an arrest under subdivision 1, as well as under subdivision 4 of section 179. Ib.

A party to whom property is loaned under an agreement to return the same, or pay for it, within a specified time, becomes liable to an action for a conversion, by so disposing of the property as to be unable to return it, and he is also liable to arrest in such action. The payment of a part of the stipulated price, and the delivery of a note for the balance, will not change the character of the liability to a simple debt, nor operate as a waiver of the liability of the defendant to arrest in an action upon the original cause of action, commenced after the dishonor of the note and its return to the maker. Person v. Civer, 29 How. 432; See Dubois v. Thompson, 1 Daly, 309; S. C., 25 How. 417.

The election by a creditor to affirm a contract as to a part of the claim will not deprive him of the right to maintain an action for fraud in the contract as to the residue of the claim, and to cause the arrest of the defendant in such action. Neither can an unliquidated demand for damages, arising out of a tortious act, be regarded as a debt within the provisions of the statute authorizing the discharge of insolvent debtors. The arrest may be maintained notwithstanding the discharge. Zinn v. Ritterman, 2 Abb. N. S. 261. But, where the cause of action is founded upon a contract, as in case of an action against a carrier for a breach of duty, the plaintiff cannot evade the effect of a dis

Injuries, etc., to personal property - Injuries to real property.

charge by bringing an action sounding in tort. Campbell v. Perkins, 8 N. Y. (4 Seld.) 430.

The fact that the acts relied upon to sustain an action of trover were authorized by the express terms of a contract will not free the defendant from liability to arrest if the contract itself is void.

Thus an action of trover may be maintained and the defendant arrested, where he refuses to return stock pledges left with him as collateral security for a usurious loan, even though he was, by the terms of the contract, authorized to hypothecate the stock and had hypothecated it before such demand was made. The theory of the action is, that the defendant's possession was wrongful from its commencement, and his disposition of the stock tortious; and that the usury vitiated that part of the agreement which authorized him to use, transfer or hypothecate the stock. Cousland v. Davis, 4 Bosw. 619. See Schroeppel v. Corning, 6 N. Y. (2 Seld.) 107. A defendant cannot be arrested under subdivision 5 of section 179, where the offense of disposing of property, with intent to defraud creditors, was committed in a foreign country, and all the parties to the transaction were foreigners. But a different rule exists when the defendant takes the property of another unlawfully in a foreign land and brings it here. In such a case the action is brought for the property, and the right to recover for it here is based, not merely upon a fraud committed abroad, but upon the continued possession of the property obtained through such fraud; and then the act complained of forms the cause of action and not the mere cause for imprisonment. Blason v. Bruno, 21 How. 112; S. C., 33 Barb. 520; 12 Abb. 265; Northern Railway of France v. Carpentier, 13 How. 222; S. C., 3 Abb. 259; Brown v. Ashbough, 40 How. 226. The defendant may be arrested in the latter case, although no arrest could have been made for the same offense in the place where the fraud was committed. City Bank v. Lumley, 28 How. 397 7; Johnson v. Whitman, 10 Abb. N. S. 111; Brown v. Ashbough, 40 How. 226. See De Witt v. Buchanan, 54 Barb. 31. The lex fori and not the lex loci governs in such cases. Ib.

h. Injuries to real property. No arrest can be made under subdivision 1 of section 179, in an action relating to real property. The provisions of this subdivision relate to personal and not to real property. Merritt v. Carpenter, 33 How. 428; S. C., 2

Fines or penalties - Promise to marry-Money embezzled.

Keyes, 162; Brush v. Mullen, 12 Abb. 242; Fullerton v. Fitzgerald, 10 How 37; S. C., 18 Barb. 441.

h. Fines or penalties. By the second subdivision of section 179 the defendant is rendered liable to arrest in an action for a fine or penalty. The second section of the non-imprisonment act also retained the right to arrest in actions of this nature, ante, 605.

Under the practice as existing in England a distinction is måde in regard to the character in which the plaintiff sues, and the right to arrest the defendant is made to depend thereon. As, where the action is brought by the party injured, the statute is remedial; but penal where brought by a common informer. Bones v. Booth, 2 W. Bla. 1227. In the first instance, the defendant could be held to bail; but in the latter this right was not allowed. Turner v. Warren, 2 Strange, 1079; Presgrave v. -, 1 Comyn, 75.

j. Promise to marry. Any male defendant may be arrested in an action to recover damages for a breach of marriage promise. But this right is limited to actions brought by females, for, by subdivision 5, no female can be arrested in any action except for a willful injury to person, character or property. Siefke v. Tappey, 3 Code R. 23.

k. Money received or property embezzled by public officer. It is also provided in the same subdivision that public officers, attorneys, solicitors and counselors shall be subject to arrest in an action for money received, or property embezzled or misapplied. Code, § 179, subd. 2.

An attorney is liable to arrest for retaining money received from the defendant in an action, when such money should have been paid to the plaintiff. In such cases an order of arrest will be granted as of course. Gross v. Graves, 2 Rob. 707; S. C., 19 Abb. 95. And where an attorney receives money from his client, with instructions to pay it to a third party, and refuses to return it when such instructions are revoked, he is liable to an arrest, although acting in good faith. Schadle v. Chase, 16 How. 413. See Grant v. Chester, 17 id. 260; S. C., 8 Abb. 357. And, in general, an attorney is liable to an arrest for any violation of professional duty in this regard, whether he be an attorney of this or another State. Yates v. Blodgett, 8 How. 278. See Blason v. Bruno, 21 id. 112; S. C., 33 Barb. 520; 12 Abb. 265; City Bank v. Lumley, 28 How. 397.

So, while a public officer of this State may be arrested for