Reducing bail-Appeal from order. to reduce the amount of bail. The questions involved in the two motions depend on entirely different facts. On'a motion to vacate, the question involved is, whether the defendant has been guilty of conduct that would render him liable to arrest; but, on a motion to reduce the amount of bail, the question relates to the amount of injury sustained by the plaintiff, and the amount of bail necessary to secure the defendant's appearance, to respond to the judgment. A motion to vacate an order of arrest cannot, therefore, include a motion to reduce the amount of bail, although the motion asks for other and further relief. Smith v. Spalding, 30 How. 339; S. C., 3 Rob. 615; Baker v. Swackhamer, 5 How. 251; S. C., 3 Code R. 248. Where a motion to reduce the amount of bail has been denied, it cannot be renewed without leave of the court. Lovell v. Martin, 21 How. 238; S. C., 12 Abb. 178; Union Bank v. Mott, 6 id. 315. at Notice of Motion to Reduce Bail. (Title of cause.) day of Please take notice, that on an affidavit, of which a copy is annexed, and on all the papers filed and served in this action, the undersigned will move the court, at a special term, to be held , on the next, at o'clock in the forenoon, or as soon thereafter as counsel can be heard, that the amount of bail required by the order of arrest in this action be reduced, and for such other and further relief as may be just, and for the costs of this motion. (Date.) (Signature.) Order Reducing Bail. (Commence as in order vacating an order of arrest and continue), ORDERED: That the bail taken, or to be taken, by the sheriff on the order of arrest of Y. Z., in this action, be reduced to dollars. (Date.) 1. Appeal from order. An appeal from an order of a county judge, vacating an order of arrest made by him, will lie directly to the general term of the supreme court. Lancaster v. Boorman, 20 How. 421. In the same manner an appeal will lie to the general term from an order made at special term denying a motion to vacate an order of arrest. Colonial Insurance Co. v. Force, 8 How. 353. And the appeal will not be prejudiced by False imprisonment. the fact that, while it is pending, judgment has been entered against the defendant, and the bail have become charged. Pacific Mutual Insurance Co. v. Machado, 16 Abb. 451. But no appeal can be taken to the court of appeals from an order granting or refusing a provisional remedy, or from an order vacating or refusing to vacate such remedy. Genin v. Tompkins, 1 Code R. N. S. 415; Miannay v. Blogg, 41 N. Y. (2 Hand) 521. The reduction of bail by a judge at chambers is a matter of discretion, with which the courts will not under ordinary circumstances interfere. Hart v. Kennedy, 15 Abb. 290; S. C., 39 Barb. 186; 24 How. 425. m. False Imprisonment. Any defendant who has been arrested in a civil action, without due authority of law, may maintain an action for false imprisonment against the parties instrumental in making and procuring such arrest. Thus, where a party is arrested under a wrong christian name, the officer making the arrest, and all other persons concerned therein, are liable in an action of false imprisonment, even though the person arrested was the one intended in the order. Miller v. Foley, 28 Barb. 630; Griswold v. Sedgwick, 6 Cow. 456. See Farnham v. Hildreth, 32 Barb. 277; Hoffman v. Fish, 18 Abb. 76. And, in general, if a person unlawfully sues out process of arrest against another, and causes him to be imprisoned, and the process is afterward set aside because illegally issued, the defendant is entitled to recover damages for the wrong done him, without regard to the motives of the party causing the arrest, or the circumstances attending and explaining the act. Parsons v. Harper, 16 Gratt. (Va.) 64; McQueen v. Heck, 1 Cold. (Tenn.) 212; Brown v. Chadsey, 39 Barb. 253. See Searll v. McCracken, 16 How. 262; Williams v. Garrett, 12 id. 456; Northern Railway Company of France v. Carpentier, 4 Abb. 47; Merchants' Bank v. Dwight, 13 How. 366; S. C., 6 Duer, 659. This action will lie where a party has been arrested on an order, and for a cause of action for which this remedy is not given by statute; or where the cause of action is one on which an order of arrest might properly issue, but where the plaintiff in the action fails to establish the facts on which alone an arrest might be based; or where the order on which the arrest was made was void ab initio. Ib. Delivery of papers to plaintiff's attorney. n. Delivery of papers to plaintiff's attorney. Papers used on a motion to vacate an order of arrest, or to reduce the amount of bail, when such motion is made upon notice, must be filed in the office of the clerk of the county where the venue is laid. Savage v. Relyea, 3 How. 276; S. C., 1 Code R. 42; Anonymous, 5 Cow. 13, Rule 3, Supreme Court. And when the motion is made in another county, the clerk must deliver to the party prevailing in the motion, unless the court shall otherwise direct, a certified copy of the rough minutes showing what papers were used or read upon such motion, with a note of the decision thereon, or the order directed to be entered properly certified. Rule 4, Supreme Court. o. Filing papers with clerk. It is the duty of the party to whom such certified papers are delivered to cause the same to be filed, and the proper order entered in the proper county within ten days thereafter, under the penalty of losing the benefit of the order. Rule 4, Supreme Court. The plaintiff's attorney should also file the undertakings given upon procuring an order of arrest. Rule 5, Supreme Court. The order or process, and the original affidavits on which an arrest is made, must also be filed with the clerk by the sheriff within ten days after the arrest. Rule 6, Supreme Court. And it is a general rule that when any order on a non-enumerated motion is entered, all the papers used on the motion shall be filed with the clerk, or the same may be set aside as irregular. Rule 7, Supreme Court. p. Order of arrest to justify arrest on execution. In some cases it becomes necessary that the plaintiff should obtain an order of arrest and procure its service, or waive all right to an execution against the person of the defendant after judgment. Where the cause of action and the cause of arrest are identical, a judgment for that cause establishes conclusively a liability to arrest, and an execution against the person follows as of course. But if a plain and concise statement of the facts constituting the cause of action does not, of itself, show liability to arrest, no execution against the person can issue upon the judgment unless an order of arrest has been served before judgment. Ward v. Henry, 40 N. Y. (1 Hand) 124; Code, § 288. Thus in order to obtain an execution against the person where the complaint alleges the contracting of a debt in a fiduciary character, it is necessary to obtain an order of arrest before judg ment. Order of arrest to justify arrest on execution. Wood v. Henry, 40 N. Y. (1 Hand) 124. So where the action is upon contract to recover a debt it will be necessary to procure an order of arrest before judgment, although the complaint improperly alleges fraud in contracting the debt, or that the defendant has disposed of his property with intent to defraud his creditors. Elwood v. Gardner, 10 Abb. N. S. 238; S. C. 45 N. Y. (6 Hand) 349; and see Albany Law Journal 307. But where the cause of action is founded on a tort, which will authorize the issuing of an order of arrest, and a contract is set forth in the complaint merely as a matter of inducement, an execution may issue against the body although no arrest was made before judgment. Lembke's Case, 11 Abb. N. S. 72. See Townsend v. Hendricks, 40 How. 143. Thus a complaint setting forth a cause of action, equivalent to the old action of trover, will authorize an execution against the person, although the complaint sets forth a contract of bailment and demands judgment for the sum received by the defendant as bailee. Lembke's Case, 11 Abb. N. S. 72. But in all cases in which an order of arrest has been obtained before judgment and has been vacated, the right to an execution against the person is destroyed. Stelle v. Palmer, 11 Abb. 62. CHAPTER II. REPLEVIN, OR CLAIM AND DELIVERY. ARTICLE I. REPLEVIN IN GENERAL. Section 1. History and use as a remedy. a. Origin and former use at common law. According to the Mirror, the old action of replevin was devised by Glanvil, Chief Justice to King Henry the Second, for the purpose of affording a remedy against distress wrongfully taken. Blackstone assumes that this was the only use made of the remedy, but the position he assumes is evidently not well taken, and is not warranted by the books. The old authorities are that "replevin lies for goods taken tortiously, or by a trespasser, and that the party injured may have replevin or trespass at his election." The action was usually brought to try the legality of a distress, but was not confined to this alone, but would lie for any unlawful taking of a chattel. Stauff v. Maher, 2 Daly, 142; Ely v. Ehle, 3 N. Y. (3 Comst.) 506; Pangburn v. Patridge, 7 Johns. 140; Mason v. Dixon, Sir Wm. Jones, 173; Bishop v. Montague, Cro. Eliz. 824. The object of the remedy was, to restore to the party from whom chattels had been wrongfully taken, all of his former right to their control, upon the giving of security to prosecute the action, and, in case the right to the property should be adjudged against him, to restore it to the true owner. At common law the party claiming the right to the possession of personal property could enforce his claim by no process other than the writ of replevin, which issued out of chancery, commanding the sheriff to deliver the property to the owner, and afterward do justice in respect to the matter in his own county court. This form of procedure was attended with two serious disadvantages. As the remedy was chiefly employed in cases of distress, the nature of the property distrained demanded a prompt and efficient remedy to prevent serious loss to the owner. This could not be had at common law. Writs for all England |