TITLE 2. Justice to wait one hour. [Co. Proc., § 64, part of subd. 15, amended by adding the exception; by requiring the offer to be filed when made; by adding the second sentence; by not allowing the offer to be given in evidence; by substituting the words, "a more favorable judgment," for the clause, "judgment for a greater amount, exclusive of costs, than has been specified in the offer"; by inserting "from the time of the offer"; and by substituting the last three words for "accruing subsequent to the offer". All these changes have been made so as to remove some obscurities, and conform the section to the language of the provisions of this act relating to the same subject in the principal courts of record.] § 2893. Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return, unless the parties sooner appear. [2 R. S., 233, Part 3, ch. 2, tit. 4, § 46 (3 R. S., 5th ed., 433; 2 Edm., 249), amended by substituting "duly" for "personally." See §§ 2910, 2912 and 2934, post.] ARTICLE THIRD. ORDER OF ARREST. PRELIMINARY NOTE. The following article effects substantial changes, with respect to the arrest of a defendant, in an action brought in a justice's court. They were imperatively demanded by the former anomalous condition of the statutes; and by the very great alteration, which has taken place in public sentiment, since the enactment of the Revised Statutes, with regard to the causes for which a defendant in a civil action should be arrested, either before or after judgment. The theory upon which the provisions of the R. S., and of the non-imprisonment act, seemed to have been based, was that the issuing of a warrant should depend, not so much upon the character of the act, with which the defendant is charged, as upon the fact of the non-residence of a party, who might suffer inconvenience, if the trial of the action should be delayed, until the lapse of the usual time between the service and the return of an ordinary summons. Indeed, the effect of the former statutes, was, not to confer upon the plaintiff the privilege of obtaining a warrant, which he might waive, if he was satisfied with the pecuniary responsibility of the defendant; but to require him to prosecute a non-resident defendant, in an action for tort, by warrant. Of course, such a theory is irreconcilable with the principles, upon which all the provisions of this act, relating to arrests in civil actions, have been framed; and, indeed, with any theory which obtains at the present day in the State. In determining what alterations it was expedient to propose in the former statutes on this subject, the first question to be considered related to the character of the act charged upon the de fendant, which should authorize his arrest. By the former statute he might have been arrested in any action, not "arising upon contract express or implied"; and also in an action sounding in contract (under the common law forms of pleading), where it was brought to recover money collected by a public officer, or for official misconduct or neglect of duty, or for damages for misconduct or neglect in any professional employment. L. 1831, ch. 300, §§ 30, 31 (3 R. S., 5th ed., 462; 4 Edm., 472). Those actions comprise, in substance, all those specified in the provisions of this act regulating arrests dependent upon the cause of action (§ 549), of which a justice of the peace has jurisdiction; and the commissioners were clearly of the opinion that the rule should be the same with respect to this question, as in a court of record; especially since a plaintiff, whose demand amounts to any sum between $50 and $200, has now with respect to most of the causes of action enumerated, an absolute election in which court to sue. Consequently no substantial changes were made in the enumeration of the causes of action which authorize the granting of an order of arrest. The next question was, whether the right to arrest, pending such an action, should be absolute; or whether the plaintiff should be required to show that special circumstances exist, which render it necessary to arrest the defendant before judgment. In a court of record, an order of arrest may be obtained at any time before judgment, whenever an execution against the person can issue upon the judgment; and, at first sight, it would seem as if the same rule ought to obtain in justices' courts. But we thought, after much reflection, that sound policy required a more limited rule for the latter tribunals. In courts of record, actions are not commonly brought without some deliberation, as the plaintiff becomes responsible for a considerable amount of costs; the damages claimed are considerable; there is the intervention of an attorney, who would ordinarily discourage an unnecessary or malicious arrest; and the order is granted by an impartial and experienced judge, who, in a trifling or doubtful case, may fix the bail at so small a sum as to render the arrest practically idle. But in justices' courts, actions are oftener brought hastily, in the heat of passion, and for the mere purpose of annoyance; the plaintiff incurs but little responsibility for costs; the damages claimed are often trifling; and, generally, there is no intervention of an attorney. For these reasons, and also because the granting of an order affects the time when the summons is returnable, the commissioners were of opinion, that the right to arrest the defendant should be substantially restricted to the same cases, where a warrant could be issued, under the former statute; that is, where, in consequence of non-residence, or some other fact shown, there appears to be a special necessity for it. It would be intolerable, if, for every trifling and, perhaps, involuntary trespass, by cattle or otherwise, a defendant was liable ART. 3. TITLE 2. Order of what cases it may be to be arrested, at the instance of an irritable or malicious neighbor; dragged before a justice; and compelled at once to try the cause or to give bail for his subsequent appearance. In this article, the order of arrest has been made a strictly provisional remedy; and a summons has been substituted for a warrant, as the process for the commencement of the action. This leaves it optional with the plaintiff to obtain an arrest, in cases where he is entitled to it, and enables his right to this process to be determined, independently of the decision upon the merits of the action. As the time between the issuing and the return of an ordinary summons is short, no provision has been made for the obtaining of an order, except simultaneously with the summons; and provision has been made in § 2901 for an application to vacate the order, either upon the defendant's being brought before the justice, or at any subsequent time before judgment. The giving of bail by the defendant is provided for in § 2963, post. SEC. 2894. Order of arrest; in what cases it may be granted. 2895. Id.; in what actions. 2896. Id.; upon what papers. 2897. Id.; its contents. 2898. Duty of constable. 2899. Return. When plaintiff notified must appear. 2900. Constable to keep defendant in custody. 2901. Motion to discharge from arrest. 2902. Effect of discharging defendant. 2903. When plaintiff must prove extrinsic facts. § 2894. At the time when the summons is issued, in an action arrest; in specified in the next section, the justice who issues the summons granted. must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases: 1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are non-residents thereof. 3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto. But such an order cannot be granted, where the defendant, against whom it is applied for, is a female. [2 R. S., 228, Part 3, ch. 2, title 4, § 17 (3 R. S., 5th ed., 429; 2 Edm., 244), amended by substituting the opening clause, for the words, "A justice shall, upon application, issue a warrant in the following cases," by omitting from subd. 2 the provision for security to be given by the plaintiff, which is covered by the general provision in § 2896, post, and adding thereto the last clause; by omitting subd. 4, which allows a resident freeholder to be arrested, where it appears to the justice that the plaintiff is in danger of losing his debt, unless a warrant is granted; and by adding the last paragraph, which is taken from 2 R. S., 253, § 158 (3 R. S., 5th ed., 449; 2 Edm., 270). Section 18 of the R. S., allowing the justice to issue a summons or a warrant, where the defendant is not a freeholder or a householder, or after the return of a summons served by copy, has also been omitted; because the right to an arrest should not be within the discretion of the magistrate; nor should an arrest be allowed, without cause shown therefor.] ART. 3. § 2895. An order of arrest shall not be granted, except where Id.; In the action is brought for one or more of the following causes : 1. To recover a fine or penalty. 2. To recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury to property, including the wrongful taking, detention, or conversion of personal property; misconduct or neglect in office, or in a professional employment; fraud; or deceit. But this subdivision does not apply to a claim for dam. ages in an action to recover a chattel. 3. To recover for money received, or to recover a chattel; where it appears that the money was received, or that the chattel 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. [Substituted for L. 1831, parts of §§ 30 and 31 (3 R. S., 5th ed., 462; 4 Edm., 472), and modelled upon the provisions of this act, relating to the same subject in the principal courts of record. The reasons for the changes made in the former statute, are fully stated in the preliminary note to this article.] what actions. what § 2896. Where it appears to the justice, by the affidavit of the Id,; upon plaintiff or another person, that a sufficient cause of action exists, papers. against the defendant, and that the case is within the provisions of the last two sections, he must grant the order of arrest. But before granting it, he must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by TITLE 2. Order of cases it may be to be arrested, at the instance of an irritable or malicious neighbor; dragged before a justice; and compelled at once to try the cause or to give bail for his subsequent appearance. In this article, the order of arrest has been made a strictly provisional remedy; and a summons has been substituted for a warrant, as the process for the commencement of the action. This leaves it optional with the plaintiff to obtain an arrest, in cases where he is entitled to it, and enables his right to this process to be determined, independently of the decision upon the merits of the action. As the time between the issuing and the return of an ordinary summons is short, no provision has been made for the obtaining of an order, except simultaneously with the summons; and provision has been made in § 2901 for an application to vacate the order, either upon the defendant's being brought before the justice, or at any subsequent time before judgment. The giving of bail by the defendant is provided for in § 2963, post. SEC. 2894. Order of arrest; in what cases it may be granted. 2895. Id.; in what actions. 2896. Id.; upon what papers. 2897. Id.; its contents. 2898. Duty of constable. 2899. Return. When plaintiff notified must appear. 2900. Constable to keep defendant in custody. 2901. Motion to discharge from arrest. 2902. Effect of discharging defendant. 2903. When plaintiff must prove extrinsic facts. 2904. Privilege from arrest. § 2894. At the time when the summons is issued, in an action arrest; in specified in the next section, the justice who issues the summons granted. must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases: 1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are non-residents thereof. 3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto. But such an order cannot be granted, where the defendant, against whom it is applied for, is a female. |