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[2 R. S., 228, Part 3, ch. 2, title 4, § 17 (3 R. S., 5th ed., 429; 2 Edm., 211), 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., 2:0). 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.]
§ 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. in an action to recover a chattel.
3. To recover for money received, or to recover a chattel; where it appears that the 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.]
§ 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
Id.; its contents.
Duty of constable.
Return. When plaintiff notified
the justice, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least one hundred dollars.
[Substituted for 2 R. S., 228, Part 3, ch. 2, title 4, last clause of subd. 2 of § 17, and § 19 (3 R. S., 5th ed., 429; 2 Edm., 244), and modelled upon the provisions of this act, relating to the same subject in courts of record. It seems eminently just, that the plaintiff should give security in every case, where he procures the arrest of a defendant, as well in justices' courts as in courts of record. Under the former statute the plaintiff might, unless he was a non-resident, procure a warrant without giving security. The provisions of §§ 728, 729, 730 and 810-816 of this act, apply to an affidavit made or an undertaking given in an action or proceeding in this court. See § 3347, subd. 6.](*)
§ 2897. The order must be subscribed by the justice, and indorsed upon or attached to the summons. It must briefly recite the ground of arrest; and it must direct the constable, who serves the summons, to arrest the defendant; to bring him forthwith before the justice; and to notify the plaintiff of the arrest, if he can do so with reasonable diligence.
[Id., § 20, stating the contents of a warrant, amended in accordance with the changes proposed by the foregoing sections of this article.]
§ 2898. The constable must, at the time of serving the summons, execute the order of arrest, by arresting the defendant, and taking him forthwith before the justice. If the justice is absent, or unable to try the action, the constable must forthwith take the defendant before another justice of the same town or city; who must take cognizance of the action, and proceed therein, as if the summons had been issued, and the order of arrest had been granted, by him.
[Id., § 21, amended in like manner, and by omitting the provision, relating to proceedings where the justice is a material witness, which is taken into § 3151, post.]
$ 2899. The constable, executing the order of arrest, must forthwith deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff, or that he could not do so, with reasonable diligence. If he returns that he has notified the
plaintiff, the latter must appear within one hour after the defendant is brought before the justice; otherwise judgment of nonsuit must be rendered against him.
[Id., § 22, amended by requiring the return to be made forthwith, and "under his hand; " by inserting the words, "with reasonable diligence," in accordance with § 2897, ante; and by adding the last sentence.]
to keep de'custody.
§ 2900. The constable executing the order, or another consta- Constable ble, by direction of the justice, must keep the defendant in custody, fendant in until he is discharged by the order of the justice, or judgment is rendered in his favor; but the detention shall not, in any case, exceed twelve hours from the time when the defendant is brought before the justice; unless, within that time, a venire is issued, or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant.
[Id.. § 25, amended by inserting the clauses, "or another constable, by direction of the justice," and "or judgment is rendered in his favor." There may be good reasons, why the defendant should be placed in charge of another constable; as, for instance, where the latter is better able to accommodate him, or the first constable is needed to serve the venire.]
discharge from ar
§ 2901. A defendant, arrested as prescribed in this article, may, Motion to without notice, upon the appearance of the plaintiff before the justice, or at any time afterwards before judgment, upon two days' notice given personally to the plaintiff, or to his agent or attorney who appeared for him before the justice, apply to the justice for an order, discharging him from the arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The justice must grant the application, where it appears that the case is not within the provisions of sections 2594 and 2895 of this act. The justice must also, upon the defendant's application, grant an order discharging him from arrest, if the plaintiff fails to take out, from the justice, an execution upon a judgment in his favor, before the expiration of one hour after he is entitled thereto.
[New; conforming generally to the provisions of this act, regulating similar proceedings in courts of record.]
§ 2902. The discharge of the defendant from arrest, before Effect of
judgment, as prescribed in the last section, or in section 2963 of this act, does not affect the jurisdiction of the justice over the action, which must proceed, as if it had been commenced in the ordinary manner. His discharge from arrest, after judgment, as prescribed in the last section, does not affect the execution.
[New; inserted in consequence of the substitution of an order of arrest, as a provisional remedy, for a warrant as process for the commencement of an action. The general theory of the section is that the discharge from arrest does not affect the right of the plaintiff to take out execution against the defendant's person, as if he had not been discharged.]
§ 2903. Where an order of arrest has been granted and exeextrinsic cuted, in a case specified in subdivision third of section 2895 of this act, the plaintiff cannot recover upon a default, and the defendant is entitled to judgment upon a trial, unless the plaintiff establishes all the matters of fact, which are required, by that subdivision, to entitle him to an order of arrest.
Privilege from arrest.
§ 2901. This article does not abridge or otherwise affect a privilege from arrest given by law, or a right of action for the breach thereof. A privileged person is entitled to be discharged from arrest, by the order of the justice before whom he is brought, upon proof, by affidavit, of the facts entitling him to a discharge; or he may apply for and obtain an order for his discharge, as prescribed in section 564 of this act.(^)
ATTACHMENT OF PROPERTY.
PRELIMINARY NOTE.-The following article is a substitute for the provisions of the Revised Statutes, relating to attachments in justices' courts (3 R. S., 5th ed., 430--432; 2 Edm., 245–248), as modified by the non-imprisonment act, L. 1831, ch. 300 (3 R. S., 5th ed., 462; 4 Edm., 465). The principal changes made were those necessary to assimilate the proceedings, as far as practicable, to corresponding proceedings in the supreme court and other principal courts of record. In framing this article, however, as well as other articles of this chapter, the commissioners found it impracticable,
owing to the nature of and constitution of justices' courts, to follow absolutely the provisions regulating the proceedings in the higher courts. But a considerable advance was made in that direction; and, in framing this and other articles of this chapter, we used, whenever it was practicable, the language employed in former chapters of this work relating to kindred subjects; so that the decisions, in cases arising in courts of record, will be generally applicable to cases originating in these courts.
The notes to the sections will sufficiently explain the different amendments proposed, except one of considerable importance, to which attention is called in this place.
By the Revised Statutes, an attachment could be issued by a justice of the peace, only upon proof that the defendant had departed, or was about to depart from the county of his residence, with intent to defraud his creditors, or kept himself concealed with the like intent. 2 R. S., 230, Part 3, ch. 2, tit. 4, § 26 (3 R. S., 5th ed., 430; 2 Edm., 245). Section 34 of the non-imprisonment act provided, that an action on contract might be commenced by attachment, whenever it shall satisfactorily appear to said justice, that the defendant is about to remove from the county any of his property with intent to defraud his creditors, or has assigned, disposed of, secreted, or is about to assign, dispose of or secrete, any of his property with the like intent, whether such defendant be a resident of the State or not." (3 R. S., 5th ed., 462; 4 Edm., 473.) Section 31 of the same act forbade the issuing of a warrant in an action arising upon contract, except in a few infrequent cases; and § 33 provided that where, by the provisions of § 31, a warrant could not issue, and the defendant resided out of the county he should be proceeded against by summons or attachment, returnable not less than two nor more than four days from the date thereof. Upon comparing the language of the latter section with that of § 34, and also with § 43, which makes the provisions of the Revised Statutes applicable to the act of 1831, it seemed, at least, doubtful, whether, by § 33, the legislature intended any thing more than to require the plaintiff, in case the facts warranted an attachment against a non-resident, to proceed against him by an attachment returnable in not less than two nor more than four days (instead of not less than six nor more than twelve days, as required by the R. S.), in order that the defendant might have a speedy trial. Such was the construction given to the section by COWEN, J., in Ackerman v. Finck, 15 Wend., 652; although he afterward retracted his opinion in Bates v. Relyea, 23 Wend., 336, basing his retraction entirely upon the principle of stare decisis, and yielding to the authority of Clark v. Luce, 15 Wend., 479; wherein it was held, not only that a short attachment might issue of course, where the defendant was a non-resident, but that it was not necessary for the plaintiff to show the fact of such non-resi