
    LAMBERT a. SNOW.
    
      New York Common Pleas;
    
    
      General Term, July, 1859.
    Provisional Remedies.—Waiver.—Joinder of Actions.— Appeal.
    The plaintiff who has resorted to a provisional remedy, waives- it by uniting in his complaint causes of action, to some of which the provisional remedy does not extend.
    
      The defendant was arrested at the commencement of the action on an affidavit that he had received moneys of the plaintiff in a fiduciary capacity, and neglected to pay them over. The complaint subsequently served, united with this cause of action one upon contract, for which the defendant was not liable to arrest.
    
      Held, that he was entitled to be discharged even after bail given.
    If in such a case the plaintiff would resort to the provisional remedy he must bring separate actions.
    The defendant’s first motion to vacate an order of arrest having been denied, he appealed to the general term; and, pending the appeal, obtained leave to move again on new facts, and from an order denying this second motion he also appealed.
    
      Held, on reversing the second order and vacating the arrest, that the appeal from the first order should be dismissed without costs.
    Appeal from an order denying a motion to vacate an order •of arrest.
    The facts are stated in the opinion.
   Brady, J.

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 agent, and that the proceeds of such sale to said value should be returned to the said plaintiff, the said defendant paying the expenses in making said sales ; that the defendant had sold and disposed of the said 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 predipated on a co partnership theretofore existing between plaintiff and defendant, a dissolution thereof, and an accounting, upon which it appeared that the defendant was indebted to the plaintiff $1050, 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 may be united, whether they grow out of the second transaction or not. (§ 167, subdiv. 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 a. 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 a part of it. If 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 for granting an order. (§ 179.) The order may be made where it shall appear that “ the ease 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. (§ 178.) 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 well as 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 amounts 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 say, that the order of arrest having been in effect discharged by the decision of the second appeal, that appeal will be dismissed without costs.

Ordered accordingly.

Hilton, J.

On reflection, I am inclined to the belief that the order made by me at special term was erroneous, and should be reversed for the reasons assigned by Judge Brady.

Where 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 avoid the difficulty which this case presents.  