
    ELWOOD against GARDNER.
    
      Court of Appeals,
    
    
      Again, May, 1871.
    Akbest.—Pleading.—Motion to set aside Execution.
    Facts extrinsic to the cause of action, which are relied on as a ground of arrest, should not be alleged in the complaint.
    Where the cause of action and the facts on which an order of arrest is granted are identical, the defendant need not move before trial to set aside the order of arrest, but may at the trial contest the facts relied on as a ground of arrest, and if they are not proved at the trial, an execution against the person cannot be issued.
    
    
      Where the summons is for relief, and the complaint alleges a contract to pay money, and fraud on defendant’s part in making the contract, and demands judgment for damages sustained by reason of the fraud, in a sum beyond the face of the contract, the action is to be deemed as sounding in tort and not in contract, and the averment of the contract is to "be deemed matter of inducement merely.
    In such case defendant is not bound to move, before trial, to vacate an order of arrest;, and plaintiff cannot, by abandoning at the trial his averment of fraud, and obtaining judgment on proof of the contract alone, preclude the defendant from subsequently moving to set aside execution issued thereon against the person.
    
      Appeal from an order refusing to set aside an execution.
    This action was brought by John B. Elwood against George S. Gardner.
    
      The complaint was as follows :
    The plaintiff complains of the defendant, and alleges that on or about February 2, 1869, at the city of New York, he, the said plaintiff, purchased of the said defendant, at the instance and request of said defendant, a certain promissory note of the amount of one thousand dollars, made by Ephraim Steele and John D. Yoorhees, in their firm name of Steele & Yoorhees, they then composing a firm of that name, doing business at corner of Court and Sackett-streets, in the city of Brooklyn, dated December 18, 1868, payable to the order of themselves, nine months after said date, at the . Atlantic National Bank, and by them indorsed. That at and prior to the purchase thereof, and as inducement thereto, the said defendant represented and stated that the makers of said note were perfectly good and re-
    
      sponsible, and that said note would beyond all doubt be paid at maturity; that said makers were prompt and punctual men of the best of credit, and carried on the largest, or one of the largest, and most favorably known grocery establishments in Brooklyn, and that in addition to the capital they had in their store, the said Steele had also large amounts outside invested in real estate ; that as a still further inducement to said purchase, the said defendant stated that he also would indorse said note, which would make the same doubly good; that he was the owner of several pieces of real estate in Brooklyn of great value, and also held mortgages and notes of various amounts, several of which were enumerated by said defendant.
    
      And the plaintiff further says, that he relied upon said representations so made by said defendant and believed them to be true, and upon the strength and by reason of them alone, he- did, upon said defendant indorsing said note, which he then and there did, take from him said note and pay him therefor.
    And the said plaintiff further says, that on said note becoming due, it was duly presented for payment at said bank and payment, thereof demanded of the makers, but the same was not paid, and that the same was thereupon duly protested and notice of such non-payment and notice was given to said defendant, the expense of which was one dollar and twenty-four cents, and that said note and the whole thereof still remains due and unpaid.
    
      And the said plaintiff further says that said representations so made by said defendant on the sale of said note were false and fraudulent and in every respect untrue, and so known to be by said defendant at the time of making the same, and were made with a view and intent to cheat and defraud and obtain possession of the money so given for said note, without returning any equivalent therefor. That the said Steele & Yoorhees were not at said time good and responsible, but worthless, and in a very short time thereafter failed in business and closed their store at their said place of business aforesaid. That the said defendant did not at said time as by him represented, own real estate, but all so claimed to be held and owned by him was in the name of his wife instead of his own, in whose name it is still held; that he did not at said time, as said plaintiff is informed and believes, own said mortgages and notes so represented by him to be held and owned, and that whatever personal property was by him held has, in continuation and furtherance of his said fraudulent design, been transferred to his son, in whose name business is now carried on instead of defendant’s. That execution, not only against the said Steele & Yoorhees, but also against the said defendant, have been issued to the sheriff of the said county of Kings, and which, as plaintiff is informed by said sheriff and believes to be true, are wholly uncollectable, and some of which have been returned wholly unsatisfied, and that both said Steele & Yoorhees, as also said defendant, are now, as plaintiff is informed and believes, worthless and irresponsibleand that said debt cannot be collected of them or either of them by executions against their property or by the ordinary process of collecting debts.
    And the said plaintiff further says that by reason of false and fraudulent conduct, acts and representations, on the part of said defendant, he, said plaintiff, has sustained damage to the amount of said note and interest thereon and costs of protest, and also of the costs, charges and expenses incurred in endeavoring to collect the same of said Steele & Yoorhees to the amount of fifty dollars, making in all the sum of one thousand and fifty-one dollars twenty-four cents and interest.
    He therefore brings suit and demands judgment agaist said defendant foi the sum of one thousand and fifty-one dollars and twenty-four cents, with interest on one thousand dollars thereof from September 21, 1869, together with one dollar and twenty-four cents costs of protest, besides the costs of this action.
    [ Verification. ] [Signature. ]
    An order of arrest was granted on the following affidavit, which, together with the complaint, is given here in full, as the decision of the appeal turns upon the nature of the cause of action as set forth, and its identity with the grounds of arrest.
    
      City and County of New YorTc, ss.
    
    John B. Elwood, "of said city, being duly sworn, deposes and says, that he is the plaintiff in the above-entitled action, and that he has a good and sufficient cause of action against said defendant arising upon the following facts, viz: That on or about February 2, 1869, at the said city of Hew York, he, the said plaintiff, at the instance and request of said defendant, purchased of him, the said defendant, a certain promissory note of the amount of one thousand dollars, made by Ephraim Steele & John D. Yoorhees, in the firm name of Steele & Yoorhees, they then composing a firm of that name, doing business at corner of Court and Sackett-streets, in the city of Brooklyn, dated December 18, 1868, payable to the order of themselves nine months after said date, at the Atlantic Hational Bank, and by them indorsed. That at and prior to the time of said purchase, and as inducement thereto, the said defendant represented and stated that the makers of said note were abundantly good, and that the same would beyond all question be met at maturity ; that no more prompt and punctual men were to be found in the city of Brooklyn or New York than they; that the said Steele’s standing in Brooklyn was the very best, and that he was regarded amongst the heaviest men in said city, and that his standing there was the same or as good as A. T. Stewart’s in the city of New York. That said firm was the heaviest dealers in groceries in Brooklyn, and that moreover said Steele was the owner of large quantities of real estate. That he knew of a recent transaction in real estate .in which he, Steele, had paid twelve thousand dollars in cash, and in addition had taken a mortgage of seven thousand dollars on another place that he had sold.
    As a further inducement to said plaintiff to purchase said note, said defendant also stated that he himself would also indorse said note ; that the same would then be doubly good. That he was perfectly responsible, that he was just then embarrassed by reason of some transactions in which he was engaged, but that he was abundantly good, and was thé owner of several pieces of real estate in Brooklyn, and also held several mortgages on real estate, one of one thousand dollars and one of three thousand dollars, and several others of a smaller amount, together with several promissory notes, ranging in amount from three hundred dollars upwards.
    And deponent further says, that he relied upon said representations and statements so made by said defendant, and .believed them to be true, and upon the strength and by reason of them alone, he did upon defendant’ s indorsing said note, which he then and there did, take from him said note, and pay him therefor.
    And this deponent further says, that on said note becoming due, it was duly presented for payment at said bank and payment thereof demanded of the makers, but the samé was not paid but protested, and that due notice of such non-payment and protest was given to said defendant, the expense of which was one dollar and twenty-four cents, and that said note and the whole thereof still remains due and unpaid.
    And this deponent further says, that said representations so made by said defendant on the sale of feaid note were false and fraudulent and in every respect untrue, and so known to be by said defendant at the time of making the same, and were made with a view to cheat and defraud and obtain possession of the money so given for said note without returning any equivalent therefor.That the said Steele & Yoorhees were not at said time good and responsible, but worthless, and in a very short time thereafter failed and closed their store at their said place of business. That the said defendant did not at said time, as by him represented, own real estate, but all so claimed to be held and owned by him was in the name of his wife instead of his own, in whose name it is still held; nor did he own as this deponent is informed and believes said mortgages and notes so represented by him to be held and owned ; and that whatever personal property was by him held has, in continuation and furtherance of his said fraudulent design, been transferred to his son, and in whose name business is now carried on instead of his own. That executions not only against the said Steele & Yoorhees, but also the said Gardner, been issued to the sheriff of the said county of Kings, which, as deponent is informed by said sheriff and believes to be true are wholly uncollectable, and some of which have been returned wholly unsatisfied, and that both said Steele & Yoorhees as also Gardner are now, as deponent is informed "and believes, utterly worthless and irresponsible, and that said debt cannot be collected of them or either of them by execution against their property or by the ordinary process of collecting debts.
    And the said deponent further says, that by reason of such false and fraudulent conduct, acts and representations on the part of said Gardner, he, the said deponent, has sustained damage to the amount of said note and interest thereon and costs of protest, and also of the costs, charges and expenses incurred in endeavoring to collect the same of said Steele & Voorhees to the amount of fifty dollars, making in all the sum of one thousand and fifty-one dollars and twenty-four cents and interest. That he is about to commence an action in the supreme court to recover said damages, and asks that an order of arrest herein be granted against the person of said defendant.
    
      [Jurat.] [Signature.]
    
    The answer alleged that defendant, being indebted to the plaintiff in a little more than three hundred dollars, obtained an additional loan of enough to make the sum one thousand dollars, less the sum of one hundred and fifty dollars, usurious interest, and delivered the note sued on, to the plaintiff as security and demanded judgment that the complaint be dismissed, and plaintiff be adjudged to deliver up the note described in the complaint.
    On the trial, the plaintiff proved the note and computed the amount of interest, and recovered by direction of the court, a verdict for principal and interest, one thousand and thirty-five dollars and twenty-two cents, with costs and disbursements.
    A motion of defendant’s counsel to dismiss the complaint, and for a verdict in favor of defendant, was denied.
    From this judgment the defendant appealed to the court at general term, on the ground that the fraud alleged was not proved at the trial.
    The argument at general term is reported in 9 Abb. Pr. IF. S., 99. The judgment was affirme'd.
    After judgment, plaintiff issued execution against property, which was returned unsatisfied ; and thereupon he issued executions against the person, for the original judgment, and for the costs of appeal.
    The defendant moved to vacate the execution issued against his person, which motion was granted at special term, as reported in 9 Abb. Pr. N. S., 99; and the order having been affirmed’at general term, the plaintiff appealed to this court.
    
      John B. Elwood, for appellant, in person.
    I. The motion is practically nothing more or. less than a motion to vacate the order of arrest after judgment; and the granting of it is in direct conflict with the Code, §§ 183, 204 (Barker v. Wheeler, 23 How. Pr., 193; Roberts v. Carter, 17 Id., 479 ; S. C., 9 Abb. Pr., 106).
    II. The attempt to discriminate between a motion to vacate an execution under the circumstances, and an order of arrest, has no basis whatever to sustain it (Crowell v. Brown, 9 Abb. Pr., 107).
    III. None of the cases are authority for vacating these executions (citing and commenting on Humphrey v. Brown, 17 How. Pr., 481; Pope v. Newcomb, 30 N. Y., 589 ; 7 Hill, 182; Smith v. Knapp, 30 N. Y.; Corwin v. Freeland, 6 N. Y. [2 Seld. ], 560-564; Lovee v. Carpenter, 3 Abb. Pr. N. S., 309, 310 ; Atocha v. Garcia, 24 How. Pr., 186, 189 ; Wood v. Henry, 40 N. Y., 124).
    IV. On the contrary, the last three are against it, while the cases in 2 Seld. and 30 N. Y., go still farther, and far beyond what is necessary for us in this case.
    Y. The consequence of setting aside these executions would be not only to render the plaintiff liable to false imprisonment in a case where he had been in every respect regular and guilty of no fault, but also to open the courts to numberless applications to vacate executions based upon no higher grounds than the party’s or attorney’s ignorance or neglect.
    VI. The enforcing of the executions operates as no injustice to defendant. They are only means and remedies to force him as a dishonest debtor to pay what he admits to be honestly due.
    VII. The court had no power to make the order that it did, referring the matter to a referee to take the proofs. It should have been heard and determined by the judge (see opinion of Justice Ingraham, 1 Abb. Pr. N. S., 27, 28). Had we elected to take proof under the order, it would have been a waiver of our right to appeal from it for a review of the legal questions involved in it, as having accepted a condition given under it (17 Abb. Pr., 229; 4 Id., 468 ; 18 N. Y., 481; 16 How. Pr., 483).
    VIII. Should this order be affirmed, the right to introduce proof on the merits should still be. reserved to plaintiff, and the order so modified as to restrain the defendant to the proofs now in, with the right to the plaintiff to controvert and answer them. This is asked simply as a matter of precaution, not doubting that the court will hold the law as we claim it, nor, indeed, scarcely fearing that upon the merits, as they now stand, upon the defendant’s own showing, they would be found with us,—1. For the reason that the allegations in plaintiff’s affidavit are not fully and squarely met and controverted,—2. Because the defendant admits that the representations charged by the plaintiff to have been made by defendant as to the standing and responsibility of Steele & Voorhees are true, attempting to justify himself only on the alleged ground that what he said he did not then lenow to be untrue (21 N. Y., 238).
    
      Edwin G. Davis, for the defendant, respondent.
    I. The supreme court had the power after judgment to vacate a ca. sa., although an order of arrest had been issued in the case, and no motion made to set it aside (Pope v. Newcomb, cited in 30 N. Y. 589;
    
      Smith v. Knapp, Id., 581; 7 Hill, 182 ; Humphrey v. Brown, 17 How. Pr., 481).
    II. The defendant has clearly shown himself to be entitled to the benefit of the rule. It is conceded, for the purpose of this appeal, that there are no facts to justify the imprisonment of the defendant, as the plaintiff has not availed himself of the opportunity given him by the order of Justice Pratt (Discussing at length Smith v. Knapp and Corwin v. Freeland, 6 N. Y., [2 Seld.], 565 ; citing, also, Wood v. Henry, 40 N. Y., 124). Here the issue joined was clearly a question of fraud, and the defendant was prepared to meet it. The court, in allowing the plaintiff to recover, extended to him an indulgence. But it cannot be claimed that in so doing it left the defendant remediless.
    
      
       This important case settles the practice in regard to pleading grounds of arrest, and the right to move for a discharge from arrest after judgment. The following summary of the previous cases illustrates the principles laid down by the chief judge in delivering the opinion of the court, and indicates the practice on collateral points:
      'Before the amendment of 1858, section 204 of the Code provided that a defendant arrested might, at any time before justification of bail, apply, on motion, to vacate the order or reduce the bail.
      Under that provision it was held, that though the motion could not be made after justification, the mere inactivity of allowing the time to expire for the opposite party to except to bail, without the defendant’s moving in the mean time, did not preclude the motion; the waiver must be by some act of the party waiving, or by a very long acquiescence. Supreme Ct., 1850, Barber v. Hubbard, 3 Code R., 169 ; Sp. T., 1855, Cady v. Edmonds, 12 How. Pr., 197; and see Wilmerding v. Moon, 1 Duer, 645; Overill v. Durkee, 2 Abb. Pr., 383.
      But the contrary was held in N. Y. Com. Pl. Sp. T, 1851, Barker v. Dillon, 1 Code R. N. S., 206; S. C., 9 N. Y. Leg. Obs., 95 ; Supreme Ct., 1856, Gaffney v. Burton, 12 How. Pr., 516 ; and in N. Y. Superior Ct., 1851, Lewis v. Truesdell, 3 Sandf, 706; S. C., 1 Code R. N. S., 106.
      And it was held, that a defendant, by giving bail, or procuring an undertaking to be given, did not waive his objections to the legality of the arrest, unless he did so voluntarily. And, it seems, that obtaining time to answer was not a waiver. Supreme Ct., 1853, Col. Ins. Co. v. Force, 8 How. Pr., 353.
      And that where bail were not excepted to, a motion to vacate was in time, if brought on to argument, before the judge by whom the bail were examined had indorsed his allowance of them upon the undertaking, and caused it to be filed. N. Y. Superior Ct. Sp. T., 1856, Overill v. Durkee, 2 Abb. Pr., 383; S. C., sub nom. O’Neil v. Durkee, 12 How. Pr., 94.
      An order of arrest founded on extrinsic facts, might be vacated on a proper application, at any time before defendant, if not bailed, had been charged in execution, even though it be after judgment. N. Y. Superior Ct., Chambers, 1852, Wilmerding v. Moon, 1 Duer, 645; S. C., 8 How. Pr., 213; and see Bridgewater Paint Co. v. Messmore; 15 Id., 12.
      
        After defendant had given bail, and answered, he could not move to vacate the order of arrest. [1 B. & P., 133; 1 East, 81; 1 J. C., 393; 3 Sandf., 706.] N. Y. Com. Pl., 1853, McKenzie v. Hackstaff, 2 E. D. Smith, 75.
      Putting in bail and their justification, without objection, was a waiver of motion to vacate on the ground of insufficiency of plaintiff’s affidavit, in the absence of fraud. Supreme Ct., 1853, Stewart v. Howard, 15 Barb., 26.
      It is only while plaintiff allowed defendant to be at large, in custody of his bail only, that defendant (if his bail justified) could not move to be discharged; but as soon as the bail ceased to be liable as such,—e. g., where plaintiff charged defendant in execution,—then defendant’s right to move was restored. Supreme Ct. Sp. T., 1854, Moore v. Calvert, 9 How. Pr., 474.
      Voluntarily giving security, on which defendant was discharged from arrest, was held a waiver of the right to move to vacate the order, though there was no justification, the security being accepted by plaintiffs. Supreme Ct. I. Dist., 1857, Dale v. Radcliffe, 35 Barb., 333; S. C., 15 Bow. Pr., 71. But compare Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. Pr. N. S., 9.
      Present rule. A defendant arrested may, at any time before judgment, move to vacate the order or reduce the bail. Code of Pro., § 304, amended by the Laws of 1858, ch. 336. The amendment substituted the word “judgment ” for “justification of bail.”
      Where defendant is' arrested in a case not authorized, it is understood that the remedy is not under the provision as to the exoneration of bail, but only by motion under § 304. Holbrook v. Homer, 6 How. Pr., 86.
      Under section 304, as amended, the motion to vacate may be made at any time before judgment, and notwithstanding the defendant has given and perfected bail. Supreme Ct. Sp. T., 1861, Wickes v. Harmon, 12 Abb. Pr., 476; Warren v. Wendell, 13 Abb. Pr., 187.
      A defendant arrested does not, by giving bail, preclude himself from questioning the sufficiency of the plaintiff’s complaint, or original affidavits, made to obtain the order. N. Y. Superior Ct. Sp. T., 1869, Knickerbocker Life Ins. Co., v. Ecclesine, 6 Abb. Pr. N. S., 9.
      That section is obligatory, not merely permissive; the motion cannot be made after entry of judgment. Supreme Ct., 1863, Barker 
        v. Wheeler, 14 AM. Pr., 170; and see Crowell v. Brown, 17 How. Pr., 68; Roberts v. Carter, Id., 479. But may, if the judgment is opened and allowed to stand only as security. Mott v. Union Bank, 4 Abb. Pr. N. S. 270.
      After judgment, and defendant has been arrested and imprisoned on an execution against his person, awarded by the judgment, he cannot move to set aside the order of arrest which was issued as a provisional remedy in the action. Supreme Ct., 1859, Union Bank v. Mott, 9 Abb. Pr., 106; affirming 8 Id., 150, and 16 How. Pr., 535.
      A motion to vacate an order of arrest may be made at any time before judgment, or it may be made after judgment if made within twenty days offer service of the order of arrest. The amendment to section 183 of the Code, adopted in 1863, did not abrogate the provision of section 304, allowing the motion any time before judgment. Supreme Ct. Sp. T., 1868, Pelo v. Clukey, 36 How. Pr., 179.
      Section 304 requires a motion to the court, and upon dqe notice. Supreme Ct., 1860, Rogers v. McElhone, 12 Abb. Pr., 292; S. C., 20 How. Pr., 441.
      The motion to vacate need not necessarily be made before the judge who granted the order. Supreme Ct. Chambers (1849?), Dunaher v. Meyer, 1 Code R., 87.
      The exercise of discretion in granting the order, by the judge to whom application for an order of arrest is made, may be reviewed by another judge at special term, upon a motion to vacate the order. N. Y. Superior Ct. Sp. T., 1869, Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. Pr. N. S., 9.
      Where the complaint in an action on contract set forth a fraud in contracting "the debt, and defendants, in their answer, took issue directly on the question of fraud, and the court, upon the trial, expressly found that there was not fraud; and plaintiffs had, at the commencement of the action, procured, upon affidavits, an order of arrest, and this order defendants now moved to set aside, on affidavits, and on the finding of the court,—Held, that the issue, as to fraud, raised by the pleadings, was material; and the finding thereon, so long as not appealed from, was conclusive - against plaintiff’s right to arrest defendants. Supreme Ct. Sp. T., 1861, Warren v. Wendell, 13 Abb. Pr., 187.
      Supersedeas. It was formerly held that an application for a supersedeas could not be granted under 3 Rev. Stat., 556, § 37, on the ground that plaintiff had neglected for three months to charge defendant in execution, unless the bail had been exonerated. And that when the moving papers, on an application for a supersedeas in such case, do not show that the bail have been exonerated, plaintiff’s allegation that no notice of surrender was ever given to him, was, in effect, a denial that defendant had been exonerated. Hills v. Lewis, 13 Abb. Pr., 101, note. The time is computed from actual entry of judgment. Lippman v. Petersberger, 9 Abb. Pr., 209; S. C., 18 How. Pr., 270.
      And on a motion to discharge the defendant from imprisonment, for the neglect of the plaintiffs to charge him in execution within three months after having been surrendered by his bail, the plaintiff’s ignorance that he had been surrendered is sufficient “ good cause to the contrary,” in opposition to the application; but plaintiff may be required to issue execution within a reasonable time, or submit to supersedeas. N. Y. Superior Ct. Sp. T., 1865, Desisles v. .Cline, 4 Robt., 645.
      Where a defendant is in close custody at the time of entering up judgment against him, but is admitted to the jail liberties within three months thereafter, and is again surrendered into close custody by his bondsmen, he is not entitled to be discharged from custody upon the ground of the failure of the plaintiff to charge him in execution (3 Rev. Stat., 556, § 38), until three months after his surrender. N. Y. Superior Ct. Sp. T., 1866, Booth v. Barnes, 5 Robt., 640.
      If a defendant, arrested in a civil action, is prejudiced by the delay of the plaintiffs to enter judgment and charge him in execution, he ¡should move to compel them to do so, and cannot charge the plaintiffs with laches unless he has so moved. Supreme Ct., 1867, Carter v. Loomis, 2 Abb. Pr. N. S., 295.
      Where, however, the plaintiffs have been guilty of gross negligence m this respect, they may be required to stipulate to waive any objections to his taking the benefit of the fourteen day act, and the defendant be allowed to be discharged under that act on giving the usual notice. Ib.
      
      Whqre plaintiff had defendant "arrested at the commencement of suit, and, after judgment, allowed him to remain in custody more than two years, under the original order, and without issuing execution,— Held, that this course was in fraud of the law, and defendant was entitled to an order of supersedeas. Supreme Ct., 1855, Wells v. Jones, 2 Abb. Pr., 20.
      
        By a clause added to section 288 of the Code in 1870, it is provided, that “ If any defendant be in actual custody under an order of arrest, and the plaintiff shall neglect to enter judgment in the action within one month after it is in his power to do so, or shall neglect to issue execution against the person of such defendant, within three months after the entry of judgment, such defendant may, on his motion, be discharged from custody by the court in which such action shall have been commenced, unless good cause to the contrary be shown; and after being so discharged, such defendant shall not be arrested upon any execution issued in such action.” Code of Pro., § 288, last clause, added by Laws of 1870, ch. 741, § 11.
      Motion on original papers. Where an order of arrest is granted on plaintiff’s affidavit alone, and a discharge is moved for on plaintiff’s papers alone, his affidavit, being uncontradicted, is to be taken as true; but it is to be strictly construed against him. Supreme Ct. Sp. T., 1857, Hathorn v. Hall, 4 Abb. Pr., 227.
      On motion to vacate an order of arrest, made upon the original papers only, if the necessary facts are positively sworn to in the plaintiff’s affidavit, and if deponent can have had knowledge of them, the court will not vacate the order on the ground that the statements which it contains were probably not within his knowledge. N. Y. Com. Pl. Sp. T., 1866, Ballouhey v. Cadot, 3 Abb. Pr. N. S., 122.
      New affidavits—in what cases receivable. If the notice of motion points only to defects in plaintiff’s affidavit, new affidavits on both sides are to be excluded. Supreme Ct. Sp. T., 1848, Adams v. Mills, 3 How.Pr., 219.
      Denial. Even in an action on contract, defendant may, on a motion to discharge an order of arrest, introduce affidavits denying the case made by plaintiff’s affidavits. Supreme Ct., 1850, Barber v. Hubbard, 3 Code R., 169.
      Although an order of arrest ought not to be granted upon general assertions made on information only, yet if, on a motion to discharge from arrest, such allegations are not met by a denial, they will be taken to be true. N. Y. Superior Ct. Sp. T., 1866, Wolfe v. Brouwer, 5 Robt., 601.
      Denying plaintiff’s cause of action, or impeaching his affidavit, by showing that he swore differently on another occasion, is not enough. Supreme Ct. Sp. T., 1848, Martin v. Vanderlip, 3 How. Pr., 265.
      When the statement of the defendant, corroborated by the testimony of another witness, is diametrically opposed to that of the plaintiff, it is not a proper case for an order of arrest. N. Y. Superior Ct., 1865, Mulry v. Collett, 3 Robt., 717.
      If plaintiff’s affidavit explicitly alleges the fraud, which defendant’s affidavit as explicitly denies, the latter should be regarded as neutralizing the former, and plaintiff should be left to make out his case by further proofs. Supreme Ct., 1860, Allen v. McCrassen, 32 Barb., 662; see, also, Mecklin v. Berry, 23 How. Pr., 380.
      Cause of action not tried. Where the right to arrest the defendant is derived from the nature of the action—e. g., if the action is to recover moneys received in a fiduciary capacity—defendant will not be allowed, on motion to discharge from arrest, to introduce affidavits to show, that there is no cause of action. N. Y. Com. Pl. Sp. T., 1857, Geller v. Seixas, 4 Abb. Pr., 103.
      Where the arrest is grounded on the nature of the cause of action, and plaintiff’s affidavit shows a cause of action with clearness and precision, defendant should not be discharged merely because he denies plaintiff’s averments. [1 Bosw., 634.] N. Y. Superior Ct., 1859, Cousland v. Davis, 4 Bosw., 619. N. Y. Com. Pl., 1858 [citing 4 Abb. Pr., 103], Solomon v. Waas, 2 Hilt., 179; Anonymous, 6 Abb. Pr., 319, note; compare Swift v. Wylie, 5 Robt., 680.
      At least, unless there is a very decided preponderance of evidence of the defendant upon the motion, or unless the facts show clearly plaintiff has no cause of action. The questions brought before the court on the motion being issues in the cause, the jury alone, except in the instances mentioned, should pass upon them at the trial. [14 How. Pr., 131; 47 Barb., 629.] Supreme Ct., 1867, Merritt v. Heckscher, 50 Barb., 451; N. Y. Com. Pl. Sp. T., 1868, Royal Ins. Co. v. Noble, 5 Abb. Pr. N. S., 54; N. Y. Superior Ct., 1865, Merwin v. Playford, 3 Robt., 702 ; Chittenden v. Hubbell, 6 Abb. Pr., 319, note.
      Thus, on motion to discharge from arrest in an action for malicious prosecution, it is sufficient if plaintiff shows prima facie a sufficient cause,—e. g., an immediate dismissal by the magistrate, of the prosecution. Supreme Ct. Sp. T., 1860, Gould v. Sherman, 10 Abb. Pr., 411.
      
        Where the arrest is grounded on the nature of the cause of action, the order will not be set aside upon the merits, unless defendant clearly makes out such a case as .would call on the judge at the trial either to nonsuit plaintiff, or to direct a verdict for defendant. Supreme Ct., 1863, Levins v. Noble, 15 Abb. Pr., 475. To the same effect [citing 14 How. Pr., 131; and disapproving 11 Id., 1; and 4 Duer, 643], Sp. T., 1861, Barret v. Gracie, 34 Barb., 20. N. Y. Com. Pl. Sp. T., 1867, Stuyvesant v. Bowran, 3 Abb. Pr. N. S., 270 ; 34 How. Pr., 51.
      It is no reason for dispensing with this rule that the calendar is so crowded that the case may not be reached for a trial on the merits for a long time; and that, meanwhile, the defendant, being unable to procure bail, is imprisoned. In such a case, the court of common pleas will advance the cause upon the calendar, so as to give an early trial. N. Y. Com. Pl. Sp. T., 1868, Royal Ins. Co. v. Noble, 5 Abb. Pr. N. S., 54.
      Upon motion to discharge an arrest, the court will permit a partial trial of the cause. The order should be vacated, if the plaintiff fails to make out his cause of action and arrest. H. Y. Superior Ct. Sp. T., 1855, Hernandez v. Carnobeli, 10 How. Pr., 433; S. C., 4 Duer, 642. Disapproved in Barret v. Gracie, 34 Barb., 30.
      If defendant admits the false representation, his denial of intent to , defraud is immaterial. Supreme Ct. Sp. T., 1858, Whitcomb v. Salsman, 16 How. Pr., 533.
      Where defendant is arrested on the ground that the money sued for was received by him in a fiduciary capacity, and in the opinion of the court, the facts shown by plaintiff, and not denied by defendant, show that the fund was so received by him, he cannot be discharged on motion without showing to the entire conviction of the court that he has a valid defense. Only the clearest proof that plaintiffs cannot recover any part of the sum, would justify the discharge. N. Y. Superior Ct., 1856, Republic of Mexico v. Arangoiz, 5 Duer, 634; aff’g 11 How. Pr., 1; compare Barret v. Gracie, 34 Barb., 20.
      
        It seems, that matters merely in reduction of the amount of indebtedness, are not to be considered on motion to vacate. Noble v. Prescott, 4 E. D. Smith, 139.
      In an action brought to recover the value of chattels of the plaintiff, ecn^erted by a defendant, it is not ground for discharging an order of arrest that the defendant has a claim for a larger amount against a plaintiff. Supreme Ct. Sp. T., 1865, Huelet v. Reyns, 1 Abb. Pr. N. S., 27.
      After a trial by the court, and a decision directing judgment for money, on the ground that it was received in a fiduciary capacity, the court refused to vacate an order of arrest which had been granted on the same ground. Chaino v. Coffin, 17 Abb. Pr., 441.
      Summons. On motion after answer, order of arrest should not be set aside for irregularity in the summons. N. Y. Superior Ct. Sp. T., 1857, Bedell v. Sturta, 1 Bosw., 634; S. C., 6 Abb. Pr., 319, note. Compare Swift v. Wylie, 5 Robt., 680.
      The fact that the summons has been amended, changing it from a summons for a money demand to a summons for specific relief, does not impair the effect of a previous order of arrest,.nor afford ground for vacating the order. Supreme Ct. Sp. T., 1858, Union Bank v. Mott, 6 Abb. Pr., 315.
      Complaint, when referred to. Where the summons and complaint have been served, and were before the judge upon an application for an order of arrest, based on affidavit, the plaintiff is entitled to refer to the complaint, if verified, in support of the order, where the affidavit proves defective. N. Y. Superior Ct. Sp. T., 1854, Brady v. Bissell, 1 Abb. Pr., 76 ; Supreme Ct. Sp. T., 1856, Turner v. Thompson, 2 Id., 444. To the contrary was Smith v. Edmonds, 1 Code R., 86.
      Where the ground of arrest is extrinsic to the cause of action,—e. g., in an action to recover a debt fraudulently contracted,—the order is to be sustained by the affidavits alone. It is no ground for vacating it, that the complaint does not allege the fraud. [13 How. Pr., 230 ; 6 N. Y. (2 Seld.), 560.] Supreme Ct. Sp. T., 1860, Mulclan v. Doty, 20 How. Pr., 236.
      Effect of variance. On motion to vacate an order of arrest, founded on the nature, of the cause of action, if there is any ambiguity as to its nature, the determination must be governed by ascertaining not what cause of action the plaintiff has intended to set forth, but rather what cause of action he must rely upon for a recovery. Supreme Ct., 1858, Peel v. Elliott, 7 Abb. Pr., 433 ; S. C., 28 Barb., 200; S. C., 16 How, Pr., 485.
      It is not a ground for vacating an order of arrest, that the case made by the complaint varies from that made by the affidavits, if the affidavits are themselves sufficient, and disclose a ground of arrest consistent with the allegations of the complaint. N. Y. Superior Ct. Sp. T., 1858, Stelle v. Palmer, 7 Abb. Pr., 181.
      Supplementary affidavits. If the motion be made on affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made. Code of Pro., § 205.
      Plaintiff cannot introduce supplementary affidavits to supply defects in the affidavit on which the order of arrest was granted, but only to oppose defendant’s new affidavits. Supreme Ct. Sp. T., 1848, Martin v. Vanderlip, 3 How. Pr., 265.
      Plaintiff’s affidavit must establish the particular fraud relied upon as the foundation of the order. He cannot, under section 205 of the Code, on a motion to vacate, set up a ground for retaining it not put forth as the original ground of the order. Supreme Ct. Sp. T., 1855, Cady v. Edmonds, 12 How. Pr., 197.
      Evidence of other concurrent frauds committed by the defendant is admissible on a motion to vacate an order of arrest, as proof of the intent in committing the particular fraud" charged. [18 M. Y., 588.] Supreme Ct., 1860, Ballard v. Fuller, 32 Barb., 68. To the same effect. Chambers, 1861, Scott v. Williams, 14 Alb. Pr., 70 ; S. C., 23 How. Pr., 393.
      How determined. Where the fraud depends on specific facts, which are denied in the affidavits on which the motion to discharge the order of arrest is made, the court will look into and weigh affidavits on both sides, and decide upon the truth of the facts. N. Y. Superior Ct., 1851, Falconer v. Elias, 3 Sandf, 731.
      Upon a motion to vacate an order of arrest, obtained under the Code, the question is, whether upon the whole case, as made by the affidavits on both sides, the court, if called on to act upon the application as res nona, would grant the order of arrest. If not, it should be vacated; otherwise, it should stand. [10 How. Pr., 449; 11 Id., 9 ; 12 Id., 197.] Supreme Ct. Sp. T., 1856, Chapin v. Seeley, 13 How. Pr., 490 ; 1858, Union Bank v. Mott, 6 All. Pr„ 315; 1860, Allen v. McCrassen 32 Barb., 662. But see Frost v. McCarger, 14 How. Pr., 131; and Barron v. Sanford, 6 Abb. Pr., 320, note; S. C., 14 How. Pr., 448 where this rule is limited to cases in which the ground of arrest is extrinsic to the cause of action.
      If it appear from the affidavit on which the order of arrest was granted, that the action was for damages for an injury to the person of the plaintiff, it is sufficient to give the judge jurisdiction; and it is a matter of discretion whether the order should be allowed, the exercise of which is not reviewable on motion to vacate it. Supreme Ct. Sp. T., 1854, Lapeous v. Hart, 9 How. Pr., 541. To the contrary see Knickerbocker Ins. Co. v. Ecclesine, 6 Abb. Pr. N. S., 9.
      An order of arrest should not be vacated merely on the ground that one of the plaintiffs is not a proper party. N. Y. Superior Ct. Sp. T, 1860, Webber v. Moritz, 11 Abb. Pr., 113.
      Nor on the ground that defendant is exempt by virtue of his office. Plaintiff is entitled to retain his order, with a view of making the arrest when the exemption expires. Hart v. Kennedy, 39 Barb., 186 ; S. C., 15 Abb. Pr., 290 ; 24 How Pr., 425; reversing 14 Abb. Pr., 432; S. C., 23 How: Pr., 417.
      Nor on the ground that an action has been brought in a foreign court against the defendant for the same cause, it not appearing that any arrest was ever made there, or would have been allowed by the practice of such court. Supreme Ct. Sp. 21, 1860, Arthurton v. Dalley, 20 How. Pr., 311.
      So also a motion to vacate order of arrest was denied, though it was admitted that an attachment proceeding between the parties, and for the same cause of action, was pending, and a small amount of property garnisheed, in Arkansas. Supreme Ct., 1851, Lithaner v. Turner, 1 Code R. N. S., 210.
      An order of arrest founded on a complaint containing several counts or causes of action, on some of which defendant is not liable to arrest, should be vacated. [1 Hill, 225; 7 Id., 182; 2 N. Y., 262; 17 How. Pr., 517.] Supreme Ct., 1859, McGovern v. Payn, 32 Barb., 83. Compare Shipman v. Shafer, 14 Abb. Pr., 449; Ely v. Steigler, 9 Abb. Pr. N. S., 35 ; Redfield v. Frear, Id., 449.
      Vacating on condition. Where on the whole case, as presented upon the motion to vacate, there is not evidence to charge defendant with the wrong complained of, but plaintiff appears to have had probable cause and no malice in making the arrest,—the discharge may ba granted conditionally upon defendant’s stipulating not to bring an action for the arrest. Supreme Ct. Sp. T., 1856, Northern Railw. Co. of France v. Carpentier, 4 Abb. Pr., 47.
      On an appeal from an order discharging defendant from arrest on the ground of the insufficiency of the affidavit, the court being of opinion that he was entitled to discharge, but that he ought to stipulate to bring no action for the arrest, affirmed the order on condition that he stipulate. N. Y. Com. Pl., Brophy v. Rodgers, 7 N. Y. Leg. Obs., 152.
      In an action in which a receiver had been appointed, the court granted a motion to discharge defendant from imprisonment, conditionally upon his delivering to the receiver the property to recover which the suit was brought. Glenton v. Clover, 10 Abb. Pr., 422.
    
   By the Court.—Church, Ch. J.

This court, in Smith v. Knapp (30 N. Y., 581), held that if a motion to set aside an order of arrest is not made before judgment, the defendant may be imprisoned on a ca. sa. issued on the judgment. But if the judgment is recovered for a cause of action for which the defendant is not liable to arrest, he may then move to set aside the ca. sa., or to be discharged from imprisonment. In that case there were several causes of action set forth in the complaint, in some of which the defendant was liable to arrest, and in others not. Ah order of arrest had been obtained on the former, and judgment was taken for a cause of action for which the defendant was not liable to arrest. In such a case it is manifest that the court should relieve a party from imprisonment, otherwise he might be imprisoned for a cause not authorized by law, through the form of procedure.

Section 179 of the Code of Procedure authorizes the arrest of a defendant in certain actions, specified in the act, of a tortious character, and also in actions on contract when the defendant has been of certain wrongful acts affecting the cause of action or the consideration.

Subdivision 4 reads as follows : “ When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit.”

Section 288 declares that “ no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179.”

An order of arrest may be obtained in both classes of cases,—in those cases where the cause of action is identical with the cause of arrest,-and in the actions where facts dehors the cause of action constitute the ground of arrest.

In the latter class of cases, unless an order of arrest is obtained before judgment, no ca. sa can issue.

This process is, in effect, prohibited by section 288, above quoted.

In such cases it is not necessary or proper to set forth the facts constituting the cause of arrest, in the complaint, because they constitute no part of the cause ■of action, and are not relevant to° it, and need not be proved on the trial. For instance, in an action upon ■contract to recover a debt, it would be improper to set forth that the defendant had been guilty of fraud in contracting the debt, or that he had disposed of his property'with intent to defraud his creditors. It is only proper to state in a complaint the facts necessary to the cause of action. In such a case, an order of arrest must be obtained before judgment, to entitle the plaintiff to a ca. sa. If obtained, and not set aside before judgment, a ca. sa. may issue without any further order or direction of the court; and the defendant, if he ' seeks to avoid the effect of the order, can move to set it aside at any time before judgment; and if he omits to do so, or if he is unsuccessful in a motion to set it aside, he is concluded after judgment from questioning the binding effect of the order.

But when the cause of action is one which gives plaintiff a right to an order of arrest, and the facts constituting it are identical with the facts constituting the cause of arrest, the defendant can contest the right to arrest upon a preliminary motion to set aside the order, and also contest the alleged cause of action, of course, upon the trial. In such a case it follows that he is not concluded by the order, or the decision upon the motion to set it aside : he may omit to make the motion altogether, as the trial upon the facts alleged in the complaint will furnish an opportunity to contest the facts in a form preferable to that of a motion. If the trial of such an action results in favor of the plaintiff, the record is conclusive in favor of the right to issue a ca. sa. ; and if for the defendant, the order is of course discharged.

The meaning of the latter clause of section 228, — providing that a defendant shall not be arrested unless the complaint contains a statement of facts showing one or more causes of arrest required by section 179,— is that the statement in the complaint must be of facts legitimately and properly in the complaint, such as are proper and necessary to be proved ; or, in other words, such as constitute a cause of action for which a party may be arrested. It would be absurd, in an action on a promissory note, to allow a party, after judgment, to issue a ca. sa. without having obtained an order of arrest, merely by incorporating into the complaint a statement of facts sufficient to have authorized the order upon a motion. Such facts have no legitimate place in a complaint unless they are pertinent to the cause of action, and if they are, they should be proved on the trial.

The case at bar was an action to recover damages for fraud and deceit, in obtaining money by false and fraudulent representations as to the pecuniary standing and credit of the makers of a note and the pecuniary ability of the defendant who indorsed and transferred it to the plaintiff. The complaint set forth the representations, their falsity, that the party relied upon them, and then says “that by reason of the false and fraudulent conduct, acts, and representations, on the part of the said defendant, the said plaintiff has sustained damages,” to the amount of the note and interest and fifty dollars costs incurred in prosecuting the makers, and demands judgment therefor. It is true that the facts in relation to the making, indorsement, and transfer of the note are set forth, but these are stated by way of inducement, and for the purpose of showing the occasion and materiality of the representations (Townsend v. Hendricks, 40 How. Pr., 143).

There is no claim to recover upon the note or against the defendant as indorser. On the contrary, it is claimed to recover fifty dollars more than the plaintiff would be entitled to against the defendant as indorser, and expressly for fraud.

All the allegations of fraud in the complaint were improper, unless they constituted a cause of action for fraud and deceit. Besides, the summons was for relief, showing that the plaintiff intended hot to commence an action upon the note, and the complaint shows conclusively that he carried out that intention.

This was a case, therefore, where the defendant had a right to omit making a motion to set aside the order of arrest, and contest the facts upon the trial. He had every legal reason for regarding this as an action founded upon tort, which the plaintiff was bound to prove, and which he could contest, upon the trial.

It seems that at the trial the plaintiff abandoned his action for fraud, and the court allowed him to take : judgment against the defendant as indorser of the note. It is unnecessary to determine whether this was error or not, as that question is not before us, but if it was not (and the plaintiff cannot question its correctness upon this motion), it must have been upon the ground that the complaint contained two causes of action, one upon contract, and the other for fraud, or that, under the liberal policy inaugurated by the Code, the plaintiff was entitled to winnow out from the complaint the facts stated, by way of inducement, and reconstruct them into an action on contract and recover thereon.

The case presented is this. The plaintiff commenced an action to recover damages for fraud and deceit, and procured an order of arrest, upon the identical facts constituting the cause of action as set forth in the complaint. The defendant omitted to move to set aside the order of arrest, relying upon his procuring a discharge therefrom by defending the action, and contesting the facts upon the trial. At the trial the plaintiff abandoned his cause of action, and procured a judgment upon contract, as if in an action in which the defendant was not liable to be arrested except upon extrinsic facts to be proved by affidavit, and now claims that the defendant is concluded by the order of arrest in the same manner as though the action had been brought on the contract, and the order of arrest had been procured upon outside facts stated in the affidavit.

This practice is too sharp. Whether intended or not, we can see that it might have operated as a fraud upon the defendant. If the actioti had been upon the note, as the recovery was, the defendant would have known that he could only contest the right to the order upon a motion to set it aside, but he had legal reasons for believing that he could do it at the trial.

He was deprived of that right by the action of the plaintiff. The consequence may be to enable the plaintiff to imprison his debtor contrary to law, and to deprive him of the opportunity to contest Ms right to do so.

It cannot be said that the defendant has lost the opportunity by his own laches. That would have been so, if the action and recovery had been for the same cause ; but it' was not negligent in the defendant to await the trial and meet the allegations of fraud upon which the order was obtained, in the' forum to which the plaintiff had invited him. The power of the court below to relieve a party under such circumstances is undoubted, within the ‘principle laid down in 30 N. Y. (supra).

Imprisonment for debt is abolished, except in certain specific cases; and if a party seeks to imprison his debtor, he must bring the case clearly witMn one of the enumerated exceptions, and prove it according to pre scribed practice.

The order must be affirmed.

Order affirmed, with costs.

The plaintiff subsequently applied for a rehearing of the appeal, or a modification of the order, which application he argued upon the following grounds; insisting that,

I. The point determined was not argued, and the fact that the general term had, by its judgment, authorized the executions, was overlooked.

II. That defendant, by not appealing from the judgment, had acquiesced in its rightfulness, and was estopped from asking that the execution be vacated on the ground assigned.

III. That the practical effect of the decision was to deprive plaintiff of the benefit of the judgment, without his being heard in support of it; that the judgment might be sustained by authorities which he was prepared to adduce; and that the affidavit on which the order of arrest was granted alleged other and sufficient grounds of arrest, beside the fraud stated in the complaint ; and that the insertion of the averment of fraud in the complaint was not with a view to mislead defendant, but as a matter of precaution,—as the decision in Wood v. Henry (40 N. Y. 134), had not then been reported. That the form of the summons did not prejudice defendant; and that a reversal of the order would leave defendant to appeal from the judgment, which he ought to do if it were erroneous.

IY. That by affirming the order the court granted defendant relief as a favor, not as matter of right, because plaintiff had been strictly regular.

Y. If defendant be relieved at all, it should only be on condition of charging him with costs, and of requiring him to stipulate not to sue for false imprisonment; and to stipulate also that the judgment be vacated without prejudice to a new action, and the arrest of the defendant therein, for the alleged fraud.

YI. That unless this were done, plaintiff was stigmatized with having pursued discreditable practice, and subjected to undeserved liability and deprived of the means of the collection of his debt.

Edwin G. Earns, opposed.

By the Court,

The motion for re-argument or modification was denied, but without costs.  