
    Bracket vs. Eastman.
    A judge’s order to hold to bail is no defence to an action for false imprisonment, brought for an arrest upon a capias ad respondendum, where the defendant in such process does not in fact come within the exceptions to the act to abolish imprisonment, 
    
    False imprisonment. The plaintiff declared in trespass for false imprisonment. The. defendant pleaded that the imprisonment complained of consisted in an arrest of the plaintiff by the sheriff of the county of Rensselaer, by virtue of a capias ad respondendum in assumpsit, issued by the plaintiff as an attorney of this court, upon the retainer of the plaintiff in the same, at whose suit the capias was sued out; that an order to hold to hail in the sum of $1100 was made by a commissioner and endorsed upon the writ, obtained upon an affidavit of the agent of the plaintiff, that the defendant h d not been a resident of this state for one month previous to the issuing of the writ. The plaintiff replied, that he had been a resident of the state for one month previous to the issuing of the writ. To which replication the defendant demurred.
    
      M. T. Reynolds, for the defendant.
    
      S. Stevens, for the plaintiff.
    
      
      
         Section 179 of the Code prescribes the cases in which the defendant may be arrested in a civil action, and the cases there prescribed correspond with some material changes, to those excepted in the act of 1831. By section 180, it is provided, that an order for the arrest of the defendant must (in all cases) be obtained from a judge of the court in which the action is brought, or from a county judge; and by section 181, the order may be made where it shall appear to the judge by affidavit, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179. If the action 6e one in which the defendant might have been arrested, as provided in sections 179 and 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whole or in part (5288.)
      Corwin v. Freeland (2 Selden, 560,) was an action for false imprisonment, and the de fendants to justify the imprisonment stated in their answer the commencement of a suit for goods sold ; the obtaining an order of arrest from a judge of the court upon an affidavit alleging fraud on the part of the plaintiff in the purchase of said goods; that upon the order the" now plaintiff' was arrested, that the now defendants obtained judgment against him; tlie complaint contained no allegation of fraud and the order and affidavit were not annexed to the judgment roll; defendant, plaintiff in this suit, was arrested on an execution issued pursuant to section 288. 'the court held, that it was not necessary that the record should show the liability of tlie defendant to arrest. It is sufficient if an order in pursuance of sections 179 and 181 has been obtained and remains in force. “ Under the defendants' answer, if the facts set forth in it had been denied, they ought on the trial to have been permitted to give the affidavits and order of arrest in evidence, and they would thus have shown that it was a case where the plaintiff might have been arrested under section 179, which was all the defendants were required to show, to justify his arrest under the execution on which he was imprisoned.” (Watson, J. at p. 564.) “There are two ways by which it may be made to appear, one by affidavit and an order to arrest, and the other by embracing in the pleadings and record tlie facts which authorize the arrest. If neither of these courses is adopted, the plaintiff might find it difficult to show how it was a case coming under section 179, unless lie could be allowed to prove when tried for false imprisonment, tho facts dehors the record, to show that it was such a case. It is not, however, necessary to decide a case not now before us.” (Id p. 566.)
      Ón this latter point Harris, J. held, in Masten v. Scovill (6 How. Pr. R. 315,) that the true criterion for issuing an execution against tlie person, is this: could the defendant have been arrested before judgment, under section 179 ? not whether an order of arrest has been actually obtained before judgment, nor whether the pleadings show a statement of facts upon which he might been arrested.
      In Barker v. Russell (11 Barb. 303,) Judge Mitchell calls attention to the fact that section 181 distinguishes between the cause of action and the case, showing that tho case which authorizes the arrest is not (i. e. not necessarily) part of the cause of action.
      Sureties to an undertaking of bail, in an action against them for its breach, can not question ine liability of the principal to arrest and imprisonment. Gregory v. Levy (12 Barb. 610, S. C. 7 How. Pr. R. 37.)
    
   By the Court,

Nelson, C. J.

The first section of the act to abolish imprisonment for debt, Laws of New York, session of 1831, p. 396, expressly provides 'that no person shall be arrested or imprisoned on any civil process, &c., in any suit instituted for the recovery of money due upon any judgment or decree founded upon contract, or due upon any contract [33] express or implied, &e. It is therefore, apparent, that the order of the commissioner to hold to bail,- being in direct violation of the injunction of the act, was nugatory. The second section declares that the first section shall not extend to any person who shall not have been a resident of the state for at least one month previous to the commencement of a suit against him, nor to certain proceedings or certain actions therein specified. This section allows an arrest in certain cases, but to justify it the burden lies on the plaintiff in the suit to show that the case falls within the section. If it be non-residence, the defendant must be shown in fact not to have been a resident for the time specified in the act. The general provision of the act, is that no person shall be imprisoned on any civil process, in any suit instituted for the recovery of money due, upon any contract express or implied. The defendant may repose himself upon the statute, and hold the plaintiff or his attorney responsible, if arrested by their direction, for an invasion of his personal liberty. Whether the officer would be liable for making the arrest, it is unimportant now to express an opinion.

In England, and here until the passage of the act of 1831, it is true an action for false imprisonment would not lie for an arrest in a case where the defendant was privileged (Douglass, 671, 2 Wm. Black. 1190,) because by the general law of the land a defendant was liable to arrest and.could claim an exception only by showing to the court his privilege. (1 Archb. Pr. 76 and 3 Caines, 267.) The writ gave authority to the officer to arrest and hold to bail, until otherwise directed by competent authority, upon facts existing in the particular case (1 Archb. Pr. 76; 1 Salk. 1.) Now since the act of 1831, no authority to arrest exists here, except in the cases specified in the second section; and the plaintiff and his attorney, therefore, must see to it, that the defendant is liable to an arrest before a direction for his arrest or that he be held to bail, be given.

Judgment for plaintiff.  