
    MEECH a. LOOMIS.
    
      New York Superior Court; At Chambers,
    July, 1862.
    Again, At General Term, November, 1862.
    Eeleasing Defendant from Arrest.—Execution against Person.
    The fact that a plaintiff has consented to the release of a defendant from arrest under an order issued as a provisional remedy, does not prevent his issuing execution against defendant’s person, after judgment in the cause.
    Motion to set aside execution against the person.
    This action was brought by Alexander Meech against Kellogg H. Loomis. The defendant was taken into custody under an order of arrest, requiring bail in the sum of $200, which defendant was unable to give. Algernon S. Sullivan, at the instance of the wife of the defendant, called on the attorney for the plaintiff, and proposed to deliver to him a watch and chain and certain articles of jewelry, to be held by him as security for the debt alleged to be due to the plaintiff, on condition that the defendant should be released from arrest. The attorney for the plaintiff consented to receive the articles on the terms proposed, with the understanding that he was to have the privilege of consulting his client, and if he did not approve of this arrangement, the articles were to be returned. The following receipt was given:
    “ Deceived from Mr. Loomis, a lady’s watch, chain, and trinkets, to be held as security for payment by said defendant of the amount claimed in said suit and costs, and defendant to be released now from arrest. A. H. Eeavey.
    “Mew York, August 31,1861.”
    It was also stipulated, that the defendant should pay $50, the costs of the plaintiff. The defendant paid $42, and was discharged from arrest. On the following day, Mr. Eeavey notified Mr. Sullivan that his client refused to accept the articles deposited with him as security, and stated that they were at his disposal. They were subsequently returned to the counsel for Mr. Loomis. The cause was afterwards tried before Mr. Justice Monell, who found that the defendant was guilty of fraud in contracting the debt, and awarded the plaintiff the amount claimed in the complaint. Judgment was entered against defendant for $148.68.
    After the return unsatisfied of an execution against defendant’s property, an execution against his person was issued, under "which defendant was taken into custody.
    He now moved to set aside the latter execution.
    
      John Cook, for the motion.
    I. The consent and discharge of the defendant from custody, under the order of arrest before judgment, extinguished the alleged charge of fraud as the ground of arrest under section 179 of the Code of Procedure. A contract in writing was made by the plaintiff’s agent for a consideration, which effectually discharged the defendant from arrest, and thereby the order of arrest was ended. (Union Bank a. Mott, 9 Abbotts’ Pr., 106 ; King a. Kirby, 28 Barb., 49.)
    II. To justify the arrest of a defendant upon execution, the order of arrest should remain in full force at the time of the issuing of such execution. (Corwin a. Freeland, 6 N. Y., 560 ; Kindenburg a. Morgan, 18 How. Pr., 469.)
    III. The consent and release shows upon its face that it was given at its date without any condition attached to it, and the attempt to alter it by affidavits should not be considered by the court. It is an unconditional contract on its face, by which the plaintiff surrendered his right to hold the defendant’s person. This contract was made by the plaintiff and defendant, and before it could be changed, as expressed, the law maintains that each of the contracting parties must expressly agree to the change or alteration, which is not the case here. (See cases above cited.)
    
      A. Hamilton Reavey, opposed.
    
    I. The Revised Statutes of this State conform to the common-law practice, in all cases in which they give a right to an order of arrest; they also give, in the same cases, a right, after judgment, to an execution against the body of the defendant.
    
      II. It is conceded to be a general rule of law, that a defendant who has been once holden to bail, cannot be held to bail a second time for the same cause of action. The old cases in 2 Str., 1209 ; 6 T. R., 219; and 7 Taunt., 192, have been recognized to be unquestioned law to this day. The present case is not within the principle ; the writ issued against him is not a writ to hold him to hail a second time for the same cause of action, but it is the issue of an execution against his body, to satisfy a judgment obtained against him, in a case in which he had only once been taken into custody on an order of arrest.
    III. It is admitted, that if a defendant be once in execution, and is afterwards discharged by the plaintiff, even if done upon conditions, and the conditions are not afterwards fulfilled, or upon giving a security which turns out to be worthless; even although there was an understanding at the time, that he should be liable to be retaken, still the debt is discharged. (4 Burr., 2483 ; 1 T. R., 557; 2 East, 243; 3 Wend., 184; 9 Cow., 128.) This rule, however, has no application to this case. Defendant has never been taken upon execution before, nor has he been released from an execution, either upon or without conditions. Shall it be said, that because plaintiff consented that the defendant, on the order of arrest, should not give special bail to the action, but be discharged on common bail, that he shall not have one execution, or, in other words, one final process to collect his debt ?
    IV. If the body of the defendant cannot be taken in execution, because the plaintiff consented that he need not give bail on the order of arrest; then, to permit a party to go without bail, when in custody upon an order of arrest, is, in law, a discharge or satisfaction of the defendant, for which the order of arrest was obtained. Because, where the body has been once in custody upon an execution, the law deems it to be a satisfaction of the debt. (1 Cow., 56 ; 5 Wend., 58.)
    V. The doctrine of the law is, that a plaintiff can" hold the defendant to bail but once, for the same debt, and that he can take his body but once, in execution. It has never been decided, that where a defendant is in custody on a capias ad respondendum, and the plaintiff consented that he might go without bail, that the plaintiff, for that reason, could not, after judgment, have a capias ad satisfaciendum against his body.
   Monell, J.

After the defendant had been arrested, under an order of arrest in this action, and while in the custody of the sheriff, he transferred to the plaintiff’s attorney certain articles of personal property, which it was agreed should be held “as security for payment by said defendant of the amount claimed in said suit, and defendant to be released now from arrest.” Thereupon, the defendant was discharged from custody. It is averred, in the moving affidavits, that by reason of such consent, the order of arrest became vacated before the entry of judgment. Ho vacation of the order by a judge of this court appears to have been made, and the most that can be claimed is, that the consent of the plaintiff’s attorney, releasing the defendant from arrest, operated as a discharge of the order.

Subsequently, the plaintiff obtained j udgment for the amount claimed in his complaint.

The complaint alleged facts, showing that the debt had been fraudulently contracted by the defendant, and the judgment so adjudged. Upon a return unsatisfied of an execution against the property of the defendant, an execution against his person was issued, and he was arrested.

A motion is now made to set aside this last execution, on the ground that the defendant having been discharged from arrest, upon the order of arrest, cannot be arrested upon an execution issued upon a judgment in the action.

' Had the order of arrest been vacated, it might be a question whether an execution could issue against the person of the defendant. The consent to release the defendant from arrest, did not operate as a vacation or discharge of the order of arrest.

At most, I think it is to be regarded in the light of a voluntary escape, or like the entry of common bail, under the old practice. I do not understand, that in such cases, under the former practice, the defendant could not be arrested upon final process. A discharge, or an escape, voluntary or otherwise, from arrest, upon mesne process, never precluded a subsequent arrest upon. final process.

Had the order of arrest been discharged, it might be as if no order had been granted; and in that case, I think, an execution against the person could not be issued.

The allegation of fraud in the complaint, in an action of this kind, could not of itself authorize the execution.

The counsel for the moving party has not furnished me with any citations to authority for his motion ; nor can I, upon an examination of the books, find any.

Upon principle, 1 see no reason for setting aside the execution. The motion must be denied, with costs.

An appeal was taken by the defendant from the foregoing decision, to the general term. The appeal was heard before all the justices, November, 1862, and the order affirmed, with costs.  