Purchase v. Bellows , 23 How. Pr. 421 ( 1862 )

Robertson, J.

The summons in this action is for the relief demanded in the complaint. That relief, is the recovery of the possession of certain specified property, or its value in case a delivery cannot be had, and damages for its detention. The cause of action set out in the complaint is the detention of such property, wrongfully, by the defendant.

The section of the Code, authorizing orders of arrest (§ 179), contains several subdivisions. The first provides for actions for the recovery of damages in a cause of action not arising on contract. The third, for actions to recover possession of personal property. One of the actions enumerated under the first subdivision is, where it is for wrongfully taking, detaining, or converting property. Under the third subdivision, there can he no order of arrest, unless the property has been assigned after suit brought, with intent that it should not be taken by the sheriff, or to deprive the plaintiff of the benefit of it. (Mulvey a. Davison, 8 How. Pr., 111.) The complaint in an action under the first subdivision would show whether the plaintiff was entitled to execution against the person; if he succeeded in his action, under the third subdivision, it would not. The intent in removing the property claimed, is only to be determined by affidavits, under section 178 ; and the order must be made before judgment, by section 183.

The amendment passed in 1862, of section 288, provides, that no execution shall issue, unless an order of arrest has been served, or unless the complaint contains a statement bringing the case within section 179. In this case neither was done, and, therefore, the plaintiff is not subject to arrest. The law was, probably, the same before the amendment, and the látter may be regarded as merely declaratory. (Mulvey a. Davison, supra.)

The execution must be set aside, without costs, on the plaintiff stipulating to bring no action for the arrest.