553. [Amended, 1877.] Woman not to be arrested, except, etc. A woman cannot be arrested, as prescribed in this title, except in a case where the order can be granted only by the court; or where it appears, that the action is to recover damages for a wilful injury to per son, character, or property.

Last sentence of Co. Proc., 179. Duncan v. Katen, 6 Hun, 1; Northern Railway Co. v. Carpentier, 3 Abb. 259; Anonymous, 1 Duer, 613; Wheeler 9. Hartwell, 4 Bosw. 684; Schaus v. Putscher, 16 Abb. 353; s. c., 25 How. 463; Baldwin v. Kimmel, 16 Abb. 353; Tracey v. Leland, 2 Sandf. 729; Neville v. Neville, 22 How. 500; and see Hovey v. Starr, 42 Barb. 435.

§ 554. [Amended, 1877.] Idiot, lunatic, or infant under fourteen, if arrested, to be discharged.-A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose.

New.

§ 555. Person sued in a representative capacity, not to be arrested.- A person prosecuted in a representative capacity, as heir, executor, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act.

Modelled upon 2 R. S. 348, 9 (2 Edm. 359). See Nat. Bank. Temple, 19 How. 432-436; s. c., 2 Sweeney, 351.

ARTICLE SECOND.

GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST.

c. 556. Order required for arrest; how granted.

557. Proof necessary to procure order.

668. When order may be granted; effect of complaint subsequently made.

659. Security, upon order of arrest made by a judge.

560. Id.; upon order of arrest granted by the court.

661. Contents of the order; to whom directed; when to be exe

cuted.

562. Copies of papers to be delivered to defendant; originals to be filed.

563. Arrest; how made.

564. General provision as to privilege from arrest; discharge of privileged person.

565. Privilege of officers of courts.

566. Defendant arrested to have twenty days to answer.

567. When application to be made to vacate order of arrest, etc.

568. How and to whom application must be made; opposing it by new proofs.

572. Supersedeas, unless defendant is charged in execution, etc.

§ 556. [Amended, 1877.] Order required for arrest, how granted.- An order for the arrest of the defendant, except as otherwise prescribed in section five hundred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge. Co. Proc., 180. See 2 606 and 638, post; Kennedy v. Simmons, 4 T. &C. 82; 8. c., 1 Hun, 603; Webber v. Bally, 9 Alb. L. J. 276; Seymour . Mercer, 13 How. 564; Conklin v. Dutcher, 5 id. 386.

557. [Amended, 1879.] Proof necessary to procure order. -The order may be granted, in a case specified in section five hundred and forty-nine of this act, where it appears by the affidavit of the plaintiff or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section five hundred and fifty of this act, upon the like proof that a sufficient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in that section. The affidavit may also contain any statement, tending to determine the amount of bail to be required.

Id., 181, with modifications. Palmer v. Hussey, 59 N. Y. 647; Wicker v. Harmon, 21 How. 462; s. c., 12 Abb. 476; Crandall v. Bryan, 15 How. 48; Whitlock v. Roth, 10 Barb. 78; Satow v. Beisenberger, 25 How. 164; Blason v. Bruno, 33 Barb. 520; s. c., 12 How. 112; Brooklyn Daily Union . Hayward, 11 Abb. N. S. 235; Buchanan Farm Oil Co. v. Woodman, 4 T. & C. 193; s. c., 1 Hun, 639; Muller v. Perrir 4 Abb. N. S. 95.

558. [Amended, 1879, 1886.] When order may be granted; effect of complaint subsequently made.— Subject to the provisions of the last preceding section, the order may be granted at any time, after the commencement of the action. It may also be granted to accompany the summons, but at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint fails to set forth a sufficient cause of action, as required by section five hundred and forty-nine of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may without notice direct the service of an amended complaint so as to conform to the allegations required in subdivisions two and four of section five hundred and forty-nine of this act.

Id., 183. Dunaher v. Meyer, 1 Code R. 87; Mott v. Union Bank, 38 N. Y. 18; Sherlock v. Sherlock, 7 Abb. N. S. 22; Kern v. Rackow, 44 How. 443; Woodward v. Stearns, 10 Abb. N. S. 395.

559. [Amended, 1879.] Security upon order of arrest made by judge.. Except where the action is brought for a cause specified in subdivision third of section five hundred and forty-nine of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may

sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars.

Co. Proc., part of 182. Tannenbaum v. Cristalar, 5 Daiy, 141; Moses Waterbury, etc., 37 N. Y. Supr. 393; Newell v. Doran, 21 How. 427; Courter v. McNamara, 9 id. 255; Richardson v. Craig, 1 Duer, 666.

560. Id.; upon order of arrest granted by the court. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form, and the security to be given thereupon, must be such as the court prescribes.

New. Covers case of a ne exeat.

§ 561. [Amended, 1877.] Contents of the order; to whom directed; when to be executed. The order must be subscribed by the plaintiff's attorney, and, except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant, if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case, he cannot be arrested afterwards, under the same order.

Co. Proc., part of 183, am'd. Continental Bank v. De Mott, 8 Bosw. 696; Stone v. Martin, 2 Denio, 185; Tracy v. Griffin, 50 Barb. 70; s. c., 35 How. 209; Barker v. Cook, 40 Barb. 254; People v. Tweed, 63 N. Y.

202.

§ 562.* [Amended, 1879.] Copies of papers to be delivered to defendant; originals to be filed. The order of arrest, or, where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and, in either case, the papers upon which the order was granted, with the undertaking, if any; must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy thereof. The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order

of arrest, or a certified copy thereof, at the time prescribed for filing the same, in section five hundred and ninety of this act.

Co. Proc., 184, am'd by the addition of the last sentence. Bank d. Moore, 5 Hun, 624; Vladero v. Viadero. 7 id. 313; Dent v. Watkins, 49 How. 275; Keeler v. Belts, 3 Code R. 183; Barker v. Cook, 16 Abb. 13: 8. c., 25 How. 199; 10 Barb. 254; City Bank v. Lumley, 28 How. 397.

§ 563. Arrest; how made. The sheriff must execate the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law.

Id., first clause of 185. Thomp. Pro. Rem. 72. Who may make Arrest: Boughton v. Bruce, 20 Wend. 234; Hull v. Fisher, 9 Barb. 17; Boot v. Wagner, 30 N. Y. 1; Slater v. Wood, 9 Bosw. 15. Time of making: 1 Walt's Pr. 655; Rob v. Moffat, 3 Johns. 257. Place: Thomp. Pro. Rem. 80; 1 Walt's Pr. 657. Breaking doors: Id. Mode of arrest:

id.

§ 564. [Amended, 1395.] General provision as to privilege from arrest; discharge of privileged person. This title does not abridge or affect a privilege from arrest given by law, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest, where other provision is not made therefor by law, by the court, or a judge thereof; or by the county judge of the county where the arrest was made. The order must be made, upon proof, by affidavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both.

In effect Jan. 1, 1896; L. 1895, ch. 946.

New Wnesses: Mackay v. Lewis, 7 Hun, 83; Farmer v. Robbins, 17 How. 415; Slade v. Joseph, 5 Daly, 187; Hardenbrook's case, & Abb. 416; Cole v. McClellan, 4 Hill, 59; Merrill v. George, 23 How. 331; Seaver . Robinson, 3 Duer, 622; Salhinger v. Adler, 2 Robt. 704. Members of legislature: Corey v. Russell, 4 Wend. 204; Thomp. Pro. Rem. 72. Peace officers: Hart . Kennedy, 39 Barb. 186; 8. c., 15 Abb. 290; Squire'g case, 12 Abb. 38. Voters: Weeks v. Noxon, 1 Abb. 280; s. c., 11 How. 189; Bierce v. Smith, 2 Abb. 411. Severally: 1 Walt's Pr. 591, et seq.; Thomp. Pro. Rem. 72.

§ 565. Privilege of officers of courts. - An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, during the actual sitting, which he is required to attend, of a term of the court of which he is an officer, and no longer;(1) but an attorney or counsellor is not thus privileged, unless he is employed in a cause, to be heard at that term.(2)

* B. S. 290, 86 (2 Edm. 300), am'd. (1) H. Lot, 10 How.

(2) Rumphrey Cummings, 5 Wend. 90; Secor v. Bell, 18 Johns. 52; Corey v. Russell 4 Wend. 204; Cole v. McClellan, 4 Hill, 59; Petrie Fitzgerald, 1 Daly, 401.

answer.

§ 566. Defendant arrested to have twenty days to Except where an order of arrest can be granted only by the court, a defendant, arrested before answer, has twenty days, after the arrest, in which to answer the complaint; and judgment must be stayed accordingly.

Substituted for part of Co. Proc., 183.

§ 567. [Amended, 1877.] When application to be made to vacate order of arrest, etc. Except where an order of arrest can be granted only by the court, a defendant, arrested as prescribed in this title, may, at any time before final judgment, or, if he was arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply to vacate the order of arrest ;(1) or to reduce the amount of bail; or to increase the security given by the plaintiff; or for one or more of those forms of relief, together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like application may be made, at any time within twenty days after the arrest; and an application to increase the security given by the plaintiff, may be made at any time before final judgment.

Id. (1) Evans v. Holmes, 46 How. 515; Farmer v. Robbins, 47 id. 415; Corley v. Griffin, 36 N. Y. Supr. 575; Tallman v. Whiting, 5 Daly, 505; Griswold v. Sweet, 49 How. 171: Hoy v. Duncan, 33 N. Y. Supr. 555; Chambers v. Durand, id. 494; Wheeler v. Brady, 4 T. & C. 547; 8. C.. 2 Hun, 347; Pelo v. Clukey, 36 How. 179; Dunaher v. Meyer. 1 Code R. 87; Cayuga Bank v. Warfield, 13 How. 439

§ 568. [Amended, 1877.] How and to whom motion must be made; opposing it by new proofs. - An appli cation, specified in the last section, may be founded only upon the papers upon which the order was granted; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper; and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to any judge of