#### Wm. W. Wright *et al.*plaintiffs and appellants, *vs.*Israel Ritterman, defendant and respondent.

1. The pendency of an action upon contract, for goods sold and delivered, will not prevent the bringing of an action for the conversion of the same goods. The plaintiff' may have two remedies, in such a case; and an adjudication in an action brought to obtain either, whether for or against him, may be a bar to the other; but at any time previous to such an adjudication, he may discontinue the first action and proceed with the second.

2. The general rule, however, is that no man shall be twice vexed by an arrest for the same cause of action.

3. Where a defendant has been discharged from imprisonment under an order of arrest, by due course of law, he ought not to be re-arrested, and imprisoned a second time, for the same cause, though in a different form of action.

(Before Robertson, Oh. J., and Monelb and Garvin, JJ.)

Heard May 14, 1866;

decided June 30, 1866.

The defendant, on the 26th of September, 1865, falsely and fraudulently represented to the plaintiffs, with intent to cheat and defraud them, that he was worth the sum of $10,000, and on the faith of that representation they sold him and he obtained from them, a bill of goods amounting to nearly four thousand dollars.

The plaintiffs, on the 14th of September, 1865, commenced an action in the Supreme Court for goods sold and delivered, and obtained an order of arrest for the defendant, whereon he was held to bail in the sum of $4000. Upon this order he was arrested and imprisoned. The defendant made and served his answer on the 14th of December, 1865, containing a general denial of the plaintiffs’ complaint. The action in the Supreme Court is still pending. Being imprisoned and con*705fined under and by virtue of the aforesaid order of arrest, the defendant applied to his honor the city judge, by petition, for exoneration of his person from imprisonment, and on the 14th of February, 1866, he was released and discharged under the provisions of art. 5, title 1, part 2, ch. 5, of the Revised Statutes. After his release and discharge, and on the same day, an action was commenced in this court against him, for fraudulently converting the plaintiffs’ goods, wherein an order of arrest was issued and the defendant thereupon arrested and re-imprisoned, it being for the same transaction for which an action upon contract was brought in the Supreme Court; the action in this court being for a *tort.*A motion was made to vacate the order of arrest, before a justice of this court, and granted upon the ground that pending an action upon contract, for goods sold and delivered, no action can be maintained for the conversion of the same goods. The plaintiffs appealed from that order.

*0. Bainbridge Smith,*for the appellants.

1. An old English rule of court prescribes that a “defendant should not he holden to bail a second time for the same cause of action.” *(Petersdorf on Bail,*131. 10 *Law Lib. p.*72.) *Nemo debet bis vexari pro eadem causa.*Therefore where a defendant was arrested on a new writ, pending a prior action wherein he had been previously arrested for the same cause, the court discharged him on common bail. (1 *Tidd’s Pr. Am. ed. and Notes,*1856, 175.) In the case at har, the defendant was discharged from imprisonment by the insolvent act before he was arrested on the order of arrest made in the second action. The act, of which the defendant took the benefit, does not exempt debtors from imprisonment in actions for tort. (2 *R. S. 4th ed.*30. *Kennedy*v. *Strong,*10 *John.*289. *S. C.*14 *id.*128. *Hayden*v. *Palmer,*24 *Wend.*364. 24 *id.*128.)

II. Under the English rule and the maxim cited there were exceptions. Such as after a *non pros.*(1 *Strange,*439 ;) or nonsuit for not sufficiently proving the execution of a bond, *(Barnes,*73;) or failure (on the ground of variance) in a former *706action, (1 *Chit.*273 ;) or where the plaintiff became bankrupt before interlocutory judgment, (15 *East,*631;) or where after suing out common process, a bailable writ was issued for the same cause, before discontinuing the first action., (6 *Term R.*616; 1 *Chit.*276; 13 *Price,*8;) or where the bail had been forsworn. (2 *Strange,*1216.)

III. So, in the case at bar where the defendant has commited so gross a fraud, the court should not seek to discharge him, but .endeavor to uphold the order of arrest, unless it violates some positive rule of law.

IV. The court, at special term, seems to have discharged the defendant upon the ground, that the plaintiffs, having elected to sue upon the contract, could not afterwards sue the defendant for the tort, while the first action was pending. This is farther than any case in this country has ever gone, and, it is" submitted, cannot be supported by principle or authority.

The principle of election of remedies or waiver of right to an action is not applicable; nor does it arise in a case like the one at bar, because no judgment was recovered in the first suit, and until verdict or judgment, the plaintiffs had a right to discontinue. *(Bank of Beloit*v. *Beale,*7 *Bosw.*611, 626, 630. *Sanger*v. *Wood,*3 *John. Ch.*416;) and the first suit could be discontinued at any time before the reply is due, or within the time to serve it, if one were necessary. *(Marston*v. *Lawrence,*1 *John. Cas.*397. *Averill*v. *Patterson,*10 *N. Y. Rep.*500. *Beals*v. *Cameron,*3 *How. Pr.*414.)

V. If the plaintiffs’ present action can be maintained, the order vacating the order of arrest must be reversed. That is the foundation, upon which the court at special term vacated the order. The action is one, in which the plaintiffs are entitled to an order of arrest, and execution can issue against the defendant’s person. *(Code,*§ 288.) The fraud is self-evident, and is not denied. He does not swear that he intends to plead the former action. Is it right for the court to anticipate that he would; and if he should so plead, he would find the former action discontinued, and if it were not, the right to discontinue after plea is available to the plaintiffs.

*707
      *B. F. Sawyer,*for the respondent.

I. The second order of arrest in this action was granted after the defendant had obtained his discharge under the insolvent act, the action in which it was issued, being for a cause existing previous to such discharge. This is, of itself, sufficient to vacate the order of arrest. (3 *R. S. 5th ed. p.*104, §§10,11.)

II. The question of the good faith or regularity of the discharge cannot be raised on this motion. *(Reed*v. *Gordon,*1 *Cowen, 50. Dresser*v. *Shufeldt,*7*How. Pr. 85. Noble*v. *Johnson,*9 *John.*259. *Russell*v. *Packard,*9 *Wend.*431. *Wall*v. *Thorn.*14 *Abb. Pr.*292, *n. Rich*v. *Salinger,*11 *id.*344. *Stuart v. Salhinger,*14 *id.*291, *and n.)*

III. The discharge in the present case .exempted Ritterman from imprisonment upon orders of arrest issued in actions sounding in tort, brought after, but upon causes existing before, such discharge. '

1. At common law, the body of the debtor was not liable to execution for debts, except at the suit of the king. Otherwise in actions for tort, and Coke gives the reason. *(Winchester’s case,*3 *Coke,*12, *and numerous cases cited in notes.*3 *Black. Com.*414.)

2. This distinction is preserved by the Code with an extension of the remedy to certain cases besides those of technical trespass *vi et armis.*The order of arrest was intended as a method of securing the presence of the debtor, in the event of judgment being rendered against him, so as to enforce it against his person. The old rule of the common law prevailed until 1862, that he cannot be charged in execution, unless this order of arrest had issued before judgment. *(Code,*§§ 179, 288.) As to election of remedies, see *Morris*v. *Rexford,*(18 *N. Y Rep.*552.)

3. The courts uniformly hold, even under the old practice, that an insolvent discharge operates as well upon debts *ex delicto*as upon those *ex contractu,*even in regard to executions against the person, issued after the discharge, for *torts*
      *708committed previously, and have disposed of objections urged in nearly the same language as those now made. *(Luther*v. Deyo, 19 *Wend.*629. *Ex parte Thayer,*4 *Cowen,*66. *Hayden*v. *Palmer,*24 *Wend.*364, 366. *Deyo*v. *Van Valkenburgh, 5 Hill,*242.)

4. It is no answer to say that the debt is fixed by the judgment and the cause of action is merged in it; and that the amount claimed in suits for *torts*being unliquidated, are not technically “ debts ” until reduced to judgment.

(1.) The object of the order of arrest, as shown, is to detain the person of the debtor until execution can issue against him.

(21.) It is absurd to contend that a man may be held on an order of arrest issued after his discharge under the insolvent act, when no execution against his person, issued on such judgment, could imprison him while that discharge was in force.

(3.) The Revised Statutes, which must be regarded as still in force, contemplated no such artifical distinction. By the term “ debt ” was meant whatever the law would compel the insolvent to pay, whether certain or not. In other words, it exempted his person from imprisonment for a legal liability to a third party to pay him money. The amount is only a question of computation. (3 *R. S. 5th ed. p.*104, § 10. *Andrews*v. *Murray,*9 *Abb. Pr.*8, 14, *Newell*v. *The People,*3 *Seld.*124.)

(4.) Indeed, if the cause of action exists in any of these suits, and no defense exists, the whole question is the *amount*of damages. The “debt” exists and is merely rendered certain by the judgment; •“ *absente obligations absente jure actionis.” (Riley*v. *Byrne,*2 *Barn. & Ad.*779.)

(5.) If, therefore, the “debt” exists, though prior to judgment in an unliquidated form as to amount, it is covered by the express language of the statute; which, in exonerating the insolvent from imprisonment draws no distinction as to time, whether before or after judgment. (3 *R. S. 5th ed.*
      *709104, § 10.) On a motion, the recitals in a discharge are conclusive. (Wa*ll*v. Thorn, 14 *Abb. Pr.*292, *note.)*

*5.*It was not necessary that a judgment should be entered, to entitle the defendant to be discharged from his imprisonment. The act, section 11, under which the discharge was granted, provides for his release upon *mesne process.*That is upon any and all processes inferior or less than that on a final judgment. That section of the statute is without force or meaning if not applicable to the case of the defendant.

6. If the defendant was released by virtue of his discharge from imprisonment in the *first action,*it was clearly wrong and illegal for the plaintiff to *change merely the fiorm of action,*and in another court obtain a *second order of arrest,*for the purpose of evading the force and effect of his discharge.

Y. The first action and order of arrest was still pending when the *second*action was commenced, and an order of arrest obtained for the same cause and subject matter. This, of itself, is fatal to the plaintiffs. *(See Groshon*v. Lyon, 16 *Barb.*461, *anonymous case, Goldsboro,*30, *anno.*28 *Eliz.)*

1. Where there are two proceedings pending between the same parties for the same cause of action, the proceedings first commenced are a bar to the last. It matters not that the prior proceeding is not an action, but was instituted by the petition of the new party, who sets it up as a bar.

2. The principle governing such cases, is, that if full relief can be had in the one suit, no others shall be allowed. And it is the intention of the *Code*now, as it was of the law before, that if there is a decree made, under which all persons interested may come in and obtain their rights, effectually, no other action shall be allowed.

By the Court,

Garvin, J.

It is contended in this case, on the part of the respondent, that the pendency of the suit in the Supreme Court establishes that even if the debt was fraudulently contracted, the plaintiffs, by bringing their suit in the Supreme Court, have affirmed the contract and should *710be held to abide by that, as an election of their remedy, and not be allowed to bring an action for the conversion of the goods. If the first action had proceeded to judgment, there can be no doubt the plaintiffs' cause of action would have been gone forever, both upon contract and tort. But until judgment, it is quite clear if the defendants pleaded the pendency of a former suit for the same cause of action, the plaintiffs could reply a discontinuance of such former suit, which would be a good replication. *(Averill*v. *Patterson,*10 *N. Y. Rep.*501, 502.) Until the judgment the plea is to the form of the remedy, in abatement of the action ; but after judgment, it is in bar of the right of recovery. *(Nicholl*v. *Mason et. al.*21 *Wend.*339.) In either of these forms' of action, the defendant could be arrested at the commencement of the suit, and, if judgment was recovered against him, imprisoned upon the execution. Thus, as a matter of interest to the defendant, it could make no difference which form of action was pursued by the plaintiffs in the first instance.

Upon the facts disclosed in this case the plaintiffs had two remedies; and an adjudication upon either, either for or against the plaintiffs, would have been a bar to the other ; but until such adjudication, I see no reason in principle or authority which would preclude a discontinuance of the first action and a resort to the second. (7 *Bosw.*611.) It is, however, quite another question whether, if a party hold the defendant to bail by order, in an action upon contract, upon which he is arrested, imprisoned and exonerated by due course of law from such imprisonment, he can. pursue the same course of arrest and imprisonment in the second suit; especially where the statute declares that the person of such insolvent shall forever thereafter be exempted from imprisonment for any debt due at the time of making such assignment, or contracted for before that time. (2 *R. S.*30, § 10.) This claim was á debt; so treated by the plaintiffs, in the first action, (though, as it is alleged, fraudulently contracted,) therefore falling directly within the provisions of chapter 5 of 2 Revised S tatutes, 30, § 10.

This is a proceeding for the benefit of an insolvent debtor-—■ *711not an insolvent imprisoned in execution in civil causes ; but the case of an insolvent debtor in prison in any suit or proceeding founded upon any contract or liability due at the time of his assignment. *(2 R. S.*31, § 11.)

The plaintiffs say this was a debt, bring their suit upon the contract, for goods sold and delivered, obtain an order of arrest upon the ground that the *debt*was fraudulently *contracted,*and instead of going for a conversion of dhe goods, insist upon a recovery on the contract. We think the defendant was properly discharged by the city judge from imprisonment under the order of arrest, and that the case falls directly within the statute.

But if the discharge is void, then the order of arrest in this court should have been vacated for the reason, that the first order remained in full force. A defendant should not be imprisoned or held under two orders of arrest at the same time, founded upon the same transaction, or cause of action. Both these actions are for the same cause, though the forms of action-are different.

Assuming the discharge to be valid, can the defendant ■ be arrested a second time for the same cause of action ? The general rule is that a man shall not be arrested a second time for the same cause, ( *Wells*v. *Gurney,*8 *B. & C.*769,) although the second arrest be in a different form of action. (3 *East,*309. 8 *Taunt.*24. 3 *D. & R.*189.)

It is true, it has been held that if the plaintiffs’ attorney has misconceived his form of action, he may discontinue, and nold the defendant in another action for the same cause, (14 *John.*347;) provided the discontinuance did not arise from any laches on the part of the plaintiffs, and the second arrest do not appear to be vexatious ; but that is not this case. It is a legal maxim that no man shall be twice arrested for the same cause. This applies to the same jurisdiction, and is conceded to be the general rule. We think it a safe rule, and one that is reasonable and easy of application, that where a defendant has been discharged from imprisonment *712under an order of arrest, by due course of law, he should not be re-arrested and imprisoned a second time for the same cause, though in a different form of action.

The order made at special term should be affirmed, with costs. ■