Voters on election day- Females.

"going" and "returning" from court. Salhinger v. Adler, 2 Rob. 704. Thus, where a plaintiff attends in good faith a court where his cause is to be tried, even before the actual day of trial, he will be privileged from arrest. Childerston v. Barrett, 11 East, 439. See Meekins v. Smith, 1 H. Bla. 636. So, although a party or witness may waive his privilege of exemption by deviating from a direct route on his return home, if for the purpose of attending to other business, yet liberality must be exercised in all cases as to the reasonableness of the time allowed for going or returning, and the burden of establishing a deviation rests upon the arresting party. Salhinger v. Adler, 2 Rob. 704; Selby v. Hills, 8 Bing. 166; Willingham v. Matthews, 6 Taunt. 356.

The exemption from arrest is not limited to attendance upon court, but extends to any legal proceeding before any officer where such attendance is necessary or may be compelled. Thus parties or witnesses are exempt from arrest while attending before a referee. Clark v. Grant, 2 Wend. 257. So when attending before arbitrators under a rule of the court. Randall v. Gurney, 3 Barn. & Ald. 252; Webb v. Taylor, 1 Dowl. & L. 676; Sanford v. Chase, 3 Cow. 381. A person attending court for the purpose of justifying as bail is exempt from arrest. Rimmer v. Green, 1 Maule & Selw. 638. So a person attending court for the purpose of opposing an insolvent's discharge is privileged. Willingham v. Matthews, 6 Taunt. 356; Arding v. Flower, 8 Term R. 534; Ex parte Parker, 3 Ves. Jr. 554; Ex parte Donlevey, 7 Ves. 317.

Grand or petit jurors are protected from arrest, and are entitled to the same privileges as parties or witnesses while going to court, or in attendance, or returning therefrom. McNeil's Case, 3 Mass. 288; Brookes v. Chesley, 4 Har. & McHen. 295; Edme's Case, 9 Serg. & R. 147, 151.

h. Voters on election day. Voters at any election or town meeting are exempt from arrest on the day of such election or town meeting, while in the town where they are entitled to vote. 1 R. S. 126 (116), § 4; id. 342 (315), § 10. And any process served on a voter on such day is void. Weeks v. Noxon, 1 Abb, 280; S. C., 11 How. 189; Bierce v. Smith, 2 Abb. 411.

i. Females. A married woman is privileged from arrest in all civil actions. Anonymous, 8 How. 134; S. C., 1 Duer, 613; Schaus v. Putscher, 25 How. 463; S. C., 16 Abb. 353, note; Baldwin

Previous arrest.

v. Kimmel, id. 353; S. C., 1 Rob. 109. And no female can be arrested in any civil action except for a willful injury to person, character, or property. Code, § 179, subd. 5. A female cannot be arrested in an action for a breach of marriage promise. Sief ke v. Tappy, 3 Code R. 23. Nor for fraudulently contracting a debt. Wheeler v. Hartwell, 4 Bosw. 684. Nor for the wrongful conversion of personal property. Tracy v. Leland, 2 Sandf. 729; S. C., 3 Code R. 47; 8 N. Y. Leg. Obs. 234; Hovey v. Starr, 42 Barb. 435. The decisions are uniform in establishing the rule that the Code has restored the old common-law rule so far as the arrest of a female is concerned, and that the term "willful," as applied to an injury to person, character or property, must be construed strictly. Ib.

j. Previous arrest. It is a legal maxim that no man shall be twice arrested for the same cause, and although not universally true, is a general rule to which there are but few exceptions. Thus, when a party has been once arrested in a suit and discharged for insufficiency in the affidavits upon which the order of arrest was granted, he is absolutely exempt from further arrest by the same party in the same action. Enoch v. Ernst, 21 How. 96. So a previous arrest in an action exempts the defendant from arrest in another action, if for the same cause, although the second action is brought in a different court, and under a different form. American Flask Co. v. Son, 7 Rob. 233; S. C., 3 Abb. N. S. 333; Wright v. Ritterman, 1 id. 428; S. C., 4 Rob. 704; People v. Kelley, 1 Abb. N. S. 432; Hernandez v. Carnobeli, 10 How. 433; S. C., 4 Duer, 642; Housin v. Barrow, 6 Term R. 218; Imlay v. Ellefsen, 3 East, 309. And where a defendant has been arrested and discharged under the provisions of the Code, he cannot be re-arrested for the same cause of action under the non-imprisonment act. Matter of Johnson, 7 Rob. 269. So an arrest made before a cause of action has accrued will privilege the party so arrested from a second arrest for the same cause in another action commenced after the cause of action has accrued and after the discontinuance of the former action. Wheelright v. Joseph, 5 Maule & Selw. 93.

It is a well-settled rule that when an arrest has been procured by means of any trick or fraud, the party so arrested will be discharged on motion. Benninghoff v. Oswell, 37 How. 235; Metcalf v. Clark, 41 Barb. 45; Carpenter v. Spooner, 2 Sandf. 717 ;

Previous arrest.

S. C., 2 Code R. 140; Goupil v. Simonson, 3 Abb. 474. And if such fraudulent arrest was procured for the purpose of detaining the party arrested within the jurisdiction of the court until an arrest could be made under a valid process, the second arrest will be also void. Wells v. Gurney, 8 Barn. & Cres. 769; Snelling v. Watrous, 2 Paige, 314; Williams v. Bacon, 10 Wend. 636; Benninghoff v. Oswell, 37 How. 235. Thus where a party is arrested under an alleged criminal charge for the purpose of obtaining jurisdiction of his person, he will be exempt from an arrest on civil process at the suit of the party procuring the fraudulent arrest. Ib. And it is a general rule when a party is imprisoned upon void process he cannot be continued in custody under a legal detainer. Attorney-General v. Cases, 11 Price, 345; AttorneyGeneral v. Dorkins, id. 156; Birch v. Prodger, 1 Bos. & Pul. N. R. 135.

But it does not follow that where a party has been arrested on a criminal charge preferred in good faith, he is on that account exempt from arrest on civil process for the same cause of action, while going to or returning from the place of trial. A person acquitted under a criminal charge is not privileged from arrest while remaining at, or returning from, the place of trial. Hare v. Hyde, 16 Q. B. 394; S. C., 3 Law and Eq. 435; Williams v. Bacon, 10 Wend. 636. Neither is he so privileged when convicted on such charge. Lucas v. Albee, 1 Denio, 666. In either case the criminal action is at an end and the party so convicted or acquitted is liable to arrest on civil process.

But the defendant in a criminal action is privileged from arrest while going to, remaining at, or returning from the place of trial until the cause is finally determined by an acquittal or a conviction. Gilpin v. Cohen, 4 Law R. Exch. 131. When this result is reached the exemption ceases. Ib.

The rule that a party discharged from arrest on the ground of the insufficiency of the affidavits on which the order was allowed is exempt from further arrest, applies only to the parties thereto, and does not affect any third parties not in collusion with the arresting party. Barclay v. Faber, 2 Barn. and Ald. 743. A person who has been discharged from an arrest made when he was temporarily exempt is not on that account exempt from further arrest on the same process when the exemption ceases. It is the arrest and not the process which is void. And the party so arrested and discharged may be again arrested by the same

officer on the same order after the privilege has expired. Humphrey v. Cummings, 5 Wend. 90; Petrie v. Fitzgerald, 1 Daly, 401; Sperry v. Willard, 1 Wend. 32. The maxim that no man shall be twice arrested for the same cause is not universally true. The rule is applicable only to arrests made within the same jurisdiction. Thus, a person who has been arrested in another State and discharged from punishment under the laws of another State, may be arrested and held to bail here for the same cause of action at the suit of the same plaintiff. Peck v. Hozier, 14 Johns. 346. And see note to Andrews v. Heriott, 4 Cow. 508; Peel v. Elliott, 28 Barb. 200; S. C., 7 Abb. 433; 16 How. 484.

The decisions of the English courts furnish some important modifications to the general rule that a defendant once arrested and discharged is exempt from arrest a second time. These exceptions allowing a second arrest are: 1. Where a defendant obtained his discharge through fraud, or on conditions not subsequently performed. Cantellow v. Trueman, 2 Dowl. P. C. 2; Puckford v. Maxwell, 6 Term R. 52; Olmius v. Delany, 2 Strange, 1216. 2. Where a defendant obtained his discharge through fault of the officer, or mistake of the plaintiff's attorney, or some act for which the plaintiff was in no way responsible. Housin v: Barrow, 6 Term R. 218; Penfold v. Maxwell, 1 Chitty, 275, note; Molling v. Buckholtz, 3 Maule & Selw. 153; White v. Gompertz, 5 Barn. & Ald. 905; S. C., 1 Dowl. & Ryl. 555. It is a rule of the English courts that when a defendant has been discharged on account of the laches of the plaintiff he is exempt from arrest in suit instituted for the same cause of action. Wheelwright v. Joseph, 5 Maule & Selw. 93; Imlay v. Ellefsen, 3 East, 309. See, however, Peck v. Hozier, 14 Johns. 346.

k. Actions upon judgments. A judgment rendered in a court of this State becomes an express contract of record, in which are merged all the original causes of action. Suydams v. Barber, 18 N. Y. (4 Smith) 468; Mallory v. Leach, 23 How. 507; S. C., 14 Abb. 449, note; McButt v. Hirch, 4 id. 441; Goodrich v. Dunbar, 17 Barb. 644; Greenbaum v. Stein, 2 Daly, 223; Besley v. Palmer, 1 Hill, 482; Mills v. Duryee, 7 Cranch, 481; Hampton v. M' Connel, 3 Wheat. 234. As the original causes of action are merged and extinguished by the judgment, a defendant in an action upon such judgment cannot be arrested and held to bail, whatever may have been the character of the original demand.

Ib.

Actions upon judgments.

As to the former practice, see 2 R. S. 348 (359), § 7, sub. 1. This rule, however, goes no further. The consequences of a judgment, in respect to its effect as a merger or extinguishment of the original demand, are a part of the law under which the judgment itself is rendered, in the same manner as are those other common consequences of judgments, that a party may have execution upon them, and that they are not re-examinable on the merits of the controversy determined by them. In all these particulars, the effect of a judgment in the government where it is rendered is the subject of positive regulation by that government. Suydam v. Barber, 18 N. Y. (4 Smith) 468; Goodrich v. Dunbar, 17 Barb. 644; Besley v. Palmer, 1 Hill, 482. The effect of a judgment rendered in another State being thus determined by the law of that State, it becomes the duty of the courts of this State to give such judgment the same force and effect in any action founded thereon, as the constitution of the United States, by forbidding any State to pass any law that may impair the obligation of contracts, equally denies any effect to a State regulation which would indirectly impair the obligation of the original contract, by saying that it is merged in the judgment. Suydam v. Barber, 18 N. Y. (4 Smith) 468; Goodrich v. Dunbar, 17 Barb. 644. And see note to Andrews v. Herriott, 4 Cow. 508, 523. Thus, if by the laws of another State a cause of action is merged in a judgment, an action upon such judgment in the courts of this State will be treated as an action upon an express contract of record, and the defendant in such action will be absolutely exempt from arrest, so far as liabilities arising out of the original cause of action are concerned. If, on the other hand, the original cause of action is not merged in a judgment by the law of the State where it was rendered, it will not be considered as so merged here, and in an action founded upon such judgment the defendant will be liable to arrest for any fraud in the original contract to the same extent as if no judgment had been rendered. Ib. But, in the absence of any proof that. the original cause of action is not merged in a judgment by the laws of the State where such judgment was rendered, the court will assume that the law of such State does not differ from the law of this State in respect to such merger, and a defendant in an action upon such judgment will be exempt from arrest. See Suydam v. Barber, 18 N. Y. (4 Smith) 468; Goodrich v. Dunbar, 17 Barb. 644; Besley v. Palmer, 1 Hill, 482.