Henry Hyer v. Treadwell S. Ayres, 2 E.D. Smith 211

Ingraham, First J. I concur in vacating the order of arrest in this case, with the qualifications stated in the opinions of my brethren as to the propriety of holding to bail, under the peculiar circumstances in which this action was brought. Daly, J.

After a very full examination of the case, I am of opinion that the order of arrest should have been vacated, and have nothing to add to the reasons set forth in the lengthy opinion below, except that the right to hold to bail does not depend exclusively upon the question of residence or non-residence ; but where a non-resident comes into this jurisdiction for the purpose of prosecuting a non-resident; under circumstances seemingly oppressive, or indicating a desire to annoy and subject him to unusual inconvenience, the court will scrutinize the case closely, and exercise a sound discretion in the matter.

Woodruff, J. I have attentively reconsidered the matters embraced in the order appealed from herein, and have reexamined the affidavits read at the special term. Upon a review of the whole subject, I am strengthened in the views which I there expressed, and fully confirmed in the opinion that the plaintiff does not present a case in which the order of arrest should be sustained.

It is, therefore, unnecessary to consider the point, (not dwelt upon in the opinion pronounced below,) that no action will lie at law, nor in the form of the present action, by a cestui que trust against the trustee, for neglect or breach of duty in the administration of property assigned to him for the benefit of the plaintiff and other creditors of the assignor. That subject was discussed before us in another case, at the November term, 1852. Doubtful as that is, the objection only goes to a part of the alleged cause of action.

My opinion at the special term is, therefore, adopted by me as my opinion on this appeal. A suggestion from one of my brethren leads me to add, that that opinion does not rest upon the ground that the eight to hold to bail depends at all upon the residence or non-residence of the plaintiff or of the defendant.

On that point it goes no further than to say, that when a non-resident comes into this jurisdiction, for the purpose of prosecuting a non-resident, under circumstances seemingly oppressive, and indicating a desire to annoy and subject the defendant to unusual inconvenience, the court will inquire much more closely, and scrutinize with greater strictness, if not severity, the case which the plaintiff presents as the foundation of his application for the order to arrest. The order appealed from should be affirmed. See the case of Bishop v. Houghton, 1 E. D. Smith’s C. P. R. 566.