Purchase v. Bellows

19 Abb. Pr. 306

Opinion

By the Court.

*—Bosworth, Ch. J.

This is an action to recover the possession of personal property. No order for the arrest ¿f the defendant was obtained.. He succeeded in the action. Can an execution issue against the person of the plaintiff for the costs ? ■ If the plaintiff had succeeded, no execution against the person could issue against the defendant. (Hoff, on Prov. Rem., 22, 23.) The plaintiff cannot be arrested, unless a plaintiff who fails to recover, and against whom a judgment is rendered for costs, may be subjected to execution against his body, in an action where no such execution could issue against the defendant, if the plaintiff had succeeded. Section 178 [153] declares that no person shall be arrested in a civil action, except as prescribed by that act.

The order should be affirmed.

Order affirmed, with ten dollars costs.

Present—Bosworth, Ch. J., and Moncrief, Robertson, Barbour, and Monell, JJ..