ADRIENCE against LAGRAVE

ADRIENCE against LAGRAVE. Supreme Court, First District; Special Term, March, 1874. Arrest.—Service op Process. —Fraud in Bringing Dependant Within Jurisdiction. Where a person is brought by fraud- within the jurisdiction of the court, creditors who did not participate in the fraud, may serve summons upon him, and in the action thus instituted, may resort to all the auxiliary remedies which the law gives, —e. g., arrest. The presumption being in favor of the jurisdiction of the court, if the creditor who effects such arrest explicitly denies in his affidavit that he was a party to the arrangement by which defendant was wrongfully brought within the jurisdiction, the defendant’s motion to set aside the arrest should be denied. In two actions—one by James B. Adrience, and others, and the other by Herman Bacharch, and others, against Alfred E. Lagrave, the defendant moved to set aside the service of the summons and complaint?, and to vacate the orders of arrest, which had been granted. Charles W. Brooke, for the motion. D. M. Porter & L. A. Gould, for plaintiff,' opposed. I. A general appearance waives all objections to jurisdiction, and to defects in process, and service even such as would otherwise be fatal (Pixley v. Winchell, 7 Cow., 366). Where a defendant appears, though the process be void, and he is ignorant of the fact, at the time of his appearance, yet the court will not after-wards set that or the subsequent proceedings aside (Coppernoll v. Ketcham, 56 Barb., 113). The service of an order of arrest, when defendant is exempt from arrest, cannot be set aside if defendant does any act towards an acceptance or appearance (Petrie v. Fitzgerald, 1 Daly, 405; Ballouhey v. Cadot, 3 Abb. Pr. N. S., 122 ; Dix v. Palmer, 5 How. Pr., 233.; Flynn v. Hudson R. R. R. Co., 6 Id., 309; Webb v. Mott, Id., 439 ; Allen v. Malcolm, 12 Abb. Pr. N. S. 335; Murray v. Vanderbilt, 39 Barb., 140). II. The defendant has appeared in these actions generally. He has so appeared by indorsements, and- signatures of his attorney, generally, and by- putting, in and serving notice of justification of bail in each of the actions (Baxter v. Conklin, 9 How. Pr., 445; Dole v. Manly, 11 Id., 138 ; Kelsy v. Covert, 15 Id., 92; Ayres v. Western R. R. Co., 48 Barb., 133; Quin v. Tilton, 2 Duer, 648 ; Quick v. Merrill, 3 Cai., 132 ; McKensler v. Van Zandt, 1 Wend., 13; Cooley v. Lawrence, 12 How. Pr., 176; also cases cited supra). III. The defendant avers on information.and belief only, that the plaintiffs had something to do with his being brought back to this country; this th%y positively* and fully deny. The burden of proving any such, fraud against the plaintiffs lies upon the defendant who asserts it; he has wholly failed to prove it (Henry v. Henry, 8 Barb., 588). IV. The defendant was brought into this State,. as the papers show, as a fugitive from justice, upon a criminal charge, from which the order of Judge Fanches does not discharge him. An order of arrest, issued against him after he is so brought within the jurisdiction of the court, will not be set aside (Williams v. Bacon, 10 Wend., 636). V. The language used in the opinion of Mr. Justice Dan [els, relied on by the- defendant, was wholly obiter. Without any act or default whatever on their part, how can it be pretended that the defendant may escape the just and legal consequences of a fraud against them, because other parties have committed a fraud against him % It is not denied that plaintiffs have a cause of action, and they are therefore entitled to arrest. If fraud brought the defendant within reach of his own victims, and enabled them to seize his person, his remedy is against the parties who enticed him. VI. But it appears that when the orders of arrest were issued in these actions, the defendant had been long discharged from custody under the alleged fraudulent orders of arrest, and was at liberty, so far as they were concerned, to return to France. He failed to do so ; the plaintiffs, upon just grounds, and finding him here, like any fraudulent debtor, took the measures provided by law against him. The facts fully appear in our report of somewhat similar proceedings, in Lagrave’s case, in 14 Abb. Pr. N. S., 333, 234. [MAJORITY — Lawrence, J.] Lawrence, J. The defendants, at the time the summons and. complaint, and orders of arrest, in these actions were served upon him, was within this State, and, therefore, presumptively subject to the process and orders of this court. To sustain the claim that the ■defendant was not, .at the time • of the service of the .summons and complaint and orders of arrest, subject" to the jurisdiction of this court, it is alleged by the defendant in his moving affidavits, that the plaintiffs in these actions were parties to the alleged fraudulent arrangement or conspiracy between one James Mooney and various creditors of the defendant, in pursuance of which, the defendant was kidnapped in France, by Mooney, and, by a requisition on a criminal charge, extradited to this State ; that the design of bringing him within the jurisdiction was in order to arrest and hold him to bail in civil actions. So far as these creditors of the defendant,- who are parties to such arrangement, are concerned, this court has already héld that the defendant was entitled to be discharged from arrest in suits brought by such creditors, on the ground that an arrest procured by a trick or fraud is illegal (See Lagrave’s case, 14 Abb. Pr. N. S., 336, and cases cited in opinion of Fancher, J). In these cases, however, the allegations in the defendant’ s affidavits, that the plaintiffs were concerned in, or parties to the trick or ■ device by which the defendant was transported from France to this State, are flatly denied, and it seems to me, therefore, that the defendant cannot, as against these plaintiffs, claim that his person had been wrongfully brought within the jurisdiction of this court. In the case of this defendant, Judge Davis held that a creditor whó has not participated in the wrongful proceedings against the defendant, might lawfully serve him with a summons in a civil action (Lagrave’s case, 14 Abb. Pr. N. S., 344). I see no good reason why, if such a creditor can serve the defendant with a summons, and thus institute a civil action against him, he is not entitled to resort to all the remedies which the law gives to the plaintiff, as incidental or auxiliary to such action. If the defendant is subject to the process of the court for the purpose of commencing the action, it seems to me conclusively to follow, that he is amenable to all orders and processes which may naturally arise and grow out of such action. It being, therefore, denied by the plaintiff's, that they were parties to the arrangement by which the defendant was wrongfully brought within the territory of this State, and the presumption being in favor of the jurisdiction of the court,-and it being also incumbent upon the defendant to establish affirmatively that he was not within nor subject-to such jurisdiction at the time of his arresj:, and of the service of the summons and complaint, I am of the opinion that these motions should he denied. - Motions denied, with ten dollars costs in each case.