Opinion
June, 1900.
Joseph A. Burr for motion.
George S. Ingraham opposed.
This was a suit in equity to set aside a conveyance of real estate by the plaintiff to the defendant, on the ground that the defendant while acting as the attorney at law of the plaintiff obtained the same of him at an inadequate value by means of false statements and advice as such attorney; and for an accounting of the rents received by the defendant, and of all credits or deductions he was entitled to, and that judgment should be given for the balance found due to either party. Judgment was obtained against the defendant setting aside the conveyance, and for a balance found against him. An execution against the person can be issued where the plaintiff had from the nature of the action a right to an order of arrest against the defendant, or in any other case where such an order was granted and executed (Code Civ. Pro., § 1487). The nature of this action did not entitle the plaintiff to an order of arrest (§ 549); and no order of arrest was granted on extrinsic facts. This section allows orders of arrest in actions to recover a fine or penalty, or chattels, or to recover "damages" for specified torts, and in other enumerated common-law actions. It does not seem to embrace suits in equity. If an action for any of the causes specified in it should be brought on the equity side of the court for special reasons giving equity jurisdiction, no doubt the right to arrest would follow the cause of action there. But the present cause of action is not enumerated in the section at all.
The motion is granted with $10 costs.