Adrience v. Lagrave

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" *275to 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 con*276clusively 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.