Levy v. Appleby

McAdam, J. While it is true that the bailor who sues his bailee for not fulfilling an express contract or one implied by law between bailor or bailee, may, in form, overlook the contract, and at his election resort to case or trover, according to the nature of the injury, yet the mere form of the action cannot be allowed to govern the right of arrest. The statute forbidding imprisonment was intended to reach those cases wherein the plaintiff may, in fact, have given credit to the defendant, except when the same was induced by fraud. The plaintiff cannot, by electing to sue in case or trover, change the truth ; and it is in this that the privilege of the defendant consists. The law will not allow that to be done indirectly which.it forbids to be done directly (see Brown v. Treat, 1 Hill, 225 ; Campbell v. Perkins, 8 N. Y. 430; People Willett, 6 Abb. Pr. 37). This general rule, applicable to innkeepers, common carriers and other bailees, applies to and controls the present .application. The arrest will, therefore, be vacated. Noth.—No appeaLwas taken.