I concur in the conclusions of the Chief Justice and would add :—That the District Court Act, section'50, provides that when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon it must be so stated in the judgment and entered in the docket. What cases are such as subjects defendants to arrest and imprisonment upon the judgment therein, is to be determined by section 16 of the act, that being the only enactment of grounds for arrest in the district courts. Unless judgment in the action is rendered in defendant’s favor, or he is discharged from arrest (where the cause of arrest is collateral), he is liable to arrest upon execution against the person if he has been arrested pursuaht to section 16. This is apparent from the language of sections 25 and 26, providing for the undertaking to be given by defendants in custody on any of the grounds enumerated in section 16. They are to give an undertaking to appear on the adjournment day and to surrender themselves into custody, if any execution be issued on the judgment when obtained in the action. From* this enactment it is clear that the execution against the person may be issued in every case in which a warrant is issued, for the defendant could not surrender himself into custody *47(sec. 26) upon any other execution. If defendant, when arrested, moves for his discharge for the insufficiency of the plaintiff’s affidavits or the irregularity of plaintiff’s practice, or upon counter-affidavits disproving the ground of arrest, and his motion is granted, he is entitled to his discharge and to have the proceeding dismissed (Johnson v. Florence, 82 How. Pr. 280). Upon the authority of the last case, it seems clear that the dismissal of the proceeding is equivalent to a. judgment in defendant’s favor for want of jurisdiction, and that he is entitled to his costs ; and that if plaintiff would hold him for the debt he must issue a summons. It cannot be that defendant, having obtained a discharge of the warrant of arrest, is in court for any purpose, since the process upon which he is brought into court is set aside. These observations do not apply of course to cases where the cause of arrest and cause of action are identical. In such cases, if the plaintiff’s affidavits make out & prima facie case, it is the rule to try the question on the issues in the pleadings and not upon affidavits.
In this case the defendant was arrested -for fraud in contracting the debt sued on, and the cause of action was for debt (sec. 16, sub. 3). He made no motion to discharge the warrant, and judgment oh the debt was recovered against him. It was the duty of the justice to have entered in the judgment that defendant was liable to arrest (section 50).
The judgment should be reversed, with costs of appeal and of the court below to appellant.
Van Hoesen, J., concurred in the opinion delivered by Chief Justice Daly.
Judgment reversed.