up a technical defence, to defeat a just claim (Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661); nor to set up any matter of defence known to the defendant at the time his former answer was put in (Houghton v. Skinner, 5 How. 420). The supplemental answer under the code is a substitute for the old plea of puis darrien continuance; but it differs from that plea in this respect, that the supplemental answer may be allowed on motion whenever the facts forming the ground of the answer have occurred since the answer was put in, or where the defendant was ignorant of them at the time of pleading the first answer; whereas the plea of puis darrien continuance could strictly be pleaded only before or at the next continuance after the facts transpired. When the facts asked to be incorporated and pleaded in a supplemental answer go to divest the plaintiff of the right to maintain the action, and transfer the cause of action to another, who has received satisfaction for the demand involved in it, it is the duty of the court to grant the motion, whether the motion be made at the earliest day or not (Drought v. Curtiss, 8 How. 56; see however Morell v. Garelli, 16 Abb. 269, where it is said that the application should be made promptly).

a. On motion for leave to file a supplemental answer the court will enquire into the truth and sufficiency of the proposed answer, and will not grant the leave unless the answer appear to be true in fact, and to state a good defence (Morell v. Garelli, 16 Abb. 269).

b. The putting in a supplemental answer does not necessarily waive the former answer, yet the court may make it a condition of leave to file such supplemental answer, that the defendant waive his original answer (Bate v. Fellowes, 4 Bosw. 639; and see Dann v. Baker, 12 How. 521). A supplemental pleading may be demurred to (Goddard v. Benson, 15 Abb. 191).

TITLE VII.

Of the provisional remedies in civil actions.*

CHAPTER I. Arrest and bail.

II. Claim and delivery of personal property.

III. Injunction.

IV. Attachment.

V. Provisional remedies.

SECTION 178.

CHAPTER I. ·

Arrest and bail.

No person to be arrested in a civil action, except as prescribed.

179. Arrest in civil actions, in what cases.

180.

181.

182.

183.

184.

Order for arrest, by whom to be made.

Affidavit to obtain order for arrest. To what actions this chapter applies.

Security by plaintiff before obtaining order for arrest.

Order for arrest, when it may be made, and its form; time to answer after or to move to vacate.

Original affidavit and order to be delivered to sheriff, and copy to be delivered to defendant.

185. Arrest, how made.

186. Defendant to be discharged on giving bail or making a de

192. Delivery of undertaking of bail to plaintiff, and its accept

193.

194.
195.
196.

ance or rejection by him.

Notice of justification. New bail.
Qualification of bail.

Justification of bail.

Allowance of bail.

197. Deposit in lieu of bail.

198. Payment of deposit into court.

199. Substituting bail for deposit.

200. Deposit, how disposed of after judgment in the action.

201. Sheriff, when liable as bail.

202. Proceedings on judgment against sheriff.

203. Bail liable to sheriff.

204. Vacating order of arrest or reducing bail.

205. Affidavits on motion to vacate order of arrest or reduce bail.

a. * Waiver of provisional remedy.-A plaintiff who has resorted to a provisional remedy waives it by uniting in his complaint causes of action to some or one of which the provisional remedy does not extend (Lambert v. Snow, 9 Abb. 91). (see posl. 374, ƒ, h).

§ 178.]

ARREST AND BALL.

§ 178. [153.]. No person to be arrested, except as prescribed. No person shall be arrested in a civil action, except as prescribed by this act; but this provision, shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.

a. Persons privileged from arrest.-The following-described persons are exempt from arrest on civil process: persons holding office under the Metropolitan Police act, whilst actually on duty (Laws 1860, p. 446, § 34); and a Metropolitan Police officer is not protected from arrest when not actually on duty by a rule of the Police Commissioners that he shall be deemed to be always actually on duty (Hart v. Kennedy, 15 Abb. 290; 14 Abb. 432; 23 How. 417; 24 How. 425; Squires' Case, 12 Abb. 38); Senators and Representatives in Congress, at certain times (Const. U. S. art. 1 § 6; 2 Johns. Cas. 222); and also members of the State legislature (1 R. S. 154, §§ 6, 7, 8, 9); and all officers of either house whilst in actual attendance upon the house (Id. § 10); electors, on day of an election (1 R. S. 126, § 4; Laws 1842, ch. 130, § 2); domestic servants of a public minister (1 Opin. Atty. Gen'l. 26); militia-men on parade days, from the rising to the setting of the sun (1 R. S. 303, § 27); non-commissioned officers, seamen, and mariners enlisted in the service of the U. S. during their term of office, for any debt or contract (Laws U. S. vol. 3, p. 97); parties to a suit, their attorneys and witnesses, in coming to, attending upon, and returning from court (2 Rol. Abr. 272; 1 Mod. R. 66; Barnes, 27, 378; Peake Ev. 193; Ĭ Camp. 229; 11 East, 439; 2 W. Blac. R. 1113; 4 Dallas, 387, 329; 6 Taunt. 358; 3 Eng. Law and Eq. R. 435; 29 id. 331; 1 H. Bl. 636; 3 B. & Ald. 252; 2 Marsh. 57; 8 Bing. 166; Newton v. Constable, 1 Gale & D. 408; 9 Dowl. 933), or any lawful tribunal, as an arbitration (Spence v. Stuart, 3 East, 89; Sanford v. Chase, 3 Cowen, 381), or commissioners of bankruptcy, or to give deposition before a magistrate, under an order of the court (Arding v. Flower, 8 T. R. 534; Walters v. Rees, 4 J. B. Moore, 34); and by the Revised Statutes (2 R. S. 402, §§ 51, 52, 53, 54, 55) "every person duly and in good faith, subpoenaed as a witness to attend any court, officer, commissioner or referee, or summoned to attend any judge, officer or commissioner, in any case where the attendance of such witness may be enforced by attachment or commitment, shall be exonerated from arrest in any civil suit, while going to the place where he shall be required by such subpoena, to attend, while remaining at such place, and while returning therefrom;" and provision is made for the discharge of persons arrested while so privileged, and declaring their arrest absolutely void, and for the means of exonerating the officer for not making the arrest, by an affidavit of the witness. The privilege extends to a non-resident (Merrill v. George, 23 How. 331; and see Seaver v. Robinson, 3 Duer, 622); does not extend to an arrest by bail, semble (Ex parte Lyne, 3 Stark. 470). It is a personal privilege, and may be waived by the witness by willingly submitting himself to the custody of the officer (Brown v. Getchell, 11 Mass. 11, 14; Geyer v. Irwin, 4. Dall. 107), or by putting in bail, or by a general appearance (Steward v. Howard, 15 Barb. 26). The privilege does not extend to a witness who attends voluntarily, without a subpoena (Hardenbrook's case, 8 Abb. 416; Re McNeil, 6 Mass. 264), except the witness be from a foreign state or country (Norris v. Beach, 2 Johns. 294; Sanford v. Chase, 3 Cow. 381; Hopkins v. Coburn, 1 Wend. 292). Where a witness attended on a subpoena before a referee, and was examined, his examination closed, and the hearing adjourned. On the adjournment day, the witness attended without any subpoena, but at the request of one of the counsel in the action, to be further examined; held, a voluntary attendance, and that he was not privileged from arrest (Hardenbrook's case, 8 Abb. 416). A person brought into this State as a fugitive from justice, is liable to arrest (Williams v. Bacon, 10 Wend. 536). A person under arrest on a justice's warrant, is privileged (Lone v. Humphreys, 9 Wend. 204). A person acquitted

of a criminal charge, has a reasonable time to reach home before he can be arrested in a civil action (Lucas v. Albee, 1 Den. 666). As to the privileges of attorneys and counsel, while attending court, see 4 Wend. 204; 1 id. 32; 5 id. 90; 4 Hill, 59; 18 Johns. 52. As to the privilege of an insane person, see post, in note to section 179. A sheriff is not privileged from arrest (Hill v. Lott, 10 How. 46).

a. The arrest on an order of arrest of a person while temporarily exempt from arrest, is not a ground for vacating the order of arrest, but only for discharging the defendant out of custody (Hart v. Kennedy, 15 Abb. 290; 14 Abb. 432; 23 How. 417).

b. Non-imprisonment act.-A warrant may now be issued under the act abolishing imprisonment for debt, in all the cases prescribed by that act (Gregory v. Weiner, 1 Code Rep. N. 8. 210; and see Corwin v. Freeland, 6 How. 241; 2 Belden, 560; Latham v. Westervelt, 26 Barb. 256; Krauth v. Vial, 10 Abb. 139). An assignee of a judgment recovered against a debtor for fraud and false misrepresentations, may institute proceedings under the act of 1831 for the arrest and imprisonment of such debtor (King v. Kirby, 28 Barb. 49).

c. Ne exeat.-The superior court of the City of New York hold that this writ is abolished by the Code (Johnston v. Johnston, 16 Abb. 43; 25 How. 181). The supreme court hold that it is not abolished (Forrest v. Forrest, 5 How. 125; 10 Barb. 48; Bushnell v. Bushnell, 7 How. 393; 15 Barb. 399; Rogers v. Michigan, &c., R. R. Co., 28 Barb. 539; Glenton v. Clover, 10 Abb. 422; Neville v. Neville, 22 How. 500). It is as much a writ of right as any other process (Gibert v. Colt, Hopk. 496; Mitchell v. Bunch, 2 Paige, 606). It may be applied for at any stage of the action, e. g., pending an appeal (Dunham v. Jackson, 1 Paige, 629); before decree (Denton v. Denton, 1 Johns. Ch. 441); before service of the summons (Bushnell v. Bushnell, 15 Barb. 399; 7 How. 389). Formerly it issued only to enforce equitable demand in the nature of debts actually due (Forrest v. Forrest, supra); and would not be granted where the demand was purely legal, nor where the defendant was an executor or administrator not shown to have assets in his hands (Smedbury v. Mark, 6 Johns. Ch. 138); nor where the amount in question is less than $100 (Palmer v. Doren, 2 Edw. Ch. 425); nor after the defendant has obtained a discharge from imprisonment (Ashworth v. Wrigley, 1 Paige, 301); nor where the defendant could be or had been held to bail at law (Pratt v. Wells, 1 Barb. 425); or was held to bail for the same cause in another court (Mitchell v. Bunch, 2 Paige, 606); nor where the defendant could not be arrested under the act for imprisonment for debt (Gleason v. Bisby, Clarke, 551), unless it was a cause of equitable cognizance (Brown v. Haff, 5 Paige, 235); or unless it was to prevent a failure of justice (Porter v. Spencer, 2 Johns. Ch. 169). It may issue on a creditor's bill to reach equitable assets (Ellingwood v. Stevenson, 4 Sandf. Ch. 366), or against a citizen of another State or country, on demands arising abroad (Woodward v. Schatzell, 3 Johns. Ch. 412; Gibert v. Colt, Hopk. 496; Mitchell v. Bunch, 2 Paige, 606); or against a foreign administrator or executor for an account (McNamara v. Dwyer, 7 Paige, 239); against a married woman (Neville v. Neville, 22 How. 500); but not against a non-resident coming into the State as a witness (Dixon v. Ely, 4 Edw. Ch. 557; Merrill v. George, 23 How. 331); nor on a demand against a vendor for specific performance (Cowdin v. Cram, 3 Edw. Ch. 231), nor on a demand not judicially ascertained on a penal bond by a surety against his principal (Gibbs v. Mennard, 6 Paige, 258; 2 Edw. Ch. 482).

d. To entitle a party to this writ, his demand must be satisfactorily ascertained, must be positively sworn to, except the amount, which may be on belief. It must be positively sworn that the defendant threatens or purposes to leave the State, and that the demand will thereby be lost or its recovery endangered. A statement of the fears of the applicant is not sufficient. Facts must be stated to enable the court to judge if the case be one in which it is proper to issue the writ (Forrest v. Forrest, 5 How. 125; 10 Barb. 48; Bushnell v. nell, 7 How. 389; 15 Barb. 399; Thorne v. Hulsey, 7 Johns. Ch. 189; and see BushOrdronaux v. Helie, 2 Ch. Sentinel, 69; Denton v. Denton, 1 Johns. Ch. 441; Mattocks v. Tremain, 3 Johns., Ch. 75; Woodward v. Schatzell, id. 412).

a. Any justice of the supreme court, or any county judge, may out of court allow writs of ne exeat in suits and proceedings in the supreme court, according to the course and practice of such court in such cases, and under such regulations as shall be provided by law, or by the rules and regulations of such court not inconsistent with law (Laws 1847, ch. 470, § 13). It is not necessary, although it is usual, that a ne exeat should be by writ: it may be by order enforced by attachment for contempt. The granting of this writ is entirely in the discretion of the court, and is granted with much caution (Pratt v. Wells, 1 Barb. 425).

b. The court determines the amount of bail, and the sheriff must take a bond for that sum without any addition (Gibert v. Colt, Hopk. 496; and see McNamara v. Dwyer, 7 Paige, 239). If the sheriff refuses bail, the court will take security and exonerate the sheriff. Time may be given the sheriff to produce the defendant, or to collect on the bail bond from the sureties (Brayton v. Smith, 6 Paige, 489). Sureties may, by statute, surrender their principal (Re Wolfe, 3 N. Y. Legal Obs. 383); and may arrest him wherever they can. (Id.) Semble, leave should be obtained to put the bond in suit, but the objection that no leave to sue was obtained may be waived (Harris v. Hardy, 3 Hill, 393). As to bail on ne exeat, see laws 1854, p. 251; and 1 Barb. Ch. Pr. 647.

c. It is of course to discharge a ne exeat on defendant's giving security (McNamara v. Dwyer, 7 Paige, 239; Mitchell v. Bunch, 2 id. 606).

d. The defendant may move to discharge the writ without security at any time before giving security, and he may, by leave of the court, give security without prejudice to his right so to move (Jesup v. Hill, 7 Paige, 95). But he cannot move while he is in contempt for disobeying an injunction (Evans v. Van Hall, Clarke, 22). On motion to discharge, defendant may deny or explain the affidavits on which the writ issued (Cowdin v. Cram, 3 Edw. Ch. 231), and may read his answer in the action (Gibert v. Colt, Hopk. 496; Thorne v. Halsey, 7 Johns. Ch. 189).

§ 179. [154.] (Am'd 1849, 1851, 1863.) Arrest in what cases. The defendant may be arrested, as hereinafter prescribed, in the following cases :

1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the State, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring or for wrongfully taking, detaining, or converting property.

2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied, by a public officer or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment.

3. In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it