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rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

This section was substituted for section 151 in the code of 1848, and under that section, where a declaration was delivered to the sheriff for service in June, 1848, but not served till after July 1, 1848, it was held that the declaration must be set aside, and that the party could not be relieved by that section. Diefendorf v. Elwood, 3 Pr., R., 285. 1 Code Rep., 42.

Where an affidavit to obtain an order of arrest was entitled in the cause, before the action was commenced, it was held to be a defect not affecting the substantial rights of the adverse party, and might, therefore, be disregarded under this section. Pindar v. Black, 2 Code Rep., 53. 4 Pr. R., 95. An answer intitled in the "supreme" instead of the "superior" court. The error may be disregarded. Williams v. Sholto, 4 Sand. S. C. R., 641. See section 406, and sections 173 and 289, note.

This section does not apply to pleadings in actions commenced before the code took effect. Dennistoun v. Mudge, 4 Barb. S. C. R., 243.

A defect in a pleading demurred to prior to the code going into effect is not cured by the 176th section. Vandenburg v. Valkenburg, 1 Code Rep. N. S., 169.

The 176th section adds but little, if any thing, to the power of amendment conferred by section 8 of 2 R. S., 2d ed., 344. Ib.

§ 177. [152.] (Amended 1849.) Supplemental complaint, answer, or reply. - The plaintiff and defendant respectively, may be allowed, on motion, to make a supplemental complaint, answer, or reply, alleging facts material to the case, occurring after the former complaint, answer, or reply, or of which the party was ignorant when his former pleading was made.

A supplemental complaint is not an addition to the original complaint, but in the nature of another original complaint, which in its consequences may draw to itself the advantage of the proceedings on the former complaint. Per Edmonds, J., in Furniss v. Brown (not reported.)

Circumstances happening after the commencement of the action must be brought before the court by means of a supplemental pleading. Hornfager v. Hornfager, 1 Code Rep., N. S., 180. Thus, where the action was commenced in September, 1850, for a partition, and in October, 1850, one of the defendants conveyed away all his interest in the premises to one Ely, who was not a party to the action. In December, 1850, the plaintiff amended the complaint, of course (being in time to do so), by alleging the conveyance to Ely. Such allegation was struck out on motion, and the court said, In this case the interest of the defendant, W. C. H., having been transferred to Ely after the original complaint was served, the plaintiffs should have applied under the 177th section, for leave to make a supplemental complaint, making Ely a party to the action instead of W. C. H.

In an action in the supreme court, a county judge cannot make an order under this section, allowing a supplemental pleading. Merritt v. Slocum, 1 Code Rep., 68. 3 Pr. R., 309. So held under the code of 1848. See now, section 401, sub. 2.

A. sued B. for an assault and battery. Afterwards, B. sued A. for slander. After issue joined in the action of A. against B., the action of B. against A. was tried; and on the trial A. set up in mitigation of damages the assault and battery for which he was then suing B. B. recovered only six cents damages, and in consequence, as was alleged by him, of the setting up of such assault, &c., in mitigation. B. now moved for leave to make a supplemental answer, to introduce the facts which had taken place since issue joined, and insisted, that as the plaintiff A. had set up the assault, &c., in mitigation of the action by B., he could not now recover damages for such assault. The court granted the motion, and said the facts which transpired on the former trial were material. How far they will go towards establishing a defence, it is not necessary to say. Radley v. Houtaling, 4 Pr. R., 251. The provisions of this section, it is presumed, will authorize a supplemental answer in the cases where

a plea of puis darrien continuance was formerly allowed. The provision contained in this section does not enable a party to set up by way of supplemental answer any defence known to him before the putting in of his former answer. Houghton v. Skinner, 5 Pr. R., 420. No doubt, the plea of puis darrien continuance cannot be put in as a matter of right after verdict. 2 Tidd's Pr., 775. 1 Paine and D. Pr., 508. i Burr. Pr., 423. Palmer v. Hutchins, 1 Cow., 42. And leave to put in an answer in the nature of a plea puis darrien continuance was refused, after two trials, where the defendant had knowledge of the facts sought to be set up thereby, before answering in the cause. Houghton v. Skinner, 5 Pr. R., 420.

As to pleas puis darrien continuance. It is said in Burrill's practice (p. 232 2d ed):

So, if any matter of defence has arisen since issue was joined in the cause, such as payment, a release by the plaintiff, the discharge of the defendant under an insolvent or bankrupt law, or a submission to arbitration followed by an award, and you have had no opportunity of pleading it before, you may plead it now puis darrien continuance. Such a plea may be pleaded either when the cause is called, or at any time after, before the jury have actually delivered their verdict.

If this plea be put in at the circuit, the trial cannot proceed; but the plaintiff must reply or demur to it, as in ordinary cases, 1 Arch. Pr. 199-201.

For an explanation of the phrase plea puis darrien continuance, and the origin and mode of pleading a plea puis darrien continuance, see Stephen Pl. 64., and Burrill's Law Dictionary.

TITLE VII.

Of the provisional remedies in civil actions.

CHAPTER. I. Arrest and bail.

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CHAPTER I.*

Arrest and bail.

SECTION 178. No person to be arrested, except as prescribed by this act. 179. Cases in which defendant may be arrested.

180. Order for arrest, by whom made.

181. Affidavit to obtain order. To what actions this chapter is applicable. 182. Security by plaintiff, before order for arrest.

183. Order, when made and its form.

184. Affidavit and order to be delivered to sheriff, and copy to defendant. 185. Arrest, how made.

186. Defendant to be discharged on bail or deposit.

187. Bail, how given.

188.

189.

Surrender of defendant.

190. Bail, how proceeded against.

191. Bail, how exonerated.

*This chapter applies to all actions commenced since June 30, 1848, see section 181.

SECTION 192.

Delivery of undertaking to plaintiff, and its acceptance or rejection
by him.

193. Notice of justification. New undertaking, if other bail.
194. Qualification of bail.

195.

196.

}

Justification and allowance of bail.

197. Deposit of money with sheriff.

198. Payment of money into court by sheriff.

199. Substituting bail for deposit.

200. Money deposited how applied, or disposed of.

201. Sheriff, when liable as bail; and his discharge from liability.

202. Proceedings on judgment against sheriff.

203. Bail liable to sheriff.

204. Motion to vacate order of arrest, or reduce bail.

205. Affidavits on motion.

§ 178. [153.] No person to be arrested, except as prescribed by this act. 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.

This section is identical with section 153 of the code of 1848, and upon that section it was held by the superior court, that the writ of ne exeat or equitable bail was abolished, and that arrest and bail as provisional remedies in civil actions of an equitable nature, could be obtained only in the cases and in the manner prescribed by the code. (Fuller v. Emeric, 2 Code Rep., 58.) The same conclusion was come to by the supreme court at special term. (Forrest v. Forrest, 3 Code Rep., 121); but on appeal in that case to the general term, it was held, that the writ of ne exeat was not abolished, that it remained as a "provisional remedy," which could not with propriety be denied to suitors when asked for in a proper case. That to authorize the issuing of a ne exeat, facts must be set out sufficiently on which the court or judge can repose its belief. Mere fears and apprehensions of the party are insufficient. Forrest v. Forrest, 5 Pr. R., 125. 3 Code Rep., 141.

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. "I see nothing in the code to prevent such a practice, and in case it should be adopted instead of issuing the writ in the first instance, section 178 would clearly warrant an arrest, per Edmonds, J. Ib. By the judiciary act of 1847 (Laws of 1847, p. 640, s. 13), a 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. It is a general rule that if the creditor can arrest his debtor in the ordinary form of law, he is not entitled to a writ of ne exeat; and the fact that the defendant has been arrested in the ordinary form of law is a fatal objection to an application for a writ of of ne exeat. The granting of this writ is entirely in the discretion of the court, and is granted with much caution. Pratt v. Wells, 1 Barb. S. C. R., 425. A person coming into this State for the sole purpose of giving testimony as a witness in an action at law, cannot be taken on a writ of ne exeat while waiting to give evidence. Dizon v. Ely, 4 Edw. Ch. R., 557. For the proceedings as to giving bail, &c., on a writ of ne exeat, see Laws of 1845, p. 251; and see further 2 Barb. Ch. Pr.

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. S., 210, and see Corwin v. Freeland, 6 Pr. R., 241.

In the United States district court for the southern district of New York, a question arose, whether by this section a defendant in the United States admiralty courts, had the same exemption from arrest within this State as a defendant in a State court of this State? And it was determined that he had not. Gaines v. Travis, 2 Code Rep., 102. Subsequently, however, by a supplemental rule in admiralty, to be found in the 10th volume of Howard's United States Reports, it is ordered.

" In all suits in personam where a simple warrant of arrest issues and is executed, bail shall be taken by the Marshall and the court in those cases only in which it is required, by the laws of the State where an arrest is made, upon similar or analogous process issuing from the State courts. And imprisonment for debt on process issuing out of the admiralty court is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been or shall be hereafter abolished upon similar or analogous process issuing from a State court."

§ 179. [154.] (Amended 1849-1851.) Cases in which defendant may be arrested. 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 should not be so found, or taken, or with the intent to deprive the plaintiff of the benefit thereof.

4. When the defendant has been guilty of a fraud, in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought.

5. When the defendant has removed, or disposed of his property, or is about to do so, with intent to defraud his creditors.

But no female shall be arrested, in any action except for a wilful injury to person, character, or property.

The amendment of 1851 is the insertion of the words in italic in subd. 3.

Note to subd. 1.

An action for crim. con. with the plaintiff's wife is an "injury to the person " of the plaintiff, within this subdivision. Delamater v. Russel, 2 Code Rep., 147; 4 Pr. R., 234, and so is an action for seduction. Taylor v. North, 3 Code Rep., 9.

Note to subd. 2.

This subdivision is controlled by subdivision 5, and therefore, in an action by a male against a female for a breach of promise to marry, the defendant cannot be arrested. Siefke v. Tuppey, 3 Code Rep. 23.

Who is and who is not a resident.

In Burrell's Law Dictionary, Resident is defined: "One who has a seat or settlement in a place; one who dwells, abides, or lies in a place. An inhabitant, 20 Johns. R., 208. 8 Wend. 134, 140, one who resides or dwells in a place for some time. Webster." In Roosevelt v. Kellogg, 20 Johns. R., 210, Woodworth, J. says: A person resident is defined to be one dwelling or having his abode in any place;" an inhabitant, "one that resides in a place."

In the matter of Fitzgerald (2 Caines, 317), it was decided that a person who came into this State on a commercial adventure, without any intent of settling here, was not a resident within the meaning of the act for relief against absconding debtors. In the matter of Thompson (1 Wend. 43), the court held, in respect to an absent debtor, that residing abroad, engaged in business for a time, whether permanently or temporarily, was a "residing out of the State," within the meaning of the statute. In the matter of Wrigly (4) Wend. 602; 8 Ib. 134), it was held that a person remaining temporarily for a month in the cities of New York and Brooklyn, intending to commence business in Canada, was not an inhabitant or resident within the meaning of the insolvent act of 1813. Savage, Ch. J., in that case, says that in the matter of Fitzgerald (2 Caines, 318), it was held that a resident within the State was one who had a residence of a permanent and fixed character, not one who had a mere residence of a temporary nature. In Frost v. Brisbin (19 Wend., 11), the facts were these: a resident of this State, left the State in May, 1836, and went to Wisconsin, and commenced business there as a merchant, with intent to make it his permanent residence, but left behind his wife and child at board at his former residence in this State. In March 1837, he returned to his former residence on a visit, and remained until May, when he was arrested and held to bail. And it was held that he was not a resident of this State, within the meaning of the act to abolish imprisonment for debt. In that case, Nelson, Ch. J., says; "There must be a settled fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence within the legal meaning of that term." In Thorndike v. City of Boston (1 Met., 245), Shaw, Ch. J., says; "The questions of residence, inhabitancy, or domicil, although not in all respects precisely the same, they are nearly so, and depend much on the same evidence." In Cadwallader v. Howell (3 Harrison's Rep., 144) Dayton, J., says; "The word residence (fixed residence I mean), is generally used as tantamount to domicil, though I am not prepared to say whether they are or are not, in all respects convertible terms." But in Crawford v. Wilson (4 Barb. S. C. R., 505), it was held that the words legal residence and domicil, are controvertible terms. That every person has a domicil, but he can have only one domicil at one and the same time, and that the existing domicil always continues until another is acquired, and by the acquisition of another domicil, the former one is relinquished,

A person who had formerly been a resident of another State (Indiana), but has with his family removed to this State, and was then residing with a relative, while he was looking out for an opportunity to engage in business, and whether he should finally settle in this State or elsewhere, was undetermined. Held, that he was a nonresident of this State.

A. resided and carried on business at Gloucester. In 1841 he hired a furnished bedroom at Tewksbury, which he then still retained. Between January and July, 1844, he slept in said bedroom at Tewksbury twelve times, and during the year ending July 1844, sixteen times, but he had never taken his meals in the house; it was held he was not a resident of Tewksbury. Withorn v. Thomas, 8 S. N. R., 783. 7 M. & G., 1. Where a debtor went to a foreign state and remained absent three years, he was held to be a non-resident, although he had all the time intended to return to this State. Haggart v. Morgan, 4 Sand. S. C. R., 198.

Under this subdivision it was held that "all indebtedness not based on credit but on confidence," came within this provision. (Dunaher v. Mayer, 1 Code Rep., 87.)

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