a. Ignorance, original pleading.Amendments to a pleading can only relate, properly, to the time when the original pleading was made, and can only state facts in existence at that time. To introduce matters occurring at a subsequent state would render the record incongruous. Such matters should be brought before the court by a supplemental pleading. This is the case where the party was ignorant, at the time of putting in his original pleading, of the matters sought to be introduced by the supplemental. Hornfager v. Hornfager, 6 How. 13; S. C. 1 Code R. N. S. 180; Drought v. Curtiss, 8 How. 56; Hendricks v. Decker, 35 Barb. 298; Williams v. Hernon, 16 Abb. 173; McMahon v. Allen, 1 Hilt. 103; S. C. 12 How. 39; 3 Abb. 89; Houghton v. Skinner, 5 How. 420; Radley v. Houghtaling, 4 id. 251; Sage v. Mosher, 17 id. 367; Lampson v. McQueen, 15 id. 345.

b. Not substitute for original.-A supplemental pleading is in addition to, and not a substitue for, the original. Dann v. Baker, 12 How. 521.

c. Defendant cannot answer.-As a general rule, the defendant cannot answer anew, or further, the original complaint, without special permission. Dann v. Baker, 12 How. 521.

d Demurrable.-It is the proper practice to demur to a supplemental pleading, if defective. Goddard v. Benson, 15 Abb. 191; Abbot v. Ruyesley, Freem. 252; S. C. 2 Mod. 307.

e. Must be consistent with first pleading. The supplemental pleadings allowed by this section must not contradict the statements in the first, but must be consistent

with them. Slauson v. Englehart, 34 Barb. 198; Dann v. Baker, 2 How. 521; Wattson v. Thibou, 17 Abb. 184.

f. New facts or parties, no nullity. It is irregular, but the pleading so amended is not a nullity, when new facts or parties are introduced by amendment in a case where it should be done by supplemental pleading. Beck v. Stephani, 9 How. 193; Hornfager v Hornfager, 6 id. 13; S. C. 1 Code R. N. S.

181.

g. Leave to file, how obtained.-One uniform mode of applying to the court for leave to file a supplemental proceeding has been establised, viz., by motion on proper notice, or order to show cause. The motion cannot be properly made at the trial. Garner v. Hannah, 6 Duer, 262. See, also, Hoyt v. Sheldon, 4 Abb. 59; Aff'd, Hoyt v. Thompson's Executor, 19 N. Y. (5 Smith), 207.

h. Appealable. The order which allows a supplemental pleading may be appealed from. Harrington v. Slade, 22 Barb. 164; Guild v. Parsons, 16 How. 382; Cheeseman v. Sturges, 19 Abb. 293.

i. Release after issue joined.-After an issue has been joined, the only proper way to plead a release is by supplemental answer The answer originally put in, should not be amended. Matthews v. Chicopee Manufacturing Co. 3 Rob. 712.

j. Election between pleadings.-The court may compel a party applying for leave to file a supplemental pleading, to elect to substitute it in place of the previous one, but unless it does so, both remain. Brown v. Richardson, 4 Rob. 603; Bate v. Fellowes, 4 Bosw. 638.

a. New cause of action cannot be set up by. It is not proper to set up a new substantive cause of action by supplemental complaint. Wattson v. Thibou, 17 Abb. 184. b. Leave to serve.-No leave to serve a supplemental complaint, as prescribed by § 121, is required. Matter of Borsdorff, 17 Abb. 168; S. C. 41 Barb. 211, sub nom. Matter of Borsdorff v. Lord; Allen v. Walter, 10 Abb. 377 (n.)

c.. At whose expense served.-A supplemental complaint should not be allowed to be filed, except on equitable terms. plaintiff should never be allowed to do so at

A

almost as a matter of course. Hasbrouck v. Shuster, 4 Barb. 285.

f. Pleading not retroactive.-Where an action has been commenced by a creditor to set aside as fraudulent a conveyance of lands by his debtor, an execution issued after the commencement of the action cannot in any way, avail the plaintiff; he cannot amend his complaint for the purpose of alleging it. McCullough v. Colby, 5 Bosw. 477; id. 4 id. 603. See, also, Wattson v. Thibou, 17 Abb. 184.

g. Supplemental pleading must be answered.-Where a pleading of this nature has been filed, the defendant must answer it; he cannot, of course, answer the original pleading again. Dann v. Baker, 12 How. 521.

h. Reviving action.-It is a matter of right to file a supplemental complaint for the purpose of reviving an action. It is unnecessary and improper to move for leave to file. Roach v. LaFarge, 43 Barb. 616; S. C. 19

Abb. 67.

i. Mere leave to file does not decide plaintiff's rights.-The mere leave to file the supplemental complaint decides nothing as to the plaintiff's rights. It is necessary to try both actions before it can be determined whether there was originally a cause of action. Where the court can see on the face of the supplemental complaint that the former action is fatally defective, it may refuse to sustain the judgment rendered in the supplemental action, in which the plaintiff has leave to prosecute the original action and succeed to all the rights of the first plaintiff. Robbins v. Wells, 26 How. 15; S. C. 18 Abb. 191; 1 Rob. 666. See, also, Candler v. Pettit, 1 Paige, 168; Day v. Potter, 9 id. 645.

j. Leave to file a supplemental complaint will not be granted.-An action was brought to compel a delivery of stock and for an accounting, in which judgment was obtained and acquiesced in; held, that the plaintiff could not, under such circumstances, after a lapse of several years (he having knowledge of the facts), file a supplemental complaint, changing his claim to a demand for damages by reason of a dealing in such stock. Cheeseman v. Sturges, 19 Abb. 293.

k. After demurrer, sustained.-Leave to amend a second time should not be granted, after an amended complaint has been held insufficient on demurrer. This is especially the rule where the action is on a statute, and the demurrer turned on the construction. Lowry v. Inman, 37 How. 286; S. C. 6 Abb. N. S. 394.

1. Causes of action incom atible.A cause of action for limited divorce had been

pending some months. The plaintiff moved for leave to file a supplemental complaint, alleging adultery, and asking for an absolute divorce. Held, that the motion should not be granted, as the two causes of action were incompatible. Hoffman v. Hoffman, 35 How. 384.

m.

Two actions, same object.Where the object sought to be accomplished by the supplemental complaint could be obtained in another action pending between the same parties, held, that a motion to file such supplemental complaint should be denied with costs. Sage v. Mosher, 17 How. 367.

n. Merely to bring in additional parties.-Where leave is given to file a supplemental complaint merely to bring in new parties, it is not necessary to make the original defendants parties to it. McGown v Yerks, 6 Johns. Ch. 450; Ensworth v. Lambert, 4 id. 605.

o. Death of party, proper practice. An assignee dies and a successor is appointed, against whom, together with other defendants, an action has been commenced. Held, that the proper mode of making such successor a party, is by supplemental complaint. If he had been the only party defendant, a new original complaint would have been proper. Johnson v. Snyder, 7 How. 395.

p. Demurrer sustained, subsequent appeal falls. In this action a supplemental complaint was allowed to be served, which was done; the order was appealed from by the defendant, who also demurred to the complaint, which demurrer was sustained. Held, that where the plaint iff has appealed from the order sustaining such demurrer, such appeal of necessity falls by the reversal of the order allowing the supplemental complaint to be filed. The defendants are, however, not entitled to costs in such a case. Guild v. Parsons, 16 How. 382.

q. Want of prosecution.- Where a bill has been dismissed for want of prosecution against a defendant, who, at the hearing, is held to be a necessary party, the court will not allow the plaintiff to bring him before the court again by supplemental bill, but it will dismiss the bill with costs. Lautour v. Holcombe, 11 Simons (Eng. Ch. R.), 71; S. C. Aff'd, 1 Phillips, 262. See, also, 8 Simons, 76.

r. Judgment of dismissal.-Where a representative of a deceased party files a st pplemental complaint, which is dismissed Lecause he has not capacity to sue, this does not prevent the prosecution of the action by the proper representative. Robbins v. Wells, 1 Rob. 666; S. C. 18 Abb. 191; 26 How. 15

a. When it should be allowed.Any defense should be ailowed to be set up by supplemental answer which a party could have pleaded, puis darrein continuance, as a

matter of strict right. Hoyt v. Sheldon, 6 Duer, 661; S. C. 4 Abb. 59; S. C. Aff'd, 19 N. Y. (5 Smith), 207, sub nom. Hoyt v. Thompson's Executor; Bate v. Fellowes 4

Bosw. 638; Radley v. Houghtaling, 4 How. | 251; Sandford v. Sinclair, 3 Denio, 269; Morel v. Garelly, 16 Abb. 269.

b. Laches, court may refuse.—It is in the discretion of the court to refuse the plea, if the defendant is guilty of laches. Morel v. Garelly, supra. See, also, Bancker v. Ash, 9 Johns. 250; Morgan v. Dyer, id. 255; S. C. 10 id. 161; Ludlow v. McCrea, 1 Wend. 228; Tuffs v. Gibbons, 19 id. 639; Hoyt v. Sheldon, 6 Duer, 661; S. C. 4 Abb. 59; S. C. Aff'd, 19 N. Y. (5 Smith), 207; Sandford v. Sinclair, 3 Denio, 269.

c. Plea must be true.-In order that - a defendant may, as a matter of right, put in a supplemental answer, what he proposes to plead must be true, and it must contain a good defense. Where a motion to interpose it is made, the truth of the matter may be inquired into. Morel v. Garelly, 16 Abb. 269; Bancker v. Ash, 9 Johns. 250.

d. Condition of allowing substitution of parties.-Where a receiver has died, one substituted in his place, who moves for leave to continue in his own name as such

receiver an action begun by the deceased, by supplemental complaint, after it has become barred by the statute of limitations, held, that as a condition of granting the relief sought, the receiver must assume the onus probandi. Livingston v. Olyphant, 3 Rob. 639.

e. Answer to supplemental complaint, new party.-Where an order is made requiring "A" to be made a party, and he is brought in by supplemental complaint, he being so made a party without prejudice to the proceedings already had, the allegations in his pleading of his ignorance as to a fact admitted by the answer of the original defendant, to whose interest he has succeeded, does not put such fact in issue, notwithstanding a like averment in the original answer would have done so. The new party is bound by the acts and admissions of the original parties to whose rights he has succeeded. The only thing that the answer to the supplemental complaint properly puts in issue, is the matter showing the transmission of interest from the original party. Story's Eq. Pl. § 342; Forbes v. Waller, 25 N. Y. (11 Smith), 430; S. C. 25 How. 166, sub nom. Forbes v. Walter; Aff'g S. C. 4 Bosw. 475, sub nom. Forbes v. Logan.

h. Action for divorce.-When an action of this nature has been commenced, the court may allow the defendant to amend, or file a supplemental answer, at any time before trial, where it is sought to allege adultery on the part of the plaintiff, discovered after issue joined, if there is reasonable probability of establishing the charge. But collusion should be carefully guarded against, and the court should be very careful to see that all valid reasons for not granting the decree are brought before it. Strong v. Strong, 28 How. 434; S. C. 3 Rob. 669; S. C. Aff'd, id. 719.

i. Creditor's suit, discharge in bankruptcy.-The defendants in a creditor's suit, sought to set up their discharge in bankruptcy, by a supplemental answer, although it did not appear whether the plaintiffs had disclosed their claim of lien, or proved their debt in bankruptcy. Held, that the supplemental answer might be interposed. Stewart v. Isidor, 5 Abb. N. S. 68.

j. Equitable defense. In a proper case, leave to amend or to file a supplemental answer, for the purpose of setting up an equitable defense, will be granted upon such terms as will protect the rights of the plaintiff. Madison Avenue Baptist Church v. Baptist Church in Oliver street, 2 Rob. 642.

k. New trial granted after payment of judgment, by one of two defendants.-Where a judgment was recovered against two joint contractors, one of whom paid it, together with the costs, the other contractor took an appeal from such judgment, which was allowed, and an order granted for a new trial, if such payment be set up by the appellant, in an additional and supplemental answer which the court allowed to be interposed without terms, such defendants are entitled to a verdict and judgment in their favor on the whole record, together with the entire costs of defending such suit, including those on the appeal. Brown v. Richardson, 7 Rob. 57.

43

REPLY.

the first reply, held, that this occurrence having arisen since the previous reply, and as it constitutes a complete answer to the counterclaim, it is properly the subject of a supplemental reply. Ormsbee v. Brown, 50 Barb. 436. See ante 278, f.

there was an undoubted right to arrest the defendant again. Petrie v. Fitzgerald, 1 Daly, 401. See note thereto.

c. Policemen.-Members of the Metropolitan police force are not liable to arrest on civil process while actually on duty. Laws of 1860, p. 446, § 34.

Section 60, of the rules of the Metropolitan police commissioners provides that certain officers shall be deemed always on duty; but the court has construed this to be a mere matter of discipline, and that it does not protect such officers from arrest when not actually on duty. Hart v. Kennedy, 24 How. 425; S. C. 39 Barb. 186; 15 Abb. 290; Rev'g S. C. 14 id. 432, 23 How. 417: Squires' Case, 12 Abb. 38.

d. Soldiers and sailors.-Militiamen are privileged from arrest on civil process, from the rising to the setting of the sun, on the day of parade. 1 R. S. 303, § 27.

"No person belonging to the military forces shall be arrested on any civil process while going to, remaining at, or returning from, any place at which he may be required to attend, for elections of officers, or other military duty." Laws of 1858, ch. 129, § 17. A commissioned officer of the State militia is protected, under the above provision, although his regiment has been mustered into the service of the United States. People ex rel. Gaston v. Campbell, 40 N. Y. (1 Hand), 133.

Non-commissioned officers, musicians, seamen and marines, in the service or army of the United States, are exempt from any personal arrest for any debt or contract. 1 U. S. Stat. at Large, 595, § 5. And see, 2 id. 136, § 23. e. Witnesses.-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 by law be enforced by attachment or by 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. 2 R. S. 402, § 51. The court has power to discharge a party from an arrest mnade in violation of that provision. id. § 52. The witness is exempt, although he is a nonresident. Merrill v. George, 23 How. 331; Seaver v. Robinson, 3 Duer, 622; S. C. 12 N. Y. Leg. Obs. 120; Sandford v. Chase, 3 Cow. 381. The privilege of the witness is absolute. id; Meekins v. Smith, 1 H. Bla 636; Arding v. Flower, 8 Term R. 534; Willingham v. Matthews, 6 Taunt. 356; Anonymous, 1 Mod. R. 66.

The rule extends to a hearing before arbitrators. Sandford v. Chase, 3 Cow. 381. Or to an attendance before the commissioners of bankruptcy. Selby v. Hills, 8 Bing. 166. The privilege may be waived by putting in bail, or by a general appearance in the action. Petrie v. Fitzgerald, 1 Daly, 401; Stewart v. Howard, 15 Barb. 26.

If the attendance is voluntary he is not privileged. Hardenbrook's Case, 8 Abb. 416; Matter of McNeil, 6 Mass. 264. But, see Norris v. Beach, 2 Johns. 294.

f. Attorneys and parties.-Officers of the courts of record are privileged from arrest during the sitting of the court of which they are officers; but attorneys are only exempt from arrest when employed in some cause pending and then to be heard at such court. 2 R. S. 290, § 86; Humphrey v. Cumming, 5 Wend. 90. See Secor v. Bll, 18 Johns. 52.

The rule of privilege does not apply if an attorney is arrested while at home, although such arrest prevents his attendance at court. Corey v. Russell, 4 Wend. 204.

An attorney is not exempt when attending before an examiner, master, or judge out of court. Cole v. M'Clellan, 4 Hill, 59. He may waive his privilege by giving bail or omitting to claim his exemption. Ib.

A counsel is only protected when attending court for a trial actually pending. Salhinger v. Adler, 2 Rob. 704. Thus an attorney, not the attorney of record, while attending a party to advise him while such party was putting in bail, was held not to be exempt from arrest. Jones v. Marshall, 2 C. B. N. S. 615; S. C. 40 E. L. & E. 321. See Sperry v. Willard, 1 Wend. 32.

The privilege from arrest of suitors in actions pending remains as at common law. Salhinger v. Adler, 2 Rob. 704; Petrie v. Fitzgerald, 1 Daly, 401. Such persons are exempt from arrest in civil actions while going to, remaining at, and returning from the court or place where the judicial proceeding is being conducted. id. See Hopkins v. Coburn, 1 Wend. 292. A party is exempt from arrest while attending before referees and for a reasonable time thereafter. Clark v. Grant, 2 Wend, 257. See Randall v. Gurney, 3 Barn. & Ald. 252. A defendant in an action, while preparing to go home from court where he went to attend the trial of his cause, was arrested in the street near the court house; held, that such arrest was improper. Salhinger v. Adler, 2 Rob. 704.

Stopping in the street to tell the attorney of the opposite party that nothing was to be done with a cause, was not such a deviation as would warrant his arrest. Ib.

The exemption extends to an attendance before arbitrators. Matter of McIntosh, 8 Ell. & Bla. 1094; Spence v. Stuart, 3 East, 89. And to a petitioning creditor on a hearing before commissioners of bankruptcy. Selby v. Hills, 8 Bing. 166; Arding v. Flower, 8 T. R. 534. Where a party's cause was adjourned in the morning, but he remained until the afternoon to speak with his attorney, then went to dine at an inn near by, and was there arrested, held, that his privilege was not canceled by such deviation. Lightfoot v. Cameron, 2 Wm. Bla. 1113.

So, where a party was attending court, from day to day, expecting the trial of his cause, he was held to be exempt while waiting