« PreviousContinue »
No error or defect to be regarded,
fect substantial rigluts.
$ 176. [Sec. 151.] The court shall, in every stage of an unless it'ar action, disregard any error, or defect in the pleadings or
proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.
See Section 170, and notes. Supple- $ 177. [Sec. 152.] The plaintiff and defendant respec- . complaint
, tively, may be allowed, on motion, to make a supplemenreply.
tal complaint, answer or reply, alleging facts material to Amended the case, occurring after the former complaint, answer or
reply, or of which the party was ignorant when his former pleading was made.
An answer in the nature of a plea puis darrein continuance, not allowed after two trials. Houghton agt. Skinner and Emerson, 5 How. 420.
CHAPTER I. Arrest and bail.
II. Claim and delivery of personal property.
Arrest and bail.
179. Cases in which defendant may be arrested.
Surrender of defendant.
rejection by him.
Justification and allowance of bail.
205. Affidavits on motion. § 178. [Sec. 153.) No person shall be arrested in a civil No person
rested, . action except as prescribed by this act; but this provision cept as pre
scribed by shall not affect the act to abolish imprisonment for debt, this act. and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.
The writ of ne exeat is not abolished by the code. Forrest agt. Forrest, 5 How. 125. Contra, Fuller vs. Emeric, et al., 2 Sand, 626.
For forms of ne exeat, see 2 Barb. Chanc. Prac., 519.
Cases in Which dependant may be ar. rested.
$ 179. (Sec. 154.] The defendant may be arrested, as hereinafter prescribed, in the following cases:
1. In an action for the recovery of damages, on a cause Amended of action not arising out of contract, where the defendant
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 pluin tiff 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.
It is sufficient to show under sub. 3, that the property has been concealed, without showing fraud or bad faith. Van Neste and others agt. Conover, 5 How. 148; Manley vs. Patterson, 3 Code Rep. 89. Contra; Roberts agt. Randall, 5 How. 327. Martin vs. Vanderlip, 3 How. 265.
The affidavit on an application under sub. 4, must state facts positively, not on information and belief. Whitlock agt. Roth, 5 How. 143.
An attachment will not be issued against an attorney for money collected for his client without a previous demand of payment, Cottrell vs. Finlayson, 4 How. 242.
A female can be arrested only for wilfully, wantonly, or maliciously inju. ring property; but not for a detention or conversion of it. Tracy vs. Leland, 2 Sand. 729; S. C., 3 Code Rep. 47; S. C., 8 Leg. Ob. 234. Contra, Starr v. Kent, 2 Code Rep. 30. See sections 205 and 288, infra, and notes. $ 180. 1 Sec. 155.] An order for the arrest of the defend - Order for
arrest, by ant, must be obtained from a judge of the court in which the action is brought, or from a county judge.
$ 181. [Sec. 156.] The order may be made, where it Affidavit to shall appear to the judge by the affidavit of the plaintiff, der
that a sufficient cause of action ex- Amended ists, and that the case is one of those mentioned in section 179. The provisions of this chapter shall apply to all actions To what
actions this included within the provisions of section 179, which shall chapter ap
plicable. have been commenced since the thirtieth day of June, one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained.
In regard to what facts necessary to be set forth in the affidavit, see Pindar v. Black, 4 How. 95; Martin v. Vanderlip, 3 How. 265; Adams v. Mills, id. 219; Brophy v. Rodgers, 7 Leg. ob. 152.
Affidavit to hold to bail may be taken before the attorney for plaintiff; Adams v. Mills, 3 How. 219. See also Vary agt. Godfrey, 6 Cow. 587, and cases there cited. $ 182. [Sec. 157.] Before making the order; the judge Security
by plaintiff shall require a written undertaking on the part of the plain-before ortiff, with or without sureties, to the effect; that if the defend-rest. ant recoverjudgment, the plaintiffwill pay all costs that may Amended be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. If the undertaking be executed by. the plaintiff, without sureties, he shall annex thereto an a ffidavit that he is a resident and householder or free
der of ar
Affidavit and order
holder within the state, and worth double the sum specified in the undertaking, over all his debts and liabilities.
§ 183. [Sec. 158.] The order may be made, to accompany made, and the summons, or at any time afterwards, before judgment. It
shall require the sheriff of the county, where the defendant may be found, forth with to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or endorsed.
$:184. [Sec. 159.) The affidavit and order of arrest shall to be deli- be delivered to the sheriff, who, upon arresting the desheriff, and copy to de- fendant, shall deliver to him a copy thereof. Arrest,how
§ 185. [Sec. 160.] The sheriff shall execute the order, by arresting the defendant and keeping him in custody, until discharged by law; and may call the power of the country to his aid, in the execution of the arrest as in case of process.
$ 186. [Sec. 161.] The defendant at any time before execharged on cution, shall be discharged from the arrest, either upon
giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter.
§ 187. [Sec. 162.] The defendant may give bail, by causBail, how
ing a written undertaking to be executed by two or more Amended sufficient bail, stating their places of residence and occupa
tions, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211.
§ 188. [Sec. 163.] At any time before a failure to comply
with the undertaking, the bail may surrender the defendant in Amended their exoneration, or he may surrender himself to the sheriff of 1849, 1851.
the county where he was arrested, in the following manner:
Defendant to be dis
bail or deposit.
Surrender of defendant.