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who had appeared by the same attorney, and answered jointly with them, without payment of costs to the latter.
Where a defendant, after receiving notice that the plaintifi had left the State, and that no further proceedings would be taken, continued noticing the cause and putting it on the calendar, it was held he could recover no costs in respect of the latter proceeding. He should have moved for a rule of discontinuance, at the time of receiving the notice ; and, in that particular case, the motion for discontinuance was denied on a subsequent application on his part, the plaintiff being then desirous of proceeding.-Jennings v. Fay, 1 C. R. (N. S.) 231.
In Wilson v. Wheeler, 6 How. 49; 1 C. R. (N. S.) 402, it was held that, where the plaintiff in replevin had actually obtained possession of the property claimed, by means of the suit, it was not competent for him to discontinue, on the mere payment of the defendant's costs. The latter is entitled to treat the notice as a nullity, and to proceed to obtain a decision as to his rights, in the usual manner, and as if no such notice had been served.
An appeal cannot be dismissed by an appellant, without pay. ment of the respondent's costs.—Burnett v. Harkness, 4 How. 158. Nor, after an appeal has been dismissed for any cause, can a second be brought by the same party, until the costs of the former one have been paid.- Dresser Brooks, 5 How. 75.
OF PROVISIONAL REMEDIES.
OF ARREST AND BAIL.
Thougu subjected to a complete refusion, and modified in some respects by the Code, the law on this subject remains substantially the same as under the previously existing statutes. The intentions of the framers of the former measure in this respect, are expressed by themselves as follows, in page 160 of their report : "The enactments of the Code," say they, “are intended as a substitute for all the present statutes, providing for the arrest of persons upon civil process, before execution. We have,” they proceed, “ adhered generally to the principle of the existing laws; although, in some respects, we have restricted the right of arrest, and particularly by requiring, in all cases, an order of a judge, and, in most, an affidavit that the defendant is not a resident of the State, or is about to remove from it. We have also provided, that, before an arrest, the plaintiff must give security to pay the defendant's costs, and whatever damages he may sustain by the arrest. We have also proposed that the defendant may make a deposit of money, in all cases, instead of giving bail.”
In carrying out the views thus enounced, the previous statute law upon the subject is accordingly abrogated in terms, but yet maintained in substance, by sec. 178, which runs as follows:
$ 178. 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.
Although, by the foregoing provision, the law of 26th April, 1831, is, for the most part, either repealed or substantially reenacted; still it would seem from the case of Gregory v.Weiner, 1 C. R. (N. S.) 210, that, notwithstanding, a warrant may still be issued under the act of 1831, in all the cases thereby prescribed, so that a plaintiff may be considered as having the election to proceed under either measure. This conclusion is unequivocally supported by Corwin v. Freeland, 6 How. 241. The mode of procedure under the act of 1831 belonging exclusively to the old practice, does not enter within the scope of the present work.
The previous law, as to proceedings for contempts, is modi. fied by c. 390 of the laws of 1847, by which, imprisonment on contempt for non-payment of interlocutory costs, is abolished, and the ordinary remedy of fi. fa. substituted for their recovery, except as respects proceedings against attorneys, counsellors, or officers of the court, when ordered to pay costs for misconduct as such, and also as regards witnesses, when ordered to pay them on an attachment for non-attendance.-See Buzard v. Gross, 4 How. 23. See, also, Vreeland v. Hughes, 2 C. R. 42, where the court disclaimed any power to grant an attachment for costs, even though the party liable had obtained a postponement of the trial, on the express condition of paying them.
Until very recently, the most extensive powers of provisional arrest were vested in the federal courts, in almost all cases.See Gaines v. Travis, 2 C. R. 102. By a recent regulation, however, the practice in those courts has been assimilated to that now under consideration.
In Fuller v. Emeric, 2 C. R. 58, 2 Sandf. S. C. R. 626, 7 L. 0. 300, it was decided by the superior court, that the writ of “ ne exeat" is abolished by sec. 178, according to the declared intentions of the commissioners in page 161 of their report, and that such writ is not saved by the reservation in sec. 244. This doctrine has been confirmed in the recent case of Forrest v. Forrest, 3 C. R. 121, so far as regards all cases in which redress can be obtained by an action under the Code. In other cases, however, not within its provisions, the writ may probably still issue, as will appear from the following decision of the general Term, in the same case, reported 3 C. R. 141 ; 5 How. 125; 9 L. O. 89:
Catherine Forrest v. Edwin Forrest.--The writ of ne exeat is not abolished by the Code. So far as it was a means of obtaining equitable bail for equitable debts, it is superseded by the arrest provided for by the Code. But so far as it is a prerogative writ, for instance to restrain a public officer from departing the State without accounting for public moneys in his hands, and so far as it may thus restrain a party, where the arrest under the Code is not applicable, as in suits for specific performance, for settlement of partnerships, to compel a resident debtor to apply property out of the State in payment of debts owing in it, in suits for alimony, and the like, it may still issue ; where there is sufficient reason to apprehend that the party intends to depart the State, to evade the justice and equity of the court.
In this case, there being no sufficient ground for such an apprehension, the writ was improperly granted. Order of special term affirmed.
On the last amendment of sec. 244, the previous reservation of " the provisional remedies now existing, according to the present practice," as contained in all the prior measures, has been omitted. The effect of this omission, and whether it may not be held as abolishing all provisional remedies whatever, except those defined by the present Code, remains to be settled by judicial construction.
The proceedings on this writ, in those cases in which it may still be issuable, depend, in all respects, upon the old practice:
The circumstances under which a defendant is arrestable under the Code, are thus defined by sec. 179 of that measure :
$ 179. 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, hasboen
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 provisions of this portion of the Code are, by sec. 181, made applicable to all actions commenced since 30th June, 1848, and, in which, judgment should not have been obtained at that time.
The courts have, throughout, shown a disposition to restrict, as far as possible, the construction of the foregoing section, as regards application on the ground of an alleged intention to remove from the state, and to require a very clear case to be made out, before it will interfere. Thus, in Brophey v. Rodgers, 7 L. O, 152, an affidavit that the defendant “ was about to depart for California," was held to be deficient, as not showing that such removal was made with a view of changing his residence; and a discharge of such defendant, which had been granted at special Term, was accordingly maintained.
The following have been decided to come within subdivision 1, as cases of injury to the person, damages being given on a recovery as such:
An action for crim. con.--Delamater v. Russell, 4 How. 234. An action for seduction.--Taylor v. North, 3 C. R. 9.
An action against a common carrier for the loss of goods intrusted to his charge, has also been held to be an injury to property, as to which an arrest can be maintained.-Burkle v. Ells, 4 How. 288.
With respect to the question as to when a defendant will or will not be considered as "a resident of the state," the case of Burrows v. Miller, 4 How. 349, subsequently cited under the head of Attachment, is important. In that case, a party, originally a resident of New York, but who had afterwards emigrated to Indiana, and, having returned from thence, was living with his