proceedings which shall not affect the substantial rights Oct. 11, 1862, of the adverse party. See § 101 [99], and note. Immaterial errors disregard ed. The above provision is most beneficial, and the courts believe in construing it liberally: Began v. O`Reilly, 32 Cal. 11; applying it to errors of description in a pleading as well as to errors in other respects: Peters v. Foss, 20 Id. 586. Whenever facts are not expressly stated which are so essential to a recovery that without proof of them on the trial a verdict could not have been rendered under the direction of the court, the want of the express statement is cured by the verdict, provided the complaint contains terms sufficiently general to comprehend the facts in fair and reasonable intendment: Garner v. Marshall, 9 Id. 269; Steph. Pl. 149; Jackson v. Pesked, 1 Maule & S. 234. And in an action of ejectment, the court held that the date of ouster, which was alleged to have taken place 104. Error not 5 Or. 28. 11 Or. 158. in June, 1856, whilst the title of the affecting subplaintiffs is alleged to have accrued stantial rights disregarded. only in May, 1859, was probably a clerical error, but if not, it could not be taken advantage of after verdict: Coryell v. Cain, 16 Cal. 574. So the designation of a contract by an improper term cannot be allowed to take away a substantial right where all the circumstances attending it are fully detailed: Godeffroy v. Caldwell, 2 Id. 489. And a defect in an answer was disregarded in Hess v. Bolinger, 48 Id. 349; and so was a failure to rule on a demurrer where there was a trial on the merits: Ferrier v. Ferrier, 64 Id. 23. So where some portions of an answer are insufficient, but enough matter is well pleaded to constitute a good defense: Younglove v. Nixon, 61 Id. 301. Verdict for "defendant" and judgment for costs in favor of both defendants is an immaterial error: Willard v. Archer, 63 Id. 31. $105. Supplemental § 107. [105.] The plaintiff and defendant respectively Oct. 11, 1862, may be allowed on motion to make a supplemental complaint, answer, or reply, alleging facts material to the pleadings. case, occurring after the former complaint, answer, or reply. Supplemental pleadings. -The object of supplemental pleadings is to admit facts occurring after the original pleading. Supplemental complaint. A supplemental complaint is allowed where facts have occurred subsequently to the original pleading which will vary the relief to which plaintiff was entitled when he filed such original pleading: Hasbrouck v. Shuster, 4 Barb. 285; Penman v. Slocum, 41 N. Y. 53; McCaslan v. Latimer, 17 S. C. 123; but not for the purpose of supplying facts which, being necessary to the maintenance of the action, have been omitted from the original pleading: Dillman v. Dillman, 90 Ind. 585. The facts which are allowed so to be set up are such as are connected with the subject-matter of the cause in the original pleading: Wetmore v. Truslow, 51 N. Y. 338; Carney v. Taylor, 4 Kan. 178; Wattson v. Thibou, 17 Abb. Pr. 184; Holly v. Graff, 29 Hun, 443; and a new cause cannot be sub stituted: Tiffany v. Bowerman, 2 Id. 643; Cohn v. Husson, 5 Civ. Proc. Rep. 324; Buckley v. Buckley, 12 Nev.. 423; Moon v. Johnson, 14 S. C. 434. And where no cause of action exists under the original pleading, a supplemental complaint cannot supply matters so as to constitute a good cause of action: Lowry v. Harris, 12 Minn. 255; Bostwick v. Menck, 4 Daly, 68; Smith v. Smith, 22 Kan. 699; Muller v. Earle, 5 Jones & S. 388. But it is the only proper way to bring in facts occurring after filing of the original pleading: Hoyt v. Sheldon, 4 Abb. Pr. 59; S. Č., 6 Duer, 661; Hornfager v. Hornfager, 6 How. Pr. 13; Ormsbee v. Brown, 50 Barb. 436. The allowance of a motion to file a supplemental pleading is discretionary, the action of the court being subject to review for abuse of discretion: Palmer v. Murray, 18 How. Pr. 545; Medbury v. Swan, 46 N. Y. 200; Sage v. Mosher, 17 How. Pr. 367; Latham v. Richards, 15 Hun, 129; Fleischman 7, Oct. 11, 1862, 105. Bennett, 79 N. Y. 579; and the application will be denied if the same object can be accomplished by a separate action then pending: Sage v. Mosher, 17 How. Pr. 367. And where the matter proposed to be added by a supplemental complaint is a cause of action not connected with the original cause of action, and the plaintiff's rights can be enforced by a new action, the motion to allow the filing of a supplemental complaint will be denied: West v. Burns, 2 N. Y. Month. Law Bull. 55. The supplemental pleading is governed by all the rules applicable to similar original pleadings: Dann v. Baker, 12 How. Pr. 521; Goddard v. Benson, 15 Abb. Pr. 191. Supplemental answer. -The same general rules that govern supplemental complaints will control sup plemental answers, and the defendant will be allowed to set up any new matter occurring subsequent to the filing of his answer or any new cause of defense so arising: White v. Allen, 3 Or. 103; McMahon v. Allen, 12 How. Pr. 39; S. C., 1 Hilt. 103; Hendricks v. Decker, 35 Barb. 298; Hall v. Olncy, 65 Id. 27; Lampson v. McQueen, 15 How. Pr. 345; Williams v. Hernon, 16 Abb. Pr. 173. There is a clear distinction between a supplementary answer and an amendment which sets up a defense which was in existence at the filing of the former pleading: Holladay v. Elliot, 3 Or. 340. A supplemental answer is not a waiver of all former pleas not inconsistent with it: Hamlin v. Kinney, 2 Or. 91; Medbury v. Swan, 46 N. Y. 200. § 116. § 117. Notice of justification of bail. § 118. $115. How exonerated. How and when sheriff to deliver copy of undertaking of bail; when plaintiff must except. Qualification of bail. § 125. When sheriff liable as bail, and how discharged from such liability. § 128. When bail liable to sheriff. Plaintiff liable in the first instance for the maintainance of defendant in arrest. 129. When sheriff may discharge defendant, for non-payment of mainte nance. § 130. Motion to vacate writ of arrest. § 131. Proceedings thereon. $106. § 108. [106.] No person shall be arrested in an action Oct. 11, 1862, at law, except as provided in this section. The defendant may be arrested in the following cases: When defendant may be arrested. 1. In an action for the recovery of money or damages on a cause of action arising out of contract, when the 16 Or. 52. defendant is not a resident of the state, or is about to remove therefrom, or when the action is for an injury to person or character, or for injuring or 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, or converted to his own use, by a public officer, or by an attorney, or by an officer or agent of a corporation 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, when 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 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 dispos ing 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 an injury to person, character, or property. Arrest generally. This section probably abolishes the writ of ne exeat, though it is not expressly so declared: Ec parte Harker, 49 Cal. 466; Collins v. Collins, 80 N. Y. 24. As to the writ of ne exeat in United States cir cuit courts, see Lewis v. Shainwald, 7 The provisions of the code as to ob- Oct. 11, 1862, 106. Rep. 44. The validity of the order of arrest is to be determined by the law existing at the time of the arrest thereunder, and not by that at the time the order was issued: Hecht v. Levy, 20 Hun, 53. An order of arrest should not be granted where its propriety depends on a doubtful and important question of law: Cormier v. Hawkins, 69 N. Y. 188. Every civil arrest presupposes an existing right of action, and therefore if one cannot show himself entitled to maintain his action, he is not entitled to a writ of arrest: Neville v. Neville, 22 How. Pr. 500; Rolfe v. Delmar, 7 Rolle, 80; Wheelwright v. Joseph, 5 Maule & S. 93. A previous arrest in an action exempts the defendant from arrest in another action, if for the same cause, although the second action is brought in a different court and under a different forin: American Flask Co. v. Son, 7 Rob. 233; S. C., 3 Abb. Pr., N. S., 333; Wright v. Ritterman, 1 Id. 428; S. C., 4 Rob. 704; People v. Kelley, 1 Abb. Pr., N. S. 432; Hernan dez v. Carnobeli, 10 How. 433; S. C., 4 Duer, 642. Where a defendant has been arrested and discharged under the provisions of the code, he cannot be rearrested for the same cause of action: Matter of Johnson, 7 Rob. 269; McGilvery v. Moorhead, 2 Cal. 609. But the rule seems to be otherwise where the second action is not vexatious: People v. Tweed, 63 N. Y. 202; and whether it is so is a question of fact: Id. The rule against double arrests does not apply where the first process is absolutely void: Schadle v. Chase, 16 How. Pr. 413. The right to arrest does not pass by assignment of a non-assignable chose in action, but the assignee of an assignable chose in action is entitled to all the rights and remedies of the assignor, including the right of rrest: King v. Kirby, 28 Barb. 49; Frocers' National Bank v. Clark, 32 How. 160; S. C., 48 Barb. 26. Joining causes of action. If the plaintiff unites in his complaint causes of action to some of which the remedy by arrest and bail does not attach, he loses his rights under this section; and this applies to provisional remedies generally: Lambert v. Snow, 2 Hilt. 501; Smith v. Knapp, 30 N. Y. 581; Madge v. Ping, 71 Id. 608; Am. U. Tel. Co. v. Middleton, 80 Id. 408, 412. So also where the order of arrest might have been granted for part of an entire demand: Easton v. Cassidy, 21 Hun, 459. If the plaintiff would resort to his provisional remedy he must bring separate actions: McGovern v. Puyn, 32 Barb. 83. If the complaint seeks to establish two causes of action, but really shows only one, if that justifies an arrest, the order is proper. It is not like a case where there are two causes of action, on one of which an arrest is not legal: Union Sq. Print Co. v. Corrigan, 3 N. Y. Month. Law Bull. 3. Where the defendant was discharged because of improper union of causes of action, and the plaintiff commenced new proceedings upon the same facts, but for a single cause of action, the order of arrest in this second action was set aside as vexatious: Young v. Weeks, 7 Daly, 115. As to arrest and attachment of property at the same time, it is sail that while both these remedies may be pursued to insure a probable satisfaction of the plaintiff's demand, the arrest of the defendant and attaching of his property to the full amount of the claim will not be allowed: See People v. Tweed, 5 Hun, 382; 63 N. Y. 202; Rockford etc. R. R. Co. v. Boody, 56 Id. 456. When an arrest has been procured by means of any trick or fraud, the party so arrested will be discharged on motion: Benninghoff v. Oswell, 37 How. 235; Metcalf v. Clark, 41 Barb. 45; Carpenter v. Spooner, 2 Sand. 717; Goupil v. Simonson, 3 Abb. 474. Exemptions. Senators and representatives are privileged from arrest; See Oregon Constitution, ante, art. 4, § 9. So electors are privileged from arrest on election day: See Oregon Constitution, ante, art. 2, § 13. There are several other classes of persons who are exempt, either by special enactment or by the general law. For instance, ambassadors and foreign ministers, and their servants: Acts of Congress, April 30, 1790, secs. 25, 26; consuls and vice-consuls: Id. 1789, chap. 20, sec. 9; members of Congress: U. S. Const., art. 1, sec. 6; United States soldiers and sailors: Acts of Congress, March 16, 1802, sec. 23; July 11, 1798, sec. 5. Witnesses are privileged from arrest, and so are suitors under certain circumstances; see as to witnesses, post, § 834 [S39], and as to both witnesses and suitors, see the extended note to May v. Shumway, 77 Am. Dec. 401 et seq. Attorneys have been held privileged from arrest while in attendance on a court: Humphrey v. Cumming, 5 Wend. 90; Secor v. Bell, 18 Johns, 52; and so have jurors: McNeil's Case, 3 Mass. 288; Edme's Case, 9 Serg. & R. 147. Whenever such privilege is conferred from motives of public policy, as in the case of exemption from arrest of ambassadors, consuls, etc., the right cannot be waived: Valarind v. Thompson, 7 N. Y. 576; Davis v. Packard, 7 Pet. 276. But wherever such privilege is personal, as in case of a witness or attorney, it may be waived by act of the parties: Pollard v. Union Pacific R. R. Co., 7 Abb. Pr., N. S., 70; Stewart v. Howard, 15 Barb. 26; Cole v. McClellan, 4 Hill, 59; Brown v. Getchell, 11 Mass. 11. Causes of arrest. - Under the Oregon Constitution no imprisonment for debt shall be allowed, except in case of fraud or absconding debtors. See Oregon Constitution, ante, art. i., § 19. Personal injuries. Defendant may be arrested in an action for seduction: Steinberg v. Lasker, 50 How. Pr. 432; or for crim. con.: Delameter v. Russell, 4 Id. 234; or for enticing away plaintiff's husband: Breinan v. Paasch, 7 Abb. N. C. 249. The term "injury to person," as used in subdivision 1, does not authorize an arrest by the administrator who sues for the death of his intestate from an injury caused by the defendant: Ryall v. Kennedy, 52 How. Pr. 517. An action for divorce for cruel treatment is, but on the ground of adultery is not, an action for a personal injury: McIntosh v. McIntosh, 12 Id. 289; Jamieson v. Jamieson, 53 Id. 112; Smith v. Smith, 4 Paige, 92; Johnson v. Johnson, 6 Johns. Ch. 62. Injuries to property.· Arrest is proper in an action for conspiracy to defraud out of real estate: Bruce v. Kelly, 5 Hun, 229. An action to recover possession of real property and damages for detaining the same is not an action for injury to property within this section: Merritt v. Carpenter, 3 Keyes, 142; S. C., 33 How. 428; Griswold v. Sweet, 49 Id. 171; Fullerton v. Fitzgerald, 10 Id. 37. Injuries to character. In an action for libel, an order of arrest may be granted; Britton v. Richards, 13 Abb. Pr., N. S., 258; and so in an action for malicious prosecution: Dempsey v. Lepp, 52 How. Pr. 11. Fine or penalty. - Action against a Oct. 11, 1862, trustee of a corporation to recover a $106. debt due from the corporation by reason of its failure to file an annual report is not an action for a fine or a penalty within the meaning of this section: Glen Falls Paper Co. v. White, 58 How. Pr. 172. -- Promise to marry. The right to arrest for this cause is limited as to females, for no female can be arrested in an action except for an injury to person, character, or property: Siefke v. Tappey, 2 Code R. 23. Fiduciary capacity. This term involves the idea of trust or confidence. An agent or attorney acts in this character. The test is, whether the specific moneys ought in good faith to have been kept and paid over, or whether the agent had a right to use the money: Stole v. King, 8 How. 298; Schudder v. Shiells, 17 Id. 274; see Roberts v. Prosser, 53 N. Y. 260; German Bank v. Edwards, 53 Id. 541. The complaint under this clause should state the facts as well as the nature and extent of the fiduciary capacity: Porter v. Hermann, 8 Cal. 623. Factor acts in a fiduciary capacity: Treadwell v. Halloway, 46 Id. 547. Attorneys are liable to arrest in actions for money which they have collected and have not paid over: Stage v. Stevens, 1 Denio, 267; Yates v. Blodgett, 8 How. 278. An attorney is liable to arrest for retaining money received from the defendant in an action, when such money should have been paid to the plaintiff. In such cases an order of arrest will be granted as of course: Gross v. Graves, 2 Rob. 707; S. C., 19 Abb. 95. And where an attorney receives money from his client, with instructions to pay it to a third party, and refuses to return it when such instructions are revoked, he is liable to an arrest, although acting in good faith: Schadle v. Chase, 16 How. 413. Public officer of this state may be arrested for money received, or property embezzled or misapplied, and the same rule has been applied to officers of a foreign state: Republic of Mexico v. Arrangoiz, 5 Duer, 604; S. C., 11 How. 1, 576. See Peel v. Elliott, 16 Id. 481. The officers of a corporation may be arrested in an action for damages sustained by a stockholder by their acts: Crook v. Jewett, 12 How. Pr. 19. Fraud. Arrest for fraud is limited |