February 13th, 1852. The Court, after hearing defendant *and his evidence, ordered the order of [608] arrest to be vacated; to which order plaintiff ex

cepted, alleging as the ground, that the Court had deemed the affidavit upon which the arrest was ordered defective, in not setting forth the ground of plaintiff's belief that the defendant was about to start from the State with intent to defraud his creditors.

February 14th. The plaintiff made a second affidavit, and set out in detail the facts upon which he grounded his application for arrest; upon the hearing of which the Court again ordered the arrest of the defendant, who was arrested and held to bail accordingly as before; and afterwards, on the 21st February, the second order of arrest was dismissed, and the bond of defendant ordered to be cancelled. From this order of the Court the plaintiff appealed.

Thomas and Morse, for appellants.

The affidavit was positive as to the facts, and within the 75th section of the Practice Act of 1851. The Court erred in discharging the second order for the reason assigned, "that defendant Waddington had in his affidavit denied any indebtedness to the plaintiff, or intention to leave the State to defraud him."

McAllister, for respondents.

The affidavit of plaintiff did not of itself contain the facts upon which the order of arrest was granted. It was correct therefore to discharge it. The facts are by recital, and the · party arrested was referred to another and distinct paper in which they were contained. Such reference is not sufficient, and is defective. (1 Arch. Prac. 59; 2 Bos. & Pull. 48; 3 Burr. 1447; 3 T. R. 575; 1 T. R. 716.) The Act requires the oath to be positive, unless complainant swears upon information and belief, in which case he must give the sources of his information. (Whitlock v. Roth, 5 Pr. Rep. 143.) The facts set forth as evidence of the intent to defraud, are not sufficient. There is no evidence of secrecy, etc. (Anon. 2 Coke, 51.) Allegation, without facts,

amounts to nothing. No warrant of arrest can issue twice in the same suit. (1 Bac. Abr. 545; 2 Eng. C. L. Rep. 86; 3 East, 309) The statute does not take away the [609] common law right. *It cannot take it away by implication; for in a matter of arrest, the statute will

be strictly construed.

HEYDENFELDT, Justice, delivered the opinion of the Court; MURRAY, Chief Justice, concurred.

Appeal from an order of the District Court discharging the defendant from arrest.

The Act which allows a party to be arrested in a civil case, requires the affidavit to disclose that a sufficient cause of action exists, and that the case is one of those for which the remedy of arrest is provided.

It is well settled, that the facts necessary to be shown must appear by the positive averments of the affidavit; and it is insufficient to refer to the complaint or to any other paper to show what the affidavit ought itself to disclose, although it is positively averred that such complaint or paper is true.

When a party is once arrested and discharged, he cannot be arrested again in the same action. It is always presumed that the plaintiff in his affidavit for arrest has stated his case as fully as he can to effect his object.

A different rule might not only lead to harrassing arrests, but if new or amended affidavits were allowed at pleasure, it would open a wide door to perjury.

Judgment affirmed.

632

INDEX.

ABANDONMENT.

SEE CONTRACT, 9; SPECIFIC PERFORMANCE,

ACKNOWLEDGMENT.

ACKNOWLEDGMENTS TAKEN OUT OF STATE.--By the Act of 16th April, 1850,
acknowledgments of conveyances taken out of the State, must be taken
before some Judge, or clerk of any Court of the United States or Terri-
tory, having a seal, or by a Commissioner of this State. If taken before
a Notary of another State, it is not sufficient. Lord v. Sherman, 498.

ACTIONS.

1. STATUTE REMEDIES, WHEN CUMULATIVE.--Where a right exists at common
law, and a new remedy is given by statute, the latter is cumulative, and
either remedy may be pursued. People v. Craycroft, 243.

2. IDEM. WHEN EXCLUSIVE.-But where both the right and the remedy
are given by statute, that remedy alone can be pursued. Id.

3. PLEADING, CONCLUSIVE ON PARTY.- If an action be improperly com-
menced, the party bringing it having obtained the benefit, cannot avoid
the responsibility he may have thus incurred, by pleading his own mis-
feasance. Turner v. Billægram, 520.

See ALIEN, 2; APPROPRIATION, 1; ATTACHMENT, 6; CIVIL LAW, 2, 3; JURIS-
DICTION, 2; PARTNER AND PARTNERSHIP, 1, 6; TROVER, 1; VENDOR AND
VENDEE, 1, 2.

ADMIRALTY JURISDICTION,

See JURISDICTION, 6,

AFFIDAVIT.

Or Loss of INSTRUMENT.--Affidavits of the loss of an instrument, etc., to be

used in court, may be taken ex parte, without notice. McCann v. Beach,
$25.

See ARREST, 1.

AGREEMENT.

CONSTRUCTION OF.- --Where A. and B. enter into a written agreement, by
which A. was to furnish lumber, and an invoice thereof at stated
prices to be annexed to the agreement, and the lumber then to be
shipped, consigned to C. for sale, and the proceeds remitted to B.,
and B. agreed "of the proceeds to pay A. the full amount of the in-
voice price, without any deduction whatever; and the remaining pro-
ceeds were then, after paying charges, to be equally divided between
the parties; and the cargo was sold for less than the invoice price; it was
held not to be a guaranty by B. that the lumber should sell for the in-
voice price, but yet that A. was entitled to all the gross proceeds, and
the expenses, etc., must fall on B. Gibb v. Probst, 115.

See ATTORNEY AND CLIENT, 1, 2; CONTRACT, 8; COURTS, 4.

ALIEN.

1. RIGHTS NOT SUBJECT TO COLLATERAL INQUIRY.—An alien cannot be de-
prived of his land, or of any rights incident to its ownership, by proof
of his alienage in a collateral proceeding. Ramires v. Kent, 558.

2. IDEM.-RIGHT OF ACTION BY.-The estate purchased by an alien does not
vest in the sovereign till "office found;" until then the alien is seized,
and may sustain actions for injuries to the property. Id.

3. IDEM.-AS LANDLORD.-The relation of landlord and tenant exists where
the landlord is an alien non-resident, and is obligatory upon the tenant,
and he cannot be allowed to controvert the title of the lessor. Id.

ALTERATION.

See ERASURE, 1.

AMENDMENT.

1. TO PLEADINGS.-Great latitude is given to the Courts by our statute, in
amending and altering pleadings, etc. Polack v. Hunt, 193.

2. TO SUMMONS.-The Court may allow a summons to be amended by in-
serting the notice of the cause of action, etc., required by the Act of
1851. Id.

3. ON DISCOVERY OF FRAUD.-The discovery of a fraud after suit brought,
would entitle plaintiff so to shape his action as to include it. Truebody
v. Jacobson, 269.

4. TO PLEADINGS, IN DISCRETION.-Amendments are allowed by statutes in
furtherance of justice, and are within the discretion of the Court.
Cooke v. Spears, 409.

5. IDEM. REMEDY FOR ABUSE OF DISCRETION.--If such discretion be abused,
or illegally exercised, an appellate Court will interfere. Id.

6. IDEM. TO ANSWER WHEN NOT ALLOWED.-Defendant will not be per-
mitted to amend his answer so as to introduce the plea of the Statute of
Limitations, unless it be in furtherance of justice. Id.

See REFERENCE, 11; VERDICT, 1, 3.

ANSWER.

See AMENDMENT, 6.

APPEAL.

1. REVIEW OF FACTS.-The Court will not review the facts of a case on an
appeal where there was a conflict of evidence. Nor will the Court review
the facts of a case on the ground that the verdict is contrary to the evi-
dence, unless the record shows a new trial was asked for, and refused in
the Court below. Griswold v. Sharpe, 17.

2. WHEN IT STANDS ON THE JUDGMENT-ROLL.-Since the 1st of July, 1851,
if no case or bill of exceptions be annexed to the record, the Court can
look only to the judgment-roll. Wilson v. Middleton, 54.

3. RIGHT OF.-An appeal cannot be prosecuted by a stranger to the record.
Montgomery v. Leavenworth, 57.

4. EVIDENCE-How Brought up.—A mere transcript of the evidence taken
down by the clerk, is no part of the record, unless made so by bill of
exceptions. Wilson v. Middleton, 54.

5. REFERENCE, OBJECTION TO Report, when TO BE TAKEN.-The Supreme
Court will not review a judgment entered on the report of a referee, if
no objection was made to the report in the Court below. Porter v. Bar-
ling, 72.

6. AFFIRMANCE IN PART.-Judgment may be affirmed as to the mandamus,
and reversed as to the costs. McDougal v. Roman, 80.

7. GROUND FOR REVERSAL.-If the complaint do not show a good cause of
action, the judgment will be reversed, though no objection be taken
below. Russel v. Ford, 86.

8. EFFECT OF APPEAL.-An appeal from an order of reference stays the
proceedings. Smith v. Polack, 92.

9. RIGHT WAIVED BY FAILURE TO MAKE STATEMENT.-If the appellant allow
the twenty days to expire after taking the appeal, without framing a
case, he waives his right to have a case stated; and a subsequent order
of the Court, made without notice to the respondent, allowing further
time to make up the statement, is a nullity. Leech v. Allen, 95.

10. PRESUMPTIONS.-The Appellate Court will presume in favor of the judg-
ment below, unless the record clearly show error. Thompson v. Mon-
row, 99.

11. NOTICE OF ARGUMENT.-Though a decision of the Supreme Court will