witnesses residing in a county other than that which the plaintiff has named as the place of trial, he should move the court to change the place of trial to that county. The same course may be pursued if there is reason to believe that a fair and impartial trial cannot be had in the county where the place of trial is fixed by the complaint. Certain actions should be tried in the county where the subject, or some part thereof, is situated, but the defendant may waive his right to transfer the action to the proper county when commenced elsewhere, by delay in applying to the court for a change of the place of trial. Rule 59, Supreme Court; Code, § 126; ante, 181.

Whenever the convenience of witnesses and the ends of justice would be promoted by the change, the defendant should make a written demand of the plaintiff that the change be made, and if this request be refused, he should move the court for an order staying proceedings until a motion to make such change can be argued. See Code, title 4; Rules 59, 60, Supreme Court. This subject is fully discussed in a subsequent chapter of this work.

Section 14. Tender. At any time before trial, or even before judgment, in some actions the defendant may tender to the plaintiff, or his attorney, the sum he conceives to be actually due, together with the costs of the action up to that time. This procedure applies to actions at law for the recovery of such demands as properly fall under subdivision 1 of section 129 of the Code, or for a casual or involuntary trespass or injury. The effect of the tender is to bar the recovery of any interest or costs that may accrue at a time subsequent to the tender, if the plaintiff fail to recover in the action more than the amount tendered. 3 R. S. (5th ed.) 868, §§ 22 to 25; 2 R. S. 554 (574).

Section 15. Paying money into court. In case the defendant is willing to pay a part of the plaintiff's demand, but not the full claim, he may still obtain an order permitting him to pay into court the amount admitted to be due, and the costs, up to that time. Should the plaintiff accept the sum the suit is at an end. But, should he proceed in the action and recover no more than the sum paid in, he can recover no additional costs. If, on the other hand, he recover judgment for more than the amount paid into court, the payment is inoperative, except to decrease the judgment, by a credit of the amount paid. Dakin v. Dunning, 7 Hill, 30.

Offer of judgment.

Section 16. Offer of judgment. The defendant in any action may, with like effect, deliver to the plaintiff a written offer of judgment for a sum specified therein, with the costs of the action to the date of the offer Code, §§ 385 to 387. And whenever there is a sum actually due the plaintiff, from the defendant, it is a wise precaution, as well as a measure of strict justice, to make an offer of judgment for the full sum due. The offer, if not accepted, cannot in any case prejudice the defendant's cause, and may save him costs. See Offer of Judgment.

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PART V.

PROVISIONAL REMEDIES.

CHAPTER I.

ARREST AND BAIL.

ARTICLE I.

ARREST IN GENERAL, NATURE AND OBJECT OF ARREST.

Section 1. Definition and nature. The term arrest, as used in civil practice, may be defined as the restraint of a person's liberty by virtue of the execution of a legal process. This restraint is not necessarily the result of actual force or seizure of the person; but to constitute an arrest, there must be a total submission of personal freedom to the control of a court, as represented in the person of its officer and the process under which he acts.

Section 2. Object of arrest. The theory and aim of the law in allowing an arrest in certain civil actions, is to give to the plaintiff the highest possible security against fraud, not only by compelling the appearance of the defendant to answer to the demands made against him, but, also, by retaining his person in custody, to make the satisfaction of any judgment that may be rendered in such actions a condition precedent to the enjoyment of personal liberty.

An arrest is founded on the probable wrong-doing of the defendant; and the possible removal of his person and property beyond the jurisdiction of the court if served with the ordinary summons only. To prevent this defect of justice the law gives, in specified cases, the right of arrest. In the exercise of this right, a plaintiff may deprive a defendant of the opportunity of secreting or removing his property before judgment, and may hold his person as a pledge for the satisfaction of such judgment when it shall have been rendered against him.

Practice as to arrest before the non-imprisonment act.

The law intends also, that the disgrace resulting from imprisonment; the compulsory abandonment of all remunerative employment; and the loss of personal freedom, shall supply the want of good intentions on the part of the defendant, in urging the speedy settlement of just claims resulting from his wrong. See People ex rel. Latorre v. O' Brien, 6 Abb. N. S. 63 (69); National Bank of the Commonwealth v. Temple, 2 Sweeny, 344.

ARTICLE II.

PRACTICE AS TO ARREST BEFORE THE NON-IMPRISONMENT ACT.

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Section 1. When of course. Prior to the passage of the nonimprisonment act in 1831, the statute was as follows: 'In the following cases the defendant may be held to bail, of course, and without any special order for that purpose:

1. In all actions of debt except such as shall be brought upon a judgment rendered in a suit wherein the defendant was held to bail, and except such as shall be brought upon any bail-bond or recognizance of bail, or upon any replevin or other bond in which any surety shall have joined, taken in the course of judicial proceedings, or by virtue of any statute.

2. In all actions upon contracts for the payment of any money, the performance of any service, or delivery of any property, where the demand or damages shall be certain, or can be reduced to certainty.

3. In all actions of trover, and in actions of trespass for taking personal property, and in actions of replevin in the cases provided by law.

4. In actions for trespass upon lands." Section 2. When upon a special order. actions, the statute provided, that in all

2 R. S. 348 (359), § 7. As to arrests in other cases other than such

as are herein provided for holding a defendant to bail, an order requiring such bail may be granted by a judge of the court in which the writ is issued, in the cases and according to the practice established in the supreme court. Id., § 8.