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A. D. 1870. ing unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases.

Allegation

deemed true.

SEC. 191. Every material allegation of the complaint, not controverted not denied by the answer, as prescribed in Section one hundred and seventy-two, and when to be every material allegation of new matter in the answer, constituting a counter claim, not controverted by the reply, as prescribed in Section one hundred and seventy-six, shall, for purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counter claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.

riance.

CHAPTER VI.

MISTAKES IN PLEADING, AND AMENDMENTS.

SEC. 192. Material variances, how provided for.
193. Immaterial variances, how provided for.
194. What not to be deemed a variance.
195. Amendments of course and after demurrer.
196. Amendments by the Court.

197. Court may give relief in case of mistake.

198. Suing a party by a fictitious name.

199. No error or defect to be regarded unless it affect substantial

rights.

200. Supplemental complaint, answer, and reply.

SEC. 192. No variance between the allegation in a pleading and the Material va- proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the Court, and in what respect he has been misled; and thereupon the Court may order the pleading to be amended, upon such terms as shall be just.

SEC. 193. Where the variance is not material, as provided in the last Immaterial Section, the Court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.

variance.

proof.

SEC. 194. Where, however, the allegation of the cause of action or Failure of defence to which the proof is directed is not proved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two Sections, but a failure of proof.

of course and

SEC. 195. Any pleading may be once amended by the party of course, Amendments without costs, and without prejudice to the proceedings already had, at after allow any time within twenty days after it is served, or at any time before the de- period for answering it expires; or it can be so amended at any time

ance of

murrer.

within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the Court that it was done for

the purposes of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed; and if it appear to the Court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the Court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, either at a general or special term, the Court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth sub-division of Section one hundred and sixty-seven, the Court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.

A. D. 1870.

SEC. 196. The Court may, before or after judgment, in furtherance of Amendment justice, and on such terms as may be proper, amend any pleading, process by order. or proceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.

Relief in ca

SEC. 197. The Court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other Act ses of mistake to be done, after the time limited by this Act, or, by an order, enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the Court may, in like manner, and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto.

Fictitious

SEC. 198. When the Plaintiff shall be ignorant of the name of a Defendant, such Defendant may be designated in any pleading or proceed- name. ing by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

Error of de

fects to be disregarded.

al pleading.

SEC. 199. The Court shall, in every stage of 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. SEC. 200. The Plaintiff and Defendant respectively may be allowed, Supplementon motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the Court, in any pending or future action, set up by a supplemental pleading the judgment or decree of any Court of competent jurisdiction rendered since the commencement of such action, determining the matters in controversy in said action, or any part thereof, and if said judgment be set up by the Plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued or other proceedings had in said action on his behalf.

A. D. 1870.

TITLE VII.

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS.

CHAPTER I. Arrest and bail.

II. Claim and delivery of personal property.

III. Injunction.

IV. Attachment.

V. Provisional remedies.

No

person

CHAPTER I.

ARREST AND BAIL.

SEC. 201. No person to be arrested in a civil action, except as prescribed.

202. Arrest in civil actions, in what cases.

203. Order for arrrest, by whom to be made.

204. Affidavit to obtain order for arrest. To what actions this
Chapter applies.

205. Security by Plaintiff before obtaining order for arrest.
206. Order for arrest, when it may be made, and its form.
207. Original affidavit and order to be delivered to Sheriff, and
copy to be delivered to Defendant.

208. Arrest, how made.

209. Defendant to be discharged on giving bail or making a de

[blocks in formation]

215. Delivery of undertaking of bail to Plaintiff, and its accept

ance or rejection by him.

216. Notice of justification. New bail.

217. Qualification of bail.

218. Justification of bail.

219. Allowance of bail.

220. Deposit in lieu of bail.

221. Payment of deposit into Court.

222. Substituting bail for deposit.

223. Deposit, how disposed of after judgment in the action. 224. Sheriff, when liable as bail.

225. Proceedings on judgment against Sheriff.

226. Bail liable to Sheriff.

227. Vacating order of arrest or reducing bail.

228. Affidavits on motion to vacate order of arrest or reduce bail.

SEC. 201. No person shall be arrested in a civil action, except as preto be arrested scribed by this Act; but the same shall not apply to proceedings for

except as pre

scribed.

contempt.

SEC. 202. The defendant may be arrested, as hereinafter prescribed, in the following cases:

A. D. 1870.

In what ca

1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not resident of the State, ses. 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 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 or Constable, 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, or when the action is brought to recover damages for fraud or deceit.

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.

Order for ar

SEC. 203. An order for the arrest of the defendant must be obtained from a Judge, Trial Justice, or Clerk of the Court, in which, or before ready whom whom, the action is brought.

Affidavit to

SEC. 204. The order may be made where it shall appear to the proper obtain order. officer by the affidavit of the plaintiff or of any other person, that a suffi- To what accient cause of action exists, and that the case from the facts stated is one ter applies. of those mentioned in Section two hundred and two.

tion this chap

be

SEC. 205. Before making the order, the Judge or other officer shall Security by require a written undertaking on the part of the plaintiff, with or without fore order of plaintiff sureties, to the effect that if the defendant recover judgment, the plaintiff arrest. will pay all costs that may 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 affidavit that he is a resident and householder or freeholder within the State and worth double the sum specified in the undertaking over all his debts and liabilities.

Order, when

made, and its

to move to va

SEC. 206. The order may be made to accompany the summons, or at any time afterwards before judgment. It shall require the Sheriff or form. Time Constable of the County where the defendant may be found forthwith to to answer or arrest him and hold him to bail in a specified sum, and to return the order, at a place and time therein mentioned, to the plaintiff or attorney by whom it shall he subscribed or indorsed.

But said order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as pro

cate.

A. D. 1870.

Affidavit and

vided by law, before the docketing of any judgment in the action; and the defendant shall have twenty days, after the service of the order of arrest, in which to answer the complaint.

SEC. 207. The affidavit and order of arrest shall be delivered to the order to be de- Sheriff or Constable, who, upon arresting the defendant, shall deliver to

livered to the

Sheriff or Con- him a copy thereof.

stable, and a copy to the

SEC. 208. The Sheriff or Constable shall execute the order by arresting defendant. the defendant and keeping him in custody until discharged by law, and Arrest, how may call the power of the County to his aid in the execution of the arrest, as in case of process.

made.

Defendant

ged on bail or deposit.

be given.

SEC. 209. The defendant, at any time before execution, shall be to be dischar- discharged from the arrest, either upon giving bail or upon depositing the amount mentioned in the order of arrest as provided in this chapter. SEC. 210. The defendant may give bail by causing a written underBail, how to taking to be executed by two or more sufficient bail, stating their places of residence and occupations, 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 third sub-division of Section two hundred and two, and undertaking to the same effect as that provided by Section two hundred and thirty-four.

Surrender of defendant.

Surrender of defendant.

Bail, how to be proceeded against.

onerated.

SEC. 211. At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the Sheriff of the County where he was arrested, in the following manner:

1. A certified copy of the undertaking of the bail shall be delivered to the Sheriff or Constable, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender;

2. Upon the production of a copy of the undertaking and Sheriff's or Constable's certificate, a Judge or Clerk of the Court may, upon a notice to the plaintiff of eight days, with a copy of the certificate, order that the bail be exonerated; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this Section shall not apply to an arrest for cause mentioned in sub-division three of Section two hundred and two, so as to discharge the bail from an undertaking given to the effect provided by Section two hundred and thirtyfour.

SEC. 212. For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or, by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

SEC. 213. In case of failure to comply with the undertaking, the bail may be proceeded against, by action only.

SEC. 214. The bail may be exonerated, either by the death of the deBail, how ex- fendant, or his imprisonment in a State prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the Sheriff or Constable of the County where he was ar rested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the Court.

SEC. 215. Within the time limited for that purpose, the Sheriff or Con

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