TITLE 2. Proceed ings after proceedings, or an extension of the time to answer the pleading, or to take any other proceeding in the action, unless an order therefor is procured; and the exception cannot be heard, after judgment in the action. § 546. The party, whose pleading is excepted to, may, within ten exception. days after service of the exception, amend the pleading, and serve a copy of the amended pleading upon the attorney for the exceptant. If he does not so amend it, in all the particulars objected to, he may, within the same time, serve a notice, of not less than five days, that the exception will be heard upon the objections, or the remaining objections, as the case requires, at a special term, or before a judge of the court, at a place where a motion may be made in the action. If he notices the exception for hearing, the attorney for the exceptant may serve a notice of hearing, of not less than two days, for the same time and place. After ten days have elapsed, if the party, whose pleading is excepted to, has not amended it in all the particulars specified in the exception, and has not noticed the exception for hearing, the exceptant may serve a like notice of hearing, of not less than five days. An exception may be taken to a pleading amended under this section, in like manner and with like effect, as to the pleading first excepted to; but a pleading once so amended cannot be again amended, without the special leave of the court. Determination upon the exception; costs; when the attorney may be ordered to pay costs. § 547. Upon the hearing of the exception, the court may direct, that the pleading excepted to, or any portion thereof pointed out by the exception, be stricken out, upon such terms, and with such privilege of amendment, as are just. Costs, not exceeding the amount taxable upon a demurrer, may be directed to be paid by either party; or where scandalous matter is stricken out, by the attorney whose name is subscribed to the pleading. 102 TITLE 1. CHAPTER VII. GENERAL PROVISIONAL REMEDIES IN AN ACTION. TITLE TITLE I.—ARREST, PENDING THE ACTION, AND PROCEEDINGS THERE UPON. II.-INJUNCTION. TITLE III.-ATTACHMENT OF PROPERTY. TITLE IV.-OTHER PROVISIONAL REMEDIES; GENERAL AND MISCELLA NEOUS PROVISIONS. TITLE I. Arrest, pending the action, and proceedings thereupon. › ARTICLE 1. Cases where an order of arrest may be granted, and persons liable to arrest. 2. Granting, executing, and vacating or modifying the order of arrest. 4. Charging and discharging bail. ARTICLE FIRST. CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND PERSONS LIABLE TO ARREST. SECTION 548. No person to be arrested in civil proceedings, without an express statutory provision. 549. When the right to arrest depends upon the nature of the action. 550. When the right to arrest depends partly upon extrinsic facts. 551. Order, when and where granted; when of right, and when discre- 552. Foreign judgment not to affect right to arrest. 553. Woman not to be arrested, except, etc. 554. Idiot, lunatic, or infant under fourteen, not to be arrested. Discharge. to be ar ceedings, § 548. A person shall not be arrested, in a civil action or special No person proceeding, brought, either in a court of the State, or before an officer, rested in whose jurisdiction to entertain the same is derived from the laws of civil prothe State; or upon a process or order, founded upon a judgment, order, without an or other determination, made or rendered in such an action or special express proceeding; except where authority to arrest him is expressly con- provision. ferred by the terms of a statute. The writ of ne exeat is hereby abolished. statutory § 549. A defendant may be arrested in an action, as prescribed in When the this title, where it appears, from the complaint, that the action is right to brought for either of the following causes: arrest de pends upon TITLE 1. the nature of the action. When the right to arrest depends partly upon extrinsic facts. 1. To recover a fine or penalty. 2. To recover damages for a personal injury; an injury to property, other than the taking, detention, or conversion of personal property; breach of a promise to marry; misconduct or neglect in office, or in a professional employment; fraud; or deceit. 3. To recover money, funds, credits, or property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, subdivision, department, or portion of the State, which the defendant has, .without right, obtained, received, converted, or disposed of; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same. The cases, provided for in this section, are described in this act, as cases where the right to arrest the defendant depends upon the nature of the action. § 550. A defendant may also be arrested in an action, as prescribed in this title, in either of the following cases: 1. Where it appears, from the complaint, that the action is to recover a chattel; and, by allegations extrinsic to the complaint, that the chattel, or a 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 to deprive the plaintiff of the benefit thereof. 2. Where it appears, from the complaint, that the action is to recover damages for the breach of a contract, express or implied, other than a promise to marry; and, by allegations extrinsic to the complaint, that the defendant has been guilty of a fraud in contracting the debt, or incurring the liability; or that he has, since the making of the contract, removed or disposed of his property, with intent to defraud his creditors; or that he is about to remove or dispose of the same, with like intent. 3. Where it appears, from the complaint, that the action is to recover damages for the taking, detention, or conversion of personal property; and, by allegations extrinsic to the complaint, that the defendant has fraudulently concealed or disposed of the property, or some part thereof. But, in an action to recover a chattel, a claim for damages, for the taking or detention of the chattel, does not bring the case within this subdivision. 4. Where it appears, from the complaint, that the action is to recover for money received, or to recover property, or damages for the conversion or misapplication of property; and, by allegations extrinsic to the complaint, that the money was received, or the property was 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; or by a factor, agent, broker, or other person in a fiduciary capacity. But this subdivision does not apply to an action to recover a chattel. 5. Where it appears, from the complaint, that the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt; and, by allegations extrinsic to the complaint, that the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure, there is danger, that a judgment or an order, requiring the performance of the act, will be rendered ineffectual. ART. 2. where when of cretionary. § 551. In a case specified in subdivision fifth of the last section, the Order, order of arrest can be granted only by the court; is always in its dis- when and cretion; and may be granted or served, either before or after final granted; judgment, unless an appeal from the judgment is pending, upon which right, and security has been given, sufficient to stay the execution thereof. In when diseither of the other cases specified in the last two sections, the order cannot be served after final judgment; but it must be granted, where a proper case therefor is presented, at any time before final judgment. § 552. The recovery of judgment in a court, not of the State, for the Foreign same cause of action; or, where the action is founded upon fraud or judgment deceit, for the price or value of the property obtained thereby; does affect right not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. not to to arrest. arrested, § 553. A woman cannot be arrested, as prescribed in this title, except woman in a case where the order can be granted only by the court; or where not to be it appears, from the complaint, that the action is to recover damages except, etc. for a personal injury, or an injury to property, and, by allegations extrinsic to the complaint, in addition to the other matters required to be so shown, that the injury was wilful. fant under not to be § 554. A lunatic, an idiot, or an infant under the age of fourteen Idiot, lunayears, cannot be arrested, as prescribed in this title. If he is so tic, or inarrested, he must be discharged from arrest as a privileged person. fourteen, The application for his discharge may be made, in his behalf, by a arrested. relative, or by any other person whom the court or judge permits to Discharge. represent him, for the purpose. A cause of action for damages does not arise from the arrest, unless it was malicious. represen § 555. A person prosecuted in a representative capacity, as heir, Person executor, administrator, legatee, devisee, next of kin, assignee, or trus- represen tee, cannot be arrested, as prescribed in this title, except for his per- tative casonal act. ARTICLE SECOND. GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST. 558. When order may be granted; effect of complaint subsequently made. 560. Id.; upon order of arrest granted by the court. 561. Contents of the order; to whom directed; when to be executed. 562. Copies of papers to be delivered to defendant; originals to be filed. 564. General provision as to privilege from arrest; discharge of privileged person. 565. Privilege of officers of courts. 566. Defendant arrested to have twenty days to answer. 567. When application to be made to vacate order of arrest, etc. 568. How and to whom application must be made; opposing it by new 569, 570. Questions of fact arising on the motion. pacity, not to be arrested. 571. When prior motion not to prejudice subsequent motion. quired for § 556. To entitle the plaintiff to cause the defendant to be arrested, Order reas prescribed in the last article, he must procure an order for the arrest of the defendant. Except as otherwise prescribed in section five hun- granted. arrest; how TITLE 1. Proof necessary to procure order. When or der may be granted, effect of complaint subse quently made. Security, upon order of arrest made by judge. dred and fifty-one of this act, the order may be granted, in court or out of court, by a judge of the court in which the action is brought, or by any county judge. § 557. The order may be granted, in a case where the right to arrest the defendant depends upon the nature of the action, where it appears, by the affidavit of the plaintiff, or of another person, that a sufficient cause of action exists against the defendant. In either of the other cases, specified in the last article, the order may be granted, where it appears, upon the like proof, that a sufficient cause of action exists, and that the extrinsic allegations, thereby required to be made, are true in fact. The affidavit may also contain any statement, tending to determine the amount of bail to be required. § 558. Subject to the provisions of the last article, the order may be granted at any time, after the commencement of the action. It may also be granted, to accompany the summons; in which case, a complaint need not be presented upon the application therefor, but, for the purpose of determining whether the order was properly granted, a complaint, thereafter made, must be regarded as having been made at the time of the application. § 559. Except where the action is brought for a cause specified in subdivision third of section five hundred and forty-nine of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking, on the part of the plaintiff, with or without sureties, to the effect, that, if the defendant recovers judgment, the plaintiff will pay all costs which 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 must be at least one hundred dollars. § 560. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is regranted by quired, its form, and the security to be given thereupon, must be such as the court prescribes. Id.; upon order of arrest the court. Contents of the order; to whom directed; when to be § 561. The order, except where it is granted by the court, must be subscribed by the plaintiff's attorney, and by the judge. It must briefly recite the ground of arrest. It may be directed, either to the sheriff executed. of a particular county, or, generally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant, if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case, he cannot be arrested afterwards. Copies of papers to be delivered to de fendant; § 562. The order of arrest, or, where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and in either case, the papers upon which the order was granted; must be originals to delivered to the sheriff, who, upon arresting the defendant, must deliver to him copies thereof. The papers, upon which the order was granted, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in sections five hundred and seventy-seven and five hundred and ninety of this act. be filed. Arrest; how made. § 563. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody, until discharged by law. |