plaint, so as to claim the property itself, and damages for its detention, instead of simply praying judgment for the value of the property, is changing substantially the cause of action?" It is changing the form of the action, or rather the class to which it belongs, but not the cause of action. The cause of action is made up of the facts which entitle the plaintiff to relief. The injury complained of, is the cause of action, and such is the sense in which the words are used. Under the revised statutes, the discretion of the court was not limited, and under those statutes, the court frequently allowed a change in the form of action. 1 How. Sp. T. R., 82; 2 lb., 43; 3 lb., 148.

The New-York common pleas permitted the plaintiff to amend by adding a count in his declaration, after two trials had, resulting in the defendant's favor, it not appearing that the defendant had been misled as to the plaintiff's cause of action, or that the plaintiff would introduce a new cause of action. Burnap v. Halloran, 1 Code Rep., 51.

In case of amendment under this section, the party asking to amend ought to be required to make the opposite party good by paying him the fees, as fixed by statute, for the additional expense which the amendment would render necessary, and therefore, where a plaintiff, after answer, and after the taking the testimony of a witness for the plaintiff, de bene esse, but before notice of trial, moved to amend his complaint, the court permitted the amendment, on payment of the defendant's costs of resisting the motion, $10, and the allowance for proceedings before notice of trial, $5," and such disbursements as are chargeable by statute, against the unsuccessful party, but refused an allowance for defendant's attending to take the evidence, de bene esse, as it is not chargeable by statute against the unsuccessful party. Hare v. White, 1 Code Rep., 70. 3 Pr. R., 296. And, per Mason, J. The language of this section is "in furtherance of justice, and on such terms as may be proper." The language of the revised statutes, (2 R. S., 424, s. 2,) is "for the furtherance of justice, and on such terms as shall be just," and it seems, therefore, from the striking similarity of the expression in the two statutes, as to the terms on which amendments should be allowed, that the decisions of the courts under the revised statutes, may be considered as safe guides as to the terms upon which similar amendments are to be allowed by the courts under the code, and the practice is well settled in the former case. Downer v. Thompson, 6 Hill, 377; Carrier v. Delay, 3 Pr. R., 173; Brown v. Babcock, 3 Pr. R., 305, 307. 1 Code Rep., 66. 5 Pr. R., 421. It was held, at one time that although the court had power by the revised statutes, (2 R. S., 556, s. 34,) to amend a bond given on appeal, on the application of the obligees, yet an undertaking under the code could not be so amended; that it was not a " pleading or proceeding within this section. Langley v. Warner, 1 Code Rep, 111. 3 Pr. R., 363,-and that at most, it could only be amended on the application of the sureties. Ib. It was afterwards held that the undertaking in substance and legal effect did not differ from the appeal bond required by the revised statutes, and was a "proceeding" within the meaning of that word in this section, and might be amended in furtherance of justice. Wilson v. Allen, 3 Pr. R., 369. And leave was granted to amend the undertaking in that case, with the written consent of the sureties to be annexed to and filed with the amended undertaking; and see Burns v. Robbins, 1 Code Rep., 62.

And where on a motion in the court of appeals the affidavit was entitled in the "supreme court," the court of appeals held that this section did not apply to affidavits, and refused to give leave to amend the affidavit. Clickman v. Clickman, 3 Pr. R., 365, 366.

A motion to amend a record for errors in making it up, after appeal, should be made to the court below. With such errors, the appellate court has nothing to do. It is of course, after the record is amended, to allow the copy sent to the appellate court to be also amended. Luyster v. Sniffin, 3 Pr. R., 250.

Where, in a complaint for slander, the place of trial named was Ulster county, and the summons stated that the plaintiff would apply at the next Albany circuit for the relief, &c., the court permitted the plaintiff to amend and re-serve the summons. Warner v. Kenny, 3 Pr. K., 323, 324.

The general rule is, that a party who has not applied for an amendment until after he has been nonsuited, is too late to ask for a new trial in addition to an amendment; but where a plaintiff had been nonsuited on the ground that his declaration contained no count adapted to the nature of the case, it appearing that the defendant

had not been misled, that the cause had been once tried without any objection having been made, that the statute of limitatious had attached, and that such relief would be manifestly in furtherance of justice, the court allowed the plaintiff to amend his declaration nunc pro tunc, and set aside the nonsuit, on the payment of costs. Balcom v. Woodruff, 7 Barb., S. C. R., 13.

When, and on what terms bills for partition may be amended? ker v. Vanderwerker, 7 Barb. S. C. R., 221.

Vanderwer

Where a wife had sued her husband, without appearing by a next friend, and the court held a next friend necessary, the court allowed the proceedings to be amended by inserting the name of a next friend. Forrest v. Forrest, 3 Code Rep., 254.

An amendment by adding new parties is a waiver of a default previously taken, Scudder v. Voorhis, 1 Barb. S. C. R., 55.

An amended pleading takes the place of, and supersedes the original. 4 Pr. R., 174. A notice of appeal could not be amended by making it a notice of rehearing. Wilson v. Onderdonk, 1 Code Rep., 64. 3 Pr. R., 319. See now section 174.

Can an appellate court amend a bill of exceptions in matter, either of form or substance? Onondaga Mutual Insurance Co. v. Minard. 2 Coms. 98.

Affidavits denying the truth of the matter, proposed to be inserted in a bill by way of amendment, form no sufficient objection to the application to amend. Coster v. Griswold, 4 Edw. Ch. R., 364.

It has been the practice to allow a party opposing a motion to amend the defects complained of, without a new motion on his part, when the amendment proposed is proper in itself, and the court can see no reason from its practice and the nature of the case, that any new facts can be presented that ought to defeat it. The practice is calculated to save parties expense and trouble, and expedite the proceedings, and will be followed hereafter. Spalding v. Spalding. 1 Code Rep., 64, 3 Pr. R., 297300. See also, Weare v. Slocum, 1 Code Rep., 105. 3 Pr. R., 397-398.

§ 174. [149.] (Amended.)—Court may give relief in case of mistake. 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 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.

This was formerly part of section 173.

Mason, J., said: It should be borne in mind, that section 173 of the amended code (code of 1849 in substance, section 174 of this code) is new, and although a substitute for section 149 in the code of 1848, that its language is much broader and more comprehensive, and the amendment, I have no doubt, was suggested by the difficulties arising under the code of 1848, in similar cases, (omitting to give notice of appeal in due time,) as will appear by a reference to the cases Schermerhorn v. Mayor of New-York, 3 Pr. R., 254, 258; and also the case of Burch v. Newbury, 3 Pr., 271, 276, in the latter of which cases it is generally understood that one of the commissioners of the code felt himself much grieved because a rehearing could not be

allowed his client under the code of 1848, when he had served his notice of rehearing after the time limited by the statute had expired-and which, perhaps, may have been the cause of the amendment as found in section 173 of the code of 1849. also Wilson v. Onderdonk, 1 Code Rep., 64.

See

It has also been suggested, that the 405th section of the code of 1849 should be read in connection with this section, and as limiting the power conferred by the latter section. I do not so regard it. Crittenden v. Adams, 3 Code Rep., 145–147. Rowell v. McCormick, 5 Pr. R., 337; 5 Ib., 310.

Thus, where a party omitted to serve his notice of appeal in due time, after service moved for an order that his appeal be considered good and valid, notwithstanding this defect; and per Mason, J.: I am of opinion that this section is broad enough to embrace the case under consideration, and to authorize this court to grant an order that the said appeal be allowed to stand, and be considered good and valid, as the papers before us show that this appeal was taken in good faith to review a judgment of the circuit court, and that there is a probability of a failure of justice if this motion be denied. Ib. See also Renouil v. Harris, 2 Code Rep., 71. Traver v. Silvernail, ib., 69. Enos v. Thomas, 5 Pr. R., 361.

§ 175. [150.] Suing a party by a fictitious name, when allowed.--When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding, by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

See Pindar v. Black, 2 Code Rep., 53. 4 Pr. R., 95, in note to section 181 of this code.

§ 176. [151.] No error or defect to be regarded, unless it affect substantial rights.—The court shall, in every stage of an 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.

This section was substituted for section 151 in the code of 1848, and under that section, where a declaration was delivered to the sheriff for service in June, 1848, but not served till after June 1, 1848, it was held that the declaration must be set aside, and that the party could not be relieved by that section. Diefendorf v. Elwood, 3 Pr., R. 285. 1 Code Rep., 42.

Where an affidavit to obtain an order of arrest was entitled in the cause, before the action was commenced, it was held to be a defect not affecting the substantial rights of the adverse party, and might, therefore, be disregarded under this section. Pindar v. Black, 2 Code Rep., 53. 4 Pr. R., 95. See section 406, and sections 173 and 289, note.

This section does not apply to pleadings in actions commenced before the code took effect. Dennistoun v. Mudge, 4 Barb., S. C. R., 243.

$177. [152.] Supplemental complaint, answer, or reply.— The plaintiff and defendant respectively, may be allowed, on 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.

In an action in the supreme court a county judge cannot make an order under this section, allowing a supplemental pleading. Merritt v. Slocum, 1 Code Rep., 68. 3 Pr. R., 309. So held under the code of 1848. See now, section 401, sub. 2.

A. sued B. for an assault and battery. Afterwards, B. sued A. for slander. After issue joined in the action of A. against B. The action of B. against A. was tried, and on the trial A. sets up in mitigation of damages the assault and battery for which he was then suing B. B. recovered only six cents damages, and in cousequence, as was alleged by him, of the setting up of such assault, &c., in mitigation. B. now moved for leave to make a supplemental answer, to introduce the facts which had taken place since issue joined, and insisted, that as the plaintiff A. had set up the assault, &c., in mitigation of the action by B., he could not now recover damages for such assault. The court granted the motion, and said the facts which transpired on the former trial were material. How far they will go towards establishing a defence, it is not necessary to say. Radley v. Houtaling, 4 Pr. R., 251. The provisions of this section, it is presumed, will authorize a supplemental answer in the cases where a plea of puis darrien continuance was formerly allowed. The provision contained in this section does not enable a party to set up by way of supplemental answer any defence known to him before the putting in of his former auswer. Houghton v. Skinner, 5 Pr. R., 420. No doubt, the plea of puis darrien continuance cannot be put in a matter of right after verdict. 2 Tidd's Pr., 775. 1 Paine aud D. Pr., 508. 1 Burr. Pr., 423. Palmer v. Hutchins, 1 Cow., 42. Aud leave to put in an answer in the nature of a plea puis darrien continuance was refused, after two trials, where the defendant had knowledge of the facts sought to be set up thereby before answering in the cause. Houghton v. Skinner, 5 Pr. R., 420.

TITLE VII.

Of the provisional remedies in civil actions.

CHAPTER. I. Arrest and bail.

II. Claim and delivery of personal property.

III.

Injunction.

SECTION 178. No person to be arrested, except as prescribed by this act. 179. Cases in which defendant may be arrested.

180. Order for arrest, by whom made.

181.

Affidavit to obtain order. To what actions this chapter is applicable.

182. Security by plaintiff, before order for arrest.

183. Order, when made and its form.

184. Affidavit and order to be delivered to sheriff, and copy to defendant. 185. Arrest, how made.

186. Defendant to be discharged on bail or deposit.

187. Bail, how given.

192. Delivery of undertaking to plaintiff, and its acceptance or rejection

by him.

193. Notice of justification. New undertaking, if other bail.
194. Qualification of bail.

195.
196.

Justification and allowance of bail.

197. Deposit of money with sheriff.

198. Payment of money into court by sheriff.

199. Substituting bail for deposit.

200. Money deposited how applied, or disposed of.

201. Sheriff, when liable as bail; and his discharge from liability.

202. Proceedings on judgment against sheriff.

203. Bail liable to sheriff.

§ 178. [153.] No person to be arrested, except as prescribed by this act.-No person shall be arrested in a civil action, except as prescribed by this act; but this provision shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.

This section is identical with section 153 of the code of 1848, and upon that section it was held by the superior court, that the writ of ne exeat or equitable bail was abolished, and that arrest and bail as provisional remedies in civil actions of an equitable nature, could be obtained only in the cases and in the manner prescribed by the code. Fuller v. Emeric, 2 Code Rep., 58.) The same decision was come to by the supreme court at special term. (Forest v. Forest, 3 Code Rep., 121 ;) but on appeal in that case to the general term, it was held, that the writ of ne exeat was not abolished, that it remained as a "provisional remedy," which could not with propriety be denied to suitors when asked for in a proper case. That to authorize the issuing of a ne exeat, facts must be set out sufficiently on which the court or judge can repose its belief. Mere fears and apprehensions of the party are insufficient. Forest v. Forest, 5 How. Pr. R., 125. 3 Code Rep., 141.

It is not necessary, although it is usual, that a ne exeat should be by writ, it may be by order enforced by attachment for contempt. "I see nothing in the code to prevent such a practice, and in case it should be adopted instead of issuing the writ in the first instance, section 178 would clearly warrant an arrest, per Edmonds, J. Ib. By the judiciary act of 1847, (Laws of 1847, p. 640, s. 13,) a justice of the supreme court or any county judge, may out of court, allow writs of ne exeat in suits and proceedings in the supreme court. It is a general rule that if the creditor can arrest his debtor in the ordinary form of law, he is not entitled to a writ of ne exeat, and the fact that the defendant has been arrested in the ordinary form of law is a fatal objection to an application for a writ of ne exeat. The granting of this writ is entirely in the discretion of the court, and is granted with much caution. Pratt v. Wells, 1 Barb. S. C. R., 425. A person coming into this State for the sole purpose of giving testimony as a witness in an action at law, cannot be taken on a writ of ne exeat while waiting to give evidence. Dixon v. Ely, 4 Edw. Ch. R., 557. For the proceedings as to giving bail, &c., on a writ of ne exeat, see Laws of 1845, p. 251, and see further 2 Barb. Ch. Pr.

In the United States district court for the southern district of New York, a question arose, whether by this section a defendant in the United States admiralty courts, had the same exemption from an arrest within this State as a defendant in a State court of this State? And it was determined that he had not. Gaines v. Travis, 2 Code Rep., 102.

§ 179. [154.] (Amended.)—Cases in which defendant may