JUSTICE'S No person ings, with out a statutory Ne exeat CHAPTER VII. (EXTRACTS.) GENERAL PROVISIONAL REMEDIES IN AN ACTION TITLE I. Arrest, pending the action, and proceedings thereupon. ARTICLE FIRST. CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND PERSONS LIABLE TO § 548. [Amended, 1877.] A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is hereby abolished. [See Co. Proc., § 178. Held, in People v. Donohue, 15 Hun, 481, Revision that the provisions of the "non-imprisonment act" (L. 1831, ch. 300), abolished. authorizing an arrest by warrant, etc., were not abrogated by this Code or the Code of Procedure. But the entire act was repealed by the general repealing act of 1880.] General provision as to privilege from arrest; discharge of privileged person. ARTICLE SECOND. GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST. § 564. This title does not abridge or affect a privilege from arrest given by law, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest, where other provision is not made therefor by law, by the court, or a judge thereof; or by the county judge of the county, or a judge of a superior city court of the city, where the arrest was made. The order must be made, upon proof, by affidavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both.(^) [New; conforming substantially to the provisions for the discharge of witnesses arrested, contained in ch. 9 (§§ 861 and 862).] 206 PART II ARTICLE THIRD. DISCHARGING the Defendant upon BAIL OR DEPOSIT; JUSTIFICATION OF THE $579.* The qualifications of bail are as follows: 1. Each of them must be a resident of, and a householder or freeholder within the State. 2. Each of them must be worth the sum specified in the order of arrest, exclusive of property exempt from execution; but the judge, on justification, may allow more than two bail to justify, severally, in sums less than that specified in the order, if the whole justification is equivalent to that of two sufficient bail.(*) [Co. Proc., § 194. It has been held repeatedly that, under the Code of Procedure, the common law rules, disqualifying attorneys and certain other persons, from becoming bail, were not abrogated. But in 1877, a clause was added to rule 5, expressly prohibiting an attorney or counsellor from being bail.] * Qualifica tions of bail. tion of bail. § 580. For the purpose of justification, each of the bail must Justifica attend before the judge, at the time and place mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such a manner as the judge, in his discretion, thinks proper. The judge may, in his discretion, adjourn the examination from day to day, until it is completed; but such an adjournment must always be to the next judicial day, unless by consent of parties. If required by the plaintiff's attorney, the examination must be reduced to writing, and subscribed by the bail. () [Co. Proc., § 195, amended by adding the second sentence.] of bail. § 581.* If the judge finds the bail sufficient, he must annex the Allowance examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability.(*) [Co. Proc., § 196, amended by omitting " or justice of the peace."] 207 (a) Applied to justices' courts by § 2926, p. 37. JUSTICE'S Amend ments by the court; ing imma errors, etc. CHAPTER VIII. (EXTRACTS.) MISCELLANEOUS INTERLOCUTORY PROCEEDINGS, TITLE I. Mistakes, omissions, defects, and irregularities. § 723. [Amended, 1877.] The court may, upon the trial, or adisregard any other stage of the action, before or after judgment, in furtherterial ance of justice, and on such terms as it deems just, amend any pro cess, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party.(*) Disregard in affida vits. [Co. Proc., 173, and part of § 176. The only limit to the power to amend pleadings upon the trial is that a new cause of action must not be introduced. Reeder v. Sayre, 70 N. Y., 180. An amendment changing the action against the defendant as administratrix, to one against her individually, may be made upon a motion before the trial. Tighe v. Pope, 16 Hun, 180. But an amendment at the trial, changing the action from one to remove a cloud upon the title, and for rents and profits, to ejectment, is not admissible. Bockes v. Lansing, 74 N. Y., 437. The terms imposed may be reviewed on appeal, by the general term. Hand v. Burrows, 15 Hun, 481.] ing defects § 728. The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made.(") [Co. Proc., § 406. But semble, that leaving the affiant's name in blank in the affidavit is a fatal defect. People v. Sutherland, 16 Hun, 192.] 208 PART II. bonds, sufficient. § 729. A bond or undertaking, required by statute to be given by Certain a person, to entitle him to a right or privilege, or to take a proceed- etc., when ing, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit, it is given. (*) [2 R. S., 556, Part 3, ch. 8, tit. 17, § 33 (3 R. S., 5th ed., 870; 2 Edm., 576), amended by adding the words, " or undertaking."] defects in etc. § 730. Where such a bond or undertaking is defective, the court Amending officer, or body, that would be authorized to receive it, or to enter- bonds, tain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly; and it shall thereupon be valid, from the time of its execution.(*) [Id., § 34, similarly amended.] TITLE III. Payment of money into court, and care and disposition thereof. certain touching securities, 749. A county treasurer, or other officer, or a guardian, commit- Powers of tee, or other trustee, in whose name is taken a bond, mortgage, or officers, other security, or public stock, representing money, paid into court, etc. in an action; or to whom stock or a security, or an account, deed, voucher, receipt, or other paper, representing or relating to such money, is transferred, delivered, made, or given, pursuant to law; is vested with title for the purposes of the trust, and may bring an action upon or in relation to the same, in his official or representative character.(*) [See L. 1848, ch. 277, § 4.] TITLE IV. Proceedings upon the death or disability of a party, or the transfer of his interest. 764. [Amended, 1880.] After verdict, report, or decision, in action to recover damages for a personal injury, the action does abate after verdict, etc. JUSTICE'S MANUAL. abate by the death of a party, unless the verdict, report, or decision is finally set aside. Until it is finally set aside, the subsequent proceedings, including an appeal from an order setting it aside, or from judgment or order reversing or setting aside a judgment entered thereupon, and a new trial of the action on the merits, when a new trial is ordered, are the same, as in a case where the cause of action survives.(*) No verdict, etc., can be taken after a party's death. [Prepared as a substitute for the fourth sentence of § 121 of the Code of Procedure. Literally, the original means that a cause of action for a wrong, if a verdict thereon has been rendered, will survive the death of either party, not merely until a case or exceptions can be heard, but for all time to come; so that, if the verdict is set aside, or a judgment thereon is reversed on appeal, the plaintiff may again try the cause. Such, doubtless, was not the intention of the legislature; and this section has been framed in accordance with the construction of the original, in Wood v. Phillips, 11 Abb., N. S., 1; and, in Spooner v. Keeler, 51 N. Y., 527, particularly the concluding sentence of the opinion of LOTT, Ch. Com., on p. 536.] 765. This title does not authorize the entry of a judgment against a party, who dies before a verdict, report, or decision is actually rendered against him. In that case, the verdict, report, or decision is absolutely void. (a) [2 R. S., 387, Part 3, ch. 7, tit. 1, § 5 (3 R. S., 5th ed., 669; 2 Edm., 402), amended by omitting the clause of the original, beginning with "notwithstanding."] Time for publication of notice; how com TITLE VI. Miscellaneous practice regulations. § 787. The period of publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of puted. record, or before a judge of such a court, must be computed, so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which 'completes the full period of publication.(*) Time for [Co. Proc., § 425.] § 788. [Amended, 1877.] The time, within which an act, in an act: how action or special proceeding, brought, as specified in the last section, doing any computed. 210 |