Amendments by

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 amend ment 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 forty-four, 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.

§ 173. The court may, before or after judgment, in furthe court. therance of justice, and on such terms as may be proper, amend any pleading 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, when the amendment does not change substantially the claim or defence by conforming the pleading or proceeding to the facts proved.

Amend

ment after

§ 174. The court may likewise, in its discretion, and upon demurrer. 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 Suing a make it conformable thereto.

party by a fictitious name, when al

175. When the plaintiff shall be ignorant of the name lowed." 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 No error or be amended accordingly.

defect to be regarded, unless it affect sub

rights.

§ 176. The court shall, in every stage of an action, dis- stantial regard 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 Supplereason of such error or defect.

mental complaint,

answer or

§ 177. The plaintiff and defendant respectively, may be reply. 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.

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.

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

181.

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

No person to be ar

cept as pre

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

187. Bail, how given.

189. Surrender of defendant.

190. Bail, how proceeded against.

191. Bail, how exonerated.

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

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

195.

196. S

Justification and allowance of bail.

197. Deposite of money with sheriff.

198. Payment of money into court by sheriff.

199. Substituting bail for deposite.

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. No person shall be arrested in a civil action ex

rested, except as prescribed by this act; but this provision shall not ribed by affect the act to abolish imprisonment for debt, and to

ulis act.

Cases in

which defendant

may be arrested.

punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.

§ 179. The defendant may be arrested, as hereinafter prescribed, in the following cases:

1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant

.

is not a resident of the state, 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 on a promise to marry, 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 enployment 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 sherif, and with the intent that it should not be so found, or taken, or with the intent to deprive the plain · tiff 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:

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.

$180. An order for the arrest of the defendant, must be Order for obtained from a judge of the court in which the action is where brought, or from a county judge.

$ 181. The order may be made, where it shall appear Affidavit to to the judge by the affidavit of the plaintiff, or of any other der person, that a sufficient cause of action exists, and that the .case is one of those mentioned in section 179.

arrest, by

made.

To what actions this

plicable.

The provisions of this chapter shall apply to all actions chapter ap- included within the provisions of section 179, which shall have been commenced since the thirtieth day of June, one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained.

Security

by plaintiff

der of ar

rest.

§ 182. Before making the order, the judge shall require before or a written undertaking on the part of the plaintiff, with or without sureties, to the effect, that if the defendant recover judgment, the plaintiff 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

its form.

§ 183. The order may be made, to accompany the summade, and mons, or at any time afterwards, before judgment. It shall require the sheriff of the county, where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or endorsed.

Affidavit

and order

§ 184. The affidavit and order of arrest shall be delivto be deli ered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof.

vered to

sheriff, and

copy to defendant.

Arrest,how made.

Defendant to be dis

charged on

posit.

§ 185. The sheriff shall execute the order, by arresting the defendant and keeping him in custody, until discharged by law; and may call the power of the country to his aid, in the execution of the arrest as in case of pro

cess.

§ 186. The defendant at any time before execution, shall bail or de- be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter.