PART III. ments, ex 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 defense by conforming the pleading or proceeding to the facts proved. As amended by Laws of 1851, ch. 479. 22 Ν. Υ., 241; 18 N. Y., 521, 550; 14 N. Y., 251; 32 Β., 221, 535; 29 В., 295; 26 B, 359; 25 B, 336; 24 B., 287, 410; 23 B., 29; 22 B., 139, 164, 322; 20 B., 42, 502; 19 B, 52, 186, 331; 17 B., 105, 426; 16 B., 293; 14 B., 252; 13 B., 183; 9 B., 206; 7 B., 226; 22 How. P. R., 481; 20 How. P. R., 220, 256; 19 How. P. R., 116, 234; 18 How. P. R., 506; 14 How. P. R., 232, 526; 13 How. P. R., 471; 12 How. P. R., 381; 11 How. P. R., 170; 10 How. P. R., 193; 8 How. P. R., 334; 7 How. P. R., 294, 449; 6 How. P. R., 76, 390; 5 How. P. R., 310; 4 How. P. R., 154; 11 Ab., 420, 456; 10 Ab., 374, 425, 479; 9 Ab., 413; 7 Ab., 199, 477; 6 Ab., 79, 82, 214, 350, 380; 5 Ab, 70; 4 Ab, 367; 3 Ab., 87, 440; 2 Ab, 442, 1 Ab, 65; 3 Bos., 250. Amend- $ 174. The court may likewise, in its discretion, and upon Tensiones such terms as may be just, allow an answer or reply to be time, rebef made or other act to be done after the time limited by this from judgments. Suing a fictitious 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. As amended by Laws of 1851, ch. 479. 18 Ν. Υ., 153; 30 B., 121; 25 B., 337; 12 B., 287; 22 How. P. R., 231; 18 How. P. R., 324; 17 How. P. R., 383; 16 How. P. R., 386; 14 How. P. R., 19, 430; 13 How. P. R., 175; 12 How. P. R., 400; 8 How. P. R., 312; 6 How P. R., 326; 13 Ab., 270; 7 Ab, 265, 362, 365; 5 Ab, 70; 4 Ab, 251; 3 Ab., 450; 2 Ab., 18. $ 175. When the plaintiff shall be ignorant of the name party by a of a defendant, such defendant may be designated in any name, when pleading or proceeding, by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. allowed. No error or 22 How. P. R., 518; 7 How. P. R., 271. $176. The court shall, in every stage of an action, disredefarded, be gard any error, or defect in the pleadings or proceedings, unless it af which shall not affect the substantial rights of the adverse stantial party; and no judgment shall be reversed or affected by rea fect sub rights. Supplemen tal complaint, an son of such error or defect. 20 Ν. Υ., 360; 29 B., 295; 26 B., 359; 22 B., 322; 20 B, 66; 15 B., 551; 14 B., 252, 569; 13 B., 183; 12 B., 65, 287; 8 B., 219, 342; 7 B., 88; 4 E. D. 8., 95; 17 How. P. R., 197; 13 How. P. R., 287; 9 How. P. R., 35; 6 How. P. R., 76, 222; 8 Ab., 75; 6 Ab., 380; 4 Ab., 178; 1 Ab, 229. $ 177. The plaintiff and defendant respectively, may be allowed, on motion, to make a supplemental complaint, an CHAP. XI. swer or reply, alleging facts material to the case, occurring swer or 22 Β., 259; 4 Βοπ., 638; 13 How. P. R., 247; 12 How. P. R., 521; 8 192. 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. 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. to be ar $178. No person shall be arrested in a civil action except No person 15 B., 402; 10 B., 46; 22 How. P. R., 501; 8 How. P. R., 134; 7 How. scribed $179. The defendant may be arrested, as hereinafter pre- Cases in scribed, 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 which de-fendant may be ar rested. PART IIL Order for marry, or for money received, or property embezzled or frandulently 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, 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; 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 willful injury to person, character or property. Amended by Laws of 1851, ch. 479; 1863, ch. 392. 9 Ν. Υ., 210; 6 N. Y., 562; 30 B., 61, 507; 28 B., 204; 26 B., 82; 17 Β., 644; 16 B., 314; 15 B., 405; 12 B., 612; 11 B., 303; 8 B., 170, 511; 4 Bos., 94, 646; 3 Bos., 634; 4 E. D. S., 139, 227; 1 E. D. S., 256; 2 Hilt., 502; 3 S. S. C., 709; 23 How. P. R., 244, 421; 22 How. P. R., 416; 21 How. P. R., 116; 20 How. P. R., 311; 18 How. P. R., 45, 94; 17 How. P. R., 69, 483, 518; 15 How. P. R., 48, 97, 210; 14 How. P. R., 136, 408; 13 How. P. R., 222, 231; 12 How. P. R., 19, 289; 11 How. P. R., 9, 108; 10 How. P. R., 37, 259;8 How. P. R., 111 298; 6 How. P. R., 86, 241, 316, 338; 5 How. P. R., 150, 251, 327; 3 How. P. R., 265; 13 Ab., 405; 12 Ab., 242; 11 Ab., 126, 261, 416; 10 Ab., 102, 256, 320; 9 Ab., 92; 8 Ab., 413; 7 Ab., 433; 6 Ab., 37; 5 Ab., 164, 389; 4 Ab., 50; 3 Ab., 259; 2 Ab., 186, 445; 1 Ab., 76, 443. $ 180. An order for the arrest of the defendant, must be arrest, by obtained from a judge of the court in which the action is brought, or from a county judge. made. obtain order. 11 B., 307; 20 How. P. R., 236, 441; 12 Ab., 293. Affidavit to $ 181. The order may be made, where it shall appear to the judge by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179. The provisions of this chapter shall apply to all actions actions this included within the provisions of section 179, which shall have applicable. been commenced since the thirtieth day of June, one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained. To what chapter 9 Ν. Υ., 210; 6 N. Y., 562; 30 B., 63; 26 B., 82; 8 B., 170; 21 How. CHAP. XI. $182. Before making the order, the judge shall require a Security by written undertaking on the part of the plaintiff, with or with- plaintif be out sureties, to the effect, that if the defendant recover judg- of arrest. ment, 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. 26 B., 58; 12 How. P. R., 381; 9 How. P. R., 255; 10 Ab., 424; 3 Ab., when made, $183. The order may be made to accompany the summons, Order, or at any time afterwards, before judgment. It shall require and its the sheriff of the county, where the defendant may be found, form. 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 indorsed. But said order of arrest shall be of no Order of avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided 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 in the action, and to move to vacate the order of arrest, or to reduce the amount of bail. As amended by Laws of 1862, ch. 460. arrest. 11 B., 303; 8 B., 170; 16 How. P. R., 525; 13 Ab., 181; 8 Ab., 150. $184. The affidavit and order of arrest shall be delivered Affidavit to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof. 9 How. P. R., 255. and order to be dell vered to sheriff, and copy to defendant. how made. $185. The sheriff shall execute the order, by arresting the Arrest, 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 process. 10 B., 52. to be dis $186. The defendant at any time before execution, shall Defendant be discharged from the arrest, either upon giving bail, or upon charged ou depositing the amount mentioned in the order of arrest, as deposit. provided in this chapter. 7 B., 658. bail or 3187. The defendant may give bail, by causing a written Bail, how undertaking to be executed by two or more sufficient bail, given. 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, PART III. Surrender of defendant. The same. Bail, how proceeded against. Bail, how exonerated. Delivery of undertak or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211. 6 Ν. Υ., 564; 32 B., 91; 31 B., 63; 15 B., 26; 10 B., 52; 8 B., 512; 17 How. P. R., 69, 518; 15 How. P. R., 12, 92; 8 How. P. R., 111; 10 Ab., 19, 280; 8 Ab., 152; 2 Ab., 18. $ 188. 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, 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 certificate, a judge of the court, or county judge, 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 subdivision 3, of section 179 so as to discharge the bail from an undertaking given to the effect provided by section 211. As amended by Laws of 1851, ch. 479. $189. 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, endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. $ 190. In case of failure to comply with the undertaking the bail may be proceeded against by action only. S 191. The bail may be exonerated, either by the death of the defendant 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 of the county where he was arrested, 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. 12 B., 612; 22 How. P. R., 91; 21 How. P. R., 147; 20 How. P. R., 18; 17 How. P. R., 441; 13 Ab., 103; 12 Ab., 81, 179; 10 Ab., 279. $ 192. Within the time limited for that purpose the sheriff Inger plain shall deliver the order of arrest to the plaintiff or attorney by tiff, and its whom it is subscribed, with his return indorsed, and a certified election by copy of the undertaking of the bail. The plaintiff, within ten reception or days thereafter, may serve upon the sheriff, a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability. 4 How. P. R., 31; 3 How. P. R., 384; 9 Ab., 184. |