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$ 150. 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.
$ 151. 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.
§ 152. 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.
Of the provisional remedies in civil actions.
CHAPTER I. ARREST AND BAIL.
II. CLAIM AND DELIVERY OF PERSONAL PROPERTY.
Provisional remedies are those which are applied before judgment, with a view of rendering it effectual, whatever it
The provisions of this title need little explanation. The first chapter is a substitute for all the present statutes, providing for the arrest of persons upon civil process, before execution. We have adhered generally to the principle of the existing laws, although, in some respects, we have restricted the right of arrest, particularly by requiring in all cases an order of a judge, and in most cases, an affidavit that the defendant is not a resident of the state, or is about to remove from it. We have also provided, that, before an arrest, the plaintiff must gire security to pay the defendant's costs, and whatever damages he may sustain by the arrest. We have also proposed, that the defendant may make a deposit of money in all cases, instead of giving bail.
It is also a part of our plan, that the provisional remedies should be applied at any time, during the progress of the suit, and not alone at the commencement, as must now be done. Cases often arise, not foreseen at the commencement of the action, in which justice requires the arrest of the defendant or the delivery of personal property, or an injunction. The writ of ne exeat, or equitable bail, we propose to abolish, as unne
cessary under our system. [P. &. p.]
ARREST AND BAIL.
SECTION 153. No person to be arrested, except as prescribed by this act.
154. Cases in which defendant may be arrested.
Surrender of defendant.
tion of the undertaking.
Motion to vacate order of arrest, or reduce bail.
}Justification of bail.
§ 153. 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.
§ 154. 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.
2. In an action for a fine or penalty, or on a promise to marry, or for moneys collected by a public officer, or by an attorney, solicitor or counsellor, in the course of his employment as such, or by any 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 shall not have been delivered to the plaintiff as provided in next chapter.
But no female shall be arrested in an action arising on contract, or in any other action, except for a wilful injury to person, character or property.
§ 155, An order for the arrest of the defendant, must be obtained from a judge of the court in which the action is brought, or from a county judge.
8 156. 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 (excepting in the cases mentioned in the second subdivision of section 154,) that the defendant is not a resident of tie state, or is about to remove therefrom.
§ 157. Before making the order, the judge shall require 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
two hundred and fifty 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.
$ 158. The order may be made at the time of commencing the action, 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 same at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or endorsed.
§ 159. The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof.
§ 160. 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 county to his aid, in the execution of the arrest, as in case of process.
§ 161. The defendant, at any time before execution, shall 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.
$ 162. The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient