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The following qualification: "whenever the amendment shall not change substantially the cause of action or defence," was added to the original section. That is now omitted, in consequence of an erroneous construction given by one of the judges of the supreme court by which the cause of action is construed to mean the relief demanded, instead of the injury which gave rise to the action. There is so little danger of the courts going too far, in allowing amendments, that the qualification can be omitted without danger.

It is the intention of the commissioners to allow and encourage amendments of every kind, whenever justice will be promoted by them. They considered the original section ample for that purpose; but the disposition of judges to construe the power of amendment strictly, has induced the commissioners to prepare an additional sentence, which, it is hoped, will prove effectual.

§ 18. Section 154 is amended, so as to read as follows:

§ 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, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for a wilful injury to person, character, or 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, 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, or security given therefor, as provided in the next chapter;

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.

This section and the next explain themselves. The design of them is to extend the right of arrest to cases of fraud or wilful wrong, and to provide a substitute for such parts of the act to abolish imprisonment for debt and to punish fraudulent debtors, as result in arrest and bail only.

§ 19. Section 156 is amended, so as to read as follows:

§ 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 that the case is one of those mentioned in section 154.

§ 20. Section 158 is amended, so as to read as follows:

§ 158. The order may be made, to accompany the summons, 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.

This amendment and the next are made to remove a doubt, which some persons have expressed, about the proper construction of the words "commencing an action," in the original sections.

§ 21. Section 181 is amended, so as to read as follows:

§ 181. The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, claim the immediate delivery of such property, as provided in this chapter.

§ 22. Section 184 is amended so as to read as fol

lows:

§ 184. Upon the receipt of the affidavit and notice, with a written undertaking, executed by one or more sufficient sureties, approved by the sheriff, to the effect that they are bound, in double the value of the property as stated in the affidavit, for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall, also, without delay,

serve on the defendant, a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken; or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion.

Omitting the words in the original section, which require a justification of the sureties, though not excepted to. The next two amendments are designed to carry out this.

§ 23. Section 185 is amended, so as to read as follows:

§ 185. When the defendant does not reclaim the property as provided in section 186, he may within two days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he accepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice in like manner, as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties until the objection to them is either waived as above provided, or until they shall justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the

next section.

24. Section 187 is amended so as to read as follows:

§ 187. The defendant's sureties, upon a notice to the plaintiff, of not less than four, nor more than eight days, shall justify before a judge, in the same manner

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as upon bail en arrest; upon such justification, the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant's sureties, until they justify, or until justification is expressly waived, and may retain the property until the justification is completed, and if they or others in their place, fail to justify, at the time and place appointed, he shall deliver the property to the plaintiff.

§ 25. Section 192 is amended, so as to read as follows:

§ 192. Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act of the defendant, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff; or where, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted, to restrain such act. And where, during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about, to remove, or dispose of, his property, with intent to defraud his creditors, a temporary injunction may be granted to restrain such removal or disposition.

Intended to provide a substitute for part of the nonimprisonment act.

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