be served upon the attorney of the adverse party. A failure to demur to, or answer the amended pleading, within twenty days thereafter, has the same effect as a like failure to demur to, or answer the original pleading. § 544. Supplemental pleadings. [AMENDED BY CH. 416 OF 1877.] Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in an action is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings. $545. Motion to strike out irrelevant, etc., matter. [AMENDED BY CH 416 OF 1877.] Irrelevant, redundant or scandalous matter contained in a pleading, may be stricken out upon the motion of a person aggrieved thereby. Where scandalous matter is thus stricken out, the attorney, whose name is subscribed to the pleading, may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court. $546. Indefinite or uncertain allegations. [AMENDED BY CH. 416 OF 1877.] Where one or more denials or allegations, contained in a pleading are so indefinite or uncertain that the precise meaning or application thereof, is not apparent, the court may require the pleading to be made definite and certain by amendment. $547. [Stricken out by Ch. 416 of 1877.] 548 TITLE CHAPTER VII. GENERAL PROVISIONAL REMEDIES IN AN ACTION. I.—ARREST, PENDING THE ACTION, AND PROCEEDINGS THEREUpon. TITLE II. INJUNCTION. TITLE III.-ATTACHMENT OF PROPERTY. TITLE IV.-OTHER PROVISIONAL REMEDIES; GENERAL AND MISCELLANEOUS PROVISIONS. TITLE I. Arrest pending the action, and proceedings thereupon. ARTICLE 1. Cases where an order of arrest may be granted, and persons liable to arrest. 2. Granting, executing, and vacating or modifying the order of arrest. 3. Discharging the defendant upon bail or deposit; justification of the bail and disposition of the deposit. 4. Charging and discharging bail. ARTICLE FIRST. CASES WHERE AN ORDER OF ARREST MAY BE GRANTED, AND PERSONS LIABLE TO ARREST. SECTION 548. No person to be arrested in civil proceedings, without a statutory pro vision; ne exeat abolished. √572 549. When the right to arrest depends upon the nature of the action. 550. When the right to arrest depends partly upon extrinsic facts. 551. Order, when and where granted; when of right, and when discretionary. 552. Foreign judgment not to affect right to arrest. 553. Women not te be arrested, except, etc. 554. Idiot, lunatic, or infant under fourteen, if arrested to be discharged. § 548. No person to be arrested except as prescribed by statute. [AMENDED BY CH. 416 OF 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. $549. Right of arrest. A defendant may be arrested in an action, as pre scribed in this title, where the action is brought for either of the following causes: 1. To recover a fine or penalty. 2. To recover damages for a personal injury; an injury to property, including the wrongful taking, detention or conversion of personal property; breach of a promise to marry; misconduct or neglect in office, or in a professional employment; fraud, or deceit; or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for money received or to recover property or damages for the conversion or misapplication of property where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a public officer or by an attorney, solicitor or counselor, or by an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. Where such allegation is made, the plaintiff cannot recover unless he proves the same on the trial of the action; and a judgment for the defendant is not a bar to the new action to recover the money or chattel. 3. To recover moneys, funds or property held or owned by the State, or held or owned officially or otherwise for or in behalf of a public or govermental interest by a municipal or other public corporation, board, officer, custodian, agency or agent, of the State or of a city, county, town, village or other division, subdivision, department or portion of the State which the defendant has without right obtained, received, converted or disposed of; or to recover damages for so obtaining, receiving, paying, converting or disposing of the same. 4. In an action upon contract, express or implied, other than a promise to marry, where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability or that he has since the making of the contract, or in contemplation of making of the same, removed or disposed of his properly with intent to defraud his creditors, or is about to remove or dispose of the same with like intent; but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action; and a judgment for the defendant is not a bar to a new action to recover upon the contract only. [Aм'D CH. 672 OF 1886. PASSED JUNE 15, 1886. SEE § 7 OF SAME ACT, AT § 111, sup.] § 550. Right of arrest. A defendant may also be arrested in an action wherein the judgment demanded requires the performance of an act the neglect or refusal to perform which would be punishable by the court as a contempt where the defendant is not a resident of the State, or being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiring the performance of the act will be rendered ineffectual. [AM'D CH. 672 OF 1886. PASSED JUNE 15, 1886. SEE § 7 OF SAME ACT, AT § 111, sup.] § 551. Order of arrest. In a case specified in the last section the order of arrest can be granted only by the court, is always in its discretion, and may be granted or served either before or after final judgment, unless an appeal from the judgment is pending upon which security has been given sufficient to stay the execution thereof. In either of the cases specified in section five hundred and forty-nine the order cannot be served after final judgment; but it may be granted where a proper case therefor is presented at any time before final judgment. [AM'D CH. 672 OF 1886. SEE § 7 OF SAME ACt, at § 111, sup.] $552. Foreign judgment not to affect right to arrest. The recovery of judgment in a court, not of the State, for the same cause of action; or, where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby; does not affect the right of the plaintiff to arrest the defendant, as prescribed in this title. $553. Woman not to be arrested, except, etc. [AMENDED BY CH, 416 OF 1877.] A woman cannot be arrested, as prescribed in this title, ex cept in a case where the order can be granted only by the court; or where it appears that the action is to recover damages for a wilful injury to person, character or property. § 554. Idiot, lunatic, or infant under fourteen, if arrested to be discharged. [AMENDED BY CH. 416 OF 1877.] A lunatic, an idiot or an infant under the age of fourteen years, if arrested, may be discharged from arrest as a privileged person in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him, for the purpose. $555. Person sued in a representative capacity, not to be arrested. A person prosecuted in a representative capacity, as heir, executor, adminis trator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act. ARTICLE SECOND. GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST. SECTION 556. Order required for arrest; how granted. 557. Proof necessary to procure order. 558. When order may be granted; effect of complaint subsequently made. 560. Id.; upon order of arrest granted by the court. 561. Contents of the order; to whom directed; when to be executed. 562. Copies of papers to be delivered to defendant; originals to be file... 563. Arrest; how made. 564. General provision as to privilege from arrest; discharge of privileged person. 565. Privilege of officers of courts. 566. Defendant arrested to have twenty days to answer. 567. When application to be made to vacate order of arrest, etc. 568. How and to whom application must be made; opposing it by new proofs. *569, *570. Questions of fact arising on the motion. *571. When prior motion not to prejudice subsequent motion. 572. Supersedeas, unless defendant is charged in execution, etc. $556. Order required for arrest; how granted. [AMENDED BY CH. 416 OF 1877.] An order for the arrest of the defendant, except as otherwise prescribed in section five hundred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge. § 557. Proof necessary to procure order. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] The order may be granted, in a case specified in section five hundred and forty-nine of this act, where it appears by the affidavit of the plaintiff, or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section five hundred and fifty of this act, upon the like proof that a sufficient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in that section. The affidavit may also contain any statement, tending to determine the amount of bail to be required. § 558. When order granted. Subject to the provisions of the last preceding section the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons, but at any time after the filing or service of the complaint the order of arrest must be vacated on motion if the complaint fails to set forth a sufficient cause of action as required by section five hundred and forty-nine of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may without notice direct the service of an amended complaint so as to conform to the allegations required in subdivisions two and four of section five hundred and forty-nine of this act. [AM'D CH. 672 OF 1886. SEE § 7 OF SAME ACT, AT § 111, sup.] § 559. Security upon order of arrest made by a judge. [AMENDED BY CH. 542 OF 1879.] Except where the action is brought for a cause specified in subdivision third of section five hundred and forty-nine of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which 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 must be at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars. § 560. Id.; upon order of arrest granted by the court. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form and the security to be given thereupon, must be such as the court prescribes.. § 561. Contents of the order; to whom directed: when to be executed. [AMENDED BY CH. 416 OF 1877.] The order must be subscribed by the plaintiff's attorney, and except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a particular county, or, generally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant if he is found within his county; to hold him tɔ bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case, he cannot be arrested afterwards under the same order. § 562. Copies of papers to be delivered to defendant; originals to be filed. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] The order of arrest, or where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and, in either case, the papers upon which the order was granted, with the undertaking, if any; must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy thereof The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in section five hundred and ninety of this act. $ 563. Arrest; how made. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him. in custody until discharged by law. § 564. General provision as to privilege from arrest; discharge of privileged person. 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 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. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.] |
