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and it must be shown in what respect he has been mis! led; and thereupon the court may order the pleading to be amended, upon such terms as may be just.

Amended Code, § 169.

§ 667. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.

Amended Code, § 170.

§ 668. Where, however, the allegation of the claim or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections, but a failure of proof.

Amended Code, § 171.

§ 669. Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires, or, if it do not delay the trial, it can be so amended at any time within twenty days after service of the answer to such pleading. 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 defendant to answer,

upon such terms as to trial by the court or referees, or as to costs, or otherwise, as may be just.

Amended Code, § 172.

§ 670. The court may, at any time, in furtherance 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, or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved. The court may likewise, in its discretion, allow an answer or reply to be made, after the time limited by this act, or by an order enlarging such time, and may also, 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 permit an amendment of such proceeding, so as to make it comformable thereto.

Amended Cod, § 173, modified in the latter part of the first

sentence.

§ 671. When the plaintiff is 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 is discovered, the pleading or proceedin; may be amended accordingly.

Amended Code, § 175.

§ 672. The court must, in every stage of an action, disregard any error, or defect, in the pleadings or prooeedings, which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect.

Amended Code, § 176.

§ 673. 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.

Amended Code, § 177, omitting an addition made at the last session, which relates rather to an amendment of a pleading, than to a supplemental pleading.

TITLE VII.

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS.

CHAPTER I. Arrest and bail.

II. Claim and delivery of personal property.

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SECTION 674. No person to be arrested, except as prescribed by this code. 675. Cases in which defendant may be arrested.

676. Order for arrest, by whom made.

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678. Security by plaintiff, before order for arrest.

679. Order, when made and its form.

680. Affidavit and order to be delivered to sheriff, and copy to defendant. 681. Arrest, how made.

682. Defendant to be discharged on bail or deposit.

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

689. Notice of justification. New undertaking, if other bail.

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691, 692. Justification and allowance of bail.

693. Deposit of money with sheriff.

694. Payment of money into court by sheriff.

695. Substituting bail for deposit.

696. Money deposited, how applied, or disposed of.

697. Sheriff, when liable as bail; and his discharge from liability.

698. Proceedings on judgment against sheriff.

599. Bail liable to sheriff.

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674. No person can be arrested in a civil action, ex cept as prescribed by this chapter; but this provisio does not apply to proceedings for contempt.

Amended Code, § 178. It has been sometimes doubted whether this section abolishes the writ of ne exeat. Why it should be doubted we cannot understand. The language appears to us as explicit as it can be made. Nothing certainly was farther from our intention than to leave any mode of arrest not provided for in this chapter, except upon proceedings for contempt, and under the act to abolish imprisonment for debt. As it is now proposed to repeal the latter, this section is intended to embrace every case of arrest in a civil action, except for contempt.

§ 675. 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 arising on obligation, 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, or to property knowing the property to belong to another:

2. In an action for a fine, or penalty, or on a promise to marry, or for money or property embezzled, or fraudulently missapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in of fice 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:

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