the defendant may prove, at the trial, facts, not amounting to a total defence, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defences to the entire cause of action. A defendant, in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plaintiff's damages, prove facts of that description. § 537. [Am'd, 1879.] Frivolous pleadings; how disposed of. If a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section. Co. Proc., § 247. § 538. Shar defences to be stricken out. A sham answer or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just. Id., § 152, am'd. § 539. Material variances; how provided for. A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just. Id., § 169. § 540. Immaterial variances; how provided for. Where the variance is not material, as prescribed 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. Id., § 170. § 541. What to be deemed a failure of proof. Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof. Id., § 171. § 542. Amendments of course. Within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had. But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just. Co. Proc., part of § 172, remodelled. § 543. Amended pleading to be served; answer thereto. Where a pleading is amended, as prescribed in the last section, a copy thereof must be served upon the attorney for 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. Id., part of § 172, and of § 146. § 544. [Am'd, 1877.] Supplemental pleadings. 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 the 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. Id., 177, am'd. § 545. [Am'd, 1877.] Motion to strike out irrelevant, etc., matter. 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. Id., 160, am'd. 546. [Am'd, 1877.] Indefinite or uncertain allegations. 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. Id., part of § 160, am'd. CHAPTER VII. General Provisional Remedies in an Action. TITLE 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; jurisdiction 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. Sec. 548. No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished. 549. When the right to arrest depends upon the nature of the action. 552. Foreign judgment not to affect right to arrest. 553. Women not to be arrested, except, etc. 554. Idiot, lunatic, or infant under fourteen, if arrested, to be discharged. 555. Person sued in a representative capacity, not to be arrested. § 548. [Am'd, 1877.]. No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished. 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. Substitute for Co. Proc., § 178. § 549. [Am'd, 1877 and 1886.] When the right to arrest depends upon the nature of the action. A defendant may be arrested in an action, as prescribed 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 * See Laws 1886, ch. 672. 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 money, funds, credits, or property, held or owned by the State, or held, or owned, officially or otherwise, for or in behalf of a public or governmental 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. [Added, 1879; am'd, 1886.] 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 property with intent to defraud his creditor, 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. Co. Proc., § 179, am'd; L. 1886, ch. 672. § 550. [Am'd, 1877 and 1886.] When the right to arrest depends partly upon extrinsic facts. 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. Substitute for part of § 179, Co. Proc.; L. 1886, ch. 672. § 551. [Am'd, 1877 and 1886.] Order when and where granted; when of right, and when discretionary. 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 may be granted, where a proper case therefor is presented, at any time before final judgment. L. 1886, ch. 672. § 552. Foreign judgment not to affect right to arrest. The recovery of judment 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. [Am'd, 1877.] etc. Woman not to be arrested, except, A woman cannot be arrested, as prescribed in this title, except 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. Last sentence of Co. Proc., § 179. § 554. [Am'd, 1877.] Idiot, lunatic, or infant under fourteen, if arrested, to be discharged. A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privi leged 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, administrator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act. Modelled upon 2 R. S. 348, § 9 (2 Edm. 359). 130 |