to a verified pleading, he may treat it as a nullity, provided he gives notice, with due diligence, to the attorney of the adverse party, that he elects so to do.

$529. When defendant not excused from verifying answer to charge of fraud. A defendant is not excused from verifying his answer to a complaint, charging him with having confessed or suffered a judgment, or executed a conveyance, assignment or other instrument, or transferred or delivered money, or personal property, with intent to hinder, delay, or defraud his creditors; or with being a party or privy to such a transaction by another person, with like intent toward the creditors of that person; or with any fraud whatever, affecting a right or the property of another.

$530. Private statute; how pleaded. [AMENDED BY CH. 416 of 1877.] In pleading a private statute, or a right derived therefrom, it is sufficient to designate the statute by its chapter, year of passage and title, or in some other manner with convenient certainty, without setting forth any of the contents thereof.

§ 531. Account; how pleaded. Bill of particulars. It is not necessary for a party to set forth, in a pleading, the items of an account therein alleged; but in that case he must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is verified, must be verified by his affidavit, to the effect that he believes it to be true; or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective. The court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party.

§ 532. Judgments; how pleaded. In pleading a judgment, or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.

§ 533. Conditions precedent; how pleaded. In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state, generally, that he, or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance.

§ 534. Instrument for payment of money; how pleaded. Where a cause of action, defence, or counter-claim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect.

$535. Pleadings in libel and slander. It is not necessary, in an action for libel or slander, to state in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken con

cerning him; and if that allegation is controverted, the plaintiff must establish it on the trial. In such an action, the defendant may prove mitigating circumstances, notwithstanding that he has pleaded or attempted to prove a justification.

§ 536. Pleading mitigating circumstances in action for a wrong. [AMENDED BY CH. 416 OF 1877.] In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, 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. Frivolous pleadings; how disposed of [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] 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 subse quent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section.

§ 538. Sham 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.

§ 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.

§ 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.

§ 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.

§ 542. Amendments of course.-Within twenty days after a pleading, or the answer, demurrer or reply 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. [AM'D BY CH. 470 OF 1897. In effect Sept. 1, 1897.]

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 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.]

107

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 ARKEST.

SECTION 548. No person to be arrested in civil proceedings, without a statutory pro vision; ne exeat abolished.

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.
555. Persons sued in a representative capacity, not to be arrested.

§ 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 profes sional 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 property 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 or 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