one year (Van Benthuysen v. Lyle, 8 How. 312; Amory v. Amory, 3 Abb. N. S. 16; 34 How. 390); but neither an unauthorized judgment for a deficiency in a foreclosure (Simonson v. Blake, 20 How. 484), nor a judgment entered without service of process, is within this limitation (Baldwin v. Kimmell, 16 Abb. 355; 1 Rob. 109).

a. In Pettigrew v. Mayor of N. Y. 17 How. 492, the court, after judgment, on motion of the defendant, set aside the judgment, on the ground that the contract on which the plaintiff sued had been fraudulently altered by some person unknown, by which the plaintiff had recovered more than he was entitled to; and see Macombe v. Mayor of N. Y. 17 Abb. 36.

b. After verdict for plaintiff, case on which to move for a new trial made by defendant, judgment entered and time for appeal had elapsed, defendant was allowed to come in and be heard, on his case (Jellinghaus v. N. Ins. Co. 5 Bosw. 678).

§ 175. Fictitious name.

When the plaintiff shall be 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 shall be discovered, the pleading or proceeding may be amended accordingly.

c. It is not allowable to a plaintiff to designate a defendant by a fictitious name at discretion; it can only be done when the plaintiff is ignorant of the true name (Crandall v. Beach, 7 How. 271). The law supposes every one to have a family and a given name, and allows two fictitious names to be inserted when either of the real ones are unknown (Frank v. Levie, 5 Rob. 600); where a person is known as well by one name as another he may be sued in either name (Eagleston v. Son, 5 Rob. 640).

d. Where three persons used a name indicating that they were a corporation, but they were not incorporated, the plaintiff having sued them as a corporation by the name used by them, was allowed, on discovering the mistake, to amend without costs by substituting the names of the individuals as defendants (Newton v. Milleville Manufacturing Co. 17 Abb. 318, note).

e. Where an infant not yet named is a party, how is it to be described? (Ely v. Broughton, 2 Sim. & Stu. 183; see note to § 176.)

§ 176. Errors disregarded.

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

f. This section does not make valid a bad pleading, when the defects are made the grounds of demurrer (Vanderburg v. Van Valkenburg, 8 Barb. 218). g. Where the action was commenced by summons, which stated that the complaint would be filed in the office of the clerk of the city and county of New York, and on demand the complaint was served, which did not specify the name of the place of trial,-held, on a motion to set aside the complaint for irregularity, that the complaint might be amended (Davison v. Powell, 13 How. 287); and where an affidavit to obtain an order of arrest was entitled in the cause before the action was commenced,-it was held a defect not affecting the substantial rights of the adverse party, and might be disregarded (Pindar

v. Black, 4 How. 95). An answer entitled in the "supreme" instead of the "superior" court; the error may be disregarded (Williams v. Sholto, 4 Sand. 641). Where in a summons and complaint an infant defendant was described as "Letitia Varian," and in the petition for a guardian ad litem she was described as "T. Letitia Varian," and it not being asserted that neither was the true name,-held such a variance as the court was bound to disregard (Varian v. Stevens, 2 Duer, 639).

a. This section applies to the court of appeals (Bank of Havana v. Magee, 20 N. Y. 360; and see 21 N. Y. 240, 341).

See §§ 406, 173, and 289, note.

§ 177. (Am'd 1849, 1866.)

Supplemental pleading.

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, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the court, in any pending or future action, set up by a supplemental pleading the judgment or decree of any court of competent jurisdiction rendered since the commencement of such action, determining the matters in controversy in said action or any part thereof, and if said judgment be set up by the plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued, or other proceedings had in said action on his behalf.

b. Supplemental Pleading.-A supplemental pleading is not a substitute for or waiver of the original, but in addition to it (Dann v. Baker, 12 How. 521); it must be consistent with the original (Slauson v. Engelheart, 34 Barb. 198; Wattson v. Thibou, 17 Abb. 184; Slauson v. Engelheart, 34 Barb. 198), must be of circumstances happening after the commencement of the action, or after the original pleading was put in, or of which the party was ignorant at the time of putting in his original pleading (Hornfager v. Hornfager, 1 Code Rep. N. S. 180; Hendricks v. Decker, 35 Barb. 302; Williams v. Hernon, 16 Abb. 173; Matthews v. Chicopee Man. Co. 3 Rob. 712; Lampson v. McQueen, 15 Abb. 345; Cheeseman v. Sturges, 19 Abb. 293; Drought v. Curtiss, 8 How. 56; Radley v. Houghtaling, 4 How. 251; McMahon v. Allen, 1 Hilton, 103; 3 Abb. 89; 12 How. 39; Sage v. Mosher, 17 How. 367; Houghton v. Skinner, 5 How. 420); and set up matter which cannot be inserted by an amendment (McMahon v. Allen, supra); introducing new facts or new parties by amendment in a case where it should be done by a supplemental pleading is irregular, but the pleading so amended is not a nullity (Beck v. Stephani, 9 How. 193; see Hornfager v. Hornfager, and Lampson v. McQueen, supra).

c. Supplemental complaint.-A supplemental complaint may be resorted to, almost as a matter of course, where facts have occurred subsequent to the original complaint, which vary the relief to which the plaintiff was entitled at the commencement of the action (Hasbrouck v. Shuster, 4 Barb. 285). As to supplemental bill, see Butler v. Cunningham, 1 Barb. 86; and leave to file a supplemental complaint will be granted in such cases without costs, if the application is made promptly (Sage v. Mosher, 17 How. 367). The rule is said to be that the filing a supplemental complaint should be allowed only on equitable terms, and never at the expense of the defendant (id.) Where the

performance or happening of some act is necessary to give the plaintiff a cause of action, and such act is not performed or does not happen until after the action is commenced, the plaintiff cannot by supplemental complaint incorporate such act into the case (McCulloch v. Colby, 4 Bosw. 603; Wattson v. Thibou, 17 Abb. 184); for a new substantive cause of action cannot be set up by a supplemental complaint (id.)

a. Where, pending an action against an assignee for the benefit of creditors, jointly with other defendants, such assignee dies and a successor is appointed, the proper mode of making such successor a party to the action is by supplemental complaint (Johnson v. Snyder, 7 How. 395). The filing a supplemental complaint to revive an action is a matter of right. No motion for leave to file such a complaint is necessary or proper (Roach v. La Farge, 43 Barb. 616; 19 Abb. 67). Such leave, if granted, decides nothing as to the plaintiff's rights (Robbins v. Wells, 18 Abb. 191; 26 How. 15; 1 Rob. 666). Semble, where leave is given to file a supplemental complaint merely to bring in parties, the original defendants need not be made parties to the supplemental complaint (see McGown v. Yerks, 6 Johns. Ch. R. 450).

b. On a supplemental complaint being filed, the defendant cannot of course answer anew to the original complaint (Dann v. Baker, 12 How. 521).

c. Supplemental answer.-It is almost of course to allow a supplemental answer to be filed at any time before the trial (Bate v. Fellowes, 4 Bosw. 639; Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661; Radley v. Houghtaling, 4 How. 251; Mad. Av. Church v. Oliver St. Church, 2 Rob. 642; Stewart v. Isidor, 5 Abb. N. S. 69). Leave to file a supplemental answer after a trial was refused in Bowen v. Irish Presb. Congregation, 6 Bosw. 246; Houghton v. Skinner, 5 How. 420; and semble, the court will not even before trial allow a supplemental answer to set up a technical defense, to defeat a just claim (Hoyt v. Sheldon, 4 Abb. 59; 6 Duer, 661); nor to set up any matter of defense known to the defendant at the time his former answer was put in (Houghton v. Skinner, 5 How. 420). The supplemental answer is a substitute for the plea of puis darrien continuance (Drought v. Curtiss, 8 How. 56; Morell v. Garelli, 16 Abb. 269). On motion for leave to file a supplemental answer the court will inquire into the truth and sufficiency of the proposed answer, and will not grant the leave unless the answer appear to be true in fact, and to state a good defense (Morell v. Garelli, 16 Abb. 269). The putting in a supplemental answer does not necessarily waive the former answer, yet the court may make it a condition of leave to file such supplemental answer, that the defendant waive his original answer (Bate v. Fellowes, 4 Bosw. 639; and see Dann v. Baker, 12 How. 521).

d. Demurrer lies to a supplemental pleading (Goddard v. Benson, 15 Abb. 191; Guild v. Parsons, 16 How. 382).

e. Appeal lies from an order allowing or refusing to allow a supplemental pleading (Harrington v. Slade, 22 Barb. 161; Guild v. Parsons, 16 How. 382; "Cheeseman v. Sturges, 19 Abb. 293).

TITLE VII.

Of the provisional remedies in civil actions.

CHAPTER I. Arrest and bail.

II. Claim and delivery of personal property.

III. Injunction.

IV. Attachment.

V. Provisional remedies.

CHAPTER I.

Arrest and bail.

SECTION 178. No person to be arrested in a civil action, except as pre

scribed.

179. Arrest in civil actions, in what cases.

180. Order for arrest, by whom to be made.

181. Affidavit to obtain order for arrest. To what actions this

chapter applies.

182. Security by plaintiff before obtaining order for arrest.
183. Order for arrest, when it may be made, and its form; time
to answer after or to move to vacate.

184. Original affidavit and order to be delivered to sheriff and
copy to be delivered to defendant.

185. Arrest, how made.

186. Defendant to be discharged on giving bail or making a de

190. Bail, how proceeded against.

191. Bail, how exonerated.

192. Delivery of undertaking of bail to plaintiff, and its accept

ance or rejection by him.

193. Notice of justification. New bail.

194. Qualification of bail.

195. Justification of bail.

196. Allowance of bail.

197. Deposit in lieu of bail.

198. Payment of deposit into court.

199. Substituting bail for deposit.

200. Deposit, how disposed of after judgment in the action.

201. Sheriff, when liable as bail.

202. Proceedings on judgment against sheriff.

203. Bail liable to sheriff.

204. Vacating order of arrest or reducing bail.

205. Affidavits on motion to vacate order of arrest or reduce

§ 178. No person to be arrested, except as prescribed.

No person shall be arrested in a civil action, except as prescribed by this act; but this provision shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.

a. Persons privileged from arrest.—The following prescribed persons are exempt from arrest on civil process: Persons holding offices under the Metropolitan Police act, whilst actually on duty (Laws 1860, p. 446, § 34) ; a Metropolitan police officer is not protected from arrest when not actually on duty by a rule of the police commissioners that he shall be deemed to be always actually on duty (Hart v. Kennedy, 15 Abb. 290; 14 Abb. 432; 23 How. 417 24 How. 425; Squires' Case, 12 Abb. 38); senators and representatives in Congress, at certain times (Const. U. S. art. 1, § 6 ; 2 Johns. Cas. 222); and also members of the State Legislature (1 R. S. 154, §§ 6, 7, 8, 9); and all officers of either house whilst in actual attendance upon the house (id. § 10); electors, on day of an election (1 R. S. 126, § 4; Laws 1842, ch. 130, § 2); domestic servants of a public minister (1 Opin. Atty.-Gen'l, 26); militia-men on parade days, from the rising to the setting of the sun (1 R. S. 303, § 27); noncommissioned officers, seamen, and mariners enlisted in the service of the U. S. during their term of office, for any debt or contract (Laws U. S. vol. 3, p. 97; The People v. Campbell, 40 N. Y. 133); parties to a suit, their attorneys and witnesses, in coming to, attending upon, and returning from court (2 Rol. Abr. 272; 1 Mod. R. 66; Barnes, 27, 378; Peake Ev. 193; 1 Camp. 229; 11 East, 439; 2 W. Blac. R. 1113; 4 Dallas, 387, 329; 6 Taunt. 358; 3 Eng. Law and Eq. R. 435; 29 id. 331; 1 H. Bl. 636; 3 B. & Ald. 252; 2 Marsh, 57; 8 Bing. 166; Newton v. Constable, 1 Gale & D. 408; 9 Dowl. 933); or any lawful tribunal, as an arbitration (Spence v. Stuart, 3 East, 89; Sanford v. Chase, 3 Cowen, 381); or commissioners of bankruptcy, or to give deposition before a magistrate, under an order of the court (Arding v. Flower, 8 T. R. 534; Walters v. Rees, 4 J. B. Moore, 34); and by the Revised Statutes (2 R. S. 402, §§ 51, 52, 53, 54, 55), "every person duly and in good faith, subpoenaed as a witness to attend any court, officer, commissioner or referee, or summoned to attend any judge, officer or commissioner, in any case where the attendance of such witness may be enforced by attachment or commitment, shall be exonerated from arrest in any civil suit, while going to the place where he shall be required by such subpoena to attend, while remaining at such place, and while returning therefrom;" and provision is made for the discharge of persons arrested while so privileged, and declaring their arrest absolutely void, and for the means of exonerating the officer for not making the arrest, by an affidavit of the witness. The privilege extends to a nonresident (Merrill v. George, 23 How. 331; and see Seaver v. Robinson, 3 Duer, 622); does not extend to an arrest by bail, semble (Ex parte Lyne, 3 Stark. 470). It is a personal privilege, and may be waived by the witness by willingly submitting himself to the custody of the officer (Brown v. Getchell, 11 Mass. 11, 14; Geyer v. Irwin, 4 Dall. 107); or by putting in bail, or by a general appearance (Steward v. Howard, 15 Barb. 26; Petrie v. Fitzgerald, 1 Daly, 401). The privilege does not extend to a witness who attends voluntarily, without a subpoena (Hardenbrook's case, 8 Abb. 416; Re McNeil, 6 Mass 264), except the witness be from a foreign state or country (Norris v. Beach, 2 Johns. 294; Sanford v. Chase, 3 Cow. 381; Hopkins v. Coburn, 1 Wend. 292). Where a witness attended on a subpoena before a referee, and was examined, his examination closed, and the hearing adjourned; on the adjournment day, the witness attended without any subpoena, but at the request of one of the counsel in the action, to be further examined,-held, a voluntary attendance, and that he was not privileged (Hardenbrook's case, 8 Abb. 416); where a defendant, in an action pending, went to the court-house, and on ascertaining that nothing