other party, or which belongs or is due to another party, the court may, in its discretion, grant an order upon notice, that it be paid into, or deposited in court, or delivered to that party, with or without security, subject to the further direction of the court §718. When sheriff may take and convey, etc., property. Where the court has directed a deposit or delivery, as prescribed in the last section; or where a judgment directs a party to make a deposit or delivery, or to convey real property; if the direction is disobeyed, the court, besides punishing the disobedience as a contempt, may, by order, require the sheriff to take, and deposit or deliver the money or other personal property, or to convey the real property, in conformity with the direction of the court. ARTICLE THIRD. GENERAL AND MISCELLANEOUS PROVISIONS. SECTION 719. Arrest, injunction and attachment; when not to be granted together. Motions relating to provisional remedies to be decided in twenty days. 720. Right of defendant interposing a counter-claim. § 719. Arrest, injunction, and attachment; when not to be granted together. Motions relating to provisional remedied to be decided in twenty days. [AMENDED BY CH. 542 OF 1879.] Where application for an order of arrest, an injunction, and a warrant of attachment, or two of them, is made, in the same action, against the same defendant; and it satisfactorily appears that, under the particular circumstances of the case, two or all of them are not necessary for the plaintiff's security, the court or judge may, in its or his discretion, require the plaintiff to elect between them. Where an application is made to obtain, vacate, modify, or set aside an order of arrest, injunction order, or warrant of attachment, the court or judge must finally decide the same, within twenty days after it is submitted for decision. $720. Right of a defendant interposing a counter-claim. [AMENDED BY CH. 542 OF 1879.] Where the defendant interposes a counter-claim and thereupon demands an affirmative judgment against the plaintiff, his right to a provisional remedy is the same as in an action brought by him against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. And for the purpose of applying to such a case the provisions of this act, the defendant is deemed the plaintiff, the plaintiff is deemed the defendant, and the counter-claim so set forth in the answer is deemed the complaint. 141 CHAPTER VIII. MISCELLANEOUS INTERLOCUTORY PROCEEDINGS, AND REGULATIONS OF PRACTICE. TITLE I. MISTAKES, OMISSIONS, DEFECTS, AND IRREGULARITIES. TITLE II.-TENDER, AND OTHER OFFERS AND REQUESTS TO THE ADVERSE PARTY. TITLE III.-PAYMENT OF MONEY INTO COURT, AND CARE AND DISPOSITION THEREOF. TITLE IV.-PROCEEDINGS UPON THE DEATH OR DISABILITY OF A PARTY, OR THE TRANSFER OF HIS INTEREST. TITLE V.-MOTIONS AND ORDERS GENERALLY. TITLE I. Mistakes, omissions, defects, and irregularities. SECTION 721. Defects cured by verdict, etc., and by judgment, 722. Such defects to be supplied. 723. Amendments by the court; disregarding immaterial errors, etc. 726. Papers lost or withheld; how supplied, 727. Order of court; when necessary to amend. 728. Disregarding defects in affidavits. 729. Certain bonds, etc., when sufficient. 730. Amending defects in bonds, etc. 721. Defects cured by verdict, etc., and by judgment. [AMENDED BY CH. 542 OF 1879.] In a court of record, where a verdict, report, or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings, or other proceedings: 1. For want of a summons, or other writ. 2. For any fault or defect in process: or for misconceiving a process, or awarding it to a wrong officer. 3. For an imperfect or insufficient return of a sheriff or other officer; or because an officer has not subscribed a return, actually made by him. 4. For a variance between the summons and complaint. 5. For a mispleading, insufficient peading,* or jeofail. 6. For want of a warrant of attorney by either party. 7. For the appearance, by attorney, of an infant party, if the verdict, report, or decision, or the judgment, is in his favor. *So in the original. MISTAKES, OMISSIONS, ETC. S$ 722-727. 8. For omitting to allege any matter, without proof of which the verdict, report, or decision ought not to have been rendered. 9. For a mistake in the name of a party or other person; or in a sum of money; or in the description of property; or in reciting or stating a day, month, or year; where the correct name, sum, description, or date has been once rightly stated, in any of the pleadings or other proceedings. 10. For a mistake in the name of a juror or officer. 11. For an informality in entering judgment, or making up the judgmentroll. 12. For an omission on the part of a referee to be sworn; or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced. § 722. Such defects to be supplied. Each of the omissions, imperfections, defects and variances, specified in the last section, and any other of like nature, not being against the right and justice of the matter, and not altering the issue between the parties, or trial, must, when necessary, be supplied, and the proceeding amended, by the court wherein the judgment is rendered, or by an appellate court. etc. § 723. Amendments by the court; disregarding immaterial errors, [AMENDED BY CH. 416 OF 1877.] The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party. § 724. Relief against omissions, etc., amendments to conform proceedings. The court may likewise, in its discretion, and upon such terms as justice requires, 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. Where a proceeding, taken by a party, fails to conform to a provision of this act, the court may, in like manner, and upon like terms, permit an amendment thereof; to conform it to the provision. $ 725. Returns by officers, etc. A court, to which a return is made by a sheriff or other officer, or by a subordinate court or other tribunal, may, in its discretion, direct the return to be amended, in matter of form, either before or after judgment. § 726. Papers lost or withheld; how supplied. Where an original pleading or paper is lost, or withheld by any person, the court may authorize a copy to be filed and used, instead of the original. § 727. Order of court; when necessary to amend. A process, plead ing, or record, shall not be altered, by the clerk or any other officer of the court, or by any other person, without the direction of the court, or of another court of competent authority; except in a case where a party, or his attorney, is specially authorized by law to amend a pleading. § 728. Disregarding defects in affidavits. The want of a title, or a defect in the title, of an affidavit, does not impair it, if it intelligibly refers to the action or special proceeding, in which it is made. § 729. Certain bonds, etc., when sufficient. A bond or undertaking, required by statute to be given by a person, to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor, prescribed by the statute, and does not vary therefrom, to the prejudice of the rights of the party, to whom, or for whose benefit it is given. § 730. Amending defects in bonds, etc. Where such a bond or undertaking is defective, the court, officer, or body, that would be authorized to receive it, or to entertain a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly and it shall thereupon be valid, from the time of its execution. Vore-802 TITLE II. Tender, and other offers and requests to the adverse party. SECTION 731. Tender after suit. 732. Amount to be paid into court. 733. Effect of sufficient tender. 734. When to be deducted from recovery, etc. 735. Requiring admission of genuineness of paper. 736. Offer to liquidate damages conditionally. 737. Effect of refusal of offer. 738. Defendant's offer to compromise; proceedings thereon. 739. Plaintiff's offer to compromise counter-claim; proceedings thereon. *741. Rule if offer made within ten days before trial. § 731. Tender after suit. Where the complaint demands judgment for a sum of money only; and the action is brought to recover a sum certain, or which may be reduced to certainty by calculation; or to recover damages for a casual or involuntary personal injury, or a like injury to property; the defendant, or his attorney, may, at any time before the trial, tender to the plaintiff, or his attorney, such a sum of money, as he conceives to be sufficient to make amends for the injury, or to pay the plaintiff's demand; together with the costs of the action, to that time. § 732. Amount to be paid into court. [AMENDED BY CH. 416 OF 1877.] A tender, made as prescribed in the last section, does not avail the defendant, unless the money is accepted, or is paid into court, and notice thereof in writing served upon the plaintiff's attorney before the trial, and within ten days after the tender. If the plaintiff takes out the amount paid in he accepts the tender. § 733. Effect of sufficient tender. If it appears, upon the trial, that the sum so tendered was sufficient to pay the plaintiff's demand, or to make amends for the injury, and also to pay the costs of the action, to the time of the tender, the plaintiff cannot recover costs or interest, from the time of the tender, but must pay the defendant's costs from that time. Stricken out by Ch. 416 of 1877. § 734. When to be deducted from recovery, etc. If the plaintiff proceeds in the action after accepting the tender, the sum accepted must be deducted from the recovery, and judgment rendered for the residue, if any; and if the tender and acceptance do not appear in the pleadings, a memorandum thereof must be annexed to the judgment-roll. The plaintiff's right to recover costs, and his liability to pay cost to the defendant, are determined by the amount of the residue. $735. Requiring admission of genuineness of paper. The attorney for a party may, at any time before the trial, exhibit to the attorney for the adverse party, a paper material to the action, and request a written admission of its genuineness. If the admission is not given, within four days after the request, and the paper is proved or admitted on the trial, the expenses, incurred by the party exhibiting it, in order to prove its genuineness, must be ascertained at the trial, and paid by the party refusing the admission; unless it appears to the satisfaction of the court, that there was good reason for the refusal. § 736. Offer to liquidate damages conditionally In an action to recover damages for breach of a contract, the defendant's attorney may, with the answer, serve upon the plaintiff's attorney, a written offer, that, if the defendant fails in his defence, the damages may be assessed at a specified If the plaintiff serves notice, that he accepts the offer, with or before the notice of trial, and damages are awarded to him on the trial they must be assessed accordingly. sum. § 737. Effect of refusal of order. [AMENDED BY CH. 416 OF 1877.] If the plaintiff does not accept the offer, he cannot prove it upon the trial. But if the damages awarded to him, do not exceed the sum offered, the defendant is entitled to recover the expenses, necessarily incurred by him in preparing for the trial of the question of damages. The expenses must be ascertained, and the amount thereof determined, by the judge, or the referee, by or before whom the cause is tried. § 738. Defendant's offer to compromise; proceedings thereon. [AMENDED BY CH. 416 OF 1877.] The defendant may, before the trial, serve upon the plaintiff's attorney, a written offer, to allow judgment to be taken against him for a sum, or property, or to the effect, therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken. If the plaintiff, within ten days thereafter, serves upon the defendant's attorney, a written notice that he accepts the offer, he may file the summons, complaint and offer, with proof of acceptance, and thereupon the clerk must enter judgment accordingly. If notice of acceptance is not thus given, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. $739. Plaintiff's offer to compromise counter-claim; proceedings thereon. [AMENDED BY CH. 416 OF 1877.] Where the defendant sets up a counter-claim, to an amount greater than the plaintiff's claim, or sufficient to reduce the plaintiff's recovery below fifty dollars, the plaintiff may serve, upon the defendant's attorney, a written offer, to allow judgment to be taken against him, for a specified sum, with costs, or against the defendant for a specified sum, and against the plaintiff for costs. If the defendant, within ten days thereafter, serves upon the plaintiff's attorney, notice that he accepts the offer, either party may file the summons, complaint, answer, and |