cept 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.

$ 554. Idiot, lunatic, or infant under fourteen, if arrested to be discharged. [AMENDED BY CH. 416 OF 1877.] A lunatic, an idiot or an infant under the age of fourteen years, if arrested, may be discharged from arrest as a privileged 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, adminis trator, legatee, devisee, next of kin, assignee, or trustee, cannot be arrested, as prescribed in this title, except for his personal act.

ARTICLE SECOND.

GRANTING, EXECUTING, AND VACATING OR MODIFYING THE ORDER OF ARREST.

SECTION 556. Order required for arrest; how granted.

557. Proof necessary to procure order.

558. When order may be granted; effect of complaint subsequently made.
559. Security, upon order of arrest made by a judge.

560. Id.; upon order of arrest granted by the court.

561. Contents of the order; to whom directed; when to be executed.

562. Copies of papers to be delivered to defendant; originals to be filed.

563. Arrest; how made.

564. General provision as to privilege from arrest; discharge of privileged person. 565. Privilege of officers of courts.

566. Defendant arrested to have twenty days to answer.

567. When application to be made to vacate order of arrest, etc.

568. How and to whom application must be made; opposing it by new proofs.

*569, *570. Questions of fact arising on the motion.

*571. When prior motion not to prejudice subsequent motion.

572. Supersedeas, unless defendant is charged in execution, etc.

§ 556. Order required for arrest; how granted. [AMENDED BY CH. 416 or 1877.] An order for the arrest of the defendant, except as otherwise prescribed in section five hundred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge.

§ 557. Proof necessary to procure order. [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] The order may be granted, in a case specified in section five hundred and forty-nine of this act, where it appears by the affidavit of the plaintiff, or any other person, that a sufficient cause of action exists against the defendant, as prescribed in that section. It may be granted, in a case specified in section five hundred and fifty of this act, upon the like proof that a sufficient cause of action exists against the defendant, as prescribed in that section, and of the other matters, extrinsic to the cause of action, specified in that section. The affidavit may also contain any statement, tending to determine the amount of bail to be required.

$558. When order granted. Subject to the provisions of the last preceding section the order may be granted at any time after the commencement of the action. It may also be granted to accompany the summons, but at any time after the filing or service of the complaint the order of arrest must be vacated on motion if the complaint fails to set forth a sufficient cause of action as required by section five hundred and forty-nine of this act, but where the order is applied for after the filing or service of the complaint, the court before granting the same may without notice direct the service of an amended complaint so as to conform to the allegations required in subdivisions two and four of section five hundred and forty-nine of this act. [AM'D CH. 672 OF 1886. SEE § 7 OF SAME ACT, AT § 111, sup.]

§ 559. Security upon order of arrest made by a judge. [AMENDED BY CH. 542 OF 1879.] Except where the action is brought for a cause specified in subdivision third of section five hundred and forty-nine of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking on the part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars.

§ 560. Id.; upon order of arrest granted by the court. Where the order can be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form and the security to be given thereupon, must be such as the court prescribes.

§ 561. Contents of the order; to whom directed: when to be executed [AMENDED BY CH. 416 or 1877.] The order must be subscribed by the plaintiff's attorney, and except where it is granted by the court, by the judge. It may be directed, either to the sheriff of a particular county, or, gene ally, to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant if he is found within his county; to hold him to bail in a specified sum; and to return the order, with his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by the court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case, he cannot be arrested afterwards under the same order.

The

$552. Copies of papers to be delivered to defendant; originals to be filed [AMENDED BY CH. 416 OF 1877 AND BY CH. 542 OF 1879.] order of arrest, or where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney; and, in either case, the papers upon which the order was granted, with the undertaking, if any; must be delivered to the sheriff, who, upon arresting the defendant, must deliver to him a copy thereof The papers, upon which the order was granted, with the undertaking, if any, must be filed, with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in section five hundred and ninety of this act.

§ 563. Arrest; how made. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody until discharged by law.

$564. General provision as to privilege from arrest; discharge of privileged person. This title does not abridge or affect a privilege from arrest given by law, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest, where other provision is not made therefor by law, by the court, or a judge thereof; or by the county judge of the county where the arrest was made. The order must be made, upon proof by affidavit, of the facts entitling the applicant to the discharge; and the arrest and discharge are not a bar to a new arrest, after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the sheriff, or to the plaintiff, or to both. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

565. Privilege of officers of courts. An officer of a court of record, appointed or elected pursuant to law, is privileged from arrest, during the actual sitting which he is required to attend, of a term of the court of which he is an officer, and no longer; but an attorney or counsellor is not thus privileged, unless he is employed in a cause, to be heard at that term.

566. Defendant arrested to have twenty days to answer. Except where an order of arrest can be granted only by the court, a defendant, arrested before answer, has twenty days after the arrest, in which to answer the complaint; and judgment must be stayed accordingly.

§ 567 When application to be made to vacate order of arrest, etc. [AMENDED BY CH. 416 OF 1877.] Except where an order of arrest can be granted only by the court, a defendant, arrested as prescribed in this title, may, at any time before final judgment, or, if he was arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply to vacate the order of arrest; or to reduce the amount of bail; or to increase the security given by the plaintiff; or for one or more of those forms of relief, together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like application may be made, at any time within twenty days after the arrest; and an application to increase the security given by the plaintiff, may be made at any time before final judgment.

§ 568. How and to whom motion must be made; opposing it by new proofs. [AMENDED BY CH. 416 OF 1877.] An application, specified in the last section, may be founded only upon the papers upon which the order was granted; in which case, it must be made to the court, or, if the order was granted by a judge out of court, to the same judge, in court or ont of court, and with or without notice, as he deems proper, and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant; in which case, it must be made to the court, or, if the order was granted by a judge, out of court, to any judge of the court, upon notice; and it may be opposed by a new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground of arrest recited in the order, and no other, unless the defendant relies upon a discharge in bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings; in which case, the plaintiff may show any matter in avoidance thereof, which he might show upon the trial.

§§ 569-570-571. [Stricken out by Ch. 416 of 1877.]

§ 572. Discharge. Except in a case where an order of arrest can be granted only by the court if the plaintiff unreasonably delay the trial of the action or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, or whenever it shall appear to the satisfaction of the court that the plaintiff in an action, or a judgment creditor in a judgment, delays the enforcement of his remedies therein by collusion, or for the purpose of allowing the debtor to remain in prison under the mandate in any other action, before the issuing of the mandate in favor of such creditor, so as to produce a continued and extended imprisonment by virtue of the separate mandates in the different actions, the defendant must upon his application, made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate, by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action. [AM'D CH. 672 oF 1886. SEE § 7 OF SAME ACT, AT §111, sup.]

$359. Security upon order of arrest made by a judge. [AMENDED BY CH.542 OF 1879.] Except where the action is brought for a cause specifelin subdivision third of section five hundred and forty-nine of this act, or a case where it is specially prescribed by law that security may be disd with, or the security to be given is specially regulated by law, the before he grants the order, must require a written undertaking on te part of the plaintiff, with two sufficient sureties, to the effect that, if the defendant recovers judgment, or if it is finally decided that the plaintiff was It entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by son of the arrest, not exceeding the sum specified in the undertaking, which must be at least equal to one-tenth of the amount of bail required by the order, and not less than two hundred and fifty dollars.

$500. Id; upon order of arrest granted by the court. Where the crler can be granted only by the court, an undertaking on the part of the paintiff may be dispensed with. If it is required, its form and the security t be given thereupon, must be such as the court prescribes.

$561. Contents of the order; to whom directed: when to be executed AMENDED BY CH. 416 OF 1877.] The order must be subscribed by plaintiff's attorney, and except where it is granted by the court, by the e. It may be directed, either to the sheriff of a particular county, or, ally, to the sheriff of any county. It must require the sheriff forthwith arrest the defendant if he is found within his county; to hold him to in a specified sum; and to return the order, with his proceedings thereClar, as prescribed by law. The plaintiff's attorney may, at his option, tan indorsement upon the order, or, where it was granted by the court, the copy thereof, delivered to the sheriff, fix a time within which the Plant must be arrested. In that case, he cannot be arrested afterwards why the ame order.

$552. Copies of papers to be delivered to defendant; originals to be filed AMENDED BY CH. 416 OF 1877 AND BY CH. 542 or 1879.] The r of arrest, or where it was granted by the court, a certified copy of, subscribed by the plaintiff's attorney; and, in either case, the Hapon which the order was granted, with the undertaking, if any; be delivered to the sheriff, who, upon arresting the defendant, must cer to him a copy thereof The papers, upon which the order was aced with the undertaking, if any, must be filed, with the order of arrest, certified copy thereof, at the time prescribed for filing the same, in five hundred and ninety of this act.

$3. Arrest; how made. The sheriff must execute the order by ting the defendant, if he is found within his county, and keeping him stody until discharged by law.

$84. General provision as to privilege from arrest; discharge privileged person. This title does not abridge or affect a privilege anest given by law, or a right of action for a breach thereof. A ed person is entitled to be discharged from arrest, where other is not made therefor by law, by the court, or a judge thereof; or County judge of the county where the arrest was made. The order made, upon proof by affidavit, of the facts entitling the applicant discharge; and the arrest and discharge are not a bar to a new arrest, the privilege has ceased. The court or judge may make the order notice, or may require notice to be given to the sheriff, or to the or to both. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

565. Privilege of officers of courts. An officer of a court of record appointed or elected pursuant to law, is privileged from arrest, during th actual sitting which he is required to attend, of a term of the court of whic he is an officer, and no longer; but an attorney or counsellor is not th privileged, unless he is employed in a cause, to be heard at that term.

§ 566. Defendant arrested to have twenty days to answer. Exce where an order of arrest can be granted only by the court, a defendan arrested before answer, has twenty days after the arrest, in which to answ the complaint; and judgment must be stayed accordingly.

$567 When application to be made to vacate order of arrest, et [AMENDED BY CH. 416 OF 1877.] Except where an order of arrest can granted only by the court, a defendant, arrested as prescribed in this titl may, at any time before final judgment, or, if he was arrested with twenty days before final judgment, at any time within twenty days aft the arrest, apply to vacate the order of arrest; or to reduce the amount bail; or to increase the security given by the plaintiff; or for one or more those forms of relief, together, or in the alternative. In a case where t order of arrest can be granted only by the court, a like application m be made, at any time within twenty days after the arrest; and an applic tion to increase the security given by the plaintiff, may be made at any ti before final judgment.

§ 568. How and to whom motion must be made; opposing it new proofs. [AMENDED BY CH. 416 OF 1877.] An application, specified the last section, may be founded only upon the papers upon which the ord was granted; in which case, it must be made to the court, or, if the ord was granted by a judge out of court, to the same judge, in court or out court, and with or without notice, as he deems proper, and the applicati must be heard upon those papers only. Or it may be founded upon pro by affidavit, on the part of the defendant; in which case, it must be ma to the court, or, if the order was granted by a judge, out of court, to a judge of the court, upon notice; and it may be opposed by a new proof, affidavit, on the part of the plaintiff, tending to sustain any ground of arr recited in the order, and no other, unless the defendant relies upon a charge in bankruptcy, or upon a discharge or exoneration, granted in ins vent proceedings; in which case, the plaintiff may show any matter avoidance thereof, which he might show upon the trial.

§ 569-570-571. [Stricken out by Ch. 416 of 1877.]

§ 572. Discharge. Except in a case where an order of arrest can granted only by the court if the plaintiff unreasonably delay the trial of the tion or neglects to enter judgment therein within ten days after it is in power to do so, or neglects to issue execution against the person of the fendant within ten days after the return of the execution against the property, in any event neglects to issue the same within three months after the e of the judgment, or whenever it shall appear to the satisfaction of the court the plaintiff in an action, or a judgment creditor in a judgment, delays the enf ment of his remedies therein by collusion, or for the purpose of allowing the de to remain in prison under the mandate in any other action, before the issuin the mandate in favor of such creditor, so as to produce a continued and exte imprisonment by virtue of the separate mandates in the different actions, the fendant must upon his application, made upon notice to the plaintiff, be charged from custody if he has already been taken under the mandate ag him in such action; or if he has not yet been imprisoned therein, be relieved imprisonment by virtue of such mandate, by the court in which the action commenced, unless reasonable cause is shown why the application should be granted. A defendant discharged as prescribed in this section shai be arrested upon an execution issued upon the judgment in the ac [AM'D CH. 672 OF 1886. SEE § 7 of same act, at § 111, sup.]