made after the time limited by this Code; and may, Same. upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representatives, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any cause satisfactory to the Court, or the Judge at chambers, the party aggrieved has been unable to apply for the relief sought during the term at which such judgment, order, or proceeding complained of was taken, the Court, or the Judge at chambers, in vacation, may grant the relief upon application made within a reasonable time, not exceeding five months after the adjournment of the term. When, from any cause, the summons and a copy of the complaint in an action have not been personally served on the defendant, the Court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action. 474. (§ 69.) When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. defect to be unless it 475. (§ 71.) The Court must, in every stage of No error or an action, disregard any error or defect in the plead- regarded ings or proceedings which does not affect the substan- affects tial rights of the parties, and no judgment shall be rights. reversed or affected by reason of such error or defect. substantial 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. Receivers. VI. Deposit in Court. CHAPTER I. ARREST AND BAIL. SECTION 478. No person to be arrested except as prescribed by this Code. 479. Cases in which defendant may be arrested. 480. Order for arrest, by whom made. 481. Affidavit to obtain order, what to contain. 482. Security by plaintiff before order of arrest. 483. Order, when made, and its form. 484. Affidavit and order to be delivered to the Sheriff, and copy to defendant. 485. Arrest, how made. 486. Defendant to be discharged on bail or deposit. 487. Bail, how given. 488. Surrender of defendant. 489. Same. 490. Bail, how proceeded against. 491. Bail, how exonerated. 492. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. 493. Notice of justification. New undertaking, if other bail. 494. Qualification of bail. 495. Justification of bail. 496. Allowance of bail. 497. Deposit of money with Sheriff. 498. Payment of money into Court by Sheriff. 499. Substituting bail for deposit. 500. Money deposited, how applied or disposed of. 501. Sheriff, when liable as bail, and his discharge from lia bility. 502. Proceedings on judgment against Sheriff. SECTION 503. Motion to vacate order of arrest or reduce bail. Affidavits on motion. 504. When the order vacated or bail reduced. 478. (§ 72.) No person can be arrested in a civil action, except as prescribed in this Code. No person to be arrested except as prescribed by this Code. 479. (§ 73.) The defendant may be arrested as Cases in hereinafter prescribed, in the following cases: which defendant may be 1. In an action for the recovery of money or dam- arrested. ages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer; or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such; or by any other person in a fiduciary capacity, or for fraudulent misconduct or neglect in office, or in a professional employment; or for a willful violation of duty; 3. In an action to recover the possession of personal property, unjustly detained, when the property, or any part thereof, has been fraudulently concealed, removed, or disposed of, so that it cannot be found, or taken by the Sheriff'; 4. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought; or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. 480. (§ 74.) An order for the arrest of the defendant must be obtained from a Judge of the Court in which the action is brought, or from a County Judge. Order for whom arrest, by made. Affidavit to obtain to contain. 481. ($ 75.) The order may be made whenever it order, what appears to the Judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in Section 479. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit must be filed with the Clerk of the county. Security by plaintiff before order of arrest. Order, when its form. 482. (§ 76.) Before making the order, the Judge must require a written undertaking on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment the plaintiff will pay all costs and charges that 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 five hundred dollars. The undertaking must be filed with the Clerk of the Court. 483. (§ 77.) The order may be made at the time made, and of the issuing of the summons, or any time afterwards before judgment. It must require the Sheriff of the county where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time therein mentioned, to the Clerk of the Court in which the action is pending. Affidavit and order 484. ($ 78.) The order of arrest, with a copy of to be deliv- the affidavit upon which it is made, must be delivered ered to the copy to Sheriff, and to the Sheriff, who, upon arresting the defendant, must defendant. deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. made. 485. (§ 79.) The Sheriff must execute the order Arrest, how by arresting the defendant and keeping him in custody until discharged by law. to be on bail or 486. (§ 80.) The defendant, at any time before Defendant execution, must be discharged from the arrest, either discharged upon giving bail or upon depositing the amount men- deposit. tioned in the order of arrest. given. 487. ($ 81.) The defendant may give bail by Bail, how causing a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the amount mentioned in the order of arrest, that the defendant will at all times render himself amenable to the process of the Court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action. of 488. (§ 82.) At any time before judgment, or Surrender within ten days thereafter, the bail may surrender the defendant. defendant in their exoneration; or he may surrender himself to the Sheriff of the county where he was arrested. 489. ($83.) For the purpose of surrendering the Same. defendant, the bail, at any time or place before they are finally charged, may themselves arrest, or, by a written authority indorsed on a certified copy of the undertaking, may empower the Sheriff to do so. Upon the arrest of defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own surrender, the bail are exonerated, if such arrest, delivery, or surrender take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender be not made within ten days after judgment, the bail are finally charged on their under |