ment after defence by conforming the pleading or proceeding to the facts proved. Amend- 174. The court may likewise, in its discretion, and demurrer upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by this act, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, 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; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may in like manner and upon like terms permit an amendment of such proceeding, so as to make it comformable thereto. of defend ant. § 179. Sub. 3. In an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. Surrender § 188. At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following man ner: 1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall by a certificate in writing, acknowledge the surrender: 2. Upon the productton of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may upon a notice to the plaintiff, of eight days, with a copy of the certificate, order that the bail be exonerated; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3, of section 179 so as to discharge the bail from an undertaking given to the effect provided by section 211. 193. On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justification of the same, or other bail, (spe New un cifying the places of residence and occupation of the latter,) before a judge of the court or county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter. In case other bail be dertaking given, there shall be a new undertaking, in the form pre- bail. scribed in section 187. if other whom di rected, and what to re quire. § 231. The warrant shall be directed to the sheriff of Warrant to any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand together with costs and expenses. The amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time to the sheriffs of different counties. 244. A receiver may be appointed : court as to money, &c. court, 1. Before judgment, provisionally, on the application of Powers of either party, when he establishes a prima facie right to receivers such property which is the subject of the action, and which deposit of is in the possession of an adverse party, and the property, incorr or its rents and profits, are in danger of being lost or ma- provisional terially injured or impaired. 2. After judgment, to carry the judgment into effect. 3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment. 4. In the cases provided in this code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. 5. In such other cases as are now provided by law or may be in accordance with the existing practice except as otherwise provided in this act. The court may grant the other provisional remedies now existing according to the present practice except as otherwise provided in this act. When it is admitted by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court. and other remedies. Whenever, in the exercise of its authority, a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience, as 1or contempt, may make an order, requiring the sheriff to take the money or thing and deposit or deliver it, in conformity with the direction of the court. When the answer of the defendant admits part of the plaintiff's claim to be just, the court on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a provisional remedy. 246. Sub. 2. In other actions the plaintiff may, upon the like proof apply to the court, after the expiration of the time for answering, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court may take the account or hear the proof, or may, in its discretion, order a reference for that purpose. And where the action is for the recovery of money only, or of specific real or personal property, with damages for the withholding thereof, the court may order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided. If the defendant give notice of appearance in the action before the expiration of the time for answering, he shall be entitled to eight days notice of the time and place of application to the court for the relief demanded by the complaint. 3. In actions where the service of the summons was by publication, the plaintiff may in like manner apply for judgment, and the court must thereupon require proof to be made of the demand mentioned in the complaint, and if the defendant be not a resident of the State, must require the plaintiff or his agent to be examined on oath respecting any payments that have been made to the plaintiff or to any one for his use, on account of such demand, and may render judgment for the amount which he is entitled to recover. Before rendering judgment the court may, in its discretion, require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered, or the restitution of any money that may be collected under or by virtue of such judgment, in case the defendant or his representatives shall apply and be admitted to defend the action, and shall suc- § 252. An issue of law must be tried by the court, Trial, what. unless it be referred, as provided in sections 270 and 271. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 270 and 271. judge. § 255. All issues of fact, triable by a jury or by court, All issues must be tried before a single judge. Issues of fact in the by a singl supreme court, must be tried at a circuit court when the trial is by jury, otherwise at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a general term, unless the court order the trial to be had at a special term. may § 258. Either party giving the notice, may bring the Either parissue to trial, and in the absence of the adverse party bring issue unless the court, for good cause, otherwise direct, may to trial. proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require. A separate trial between a plaintiff and any of the several defendants, may be allowed by the court whenever, in its opinion, justice will thereby be promoted. furnish copy of suminons, &c. 259. When the issue shall be brought to trial by the Plaintiff to plaintiff, he shall furnish the court with a copy of the court with summons and leadings with the offer of defendant, ifg any shall have been made. When the issue shall be pleadings, brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the summons and pleadings and the offer of the defendant, the same may be furnished by the defendant. for the recovery of money yury to assess dam. ages. § 263. When a verdict is found for the plaintiff in an In actions action for the recovery of money, or for the defendant when a set-off for the recovery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assess the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery when the court give judgment for the plaintiff on the answer. If a set-off, established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; or if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. the verdict. 264. Upon receiving a verdict, the clerk shall make Entry of an entry in his minutes, specifying the time and place of when to be the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration. The justice trying the cause may, in his discretion, and upon such terms as may be just, stay the entry of judgment and further proceedings, until the hearing and final decision of a motion for new trial, or to set aside the verdict of judgment, upon the grounds of surprise or irregularity, or upon a case or bill of exceptions. The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages; but such motion in actions hereafter tried, shall only be heard upon the minutes at the same term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision; and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had. After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case or bill of exceptions, which, when settled, shall be filed, and when filed after judgment, shall be attached to and become a part of the judgment roll. Judgment, § 265. Motions for a new trial on a case or bill of excepentered, tions, motions for judgment on a special verdict or case reserved subject to the opinion of the court, shall, in the first instance, be heard and decided at a special term, unless the justice trying the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general term of such court, and the court shall hear and decide the same. Exceptions how and § 268. For the purposes of an appeal, either party may when taken except to a decision on a matter of law arising upon such trial, within ten days after notice in writing, of the judgment, in the same manner, and with the same effect as |