TITLE 5. Amending before judg. ment. Adverse par. ty to answer. Return day of process. Amending after judg ment. Returns by officers, &c. Awarding venire. made by ver TITLE V. OF AMENDING PLEADINGS AND PROCEEDINGS. SEC. 1. General power of court to amend before judgment. 4. Formal defects may be amended after judgment. 5. Returns by officers, &c. amended in form. 6. Defects in awarding venire, on the record. 7. Certain defects to be disregarded after verdict, confession or default. 8. Such defects to be supplied and amended. 9. Amendments not to be made without order of court. 10. This title to extend to all actions and proceedings at law. $1. The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.59 $ 2. If such amendment be made to any pleading in matter of substance, the adverse party shall be allowed an opportunity, according to the course and practice of the court, to answer the pleading so amended. $3. Process by which any action shall have been commenced, and on which any defendant shall have been arrested, shall not be amended in the return day thereof. S 4. After judgment rendered in any cause, any defects or imperfections, in matter of form, contained in the record, pleadings, process, entries, returns or other proceedings in such cause, may be rectified and amended by the court, in affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variance in the record, from any process, pleading or proceeding had in such cause, shall be reformed and amended, according to such original process, pleading or proceeding. 59 S 5. All returns made by any sheriff or other officer, or by any court or subordinate tribunal, to any court, may be amended, in matter of form, by the court to which such returns shall be made, in their discretion, as well before as after judgment. 59 $ 6. Any imperfection or defect in the award of any venire, or any omission to award such venire on the record, may be amended or supplied by the court in which such record is. the Defects $7. When a verdict shall have been rendered in any cause, 1. For want of any writ, original or judicial: 2. For any default or defect in process; or for misconceiving any process, or awarding the same to a wrong officer; or for the want of any suggestion for awarding process; or for any insufficient suggestion: 3. For any imperfect or insufficient return of any sheriff or other officer, or that the name of such officer is not set to any return actually made by him: 4. For any variance between the original writ, bill, plaint and declaration, or between either of them: 5. For any mispleading, miscontinuance or discontinuance, insufficient pleading, lack of colour, jeofail or misjoining of issue: 6. For the want of any warrant of attorney by either party, except in cases of judgment by confession, where such warrant is expressly required by law: 7. For any party under twenty-one years of age having appeared by attorney, if the verdict or judgment be for him: 8. For the want of any allegation or averment on account of which omission a special demurrer could have been maintained: 9. For omitting any allegation or averment of any matter, without proving which, the jury ought not to have given such verdict: 10. For any mistake in the name of any party or person; or in any sum of money; or in the description of any property; or in reciting or stating any day, month or year, when the correct name, time, sum or description, shall have been once rightly alleged, in any of the pleadings or proceedings: 11. For a mistake in the name of any juror or officer: 12. For the want of a right venue, if the cause was tried by a jury of the proper county: 13. For any informality in entering a judgment, or making up the record thereof, or in any continuance or other entry upon such record: 14. For any other default or negligence of any clerk or officer of the court, or of the parties, or their counsellors or attornies, by which neither party shall have been prejudiced." 60 TITLE 5. To be amend $ 8. The omissions, imperfections, defects and variances in the preceding section enumerated, and all others of the like nature, not ed. being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court, where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error.60 $9. No process, pleading or record, shall be amended or impair- Order of ed, by the clerk or other officer of any court, or by any other person, sary to awithout the order of such court, or of some other court of competent authority. $10. The provisions of this Title shall extend to all actions in Application courts of law, and to all suits for the recovery of any debt due to the people of this state, or for any debt, duty or revenue belonging to court neces mend. of this Titio. TITLE 6. them; and also to all actions for penalties and forfeitures; to all writs of mandamus and prohibition: to all informations in the nature of a quo warranto; to writs of scire facias, and to the proceedings thereto.61 Pay not to be received from certain cases. TITLE VI. OF THE POWERS AND DUTIES OF SHERIFFS, CORONERS AND OTHER ART. 1. Of the arrest of persons on civil process. ART. 2. Of the imprisonment of persons arrested on civil process. ART. 5.-Proceedings on the election or appointment of a new sheriff. ART. 9.—Provisions concerning persons committed under the authority of courts of the ARTICLE FIRST. Of the Arrest of Persons on Civil Process. SEC. 1. Sheriffs, &c. not to receive pay from prisoners for certain articles. 2. No rewards for keeping prisoners out of jail, or waiting, &c. 3. Compensation for lodgings, &c. out of jail. 4. Such prisoner may send for necessaries, &c. 5. Jailors, &c. not to receive rent for chambers, or fees for discharging, &c. 6. When sheriffs, &c. may pass through other counties. 7. Not an escape, and sheriffs, &c. not liable to arrest. S1. When a sheriff or other officer shall arrest any person, by virprisoners in tue of any mesne or final process, or by virtue of any other civil process, he shall not charge such prisoner with any sum of money, or demand, or receive from him any sum of money, or any valuable thing, for any drink, victuals or other thing whatsoever, furnished or provided for such officer, or for such prisoner, at any tavern, ale-house or public victualling or drinking-house.62 Nor rewards for waiting, &c. Compensa ings, &c. out of jail. S2. No sheriff or other officer, who shall have arrested any person, shall, while such person is in his custody, demand or receive any gratuity or reward, upon any pretence whatever, for keeping such prisoner out of jail, or for waiting for such prisoner to find bail or agree with his adversary, or for waiting for any other purpose.“ $ 3. If any person be arrested and kept in any house other than tion for ludg the jail of the county, neither the officer arresting him, nor the person in whose custody such prisoner may be, shall demand or receive from such prisoner, any other or greater sum for lodging, drink, vic tuals or other necessary things, than shall have been prescribed by the court of general sessions of the county; or if no rate shall have (61) 1 R. L. 121, § 10. (62) Ib. 424, § 16. been prescribed by such court, such officer or person shall not receive any other or greater sum, than shall be allowed by a justice of the peace of the same town, upon proof that the lodgings or other things furnished, were so furnished at the request of such prisoner. And in no case shall such officer or person demand or receive any pay or compensation for any spirituous liquors, sold or delivered to such pri ART. 2. necessaries, 54. A prisoner so kept in any house, may send for and have any May send for beer, ale, cider, victuals and other necessary food, and such bedding, &c. linen, and other necessary things, as such prisoner shall think fit, where and from whom he pleases, without any detaining or paying for the same, or any part thereof, to the officer arresting him, or to the person in whose custody such prisoner may be.63 chambers; &c. $5. No sheriff, jailer or other officer, shall demand or receive any Rent for money or valuable thing whatsoever, for the chamber rent of any pri- jailors fees, son, or any fees, compensation or reward, for the commitment, detaining in custody, release or discharge of any prisoner, other than such fees as are expressly allowed by law. 63 through other 56. Any sheriff or other officer, who shall have arrested any pri- Passing soner in any county, may pass over, across and through such parts of counties. any other county or counties, as shall be in the ordinary route of travel from the place where such prisoner shall have been arrested, to the place where he is to be conveyed and delivered, according to the command of the process by which such arrest shall have been made." $7. Such conveyance shall not, in any case, be deemed an es- Not liable to cape; nor shall the prisoner so conveyed, or the officers having him arrest, &c. in their custody, be liable to arrest on any civil process, while passing through such other county or counties.65 ARTICLE SECOND. Of the Imprisonment of Persons arrested on Civil Process. SEC. 8. Prisoners on civil and criminal process not to be kept together. 9. Females not to be imprisoned in actions on contract. 10. Males and females, unless married, not to be kept together. 11. Penalty for violating preceding provisions. 12. Present jail in New-York, continued. 13. Existing jails in other counties continued. 14. When jail of contiguous county to be used. 15. When use to cease. 16. Duty of sheriff of contiguous county to receive prisoners, &c 17. Responsibility and power of such sheriffs. 18. Prisoners on limits previous to designation made. 19. Prisoners entitled to limits, after designation made. 20. Prisoners removed, entitled to limits. 21. Designation of other jail, when to be revoked, &c. 22. Proceedings on revocation being made. 23. Certain room may be used by sheriff of Washington. 24. Removal of prisoners to different jails in same county. 25. Removal in case of fire. 26. Removal in cases of pestilence. 27. Places to which removed, to be deemed jails. 28. Physician to each jail, to be appointed. (63) 1R. L. 424, § 16. (64) Laws of 1818, p. 5, § 1. (65) Ib. § 2. 64 TITLE 6. Confinement of prisoners SEC. 29. Liquor not to be sold in jail; nor to be used without permit. 31. Penalty for bringing liquor, &c. into jail, &c. 32. Jailers, &c. to deliver pleadings, &c. to prisoners. $ 8. Prisoners arrested on civil process, shall be kept in rooms on civil pro- separate and distinct from those in which prisoners detained on a criminal charge or conviction, shall be confined; and on no pretence whatever, shall prisoners on civil and criminal process, be put or kept in the same room. Ib. of females. Ib. of males and females. Penalties. 66 $9. No female shall be imprisoned on any process in any civil action, founded upon contract. $ 10. Male and female prisoners, unless they be husband and wife, shall not be put, kept or confined in the same room in any prison.67 S 11. Every sheriff or other officer, who shall offend against any of the preceding provisions of this Title, shall forfeit to the party ag grieved, three times the damages found by the jury; and shall be liable to an indictment for a misdemeanor, and upon conviction thereof, in addition to any other punishment, shall forfeit his office or place.66 $ 12. The building now used as a jail in the city of New-York, for the confinement of persons on civil process, shall be and continue [See vol. 1. p. the jail of the city and county of New-York, for the confinement of 360, $75.] such persons, and the sheriff of the city and county of New-York shall have the custody thereof, and of the prisoners in the same.69 Jail in New- Jails in other counties. [See vol. 1, p. $ 13. The buildings now used as jails and prisons in the respective counties of this state, shall be and continue the jails of the said counties respectively, until other buildings shall be designated or erected 360, $75.) for that purpose, according to law; and the sheriffs of the said counties respectively, shall have the custody of such jails and prisons, and of the persons confined in the same.70 Using jails of contiguous counties. Ib. when to cease. $14. If in any county there shall not be a jail, or the jail erected shall become unfit or unsafe for the confinement of prisoners, or shall be destroyed by fire or otherwise, the judges of the county courts of such county, or any three of them, shall, by an instrument in writing, to be filed with the clerk of the county, designate the jail of some contiguous county, for the confinement of the prisoners of their county, or for the confinement of any one or more of such prisoners, which shall thereupon, to all intents and purposes, except as herein otherwise provided, become the jail of the county for which it shall have been so designated, and for the purposes expressed in such instrument.71 $ 15. Such designation may be modified or annulled by the court of common pleas of the county, by whose judges the same was made, on the application of the sheriff thereof, by an order, to be entered in the minutes of such court.71 (66) 1 R. L. p. 425, § 16. p. 422, § 7. (70) Ib. § 2. (67) Ib. § 18. (68) Ib. § 17 & 18. (69) Ib. p. 427, § 1; Ib. (71) 1 R. L. 432, § 18. |