ment to the roll, as well as by entering it in the proper book, and by referring in the margin of the entry of the judgment to an amendment as made by an order of such a date. The portions changed or omitted could be designated by brackets, underscoring, or otherwise. Or the judgment may be entered anew, as amended. 1 Russell's R. 476; 1 Swans. 573, n.; Sluyter v. Smith, 2 Bosw. 673. 100. Costs, by whom paid.-Where a judgment is set aside, under the sixty-eighth section of the Practice Act, and a party permitted to come in and defend, he must be compelled to pay costs. Roland v. Kreyenhagen, 18 Cal. 455. § 68. Who may enlarge time to plead, correct mistakes, amend and relieve from judgment in certain cases. [1853.] The Court may, in furtherance of justice, and on such and on such terms as may be proper, amend any plead: ading or proceedings by adof any party, or by correcting a mistake in the name rty, or by correcting a misany other respect, and may likewise, upon affidavit showing good cause there for an answer or demurrer, for, after notice to the adverse party, allow, upon such Sec. 68. The Court may, in furtherance of justice, ing or proceedings by adding or striking out the name of a party, or a mistake in any other respect, and may, ke in terms as may be just, an amendment to any pleading Court may likewise, upon or proceeding in other particulars; and may, upon like just, an amendment to any other proceeding taken against bim through culars, and may, upon like his mistake, inadvertence, surprise or excusable neglect; and when, for any cause satisfactory to fter the time limited by this 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 pro- may be just, and upon pay ceeding complained of was taken, the Court, or the Judge at chambers in vacation, may grant the relief egal representatives from a upon application made within a reasonable time, not exceeding five months after the adjournment of the ken against him through his sable neglect. When, from term. When, from any cause, the summons and a copy of the complaint in an action have not been per sonally served on the defendant, the Court may allow, answer to the merits of the original action. the complaint in an action defendant, the Court may after the rendition of any judgment in such action, to N. Y. Code, §§ 173, 174. 1. Enlarging time to answer or demur.—It is always within the power of a Court, when exercising proper discretion, to extend the time fixed by law, whenever the ends of justice would seem to demand such an extension. Wood v. Forbes, 5 Cal. 62. 2. Inability of counsel to obtain defendant's verification in time may be good ground for an extension of time to answer, but cannot avail in resisting a motion to strike out and for judgment after the answer is filed. Drum v. Whiting, 9 Cal. 422. 3. Where a demurrer to a complaint is overruled, and an application subsequently made for leave to file an answer, the allowance of the application rests in the discretion of the Court, subject to review in case of its arbitrary or unreasonable exercise. The exercise of this power by the Court must in a great degree depend upon the special circumstances of each case, and be so governed as to prevent delays and to promote justice. Thornton v. Borland, 12 Cal. 438. 4. The power of the Court, under this and other sections of the Practice Act, should be liberally exercised to mould and direct its proceedings, so as to dispose of cases upon their merits, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided, rather than as principles to which effect is to be given in derogation of substantial right. Roland v. Kreyeuhagen, 18 Cal. 455. 5. Amendments should be readily allowed whenever they will tend to the furtherance of justice, and the greatest liberality in this respect should be extended to pleadings in Justices' Courts. Butler v. King, 10 Cal. 342. 6. Amendments to pleadings should be allowed with great liberality at any time before trial-injurious delays being avoided, and the amendment being essential to a fair trial on the merits. McMillan v. Dana, 18 Cal. 339. 7. Amendments should be liberally allowed by inferior Courts in advancement of justice, and to secure a fair and speedy trial on the merits, and an arbitrary refusal to allow them under proper circumstances would be ground of interference by the Supreme Court. Smith v. Yreka Water Co., 14 Cal. 201. § 69. Fictitious name. When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly. N. Y. Code, § 175. 1. The Practice Act permits a party defendant, whose name is unknown, to be sued by any name. Morgan v. Thrift, 2 Cal. 562. 2. If a bond has to be executed by the plaintiff, and is executed to the defendant by a wrong name, the latter has his remedy, and may describe it as given to him, and may show that he was the party intended. Id. 3. The defendant was sued and served by the name of George Mott, and judgment entered against him by the same name; afterwards, and without notice to defendant, the plaintiff, on his own motion, obtained an order from the Court to amend the judgment by altering the name of George to Gordon: Held, that this was error. McNally v. Mott, 3 Cal. 235. 4. Where a defendant is sued as James and judgment was entered against J was something in the record to show that the Sutter v. Cox, 6 Cal. 415. § 70. Pleadings, how constructed. service was returned upon John : Held, to be error, unless there person served was the person sued. In the construction of a pleading for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties. N. Y. Code, § 159. 1. Substantial justice spoken of in the statute is substantial legal justice, to be ascertained and determined by fixed rules and positive statutes, and not the abstract and varying notion of equity which may be entertained by each individual. 1 Cal. 98. § 71. No error or defect to be regarded, unless it affects the substantial rights. The Court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect. N. Y. Code, § 176. TITLE V. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. CHAPTER I.-Arrest and Bail. SEC. 72. No person to be arrested except as prescribed by this Act. 73. Cases in which defendant may be arrested. 74. Order for arrest, by whom made. 75. Affidavit to obtain order, what to contain. 76. Security by plaintiff before order of arrest. 77. Order, when made, and its form. 78. Affidavit and order to be delivered to the Sheriff and copy to defendant. 79. Arrest, how made. 80. Defendant to be discharged on bail or deposit. 81. Bail, how given. 82, 83. Surrender of defendant. 84. Bail, how proceeded against. 85. Bail, how exonerated. 86. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. 87. Notice of justification. New undertaking, if other bail. 88. Qualification of bail. 89. Justification of bail. 90. Allowance of bail. 91. Deposit of money with Sheriff. 92. Payment of money into Court by Sheriff. 93. Substituting bail for deposit. 94. Money deposited, how applied, or disposed of. 95. Sheriff, when liable as bail, and his discharge from liability. 96. Proceedings on judgment against Sheriff. 97. Motion to vacate order of arrest or reduce bail, affida vits on motion. 98. When the order vacated or bail reduced. § 72. No person to be arrested except as prescribed by this Act. No person shall be arrested in a civil action, except as prescribed by this Act. § 73. Cases in which defendant may be arrested. The defendant may be arrested as hereinafter prescribed, in the following cases arising after the passage of this Act: * 1st. In an action for the recovery of money or damages 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, or when the action is for willful injury to person, to character, or to property, knowing the property to belong to another. 2d. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, Statutes of 1850, 407; Woods' Digest, 252, art. 1381. An Act for the Relief of Persons Imprisoned on Civil Process. Passed April 22d, 1850. 1. Every person confined in jail, on an execution issued on a judgment rendered in a civil action, shall be discharged therefrom upon the conditions hereinafter specified. 2. Such person shall cause a notice in writing to be given to the plaintiff, his agent, or attorney, that at a certain time and place he will apply to the Judge of the District Court of the county in which such person may be confined; or, in case of his absence, or inability to act, to the Judge of the County Court of the county in which such person may be impris oned, for the purpose of obtaining a discharge from his imprisonment. 3. Such notice shall be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the application, in cases where the plaintiff, his agent or attorney, lives within twenty miles of the place of hearing; and one day shall be added for every additional twenty miles that such person may reside from the place of hearing, 4. At the time and place specified in the notice, such person shall be taken before such Judge, who shall examine him under oath concerning his estate, and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed; and such Judge shall also hear any other legal and pertinent evidence that may be produced by the debtor or creditor. 5. The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they shall, if required by him, be proposed and answered in writing; and the answer shall be signed and sworn to by the prisoner. 6. If, upon the examination, the Judge shall be satisfied that the prisoner is entitled to his discharge, such Judge shall administer to him the following oath, to wit: "I do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to defraud my creditors, so help me God." 7. After administering the oath, the Judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause; and the officer, upon the service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause. 8. If such Judge should not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same manner as above provided, and the same proceedings shall thereupon be had. 9. The prisoner, after being so discharged, shall be forever exempted from arrest or impris onment for the same debt, unless he shall be convicted of having willfully sworn falsely upon his examination before the Judge, or in taking the oath before prescribed. 10. The judgment against any prisoner, who is discharged as aforesaid, shall remain in full force against any estate which may then, or at any time afterwards, belong to him; and the plaintiff may take out a new execution against the goods and estate of the prisoner in like manner as if he had never been committed. 11. The plaintiff in the action may at any time order the prisoner to be discharged, and he shall not thereafter be liable to imprisonment for the same cause of action. 12. Whenever a person is committed to jail on an execution issued on a judgment recov ered in a civil action, the creditor, his agent or attorney, shall advance to the jailor, within twenty-four hours after such commitment, suficient money to pay for the support of said prisoner during the time for which he may be imprisoned; and in case the money should not be so advanced, or if, during the time the prisoner may be in continement, the money should be expended in the support of such prisoner, and the creditor should neglect, for twenty-four hours, to advance such further sum as might be necessary for his support, the jailor shall forthwith discharge such prisoner from custody, and such discharge shall have the same effect as a discharge by order of the creditor. 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 misconduct or neglect in office, or in a professional employment; or for a willful violation of duty. 3d. In an action to recover possession of personal property, unjustly detained, when the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the Sheriff. 4th. When the defendant has been guilty of 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. 5th. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. N. Y. Code, § 179. 1. No person can be imprisoned for debt, under the Constitution, except in cases of fraud. An assault and battery is not a case of fraud within the meaning of the Constitution. Ex parte Prader, 6 Cal. 239. 2. To entitle a party to the remedy of arrest, it is not necessary that he should know positively the commission of a fraud. It is sufficient, if the circumstances detailed would induce a reasonable belief that a fraud was intended. Southworth v. Resing, 3 Cal. 378. 3. First subdivision.-The seventy-third section of the Practice Act, which provides that "the defendant may be arrested where the action is for willful injury to person or character," is directly in conflict with the fifteenth section of article one of the Constitution. Id. 4. Second Subdivision-Agent, when he can be arrested.— In a suit to recover money received by a person as agent, he cannot be arrested without showing some fraudulent conduct on his part, or a demand on him by the principal, and a refusal by him to pay. An arrest without such showing is prohibited by section fifteen, article one, of the Constitution. In the matter of Holdforth, 1 Cal. 438. 5. An agent who receives goods to sell on commission, who afterwards claims to have bought them from his principal, and on that ground refuses to account, or return the goods, may be treated as having converted them. Solomon v. Waas, 2 Hilt. 179. 6. An agent or attorney to whom money is paid by his principal for the purpose of making a specific appropriation of it, is liable to arrest on his refusal to pay it back on demand before he has paid it over. It is no excuse that the plaintiff has consented to its being held for a different purpose, unless the arrangement in respect to such purpose is such as to render the agent a stockholder under liability to retain it. Schadle v. Chase, 16 How. 413. 7. A being the owner of an invoice of goods in the city of New York, sold onehalf interest therein to B, with an arrangement that the latter should proceed to San Francisco and there dispose of the same on joint account: Held, that this constituted a partnership between them, and that B was not subject to arrest in an action by A to recover a part of the proceeds of the sales. Soule v. Hayward, 1 Cal. 345. 8. Section seventy-four (now 73) of the Practice Act, which provides for the arrest of a debtor in certain cases, does not apply in the case of one partner suing to recover money received by another. Id. |