Failure of All Defendants to Appear.

SEC. 7. If all of the defendants shall fail to appear or answer within the time prescribed in the summons, the justice shall thereupon enter judgment against them for the amount demanded in the summons, where the action is brought upon a contract for the direct payment of money; and in all other cases shall hear the proofs and give judgment in accordance with the pleadings and proofs. Stats. 1867-1868, 552.

Failure of only Some of Defendants to Appear.

SEC. 8. Where all the defendants served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice may proceed to try the cause, or upon good cause shown by either party, may fix the day for trial on any subsequent day not more than ten days thereafter. Stats. 18671868, 552.

SEC. 9. Where the record shows, in general terms, the appearance of parties, the appearance will be confined to those parties served with process. 13 Cal. 558.

Failure of Either Party to Appear.

SEC. 10. If either party shall fail to appear at the time fixed for trial, or at the time to which the trial has been adjourned, the trial may proceed at the request of the adverse party, and judgment shall be rendered in conformity with the pleadings and proofs. Stats. 1867-1868,

552.

SEC. 11. If the plaintiff or some person on his behalf does not appear on the return of process before a justice, it is a discontinuance; and if the justice proceed in the cause it is error, even though, on the return of process, the note on which the suit was brought was delivered to the justice with a request of the defendant indorsed upon it to enter judgment against him. 9 Johns. 140.

Appearance by Attorney.

SEC. 12. The appearance of his attorney is equivalent

to the appearance of the party in an action before a justice. 2 Penn. 658.

SEC. 13. A justice is authorized to proceed with a trial where an individual appears as attorney for the defendant, makes oath that he is authorized to appear to answer to the suit, asks for no adjournment, but procures a subpena for witnesses for the defendant and proceeds to trial, and makes no objections to the proceedings. If the attorney so appearing has no authority, the remedy of the defendant is against the attorney. 18 Barb. (N. Y.) 387.

SEC. 14. A suit having been instituted in the name of the plaintiffs by an attorney of the court, it is to be presumed, prima facie, that they authorized the attorney to appear and prosecute. It is not matter in abatement that the plaintiffs, or either one of them, have not given this authority. The proper mode of procedure, if the suit was not authorized, is for the defendant to move the court, upon proper affidavits, to dismiss the suit, upon the ground that it was not authorized by those in whose names it was brought. If the attorney, on such a motion and after notice of it, fails to show his authority, the court may dismiss the case. But it would lead to great confusion to hold that the parties may be heard in the progress of a case on trial otherwise than through the attorneys appearing for them on the record. If a release or other paper has been executed by one of the parties, this may be pleaded, and its legal effect accorded to it; but it is not admissible, upon a mere suggestion at the bar by the adverse party or his attorney, to deny the right of a party to appear by the attorney of record, or to deny that the attorney so appearing has full authority to prosecute the suit. See McKernan vs. Patrick, 4 How. (Miss.) 336, and the cases there cited. 17 Cal. 432, 433.

In what Cases the Defendant may be Arrested.

SECTION 1. The writ of arrest is only an intermediate remedy or process, to secure the presence of the party until final judgment. 6 Cal. 61; 10 Cal. 412.

SEC. 2. An order to arrest the defendant may be indorsed on a summons issued by the justice, and the defendant may be arrested thereon by the sheriff or constable, at the time of serving the summons, and brought before the justice, and there detained until duly discharged 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 where the action is for a willful injury to the person, or for taking, detaining or injuring, personal property.

2d. In an action for a fine or penalty, or for money or

property embezzled, or fraudulently misapplied, or converted to his own use by an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity.

3d. When the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought.

4th. When the defendant has removed, concealed or disposed, of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action. Gen. Laws, 5475.

SEC. 3. In order to give the court jurisdiction of the subject matter, so as to enable it to issue orders or process, it is necessary that the action should be commenced. The practice act provides that the defendant may be arrested in a certain class of cases. Until there is a suit instituted, there can be no defendant, and consequently no authority, under the statute, to issue an order of arrest. 6 Cal. 320. Thus, where a complaint was not filed until two days after an order of arrest had issued thereupon, the order of arrest was void for want of jurisdiction. 6 Cal. 318, 321.

In what Cases the Defendant Cannot be Arrested.

SEC. 4. A party cannot be imprisoned under a judgment in a civil action for assault and battery. 6 Cal. 239.

SEC. 5. An assault and battery is not a case of fraud, in the sense that that term is employed by the constitution; neither can it be made so by the legislature; and the judgment is a debt as much as though recovered in an action of assumpsit. So also the provision in the practice act that the defendant may be arrested when the action is for willful injury to the person, etc., is directly in conflict with the

constitution. 6 Cal. 240.

SEC. 6. The provision in the practice act for the arrest of a debtor in certain cases, does not apply in the case of one partner sueing to recover money received by another. Thus, A being the owner of an invoice of goods in the city of New York, sold one-half interest therein to B, with an arrangement that the latter should proceed to San Francisco, and there dispose of the same on joint account: it

was held, that this constituted a partnership between them, and that B was not subject to arrest in an action by A to recover part of the proceeds of the sales. 1 Cal. 346.

SEC. 7. 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 in such case is prohibited by section fifteen, article one, of the constitution. 1 Cal. 438.

SEC. 8. When a party is once arrested and discharged, he cannot be arrested again in the same action. 2 Cal. 609.

Affidavit and Undertaking before Order of Arrest.

SEC. 9. Before an order for an arrest shall be made, the party applying shall prove to the satisfaction of the justice, by the affidavit of himself or some other person, the facts on which the application is founded. The plaintiff shall also execute and deliver to the justice a written undertaking, with two or more sureties, to the effect that if the defendant recover judgment, the plaintiff will pay to him all costs 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 shall not be less than two hundred dollars. Gen. Laws, 5476.

SEC. 10. Where the allegations of a complaint are made and the verdict is sought in order that the judgment may be enforced by the arrest and imprisonment of the person of the defendant, they must bring the case clearly within. the provisions of the statute authorizing arrests, and must be certain and positive, and not ambiguous, argumentative or in the alternative. 8 Cal. 623.

SEC. 11. The act which allows a party to be arrested in a civil case, requires the affidavit to disclose that a sufficient cause of action exists, and that the case is one of those for which the remedy of arrest is provided. The facts necessary to be shown must appear by the positive averments of the affidavit; and it is insufficient to refer to the complaint or to any other paper to show what the affidavit ought itself to disclose, although it is positively averred that such complaint or paper is true. 2 Cal. 609.