except upon condition that such party file an undertaking, with sureties, to be approved by the justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying. Pr. Act, 585; Gen. Laws, 5516.

Form of an Undertaking on Adjournment for a Period not Exceeding Four Months.

SEC. 15. The 'following is a form of an undertaking on adjournment for a period not exceeding four months:

Whereas, the above-named defendant has demanded of said court, upon his affidavit presented thereto, an adjournment of the trial of said cause for a longer period than ten days and not exceeding four months which application has been granted. Now, therefore, we the undersigned residents of said county, in consideration of the premises, do hereby jointly and severally promise that we will pay to the above-named plaintiff the amount of any judgment which he may recover against the said defendant. In witness whereof, we hereunto subscribe our names.

Adjournment when a Trial by Jury is Demanded.

[L.S.] [L.S.]

SEC. 16. When a trial by jury is demanded, the trial of the case shall be adjourned, until a time and place fixed for the return of the jury. If neither party desire an adjournment, the time and place shall be determined by the justice, and shall be on the same day, or within the next two days. Gen. Laws, 5518.

Adjournment when a Jury has been Summoned.

SEC. 17. A justice has a discretionary power to continue a case for a week or more, and may require the same jury to attend again, though the better course might be, to summon a new jury at the continued term, as is done in the county court. 25 Vt. (2 Deane's) 93.

Adjournment on Justice's own Motion.

SEC. 18. A justice may make a second adjournment of a

cause, of his own motion, without affidavit (4 Harring. 92, 313), but the record should show the cause for such adjournment. 4 Harring. 92, 352.

SEC. 19. He cannot adjourn a cause on his own motion and for his own convenience, for a longer time than he has power to do for the convenience of the parties; whether he has power to adjourn a cause for any time for his own convenience, quære. 1 Harring. 127.

Adjournment when Justice is Officially Occupied.

SEC 20. If a justice adjourns a cause till one o'clock P. M., and is occupied officially till five P.M., he can resume the cause though the defendant be absent. 10 Wend. 102.

Ordering Case to Stand Open for Trial.

SEC. 21. A case being properly in court, it is competent for the justice to order the case to stand open for trial, for a reasonable time.

SEC. 22. It is his duty to see that the defendant has his day in court, and an opportunity to make his defense; and where the justice ordered the case to stand open for trial, with the understanding that if the defendant appeared by three o'clock, or in a reasonable time (one o'clock being the time set in the writ), the right of appearing and defending the suit should be secured to him, and the justice returned about the hour of four, and within the time in which he had the power, by statute, to vacate any record of default, etc., and then notified the counsel of the defendant that the case was open for trial, if they desired to make any defense, and requested him to appear and answer for that purpose, it was held, that this was a full compliance with the duty of the justice after the case was ordered to stand open. 24 Vt. (2 Deane's) 87.

SEC. 23. But a justice has no power to open a case for further hearing after the day of trial has passed, the case having been submitted by the plaintiff, and his witnesses having departed. 2 E. D. Smith (N. Y.) 37.

SEC. 24. Neither can he hold a cause open for any number of days from the return of the summons, where the defendant does not appear and there is no issue joined,

although he might, perhaps, adjourn the cause to a day certain; and, where a cause was held open four days and then tried, the defendant not appearing, the proceedings were adjudged erroneous. 4 Denio, 160.

Stage of Proceedings at which Adjournment may be had.

SEC. 25. A justice may adjourn his court to any part of the town in which its original place of sitting was fixed. He may adjourn after a jury has been drawn which the officer is proceeding to summon; the statute confines the power to no particular stage of the proceedings. 6 Vt. 60.

SEC. 26. But he has no power to act in the case or continue it, before the time at which the writ is returnable. 6 Shep. 23.

SEC. 27. Nor where he has ordered a continuance of an action can he order a further continuance prior to the day appointed. 5 Shep. 413.

When Improper Adjournments Waived.

SEC. 28. If a justice improperly adjourn a cause and the parties appear on the day of adjournment, they waive the irregularity. 3 Hill, 180.

SEC. 29. But an appearance by the defendant at the time and place for the purpose of protesting against such continuance, is no waiver of the illegality. 6 Shep. 23.

CHAPTER XXIV.

AMENDMENTS.

SECTION 1. The pleadings may be amended at any time before the trial, to supply a deficiency or omission, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment shall be granted. The court may, also, in its discretion, require as a condition of an amendment the payment of costs to the adverse party, to

1

be fixed by the court, not exceeding twenty dollars; but such payment shall not be required unless an adjournment is made necessary by the amendment; nor shall an amendment be allowed after a witness is sworn on the trial, when an adjournment thereby will be made necessary. Pr. Act, 580.

SEC. 2. The object of the statute in reference to amendments is unquestionably the furtherance of justice. So far as that goes, courts ought to be disposed to treat such applications favorably. In most instances it is a matter of course that they should be granted. But courts have not been inclined to look very kindly upon statutes of limitation, except where they were used as the instruments of justice, and not strategy. For example: there is a wide distinction between the protection of minor heirs by such means, and the facility on the other hand afforded to the wary and skillful of escaping from the payment of an equitable demand. In the first case the whole scope, force and effect, should be given to the law; in the latter, it would only be reluctantly allowed its course for the sole end of maintaining it as a general rule of conduct. The single evil of that occasion would be less pernicious than the violation of the law for the purpose of doing justice. Cooke vs. Spears, 2 Cal. 411.

SEC. 3. It is always in the power of the court to allow an amendment to the complaint, so it does not affect the substantial rights of the parties. 9 Cal. 58. The court may allow, after the close of plaintiff's evidence, the complaint to be amended by adding the name of another party plaintiff, if it does not affect the substantial rights of the parties. Polk et al. vs. Coffin & Swain, 9 Cal. 56.

SEC. 4. Under the liberal provisions of our practice act, courts should allow amendments with great liberality at any stage of proceedings before trial, when required, seeing that no injurious delays are occasioned, and that the matter of the amendment is essential to a fair trial on the legal merits of the case. McMillan vs. Dana et al., 18 Cal. 348, 349.

SEC. 5. In an action upon a contract for beef furnished the defendant, the complaint alleged that the beef was furnished to the defendant, but did not allege that it was furnished "at his request." The defendant moved to dismiss

the case on the ground that the complaint did not set forth any cause of action. The plaintiff thereupon moved for leave to amend his complaint. The court denied the motion of the plaintiff to amend, and granted the motion of the defendant, and dismissed the case: Held, that the court erred in refusing to allow the plaintiff to amend his complaint, and in dismissing the suit. 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 vs.

King, 10 Cal. 342, 343.

SEC. 6. It would be carrying the power and discretion of the court to an extreme point to permit a party, after summoning his adversary to appear and defend an action ex contractu, to amend his declaration so as to change the proceeding into an action ex delicto. Ramirez vs. Murray, 5 Cal. 224.

SEC. 7. Amendment of Pleading.-If evidence is objected to because the defense under which it is offered is defectively pleaded, the court should allow the pleading to be amended. Carpentier vs. Small, 35 Cal. 346.

SEC. 8. An amended answer supersedes the original and destroys its effects as a pleading. Jones vs. Frost, 28 Cal.

246.

SEC. 9. Fraud discovered after suit brought will entitle the party to amend his action so as to include it. Truebody vs. Jacobson, 2 Cal. 269; Matoon vs. Eder, 6 Cal. 61.

SEC. 10. To subserve the purposes of justice, courts should allow a garnishee to amend his answer whenever it appears that he committed a mistake, or had fallen into an error which could not reasonably have been avoided. Smith vs. Brown, 5 Cal. 118.

SEC. 11. The court below may allow a summons to be amended by inserting a notice of the cause of action, etc. 2 Cal. 193.

SEC. 12. If the discretion of courts in regard to allowing Or refusing amendments, be abused or illegally exercised, an appellate court will interpose. Cook vs. Spear, 2 Cal. 409.