vs. Coffin & Swain, 9 Cal., p. 56. If the defendant in an action to recover possession of real estate has acquired title to the demanded premises pending the litigation, and has not pleaded such title in a supplemental answer, and for that reason his proof of such title is excluded by the Court, it is not an abuse of discretion of the Court to deny his application made during the trial for permission to amend his answer so as to obviate the objection.-McMinn vs. O'Connor, 27 Cal., p. 248. If testimony offered by the defendant is rejected by the Court because an averment of the complaint to which it relates is not properly denied in the answer, the defendant should be allowed to amend his denial if he asks to do so. When it is discovered, during the progress of the trial, that pleadings are so defective that the real subject of dispute cannot be finally determined, the Court, if an application is made therefor, should allow amendments on such terms as may be just.-Stringer vs. Davis, 30 Cal., p. 318. The answer may be verified even after the close of the case on the part of the plaintiff.-Arrington vs. Tupper, 10 Cal., p. 464. Two defendants filed a joint plea of the Statute of Limitations, and the plea being held bad as to one defendant, the Court, on the trial, permitted the other defendant to file a separate plea of the statute. This was not such a gross abuse of discretion as to enable the Supreme Court to revise it.-Robinson vs. Smith, 14 Cal., p. 254. The Court below has power to grant amendments whenever, at any stage of the trial, they will assist the purposes of justice, and this power should be liberally exercised to secure a fair and speedy trial on the merits.-Lestrade vs. Barth, 17 Cal., p. 285; see Peters vs. Foss, 16 Cal., p. 337. When it appears by the plaintiff's testimony that there is a misjoinder of persons who should have been made plaintiffs, and a motion for a nonsuit is made on this ground, the Court may allow an amendment by adding the name of a co-plaintiff.-Acquital vs. Crowell, 1 Cal., p. 192. A motion to amend a complaint is not too late because made after the plaintiff has closed his testimony and the defendant has moved for a nonsuit. A motion to amend is always in time when it immediately follows an objection to the complaint or answer.-Valencia vs. Couch, 32 Cal., p. 340. 21. AMENDMENTS, WHERE MADE. - Amendments correcting mistakes, etc., should be made by motion in the Court below, not in the Supreme Court.-Whitney vs. Buckman, 13 Cal., p. 536; Anderson vs. Parker, 6 Cal., p. 197; Guy vs. Ide, 6 Cal., p. 99. Suing a party by a fictitious name, when allowed. No error or defect to be rogarded unless it affects 22. SUPPLEMENTAL COMPLAINT AS AMENDMENT.— Facts which occur subsequent to the filing of the original complaint, and which change the liabilities of the defendant, and in consequence, the character of the judgment which is sought, cannot be incorporated with the original complaint by an amendment without presenting averments inconsistent with the date of the action. They must be presented in the form of a supplemental complaint.-Van Maren vs. Johnson, 15 Cal., p. 311. 474. (§ 69.) When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. NOTE. The words "he must state that fact in the complaint," are added to the original section, so that it may appear upon the face of the proceedings that the name is a fictitious one.-See generally, Rosencrantz vs. Rogers, 40 Cal., p. 491; Morgan vs. Thrift, 2 Cal., p. 562. 475. (71.) The Court must, in every stage of an action, disregard any error or defect in the pleadsubstantial ings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. rights. NOTE.-Bergan vs. O'Reilly, 32 Cal., p. 12; Peters vs. Foss, 20 Cal., p. 586; Stout vs. Coffin, 28 Cal., p. 65; Zeigler vs. W. F. & Co., 28 Cal., p. 263; Mendocino Co. vs. Morris, 32 Cal., p. 145; Plate vs. Vega, 31 Cal., p. 383. CHAPTER I. Arrest and bail. II. Claim and delivery of personal property. III. Injunction. CHAPTER IV. Attachment. V. Receivers. VI. Deposit in Court. CHAPTER I. ARREST AND BAIL. SECTION 478. No person to be arrested except as prescribed by this 479. Cases in which defendant may be arrested. 480. Order for arrest, by whom made. 481. Affidavit to obtain order, what to contain. 482. Security by plaintiff before order of arrest. 483. Order, when made, and its form. 484. Affidavit and order to be delivered to the Sheriff, and copy to defendant. 485. Arrest, how made. 486. Defendant to be discharged on bail or deposit. 487. Bail, how given. 488. Surrender of defendant. 489. Same. 490. Bail, how proceeded against. 491. Bail, how exonerated. 492. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. 493. Notice of justification. New undertaking, if other bail. 495. Justification of bail. 496. Allowance of bail. 497. Deposit of money with Sheriff. 498. Payment of money into Court by Sheriff. 499. Substituting bail for deposit. 500. Money deposited, how applied or disposed of. 501. Sheriff, when liable as bail, and his discharge from lia bility. 502. Proceedings on judgment against Sheriff. 503. Motion to vacate order of arrest or reduce bail. Affi davits on motion. 504. When the order vacated or bail reduced. 478. (§ 72.) No person can be arrested in a civil No person action, except as prescribed in this Code. to be arrested except as prescribed NOTE.-Benninghoff vs. Oswald, 37 How. Pr., p. is 235; Williams vs. Bacon, 10 Wend., p. 636. Code. 53-VOL. I. dd 1873-4, Cases in which defendant may be arrested. 479. (§ 73.) The defendant may be arrested as hereinafter prescribed, in the following cases: 1. 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; 2. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, 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 fraudulent misconduct or neglect in office, or in a professional employment; or for a willful violation of duty; 3. In an action to recover the possession of personal property, unjustly detained, when the property, or any part thereof, has been fraudulently concealed, removed, or disposed of, so that it cannot be found, or taken by the Sheriff; 4. When the defendant has been guilty of a 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; 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. NOTE.-1. INJURY TO PERSONS.-Subd. 1.-The first subdivision of the section (73) of the Practice Act, for which this is a substitute, provided that "the defendant may be arrested where the action is for willful injury to person or character." It was held, that this provision was in conflict with Section 15 of Article I of the Constitution.-Southworth vs. Resing, 3 Cal., p. 378; Ex Parte Prader, 6 id., p. 239; see, also, in the Matter of Holdforth, 1 Cal., p. 438. 2. ACTIONS NOT ARISING OUT OF CONTRACT.-The defendant may be arrested in an action to recover from an innkeeper for baggage lost at his hotel.-Burroughs vs. Willett, 26 Barb., p. 78. So in an action for a false warranty.--3 E. D. Smith, pp. 1, 13. So in an action for fraudulent misrepresentations as to the responsibility of a party whereby credit was given.-Sherman vs. Brantley, 7 Rob., p. 55. 3. AGENTS.-Subd. 2.-In an action 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.-In the Matter of Holdforth, 1 Cal., p. 438. 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. Held: that this constituted a partnership between them, and that B. was not an agent and not subject to arrest in an action by A. to recover a part of the proceeds of the sales.-Soule vs. Hayward, 1 Cal., p. 345. 4. FRAUDULENT INTENT.-Subd. 3.-Pike vs. Lent, 4 Sandi., p. 650; Roberts vs. Randel, Sandf., p. 710; Watson vs. McGuire, 33 How. Pr., p. 87; Sherlock vs. Sherlock, 7 Abb. Pr. (N. S.), p. 22; Merrick vs. Suydam, 1 Code R. (N. S.), p. 212. 5. OBLIGATION-DEBT.-Subd. 4.-The alleged fraud must be directly connected with the debt or obligation. Oatley vs. Lewin, 47 Barb., p. 18. "Debt" and 66 obligation" have the same meaning-both import a contract liability.-McGovern vs. Payn, 32 Barb., p. 83; Smith vs. Corbiere, 3 Bosw., p. 634; Ely vs. Steigler, 9 Abb. (N. S.), p. 35. But in Crandall vs. Bryan, 15 How., p. 48, it was held that the term "obligation was intended to include those cases where the action would not sound in contract. 6. ALLEGATIONS OF FRAUD.-The allegations in the application must satisfy the Judge judicially, but the material facts may be stated upon information and belief, if accompanied by statements of the nature and sources of the information.-Crandall vs. Bryan, 15 How. Pr., p. 48; 5 Abb. Pr., p. 162. A defendant cannot be arrested for fraudulent representations in obtaining money, when the representations were made after the money was obtained.-Snow vs. Halstead, 1 Cal., p. 361. 7. EVIDENCE.-To sustain the allegations of fraud and deceit in contracting a debt, it is necessary to prove that the representations alleged to have been fraudulent and deceitful were not true.-Belden vs. Henriques, 8 Cal., p. 87. ་ ་་ ་ ་ ་ ་ ་ |