Officer to Give Notice to Plaintiff and Subscribe Certificate. SEC. 22. The officer making the arrest shall immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. Gen. Laws, 5478. Form of Notice by Officer to Plaintiff that Arrest has been Made. SEC. 23. The following is a form of notice that arrest has been made: In the justice's court of No. .... township, in the county of plaintiff, against defendant. of ....... state To Mr........., plaintiff [or, to the "attorney," or, "agent" of the plaintiff ]: Please take notice, that the defendant in the above entitled action has been arrested, and is now held under arrest by me. [Date.] Constable of township No. ... Form of Certificate to be Indcrsed on Summons. SEC. 24. The following is the form of certificate to be indorsed on summons: I hereby certify that I have served the foregoing order by arresting and bringing into court the within-named defendant, this day of .... ....... A. D. 18.., and that I have given notice thereof to the within-named plaintiff this day of ..... A.D. 18.. Constable of township No. .... Duties of Officer and Rights of Defendant. SEC. 25. The officer making an arrest shall keep the defendant in custody until duly discharged by order of the justice. Gen. Laws, 5479. The defendant under arrest, on his appearance with the officer, may demand a trial immediately; and, upon such demand being made, the trial shall not be delayed beyond three hours, except by the trial of another action pending at the time; or, he may have an adjournment, and be discharged on giving bail, as provided in the next section. An adjournment at the request of the plaintiff, beyond three hours, shall discharge the defendant from arrest, but the action may proceed notwithstanding; and the defendant shall be subject to arrest on the execution in the same manner as if he had not been so discharged. Gen. Laws, 5480. If the defendant on his appearance demand an adjournment, the same shall be granted, on condition that he execute and file with the justice an undertaking, with two or more sufficient sureties, to be approved by the justice, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and such as may be issued to enforce the judgment therein; or, that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action. On filing the undertaking specified in this section, the justice shall order the defendant to be discharged from custody. Gen. Laws, 5481. Form of Undertaking by Defendant on Arrest. SEC. 26. The following is a form of undertaking by defendant on arrest: In the justice's court of township, No. plaintiff, against defendant. .... of in the county of state Whereas, the defendant in the above-entitled action has been arrested at the suit of the plaintiff in said action, and has demanded an adjournment of the trial: Now, therefore, we, the undersigned, do undertake, on the part of the said defendant, that he will render himself amenable to the process of the court during the pendency of the said action, and such as may be issued to enforce the judgment therein; or, that we will pay to the plaintiff the amount of any judgment which he may recover in said action. Witness our hands and seals, in the county of A.D. 18... .... this day of and ...... the sureties in the within undertaking, being duly sworn, each for himself, says: That he is a resident and holder within said county, and is worth the sum of dollars, over and above all his debts and liabilities, exclusive of property exempt from execution. [L.S.] [L.S.] What Necessary to Justify Execution against the Person. SEC. 27. The question of fraud must be submitted to the jury, except so far as may be necessary to authorize the arrest pending the action. To justify execution against the person, which may be followed by imprisonment, an issue must be framed and be determined like issues of fact raised upon the pleadings. Fraud is an offense involving moral turpitude, and is followed by imprisonment not merely as a means of enforcing payment, but also as a punishment, and it would indeed be strange if, on a mere question of indebtedness, the right to a trial by a jury should be held sacred and inviolate, and yet such trial be denied upon a question involving a possible loss of character and liberty. This latter question cannot be tried upon affidavits where the accuser is also witness, where the affidavits are not present, and no cross-examination of witnesses is allowed. 10 Cal. 412. SEC. 28. To authorize a judgment convicting the defendant of fraud, the facts upon which the charge is based must be specifically alleged in the complaint. A judgment is the determination of the rights of the parties upon the facts pleaded, and it cannot in any event exceed the relief warranted by the case stated in the complaint. 10 Cal. 412. SEC. 29. Execution against the person, unlike an execution against the property of the defendant which follows, as a matter of course, upon a money judgment, can only issue upon direction of the court to that effect, based upon the special facts found, and such facts cannot be considered by the jury unless averred by the pleadings. Side issues upon affidavits are not the issues upon which juries pass. The arrest upon affidavit is only intended to secure the presence of the defendant until final judgment, and in order to detain and imprison his person afterwards the fraud must be alleged in the complaint, be passed upon by the jury and be stated in the judgment. 10 Cal. 412. SEC. 30. In nearly every case in which an arrest is allowed by the statute, the facts authorizing the arrest also constitute the cause of the action, and, of course, must necessarily be stated in the complaint. In the few instances where the circumstances authorizing an arrest occur subsequently to the filing of the complaint, application should be made to the court either to amend the original or to file a supplemental complaint, so as to set forth the facts upon which execution against the person of the defendant will be asked in the enforcement of the judgment sought. By requiring the charges to be stated in the complaint, the rights of the defendant will be fully guarded. He can then meet the charges and have a fair opportunity of defending himself by a trial before the jury. There may be some inconvenience in blending, in the same trial, a question of indebtedness and a question of fraud, but there is no way of avoiding this and giving full protection to the defendant. A special finding on the question of fraud should be always taken, so as to keep it as distinct as possible from the main subject of controversy. 10 Cal. 412, 413. SEC. 31. The facts on which the writ of arrest is based must be affirmatively found, and the fraud stated in the judgment, in order to authorize an arrest on final process. 6 Cal. 61. When Sureties on Defendant's Undertaking are Liable. SEC. 32. The sureties on the bail bond of a defendant, arrested in a civil action, are not bound to surrender the defendant within ten days after judgment against him, unless the plaintiff takes such measures as would authorize the officer to hold defendant in custody. 8 Cal. 552. "The law requires no man to do a vain thing," is a familiar maxim, and certainly it would be in vain to require a party to surrender to an officer having no power to detain him. A surrender within ten days after execution, is a sufficient compliance with the statute. 8 Cal. 554. CHAPTER XXVIII. PRACTICE-ARGUMENT OF COUNSEL. SECTION 1. The plaintiff, always in contemplation of law, has the affirmative, and has the right to open and conclude. 2 Cal. 408. SEC. 2. The establishment and enforcement of rules, limiting the argument of counsel to a certain time, are matters resting in the sound discretion of the court, and are often necessary to prevent the time of the court from being wasted in useless and unprofitable discussion. 6 Cal. 636. SECTION 1. CHAPTER XXIX. ARBITRATION. Arbitration.-A term derived from the nomenclature of the Roman law, is applied to an arrangement for taking and abiding by the judgment of a selected person in some disputed matter, instead of carrying it to the established courts of justice. The eighth section of the fourth book of the Pandects is devoted to this subject. Almost all the advantages as well as the defects of the system in modern practice seem to have been anticipated by the Roman jurists. SEC. 2. Arbitration, in the law of England (according to Blackstone), is "where the parties, injured and injuring, submit all matters in dispute concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy; and if they do not agree it is usual to add, that another person be called in as umpire (imperator), to whose sole judgment it is then referred; or frequently there is only one arbitrator originally appointed." SEC. 3. The rules which governed under the statute (9th and 10th William III, Cap. 15), do not differ materially |