Manha

This suit was brought to recover the sum of five hundred and ninety dollars for work and labor performed by the plaintiff at the request of the defendant, and for the use and hire by the defendant from plaintiff of that certain boat known as the schooner May for a period of fifty-nine days from the eleventh day of September, 1904,, to the ninth day of November of the same year. From the answer and- the evidence it appears that plaintiff’s action is based upon the written agreement attached to the answer made between the plaintiff and one Beermaker, agent of the defendant, for the hiring of plaintiff’s power schooner May for a voyage to Magdalena Bay, stopping at any place or island designated by. said Beermaker, and to return to San Diego with a load of guano. The rental agreed upon was ten dollars per day, and by the terms of the contract the plaintiff was to go with the boat as engineer and to furnish one man as sailor; said Beermaker furnishing all provisions, oil for engine, captain, and two sailors. The schooner on the eleventh day of September, 1904, cleared from the port of San Diego for that of Ensenada, but on arrival there the plaintiff was arrested by the Mexican…

I concur. As to the right of defendant to file an amended answer at any time before demurrer filed, it is sufficient for the purposes of this case to say that after an answer has been filed, and the issues' so formed have been set for trial on a day certain, with the knowledge and acquiescence of the defendant, he cannot on the eve of the trial file an amended answer raising new issues without leave of the court. To so much qualification the general language of section 472 of the Code of Civil Procedure" must be subject, and perhaps it is the only qualification we are authorized to impose.

Rehearing denied.