The opinion of the court was delivered by The first contention of plaintiff in error is, that the court erred in permitting plaintiff below to amend his affidavit for arrest, in substance, by alleging therein additional grounds for arrest to those set forth in the original affidavit against the objection of the defendant below. This is incorrect. The only allegation not made in the original affidavit which appears in the amended one, is "that he has disposed of his property with intent to defraud his creditors." It has been stated in the original affidavit, "that said defendant, Albert E. Light, has converted his property into money for the purpose of placing it beyond the reach of his creditors." If one converts his property into money for the purpose of placing it beyond the reach of his creditors, that will be disposing of it with intent to defraud his creditors. The other amendments of the affidavit permitted by the court were enlargements of what had been stated in substance in the original affidavit. The whole amendment was such as the court was authorized to permit in order to make the proceedings in the case to conform to the provisions of the code of civil procedure, Statutes of Oklahoma, 1893, § 4017, p. 784.
In states where, by the civil procedure, amendments to the affidavit are authorized, it is held "that when the affidavit contains the names of the parties, and specifies the amount of the indebtedness, and avers a statutory ground for issuing the writ, however defectively any of these points may be stated, it may be amended." (Drake on Attachments, § 113; Booth vs. Rees,26 Ill. 45; Moore vs. Mauck, 79 Ill. 391; Wells Fargo Co. vs.Danford, 28 Kan. 481; Robinson vs. Burton, 5 Kan. 294.)
The rule thus declared is upon that provision of the civil code which provides, that: *Page 548
"The court may, * * * in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding * * * or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when the proceeding fails to conform in any respect to the provisions of this code, the court may permit the same to be made conformable thereto by amendment."
The rule covers the amendment permitted by the probate court, and is applicable to proceedings in arrest and bail, as in attachment.
The second assignment of error is that the court refused to discharge the order of arrest because of the insufficiency of the affidavit for arrest, but the plaintiff in error does not state in his brief any respect in which the affidavit is insufficient; and as it conforms to the requirements of the code of civil procedure, it is sufficient.
It is further assigned for error that in denying the motion of defendant, plaintiff in error, to discharge the order of arrest because the facts set forth in the affidavit for arrest were untrue, the court erred. The court below passed upon the facts, and they will not be reversed here unless the ruling is clearly against the weight of evidence.
It is further claimed by plaintiff in error under his fourth assignment of error, that the provisions of the statute, ch. 66, art. 9, §§ 148-154, of the code of civil procedure are in contravention of the constitution and laws of the United States, and that the order of the probate judge to the sheriff of Canadian county to arrest the plaintiff in error and hold him to bail in double the sum of $355.75, as stated in the affidavit for arrest to be due, was in violation of art. 5 of amendments to the constitution of the United States, providing that, "No person shall be * * * deprived *Page 549 of life, liberty or property without due process of law." That by the arrest he was deprived of his liberty without due process of law; that the arrest and imprisonment of a citizen on an affidavit, to be kept under arrest or bail until discharged according to law, is not in any sense "due process of law." But that due process of law implies jurisdiction and trial; and further, that art. 7 of amendments to the constitution of the United States provides that "In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." And that this is a suit at common law, and the proceedings in arrest in this case are in violation of the constitution.
Upon this contention it is to be said that "due process of law" is the law in its usual course of administration through courts of justice. (3d Story on the Constitution, 264,-661; 18 How. 722; 13 N.Y. 376).
It means in each particular case such an exercise of the powers of government as the settled maxims of law permit and sanction, and under such safeguards for the preservation of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. (Stewart vs.Palmer, 74 N.Y. 191; Cooley Const. Limitations, 355).
It is probably wiser to leave the meaning of "due process of law" to be evolved "by the gradual process of judicial inclusion and exclusion as the case presented for decision shall require, with the reasoning on which such decision may be founded." (Mr. Justice Miller of the United States supreme court in Davidson vs. Board of Administration, New Orleans, 17 Ala., L. J., 223.)
"The peculiar necessities which call for the action of an officer, and whether the power was exercised in the same manner prior to the adoption of the constitution without being regarded as a violation of *Page 550 the principles of Magna Charta, may be considered; and if it be found that like proceedings have always been recognized as constitutional in England and this country, and if the person subjected to them is accorded every reasonable opportunity to defend his individual rights which the nature of the case will admit, the case being one in which the end sought to be obtained is lawful, — the statute cannot be said to deprive a party of the benefits of due process of law." (Judge Cooley, inEx parte Ah-Fook, 49 Cal., 406.)
It does not necessarily require a trial by jury except in regular common law proceedings. (Walker vs. Sauvinet,92 U.S. 90; Reagh vs. Spann, 3 Stewart, Ala., 108; In re Curry, 1 N.Y., Civ. Proc., 319; Church vs. Kelsey, 7 S.C. Rep., 897; Donahuevs. Co. of Will, 100 Ill., 94; Hilton vs. Merritt,110 U.S. 97; People vs. Haws, 37 Barb., N.Y., 440; In re J. W. French, 13 Fed. Rep., 924; Risser vs. Hoyt, 53 Mich., 231.)
So of art. 7 of amendments to the constitution. The constitutional guaranty in the various states, of the right to trial by jury, shall be preserved and shall remain inviolate, refers to the right as it existed at the time of the adoption of the constitution.
That amendment provides that "In suits at common law, when the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," etc. That declaration provides that the right of trial by jury shall be preserved, that is, kept just as it was at the time of the adoption of art. 7 of amendments. This provision does not extend, but preserves the right of trial by jury. Cases to which it was not then applicable, are still exempt from its application.
The provision is also made in such terms as to justify the view that it was intended to apply solely to the ascertainment of the amount or value in controversy, and for which judgment should be entered up, and not to the method of enforcing the judgment of *Page 551 the court, and to the means within the power of the court to compel compliance with its orders. Such methods of procedure for enforcing compliance with the orders of the court are within the power of the legislature of the various states, and the proceeding for arrest and bail herein referred to is among these means.
"Due process of law" carries with it, therefore, the right of trial by jury, when trial by jury has been the usual course of administration in the particular class of cases through courts of justice to which the one in question belongs. What was, at the time of the adoption of the constitution of the United States, the usual course of administration through courts of justice, was grafted into that instrument under the name of "due process of law." That term carries with it the right of trial by jury in all cases in which trial by jury was a part of the usual course of administration through courts of justice at the time the constitution was adopted. It does not give the right of trial by jury in cases in which it did not exist at that time. It does not give it in the large fields of equitable and admiralty jurisdiction. It does not take away from the courts the power to punish contempts summarily, without the intervention of a jury, as it existed at the time of the adoption of the constitution.
At the time of the adoption of the constitution, in proceedings in chancery, if the debtor was ordered to deliver goods or property and refused to do so, he was adjudged guilty of contumacy, and was, in aid of, and to enforce the order of the court, subject to arrest, and imprisonment until he obeyed the order. The order was made, not as a punishment for guilt or crime, but as a means within the power of the court to compel obedience to its decrees. The order was made only when the debtor was found to have property, and the court found it within his power to obey *Page 552 the order. The proceedings in aid of execution, and the proceedings of arrest and bail provided for in ch. 66, art. 9, code of civil procedure, Arrest and Bail, are substitutes for the former power of the court to enforce compliance with its decrees in such chancery proceedings, and nothing more.
They take nothing away from the rights of the judgment debtor as those rights existed at the time of the adoption of the constitution, as is abundantly shown by the authorities hereinafter cited.
The guarantees relied upon by the plaintiff in error are interpreted by the great preponderance of authority in the courts, as leaving the rights of creditors and debtors unimpaired. As the right to compel the production and delivery of property or money not exempt from execution, found in the ownership or control of the debtor at the time of execution levied by arrest and imprisonment existing at the time of the adoption of the constitution, so it exists now under the proceedings in this case. It is now and was then a method of coercion adopted against the debtor who wilfully disobeys the order of the court. It is no greater and no less, but the same "due process of law" guaranteed by the constitution. When the property or money is delivered in obedience to the order of the court, or the court is satisfied that the plaintiff in error is incapable of obeying the order to deliver, it will be its duty to order his discharge.
But in refusing, at the hearing, to discharge the order of arrest which has been declared upon as error, the court affirmed the statements of the affidavit of arrest, including the statement that the defendant has property which he fraudulently conceals. A finding of fact by the probate court will not be reversed or its correctness called in question here, if the evidence appears to support its finding and that court having found it sufficient. *Page 553
The legislature may designate the cases in which the court may punish summarily. The right of trial by jury is just that right as it existed at the time of the adoption of the constitution, and at that time it was not the right of the judgment debtor to have a trial by jury, under proceedings in chancery, to enforce obedience to the orders of the court, when the court found from the facts that obedience was possible. And it is not now his right under the proceedings in this case in which the plaintiff in error has been personally arrested in order to compel him to pay money which the court below found to be in his ownership and control, and which he has refused to do, to demand a trial by jury. If it had been his right, he has waived it by going to trial before the probate judge without demanding a jury. (In re Oldham, 89, N.C. 23; State vs.McClaugherty, 10, S.E. Rep. 407; In re Burrows, 7 Pac. Rep. Kan., 148; Kimball vs. Conner, 3 Kan. 414; Kearney's Case, 13 Abb. Pr. 459; Ex parte Cohn, 55 Cal. 204; Ex parte Smith,53 Cal. 195; State vs. Burrows, 33 Kan. 10; Murphy vs. People, 2 Cow. N.Y., 815, 11 Nev. 39.
The appeal is dismissed and the judgment below affirmed.
All the Justices concurring.