Dissenting in Part. — I heartily concur in the able opinion of Mr. Chief Justice Burnett on what might be termed the main question in the case, to the effect that the statute upon which this litigation is based is not unconstitutional, and does not infringe upon the federal law. I am unable to give my assent to the proposition that the action is cognizable only as a suit in equity for the foreclosure of a lien. I am constrained to mention this for the reason that for more than thirty years it has been the unquestioned practice in causes arising under Section 10281 et seq., Or. L., in so far as I am able to ascertain, to try .the cause as an action at law: The Victoricm, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838); The Victorian No. Two, 26 Or. 194 (41 Pac. 1103, 46 Am. St. Rep. 616). When those causes were tried the distinction between an action at law and a suit in equity was at least as broad as it is to-day. Eminent counsel appeared for the parties in those cases. We note on the record the names of Messrs. Bronaugh, McArthur, Fenton and Bronaugh; *662Messrs. Cox, Cotton, Teal and Minor; and Messrs. "Williams, Wood and Lintliicum. See also Benbow v. The James Johns, 56 Or. 554 (108 Pac. 634).
The Oregon statute was construed in “The Bee,” 216 Fed. 709, by Judge Bean, who was for a long time a member of this court. It is there stated:
_ “The remedy provided by the state law for enforcing the lien given by the statute is an action against the boat or vessel by name, rather than in personam against the owner (Section 7506, Lord’s Or. Laws), but after the seizure of the vessel and the return of the warrant the proceedings are to be had against the vessel in the same manner as if the action had been commenced against the person on whose account the damages accrued (Section 7509). And if an issue of fact be joined the same proceedings shall be had as in other actions. Section 7511. This being so it would seem to follow that the trial should be governed and the liability of the parties determined by the same rule as if the action were in personam against the owner; * # ”
This language indicates that it is also understood by the federal courts in Oregon that a proceeding under the statute in question is an action at law.
As indicated by Section 10281, Or. L., which declares :
“Every boat or vessel used in navigating the water of this state or constructed in this state shall be liable and subject to a lien: * * for damages or injuries done to persons or property, by such boat or vessel, * * .”
it would seem to the writer that, strictly speaking, while the boat is subject to a lien there is no definite or fixed amount of the lien until judgment therefor is rendered, so that when the lien is finally perfected it is merged in a judgment, and is not required to be *663foreclosed within the meaning of Section 422, Or. L., It does not appear that in the enactment of the latter section it was the intention of the lawmakers to change the mode of procedure under the boat lien law. The law provides for a special proceeding, but it is denominated by the statute as an “ action. ’ ’ The case at bar does not come within the ordinary list of causes of equitable cognizance. It was appropriately tried as a law action. It would be a very radical change for this court to try a damage case for personal injuries de novo.
It is presumed that the legislature does not intend to make unnecessary changes in the pre-existing body of law. The construction of a statute will therefore be such as to avoid any change in the prior laws beyond what is necessary to effect the specific purpose of the act in question: Black on Interp. of Laws, p. 110, § 52; Manuel v. Manuel, 13 Ohio St. 458; Bear’s Admr. v. Bear, 33 Pa. St. 525; Thompson v. Mylne, 4 La. Ann. 206; Childers v. Johnson, 6 La. Ann. 634. We quote from Maxwell, Interp. (3 ed.), 96:
“One of these presumptions is that the legislature does not intend to make any change in the law beyond what it explicitly declares, either in express terms or by unmistakable implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they are not really used.”
*664If it be granted that the canse is a snit in equity, I see no reason why it should not be tried de novo in this court.
As to the amendment of the complaint, as I understand the record, the complaint was first typewritten, alleging damages in the sum of “($2800) twenty-eight hundred dollars, and will necessarily incur an expense of ninety-nine ($99) dollars in endeavoring to cure himself from said injury.” Afterwards a pen was drawn through the figures “$2800” and “7500” written over the same. At the time of the submission of the cause to the jury, after the instructions had been given by the court, in order to make the allegation of damages clear, plaintiff was permitted to correct the complaint to conform the written portion of the paragraph to the figures. The so-called amendment was a mere correction of an apparent clerical error, and in no way affected the issues. This was over the objection of claimant.
Section 102, Or. L., provides that the court may, at any time in the furtherance of justice and upon such terms as may be proper before the cause is submitted, allow any pleading or proceeding to be amended “by striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved.”
An application to amend a pleading at the trial is addressed to the sound discretion of the trial court, and the ruling of the court in such a matter should not be disturbed, except in the case of an abuse of discretion: Brown v. Feldwert, 46 Or. 363 (80 Pac. *665414); Wallace v. Baisley, 22 Or. 572 (30 Pac. 432); Garrison v. Goodale, 23 Or. 307 (31 Pac. 709); Filkins v. Portland Lbr. Co., 71 Or. 249 (142 Pac. 578); Heywood v. Doernbecker, 48 Or. 359 (86 Pac. 357, 87 Pac. 530); Ridings v. Marion Co., 50 Or. 30 (91 Pac. 22); Beard v. Royal Neighbors, 60 Or. 41 (118 Pac. 171).
The trial court is in a better position than is the appellate court, to decide in regard to whether or not the circumstances warrant the allowance of an amendment of a pleading in order that the ends of justice may be met. There had been no application for the removal of the cause to the federal court. I do not think there was any abuse of discretion in allowing the amendment.
The service of process upon the Bee Steamship Company, a corporation, the owner of the vessel, being only a constructive service, the owner appeared for the boat and answered the complaint, and asked for judgment in its favor for costs and disbursements. It made a general appearance in the case, and is bound by the judgment. Where an undertaking is given for the discharge of a boat, under the provisions of Section 10289, in a proceeding of this kind, as was done in the present case, the manner of rendering and executing judgment is directed by Section 10292, Or. L., which reads thus:
“If an undertaking with surety shall have been given according to Section 10289, and judgment shall have been rendered in favor of the plaintiff, a judgment shall also be rendered upon the undertaking, and execution shall be issued for the amount of judgment and costs in favor of the plaintiff, against the principal and security in such undertaking.”
Judgment was rendered against claimant and its surety, and the requirements of the latter section *666were followed in this ease. There was no error in so doing.
The judgment of the Circuit Court should be affirmed.