« PreviousContinue »
title to same, ploaded.
TITLE 4. . $ 66. If the plaintiff's declaration in a suit before a justice, shall con
tain several counts, or causes of action, to one or more of which, a decounts, and fence of title to lands be interposed by the defendant, and he shall ten
der a plea, or a plea and notice, to such count, or cause of action, and deliver a bond as above provided, the justice shall discontinue proceedings for such cause of action, and the plaintiff may commence a suit in the common pleas therefor; and for the other causes of action, the justice may continue his proceedings.
68. Restrictions upon power of justice to adjourn.
79. In certain case, party requiring to exhibit his account, &c.
$ 67. At the time of the return of either a summons or attachment, may adjourn. or of joining issue without process, a justice may, in his discretion,
and with or without the consent of parties, adjourn the cause not ex
ceeding eight days.29 When be $ 68. A justice shall in no case adjourn a cause commenced by
warrant, on his own motion; nor shall he exercise that right in a suit commenced by summons or attachment, at any other time than on the
return of such summons or attachment. in S 69. At the time of the return of a summons or attachment, or the teft may huve joining of issue without process, the justice shall on the application of
sent. the plaintiff, adjourn the cause, to some time to be fixed by the justice,
not exceeding eight days thereafter. But such adjournment shall not be granted, unless the plaintiff or his attorney shall, if required by the defendant, make oath that he cannot, for want of some material testimony or witness, safely proceed to trial.30
S70. No adjournment of a cause commenced by warrant, issued warrants at the suit of a non-resident plaintiff, shall be allowed unless in the
1. On the consent of both parties : or,
2. On the application of the defendant, supported by his oath, that he has a good defence to the action, and that he is not ready to proceed to the trial thereof; and in such case, it shall not be granted, unless the defendant will consent that any witness on the part of the plain
(29) Laws of 1824, p. 291, 53 & 26. (80) Ib. 95 & 6.
may not ad journ.
In certain buits upon
when to be allowod.
tiff, who shall be then attending, may be then examined on oath by ART. 5. such justice, his testimony reduced to writing, certified by the justice, and left with him, to be read on the trial of the cause : or,
3. On the application of the plaintiff, supported by his oath, that on account of the absence of some material witness or testimony, he can not then safely proceed to the trial of the cause.31
S71. If a cause commenced by warrant, be adjourned upon the When deapplication of the defendant, he shall continue, during the time of ad- continue in journment, in the custody of the constable, unless he shall give the security herein after directed to be given, in cases of adjournment. 31
S 72. If such cause be adjourned on the consent of both parties, or when to be if it be adjourned on the application of the plaintiff, the defendant shall " be discharged from custody; but the cause shall not be discontinued by such discharge; and at the adjourned day, the same proceedings shall be bad, as on the return of a summons personally served.
$ 73. The first adjournment of a cause commenced by warrant, Time of ad. shall be to a day not less than three, nor more than twelve days there- jou after, unless the parties and justice shall otherwise agree. 31
$ 74. In all cases (other than where the suit shall have been com- Adjournment menced by warrant, at the suit of a non-resident plaintiff,) the cause by shall be adjourned on the application of the defendant, on his complying with the following requisitions :
1. The application must be made at the time of joining issue :
2. If required by the plaintiff or the justice, the defendant shall make oath that he can not safely proceed to trial, for the want of some material testimony or witness, to be specified by him:
3. If required by the plaintiff, he shall give security, as herein after directed :
Such adjournment shall be for such reasonable time, as will enable the defendant to procure such testimony or witness, not exceeding ninety days.31
$ 75. In all cases, a defendant shall also be entitled to a further ad- le further journment, upon giving security, if required, as is directed in the next adjourtiment. succeeding section, and upon proving, by his own oath or otherwise, to the satisfaction of the justice, that he can not safely proceed to trial, for want of some material testimony or witness, and that he has used due diligence to obtain such testimony or witness. 31
$76. The security required by any of the preceding sections to be form of given by a defendant, shall be a bond in the penalty of one hundred curity. dollars, to the plaintiff in the action, with such surety as the justice shall approve, conditioned, that in case judgment shall be given against such defendant at the adjourned day, or at any time thereafter, and execution be issued against his person, he will render himself upon
(31) Laws of 1824, p. 291, § 5 & 6.
sary to reco
TITLE 4. such execution, before the return thereof; or in default thereof, that
he or his surety will pay the judgment so recovered, with interest ; but if any bond shall have been given upon any prior adjournment, it shall not be necessary to execute a new bond upon a subsequent adjournment, unless such bond be required by the justice, or by the bail
of such defendant in such prior bond. Proof neces- S 77. In any suit brought upon such bond, the plaintiff shall not very thereon. be entitled to recover, unless he shows an execution upon a judgment
obtained in the suit in which such adjournment was had, duly issued, within ten days after the time when by law the same could be issued, against the person of the defendant, and a return thereon that such defendant could not be found.
S 78. No adjournment shall be allowed, without the agreement of exceed 90“ the parties, to a time beyond ninety days from the joining of the issue
in the suit.32 When party S 79. No adjournment shall be allowed in any case to a party ap
plying therefor, who shall have seen the account or demand of the opposite party, unless such applicant, if required, shall exhibit his account or demand, or state the nature thereof, as far forth as may be in his power, to the satisfaction of the justice. 32
Adjournments not to exceed 90 days.
to exhibit his account.
ces may issue subpanas.
81. Proof to be given before subpoena issued in a cause before another justice
90. Party refusing, &c. to obey subpæna, liable for damages. When justi- $ 80. Any justice of the peace may issue subpænas, to compel the subpoenas. ue attendance of witnesses to give evidence on any trial depending before
himself or any other justice. Such subpæna shall be valid to compel the attendance of a witness being in the same county where the cause
is to be tried, or being in an adjoining county; and in no other case. Ib. in a suit $81. A justice shall not issue any subpoena to compel the attendother justice. ance of-witnesses before another justice, in any suit, unless the person
applying shall prove, by his own oath, or the oath of some other per
son, that such suit is actually depending before such other justice. .::$ 82. A subpæna may be served, either by a constable, or any oth
er person; and it shall be served by reading the same, or stating the contents to the witness, and by paying or tendering the fees allowed by law for one day's attendance of such witness.33 .
(32) Laws of 1824, p. 291, 96. (33) Ib. § 11.
$83. Whenever it shall appear to the satisfaction of the justice, ART. 6. by proof made before him, that any person duly subpænaed to appear before him in any cause, shall have refused or neglected, without just against witcause, to attend as a witness, in conformity to such subpæna, and the party in whose behalf such witness shall have been subpænaed, shall make oath that the testimony of such witness is material, the justice shall have power to issue an attachment to compel the attendance of such witness.
$ 84. Every such attachment shall be executed in the same man- How cxecutner as a warrant, and the fees of the officers for issuing and serving the
ne Fees thereon. same, shall be paid by the person against whom the same shall have been issued, unless he shall shew reasonable cause to the satisfaction of the justice, for his omission to attend; in which case, the party requiring such attachment, shall pay all costs of such attachment and the service of the same.
$ 85. Every person duly subpænaed as a witness, who shall not Fine for reappear, or appearing, shall refuse to testify, shall forfeit, for the use pear or toalfy of the poor of the town, for every such non-appearance or refusal, (unless some reasonable cause or excuse shall be shewn on his oath or the oath of some other person,) such fine, not less than sixty-two cents, nor more than ten dollars, as the justice before whom prosecution therefor shall be had, shall think reasonable to impose. 84
86. Such fine may be imposed by the justice, if the witness be Finə how inpresent and have an opportunity of being heard against the imposition Pos thereof.34
S 87. The justice imposing any fine, shall make up and enter in Record of his docket, a minute of the conviction and of the cause thereof, and con the same shall be deemed a judgment, in all respects, at the suit of the overseers of the poor of the town.34
S 88. Upon the imposition of such fine, and in default of payment Execution to thereof, with costs, the justice shall forthwith issue an execution to collect any constable of the county, directing him to levy such fine, with costs, of the goods and chattels of the delinquent, and for want thereof, to take and convey him to the jail of the county, there to remain Imprisonuntil he shall pay such fine and costs; and the keeper of such jail is mondan hereby required to keep such delinquent in close custody, in such jail, until the fine and costs be paid; but such imprisonment shall not exceed thirty days.34
$89. When the money shall be collected on such execution, the Money colconstable shall return the same to the justice, and such justice shall applied pay over the amount of the fine imposed, to the overseers of the poor of the town, for the use of the poor. 34
ment of de
TITLE 4 S 90. Every person subpænaed as aforesaid, and neglecting or re
fusing to appear or testify, shall also be liable to the party in whose Liability for
behalf he shall have been subpænaed, for all damages which such
92. When to proceed ex parte on default of defendants.
112. Fine on jurors refusing to appear or to serve. When justice $ 91. Whenever issue shall have been joined in a suit before a to try issuer.
justice, if no jury shall have been demanded by either party, the justice shall proceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same, according to law and equity,
as the very right of the case may appear. When to pro $ 92. Whenever a defendant, who has been personally served with
a summons, or who shall have procured an adjournment, without having joined issue, shall neglect to appear and join issue, the justice shall proceed to hear the proofs and allegations of the plaintiff, and
determine the same as above prescribed. When jury $ 93. After issue joined, and before the justice shall proceed to an may be de
investigation of the merits of the cause, by an examination of a witness, or the bearing of any other testimony, either of the parties, or the attorney of either of them, may demand of the justice, that the cause be tried by a jury.35
S 94. Upon the demand of a trial by jury, the justice shall issue a venire directed to any constable of the county wherein the cause is to be tried, commanding him to summon twelve good and lawful men, in the town where such justice resides, qualified to serve as jurors, and not exempt from serving on juries in courts of record, who shall be in no wise of kin to the plaintiff or defendant, nor interested in such suit, to appear before such justice, at a time and place to be named therein, to make a jury for the trial of the action between the parties named in such venire.35
Vedire; its contents.
(35) Laws of 1924, p. 291, § 10.