postponement may be imposed, in the discretion of the court or referee, as a condition of granting the same.

SEC. 462. When, in action for the recovery of money only, the defendant alleges in his answer that, before the commencement of the action, he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court for plaintiff the amount so tendered, and the allegation be found to be true, the plaintiff shall not recover costs, but shall pay costs to the defendant.

SEC. 463. In an action prosecuted or defended by an executor, administrator, trustee of express trust, or person expressly authorized by statute, costs may be recovered as in an action by or against a person prosecuting or defending in his own right, but such costs shall, by the judgment, be made chargeable only upon the estate, fund, or party represented, unless the court shall direct the same to be paid by the plainiff or defendant, personally, for mismanagement or bad faith in the action or defense.

SEC. 464. When the decision of a court of inferior jurisdiction, in a special proceeding, is brought before a court of higher jurisdiction for a review, in any other way than by appeal, the same costs shall be allowed as in cases on appeal, and may be collected by execution, or in such manner as the court may direct, according to the nature of the case.

SEC. 465. The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court within two days after the verdict or decision of the court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum shall be verified by the oath of the party, or his attorney, stating that the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding.

SEC. 466. The clerk shall include, in the judgment entered up by him, the costs, per centage allowed, and any interest on the verdict from the time it was rendered.

SEC. 467. When the plaintiff in an action resides out of the territory, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff, may be required by the defendant. When required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of three hundred dollars. A new or an additional undertaking may be ordered by the court or judge, upon proof that the original undertaking is insuffi

cient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed.

SEC. 468. Each of the sureties on the undertaking mentioned above, shall annex to the same an affidavit that he is a resident within the county, and is worth double the amount specified in the undertaking, over and above all just debts and liabilities, exclusive of property exempt from execution.

SEC. 469. After the lapse of thirty days from the service of notice that security is required, or an order for new and additional security, upon proof thereof, and that no undertaking as required has been filed, the court may order the action to be dismissed.

TITLE XVI.

OF MOTIONS, ORDERS, SERVICE OF PAPERS, AND MISCELLANEOUS PROVISIONS.

SEC. 470. Motions, etc., defined.

471. Where to be made, notice of.

473. May be transferred.

474. Service of papers, how made.

476. When served by mail.

478. When defendant deemed to have appeared.

479. Service of, after appearance.

480. Successive actions on same contract.

481. When may be consolidated.

482. Action to settle adverse claim.

483. Register of action.

484. Referees, majority may act.

485. Time, how computed.

486. Paper without the title of the action.

SEC. 470. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.

SEC. 471. Motions shall be made in the county in which the action is brought, or in an adjoining county in the same district.

SEC. 472. When a written notice of a motion is necessary, it shall be given, if the court be held in the same district with both parties, five days before the time appointed for the hearing; otherwise ten days; but the court or judge, or probate judge, may prescribe a shorter time.

SEC. 473. When a notice of motion is given, or an order to show cause is made returnable before a judge out of court, and at the time fixed for the motion or on the return day of the order, the judge is unable to hear the parties, the matter may be transferred by his order to some other judge, before whom it might originally have been brought.

SEC. 474. Written notices and other papers, when required to be served on the party or attorney, shall be served in the manner prescribed in the next three sections, when not otherwise provided; but nothing in this title shall be applicable to original or final process, or any proceedings to bring a party into contempt.

SEC. 475. The service may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: First. If upon an attorney, it may be made during his absence from his office by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or if it be not open, so as to admit of such service, then by leaving them at the attorney's residence, with some person of suitable age and discretion; and if his residence be not known, then by putting the same, enclosed in an envelope, into the post office, directed to such attorney. Second. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of eight in the morning and six in the evening, with some person of suitable age and discretion; and if his residence be not known, by putting the same enclosed in an envelope, into the post office, directed to such party.

SEC. 476. Service by mail may be made where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail.

SEC. 477. In case of service by mail, the notice or other paper shall be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid; and in such case the time of service shall be increased one day for every twenty miles distance between the place of deposit and the place of the address.

SEC. 478. A defendant shall be deemed to appear in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. After appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceed

ings of which notice is required to be given. But where a defendant has not appeared, service of notice or paper need not be made upon him, unless he be imprisoned for want of bail.

SEC. 479. When a plaintiff or a defendant who has appeared resides out of the territory and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers, when required shall be upon the attorney, instead of the party, except in subpoenas or writs and other process issued in the suit, and of papers to bring him into contempt.

SEC. 480. Successive actions may be maintained upon the same contract or transaction, whenever, after the former action a new cause of action arise therefrom.

SEC. 481. Whenever two or more actions are pending at one time, between the same parties and in the same court, upon cause of action which might have been joined, the court may order the action to be consolidated into one.

SEC. 482. An action may be brought by one person against another for the purpose of determining an adverse claim which the latter makes against the former, for money or property, upon alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as security.

SEC. 483. The clerk shall keep among the records of the court two registers of actions; one for action at law and the other for proceedings at chancery. He shall enter in them, respectively, the title of the action, with brief notes under it, from time to time, of all papers filed and proceedings had

therein.

SEC. 484. When there are three referees or three arbitrators, all shall meet, but two of them may do any act which might be done by all.

SEC. 485. The time within which an act is to be done, as provided in this act, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.

SEC. 486. An affidavit, notice or other paper without the title of the action or proceeding in which it is made, or with a defective title, shall be as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding.

TITLE XVII.

OF PROCEEDINGS IN CIVIL CASES IN JUSTICES' COURTS.

CHAPTER I.

OF THE PARTIES, AND THE TIME AND PLACE OF COMMENCING ACTIONS IN JUSTICES' COURTS.

SEC. 487. The provisions of title one of this act, as to parties to actions, shall be applicable to actions of which a justice's court has jurisdiction.

SEC. 488. Parties in justices' courts may prosecute or defend in person or by attorney; and any person, on the request of a party, may act as his attorney, except that the constable by whom the summons or jury process was served shall not appear or act on the trial in behalf of either party.

SEC. 489. The jurisdiction of all justices of the peace shall be co-extensive with the limits of the county in which they are elected, and no other or greater, unless otherwise expressly provided by statute.

SEC. 490. Judgment upon confession may be entered up in any justices' court in this territory, specified in the confession. SEC. 491. Justices' courts shall have jurisdiction of an action upon the voluntary appearance of the parties without summons, without regard to their residences, or the place where the cause of action arose or the subject matter of the action may exist.

CHAPTER II.

SUMMONS, ARREST, ATTACHMENT, AND CLAIM OF PERSONAL PROPERTY.

SEC. 492. Action how commenced.

493. Guardian, how appointed.

494. Summons, form of.