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11. If the defendant is found, the constable serves the summons by reading it; and if the defendant requests it, the constable must give him a copy of it. If he is not found, a'copy must be left at his place of abode. The constable returns the summons to the justice, at or before the time named for trial, with an indorsement on the back of it, stating the time it was served, and also, whether personally served, or served by copy.
12. Either party may appear in person, or by attorney, that is, another person appointed to answer and act for him. Parties who are minors, must always have a next friend, or a guardian, to act for them. When parties have appeared and answered to their names, they make their pleadings; that is, the plaintiff declares for what he brings his suit; and the defendant declares the nature of what he has to offset against the plaintiff's demand; or he pleads that he is not indebted to him. These acts of the parties are called joining issue. The pleadings may be either verbal, (by word,) or written.
13. A defendant cannot offset any demand which he may buy, or in any other way get against a plaintiff, after the suit has been commenced. And a defendant must, on joining issue, plead, or give notice of a set-off, specifying the nature of his claim, or he will not be entitled to a setoff; and if he neglects to offset his claim, he can never thereafter recover such demand by law, without paying his own cost. There are certain demands which need not be thus offset.
14. If the demands of the parties are unequal, the justice enters judgment against the party owing, for the amount due the other, with the costs of suit. Judgment is what is adjudged to be due from the one to the other, and always includes the costs, which consist of the fees of the justice, constable, and witnesses. If nothing is found to be due the plaintiff, judgment is entered against him for the costs.
15. At the time of joining issue, the justice may, at the
11. How is a summons served? How returned to the justice? 12. How do parties
r? What are pleadings? What is joining issue ? 13. What is said about set-off? 14. Against which party is judgment entered ? 15. In what cases, and for how long a time, may a suit bo
request of either party, adjourn, or put over the trial, not exceeding twenty days; but if required, the party wishing the adjournment must make oath that he cannot, for the want of some material witness, safely proceed to trial. If such witness be out of the county, the party wanting him may have an adjournment for ninety days.
16. A man's own word is not taken as proof in his favor in a court of justice : he cannot establish a fact without witnesses. The justice, therefore, on the request of either party, issues a subpæna, which is a writing commanding persons to appear and give evidence on the trial; but a subpena can only compel the attendance of witnesses being in the same county. A subpæna may be served by a constable, or any other person, who must pay, if demanded by the witness, the fee allowed by law, which is fifty cents, or the witness is not obliged to attend.
17. If a person duly subpænaed does not appear, the justice may issue an attachment, commanding the constable to bring the witness, who must pay the fees of both the justice and the constable, unless he shall show reasonable cause for not attending. And a witness who, without a reasonable excuse, does not appear, or appearing, refuses to testify, may be fined by the justice not exceeding eight dollars, for the use of the poor; and he is liable, also, to pay all damage sustained by the party in whose behalf he was subpænaed.
18. At the time of trial, the justice proceeds to try the issue. The witnesses are worn to testify truly to what they know; and after hearing the proof on both sides, the justice decides according to law and equity, as the right of the case may appear. If a defendant does not appear at the time of trial, the justice may hear the proofs and alle. gations of the plaintiff, and determine the case according to what shall be made to appear by that party alone.
adjourned ? 16. What is a subpæna ? Its effect? By whom served ? What must be offered or paid a witness ? 17. If a witness does not appear, what may be done? In what cases may he be fined and imprisoned? To what is he farther liable? 18. How does the justice proceed and try the issue ?
Trial by Juries ; Collection of Judgments ; Appeals, fc.
1. One of the most valuable privileges enjoyed by the people of this country, is the right of trial by jury. It may so happen that a suit is brought before a justice who is not well informed in matters of law; or he may be supposed to entertain feelings of partiality towards one of the parties; or it may
be suspected that he is not an honest man. Therefore, it is not always safe to submit a cause to a justice for decision. And that all may have the means of obtaining justice, the constitution secures to every person the privilege of having a jury to try any cause to which he is a party. (Art. 8, sec. 8.)
2. A jųry is a number of men who sit on a trial, and are sworn to try a matter of fact, and to declare the truth according to evidence. This declaring of the truth is called verdict, which means a true saying: A jury in a justice's court consists of six men, all of whom must agree in their verdict. It is therefore presumed, that when so many men are all of one opinion, their verdict is correct.
3. The manner of obtaining a jury is as follows :-At any time after issue is joined, and before any testimony is heard, either party may demand of the justice that the cause be tried by a jury. The justice then makes a list of the names of eighteen freeholders, residents of the township; from which list the defendant first strikes one, and the plaintiff one, until twelve are stricken off. The justice then issues a venire, which is a precept commanding a constable to summon the men whose names remain to appear before the justice, to make a jury to try the cause between the parties named in the venire.
4. After hearing the proofs and allegations of the parties, the jurors are put under the charge of a constable, who is sworn to keep them in some convenient place till they agree
1. Why is the right of trial by jury a great privilege? 2. What is a jury? A verdict ? 3. How is a jury obtained ? What is a venire ? 4. After hearing proof, &c., what is done with the jury? 5. If jurors
on their verdict, or till discharged by the justice. Nor shall the constable allow any person to speak to them during such time, nor speak to them himself, except by order of the justice, unless to ask them whether they have agreed on their verdict.
5. When jurors have agreed on their verdict, they publicly deliver it to the justice, who enters it on his docket. If the jurors do not all agree after having been out a reasonable time, the justice may discharge them; and he shall then issue a new venire, unless the parties consent that the justice may render judgment on the evidence. Persons summoned as jurors may be fined in the same manner as witnesses, for not appearing, or for refusing to serve.
6. Any person owing another and wishing to avoid paying the cost of a suit at law, may confess judgment. This is done by going before a justice, and stating the amount of the debt due to the plaintiff
, and his consent that the justice enter judgment accordingly.
7. When a plaintiff discontinues or withdraws his action; or if he fails to appear within a reasonable time after the hour appointed for the suit to commence; or if he become non-suited on the trial ; in either case the justice renders judgment of non-suit, with costs, against the plaintiff. And when a trial is had, and it is found by verdict, or if the justice decides, that the plaintiff has no cause of action against the defendant, judgment with costs is rendered against the plaintiff.
8. After a judgment has been rendered, it must be carried into effect; that is, the debt or damage, with the costs, must be collected. This is done by a constable. The instrument giving him authority, is called an execution, and issued by the justice immediately after the judgment is rendered, if the judgment be not paid. The person against whom the judgment is rendered, may, however, by giving bail, put off or stay the issuing of the execution for sixty days, if the judgment does not exceed $5; if the judgment is over $5 and under $20, the stay may be for ninety days; if for $20
agree, what? If
do not agree, what? 6. How is a judgment confessed? 7. In what cases is judgment rendered against a plaintiff? 8 What is an execution ? How soon may an execution be issued ? 9
and under $50, one hundred and fifty days; if for $50 or upwards, two hundred and forty days.
9. The execution is directed to any constable of the town. ship, and commands him to take and sell the goods and chattels of the debtor, and to bring the money for the debt and costs to the justice within thirty days.
If no property can be found, the constable returns the execution to the justice, not satisfied.
10. A justice of the peace cannot issue an execution against real estate, but only against the personal property of a debtor. And there are sundry articles of personal property which poor men are allowed to retain for the use and comfort of their families.
11. If a constable, through negligence, shall fail to collect a judgment as required by the execution, or shall fail to return the execution within the thirty days mentioned, he is liable himself to pay the amount of the judgment. And if he is not able to pay it, his surety is liable ; for every constable is required to give a bond, with surety, for the faithful performance of his duties.
12. Such is a description of the proceedings of a justice's court, in ordinary cases. But there are many things connected with the business of this court which must be learned from other books, and from observation. There are also other processes than a summons, which a justice issues for bringing persons to trial. One of these is a warrant, in which a constable is commanded forthwith to bring the defendant before the justice. But this cannot be done in ordinary cases of debt.
13. Another process issued by justices, is an attachment. This becomes necessary when a debtor cannot be reached by a summons. To get an attachment, a plaintiff goes before a justice, and makes affidavit; (a written declaration, sworn to,) that the debtor absconds, to the injury of the creditor ; or that the creditor believes the debtor is not a
What does an execution command? If no personal property is found, what? 10. Is all personal property liable? 11. When does a constable become liable? 12. What is the nature of a warrant? 13. In what case is an attachment issued ? How is it obtained? 14. How is an