may pro justice assigned to the justice why the defendant does ceed in his not appear, then the said justice shall proceed absence. to hear and determine the cause in the absence of such defendant. 8. And be it enacted, That the summons Summons, shall be used by virtue of this act, in cases cases to be where the defendants are freeholders and resi in what used. In what cases a warrant may be gainst a freeholder. dents in the county where such process shall be issued, and in cases where by law the defendants cannot be held to bail. 9. Provided always, and be it further enacted, That if any plaintiff, his attorney or agent, shall prove, on oath or affirmation, to the satisissued a faction of the justice, that if the process be by summons against such freeholder, the plaintiff will be in danger of losing his debt or demand, or doth really believe that such freeholder will abscond or depart, or remove from the county wherein he resides, before the day of return of such summons, then it shall be the duty of the said justice to issue a warrant against such freeholder. 10. And be it enacted, That the warrant, commanding the defendant to be arrested, may, Warrant, under this act, be used in all cases where the isqued. said defendant is not a freeholder residing in when to be such county, and can by law be held to bail, and shall be returnable forthwith after service thereof, and the constable serving said warrant, shall, according to the tenor thereof, forthwith convey the said defendant before the justice who issued the same, who shall thereupon, at his discretion, either cause the said defendant to enter into recognizance in the manner herein after mentioned, or, on neglect or refusal, shall command the said constable to convey the said defendant to the gaol of the county, to be there detained in custody, until time may be had for the hearing or trial of the cause, not exceeding three days from the time of the return of the said warrant, or such justice may direct the said constable to hold the said defendant in custody, until the plaintiff shall be notified and have time to appear and proceed to such hearing or trial; and the constable, who served the said warrant as aforesaid, shall, on the oath of his office, endorse thereon the execution of the same, and sign his name thereto. due or de ed on the 11. And be it enacted, That the said justice shall endorse the debt, damages, or sum de- The sum manded with costs, on every summons or manded to warrant, which he shall issue by virtue of this be endorsact; and if the defendant think proper to pay process. such debt, damages or demand, with costs so endorsed, without any further proceedings in the cause, then it shall be lawful for the constable to receive the same, and his receipt shall be a full discharge to such defendant from such debt, damages or demand, and costs, aforesaid; and if any constable shall not pay the money so by him received for such debt, damages, or demand, to the justice issuing such process, or to the plaintiff in the said process, or his legal representative, within eight days after he shall have received the same, then such constable shall be liable to pay to such plaintiff, or his legal representative, the amount of the said debt, damages or demand, with interest, to be recovered by action of trespass on the case, with costs. 12. And be it enacted, That the recognizance, directed in the tenth section of this act, shall be entered into by the defendant, with at least one surety, having sufficient freehold and residing in the county, to the plaintiff in the said action, in the amount of the demand specified in the ance, warrant, according to the effect and meaning of the following form; that is to say, Form of county, to wit. Whereas, recogniz A. B. hath been arrested and is now in custody by virtue of a warrant issued by C. D. one of the justices of the peace in and for the said county, at the suit of E. F. in an action of for the sum of membered, that on the Now be it re day of in the the year of our Lord one thousand day of next before the said justice, or if he does appear, and is condemned in the said action, at the suit of the plaintiff, that he shall pay the costs and condemnation money, or surrender himself up to the constable, on execution to be thereafter issued against him, on the day judgment shall be obtained, and if he fail so to do, that he the said G. H. will pay the said costs and condemnation money for him, and suffer judgment to be entered up against him for the same. Acknowledged the day and year last abovesaid, before me C. D. Which is And every justice of the peace is hereby emto remain powered and directed to take such recognizance, which shall remain with such justice, for the benefit of the plaintiff in the suit. with the justice. 13. And be it enacted, That if the defend ant does not appear at the time and place ex- When juspressed in such recognizance, and no sufficient tice may proceed in reason shall be assigned to the justice, why the absence of defendant does not appear, then the said justice shall proceed to hear and determine the cause in the absence of such defendant. defendant. copy of his 14. And be it enacted, That the plaintiff in Plaintiff to such suit shall, on or before the return day of deliver a the said summons, or on the return of the war- account, rant, or at the time of appearance specified in or state of the recognizance, deliver, or cause to be de- his delivered to the justice, before whom the action be nonis to be tried, a copy of his account, or state of suited. his demand against the defendant, and in default thereof, the said plaintiff shall be nonsuited with costs. mand, or try the 15. And be it enacted, That when the parties in any suit to be instituted by virtue of Justice to this act, shall appear at the place and time ex- cause pressed in the summons, or at the return of the when the parties ap warrant, or at the time of appearance men- pear, untioned in the recognizance, the said justice less he adshall proceed to hear and examine their respec- journs the tive allegations and proofs, unless he shall think it proper to adjourn the trial. [16. Repealed by the 12th section of the act of 29th November, 1809—and supplied by the 1st and 2d sections of said act.] same. er the 17. And be it enacted, That if any defendant Defendant neglect or refuse to plead and deliver as afore- neglectsaid, and give in evidence his account or de- off his acing to set mand against such plaintiff, he shall forever count shall thereafter be precluded from having or main- not recovtaining any action for such account or demand, same, unor from setting off the same in any future suit. less the -Provided always, That where the balance exceed found to be due to such defendant exceeds sixty dolthe sum of sixty dollars, then the said defendant shall not be precluded from recovering his balance lars. Justices journ the may ad. trial. agree, cause may be tried without account or demand against such plaintiff, in any other court of record having cognizance of the same. [See 1st section of act of 29th Nov. 1809.] 18. And be it enacted, That any justice of the peace, before whom a suit is instituted, by virtue of this act, may, to prevent fraud or surprize on either side, or on reasonable cause being assigned by or in behalf of either party, adjourn the trial to any time not exceeding fifteen days from the return day of the summons, or, if the process be by warrant, from the time when the same was returned, or from the time of appearance mentioned in the recognizance; except where the applicant for such adjournment shall make oath or affirmation, that he cannot safely go to trial for want of a material witness, whom he shall name, being absent and out of this state, and then such justice may postpone the trial to any time not exceeding three calendar months.-Provided, That if the process is by warrant, the defendant shall, previous to such adjournment, enter into recognizance to the plaintiff as in and by this act is before directed. [See 2d section of act of 29th Nov. 1809.] 19. And be it enacted, That where parties If parties agree to enter, without process, any action before a justice of the peace, to the decision of which he is competent, if process had been executed, such court shall proceed thereon to final judgment and execution, in the same manner as if a summons or warrant had been issued and duly served. process. Either 20. And be it enacted, That in every action party may which shall be brought before any justice of the peace by virtue of this act, it shall and may be lawful for either of the parties, after the de demand a trial by ury. |