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In what cases a warrant
justice assigned to the justice why the defendant does ceed in his not appear, then the said justice shall proceed
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 resiused.
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 gainst a freeholder.
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
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
when to be
due or de
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.
11. And be it enacted, That the said justice shall endorse the debt, damages, or sum de- The sum mandels with costs, on every summons or manded to warrant, which he shall issue hy virtue of this be endorsact; and if the defendant think proper to pay
ed on the
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
warrant, according to the effect and meaning of the following form ; that is to say,
county, to wit. Whereas, recognize A. B. hath been arrested and is now in custo
dy by virtue of a warrant issued by C. D. one
Now be it reinembered, that on the
in the year of our Lord one thousand the said A. B. and G. H. of the county aforesaid, personally appeared before me the said C. D. and jointly and severally acknowledget themselves to owe to the said E. F. the sum of
to be made and levied of their several goods and chattels, and in want thereof, of their bodies, upon condition, that if the said A. B. shall not be and appear on the
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
last abovesaid, before me C.D.
in and for the said county of Which is And every justice of the peace is hereby emto remain powered and directed to take such recognizjustice.
ance, which shall remain with such justice, for the benefit of the plaintiff in the suit.
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 reason shall be assigned to the justice, why the absence of defendant does not appear, then the said jus. defendant. tice shall proceed to hear and determine the
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
copy of his
account, rant, or at the time of appearance specified in or state of the recognizance, deliver, or cause to be de
mand, or livered 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.
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 warrant, or at the time of appearance men-pear, un
parties ap. tioned 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.]
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 ac mand against such plaintiff, he shall forever count shall thereafter be precluded from having or main-not recortaining 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
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 Justices surprize on either side, or on reasonable cause journ the 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
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 defend ant 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 be
fore a justice of the peace, to the decision of cause may 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.
20. And be it enacted, That in every action party may which shall be brought before any justice of demand a
the trial by peace by virtue of this act, it shall and
may be lawful for either of the parties, after the de.