A resident of Buchanan Co. went | actual resident of such other county with his family to Clayton Co., to re- within the meaning of this section, side there temporarily while building it appearing that he was living and a school-house under a contract, with keeping house with his family during intention of returning to his former the time that he was performing his home when the work was completed. contract in the county where suit was Held, that he did not become a brought: Fitzgerald v. Arel, 16-712, resident of Clayton Co. so as to give and on rehearing, 18 N. W. Rep., a justice of the peace of that county 713. jurisdiction in an action against him: Bradley v. Fraser, 54-289.

The fact that the defendant has a domicile in another county than that in which suit is brought does not prove that he is an actual resident of such other county; therefore, held, that a contractor upon a railroad who had resided in another county for seven years and was absent from that county only for the purpose of constructing such railroad and expected to return to that county as soon as the job upon which he was at work should be completed, was not an

SEC. 3508.

Where suit is brought before a justice of the peace against two persons jointly, as partners, and one of such partners is resident of another county, the justice of the peace acquires no jurisdiction as to such partner by service upon him in the county of his residence. The justice may acquire jurisdiction to render judgment against the firm upon service upon the resident partner, but not as to the non-resident, partner individually: Ebersole v. More, 59663.

A clause in a note giving a justice | thereon to the amount of three of the peace jurisdiction in an action hundred dollars, will entitle plaintiff

and the excess may be remitted: Reed v. Shum, 19 N. W. Rep., 254.

The amount of the attorney's fee provided for in the note is not to be taken into consideration in determining the amount in controversy, the attorney's fee being part of the costs: Spiesberger v. Thomas, 59606.

In determining the amount in controversy it is not proper to add together the amounts of the original claim and of a counter claim: Madison v. Spitsnogle, 58-369.

A justice has no equitable jurisdiction. Therefore, held, that where an action was brought before a justice upon a note, blank as to amount, the plaintiff could not, on appeal to the circuit court, ask a reformation of the note and judg ment thereon as reformed, for the reason that he thereby sought to introduce an equitable cause of action which could not be tried before a justice: Hollen v. Davis, 59–444.

900.

Although the justice from whom | by name the next justice to whom the change is taken commit an error the case is sent. This is a judicial in sending the case to a justice who determination and in no other way is not the nearest one in the county can it be known who is the proper to whom it might be sent, yet the justice to whom the case has been justice to whom the case is thus sent transferred. Until the justice does cannot review such decision, and will determine and designate such nearest have jurisdiction, and his action can- justice the change of venue is not not be collaterally attacked: Tennis complete and no other justice can v. Anderson, 55-625. acquire jurisdiction: Bremner v. Hallowell, 59-433.

It is necessary that the justice granting a change shall designate

The filing of the transcript in the | taking of appeal or writ of error: circuit court does not prevent the | Wilson v. Robinson, 61–357.

SEC. 3568.

Execution on the judgment so filed may be issued at any time

SEC. 3569.

within twenty years: McCoy v. Cox, 54-595.

This section, in so far as it extends ble to cases in which the time allowed the time within which an execution under the Revision had not expired may issue upon a judgment of a when this Code was enacted, but not justice of the peace beyond that al- to cases where such time had exlowed under the Revision, is applica-pired: Woods v. Haviland, 59-476.

SEC. 3574.

A sale after the expiration of the execution under which levy is made, and without renewal as here con

SEC. 3575.

Where the defendant makes a tender which is not accepted, the amount in controversy is the difference between the amount claimed and the amount tendered, and if that does not exceed twenty-five dollars, no appeal is allowed: Young v. McWaid, 57-101.

templated, will be valid: Walton v. Wray, 54-531.

In determining the amount in controversy under this section the costs taxed up by the justice of the peace will not be taken into consideration: Curran v. Excelsior Coal Co., 18 N. W. Rep., 698.

Where plaintiff claimed less than twenty-five dollars in his account, and defendant set up, not by way of counter claim, but as a defense, the payment of more than twenty-five dollars to plaintiff on the indebted

The amendment to this section limiting the right of appeal to cases in which the amount in controversy exceeds $25, is not unconstitutional as depriving the party of a trial be-ness, held, that the amount in confore a common law jury in such cases. The constitution authorizes the legislature to provide for trial by jury of less than twelve, in inferior courts, irrespective of the right of appeal: Higgins v. Farmers' Ins. Co., 60-50.

SEC. 3576.

An appeal taken after the lapse of twenty days is in effect no appeal, and the case should be stricken from the docket of the circuit court. In

troversy was what was claimed and not what defendant alleged that he had paid: Boyle v. Wilcox, 59–466.

A party cannot appeal from a judgment entered before a justice of the peace by his consent: Stever v. Heald, 17 N. W. Rep., 145.

908.

such case the court has no jurisdiction to render any judgment except for costs: Martin v. Croker, 17 N. W. Rep., 533.

Where, on appeal by defendant | affirmed without again introducing from a judgment by default against the evidence: Harty v. D. M. & M. him before the justice. he makes no R. Co., 54-327. appearance, the judgment may be

servance of their duties in this respect: State v. Graham, 17 N. W. Rep., 192.

A defendant in a criminal prosecution who becomes a witness in his own behalf may be subjected to the same tests of credibility, of memory and of intelligence, by cross-exam-lieve ination, as any other witness: The State v. Red, 53-69.

If the defendant requests to become a witness, the fact that he testifies to a part only of his defense may properly be made a subject of comment by the district attorney. The exemption from unfavorable comment extends only to such defendants as choose to avail themselves of the privilege of not testifying in their own behalf: State v. Tatman, 59-471.

There is nothing which the pros ecuting attorney can say about the fact that defendant has not testified in his own behalf that would justify a reference to it, and courts should hold district attorneys to a strict ob

SEC. 3837.

The fact that a witness does not bein a God, and that He will reward or punish us according to our deserts, may be shown as affecting the credibility of the witness, but it is erroneous to confine the evidence to a belief in future rewards and punishments. The facts as to belief are not to be brought out by crossexamination, but by proof of declarations, etc., etc.: Searcy v. Miller, 57-613.

A witness cannot be required to testify to his want of belief in any religious tenet nor to divulge his opinions on matters of religious faith for the purpose of affecting his credibility by showing that he does not believe in a future conscious state of existence: Dedric v. Hopson, 17 N. W. Rep., 772.

918.

The rules relating to the admissibility of evidence showing the interest of a witness, are the same at common law and under the statute. The difference is that at common law the court passes upon the evidence, and if the interest be established, excludes the testimony, while under the stat ute the evidence of interest goes to

the jury to be weighed in determining the credibility. Evidence as to declarations of a witness to the effect that he is interested is not admissible at common law to affect his competency, nor under the statute to atfect his credibilty: Erickson v. Bell, 53-627.