Summens how

SEC. 11. The summons must be returnable not more Must be served than twelve days from its date, and must be served at least

returnable.

three days before

appearance. three days before the time of appearance, as follows:

Summons agains corporation how served.

insurance companies.

1. By delivering a copy of the summons with the indorsement thereon, (certified by the constable or person serving the same to be a true copy,) to the defendant, or leaving the same at his usual place of residence or business, with some person over ten years of age, residing or staying thereat, to whom the contents shall be explained.

2. An acknowledgment on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.

SEC. 12. A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or if none of these shall be found in the county, upon the cashier, treasurer, secretary, clerk or agent; or if none of the aforesaid officers can be found, by a copy left at an office or usual place of business of such corporation, with the person having charge thereof.

How served on SEC. 13. When the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency, and when the defendant is a foreign corporation, having an agent in this territory, the service may be upon such agent.

How served upon minors.

Service by persons not an officer

SEC. 14. When the defendant is a minor more than fourteen years of age, service upon him alone shall be sufficient, the manner of service may be the same as in the case of adults.

SEC. 15. Every justice issuing any process authorized by this act, upon being satisfied that such process will not be executed for want of an officer to be had in time to execute the same, may empower any suitable person not being a party to the suit to execute the same by an indorsement on the process to the following effect. "At the request and risk of the plaintiff, I authorize A. B. to execute and return this

writ. E. F. justice of the peace.' And the person so empowered shall thereupon possess all the authority of a constable in relation to the execution of such process, and shall be subject to the same obligation, and shall receive the same fees for his services.

Joint defendants, how Pro

SEC. 16. Where an action is against two or more defendants, and one or more shall have been served but not all of ceeded against. them, the plaintiff may proceed as follows:

First, If the action be against defendants jointly indebted upon contract, he may proceed against the defendants served unless the justice otherwise direct, and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served; and if they are subject to arrest, against the persons of the defendants served.

Second, If the action be against defendants severally liable, he may without prejudice to his rights against these not served, proceed against the defendants served in the same manner as if they were the only defendants. Nothing in this act shall be so construed as to make a judgment. against one or more defendants jointly or severally liable a bar to another action against those not served.

TITLE III.

Appearance and Pleadings.

One hour in

SEC. 17. The parties are entitled to one hour in which to appear after the time mentioned in the summons for which to appear appearance, but are not bound to remain longer than that time, unless both parties have appeared, and the justice being present, engaged in the trial of another cause. such case the justice may postpone the time of appearance until the close of such trial.

In

Pleadings oral

SEC. 18. Pleadings in justice's court may be oral or in writing at the election of parties; if oral, the substance of or in writing. them must be entered by the justice in his docket, if in writing, they must be filed in his office and reference to

Items of account.

Continuance

costs.

them made in his docket; if a written instrument be the the ground of action or defense, it shall be filed as a part of the pleadings, if they are oral. If the action or defense shall be a matter of account, a bill of items shall be filed at the time of joining issue, and no evidence shall be allowed of other items of account than those filed, unless leave to amend shall be granted, which amendments may be allowed by the court in furtherance of justice, unless such amendment shall introduce such new matter as shall in the opinion of the court work a surprise to the opposite party, in which case such amendment shall not be allowed unless the party asking to amend shall consent to an adjournment, and pay the cost incident thereto. To prove the surprise, the oath of the party or his agent shall be required in cases of doubt by the court.

SEC. 19. Whether the instrument in writing or items of account be relied upon by the defendant as a defense, or counter claim, it shall be sufficient to file them with the justice stating the amount claimed thereon, and the court or jury shall proceed and try the matters of difference between the parties without further form of issue.

SEC. 20. When the pleadings of the parties shall have and adjournment taken place, a continuance for seven days as a matter of course may be allowed if either party desire, but the justice. shall upon the application of either party, if sufficient cause be shown upon oath, adjourn the cause for any time not exceeding thirty days, without costs except one dollar cach for justice and constable. If the application be made on au adjourned day for a continuance, the costs of summoning and attendance of witnesses shall be paid by the party seeking the continuance, if the court shall so order.

Title to land- in question.

turned to di. trict court.

SEC. 21. If it appear, on the trial of any cause before Proceedings a justice of the peace, from the evidence of either party, that the title to land or boundaries shall be disputed or brought in question by the other party by pleading or evidence, the the justice shall immediately make an entry thereof in his docket, and cease all further proceedings in the cause, and

shall certify and return to the district court of the county a transcript of all the entries made in his docket relating to the case, together with all the processes and other papers relating to the suit, in the same manner, and within the same time as upon an appeal; and thereupon the district court shall proceed in the cause to find judgment and execution, the same as if the said suit had been originally commenced therein, and the costs shall abide the event of the suit.

TITLE IV.

Set Offs.

SEC. 22. The defendant may set off against the claim of the plaintiff, when such claim arises out of any form of contract, any demand arising between, or existing between all the parties to the action when the same was commenced, when such demand shall arise upon a judgment or upon a contract express or implied, written or unwritten, sealed or without seal, liquidated or unliquidated, if capable of liquidation by calculation, and if the set-off be founded upon a bond, with penalty, the amount equitably due thereon to be set-off.

Offsets.

Actions in name of real par

Assignees,

SEC. 23. All actions must be brought in the name of the real party in interest, and when the action is in the ty in interest. name of the assignee and is founded upon any contract other than a promissory note or bill of exchange transferred before due, any demand against the assignor belonging to the defendant, in good faith before notice of such assignment may be set off against the plaintiff if the demand be such that it might be set off while the claim belonged to the assignor.

SEC. 24. If the suit shall be in the name of a trustee or other person in a representative capacity for the use of a cestui que trust or other party in interest, which action shall be allowed, notwithstanding the provisions of the preceding section, it shall be lawful for the defendant to set off any claim he may hold at the time said suit was commenced against those whom the plaintiff represents, if the same

"Cestui que

trust."

Judgmen:

how rendered in case of set off.

Where contract is signe i before Commencement

of suit.

might have been set off in an action brought by those beneficially interested.

SEC. 25. If the amount of the set off duly established, equals the plaintiff's debt or demand, judgment shall be entered that plaintiff take nothing by his action. If it be less than the plaintiff's debt or demand, the plaintiff shall have judgment for the residue only.

SEC. 26. If there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered for the defendant for the amount thereof; but no such judgment shall be rendered against the plaintiff where the contract which is the subject of the suit shall have been assigned before the commencement of such suit, nor for any balance due from any other person than the plaintiff in

the action.

Subparnas.

How served.

No fees in certain cases.

TITLE V.

Subpanaing Witnesses.

SEC. 27. Any justice of the peace may issue subpoenas to compel the attendance of witnesses to give evidence on any trial peading before himself, or for the purpose of taking depositions, or to perpetuate testimony.

SEC. 29. A subpoena may be served by a sheriff, coroner, constable, or any other person, and shall be served by reading the same or stating the contents thereof to the witness, or by leaving a copy thereof at his usual place of residence with some person belonging to the family of suitable age.

SEC. 30. When not served by an officer or some person deputed for the purpose by a justice of the peace, no fees shall be charged in the suit for serving it.

SEC. 31. If any witness having been subponed, attend party ordering and be not examined by either party, the costs of such

Costs paid by

witness shall be paid by the party ordering the subpoena, unless the adverse party confessing the matter or otherwise render unnecessary the examination of such witness.