Third. When the answer sets up a counterclaim by way of a set-off, the reply.

5 M. 368 (455).

$25. (SEC. 23.) Pleadings-oral and in writing. The pleadings may be oral, or in writing; if oral, the substance of them shall be entered by the justice in his docket; if in writing, they shall be filed in his office, and a reference to them made in his docket.

$ 26. (SEC. 24.) Complaint, what to contain. The complaint shall state, in a plain and direct manner, the facts constituting the cause of action.

$ 27. (SEC. 25.) Answer, what to contain. The answer shall contain a denial of all the material facts stated in the complaint which the defendant believes to be untrue, and also a statement, in a plain and direct manner, of any other facts constituting a defence or counterclaim, by way of set-off, upon which an action might be brought by the defendant against the plaintiff in a justice's court.

1 M. 186 (225).

§ 28. (SEC. 26.) Reply to counterclaim. When the answer contains a counterclaim, the plaintiff may reply, denying any of the material allegations relating thereto.

5 M. 368 (455).

$29. (SEC. 27.) Denial of knowledge or information. A statement in an answer or reply, that the party has not sufficient knowledge or information in respect to a particular allegation in the previous pleading of the adverse party to form a belief, is equivalent to a denial.

$30. (SEC. 28.) Actions, etc., on instrument for payment of money only-inspection of writings. When the cause of action or counterclaim arises upon an account or instrument for the payment of money only, it is sufficient for the party to deliver the account or instrument to the court, and to state that there is due to him thereon, from the adverse party, a specified sum which he claims to recover, or set off; the court may, at the time of pleading, require that such writing or account be exhibited to the inspection of the adverse party, with liberty to copy the same; or if not so exhibited, may prohibit its being afterward given in evidence.

17 M. 469; 21 M. 329.

$31. (SEC. 29.) Pleadings to be verified. Every complaint, answer or reply shall be verified by the oath of the party pleading, or if he is not present, by the oath of his agent or attorney, to the effect that he believes it to be true; the verification shall be oral or in writing, in conformity with the pleadings verified.

1 M. 186 (225).

$32. (SEC. 30.) Admission by failure to deny plaintiff to prove his case, when. Every material allegation in a complaint, or relating to a counterclaim in an answer, not denied by the pleading of the adverse party, shall, on the trial, be taken to be true, except that when a defendant, who has not been served with a copy of the complaint with the summons, fails to appear and answer, the plaintiff cannot recover without proving his case.

5 M. 368 (455).

$33. (SEC. 31.) Objections to pleadings. Either party may object to a pleading of his adversary, or to any part thereof, that it is not sufficiently explicit to enable him to understand it, or that it contains no cause of action or defence. If the court deems the objection well founded, it shall order the pleadings to be amended; and if the party refuses to amend, the defective pleading shall be disregarded.

$34. (SEC. 32.) Variances between pleading and proof. A variance between the evidence and the allegations in the pleadings shall be disregarded as immaterial, unless the court is satisfied that the adverse party is prejudiced thereby.

§ 35. (SEC. 33) Amendments. The pleadings may be amended at any time before the trial, or during the trial, to supply any deficiency or omission in the allegations, necessary to support the action or defence, If the amendment is made after the issue, and it appears to the satisfaction of the court that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment may be granted.

21 M. 329.

§ 36. (SEC. 34.) Adjournments-costs. When the pleadings are closed, the justice, on the application of either party, shall adjourn the case for not exceeding one week, or may, upon application upon oath, adjourn the case for any further time, not exceeding thirty days. (As amended 1872, c. 67, § 1.)

1 M. 78 (100); 3 M. 223 (317); 5 M. 221 (280); 22 M. 130.

$37. (SEC. 35.) Proceedings when title to real estate is involved. If it appears on the trial of any action before a justice of the peace, from the evidence of either party, that the title to real estate is involved, which title is disputed by the other party, the justice shall immediately make an entry thereof in his docket, and cease all other 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 process and other papers relating to the action, in the same manner, and within the same time, as upon an appeal; and thereupon the district court shall proceed in the cause to final judgment and execution, the same as if the action had been originally commenced therein.

8 M. 344 (387); 9 M. 28 (40); 18 M. 66.

§ 38. (SEC. 36.) Adjournments subsequent to the first. Every adjournment, after the first, shall be for such reasonable time as will enable the party to procure such absent testimony or witness as is necessary and material, which the party applying for the adjournment has not been able to procure by the use of proper diligence.

TITLE 4.

SET-OFFS.

$39. (SEC. 37.) Counterclaims. Counterclaims may be set off in the following cases: First. A demand arising upon a judgment, or contract express or implied; and if it is founded upon a bond or other contract having a penalty, the sum equitably due by virtue of the condition only shall be set off.

Second. It must be due to him in his own right, either as the original creditor or payee, or as the assignee and owner of the demand;

Third. It must be for real estate sold, or for personal property sold, or for money paid, or services done; or if it is not such a demand, the amount must be liquidated, or be capable of being liquidated by calculation;

Fourth It must exist at the time of the commencement of the action, and then belong to the defendant;

Fifth. It can only be allowed in actions founded upon demands which could themselves be the subject of set-off;

Sixth. If there are several defendants, the demands set off must be due to all of them jointly;

Seventh. It must be a demand existing against the plaintiff, unless the action is brought in the name of a plaintiff who has no real interest in the contract upon which the action is founded, in which case no set-off of a demand against the plaintiff shall be allowed, except as hereinafter specified;

Eighth. If the action is founded upon a contract, other than a negotiable promissory note or a bill of exchange, which has been assigned by the plaintiff, à demand against such plaintiff or any assignee of such contract, existing at the time of assignment thereof, and belonging to the defendant in good faith before notice of such assignment, may be set off, to the amount of the plaintiff's demand, if the demand is such as might have been set-off against such plaintiff or assignee while the contract belonged to him.

$ 40. (SEC. 38.) Set-offs against assignees in certain cases. If the action is upon a negotiable promissory note or bill of exchange which has been assigned to the

plaintiff, after it becomes due, a set-off, to the amount of the plaintiff's demand, may be made of a demand existing against any person who has assigned or transferred such note or bill after it became due, if the demand is such as might have been set off against the assignor while the note or bill belonged to him.

§ 41. (SEC. 39.) Set-offs against trustees and nominal plaintiffs. If the plaintiff is a trustee for any other, or if the action is in the name of the plaintiff who has no real interest in the contract upon which the action is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be set off as will satisfy the plaintiff's demand, if the same might have been set off in an action brought by those beneficially interested.

§ 42. (SEC. 40.) Counterclaim not allowed, unless pleaded. To entitle a defendant to set off a counterclaim, he shall specifically and clearly allege the same in his answer, stating the particular items of such counterclaim.

$ 43. (SEC. 41.) Judgment in case counterclaim is established. If the amount of the counterclaim duly established is equal to the plaintiff's demand, judgment shall be entered for the defendant, for his costs; if it is less than the plaintiff's demand, the plaintiff shall have judgment for the residue only.

§ 44. (SEC. 42. Judgment in case balance is found due defendant. If a balance is found due from the plaintiff 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 action has been assigned before the commencement of such action, nor for any balance due from any other person than the plaintiff.

TITLE 5.

WITNESSES AND DEPOSITIONS.*

§ 45. (SEC. 43.) Subpoenas, how served. A subpoena may be served by any person, by reading it to the witness, or by delivering a copy thereof to him.

$ 46. (SEC. 44.) Attachment against witness failing to appear. Whenever it appears to the satisfaction of the justice, by proof made before him, that any person duly subpoenaed to appear before him in an action has failed, without just cause, to attend as a witness in conformity to such subpoena, and the party in whose behalf such subpoena was issued, or his agent, makes oath that the testimony of such witness is material, the justice has power to issue an attachment to compel the attendance of such witness; but no attachment shall issue against a witness, unless his mileage and one day's attendance has been tendered or paid in advance.

§ 47. (SEC. 45.) Attachment, how executed-fees. Every such attachment shall be executed by arresting the party named therein, and taking him before the justice issuing the warrant; and the fees for issuing and serving the same shall be paid by such person, unless he shows reasonable cause, to the satisfaction of the justice, for his omission to attend, in which case the party procuring such attachment shall pay all costs accruing thereon.

§ 48. (SEC. 46.) Delinquent witness liable for damages. Every person subpoenaed as aforesaid, and neglecting to appear, is also liable to the party in whose behalf he was subpoenaed, for damages which such party has sustained by his nonappearance; provided, that said witness had one day's attendance and mileage tendered or paid him in advance.

$ 49. (SEC. 47.) Depositions de bene esse. Either party in any civil action pending before a justice may, upon notice, cause the deposition of any witness therein to be taken

*For additional provisions relating to the taking of depositions, see post, c. 73, § 36, et seq.

by any judge or justice of the peace, of any county in this state where the said witness may be.

$ 50. (SEC. 48.) Same, how taken, etc. The deposition shall be taken, certified and returned according to the law concerning depositions.

$51. (SEC. 49.) Same--may be read on trial, when. The justice shall allow every deposition, taken, certified and returned according to the provisions of this title, to be read on the trial of the cause in which it is taken, in all cases where the same testimony, if given verbally in court, could have been received; but no such deposition shall be read on the trial, unless it appears to the justice that the witness whose deposition is offered:

First. Is dead, or resides out of the county.

Second. Is unable, or cannot easily attend before the justice, on account of sickness, age, or other bodily infirmity.

Third. Has gone out of the county, without the consent or collusion of the party offering the deposition.

§ 52. (SEC. 50.) Commission to examine witness. Whenever an issue of fact is joined in any action before a justice, and it appears, on the application of either party, that any witness not residing within the state where such action is pending, is material in the prosecution or defence of such action, the justice may award a commission to one or more competent persons, authorizing them or any of them to examine such witness on oath, upon the interrogatories, settled and approved by the justice, or by the written agreement or assent of the parties, annexed to such commission, to take and certify the deposition of such witness, and to return the same, according to the directions given, with such commission, in which commission both parties may unite.

$53. (SEC. 51.) Same-for whom and how granted. Such commission may be granted at the instance of either party by such justice, at any time, upon proof that due notice of application for such commission was served on the adverse party at least two days before the time of making such application; and whenever the defendant neglects to appear or plead in such action, and the plaintiff makes application for a commission to take the deposition of a material witness, the justice may award a commission, without notice, to one or more competent persons, to examine such witness on oath, upon interrogatories proposed by the plaintiff, to be settled by the justice, and certify the deposition, and return the same, according to the directions given in such commission.

§ 54. (SEC. 52.) Same-how executed and returned. The commission shall be executed and returned to the justice as is prescribed by statute when a commission issues out of a court of record; and the deposition and testimony taken in pursuance thereof shall be received on the trial as testimony in the cause, with the like effect as if such witness was personally examined at such trial.

§ 55. (SEC. 53.) Same-adjournment of action. Whenever such commission is issued by any justice, the action may be adjourned for not more than ninety days, unless by consent and agreement of the parties to such action.

TITLE 6.

TRIAL BY JURY.

§ 56. (SEC. 54.) Jury how impannelled. In all civil actions before a justice in which either party demands a trial by jury, such jury shall be impannelled by said justice in the manner following, to wit: The justice shall direct the sheriff or any constable of the county, to make a list in writing of the names of twentyfour inhabitants of the county, qualified to serve as jurors in the district

court.

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§ 57. (SEC. 55.) Selection of jurors-venires. The parties may each strike out six names; in case of the refusal or neglect of either party so to strike out such names, the justice shall strike out the names for either or both; and upon such names being stricken out, the justice shall issue a venire directed to the sheriff or any constable of the county, directing him to summon the twelve persons whose names remain upon such list, to appear before such court, at the time and place named therein, as a jury for the trial of such action: provided, that upon consent of both parties, entered on the record, a jury of six may be ordered by the justice; and in such case a list of eighteen names shall be made, from which each party may strike six, and the said jury shall be selected, impannelled and summoned as provided in this section.

§ 58. (SEC. 56.) Adjournment talesmen-oath of jury, etc. If, in the opinion of the justice, the jurors above required cannot appear forthwith for the trial of the cause, the justice shall adjourn the same for such reasonable time as he deems proper, to enable the officer to summon the said jurors, and for them to appear. And if any of said jurors shall not attend at the time, or in case there are legal objections raised to any of those who appear, the officer shall summon a sufficient number of talesmen to supply the deficiency. The jury so selected shall take the oath required by law; and after the cause is submitted to them, they shall be kept together in some convenient place until they all agree upon a verdict, or are discharged by the justice, for which purpose an officer shall be sworn to take charge of them.

23 M. 138.

§ 59. (SEC. 57.) Verdict and judgment. When the jurors have agreed on their verdict, they shall deliver the same to the justice, who shall give judgment thereupon, and award execution.

$60. (SEC. 58.) Discharge of jury when failing to agree. Whenever a justice is satisfied that a jury sworn in any action before him, after having been out a reasonable time, cannot agree on a verdict, he may discharge them, and issue a new venire, unless the parties consent that the justice may render judgment.

§ 61. (SEC. 59.) Juror failing to appear may be fined. Every person who is duly summoned as a juror, and does not appear, nor render a reasonable excuse for his default, is subject to a fine not exceeding ten dollars.

TITLE 7.
JUDGMENTS.*

$ 62. (SEC. 60.) Mutual judgments may be set off. If there are mutual justices' judg ments between the same parties, upon which the time for appealing has expired, on which there is no existing execution, one judgment, on the application of either party, and reasonable notice given to the adverse party, may be set off against the other, by the justice before whom the judgment against which the set-off is proposed was rendered.

3 M. 306 (419); 5 M. 217 (273).

§ 63. (SEC. 61.) Same-set-off, how obtained. If the judgment proposed as a set-off was rendered before another justice, the party proposing such set-off shall produce before the justice a transcript of such judgment, upon which there is a certificate of the justice rendering the judgment, that it is unsatisfied in whole or in part, and that there is no appeal or existing execution thereon, and that such transcript was obtained for the purpose of being a set-off against the judgment to which it is offered as a set-off. The justice granting such transcript shall make an entry thereof in his docket, and all further proceedings on such judgment shall be stayed, unless such transcript is returned, with the proper justice's certificate thereon, that it has not been allowed in set-off. *For provisions as to fees and costs, see post, c. 70, §§ 17-25.