When to be

provided for, the process in all suits shall be a summons, and every summons shall be directed to the constable of the township, in which the justice, who granted the same, resides, except when it is otherwise specially provided, and shall command him to summon the defendant to appear before the justice who issued the same, at a time and place to be named in the summons, not less than six, nor more than thirty days, from the date thereof, to answer the complaint of the plaintiff.

SECTION 12. If any plaintiff files with the justice directed to the the affidavit of himself, or some other creditable

sheriff.

When served,

and how executed.

When warrant to be issued.

per

son, stating that such plaintiff has a joint cause of action against several persons, inserting their names therein, and that such persons reside in different townships in the same county, specifying therein the townships in which they respectively reside, and that the plaintiff desires to bring a joint action against them, the summons shall be directed to the sheriff of the county in which the defendants reside, who is commanded to serve the same.

SECTION 13. Every summons shall be served at least six days before the return day thereof, and shall be executed either,

1st. By reading the same to the defendant, or, 2d. By delivering a copy to the defendant, or, 3d. By leaving a copy of such summons at the usual place of abode of the defendant, with some person of the family, above the age of fifteen years.

SECTION 14. A justice of the peace shall issue a warrant in every case, where he is satisfied from the affidavit of the person demanding the same, or from any other person, that the plaintiff has a subsisting and unsatisfied cause of action against the defendant, and that the defendant is about to remove from the county, or to abscond from his usual place of resi dence, or that the plaintiff will be in danger of losing his debt or demand unless such warrant be granted. SECTION 15. A warrant shall be served by arresting the defendant, and taking him before the justice When returned who issued the same; but if such justice be, on the return thereof absent, or unable to try the cause, or if it be made to appear to the justice by the affidavit of the defendant, that said justice is a material witness for the defendant in the cause, or is near of kin to the

How served.

to another

justice.

plaintiff in suit, stating therein the degree, the consta ble shall forthwith take the defendant to the nearest justice of the same township, who shall take cognizance of the cause, and proceed therein, as if the warrant had been issued by himself.

limited.

SECTION 16. When a defendant is brought before Detention a justice on a warrant, he shall be detained in the custody of the constable until the justice shall direct his release but in no case shall the defendant be detained longer than twenty-four hours from the time he shall be brought before the justice, unless within that time the trial of the cause has commenced, or unless it has been delayed at the instance of the defendant.

stable.

SECTION 17. Every justice issuing any process au- Special con. thorized 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 endorsement on the process to the following effect, "at the request and risk of the plaintiff I authorize 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 obligations, and shall receive the same fees for his services.

be discontinued.

SECTION 18. If at any time after the commence- When suit to ment of a suit, the defendant pay to the constable the full amount of the claim, and the costs which may have then accrued, the suit shall be discontinued, or if it be further prosecuted the plaintiff shall pay all costs that may accrue after such payment; and the justice before whom the suit is brought shall endorse the amount upon the summons or warrant for which suit is commenced including interest and costs.

SECTION 19. Every constable serving any process Constable's reauthorized by this act, shall return thereon in writing turn. (endorsed on the back) the time and manner of service, and shall sign his name to such return.

SECTION 20. If any constable fail to execute any Liability of process to him delivered, and make due return there- constable. of, unless for good cause, or make false return, such constable, for every such offense, shall pay to the party injured ten dollars, and all damages such party may

How plaintiff may appear.

Appointment of next friend.

How defendant may appear.

Appointment of guardian.

Agent.

Time of appear.

ance.

have sustained by reason thereof, to be recovered by an action of debt founded upon this statute.

ARTICLE 4.

OF THE APPEARANCES AND PLEADINGS OF THE PARTIES
AND OF ADJOURNMENT.

SECTION 1. Any plaintiff in any suit, except persons under twenty-one years of age, may appear and conduct his suit either by agent or in person.

SECTION 2. No suit shall be instituted by an infant plaintiff until a next friend for such infant shall have been appointed. Whenever requested the justice shall appoint some suitable person, who will consent thereunto in writing, to be named by such plaintiff, to act as his next friend in such suit, who shall be responsible for the costs therein.

SECTION 3. Every defendant in a suit may appear and defend the same, either in person or by agent, except persons under twenty-one years of age.

SECTION 4. After the service and return of process against an infant defendant the suit shall not be further prosecuted until a guardian for such defendant shall have been appointed. Upon the request of such defendant, the justice shall appoint some person, who will consent thereto in writing, to be the guardian of the defendant in defense of the suit; and if the defendant shall not appear on the return day of the process, or if he neglect or refuse to nominate such guardian, the justice may, at the request of the plaintiff, appoint any discreet person as such guardian, and the consent of such guardian or next friend shall be filed with the justice, and the guardian for the defendant shall not be liable for any costs in the suit.

SECTION 5. A party authorized to appear by agent, may appoint any person to act as such agent; and the authority of the agent may be either written or verbal, and shall in all cases when the justice requires proof, be proven either by the agent himself, or by other competent testimony, unless admitted by the opposite party.

SECTION 6. Upon the return of a summons duly served, the justice shall wait one hour after the time

specified in such writ, for the appearance of parties

unless they sooner appear.

SECTION 7. When both parties first appear before Declaration. the justice, either upon the return of process or upon their voluntary appearance without process, the justice shall on the application of the defendant, and may without such application, require of the plaintiff a brief verbal statement of the nature of his demand. SECTION 8. A defendant may set off any demand Set-off. which he may have against the plaintiff, in all cases where such set-off, is allowed by the statutes of this territory regulating set-off, except in the two following

cases:

First. When the demand to be set-off exceeds the When denied. jurisdiction of justice's court, or,

Second. When it is founded upon an instrument

of writing, executed by the plaintiff, and assigned to the defendant, and it shall not appear on the trial of the cause that the assignment was made to the defend

ant previous to the commencement of the suit.

SECTION 9. To entitle a defendant to set-off any Notice necesdemand, he must give notice thereof in court, either sary. verbal or written, before the jury is sworn, or the trial submitted to the justice; and when the set-off is founded upon an instrument of writing, executed by the plaintiff, or by his testator or intestate, or upon an account, he must, at the time of giving such notice, file Written instruwith the justice, such instrument or a bill of the items filed, unless of such account.

SECTION 10. If such instrument be alleged to be lost or destroyed, it shall be sufficient for the defendant to file with the justice an affidavit, similar to that required of a plaintiff, upon instituting a suit in justice's court, on a lost or destroyed instrument of writ ing.

ments to be

lost.

SECTION 11. If the amount of the set-off duly es- How judgment tablished be equal to the plaintiff's debt, judgment and costs regushall be entered for the defendant with costs of suit; if it be less than the plaintiff's debt, the plaintiff shall have judgment for the residue only with costs, and if it be more than the plaintiff's debt, the defendant shall have judgment for the excess, with costs, and execution shall be awarded, and be subject to the same stay, as upon a judgment in a suit brought by such defendant.

In case of exe. cutors, &c.

Plea of title in action of trespass.

Possession sufficient for plaintiff.

Adjournment.

When allowed

SECTION 12. Whenever a set-off is established, in a suit brought by executors or administrators, exceed ing the demand of the plaintiff, the judgment shall be against them in their representative character, and shall be evidence of a debt established, but no execution shall issue thereon.

SECTION 13. If in a suit for trespass upon any lands or tenements, the defendant shall justify the trespass by a plea of title, the justice shall immediately make an entry of it in his docket, shall cease all further proceedings in the case, and 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 suit, and filed therein, in the same manner and within the same time as upon an appeal.

SECTION 14. Upon the filing of the proceedings and papers in the office of the clerk, the court shall become possessed of the cause, and proceed therein to final judgment, as upon an appeal; but upon the trial in such court, the plaintiff shall only be required to prove himself entitled to or in possession of the lands or tenements on which the trespass is alleged to have been committed, and no other bar to the action shall be pleaded by the defendant, except the plea of title.

SECTION 15. A justice of the peace, without the application or consent of either party, may, if it be necessary, adjourn a cause not exceeding three days, for any one adjournment, but a justice shall in no case adjourn a cause commenced by warrant upon his own

motion.

SECTION 16. A justice of the peace, on the appli cation of either party, with good cause shown, may adjourn a cause not exceeding ninety days, for any one adjournment, and may adjourn for a longer period with the consent of both parties.

SECTION 17. No adjournment shall be allowed upon on application. the application of a party, unless such party satisfy the justice by his own oath, or affidavit of some other person, that he cannot safely proceed to trial for want of some material testimony or witness, that he had used due diligence to obtain the same, and that if an adjournment be allowed he will be able to procure such testimony or witness in time to be used upon the trial.

SECTION 18. Every such adjournment shall be for