such reasonable time as will enable the party to pro- At whose cost. cure such testimony or witness, not to exceed ninety

days, and shall be at the cost of the party applying therefor, unless otherwise ordered by the justice.

SECTION 19. If a cause, commenced by summons, Bond in case of be adjourned on application of the defendant, he shall, adjournment. if the plaintiff should request it, enter into a recogniz ance before the justice, with such security as the justice approves, in a penalty sufficient to secure the plaintiff's demand and costs, conditioned that if judg ment be given against him in the suit, and execution be issued against his person, he will render himself up, on such execution before the return day thereof, or in default thereof, that he or his security will pay the judgment so recovered; and if the cause be adjourned on application of the plaintiff, he shall, if the defendant should request it, enter into a similar recognizance, in a sufficient penalty and under like condition.

ant to be dis

SECTION 20. If a cause commenced by warrant be When defendadjourned on the consent of both parties, or on the ap- charged. plication of the plaintiff, the defendant shall be discharged from custody, but the cause shall not be discontinued by such discharge, and at the adjourned day the same proceedings shall be had as on the return of a summons duly served.

what.

SECTION 21. But if such cause be adjourned upon when to give the application of the defendant, he shall continue security, and during the time of the adjournment in custody of the constable, unless he shall enter into a recognizance before the justice, with such security as the justice ap. proves, in a penalty sufficient to secure the plaintiff's demand and costs, conditioned that if judgment be given against him in the suit, and execution be issued against his person, he will render himself up on such execution before the return day thereof, or in default thereof that he or his security will pay the judgment so recovered.

SECTION 22. If any such recognizance shall have been given upon any prior adjournment, it shall not be necessary to enter into any new recognizance upon a subsequent adjournment, unless such recognizance be required by the justice, or the bail of the defendant in such prior recognizance.

SECTION 23. In any suit brought upon such recognizance, the plaintiff shall not be entitled to recover TER. LAWS-21

Distance to which a subpœna may be

sent.

By whom, and how served.

Attachment.

Praviso.

How executed, and at whose cost.

unless he show an execution upon the judgment obtained in the suit in which such adjournment was had, duly issued within six days after the time when the same could have been issued against the person of the defendant, and a return thereon that such defendant could not be found.

ARTICLE 5.

OF WITNESSES AND DEPOSITIONS.

SECTION 1. A subpoena, issued by a justice of the peace, shall be valid to compel the attendance in a justice's court, of a witness being in the same county where the cause is to be tried, or being in an adjoining county and within fifty miles of the place of trial.

SECTION 2. A subpoena may be served, either by a constable or any other person, and it shall be served by reading it to the witness or by delivering to him or leaving a copy thereof, at his usual place of abode.

SECTION 3. Whenever it shall appear to the satisfaction of the justice, by proof made before him, that any person, duly subpoenaed to appear before him in a suit, shall have 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, shall make oath that the testimony of such witness is material, the justice shall have power to issue an attachment to compel the attendance of such witness: provided, however, that no attachment shall issue against a witness unless his mileage and one day's attendance has been tendered or paid in advance if previously demanded by such witness from the person serving such subpoena.

SECTION 4. Every such attachment may be directed to any constable of the county in which the justice. resides, and shall be executed in the same manner as a warrant; and the fees of the officers for issuing and serving the same, shall be paid by the person against whom the same was issued, unless he show reasonable cause, to the satisfaction of the justice, for his omission to attend, in which case the party requiring such attachment shall pay all costs of such attachment.

SECTION 5. Every person, duly subpoenaed as a

witness, who shall not appear, or who, when he shall Penalty for not appear, shall refuse to give testimony, shall forfeit for appearing. the use of the county in which he is subpoenaed to appear, (unless some reasonable excuse shall be shown on his oath or the oath of some other person) a fine not exceeding ten dollars, as the justice shall think reasonable to impose. And the justice shall make an entry of the conviction in his docket, and of the cause thereof, at the expiration of thirty days from the entry of such conviction, shall be deemed a judgment in all respects at the suit of such county, and execution shall be issued thereon, as upon other judgments in a jus tice's court, and the constable shall pay the fine to the treasurer of the county

ted.

SECTION 6. The person upon whom such fine shall May be remitbe imposed, may at any time before the expiration of thirty days, appear before the justice, and show cause against the imposition thereof, and upon the hearing of such cause the justice may remit or mitigate such fine.

liability.

SECTION 7. Every person subpoenaed as aforesaid, Farther and neglecting to appear, shall also be liable to the party in whose behalf he may have been subpoenaed, for damages which such party may have sustained by his non-appearance.

may be taken.

SECTION 8. Either party in any civil suit depend- Depositions ing before a justice, may, upon notice, cause the deposition of any witness therein to be taken by any judge or justice of the peace of any county in this territory where the said witness may be.

SECTION 9. No such deposition shall be taken, un- Notice neces less notice in writing, of the time and place of taking sary. the same, shall have been served on the other party three days before the taking thereof, with one additional day, for every twenty five miles of distance, from the place of such service to the place of taking. SECTION 10. Such notice may be served in like How served. manner as an original summons, and the service may be on the party or his agent in the suit, and when such party resides out of the county, and has no agent in the suit therein, the service of such notice may be by filing a copy thereof, with the justice before whom the suit is pending.

SECTION 11. The deposition shall be taken and Depesition, how certified according to the statute of this territory regu

certified.

When deposition may be used.

Proceedings when the defendant does not appear.

lating the taking of depositions, and shall be sealed up and returned so sealed to the justice before whom the suit in which it is taken is pending; and when such deposition is taken out of this territory, the official character of the officer by whom it is taken, shall be certified under the seal of the state or county where such deposition is taken, or under the seal of some court therein.

SECTION 12. The justice shall allow every deposition, taken and returned according to the provisions of this act, 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 appear to the justice that the witness whose deposition is offered,

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

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

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

ARTICLE 6.

OF JUDGMENTS ON NON-SUITS, AND BY DEFAULT, AND
OF TRIALS.

SECTION 1. When a defendant who has been duly served with process, and when a defendant who has once appeared to a suit, the trial of which has been adjourned, shall neglect to appear within three hours after the return time of the process or the adjourned time, the justice shall proceed in the cause in the following manner :

First. If the suit be founded on an instrument of writing, filed with the justice at the commencement of the action and purporting to have been executed by the other party, and the demand of the plaintiff is li quidated by such instrument, the justice shall, whether the plaintiff appear or not, render judgment against the defendant by default for the amount which shall appear by such instrument to be due to the plaintiff, after allowing all proper discounts for all payments endorsed thereon with costs.

Second. If the suit be not founded on an instrument of writing, as is declared in the preceding clause of this section, and the plaintiff. appears in person or by his agent, the justice shall proceed to hear allegations and proofs and shall determine as the very right thereof shall appear from the testimony. And if it appear from such testimony that the plaintiff is entitled to recover, judgment shall be rendered by default against the defendant for so much as the testimony shows the plaintiff entitled to recover together with costs. If it do not appear that the plaintiff ought to recover, judgment shall be given for the defendant as upon a verdict against the plaintiff with costs.

not appear.

Third. If the plaintiff fail to appear, except where when the the suit is founded upon an instrument of writing, as plaintiff does is declared in the first clause of this section, the justice shall render judgment of non-suit against the plaintiff with costs.

SECTION 2. In all cases not otherwise specially provided for, if the plaintiff fail to appear in person or by agent within three hours after the time appointed for the trial of the cause, the justice shall render judgment of non-suit against him with costs.

ment may be

SECTION 3. Every justice of the peace shall have When judg power, on the application of the aggrieved or his agent, set aside, and and for good cause shown, to set aside judgment of how. non-suit and by default, upon such terms as shall be just. Every such application shall be made within six days after rendering of the judgment, and if in the mean time any execution has been issued, the justice may revoke the same in the manner hereinafter provided for revoking an execution after an appeal has been allowed, and with like effect. The justice shall in all cases make an entry in his docket of every such application and of the day on which it was made together with his orders thereon.

SECTION 4. If any judgment be set aside and a new New trial. trial granted the justice shall fix a time for such trial and make out under his hand a notice to the opposite party stating the fact that such judgment has been set aside and specifying therein the time and place fixed for trial. The notice shall be served on the party or his agent six days before the trial and shall be execut ed and returned in like manner as a summons and the same fees allowed therefor.