SECTION 5. Every suit instituted by summons or warrant shall be determined on the return of the process duly served unless the cause be adjourned.

SECTION 6. When both parties appear before the justice in person or by agent at the time appointed for the trial of the cause, the justice shall proceed to hear the allegations and proofs of the parties and to determine the suit as the very right of the case shall ap pear.

SECTION 7. On the trial of all suits upon contracts before any justice of the peace, or in any district court by appeal or otherwise, whether brought by the origi nal claimant or any person for his use or by the payee or obligee of any bond or note or his assignee, it shall be the duty of said justice or court to hear and deter mine such cause on its merits and to hear parol or other legal evidence to impeach the consideration or val idity of any bond or note; and if it shall be ascer tained by the justice or court, or verdict of the jury, (if one be required) that the consideration of such bond or note has failed, in whole or in part, judgment shall be given according to the finding of the justice or court, or verdict of the jury, notwithstanding the defendant may hold a warranty or other instrument of writing on the payee or obligee of such bond or note, purporting to be an agreement to make good the consideration of said bond or note, if the same should fail.

SECTION 8. Before the justice shall commence an investigation of the merits of the cause, by an examination of witnesses, or the hearing of any other testimony, either of the parties may demand of the justice that the cause be tried by a jury.

SECTION 9. The jury shall consist of six persons, but the parties may agree upon any number of jurors less than six to try the cause, and in that case the jury shall consist of such number not exceeding six, as the parties may agree upon.

SECTION 10. The justice shall issue a summous, directed to the constable of the township wherein the cause is to be tried, commanding him to summons six (or such less number as the parties may have agreed upon) good and lawful men of the township, qualified to serve as jurors in the district court of the same county, who shall be nowise of kin to either party,

nor interested in the suit, to appear before the said justice at a time and place to be named therein, to make a jury for the trial of the action between the parties named therein.

SECTION 11. The constable shall execute such jury summons fairly and impartially, and shall not summon any persons whom he has reason to believe are biased or prejudiced for or against either of the parties. He shall summon the jurors personally, and shall make a list of the persons, which he shall certify and annex to the summons, and return to the justice. If a sufficient number of competent jurors cannot be obtained from the panel returned, the constable shall immediately summon others to serve in their place.

SECTION 12. If the constable, to whom the jury summons shall have been delivered, do not return the same as thereby required; or if a full jury be not obtained, in the manner declared in the preceding sections, the justice shall issue a new jury summons.

SECTION 13. To each juror the justice shall admin- Oath. ister an oath, well and truly to try the matter in difference between plaintiff, and

defendant, and unless discharged (by the jus-. tice) a true verdict give according to the evidence. SECTION 14. After the jury are sworn, they shall sit together and hear the allegations and proofs of the parties, which shall be delivered publicly in their presence.

SECTION 15. If a witness on being produced shall Oath of witbe objected as being incompetent, such objection shall nesses. be tried and determined by the justice. Every person offered as a witness before any testimony shall be given by him, shall be duly sworn or affirmed, that the evidence he shall give relating to the matter in issue between plaintiff, and

defendant, shall be the truth, the whole truth and nothing but the truth.

SECTION 16. If there shall be no evidence given Oath of parties. to establish any demaud founded upon contract, or to establish any set-off, or if the evidence given be insufficient for that purpose, the justice may, upon the application of the party offering such demand or set-off, order the opposite party to be sworn in relation thereto; if the party thus required refuse to testify, the justice shall allow the party offering such demand or

When to be subpoenaed.

When the exe

ten instrument

on oath.

set-off, to be sworn and examined, in relation to the same matter. After an examination of either party, no further evidence shall be given in relation to such demand or set-off.

SECTION 17. Either party in any suit founded on contract, may cause the opposite party to be subpoenaed as a witness in the cause, in the same manner and with like effect, as any other person. If the party after being duly subpoenaed, fail to attend the trial personally, and such failure be not accounted for, the justice may allow the other party to be sworn and examined as a witness, in all cases, and with like effect, as if the subpoenaed party had been personally present and had refused to testify.

SECTION 18. If any suit or set-off be founded upcution of a writ- on an instrument of writing, purporting to have been must be denied executed by the opposite party, and the same shall shall have been filed with the justice according to the preceding provisions of this act, such instrument shall be received in evidence upon the trial, unless the party (before the jury be sworn or the trial submitted to the justice,) charged to have executed the same, shall deny the execution thereof on oath, taken before such justice, or by an affidavit filed with the justice and taken before any court or officer authorized to administer oaths.

Except in case of executors,

&c.

When jury may

SECTION 19. The preceding section shall not be construed to authorize any instrument of writing to be received in evidence, without proof of its execution, against an executor or administrator, or any other per son representing the person charged to have executed such instrument.

SECTION 20. When the jurors have agreed on their verdict, they shall deliver the same to the justice publicly, who shall enter it on his docket.

SECTION 21. Whenever a justice shall be satisfied be discharged. that a jury sworn in any civil cause before him, after having been out a reasonable time, cannot agree on their verdict, he may discharge them and issue a new jury summons, unless the parties consent that the jus tice may render judgment on the evidence before him, which in such case he may do, unless they consent that the trial upon a new hearing of the evidence shall be by the justice.

SECTION 22. Every person who shall be duly sum

attendance as juror.

moned as a juror, and shall not appear, nor render a Penalty for nonreasonable excuse for his default, shall be subject to the same fine, to be prosecuted for, and collected with costs in the same manner, and applied to the same use, as herein before provided in respect to a person subpoenaed as a witness and not appearing.

ARTICLE 7.

OF JUDGMENTS AND FILING TRANSCRIPTS THEREOF
AND OF THE STAY OF EXECUTIONS.

confession.

SECTION 1. A justice of the peace may enter judg. Judgment by ment, by confession of the defendant, in any case where the amount confessed does not exceed the amount a justice is authorized to render judgment in

an action.

SECTION 2. No confession shall be taken, or judg ment rendered thereon, unless the following requisites be complied with:

1st.

The defendant must personally appear before the justice.

2d. The confession must be in writing, signed by the defendant, or by some person by him thereto lawfully authorized, and filed with the justice.

judgments.

SECTION 3. If there be mutual justices judgments setting off of between the same parties, upon which the time for appealing has elapsed, on which there is no existing execution, one judgment on the application of either party and reasonable notice given of such application, to the adverse party, may be set off against the other, by the justice before whom the judgment, against which the off-set is proposed, may be.

ments were

SECTION 4. If the judgment proposed as a set-off, When the judg was rendered before another justice, the party pro- before differposing such set-off, must produce before the justice a ent justices. transcript of such judgment, upon which there is a certificate of the justice rendering the judgment, that there is no appeal or existing execution thereon, and such transcript was obtained for the purpose of being 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 shall be returned with the proper

Other provi.

sions.

When the justice is a witness, discontinued.

justice's certificate thereon, that it has not been allowed in set-off.

SECTION 5. If any justice shall set off one judg ment against another, he shall make an entry thereof in his docket, and execution shall issue only for the balance which may be due after such set-off. If a justice shall allow a transcript of a judgment, rendered by another justice, to be set off, he shall file such transcript among the papers relating to the judgment, in which it is allowed in set-off. If he shall refuse such transcript as a set-off, he shall so certify on the transcript, and return the same to the party who of fered it.

SECTION 6. If upon the appearance of the parties &c. cause to be on the return of process in any case, (except when the defendant is arrested by warrant) the defendant shall, before the jury is sworn, or the trial submitted to the justice, make affidavit that the justice before whom the same is pending is a material witness for such dedant, without whose testimony he cannot safely proceed to trial, or that he is of near kin to the plaintiff, stating therein in what degree, judgment shall be entered that the cause be discontinued but without costs to either party.

Judgment of non-suit.

Judgment for defendant.

For plaintiff.

How soon

rendered.

SECTION 7. Judgment of non suit with costs shall be rendered against the plaintiff in the following cases in addition to the cases specially provided for. 1st. If he withdraw his action.

2d.

If he be non-suited upon the trial.

SECTION 8. Judgment for the defendant with costs shall be rendered, wherever a trial or hearing has been had, and no sum shall be found by the verdict of the jury, or by the decision of the justice in favor of the plaintiff.

SECTION 9. Judgment for plaintiff with costs shall be rendered, whenever a trial or hearing has been had, and any sum shall be found by the verdict of the jury, or decision of the justice in favor of the plaintiff.

SECTION 10. In cases where the plaintiff shall be judgment to be non-suited, or withdraw his action, and where judg ment shall have been confessed; and in all cases where a verdict shall be rendered, or the defendant shall be in custody at the time of hearing the cause, the justice shall forthwith render judgment, and enter