time and place therein to be named before such justice, to answer the said plaintiff concerning the unlawful taking or detention of the said goods and chattels.

Sec. 44. Such writ shall be returnable not less than six nor more than writ of replevin, wh'n twelve days from the date of the same, and shall be served not less than returnable. six days before the return thereof.

Sec. 45. All writs of execution in actions of replevin shall be re- Execution turnable in the same time as other executions issued by justices.

in replevin, when returnable.

value of pro

ascertained.

Sec. 46. The damages and value of the property mentioned in the Damages & thirty-third and thirty-fourth sections of said chapter shall be ascertained perty, how by the justice, and no notice thereof shall be necessary, nor shall any No excepexceptions be taken to the sureties of the plaintiff in the bond taken by sureties. the justice.

tions to

8. to apply.

Sec. 47. In all cases not in this chapter specially provided for, pro- Chap. 124 R. ceedings in replevin before a justice shall be governed by the said one hundred and twenty-fourth chapter.

against cor

Sec. 48. All actions against corporations, except municipal corpora- Actions tions, shall be cognizable before a justice of the peace, in like manner porations. and with the like restrictions as the same are or may be by law before a justice of the peace when brought against an individual.

cess against

how served.

Sec. 49. The first process against a corporation shall be a summons, First proand shall be served by leaving a copy thereof with the president, corporation, cashier or secretary, or other principal officer of such corporation, or by leaving such copy at the banking house or office of such corporation; and upon return of such service being made, such corporation shall be deemed to be in court, and the like proceedings, as near as may be, shall be thereupon had, as. in cases of suits between individuals.

against cor

Sec. 50. Where judgment shall be rendered against a corporation, on judgm't no security for stay of execution shall be entered, except at the option portion, no of the plaintiff, and execution may issue forthwith.

Of the Appearance of Parties.

Sec. 51. No process shall be issued for an infant plaintiff, nor shall any issue joined by such plaintiff without process, be heard, until a next friend for such plaintiff shall be appointed.

stay of exe cution, except, &c.

Sec. 52. Whenever requested, the justice shall appoint some suitable Next friend.

Infant defendant.

Guardian

Consent to

person to be named by such plaintiff, who will consent thereto in writing, to act as his next friend in such suit, who shall be responsible for the costs therein.

Sec. 53. After the service of process against an infant defendant, tho suit shall not be any further prosecuted until a guardian for such defendant be appointed; and the justice, upon the request of such defendant, shall appoint some person who will consent thereto in writing, to be guardian of the defendant, in the defence of the suit.

Sec. 54. If such defendant shall not appear on the return day of the process, or if he neglect or refuse to nominate such guardian, the justice may, on motion of the plaintiff, appoint any discreet person to be such guardian.

Sec. 55. The consent of every such next friend or guardian shall be be filed with 'filed with the justice; and the guardian for the defendant shall not be liable for any costs in the suit.

justice.

Constable

not to advocate.

Authority of attorney,

Sec. 56. Every plaintiff of full age may appear and conduct his suit or defence, either in person or by attorney; but the constable who served either the original or jury process in the cause, shall not appear and advocate for either party at the trial.

Sec. 57. The authority to appear as attorney for any party may be how proved, either written or verbal; and such authority shall be proved by the attorney or other competent testimony, in all cases where requested by the opposite party, or where the opposite party shall not appear.

Initial letters, or con

christian

name.

Sec. 58. In all actions on promissory notes or other instruments in trac in of writing, any of the parties to which are designated by the initial letter or letters,' or contraction of the christian or first name or names, it shall be sufficient in any affidavit to arrest or obtain an attachment, and in any process or declaration, to designate such persons by the same initial letter or letters, or contraction of the christian or first name or names, instead of stating the christian or first name or names in full.

When suits

may be com menced in partnership

name.

Sec. 59. In all cases where a suit is commenced for or against a copartnership, and the names of all the several partners are not known, such suit may be commenced in the partnership name of said plaintiffs or defendants; and the plaintiffs or defendants shall have the right, at any time before the pleadings are closed, to amend the same, by inserting the names of the parties composing such co-partnership.

defendant is

a not known

how de

Sec. 60. When the name of any defendant shall not be known to if name of the plaintiff, he may be described in the process and proceedings by fictitious name; and if a plea in abatement be interposed by such de-scribed fendant, or his name be otherwise ascertained, the justice before whom the suit is pending, shall amend the proceedings according to the truth. of the matter, and shall thereafter proceed therein, in like manner as if the defendant had been sued by his right name.

Of Pleadings and Set-offs.

Sec. 61. At the time of the first appearance of the parties before the justice, either upon the return of process or their voluntary appearance to join issue, the pleadings of the parties shall be made, unless the justice shall allow further time upon cause shown; and when both parties have appeared, an issue shall be joined before an adjournment shall be had, except as aforesaid; and when the defendant shall have appeared upon a warrant, the pleadings shall be made within such reasonable time as the justice shall allow for that purpose.

made and

issue joined.

Sec. 62. The pleadings in a suit before a justice of the peace, may Pleadings, be either written or verbal, at the discretion of the party making the how made. same, except in case of notice of title to land; when written, they shall be filed with the justice; when verbal, the justice shall enter in his docket the substance thereof; the declaration shall be sufficient on general demurrer, if conformable at the time, to the rules of pleading applicable Demurrer to the circuit court; the plea of the general issue shall be in the same form as in those courts, and notice of any defence not admissable under the general issue, shall be given with such plea; no special demurrer shall be allowed; pleas in abatement must be pleaded under oath, and the execution of a written instrument, filed with the justice, shall not Execution be denied, except under oath, as hereinafter provided.

General is. sue and no

tice.

Abatement

of written instrument, how denied.

accounts

Sec. 63. Plaintiffs, in actions founded on open accounts, shall embrace Actions of all claims then due on account, not exceeding twenty-five dollars, or failing so to do, shall not recover cost in any subsequent suit on claims not so embraced.

considers

Sec. 64. A failure, or want of consideration in whole or in part, may Failure of be shown in defence, to any action or set-off, upon or arising out of any tion bond or promissory note, or other instrument in writing, except negotiable notes, negotiated before falling due, to any person not having at the time it was negotiated, knowledge of such defence.

Judgment

of court of

Sec. 65. In pleading a judgment or decision of a court or officer of special ju- special jurisdiction, it shall be sufficient to allege generally, that judg

risdiction.

Condition precedent.

Bill of par. ticulars.

May be amended.

Costs may

be required

ment or decision was duly given or made.

Sec. 66. In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege generally, that the party performed all the conditions on his part; if the allegation be denied, the facts showing the performance must be proved on the trial.

Sec. 67. In cases before a justice, where a bill of particulars of the demand of the party may be required in a court of record, the plaintiff may be required by the justice to file such bill of particulars of his demand; and the defendant, if required by the plaintiff, shall file a like bill of particulars, he may claim as a set-off; and the evidence on the trial shall be confined to the items set forth in said bill.

Sec. 68. Such bill may be amended at any time before the trial, to supply any deficiency or omission in the items, when, by such amendment, substantial justice will be promoted.

Sec. 69. The justice may, in his discretion, require as a condition of on amend an amendment the payment of costs to the adverse party, to be fixed by the justice; but such payment cannot be required, unless an adjournment is made necessary by the amendment.

ment of bill.

When plain

tiff may dis

miss some of defend

Sec. 70. When in actions for tort, a summons is returned not found or served by copy, as to part of the defendants who shall not appear, the plaintiff may dismiss the cause as to such defendants, and proceed against oth- against the defendants personally served or appearing.

ants and proceed

ers.

When set

off allowed.

Sec. 71. In the following cases, and under the following circumstances, a defendant may set off demands which he has against the plaintiff:

1st. It must be a demand arising upon judgment or upon contract, express or implied, whether such contract be written or unwritten, sealed or without seal; and if it be founded upon a bond or other instrument having a condition, the sum equitably due by virtue of its condition only, shall be set off;

2d. It must be due to him in his own right, either as being the original creditor or payee, or as being the assignee or owner of the bond;

3d. It must be a demand for real estate sold, or for personal property sold, or for money paid or services done, or if it be not such a demand,

the amount must be liquidated, or be capable of being ascertained by When must calculation;

4th. It must have existed at the time of the commencement of the suit, and must then have belonged to the defendant;

be liquids

ted.

5th. It can be allowed only in actions founded on demands which could themselves be the subject of set-off according to law;

veral de

6th. If there be several defendants, the demand set off must be due when seto all of them jointly, unless the defendants shall prove an agreement fendants, or of the plaintiff or plaintiffs that the demand proposed to be set off, should apply as payment upon his or their claim;

plaintiffs.

against the

cept nomi

7th. It must be a demand existing against the plaintiff in the action, Must be unless the suit be brought in the name of a plaintiff who has no real plaintiff, exinterest in the contract upon which the suit is founded; in which case, nal pltff. no set off of a demand against the plaintiff shall be allowed, unless as hereinafter specified;

is on con

has been as

8th. If the action be founded upon contract (other than a negotiable when act'n promissory note or bill of exchange) which has been assigned by the tract that plaintiff, a demand existing against such plaintiff, or any assignee of signed. such contract, at the time of the 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 debt, if the demand be such as might have been set off against such plaintiff or such assignee while the contract belonged to him;

a

When act'n tiable paper

is on rego

which has

signed.

9th. If the action be upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff after it became due, set off to the amount of the plaintiff's debt may be made of a demand been asexisting against any person or persons who shall have assigned or transferred such note or bill after it became due, if the demand be such as might have been set off against the assignor while the note or bill belonged to him;

is in name

plaintiff, or

10th. If the plaintiff be a trustee for any other, or if the suit be in when suit the name of a plaintiff who has no real interest in the contract upon of nominal which the suit is founded, so much of a demand existing against those trustee. whom the plaintiff represents, or for whose benefit the action is brought, may be set off as will satisfy the plaintiff's debt, if the same might have been set off in an action brought by those beneficially interested;