When justice to proceed with case. When justice Costs. When suit removed, pleadings to be same. Where title did not come in question. Costs. When declaration contains some counts in which title comes in question. SEC. 22. If such bond be not delivered and such fees and costs paid as herein directed, the justice shall have jurisdiction of the cause, and shall proceed therein, and the defendant shall be precluded in his defense from all evidence drawing in question the title to lands; and any claim of title to lands made by the plaintiff in his declaration, and therein described, shall be deemed to be admitted by the defendant. SEC. 23. If it appear on the trial from the plaintiffs' own showing that the title to lands is in question, which title shall not be admitted by the defendant, the justice shall. without further proceeding, certify the cause and papers to the circuit court of the county where the same shall be tried: and the party in whose favor judgment shall be rendered in the circuit court, shall recover costs, which shall include his costs before the justice. SEC. 24. When a suit is removed from a justice's court as herein before provided, the plaintiff in such suit shall be permitted to declare or to give evidence only for the same cause of action whereon he relied before the justice, and the plea and notice of the defendant shall be the same which he tendered before the justice. SEC. 25. If the presiding judge of the court before which the suit was tried, shall certify that the title to lands did not come in question, if the plaintiff recover he shall recover double costs; if the defendant recover (other than judgment of non-suit), he shall not recover costs, but shall pay costs to the plaintiff. SEC. 26. If the plaintiff's declaration in the suit before a justice shall contain several counts or causes of action, to one or more of which a defense, bringing in question the title of lands, shall be interposed by the defendant, the justice shall discontinue proceedings for such cause of action; and for the other causes of action the justice may continue his proceedings. Justice may issue subpoenas. How served. CHAPTER LXX. Of Trials and Proceedings Incident Thereto. Of Compelling the Attendance of Witnesses. SECTION 1. Any justice of the peace may issue subpoenas to compel the attendance of witnesses, to give evidence in any cause or matter pending before himself or any other justice or court; and such subpoenas shall be valid to compel the attendance of a witness within the same county where the cause or matter is to be tried, or in another county, and within thirty miles of the place of trial. SEC. 2. A subpoena may be served either by a constable or any other person, and it shall be served by reading the same, or stating the contents to the witness, and by paying or tendering the fees allowed by law for traveling, and onehalf day's attendance. attachment SEC. 3. Whenever it shall appear by the affidavit of the When party in the suit, or by other competent testimony, to the may issue. satisfaction of the justice, that any person duly subpoenaed to appear before him in any cause shall have refused or neglected without just cause to attend as a witness in conformity to such subpoena, and that the testimony of such witness is material, as the deponent verily believes, the justice shall have power to issue an attachment to compel the attendance of such witness. serving SEC. 4. Every such attachment shall be issued in the same Fees for manner as a warrant, and the fees of the officers for issuing attachment, and serving the same, shall be paid by the person against how paid. whom the same shall have been issued, unless he shall 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 and the service of the same. neglect to SEC. 5. Every person duly subpoenaed as a witness, who Penalty for shall not appear, or who appearing shall refuse to testify, appear or shall forfeit for every such non-appearance or refusal (unless to testify. some reasonable cause or excuse shall be shown on his oath, or the oath of some other person), a sum not less than one dollar, nor more than ten dollars. SEC. 6. Such fine may be imposed by the justice, upon the Fine and witness being before him, or his being brought before him on attachment; and the justice shall thereupon make and enter Entry in in his docket a minute of the conviction and the cause thereof, and the same shall be deemed a judgment, in all respects, at the suit of the people of this State. docket. for fine. SEC. 7. Upon the imposition of such fine, and in default Execution of payment thereof, with costs, the justice shall forthwith issue an execution directed to any constable of the county, commanding him to levy such fine, with costs, on the goods and chattels of the delinquent, and for want thereof to take and convey him to the jail of the county, there to remain Imprisonuntil he shall pay such fine and costs; and the keeper of such ment. jail shall keep such delinquent in close custody in such jail, until the fine and costs be paid, but such imprisonment shall not exceed thirty days. of moneys SEC. 8. When money shall be collected on such execution, Disposition the constable shall return the same to the justice, and such collected. justice shall pay over the amount of such fine to the county treasurer, to be distributed according to law. for damages. SEC. 9. Every person subpoenaed as aforesaid, and neglect Liability ing or refusing to appear or testify, shall also be liable to the party in whose behalf he shall have been subpoenaed, for all damages which such party shall sustain by reason of such non-appearance or refusal, and in all cases when any Refund of fees shall be paid to any person for attendance or travel as fees. Justice to try issue. When defendant fails to appear. Demand for jury. List of eighteen names to be made. Person making list to be sworn. Each party to strike off six names. Venire. Parties may agree upon jury. When talesmen to be summoned. a witness, and such person shall fail to attend, he shall refund the amount paid. Of the Trial of Issues of Fact, and the Incidents Thereto. SEC. 10. In any cause before a justice, if no jury be demanded by either party, the justice shall proceed to try the same, to hear the proofs and allegations of the parties, and to determine the same according to law, as the right of the case may appear. SEC. 11. Whenever a defendant who has been personally served with a summons, attachment or writ of replevin, or who shall have procured an adjournment without having joined issue, shall neglect to appear and join issue, the justice shall proceed to hear the proofs and allegations of the plaintiff, and determine the same as above prescribed. SEC. 12. After an issue of fact joined, and before the justice shall proceed to an investigation of the merits of the cause. by an examination of a witness, or the hearing of any other testimony, either of the parties, or the attorney of either of them, may demand of the justice that the cause be tried by a jury, and pay to the justice the lawful fees of the jurors. SEC. 13. Upon such demand and payment of such fees to the justice, such justice shall direct some disinterested constable, or other proper person of the county, to write down a list of the names of eighteen inhabitants of the county qualified to serve as jurors in courts of record, who shall be in no wise of kin to the plaintiff or defendant nor interested in such suit. SEC. 14. The constable or other person directed to make such list, shall, before making the same, be sworn by the justice to select such persons according to his best judgment. and without favor or partiality to either party. SEC. 15. From such list each party may strike off six names; and in case of the absence or refusal of either party to strike out, the justice shall strike out for him six names from said list; and the justice shall thereupon issue a venire, directed to any constable of the county, requiring him to summon the six persons whose names shall remain upon the list, to appear at a time and place to be named therein, to make a jury for the trial of the action between the parties named in such venire; and the constable shall serve such venire personally on each juror named therein, if to be found within his county. SEC. 16. The parties may agree upon six or any less number of jurors to try the cause; and in such case the justice shall direct in the venire the summoning of the persons so agreed upon, who, when summoned and appearing, shall compose the jury; and the justice shall make a minute of such agreement in his docket. SEC. 17. If any of the jurors named in the venire shall not be found, or shall fail to appear according to the summons, or if there shall be any legal objections to any one who shall appear, it shall be the duty of the constable, on being thereunto directed by the justice, to summon a sufficient number of talesmen to supply the deficiency. failure to appear or to SEC. 18. Every person who shall be duly summoned as a Penalty for juror, and shall not appear, nor render a reasonable excuse for his default, or appearing shall refuse to serve, shall be serve as juror. subject to the same fine, to be imposed and collected with costs, in the same manner, and paid over for the same use, as herein before provided in respect to a person subpoenaed as a witness, and not appearing, or appearing and refusing to testify. SEC. 19. In all civil cases before justices of the peace, each Peremptory party may challenge peremptorily two jurors, either from challenges. those named in the original venire or from those called as talesmen. SEC. 20. It shall be a good cause of challenge to any juror Cause of in any justice court in any city, township or village in this challenge. State, in addition to the other causes of challenge allowed by law, that such person has served as a juror in any justice court in any such city, township or village in this State two times within one year previous to such challenge. SEC. 21. To each juror the justice shall administer an Oath to jurors. oath or affirmation, well and truly to try the matter in difference between plaintiff, and ..., defendant, and unless discharged by the justice, a true verdict to give, according to law and evidence. hear proofs. SEC. 22. After the jury shall be duly sworn, they shall sit Jury to together and hear the proofs and allegations of the parties, which shall be delivered publicly in their presence. witness. SEC. 23. Every person offered as a witness, before any Oath of testimony be given by him, shall be duly sworn or affirmed. that the evidence he shall give relating to the matter in difference between defendant, shall be the truth, the whole truth, and nothing but the truth. plaintiff, and competency SEC. 24. If a witness, on being produced, shall be objected Objections to to as incompetent, such objection shall be tried and de- of witnesses, termined by the justice; and evidence may be given in support how tried. of or against such objection, as in other cases, and the proposed witness may be examined on oath by the party objecting. witnesses, SEC. 25. Any party causing witnesses to be subpoenaed, Unnecessary and not swearing and examining them, if in attendance, shall how paid. pay the costs occasioned thereby, unless the use of such witnesses be dispensed with by the admission of the opposite party; any party calling more than two witnesses to a fact not contradicted by any other witness, shall pay the costs occasioned by such supernumerary witness. of written SEC. 26. When any written instrument, purporting to be Execution executed by one of the parties, is declared upon or set off, instrument it may be used in evidence on the trial of the cause against need not be proved, unless such party, without proving its execution, unless its execution denied on oath. Failure or want of consideration, when ad mitted in evidence. Discontinuance as to pa t be denied by oath at the time of declaring, or pleading, or giving notice of set-off, if such instrument shall be produced and filed with the justice. SEC. 27. A failure or want of consideration, in whole or in part, may be given in evidence, in any action or set-off upon, or arising out of any contract, except negotiable instruments, negotiated before they became due, to persons not having notice of such defense; in actions upon such contracts. evidence of a partial failure, or want of consideration, shall not be admitted, unless notice of such defense shall be given. SEC. 28. When an action is brought against two or more of defendants. defendants, the plaintiff shall, at any time before the final submission of the case, be allowed to discontinue as against any of the defendants upon payment of costs to them, as in case of non-suit and upon such other terms as the justice. Amendment of before whom the case is pending, shall direct. And the plaintiff may thereupon amend his declaration and proceed against the other defendant or defendants in like manner as if the action had originally been brought against them alone. But in case an action is brought against two or more defendants. the plaintiff shall not be required to discontinue as to any of them, but the jury shall show by their verdict, or the justice by his finding, in a trial by the justice without a jury, which of them are and which are not liable to the plaintiff, and judgment shall be given accordingly. declaration. Jury to be kept until they agree. Oath of officer. Verdict to be delivered publicly. When jury may be discharged. New jury. SEC. 29. After hearing the proofs and allegations, the jury shall be kept together in some convenient place, under the charge of a constable, until they shall agree upon their verdict, and for that purpose the justice shall administer to such constable the following oath: "You do swear, (or affirm, as the case may be), that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial. in some private and convenient place, without meat or drink. except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be nade to them; that you will not communicate with them yourself. orally or otherwise, unless by my order, or to ask them if they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, com municate to any person the state of their deliberations, or the verdict they have agreed upon." SEC. 30. When the jurors have agreed upon their verdict. they shall deliver the same to the justice publicly, and thereupon the justice shall enter the same in his docket, and render judgment thereon. SEC. 31. Whenever a justice shall be satisfied that a jury sworn in any cause before him cannot agree on their verdict, after having been out a reasonable time, he may discharge them; and thereupon a new jury shall be selected and summoned as herein before directed, within forty-eight hours, unless the parties agree upon a longer time, or consent that the |