garnishee.

notice

Commenee

If garnishee does not ap

pear warrant may

attach to the writ an affidavit, stating therein that the defendant has good Affidavie for reason to believe that any person (naming him) has property (describing it) in his possession belonging to the defendant, or that he is indebted to the defendant, the officer shall leave with such garnishee, or at his place of abode, a copy of the writ of attachment and of such affidavit, with a written notice that he appear in court on the return day mentioned in such attachment, and answer under oath all questions put to him touching his indebtedness to the defendant, and the property, money, credits and effects of the defendant in his possession and within his knowledge; and the said garnishee, from the time of the service of said notice, shall stand liable to the plaintiff in attachment, to the amount of the property, money, credits and effects in his hands or due from him to the defendant. The service of such notice shall be deemed service of the commencement of a suit against such garnishee; and upon the re- deemed turn of the constable that such notice has been duly served, the justice ment of suit against gar shall enter such suit on his docket as in other cases, the plaintiff in at- nishee. tachment being named as the plaintiff therein; and if such garnishee does not appear in court as required, it shall be lawful for the justice to continue the suit so commenced against him to some other day, not ex-issue. ceeding three months, and may in his discretion issue a warrant to bring the said garnishee before him; which warrant shall require the constable, after he shall have arrested the garnishee, to notify the plain- Not ce to tiff in attachment of the arrest, and shall be served and returned as other warrants issued by justices of the peace; on the appearance of the said garnishee before the justice, it shall not be necessary for the plaintiff to declare against him, but the affidavit and notice aforesaid shall be deemed sufficient declaration in the cause, and the justice shall forthwith, or on the day to which he may adjourn the same, as in other cases, (but so as not beyond the time fixed for the trial of the suit in attachment,) proceed to examine the garnishee, and all witnesses produced on either side in that behalf, touching the matters alleged in the affidavit aforesaid, and shall take minutes of all such testimony and file the same with the case, in his office; and after such examination is taken and concluded, the suit against the garnishee shall be continued until the tinued. action against the defendant in attachment shall be determined; and the garnishee may appear for said defendant in said suit and defend the same; and if the plaintiff recover against the defendant in attach

plaintiff.

Declaration.

Minutes of testimony

suit con

Costa

ment, and the said garnishee deliver to the officer executing the writ of attachment all the property and effects in his possession belonging to such defendant, and pay all moneys due from him to the said defendant at the time notice was served on said garnishee, or so much of said property and moneys as may be necessary to satisfy said judgment against said defendant, and all costs, then the costs which may have accrued against the garnishee in such suit shall be paid out of the effects in the hands of the officer. But if the garnishee will not deliver over said Judgment property, and pay such money as aforesaid, judgment shall be given against him in the suit commenced by notice as aforesaid, in favor of the plaintiff therein; which judgment shall, when the value of such property and effects, or the money due by such garnishee to the defendant in attachment is less than the amount of the judgment in attachment for damages and costs, be to the amount of such value or money, with costs of suit; but in other cases, for the whole amount of the damages and costs in attachment, together with full costs of the suit Execution against such garnishee, and execution shall issue on such judgment as in other cases.

against gar

Dishee

Jurisdiction

in replevin.

1

Sec. 43. Whenever any plaintiff, his agent, or attorney, shall make and file an affidavit with the justice, setting forth that his personal goods and chattels, not exceeding in value one hundred dollars, have been unlawfully taken, or are unlawfully detained by any other person. specifically describing such property, and giving the value thereof, and stating that the plaintiff is lawfully entitled to the possession of said property, that the same has not been taken for any tax, assessment, or fine, levied by any law of this State, nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution, and claiming damages for the detention of the same, or taking the same, not exceeding one hundred dollars, in addition, and shall file with such justice a bond with sufficient surety or sureties, to be approved by the justice and payable to the defendant, in a penalty at least double the value of such as sworn to in the affidavit, and not less than one Bee 10 chap, hundred dollars, with the condition prescribed in section ten, of the one hundred and twenty-fourth chapter of the statutes, the justice shall isWrit of re- sue a writ of replevin directed to any constable of the county, commanding him to take the property described and return the same forthwith to the plaintiff, and that he summon the defendant to appear at

Replevin boud.

124 R. 8.

ploviu to is

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 re

turnable.

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': 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 execution, exept. &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, the 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 withy '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,

how proved.

Initial let

ters, or con

christian

name.

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 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.

Sec. 58. In all actions on promissory notes or other instruments in tracin 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.

may

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 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

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 a not known 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.

pleadings to issue joined.

Sec. 61. At the time of the first appearance of the parties before the when justice, either upon the return of process or their voluntary appearance be made and 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.

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 General is. 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.

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.

considera

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.