affidavit of the defendant that he is a material witness in the action, the officer must immediately take the defendant before another justice of the township or city, if there is another, and if not, then before the justice of an adjoining township, who must take jurisdiction of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him. 864. The officer making the arrest must immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. 865. The officer making the arrest must keep the defendant in custody until he is discharged by order of the justice. 866. A writ to attach the property of the defendant must be issued by the justice at the time of or after issuing summons in actions in which the sum claimed exclusive of interest exceeds ten dollars, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in section 538.--1911-399. 867. Before issuing the writ, the justice must require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than fifty nor more than three hundred dollars, to the effect that if the defendant recovers judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. At any time after the issuing of the attachment, but not later than five days after the notice of its levy, the defendant may except to the sufficiency of the sureties. If he fails to do so, he is deemed to have waived all objections to them. When excepted to they must justify in the manner and within the time provided in section five hundred and thirty-nine, otherwise the justice must order the writ of attachment vacated.--1907-880. 868. The writ may be directed to the sheriff or any constable of the county in which such justice court is situate and must require him to attach and safely keep all of the property of the defendant within his county not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand against the defendant, the amount of which must be stated in conformity with the complaint, unless the defendant, whose property has been or is about to be attached, give him security by the under taking of two sufficient sureties, in an amount sufficient to satisfy such demand against such defendant besides costs; in which case to take such undertaking; provided, however, that whenever_a_levy shall be made upon personal property, other than money, belonging to a going concern, then the sheriff must, if the defendant consents, place a keeper in charge of said attached property at plaintiff's expense for at least two days or more, and said keeper's fees must be prepaid by the attaching creditor. After the expiration of said two days, the sheriff shall take said property into his immediate custody, unless other disposition is made by the court or parties. In the event that the action is against more than one defendant, any defendant whose property has been or is about to be attached in such action may give the sheriff such undertaking, and the sheriff shall take the same, and such undertaking shall not subject such defendant to or be answerable for any demand against any other defendant, nor shall the sheriff thereby be prevented from attaching or be obliged to release from attachment, any property of any other defendant; provided, however, that such defendant, at the time of giving such undertaking to the sheriff, shall file with the sheriff a statement duly verified under oath, wherein such defendant shall aver and declare that the other defendant or defendants in the action in which said undertaking was given has or have not any interest or claim of any nature whatsoever in or to said property. Such statement must further contain the character of such defendant's title and the manner in which he acquired title to such attached property. Several writs may be issued at the same time to the sheriffs or constables of different counties; provided, that where a writ of attachment issued by a justice of the peace is to be served out of the county in which it was issued, the writ of attachment shall have attached to it a certificate under seal by the county clerk of such county, to the effect that the person issuing the same was an acting justice of the peace of said county at the date of the writ. -1917-939. 869. The sections of this code from section five hundred and forty-one to section five hundred and fifty-nine, both inclusive, are applicable to attachments issued in justices' courts, the word "constable" being substituted for the word "sheriff," whenever the writ is directed to a constable, and the word "justice" being substituted for the word "judge." Section ARTICLE III. Claim and Delivery of Personal Property. 870. How claim and delivery enforced. 870. In an action to recover possession of personal property, the plaintiff may, at the time of issuing summons or at any time thereafter before answer, claim the delivery of such property to him; and the sections of this code from section five hundred and ten to section five hundred and twenty-one, both inclusive, are applicable to such claim when made in justices' courts, the powers therein given and duties imposed on sheriffs being extended to constables, and the word "justice" substituted for "judge." 871. If the defendant fail to appear, and to answer or demur within the time specified in the summons, then, upon proof of service of summons, the following proceedings must be had: 1. If the action is based upon a contract, and is for the recovery of money, or damages only, the court must render judgment in favor of plaintiff for the sum specified in the summons. 2. In all other actions the court must hear the evidence offered by the plaintiff, and must render judgment in his favor for such sum (not exceeding the amount stated in the summons), as appears by such evidence to be just.-1880-113. 872. In the following cases the same proceedings must be had and judgment must be rendered in like manner as if the defendant had failed to appear and answer, or demur: 1. If the complaint has been amended, and the defendant fails to answer it, as amended, within the time allowed by the court; 2. If the demurrer to the complaint is overruled, and the defendant fails to answer within the time allowed by the court, not to exceed five days. 3. If the demurrer to the answer is sustained and the defendant fails to amend the answer within the time allowed by the court. -1921-122. Section CHAPTER VI. Time of Trial and Postponements in Justices' Courts. 873. Time when trial must be commenced. Section 876. Postponement upon applica tion of a party. 874. When court may, of its own 877. No continuance motion, postpone trial. 875. Postponement by consent. for more than ten days to be granted, unless upon filing of undertaking. 873. Unless postponed, as provided in this chapter, or unless transferred to another court, the trial of the action must commence at the expiration of one hour from the time specified in the notice mentioned in section eight hundred and fifty, and the trial must be continued, without adjournment for more than twentyfour hours at any one time, until all the issues therein are disposed of.-1875-100. 874. The court may, of its own motion, postpone the trial: 1. For not exceeding one day, if, at the time fixed by law or by an order of the court for the trial, the court is engaged in the trial of another action; 2. For not exceeding two days, if, by an amendment of the plead ings, or the allowance of time to make such amendment or to plead, a postponement is rendered necessary; 3. For not exceeding three days, if the trial is upon issues of fact, and a jury has been demanded. 875. The court may, by consent of the parties, given in writing or in open court, postpone the trial to a time agreed upon by the parties. 876. The trial may be postponed upon the application of either party, for a period not exceeding four months: 1. The party making the application must prove, by his own oath or otherwise, that he cannot, for want of material testimony, which he expects to procure, safely proceed to trial, and must show in what respect the testimony expected is material, and that he has used due diligence to procure it and has been unable to do so; 2. If the application is on the part of the plaintiff, and the defendant is under arrest, a postponement for more than three hours discharges the defendant from custody, but the action may proceed notwithstanding, and the defendant is subject to arrest on execution, in the same manner as if he had not been discharged; 3. If the application is on the part of a defendant under arrest, before it can be granted he must execute an undertaking, with two or more sufficient sureties, to be approved by, and in a sum to be fixed by, the justice, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. On filing the undertaking specified in this subdivision, the justice must order the defendant to be discharged from custody. 4. The party making the application must, if required by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposition before the justice, and that the testimony so taken may be read on the trial, with the same effect, and subject to the same objections, as if the witness was produced; -But the court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. 877. No adjournment must, unless by consent, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the justice, with two sureties, to be approved by the justice, to the effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking. Section CHAPTER VII. Trials in Justices' Courts. Section 878. Issue defined, and the differ- 884. Either party failing to ap ent kinds. 879. Issue of law, how raised. 880. Issue of fact, how raised. 881. Issue of law, how tried. 882. Issue of fact, how tried. 883. Waving jury trial. pear, trial may proceed at request of other party. 885. Challenges to jurors. 886. Manner of pleading a written instrument. 887. Complaint, when accompanying instrument deemed genuine. 878. Issues arise upon the pleadings when a fact or conclusion of law is maintained by the one party and is controverted by the other. They are of two kinds: 1. Of law; and, 2. Of fact. 879. An issue of law arises upon a demurrer to the complaint or answer, or to some part thereof. 880. An issue of fact arises: 1. Upon a material allegation in the complaint controverted by the answer; and, 2. Upon new matter in the answer, except an issue of law is joined thereon. 881. An issue of law must be tried by the court. 882. An issue of fact must be tried by a jury, unless a jury is waived, in which case it must be tried by the court. 883. A jury may be waived 1. By consent of parties, entered in the docket; 2. By a failure of either party to demand a jury within two days after service upon him of notice of trial of an issue of fact, as provided in section eight hundred fifty; 3. By the failure of either party to appear at the time fixed for the trial of an issue of fact.-1919-1013. 884. If either party fails to appear at the time fixed for trial the trial may proceed at the request of the adverse party. 885. The challenges are either peremptory or for cause. Each party is entitled to three peremptory challenges. Either party may challenge for cause on any grounds set forth in section six hundred and two. Challenges for cause must be tried by the justice. 886. When the cause of action or counterclaim arises upon an account or instrument for the payment of money only, the court, at any time before the trial, may, by an order under his hand, require the original to be exhibited to the inspection of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the |