Set-off in suits by etc. Defendant nezlect ne to set-off ded from recov shall render judgment of discontinuance against the plaintiff with costs to the defendant; and the defendant may thereafter sue for and recover his demand in any Court having cognizance thereof. (3727.) SEC. 75. Whenever a set-off is established in a suit brought by executors or Administrators, and the defendant shall be entitled to judgment, such judgment shall be rendered against the plaintiffs in their representative character, and shall be evidence of debt established to be paid in the course of administration, but no execution shall issue thereon. (3728.) SEC. 76. If defendant neglect to set-off any demand demand, preclu- which, according to the preceding provisions might have been ering costs. allowed to him on the trial of the cause, he shall be forever thereafter precluded from recovering costs in any action brought to recover such demand, or any part thereof, which might have been set-off; and if the demand which might have been set-off, consisted of a negotiable promissory note or bill of exchange, no person who shall derive title thereto, after the amount thereof might have been set-off as aforesaid, shall recover costs in any action thereon. Nee that title w.li come in question. 15 Johnson, 304. 6 Hill, 41. 6 Wendell, 465. Plea and notice to be in writing. Bond to be given by defendant. If Bond be given, cause to be certi fied Court. (3729.) SEC. 77. In every action where the title to any lands shall in anywise come in question, the defendant, at the time he is required to join issue, and not after, may give notice. under the general issue, showing that the title to lands will come in question, and may also give notice of any other matter of defence to the action. (3730.) SEC. 78. Such plea and notice shall be in writing, and signed by the defendant or his attorney, and delivered to the Justice. (3731.) Sc. 79. At the time of tendering such plea and notice, the defendant, with at least one sufficient surety, to be approved by the Justice, shall enter into a bond to the plaintiff, in a penalty, at least two hundred dollars, conditioned that such defendant will pay any judgment that may be rendered against him in such action in the Circuit or District Court of such county. (3732.) SEC. 80. Such bond shall be delivered to the Justice to Circuit at the time of tendering such plea and notice, and the Justice shall thereupon, without further proceeding, certify the cause and papers to the Circuit or District Court of the proper county where the same may be tried, and the costs so paid by the defendants, shall be allowed to him if he recover costs in the action in that Court. livered, Justice 6 Hill, 342. (3733.) SEC. 81. If such bond be not delivered as herein If Bond not dedirected, the Justice shall have jurisdiction of the cause, and to proceed, etc. shall proceed therein, and the defendant shall be precluded in his defence 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. shall certify to the Circuit or Dis1 Mich. Rep., 8 Barb., 239. (3734.) SEC. 82. If it appear on the trial from the plaintiff's when Justice own showing that the title to lands is in question, which title cause shall not be admitted by the defendant, the Justice shall, trict Court. without further proceeding, certify the cause and papers to 145. the Circuit or District Court of the county where the same shall be tried; and the party in whose favor judgment shall be rendered in the Circuit or District Court, shall recover costs, which shall include his costs before the Justice. (3735.) SEC. 83. When a suit is removed from a Justice by When suit rethe delivery of a plea and notice, and a bond as above pro- to be the same. vided, the plaintiff in such suit shall not 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. moved, pleadings Court. (3736.) SEC. 84. If the judgment in such suit in the Circuit Costs in Circuit or District Court shall be for the plaintiff, he shall recover double costs; if it be for the defendant (other than judgment of non-suit), and the presiding Judge of the Court before which the issue is tried, shall certify that the title to lands did not come in question, the defendant shall not recover costs, but shall pay costs to the plaintiff. tion contains sev title to lands in part. to (3737.) SEC. 85. If the plaintiff's declaration in a suit before when declaraa Justice shall contain several counts or causes of action, to eral counts, and one or more of which a defence, bringing in question the title question as to lands, shall be interposed by the defendant, and he shall tender a plea and notice to such Court, and deliver a bond as above provided, the Justice shall discontinue proceedings for such cause of action; and for the other causes of action the Justice may continue his proceedings. OF ADJOURNMENTS. how obtained, (3738.) SEC. 86. If the plaintiff shall make it appear to the Adjournments, satisfaction of the Justice by his own oath, or the oath of any etc. other person, that he cannot safely proceed to trial for the 3 Hill, 323. journment. 11 Johnson, 442. Want of some material testimony or witness, the Justice shall 3 Wendell, 420. postpone the trial for such reasonable time, and so often as he shall deem it proper, not exceeding in all three months: Subsequent ad- Provided, That a party claiming an adjournment after a former adjournment has been had, on his own motion, shall further make it appear to the satisfaction of the Justice, that he has 8 Johnson, 437. used reasonable diligence to procure such testimony or witness, since the last preceding adjournment; And Provided, That in the Upper Peninsula the adjournments shall not exceed six months. 4 Denio, 95. journment unless he exhibit his ac. count, etc. When party not (3739.) SEC. 87. No party shall be entitled to an adjournment after he shall have seen the account or demand of the adverse party, unless he shall exhibit his account or demand, if any he has, to be litigated or passed upon in the suit, or shall state the nature thereof, as far forth as may be in his power, to the satisfaction of the Justice. on Defendant may give Bond. ed. (3740.) SEC. 88. If a cause commenced by warrant be ading adjournment journed on the application of the defendant, he shall continue. and be discharg during the time of adjournment in the custody of the constable, unless he shall give bond to the plaintiff in the sum of two hundred dollars, with sufficient surety or sureties, to be approved by the Justice, conditioned that the defendant will render himself in execution in case judgment shall be rendered against him in the suit, and that no part of his property liable to execution shall be removed, secreted or assigned, or disposed of, except for the necessary support of himself and family, until any judgment the plaintiff may obtain against him shall be satisfied, or until the expiration of ten days after the plaintiff shall be entitled to execution thereon. If cause adjourned by consent, to be discharged. (3741.) SEC. 89. If such cause be adjourned on the applicaete, defendant tion of the plaintiff, the defendant, if the Justice shall think it proper, shall be discharged from custody, but the cause shall not be discontinued by such discharge; and at the adjourned day the same proceedings shall be had as in case of a summons returned personally served. When Justice may adjourn the consent of par ties.. (3742.) SEC. 90. At the time of the return of a summons Court without against a resident of the county, in favor of one who is also a resident, or an attachment personally served, or of a writ of replevin, or of joining issue without process, a Justice may, in his discretion, and with or without the consent of the parties, adjourn the cause not exceeding six days. OF COMPELLING THE ATTENDANCE OF WITNESSES. sue subpoenas. (3743.) SEC. 91. Any Justice of the Peace may issue subpoe- Justice may is nas to compel the attendance of witnesses, to give evidence in any cause or matter depending 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. (3744.) SEC. 92. A subpoena may be served either by a subpoena, by constable or any other person, and it shall be served by read-served. ing the same, or stating the contents to the witness, and by paying or tendering the fees allowed by law for traveling, and one half day's attendance. whom and how 4 Denio, 75. ment may issue (3745.) SEC. 93. Whenever it shall appear by the affidavit when attachof the party in the suit, or by other competent testimony, to for witnesses. the 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. attachment es, by whom (3746.) SEC. 94. Every such attachment shall be issued in Fees for serving the same manner as a warrant, and the fees of the officers for against witnessissuing and serving the same, shall be paid by the person paid. against 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. ing to appear or (3747.) SEC. 95. Every person duly subpoenaed as a witness, Penalty for refus who shall not appear, or who appearing shall refuse to testify, to testify. shall forfeit for every such non-appearance or refusal (unless 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. posed. (3748.) SEC. 96. Such fine may be imposed by the Justice, How fine im the witness being before him, or his being brought before upon him on attachment; and the Justice shall thereupon make and enter in his docket, a minute of the conviction and the cause to issue to col executed. thereof, and the same shall be deemed a judgment, in all respects, at the suit of the People of this State. When execution (3749.) SEC. 97. Upon the imposition of such fine, and in lect fine, and how default 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 until he shall pay such fine and costs; and the keeper of such 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. Money collected to be returned arer. ing to appear, or (3750.) SEC. 98. When money shall be collected on such and paid over to execution, the constable shall return the same to the Justice, County Treasand such Justice shall pay over the amount of such fine to the County Treasurer, to be distributed according to law. Witness clect (3751.) SEC. 99. Every person subpoenaed as aforesaid, and refusing to testi- neglecting 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 fees shall be paid to any person for attendance or travel as a witness, and such person shall fail to attend, he shall refund the amount paid. fy, liable for damages. Ibid (3752.) SEC. 100. Every person subpoenaed as aforesaid, and neglecting or refusing to appear or testify, shall also be liable to the party in whose behalf he shall have been subponaed, for all damages which such party shall sustain by reason of such non-appearance or refusal; and in all cases where any fees shall be paid to any person for attendance or travel as 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. Issue, when and how to be tried by Justice. (3753.) SEC. 101. Whenever issue shall have been joined in a suit before a Justice, if no jury shall have been demanded by either party, the Justice shall proceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same according to law, as the very right of the case may appear. |