is material, does not appear, the justice may issue an attachment, commanding the constable to take and bring the witness before the court; and the witness may be charged with the fees of the constable and justice, or fined in some other way, as the law provides, unless he shall show reasonable cause for not attending. A witness who, without a reasonable excuse, does not appear, or appearing, refuses to testify, may be fined by the justice, and is liable also to pay the damage sustained by the party in whose behalf he was subpœnaed.

§ 13. At the time of trial, the justice proceeds to try the issue. The witnesses are sworn to testify truly to what they know; and after hearing the proof on both sides, the justice decides according to law and equity, as the right of the case may appear. If a defendant does not appear at the time of tial, the justice may hear the proofs and allegations of the plaintiff, and determine the case according to what shall be made to appear by that party alone.

§ 14. If the demands of the parties are unequal, the justice enters judgment against the party owing, for the amount due the other, with the costs of suit. Judgment is what is adjudged to be due from the one to the other, and always includes the costs, which consist of the fees of the justice, constable and witnesses. If nothing is found to be due the plaintiff, judgment is entered against him for the costs.

§ 15. At the time of joining issue, if the parties, or either of them, for want of material witnesses, or for certain other sufficient reasons, can not safely proceed to trial, the justice may adjourn, or put over the trial to a future day.

§ 16. A plaintiff may discontinue or withdraw his action before judgment is rendered; in which case the justice enters judgment of non-suit, which means a stoppage of the suit. So also a plaintiff is non-suited for not appearing within the time required by law to appear after the hour appointed to commence the suit, or for some other default or error of proceeding. Or if a trial is had, and it is found that the plaintiff has no cause of action against the defendant, judgment for costs is rendered against the plaintiff.

§ 17. Any person indebted to another and wishing to avoid the expense of a law-suit, may confess judgment.

This is done by going before the justice, acknowledging the amount due, and consenting that the justice enter judgment accordingly. In some states, the confession and consent must be in w.iting and signed by the defendant. The law of the state declares the amount for which judgment may be thus confessed.

EXERCISES.

§ 1. Of what persons is a court constituted? § 2. Why are courts of justice necessary?

3. How does the constitution secure justice to offenders? 4 Define jurisdiction.

§ 5. Which is the lowest court in a state?

§ 6. How are justices of the peace elected or appointed in this state? How far does their jurisdiction extend? What is a civil action?

§ 7. What is the party that sues called? The other? By what process is a suit ordinarily commenced?

§ 8. What does a summons require? How many days has a defendant in this state in which to answer the plaintiff ? § 9. How is a summons served?

§ 10. How are the pleadings of parties made? What are these pleadings called?

§ 11. What is a subpoena? How much are the fees of a witness per day in this state?

§ 12. How may the attendance of witnesses be compelled? 13. Can a suit be tried without the appearance of both parties?

§ 14. What is a judgment?

§ 15. In what case may suits be adjourned?

§ 16. In what cases is judgment of non-suit rendered? § 17. In what case, and how, is a confession of judgment made? For what amount may judgment be confessed in a justice's court?

CHAPTER XXVII.

Trial by Juries; Collection of Judgments; Appeals.

§ 1. ONE of the most valuable privileges enjoyed by the people of this country, is the right of trial by jury. A justice, before whom a suit is brought, may be suspected of incompetency, of a want of honesty, or of impartiality. Hence it is not always safe to submit a cause to a justice for decision. That justice, therefore, may as far as possible be secured to all, the constitution guaranties to every person the privilege of having a jury to try a cause to which he is a party. In some states, however, juries are not allowed in suits for sums of small amount in justices' courts.

§ 2. A jury is a number of men who sit on a trial, and are sworn to try a matter of fact, and to declare the truth according to evidence. This declaring of the truth is called verdict, which means a true saying. A jury in a justice's court consists of six men, all of whom must agree in their verdict.

§3. The manner of selecting the jurors is prescribed by the law of the state, and is not the same in all the states. After issue is joined, and before testimony is heard, either par ty may demand of the justice that the cause be tried by a jury. Whereupon the justice issues a venire, which is a writ or precept commanding a constable to summon such number of duly qualified men as the law directs, to appear before the justice to make a jury to try the cause between the parties named in the venire. A greater number than six is usually summoned, from which number the six are drawn who are to constitute the jury. In some states, freeholders only are lawfully qualified to serve as jurors.

§ 4. After hearing the proofs and allegations of the parties, the jurors are put under the charge of a constable, who is sworn to keep them in some convenient place, without meat or drink, except such as the justice may order, till they agree on their verdict, or till discharged by the justice. Nor shall the constable allow any person to speak to them during

such time, nor speak to them himself, except by order of the justice, unless to ask them whether they have agreed on their verdict.

§ 5. When jurors have agreed on their verdict, they publicly deliver it to the justice, who enters it in his docket. If the jurors do not all agree after having been out a reasonable time, the justice may discharge them, and issue a new venire, unless the parties consent that the justice may render judgment on the evidence. Persons summoned as jurors may be fined in the same manner as witnesses, for not appearing, or for refusing to serve.

§ 6. After a judgment has been rendered, it must be carried into effect; that is, the debt or damage, with the costs, must be collected, which is done by a constable. The instrument giving him authority, is issued by the justice, and called an execution. The execution commands the constable to take and sell of the goods and chattels of the debtor, and to bring the money for the debt and costs to the justice within the time mentioned in the execution, which is either longer or shorter, according to the amount of the judgment. If no property can be found, and the debtor does not pay, the constable returns the execution to the justice, not satisfied. It is believed the law in most of the states does not, in ordinary cases, authorize a justice of the peace to issue an execution against real estate, but only against the personal® property of debtors.

§ 7. If a constable shall, through negligence, fail to collect a judgment as required by the execution, or if he shall neglect to return the execution to the justice within the time mentioned therein, the constable himself and his sureties are liable to pay the amount of the judgment.

§ 8. There are certain articles of personal property which are exempt from execution, and which poor men are allowed to retain for the use and comfort of themselves & their families; such as necessary household furniture, apparel, beds, and the tools or implements of trade. In accordance with the increasing spirit of liberality of the age, the laws in most states have been growing more and more favorable to poor debtors. In New York, for example, a man is allowed to keep a team in addition to the property formerly exempted

from execution; and in Vermont, and perhaps a few other states, a house and lot of limited value are allowed the debtor.

§ 9. The imprisonment of a debtor who is unable to satisfy an execution, has been almost entirely abolished, except in the collection of penalties and forfeitures. And even in most cases of this kind, the delinquent is not confined in jail, but by giving the bail required by law, is entitled to the limits of the jail ground.

But

§ 10. The foregoing description of the proceedings of a justice's court is that of a prosecution in ordinary cases. there are other modes of prosecution in certain cases, one of which is by attachment. Suits are commenced in this way when it is presumed that the appearance of the defendant would not be secured by a summons. An attachment is a writ directing the property of a debtor to be taken, and kept till a trial can be had and judgment obtained. This mode of proceeding is adopted when the plaintiff has reason to believe that a debtor conceals himself to avoid being prosecuted by summons, or is about to remove his property or himself from the county, or intends in some other way to defraud his creditors.

§ 11. In case of an absent or concealed debtor, the constable leaves a copy of the attachment, with an inventory of the property attached, at the defendant's last place of residence; or, if he had none in the county, the copy and inventory are to be left with the person in whose possession the property is found. If the defendant does not appear on the day of trial, the plaintiff may proceed to prove his demand, and the justice enters judgment for the amount proved to be due, with costs. To satisfy a judgment so taken, the property attached may be sold on executiou, as in other cases.

§ 12. Appeals. If either party is dissatisfied with a judgment rendered in a justice's court, he may have the cause removed to the county court. In some states, there are certain enumerated cases in which no appeal from a justice's court is allowed. There are different ways of removing causes from the lower courts.

§ 13. When the removal is made by appeal, the whole cause is removed; the witnesses again give their testimony;