of said court shall docket said cause, and the action shall be proceeded with in said court in all respects as if the same had originated therein.

CHAPTER III.-BILL OF PARTICULARS.

5420 (951). In all cases before a justice, the plaintiff, his agent or attorney, shall file with such justice a bill of the particulars of his demand, and the defendant, if required by the plaintiff, his agent or attorney, shall file a like bill of the particulars he may claim as a set-off; and the evidence on the trial shall be confined to the items set forth in said bills.

Defendant need not file bill of particulars unless plaintiff demand it. 15, 441 (19 N. W., 684). Section does not apply to action in replevin. 25, 106 (41 N. W., 134). A promissory note is a sufficient, if issued on. 14, 446 (16 N. W., 484); 18, 184 (24 N. W., 727). Justice having note in his possession may render judgment upon it in absence of the parties. 14, 446 (16 N. W., 484). It would be improper for a justice to prepare bill of particulars in case before himself. 10, 491 (6 N. W., 597). Judgment may be rendered on the pleadings. 29, 487 (45 N. W., 779). Cited, 14, 249 (15 N. W., 216).

5421 (952). The bill of particulars must state, in a plain and direct manner, the facts constituting the cause of action, or the claim to be set off.

When bill of particulars fully apprises defendant of the nature of the claim against, will be held sufficient. 21, 370 (32 N. W., 72). An account is a sufficient statement. 13, 220 (13 N. W., 175).

5422 (953). The bill of particulars may be amended at any time before the trial, or during the trial, or upon appeal, to supply any deficiency or omission in the items, when, by such amendments, substantial justice will be promoted. If the amendment be made at the time of or during the trial, and it be made to appear to the satisfaction of the justice, by oath, that the adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment must be granted. The justice may, also, in his discretion, require, as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the justice; but such payment cannot be required unless an adjournment is made necessary by the amendment.

CHAPTER IV.-CHANGE OF THE PLACE OF TRIAL.

5423 (954). The place of trial may be changed if, on the return of process, or at any time before trial shall have commenced, it shall be made satisfactorily to appear to the justice of the peace before whom any cause is instituted, or is pending for trial, by the affidavit of either of the parties in the case, that such justice is a material witness for either party, or if a jury be demanded by the adverse party, then that he cannot, as he verily believes, have a fair and impartial trial in the precinct or place for which said justice may have been elected, on account of the bias or prejudice of the citizens thereof.

Addressed to discretion of the court. 4, 286. Cannot be granted after judgment by default, though it be set aside. 29, 688 (46 N. W.,.154).

5424 (955). If the place of trial be changed on account of the justice being a material witness in the cause, such cause may be transferred for trial before some other justice of the peace in the same precinct. If the place of trial be changed on account of the bias or prejudice of the citizens of such precinct or place, the case shall be taken to some justice in an adjoining precinct in the same county.

5425 (956). The justice granting such change shall deliver or transmit the papers in the cause, together with a certified transcript of the proceedings before him, to the justice to whom such change may be granted, who shall proceed therein and have the same jurisdiction, powers, and duties, in all respects whatever, as if suit had been originally instituted before him.

5426 (957). Before any such change shall be allowed, the costs, as specified in the next following section, shall be paid by the party applying for such change.

5427 (958). When such change is at the instance of the plaintiff, he shall be taxed with all the costs which have accrued and which shall accrue in the cause, until such transcript and papers shall be delivered to the justice to whom such cause is removed for trial; and when on the application of the defendant, he shall be taxed for the costs which have accrued for issuing subpoenas for witnesses and service thereof, witness fees, and costs of the justice for transferring the cause to the docket of the other justice.

Secs. 5428 and 5429. "An act to allow a change of venue in civil and criminal proceedings before justices of the peace, on account of the interest, bias, or prejudice of the justice.' In force March 25.

70.

1871, p.

5428. That in all civil and criminal proceedings before justices of the peace, any defendant in such proceedings may apply for and obtain a change of venue, by filing an affidavit in the case made by the defendant, his agent or attorney, stating that the defendant cannot, as affiant verily believes, have a fair and impartial hearing in the case on account of the interest, bias, or prejudice of the justice, and by paying the costs now required to be paid by defendant on change of venue, for the causes and in the cases mentioned in chapter four of title thirty, part two of the Revised Statutes, and thereupon the proceedings shall be transferred to the nearest justice of the peace, to whom the said objections do not apply, of the same county, to be proceeded with in the manner pointed out for the transfer and procedure in cases on change of venue for cause mentioned in said chapter four.

This act applies to all proceedings, civil and criminal, before justices of the peace; but a second change in the same proceeding is not allowed for same cause. 10, 82 (4 N. W., 511). A change of venue to a justice who being unable to try the case by reason of bias or prejudice transferred to nearest justice, held no grounds for dismissal. Proper proceeding would have been to remand. 21, 152 (31 N. W., 507). These provisions are not applicable to county courts. 10, 439 (6 N. W.,769).

5429. The application shall be made before entering upon the merits of the case by the introduction and reception of evidence; and no second change of venue shall be allowed for the same cause in the same proceeding.

CHAPTER V.-ADJOURNMENTS.

5430 (959). Upon the return day, if a jury be required, or if the justice be actually engaged in other official business, he may adjourn the trial without the consent of either party, as follows: First-Where a party is in attendance who is not a resident of the county, or where the defendant is in attendance under arrest, the adjournment not to exceed forty-eight hours, and the defendant, if under arrest, to continue in custody. Second-In other cases, not to exceed eight days, unless by consent of parties. If the trial be not adjourned, it must take place immediately upon the return of the summons.

5431 (960). The trial may be adjourned upon the application of either party, without the consent of the other, for a period not exceeding thirty days, as follows: the party asking the adjournment must, if required by his adversary, prove by his own oath, or otherwise, that he cannot, for want of material testimony which he expects to procure, safely proceed to trial.

May be in language of statute, purport of testimony need not be stated. 28, 91 (44 N. W., 78). Need not describe testimony sought. Award of costs on continuance discretionary with trial court. 29, 588 (45 N. W., 929).

5432 (961). An adjournment may be had either at the return day or at any subsequent time to which the cause may stand adjourned, on the application of either party, for a period longer than thirty days, but not to exceed ninety days from the time of the return of the summons, upon compliance with the provisions of the preceding section, and upon proof by oath of the party, or otherwise, to the

satisfaction of the justice, that such party cannot be ready for trial before the time to which he desires an adjournment for want of material evidence, describing it, that the delay has not been made necessary by any act or negligence on his part since the action was commenced, and that he expects to procure the evidence at the time stated by him.

Affidavit for continuance held insufficient. 27, 497-9 (43 N. W., 344).

CHAPTER VI.-WITNESS.

5433 (962). Any justice may issue subpoenas to compel the attendance of witnesses to give evidence on any trial pending before himself, or for the purpose of taking depositions, or to perpetuate testimony.

5434 (963). A subpoena may be served by a constable or any other person, and shall be served by reading the same or stating the contents thereof to the witness, or by leaving a copy thereof at his usual place of residence.

5435 (964). When not served by a constable or sheriff, or some person deputed for that purpose by a justice, no fees shall be charged in the suit for serving it.

5436 (965). If any witness, having been subpoenaed, attend and be not examined by either party, the costs of such witness shall be paid by the party ordering the subpoena, unless the adverse party, by confessing the matter, or otherwise, render unnecessary the examination of such witness.

5437 (966). Whenever it shall appear to the satisfaction of a justice, by proof made before him, that any person has been duly served with a subpoena to appear and give testimony before him in any matter in which he has authority to require such witness to appear and testify, that his testimony is material, and that he refuses or neglects to attend as such witness in conformity with such subpoena, the justice shall issue a warrant for the arrest of the delinquent, for the purpose of compelling his attendance, and punishing his disobedience.

5438 (967). When a person arrested is brought before the justice, or when a person in attendance refuses to testify as a witness, and no valid excuse be shown, the justice may impose a fine on him not exceeding five dollars. An entry of such fine, stating the reason therefor, must be made by the justice in his docket, and thereupon shall have the effect of a judgment in favor of the state of Nebraska against the delinquent, and may be enforced against his person or property.

5439 (968). Every person subpoenaed as aforesaid, and neglecting to appear, or refusing to 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 delinquency.

5440 (969). [Depositions.]-Depositions may be taken to be read in a cause pending before a justice of the peace, in like manner, and subject to the same restrictions and rules of law, as in cases pending in the district court.

CHAPTER VII.-THE TRIAL AND ITS INCIDENTS.

5441 (970). At the time appointed for trial, if no jury shall have been demanded by either party, the justice shall proceed to try the action, shall hear the proofs, and determine the cause according to law and the right.

It will be presumed that there was evidence to support the finding of the justice. 21,529 (32 N. W., 56).

5442 (971). Where parties agree to enter, without process, before a justice, any action of which such justice has cognizance, such justice shall enter the same on his docket, and proceed to trial, judgment, and execution, in all respects in the same manner as if summons had been issued, served, and returned.

5443 (972). [Jury.]-In all civil actions, after the appearance of the defendant, and before the court shall proceed to inquire into the merits of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful men, having the qualifications of electors, unless the parties shall agree on a less number. When a jury is demanded, the trial of the cause must be adjourned until a time fixed for the return of the jury. If neither party desire an adjournment, the time must be determined by the justice, and must be on the same day, or within the next two days the jury must be immediately selected, as herein provided.

5444 (973). The justice shall write in a panel the names of eighteen persons, citizens of the county, from which the defendant, his agent or attorney, shall strike one, and then the plaintiff, his agent or attorney, shall strike one, and so on alternately, until each shall have stricken six names, and the remaining six shall constitute the jury to try such case; and if either party neglect or refuse to aid in striking the jury as aforesaid, the justice shall strike the same in behalf of such party.

Original section provided for a jury of twelve; amended 1869, p. 90.

5445 (974). The justice thereupon shall issue a summons for the jury, in which the following form shall be observed in substance, as near as practicable: The State of Nebraska, County. To any Constable or the Sheriff of said county: You are hereby commanded to summon to appear before me at my office, in said county, on the day of, A. D. o'clock in the -noon, to serve as jurors in a case pending before me, then and there to be tried. And this they shall in nowise omit. And have you then and there this writ, with your doings thereon. Given under my hand, this

Justice of the Peace.

at

day of

A. D.

5446 (975). The officer shall serve such summons by a personal service thereof, and return the same, endorsed with the names of the persons summoned, at the time appointed for the trial of the case. Jurors, for neglecting to attend when properly summoned, or refusing to serve when in attendance, shall be liable to the like penalty, and be proceeded against in the same manner, as witnesses who fail to attend or refuse to testify.

Officer cannot demand fees in advance for summoning jurors. 27, 398 (43 N. W., 177).

5447 (976). The constable or sheriff shall be in attendance on the court at and during the progress of the trial; and if, from challenge or other cause, the panel shall not be full, he may fill the same in the same manner as is done by the sheriff in the district court.

5448 (977). When a jury shall be in attendance, and the cause shall be continued, the jurors must attend at the time and place appointed for the trial, without further notice.

5449 (978). If party object to the competency of a juror, the question thereon must be tried in a summary manner by the justice, who may examine the juror or other witness under oath.

5450 (979). The justice shall administer an oath or affirmation to the jury, well and truly to try the matter in difference between the parties, and a true verdict to give according to the evidence.

5451 (980). After the jury shall have been sworn, they shall sit together and hear proofs and allegations of the parties; and after hearing the same, shall be kept together in some convenient place, under charge of a constable or sheriff, until they have agreed upon their verdict, or shall be discharged by the justice.

A county judge or justice of the peace has no authority to instruct a jury. 13, 255 (13 N. W. 276); 15, 628 (19 N. W., 487); 27, 157 (42 N. W., 890).

5452 (981). When the jury shall have agreed upon their verdict, they shall deliver it to the justice, publicly, who shall enter it upon his docket.

Docket entry stating not verdict itself but merely purport thereof, error without prejudice. Where judgment is based on a verdict, justice need not make findings. 24, 830 (40 N. W., 416). Not proper to arrive at verdict by dividing sum of estimates of each juror by whole number of jurors. 27, 157 (42 N. W., 890).

5453 (982). Whenever the justice shall be satisfied that a jury, sworn in any cause before him, cannot agree in the verdict, after having consulted upon it a reasonable time, he may discharge them and continue the cause, and may, if required by either party, proceed to strike another jury, as herein before provided. The cause shall be continued to such time as the justice thinks reasonable, unless the parties, or their attorneys, agree on a longer or shorter time, or unless they agree that the justice may render judgment on the evidence already before him.

5454 (983). It shall be lawful for the justice before whom a cause has been tried, on motion, and being satisfied that the verdict was obtained by fraud, partiality, or undue means, at any time within four days after the entering of judgment, to graut a new trial, and he shall set a time for the new trial, of which the opposite party shall have three day's notice.

This section applies to county court. 12, 479 (11 N. W., 738). See 23, 545 (37 N. W., 310). 5455 (984). The opposite party shall also have a reasonable notice of such motion for a new trial, if the same is not made on the day of the former trial, and in the presence of such party; such notice to be given by the applying party. If the new trial shall be granted or the jury be unable to agree, the proceedings shall be in all respects as upon the return of the summons.

5456 (985). If either the plaintiff or defendant, in his bill of particulars, claims more than twenty dollars, the case may be appealed to the district court; but if neither party demands a greater sum than twenty dollars, and the case is tried by a jury, there shall be no appeal.

Justice not required to approve bond unless filed within ten days from rendition of judgment. 21, 528 (32 Ñ. W., 561).

5457 (986). If, on an appeal by the plaintiff, * from a judgment in his favor,* he shall not recover a larger sum than twenty dollars exclusive of interest since the rendition of the judgment before the justice, he shall be adjudged to pay all costs in the district court, including a fee of five dollars to the defendant's attorney; and in case the defendant shall demand a set-off greater than twenty dollars, and he appeals from a judgment in his favor, and does not recover twenty dollars, he shall, in like manner, pay all costs in the appellate court, including a like fee to the plaintiff's attorney.

*to* inserted 1881, p. 210. Does not apply to replevin. 7, 19. The language of this section said to be too plain to admit of construction and application of it made. 10, 509 (7 N. W., 284. Cited, 29, 141 (45 N. W., 273).

5458 (987). Upon the verdict being delivered to the justice, and before judgment being rendered thereon, each juror shall be entitled to receive fifty cents at the hands of the successful party, which shall be taxed in the cost bill against the losing party. When the jury shall be unable to agree upon a verdict, the same compensation shall be paid them by the party calling the jury, and the same shall be taxed in the cost bill against the losing party.

5459 (988). In all cases which shall be tried by a jury before a justice of the peace, either party shall have the right to except to the opinion of the justice, upon any question of law arising during the trial of the cause; and when either party shall allege such exception, it shall be the duty of the justice to sign and seal a bill, containing such exception, if truly alleged, with the point decided, so that the same may be made part of the record in the cause.