1506. (1439.) Special constable.-110. Whenever there shall be no constable convenient, and in the opinion of the justice an emergency exists for the immediate services of one, such justice may appoint a special constable to act in a particular cause; and shall note such appointment in such cause on the docket, and shall direct process to him by his name; and such constable, so appointed, shall discharge the duties, receive the fees, and have the powers, in such cause, appertaining to the office.

The appointment of a special constable can only be proven by an entry on the docket of the justice. Benninghoof v. Finney, 22 Ind. 101; Dietrichs v. Schaw, 43 Ind. 175. Such appointment may be entered by the justice on his docket at any time. McLain v. Matlock, 7 Ind. 525; Britton v. State, ex rel., 54 Ind. 535.

Special constables can only be appointed to serve process in a particular case. McLain v. Matlock, 7 Ind. 525.

As to what will constitute a sufficient entry of appointment, see Ziegler v. Powell, 54 Ind. 173.

The process should be directed to the special constable by name. Dietrichs v. Schaw, 43 Ind. 175; Hayden v. Souger, 56 Ind. 42; State v. Wenzel, 77 Ind. 428.

The use of the word deputy instead of special in the process will be immaterial. Ziegler v. Powell, 54 Ind. 173.

Unless a special constable is properly appointed, and process duly issued, the justice will not acquire jurisdiction by service of the process. Dietrichs v. Schaw, 43 Ind. 175; State v. Wenzel, 77 Ind. 428.

A special constable may serve all process in the cause, including an execution. Hood v. Sennett, 70 Ind. 329.

A mittimus delivered to a special constable need not be directed to him by name. Sturgeon v. Gray, 96 Ind. 166.

1507. (1440.) Justice's responsibility.-111. The justice appointing such constable shall, with his sureties, be liable on his official bond for any neglect of duty or illegal proceedings by such constable in such cause.

The justice of the peace is liable on his bond for any neglect of duty by a special constable. State, ex rel., v. Read, 94 Ind. 103.

If a justice, or his sureties, are compelled to pay a sum for neglect of duty by a special constable, he is liable to them for the amount paid. Hood v. Sennett, 70 Ind. 329.

1508. (1441.) Jurisdiction of person.-13. No person who is a resident of any township in the state shall be sued out of said township except as specified in the above mentioned act, unless said suit is commenced by capias ad respondendum, or where there shall be no justice competent to act in said township, and except that on [an] action of debt for the recovery of any penalty in favor of any plank road, gravel road or turnpike company, may be prosecuted in any township of the county where the offense was committed.

(As amended, Acts 1885, p. 230. Ell. Supp., section 295. In force July 18, 1885.) See section 1498, and notes.

As a general rule, residents of this state can only be sued before justices in the township of their residence. Michael v. Thomas, 24 Ind. 72; Grass v. Hess, 37 Ind. 193; Wilkinson v. Moore, 79 Ind. 397; Johnson v. Ramsay, 91 Ind. 189.

A judgment by default against a sole defendant who is a resident of another town

ship is void, unless the case is within some exception of the statute. Hampton v. Warren, 51 Ind. 288.

When a party pleads to the merits, he waives the question of residence. Ludwick v. Beckamire, 15 Ind. 198; Nesbit v. Long, 37 Ind. 300; Harbaugh v. Albertson, 102 Ind. 69; Day v. Henry, 104 Ind. 324.

Actions by landlords against tenants to recover possession may be brought in any township in the county. Scott v. Willis, 122 Ind. 1.

Actions of replevin may be brought in the township where the property was taken or is detained. Copple v. Lee, 78 Ind. 230.

Bastardy proceedings may be commenced in any township of the county. Morris . State, ex rel., 115 Ind. 282.

1509. (1442.) Several defendants-Suits by assignees.-14. When there is more than one defendant, and they reside in different townships, suit may be commenced in either township, and process served upon all others wherever found in the county, and they held to answer in such suit; but any action brought by the assignee of a claim arising out of contract, whether assigned in writing or by delivery, shall be commenced in the township where one or more of the parties immediately liable to judgment and execution resides, and not elsewhere.

[Acts 1893, p. 338. In force March 4, 1893.]

1510. Several defendants-Summons to other counties.-1. That in all suits or actions upon written obligations for the payment of money, or the performance of any other duty or obligation, and that such written obligation was made or executed by more than one obligor; or in case there be on such contract any surety, indorser, guarantor, or other obligor, and that such cause of action is within the jurisdiction of a justice of the peace as now fixed by law, suit may be instituted thereon in the township where one of the makers or principal obligor on such instrument resides, and such justice before whom such suit is instituted, may issue a summons or other proper notice for any party or parties to such written obligation to any constable of any county in this state where such other party or parties reside, and it shall be the duty of such constable to serve such writ and make his return thereon as if such writ had been issued to him by a justice of the peace of his own township, and shall be liable upon his official bond in the same manner and to the same extent as if such writ had been directed to him by a justice of his own township, and shall be allowed the fees now fixed by law for such services. And his return on such writ shall have the same force and effect as if such constable was a resident of the township wherein such suit is brought.

[2 R. S. 1852, p. 449. In force May 6, 1853.]

1511. (1443.) Trespass, where brought.-15. Suits for trespass to real and personal property may be brought either in the township where the defendant resides or where the trespass was committed, and process served throughout the county.

Replevin may be brought before a justice in the township of residence or of the unlawful taking; and process runs throughout the county. Cook v. Gibson, 21 Ind. 303; Test v. Small, 21 Ind. 127; Nesbit v. Long, 37 Ind. 300; Copple v. Lee, 78 Ind. 230.

1512. (1444.) Official bonds.-16. Official bonds of officers may be sued on before justices, where the damages claimed for breach of the condition thereof do not exceed two hundred dollars.

1513. (1445.) Jurisdiction in attachment.-122. Justices may issue writs of attachment against the personal property of a debtor, under the rules prescribed for the prosecution of such writs, when the amount claimed by any one creditor does not exceed two hundred dollars; and their jurisdiction in such case shall be co-extensive with the county. The practice in attachment proceedings is the same in justices' courts as in other courts. Dunn v. Crocker, 22 Ind. 324.

Jurisdiction of the defendant in attachment proceedings must be obtained or the judgment will be void. Andrews v. Powell, 27 Ind. 303.

If each claim filed in attachment proceedings is within the jurisdiction of the justice judgments may be rendered without regard to the aggregate amount. Andrews v. Powell, 27 Ind. 303.

Actions of attachment against residents of the state must be brought in the township of their residence. Wilkinson v. Moore, 79 Ind. 397.

An affidavit in attachment may also serve as a complaint. Dunn v. Crocker, 22 Ind. 324.

1514. (1446.) Jurisdiction in ne exeat.-123. Justices shall have power to issue writs of ne exeat, under the rules prescribed for the issue of such writs, when the amount claimed does not exceed two hundred dollars.

[1881, p. 42. In force September 19, 1881.]

1515. (1447.) Semi-annual report.-1. Each justice of the peace shall, on the first Monday in January, and on the first Monday in July of each year, make a report to, and pay over to, the county treasurer of his respective county, all fines collected by him since his last previous report, verifying such report by oath: Provided, That at the time of making such report the amount of the fines collected shall exceed three times the amount that he would be entitled to draw from the county as mileage in making such report.

1516. (1448.) When to report-Final payment.-2. Where the amount of fines collected by any justice of the peace does not exceed three times the amount that he would be entitled to as mileage in making such report, he shall report by writing to the treasurer of the county the exact amount of fines collected by him, and retain the same until the next semi-annual settlement: Provided, That at the expiration of his term of office he shall make full report, and pay over to the treasurer all fines collected by him and not heretofore paid.

[2 R. S. 1852, p. 449. In force May 6, 1853.]

1517. (1449.) Security for costs.-55. Justices shall require security for costs from plaintiffs living out of the county.

Failure to file bond for costs is no cause for dismissing the cause when appealed to the circuit court. Coffey v. Collier, 12 Ind. 565; Hauser v. Smith, 13 Ind. 532.

Such bond may be filed at any time during the pendency of the action. Hauser v. Smith, 13 Ind. 532.

In an action on a cost bond the plaintiff can only recover the costs made by him and which he has paid, or is liable to pay. Hiett v. Davis, 88 Ind. 372.

1518. (1450.) Suits, how instituted.-20. Suits may be instituted before justices by agreement or process; and the delivery of the process to the officer authorized to serve the same, if by process, and the entry of the fact upon the docket, if by agreement, shall be deemed such commencement; and it shall be the duty of such officer to note on such process the date when it came to his hands.

The delivery of the process must be to an officer authorized to serve the same in order to amount to the commencement of a suit. If suit is commenced by agreement the docket must show the fact. Penrose v. McKenzie, 116 Ind. 35.

1519. (1451.) Summons.-21. Except in cases otherwise provided, such process shall be a summons, specifying a time not less than three nor more than thirty days from the date, and a place at which the defendant shall appear; and in actions founded on contract the justice shall indorse thereon the precise sum demanded and the costs accrued. A summons can not be made to run more than thirty days from its date. Railroad Co. v. Hanna, 16 Ind. 391; Fuller v. Railroad Co., 18 Ind. 91.

1520. (1452.) Manner of service.-22. Such summons shall be served at least three days before trial, by reading the same to the defendant, or leaving a copy thereof at his last usual place of residence; and if not so served, such cause shall be continued for a reasonable time.

"Usual or last place of residence" means the place to which a person, still a resident of this state, has moved in this state last before the issuing of process. A copy left at such place is actual notice. Sturgis v. Fay, 16 Ind. 429; Pigg v. Pigg, 43 Ind.

117; Williams v. Hitzie, 83 Ind. 303. The return of the officer as to service of process is conclusive as between the parties. Hume v. Conduitt, 76 Ind. 598.

1521. (1453.) When must not serve by copy.-23. If an absent defendant have left his usual place of residence for an uncertain period, or a period certain, but extending beyond the return-day thereof, the constable, being apprised thereof, shall not serve the same by copy.

1522. (1454.) Process on Sunday.-112. Process may be issued on Sunday, whenever it shall appear by affidavit that the object of such process would probably be defeated by delaying to another day. 1523. (1455.) Return of "not found."-63. When a summons is returned not found" as to part of the defendants, the plaintiff, at his option, may continue for alias process, or suggest the return on the record, dismiss the cause as to the defendants not found, and proceed against those served; and such plaintiff may, at any time afterward, proceed against those not found.

If only a portion of the defendants are served, the cause may be continued, or a trial bad as to those served, and the cause dismissed as to the others. Root v. Dill, 38 Ind. 169; Kittering v. Norville, 39 Ind. 183; Terwilliger v. Murphy, 104 Ind. 32.

1524. (1456.) Practice.-75. In all cases not in this act specially otherwise provided, proceedings before justices shall be governed by the practice and usages of circuit courts and the rules of the common law so far as the same are in force in this state.

When not otherwise provided the rules of practice in the circuit court are applicable to justices' courts. Fitzgerald v. Genter, 26 Ind. 238; Root v. Dill, 38 Ind. 169; Kittering v. Norville, 39 Ind. 183.

Costs on appeal from justices' courts to the circuit court are regulated by the provisions of the justices' act. Castle v. House, 41 Ind. 333; Brown v. Snavely, 24 Ind. 270. The provisions of the code relating to granting of new trials by circuit courts are not applicable to justices' courts. Vogel v. Lawrenceburgh Co., 49 Ind. 218.

1525. (1457.) Appearance-Justices, etc., not to act as attorneys. -31. Infants shall appear by next friend, to be appointed by the justice; all other persons may appear in person, or by agent or attorney; but no constable or justice shall act as such agent or attorney.

A judgment is void when the justice at the date of the judgment is acting as the attorney of the plaintiff. Chicago, etc., Co. v. Summers, 113 Ind. 10.

1526. (1458.) Form of action-Complaint-Parties.-32. All forms of action heretofore known by distinct names are abolished; and but one form of action, to be called a "complaint," shall be used; and the parties to such action shall be called the plaintiff and defendant respectively.

1527. (1459.) Joinder of causes.-33. All causes of action founded on contract may be joined in one complaint; and all causes founded on tort be joined in like manner; but causes founded on contract shall not be joined with causes founded on tort.

1528. (1460.) Answer.-34. All matter of defense, except the statute of limitations, set-off, and matter in abatement, may be given in evidence without plea. Matter in abatement must be pleaded under oath: Provided, That the execution of a written instrument, or any assignment thereof sued on, shall not be denied, except by special plea verified by affidavit.

Want or failure of consideration, coverture, and al. other matters of defense may be given in evidence without plea, except limitations, set-off, and matter in abatement. Davis v. Grater, 62 Ind. 408; Phillips v. Cox, 61 Ind. 345; Zorger v. City, 60 Ind. 1; Heller v. Crawford, 37 Ind. 279; Hill v. Sleeper, 58 Ind. 221; Balliett v. Humphreys, 78 Ind. 388.

Coverture or payment need not be specially pleaded. Higgins v. Willis, 35 Ind. 371; Davis v. Grater, 62 Ind. 408; Hill v. Sleeper, 58 Ind. 221.

Defendants have the benefit of a general denial without pleading it. Button v. Lent, 10 Ind. 365; Roberts v. Norris, 67 Ind. 386.

If a defendant expressly waives the benefit of the denial put in by statute, and pleads affirmative defenses only, he will have the burden of proof. Cross v. Pearson, 17 Ind. 612; Blackledge v. Pine, 28 Ind. 466.

Set-off must be specially pleaded. Wright v. Potter, 38 Ind. 61.

If a note is introduced in evidence as a set-off, the plaintiff may prove that the note was assigned to the defendant after suit was commenced without denying the assignment under oath. Rich v. Sovacool, 11 Ind. 148.