Pleadings denying the execution of written instruments must be under oath. Neely v. Chinn, 8 Blkf. 84.

On appeal to the circuit court, the same rules apply as to pleadings as before the justice. Carter v. Edwards, 16 Ind. 238; Heller v. Crawford, 37 Ind. 279; Phillips v. Cox, 61 Ind. 345; Balliett v. Humphreys, 78 Ind. 388.

1529. (1461.) Complaint.-35. In all suits commenced by summons, the plaintiff shall, three days before the return day of the writ, file with the justice a statement of the grounds of his complaint, or the written instrument which is the foundation of his suit; and in actions against officers on their official bonds, a certified copy thereof, and an informal statement of the breach complained of and the damages claimed shall be sufficient, or failing to file such statement within such time, his complaint shall, on motion of the defendant, be continued. at the cost of the plaintiff; or if none be filed before the hour of trial, the cause shall be dismissed.

Generally any statement showing the nature of the plaintiff's claim, and is such that the judgment will bar another suit, will be a sufficient complaint. Crocker v. Hoffman, 48 Ind. 207; United States Co. v. Keefer, 59 Ind. 263; City v. Kern, 63 Ind. 468; Morford v. White, 53 Ind. 547; Powell v. De Hart, 55 Ind. 94; Western Co. v. Huff, 102 Ind. 535; Hasty v. City, 105 Ind. 540; Anderson v. Lipe, 114 Ind. 464; Smith v. Heller, 119 Ind. 212.

As between the original parties a promissory note is a sufficient complaint. Barnett v. Juday, 38 Ind. 86; Tucker v. Gardener, 63 Ind. 299; Baldwin v. Webster, 68 Ind. 133; Audleur v. Kuffel, 71 Ind. 543.

When an assignee of a claim sues, there should be an allegation of ownership in him, unless the claim is transferred by written indorsement. Evans v. Secrest, 3 Ind. Hull v. Conover, 35 Ind. 372. See Garner v. Cook, 30 Ind. 331.

541;

Any holder of a note may file it as a complaint, but if it has been transferred by delivery only, the payee should be a party to answer as to his interest. Griffin v. Cox, 30 Ind. 242; Garner v. Cook, 30 Ind. 331; Reed v. Finton, 63 Ind. 288.

An account may be filed as a complaint, but the items of indebtedness must be stated. Milholland v. Pence, 11 Ind. 203; Clark v. Benefiel, 18 Ind. 405; Robinson v. Skipworth, 23 Ind. 311; Sherrod v. Shirley, 57 Ind. 13; Murphy v. Lambert, 59 Ind. 477; Koons v.. Williamson, 90 Ind. 599.

Official and other bonds executed in pursuance of statutes may be filed as complaints. Evans v. Shoemaker, 2 Blkf. 237; Barber v. Summers, 5 Blkf. 339; Olds v. State, ex rel., 6 Blkf. 91; Ruble v. Massey, 2 Ind. 636.

As to the sufficiency of pleadings setting forth fraud, negligence or torts, see Gray v. Rich, 10 Ind. 430; Howe v. Young, 16 Ind. 312; Stewart v. Hutchins, 31 Ind. 252; Penn. Co. v. Rusie, 95 Ind. 236.

1530. (1462.) Set-off.-36. Matters of set-off claimed by the defendant shall be filed in writing before entering upon the trial, and shall be set forth with the same certainty required in the complaint of the plaintiff.

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

Claims exceeding the jurisdiction of the justice may be pleaded as a set-off if the sum demanded does not exceed such jurisdiction. Murphy v. Evans, 11 Ind. 517. A set-off may be set up against a set-off. Turner v. Simpson, 12 Ind. 413; Blount v. Rick, 107 Ind. 238.

1531. (1463.) Replication unnecessary.-37. No replication shall in any case be necessary; but any matter which might have been replied to any plea may be proved with the same effect as if so replied. It is unnecessary to file a reply to affirmative answers. Turner v. Simpson, 12 Ind. 413; Carter v. Edwards, 16 Ind. 238.

If the defendant files an affirmative answer before the justice, and on appeal to the circuit court a denial and affirmative reply is filed, and a demurrer to the reply is overruled and the defendant stands by his demurrer, judgment may be entered without a trial. Roberts v. Norris, 67 Ind. 386.

If a demurrer is improperly overruled in the circuit court to an affirmative reply the error will be available to the defendant on appeal. Blacker v. Dunbar, 108 Ind. 217.

1532. (1464.) Amendments.-38. Either party may be permitted. to amend his pleading before or during trial; but such amendment, if it requires any new proof of the other party, or authorizes the party making it to introduce any proof he could not otherwise introduce, shall be cause of continuance at the cost of the party making such amendment, unless such amendment be made at least three days before the day set for trial; but no amendment of pleadings as provided for in this section shall be cause of continuance, unless the party against whom such amendment is made shall file his affidavit showing that additional proof will be required from him by reason of the amendment, and that he can not produce the same at the time originally set for trial.

(As amended, Acts 1885, p. 112. Ell. Supp., section 296. In force July 18, 1885.)

1533. (1465.) Plaintiff to include all accounts.-40. The plaintiff in complaints founded on open accounts shall embrace all claims then due on account; or, failing so to do, shall pay the costs of any subsequent suit on claims not so embraced.

1534. (1466.) Complaint on transcript.-125. Action by complaint and summons may be maintained upon the transcript of a judgment from any other justice's docket, in the name of the judgment plaintiff or his assignee; and such transcript and assignment shall be a sufficient complaint, without other statement.

1535. (1467.) Change of venue, when.-27. Changes of venue shall be granted at any time before the trial is commenced, whenever affidavit shall be made before the justice by either party, stating— First. That such justice is a material witness in the cause for either party; or,

Second, That such affiant believes he can not have a fair and impartial trial before such justice on account of his bias and prejudice, or interest in said cause; or,

Third. That he can not have an impartial trial in the township owing to the interest, bias and prejudice of the citizens thereof: Provided, That but one change of venue shall be granted to the same party from the justice, and one change of venue from the township. (As amended, Acts 1883, p. 42. Elliott's Supp., section 297. In force February 27, 1883.) When a proper application for a change of venue is made the change must be granted and the justice can not exercise further jurisdiction. Smelzer v. Lockhart, 97 Ind. 315.

After the commencement of the trial it is too late to apply for a change of venue. Ickes v. Kelley, 21 Ind. 72.

A justice to whom a cause is sent on change of venue may grant a change of venue. Mayes v. Goldsmith, 58 Ind. 94.

Change of venue is not allowable upon proceedings for contempt. State v. Newton, 62 Ind. 517.

Counter affidavits can not be filed in applications for change of venue in civil cases. Witter v. Taylor, 7 Ind. 110.

When a change of venue is taken, the justice to whom the cause is sent should not issue a summons. Railway Co. v. Hagen, 87 Ind. 30.

1536. (1468.) Change granted.-28. If a change be granted on the ground named in the first or second specification of the last preceding section, such cause shall be sent to some other justice of the same township if there be one competent to try the same. If there be no competent justice within the township, or the change be granted on the grounds named in the third specification of the last preceding section, then such cause shall be sent to some justice of an adjoining township.

If a cause is sent to another township it will be presumed correct in the absence of a contrary showing. Mayes v. Goldsmith, 58 Ind 94.

1537. (1469.) Cost of change.-29. No change of venue shall be granted, except on payment, or confession of judgment therefor and replevy thereof, of all costs occasioned by the change, if taken by a defendant, and of all accrued costs and the cost of such change, if taken by the plaintiff.

If by reason of a change of venue witnesses are not used the fees of such witnesses may be taxed to the party against whom final judgment is rendered. Teeple v. Dickey, 94 Ind. 124.

If on appeal a change of venue is taken, the same rules apply as to costs as in causes commenced in the circuit court. McDonough v. Kane, 75 Ind. 181.

1538. (1470.) Papers transmitted.-30. The justice granting the change shall transmit a certified transcript of his proceedings and all papers in the cause to the justice to whom he may send such case; who shall proceed therein as if such suit had been originally instituted before him, as well as to changes of venue as other incidents of the trial.

The justice to whom a cause is sent should not issue a summons for the defendant. A day should be set for the trial and the parties are bound to take notice thereof. Louisville, etc., Co. v. Hagen, 87 Ind. 30.

1539. (1471.) Continuance.-45. All actions may be continued on affidavit when justice requires it; which affidavit may be amended and re-sworn to, for a period not longer than sixty days, at the cost of the party making such application; unless in cases where either party has subpoenaed the other and he fails to attend, and the cause is continued for his testimony, in which case the party so failing to attend shall pay such costs, unless he be unable to attend, and then such costs shall abide the result of the suit.

See section 1622.

[1853, p. 83. In force July 24, 1853.]

1540. (1472.) For witness-Subpoena.-1. Whenever either party in a suit pending before a justice of the peace shall make an affidavit that the testimony of a witness residing in a county adjoining to that in which such suit is pending will be material and necessary to him in the trial of the cause, showing in his affidavit what fact he expects to prove by such witness, it shall be the duty of such justice to continue the cause, at the cost of the party making such application, for a period of time not exceeding ten days, and forthwith to issue to the party making the application a subpoena for such witness or witnesses, directed to any constable of the county in which such witness or witnesses are alleged to be resident.

1541. (1473.) Subpoena, when returnable.-2. Such affidavit may be made at any time at or after the commencement of the suit; and if made and filed on a day prior to that set for the trial, the subpœna issued therefor shall be made returnable on the day set for the trial of the cause.

1542. (1474.) Constable's duty-Tender of fees.-3. It shall be the duty of any constable of such adjoining county to whom such subpœna shall be delivered forthwith to execute the same, and return it on the return day thereof; and the witness or witnesses upon whom it shall be served shall be bound to obey the same in like manner and under like penalties as if it had been issued by a justice of the peace of the county where such witness or witnesses reside; and said witnesses may be attached as in other cases: Provided, A witness shall not be obliged to attend before a justice of the peace out of the county where he resides, unless his legal fees for traveling to and from the office of such justice of the peace, and one day's attendance are paid or tendered before or at the time of the service of the subpoena: And provided, further, That at the commencement of each day after the first day, a witness attending a trial out of the county in which he resides shall be entitled to demand and receive the legal fees for that day in advance; and if not thus paid, he shall not be compelled to attend or remain as a witness.

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

1543. (1475.) Rules of evidence.-53. The rules of evidence shall be the same as in the circuit court, except as in this act otherwise. provided.

1544. (1476.) Proof.-39. The proof of the plaintiff shall be confined to the allegations of his complaint, and such proof as may be necessary to rebut the proof of the defendant. The proof of the defendant shall be confined to such matters of defense as he is by this act authorized to prove without plea, and to proof of such special pleas as he may file.

1545. (1477.) Witnesses.-46. Justices shall have power to subpœna witnesses, and enforce their attendance by attachment, and fine not exceeding five dollars; to enforce order when judicial proceedings

are in progress before them by fine not exceeding five dollars and imprisonment not exceeding three hours.

The justice who issued subpœna for a witness has the right to punish him for a refusal to obey it. State v. Newton, 62 Ind. 517.

1546. (1478.) Cost of witnesses.-47. Any party causing witnesses to be subpoenaed, and not swearing and examining them if in attendance, shall pay the cost occasioned thereby, unless the use of such witness or witnesses be dispensed with by the admission of the opposite party. No claim of attendance shall be allowed a witness, unless made before the judgment is entered and signed.

If witnesses are not used because of a change of venue, the party against whom final judgment is rendered may be taxed with the fees of such witnesses. Teeple v. Dickey, 94 Ind. 124.

[1877, p. 61. In force March 3, 1877.]

1547. (1479.) Fees of witnesses.-27. Witness fees before a justice of the peace shall be as follows: Attending, per day, one dollar, and mileage for each mile necessarily traveled in going to and returning from court from his residence, five cents: Provided, That the party subpœnaing more than three witnesses to testify, in a civil case, to the same fact, shall pay the cost of all over three.

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

1548. (1480.) Party as witness.-48. Either party may, in all cases, have the other sworn as a witness; and if the plaintiff refuse to appear on being personally subpoenaed, or, being present, refuse to swear, the cause shall be dismissed; if the defendant refuse to appear on being personally subpoenaed, or, being present, refuse to swear, the plaintiff's demand shall be taken as confessed, no set-off allowed, and judgment entered accordingly; but such testimony shall not be used as evidence in any other case, civil or criminal, against such party testifying.

If a defendant personally subpoenaed on the part of the plaintiff as a witness fails to appear, the claim of the plaintiff may be taken as confessed. Wire v. Heaston, 5 Ind. 539; Maulsby v. Wolf, 14 Ind. 457.

This section is applicable to causes appealed from justices to the circuit court. Carter v. Buckner, 3 Blkf. 314; Weikel v. Probasco, 7 Ind. 690.

The admissions made by a party while being examined under this section before the justice can not be proven on appeal when the party is present and is not examined. Carter v. Edwards, 16 Ind. 238.

An appeal lies from a judgment taken against a party on account of his failure to appear and testify. Mariner v. Hanna, 16 Ind. 23.

1549. (1481.) Depositions.-49. Depositions of witnesses or parties residing out of the county, or sick, or about to leave the same, may be taken under the rules prescribed by law for taking depositions; and if such party or witness be absent from the county or unable to attend at the trial, may be read as evidence in any cause; and no dedimus shall be necessary in such case.

This section applies to actions pending before mayors of cities. Reeves v. Allen, 42 Ind. 359.