adjourned from week to week

ing thirty days; and if he do so, shall make and sign an Action to stand entry thereof on the docket of the absent justice. If not tried or continued by another justice as aforesaid, it shall stand adjourned for one week; and so on, from week to week until disposed of.

until disposed

of.

Appearance of

parties; must

after time

named, etc.

Appearance-Default of Parties.

65. The parties are entitled to one hour in which to be in our appear, after the time for appearance mentioned in the summons or order of continuance. Neither shall be bound to wait for the other longer than that time; and at the end of the hour, or sooner, if both parties be in attendance, the justice shall proceed in the cause, unless at the time engaged in the trial of another action.

be rendered

66. Saving the right of a defendant, who has filed a setWhen judgment dismiss Off or counter claim, to proceed to trial, though the plaining action may tiff fail to appear, or dismiss his action, judgment may be against plaintiff rendered against the plaintiff dismissing his action, with cost, but without prejudice to a new action for the same cause, in the following cases:

for costs, etc.

Exceptions.

Judgment against defend

to appear may be set aside; when.

First-If he fail to appear and prosecute his action within one hour after the time for appearance mentioned in the summons, or last order of continuance.

Second-If he fail to make or file his complaint at or before the time the summons is returnable.

Third-If he fail or refuse to testify when properly required to do so.

Fourth-If he fail to give security for cost when properly required to do so.

Fifth-If the summons be defective or erroneous and cannot properly be amended.

Sixth-If the plaintiff himself dismiss his action. But in the first, second and third class of cases, the plaintiff may show cause, if he can, why his action ought not to be dismissed. The action shall also be dismissed at plaintiff's cost, whenever it appears that it has been brought in the wrong county, or that for any other reason the justice has not jurisdiction thereof.

67. The judgment against the plaintiff for failure to apant for failing pear may be set aside by the justice, for good cause shown, within fourteen days after it is rendered, on such conditions as he may see fit to impose; but the defendant must have reasonable notice of the motion to set aside such judgment, and an opportunity to be heard in opposition thereto.

Defendant to have notice.

If defendant

68. When a defendant does not appear the plaintiff cannot recover without proving his case. The justice, if the prove his case process has been served on the defendant, shall, in such

fail to appear,

plaintiff must

judgment.

case, proceed to hear the allegations and evidence of plain- to obtain tiff, and render judgment as the right shall appear.

where summons served

of defendants.

69. When the summons is issued against two or more Proceedings defendants, but not served on all of them, and those not served do not appear to answer to the action, the plaintiff only on part may proceed to judgment as to the defendants on whom the summons was served, or who appears as aforesaid, and either dismiss his action as to the others, or have a second or third summons against them, and from time to time, as the process is served, proceed to judgment against them.

ant in his ab

aside.

thereon.

70. When the defendant does not appear, and judgment Judgment is rendered against him in his absence, the justice may set against defendaside the judgment within fourteen days thereafter, on sence; when motion of defendant and payment of costs. But of such and how set motion, reasonable notice must be given to the plaintiff, his agent, or attorney; and the judgment shall not be set aside, unless the defendant makes oath that he has a law- Proceedings ful defense to the action, or is entitled to some credit, setoff, or counter-claim, which has not been allowed him, and shows by his own oath, or otherwise, reasonable cause why he did not appear. When the judgment is so set aside, the justice shall set a day for the trial, of which the plaintiff, his agent, or attorney, if not present, must have at least three days' notice. If judgment be entered a second time against the defendant, it shall not again be set aside.

Trial-the Jury.

71. At the time appointed for the hearing, if a jury be Trial by justice. not demanded by either party, the justice shall hear the proofs and give judgment as the law and evidence shall require.

72. Either party to a civil action before a justice, when When to be by the value in controversy or the damages claimed exceed jury; may be demanded by twenty dollars, or the possession of real estate is in con- either party. troversy, shall be entitled, under the regulations herein. prescribed, to a trial by six jurors, if demanded.

must be de

73. The demand must be made before the justice has When jury commenced an investigation of the merits of the case, by manded. the examination of any witness, or the hearing of other evidence.

money to pay

justice.

74. The party demanding the jury must deposit with Deposit of the justice three dollars, to pay the fees of such jury. costs of jury to Provided, That the party demanding such jury may file be made with his affidavit that he is unable, pecuniarily, to make such Exceptions as deposit, and the justice, if satisfied of the truth of the to persons unaaffidavit, shall issue the venire facias for the jury without deposit. such deposit being made.

ble to make

When trial must take

place.

Who are qualified as jurors.

Who are exempt from serving on juries.

Jurors must be impartial and Hot related to

parties.

Jurors to be

examined on oath if required by

aither party, etc.

No exception

8

75. When a jury is to be called, the trial shall be postponed until the time fixed for the return of the jury, which, if neither party show good cause for a later day, shall be on the same day or within the next two days.

76. All male persons of sound judgment, who are twenty-one, and not over sixty years of age, and who are otherwise qualified to serve, shall be liable to serve as jurors, except as provided in the following section.

77. The following persons shall be exempt from serving as jurors: the governor; members of both branches of the legislature and their respective officers during the session, and for ten days before and after the same; the secretary of state, treasurer, auditor, attorney general, state superintendent of free schools, and the clerks in their respective offices; judges and officers of the several courts of this state or the United States; sheriffs, deputy sheriffs; marshals and deputy marshals; sergeants of towns; superintendents of the penitentiary, hospital for the insane, institution for the deaf, dumb and blind, and of public hospitals, and their servants and assistants; ministers of the gospel having charge of any congregation or circuit; school teachers having charge of a school; millers and ferrymen whose attendance is necessary at any grist mill or ferry; keepers of toll-gates on any public. road; members of volunteer companies, as provided in the eighteenth section of chapter twenty-three; the officers (not including directors) of the several banks and branches, and of national banking associations; practicing attorneys and physicians; telegraph operators employed at the time in any office in this state, and postmasters and their clerks, and persons engaged in the care and transportation of the mail, or other service of the United States. But a person exempt shall not, for that cause, be deemed incompetent, if he do not object to serve as a juror.

78. The jurors must be persons who stand impartial between the plaintiff and the defendant, and are not related to either party or interested in the action.

79. The justice, if either party to the action require it, or the party himself, may examine on oath any person who is called as a juror in such action, to know whether he is related to either party, or has any interest in the case other than such as he may have in common with other residents and tax payers of the district, county, town, or state, or has formed an opinion, or is sensible of any bias or prejudice in the case; and the party objecting to the juror may introduce any other competent evidence in support of the objection. If it appear to the justice that the juror does. not stand indifferent in the case, another shall be placed in his stead for the trial thereof.

80. No exception to a juror on account of age or legal

jurors sworn.

disability shall be allowed after he is sworn, unless by leave allowed after of the justice; but if the justice require it, a juror may be Exception. set aside at any time, and another placed in his stead.

not set aside

81. No irregularity in any writ of venire facias, or the Verdict of jury service thereof, or in selecting, or empaneling the jurors, for certain shall be sufficient to set aside a verdict, unless it appear irregularities. that the party making the objection, was injured thereby, or such objection was made before the jury was sworn.

facias issued.

and executed.

82. When a party demanding a jury, shall have made the When venire deposit required by the seventy-fourth section of this chap-ter, or such deposit has been dispensed with, as provided in said section, the justice shall issue a venire facias, directed to any constable of the district, or in the county, com- How directed manding him to summon six qualified jurors, to appear at the time and place stated therein, to serve as a jury in the trial of the action between the plaintiff and defendant. And it shall be the duty of the constable, or person who Duty of constamay be deputed to serve the same, to execute the said pro- thereto. cess, and to return the same, with the names of the jurors summoned in obedience thereto, on the return day named therein.

ble in relation

who fails to

83. Any person so summoned who fails to appear, or Penalty on perwhen in attendance refuses to serve on the jury, without son summoned sufficient cause, may, after notice and an opportunity to attend. be heard, be fined by the justice not exceeding five dollars, and adjudged to pay the cost of the proceeding for such failure or refusal. The justice shall make an entry thereof on his docket, which shall have the effect of a judgment in favor of the State for the fine and cost, and may be en- How enforced. forced like other judgments of justices.

panels of

84. If a sufficient number of competent jurors be not Deficiency in obtained as aforesaid, the justice, in order to supply the jurors. deficiency, may direct the constable, or person deputed, to call and summon bystanders, or other persons, to serve as jurors.

How made up.

have two chal

85. The plaintiff and defendant shall each be entitled to Each party to two peremtory challenges in making up the jury, and the lenges. persons so challenged shall not be permitted to serve

thereon.

86. The jury shall be sworn by the justice well and truly Jury; how to try the matter in difference between the plaintiff and sworn. defendant, and a true verdict give according to the evi

dence.

sworn.

87. After the jury are sworn, they shall sit together and Proceedings hear the allegations and proofs, of the parties, which shall after jury be delivered publicly in their presence; and when they have heard the same, they shall be kept together in some convenient place, under charge of a constable or person deputed by the justice, until they have agreed on their verdict or discharged by the justice.

Verdict of jury.

Where jury cannot agree; duty of justice.

Pay of Jurors.

Judgment for jury costs.

When verdict of jury may be set aside

88. When they have agreed on their verdict, they shall deliver it publicly to the justice, signed by one of their number, as foreman; and the justice shall enter the same in full in his docket.

89. Whenever the justice is satisfied the jury cannot agree, he may discharge them and issue a new venire facias, returnable within forty-eight hours, unless the parties agree on a longer time, or agree to dispense with a jury in future, or that the justice may himself render judgment on the evidence already heard before him, which, in such case, he may proceed to do.

90. On the verdict being delivered to the justice, if the deposit mentioned in the seventy-fourth section of this chapter has been made, each juror shall be entitled to receive from him fifty cents out of the money so deposited in his hands by the party who demanded the jury. When the jury are unable to agree, or the trial by jury is dispensed with, the same compensation shall be paid them out of the said money. If the final judgment in the action be in favor of the party who demanded the jury, the amount so paid shall be included in the cost awarded against the adverse party. And when such costs are collected in cases where no deposit was made, the fees of the jury shall be paid therefrom.

91. If the justice believe the verdict to have been procured by fraud or undue means, or to be the result of partiality or prejudice, or to be manifestly contrary to law or the evidence, he may, within twenty-four hours after the return of such verdict (Sundays excepted), on the motion of the party injured, set it aside, and award a new trial in the case, upon payment of the costs of the former Proceedings in trial, or with costs to abide the event of the action, as he may deem proper. In such case he shall appoint a time for a new trial, and issue a venire facias for another jury, if demanded by either party, in accordance with section seventy-four of this chapter. But no more than one new trial shall be granted by a justice in any case.

such cas

Arbitrators;

in cases before justices.

Arbitration.

92. At any time before judgment, the plaintiff and dehow appointed fendant may, by mutual agreement, have the cause submitted to the arbitrament of three disinterested men, chosen by themselves; and if the arbitrators be present, they shall hear and determine the matter in difference be tween the parties, being first sworn by the justice, impartially, to decide the same according to the law and the evidence. But if they be not present, a time and place shall be appointed by the justice for the trial, unless the parties. agree on the same, and the justice shall, if necessary, issue a summons to the arbitrators to attend. The fees of arbitrators shall be the same as those of jurors.