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10. Upon the plaintiff making affidavit (C) of his cause of action, and stating therein that after giving full credit for all payments and offsets, the defendant is indebted to him in a sum not exceeding twenty dollars, nor less than two dollars, as the case may be, that he is afraid of losing his debt, and the defendant is of the age of twenty one years, the Justice shall issue a capias (D) against such defendant, if neither a Member of the General Assembly, nor a female.
11. The capias shall be directed to any constable of the County wherein the Justice resides, commanding him to take the defendant, and bring him forthwith before such Justice, unless he give good bail (D) to appear at the time and place where the cause is to be heard ; and all processes in actions before Justices of the Peace in civil suits may be served and executed by constables appointed for any particular Parish in any part of the respective Counties in which the Parish for which the said constable may have been appointed is situated.
12. The capias shall be served by arresting the defendant, and giving him a copy thereof, after which the capias shall be returned (D) to the Justice, with the mode of service endorsed upon it.
13. After the defendant is arrested the constable shall take bail for his appearance, who shall subscribe a memorandum endorsed on the capias that they have become so, but if no bail be offered he shall carry the defendant before the Justice who issued the capias, or in case of his sickness or absence, before some other Justice of the County; and the defendant when brought there shall either deposit (D) the sum sworn to and costs, or give bail in the manner aforesaid, or be committed to gaol by warrant (E) of the Justice, but the deposit shall be applied to the payment of the plaintiff's judgment. If there be an overplus it shall be returned to the defendant on demand ; but the plaintiff may at any time waive bail and proceed as on summons.
14. Any defendant imprisoned for want of bail on a capias issued by a Justice, may be brought before the Justice to attend the trial in said suit by an order (Q), and after the trial may be recommitted to prison, and no Sheriff or gaoler acting in obedience to such order shall be liable to an action for an escape ; provided always, that when any person shall be arrested on a capias issued by any Justice of the Peace, he may in addition to the foregoing modes of giving bail for his appearance pay into the hands of the constable arresting him, the amount sworn to and costs, endorsed together with the constable's fees, and the constable executing such capias shall, on receiving such deposit, forth with make return to the Justice who issued the capias, and shall pay over the said deposit and costs to the Justice who issued the capias ; and which deposit shall then be dealt with in all respects in the same manner as if such deposit had been made with the Justice by the defendant in the first instance; and if judgment should be recovered by the plaintiff, the amount of such deposit shall be applied to the payment of such judgment, and the surplus, if any, shall be returned to the defendant on demand; but nothing herein contained shall be construed to prevent the defendant from defending such action ; and any Justice of the Peace issuing a capias shall, before delivering the same to a constable, endorse the amount of the Jus tice's fees upon the said capias.
15. The defendant shall be detained in custody one day only for every forty cents of the sum stated in the warrant, whether he remain in custody thereon or be charged in execution, but no gaoler shall be liable for detaining a defendant beyond the legal time unless he demand his discharge, or the detention by wilful and malicious; any defendant so committed to gaol shall at any time before final judgment be released upon bail being giren as aforesaid.
16. The Justice taking bail or a deposit in a case not depending before him, shall forth with transmit the capias, with the deposit, to the Justice who issued the capias, that he may proceed thereon.
17. The bail shall be answerable for the debt and costs, or that the defendant be rendered into custody upon execution if it be delivered to a constable within six days after judg ment, unless the defendant point out sufficient personal property to satisfy the execution and fees thereon ; and a defen. dant arrested and having given bail, may render himself or be rendered in discharge of his bail to the gaol of the County where he may be, by an order (R) of any Justice of the County, which order shall be delivered to the gaoler, who shall thereupon give a certificate (S); the certificate shall be
forth with filed with the Justice who issued the capias, and he shall thereupon make a discharge (T) upon the memorandum of bail, and the bail shall thereupon be discharged from liability, except thatifa suit shall have been commenced against the bail before such order of render obtained and certificate filed, the Justice shall discontinue the same on the filing of such certificate and payment of the costs up to that time.
18. If the capias be served only six days before the return, the Justice at the request of either party shall appoint a further day for hearing the cause, giving six days' notice to the other side, but if the defendant be in actual custody, and unable to find bail, the cause shall not be put off without the defendant's consent, unless the plaintiff release him ; and if the day fixed in the capias for the trial be later than six days after such arrest, the-trial may, if the defendant so request, be appointed to take place on four days' notice from the Justice to the plaintiff.
19. Upon any summons or capias being returned without having been served or executed, the Justice, at the request of the plaintiff, may issue a second summons (B) or capias (D) in the same suit, and so on from time to time as may be necessary on like return.
20. Either party may conduct his suit in person, but no attorney shall take any part in a cause if objected to by the opposite party, unless he make oath (F) that his services are entirely gratuitous; and no constable shall act on the trial of a civil cause before a Justice of the Peace, as agent or attorney for either party.
21. Debts due from the plaintiff to the defendant before action brought, may be set off against the plaintiff's demand, but ifa set-off be founded on an instrument having a penalty, then only the real debt secured by the condition shall be set off. If the set-off established be equal to the debt due the plaintiff, the defendant shall have judgment with costs; or if more, and not exceeding the debt due the plaintiff by more than twenty dollars, then the defendant shall have judg. ment for the excess, with costs; if less than the plaintiff's debt, then the latter shall have judgment for what is due to him, with costs. If the defendant's demand exceed the debt due the plaintiff by more than twenty dollars, the defendant shall not be entitled to set off any more than to the amountof the plaintiff's demand, but shall have his remedy for the residue in any Court of competentjurisdiction,unless he abandon so much as shall reduce the excess to twenty dollars. If the plaintiff's demand exceeds twentydollars, judgment shall be rendered against him with costs, unless he reduces it to that amount, and abandons the overplus. In suits brought by executors or administrators, the defendant may set off demands due him from the testator or intestate ; and in like manner in suits by trustees of absconding debtors, the defendant may set off against them debts due from the debtor at the time of his absconding. Whenever a set-off is established in a suit brought by executors, administrators, or trustees, the judgment shall be against them as such, and shall be evidence of the debt, but execution shall not issue thereon.
22. If on the trial the title to land shall come in question, the Justice shall render judgment for the defendant for his costs.
23. The parties, on the trial of a cause, shall be confined to their particulars, unless good cause be shewn, in which case the Justice may allow an amendment to the particulars.
24. In case of an action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the Justice trying the action to order that the loss of such instrument be not set up as a defence, provided an indemnity by way of bond with two sufficient sureties to the satisfaction of such Justice, is given by the plaintiff to the defendant to protect the defendant against the claim of any other person upon such negotiable instrument.
25. A Justice may adjourn his Court from day to day if necessary to finish the business before the Court; he may also, for the absence of material and necessary witnesses, or other good reason when made to appear on affidavit, adjourn the hearing of a cause till a day later than the day succeeding, but no such adjournment shall extend beyond one month, nor shall there be more than one such adjournment at the instance of each of the parties, but a cause so adjourned may afterwards be continued from day to day, which term in this Section shall mean from one day to the vext day not being Sunday or a Public Holiday.
26. When the defendant is in custody and cannot procure
bail, or make a deposit, the Justice shall not adjourn the cause except from day to day at the instance of the plaintiff, unless the plaintiff consent to release the defendant from custody, but nothing in this or the preceding Section shall prevent an adjournment by consent of parties.
27. A Justice may issue subpænas (G) into any County for witnesses to give evidence on any trial before him or any other Justice, and the person so subpænaed, on being tendered the legal fee, shall attend.
28. The subpæna may be served by any person, by shewing it to the witness, and delivering to him a copy or minute (G) thereof, with his fees, if demanded.
29. Every person duly subpænaed as a witness neglecting or refusing to appear and testify, shall be liable to the person subpænaing him for all damages sustained by such neglect or refusal.
30. Every cause shall be tried or determined at the return of the process, if duly served, or on some day to which the Court or the cause is adjourned, before the Justice who issued the process, or in case of his inability to attend or of his being a witness, then before some other Justice for the same County, who shall attend at the request of the Justice who issued the process, to try the cause; every cause shall be tried before the Justice who issued the process, but if he be unable from sickness or other reason to conclude after having begun the trial, another Justice of the County may be called on, who shall take up the proceedings at the point where they were left and carry on the same to a close.
31. If either party apply to the Justice one clear day previous to the trial for a jury, he shall grant the same and issue a venire(H) to a constable and deliver the same to a constable to summon three persons duly qualified to sit as jurors in the said cause, and the constable shall execute the same impartially, and return (H) it to the Justice with the names of the jurors annexed thereto; and the Justice shall, in addition to the challenge for cause, allow a peremptory challenge of one juror; and if the constable do not execute the venire, or if the number of jurors attending on the trial shall not amount to three, or the number be reduced below that number by challenge or otherwise, the Justice may order a constable to summon at once one or more other persons to supply the deficiency.