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having cognizance thereof, and in either case to abide by and satisfy the judgment that may be given in such court; then the said justice shall proceed no further in the said cause, but shall forthwith dismiss the parties; and it shall be the duty of the said justice thereupon to tax the bill of costs that may have accrued before him; and so soon as the action shall be renewed or instituted for the purpose aforesaid, to transmit the said bill, together with the recognizance to be taken. as aforesaid, to the clerk of the court in which such action shall be instituted or renewed; which costs so taxed and transmitted, shall be made a part of the judgment to be rendered as aforesaid.

"SEC. 3. That if the said recognizance shall be forfeited for not prosecuting, as aforesaid, the justice shall proceed to enter judgment against the defendant for the demand of the plaintiff, which shall be taken to be confessed, and execution shall thereupon issue against the said defendant and his security or securities; and if the said recognizance shall be forfeited for not appearing and defending, or not abiding by and satisfying the judgment that shall be given in the court above, the party for whose benefit such recognizance was taken, may, by a writ or writs of scire facias, proceed to judgment and execution thereon."

CHAPTER V.

OF CONTINUANCE.

WHICH is the continuing of a cause in court by an entry upon the record there for that purpose. Jac. Law Dic., (Continuance.)

The giving of day is called a continuance, because thereby the proceedings are continued without interruption from one adjournment to another.

Gale's Stat., 405. "SEC. 8. Previous to the commencement of any trial before a justice of the peace, either party may move to have such trial put off for a time not exceeding ten days, upon making proof, either upon his own oath, or that of a credible witness, that the said party cannot safely proceed to trial, on account of the absence of a material witness, or on account of any other cause or disability, which would prevent him from obtaining justice at such trial; and if the

justice be satisfied that the party so applying, cannot safely proceed to trial; and also that the party so applying has used due diligence to be ready at the time of trial first appointed, and that his not being ready, is not the effect of such party's own neglect or inattention; then the said justice shall order the trial of said cause to be deferred to another day and hour, within ten days, to be by him appointed; and the party praying such continuance, shall pay all the costs occasioned thereby: Provided, The justice may, at any time, continue any case without oath, if the parties consent, or if but one party be present and shall consent, or if he shall deem it essential to justice so to do, for any good cause shown."

On the return of a suminons or warrant served, if the plaintiff or his agent does not appear, the justice may continue the suit to another day, if the defendant shall consent to its being continued; when the same proceeding shall take place as though it were the return day of the process. Gale's Stat., 404,

sec. 6.

When a suit is commenced by attachment, and the return does not show that the defendant has been personally served, and the defendant shall not cause his appearance to be entered, the justice shall continue the cause ten days, for the purpose of causing notices, directed to the defendant, stating the fact that an attachment had been issued, and at whose instance, the amount claimed to be due, and the time and place of trial; and also stating that, unless the said defendant shall appear at the time and place fixed for trial, that judgment will be entered by default, and the property attached ordered to be sold to satisfy the same, to be posted up in three public places in the neighborhood of the justice, at least eight days before the day set for trial. If the constable shall have failed to post the notices as required, the justice shall again continue the cause, and require notice to be posted as aforesaid, previous to any trial of the cause. Gale's Stat., 76.

When either party may have no witness, or other legal testimony, to establish his claim, and shall make oath that he has a demand, discount, or set-off in the cause, and that he knows of no witness by whom he can prove the same except by his own oath or that of the adverse party, and the adverse party be not present, the justice may continue the cause for such time as may be necessary to notify him. Gale's Stat., 420.

A justice of the peace before whom any suit may be pending, may adjourn the trial not more than six days for the purpose of taking the deposition of any witness in the county where the suit is pending who shall be unable to attend on account of age, sickness, or other cause. Gale's Stat., 405.

And it is presumed that a suit pending before a justice of the peace may be continued on the application of either party, for the purpose of procuring the deposition of a witness resid

ing out of the county in which such suit shall be pending, whose testimony shall be material, in the same manner that a continuance may be had to procure the attendance of a wit

ness.

In all cases before justices of the peace, either party may have the cause continued any reasonable time not exceeding one month, for the purpose of taking the deposition of any non-resident witness. Gale's Stat., 421.

Where a jury is demanded by either party, the justice may continue the cause to any time not exceeding three days, if necessary, for summoning the jury and for the return of the venire. Gale's Stat., 407.

If these continuances are omitted, the cause is thereby discontinued and the defendant is discharged sine die, without a day, for this turn; for, by his appearance in court, he has obeyed the command of the writ; and, unless he be adjourned over to a day certain, he is no longer bound to attend upon that summons; but he must be warned afresh, and the whole must begin de novo. 3 Bl. Com., 316.

Every suit ought to be properly continued from its commencement to its conclusion, and the suffering any defect or gap herein is called a discontinuance. The continuance of the suit by giving the party an illegal day is properly a miscontinuance. The continuances must all be entered, otherwise there will be a discontinuance and the proceedings will be erroneous. Jac. Law Dic., (Discontinuance of process.)

An improper and illegal continuance of a cause amounts to a miscontinuance; 4 Johns. Rep., 117; and if the plaintiff proceeds after such illegal continuance and takes judgment, it may be reversed on error. Jac. Law Dic., (Discontinuance of process.)

Yet it has been held, if the justice should proceed and render judgment, it would be valid until reversed on appeal or certiorari, and the justice would not be liable as a trespasser. 7 Wend. Rep., 200.

The party upon whose application an erroneous continuance is made, cannot object to it. Jac. Law Dic., (Discontinuance.) 3 Caine's Rep., 166.

If the party having a right to object to the erroneous continuance, appear and go to trial, it will be a waiver of the irregularity. 9 Johns. Rep., 136. 4 Scam. Rep., SS.

54

CHAPTER VI.

OF COMPELLING THE ATTENDANCE OF WITNESSES AND OF

TAKING DEPOSITIONS.

1. Of compelling the attendance of witnesses.

Gale's Stat., 406. "SEC. 17. When either party shall require the attendance of a witness, in any suit pending before a justice, it shall be the duty of the justice to issue a subpœna, which subpoena may be served by a constable, or any other person, by reading the same to the witness, but no mileage shall be allowed to the person serving the same."

Gale's Stat., 423. "SEC. 6. In all cases where a justice of the peace is required to issue a subpoena at the instance of either party to a suit, it shall be his duty to insert the names of four witnesses in each subpoena, if the party demanding the same shall require the attendance of that number; and in no case shall a justice of the peace be permitted to charge and receive pay for any subpoena commanding the citation of a less number, where as many as four shall be required by the same party, at the same time, to be used in the same suit."

Gale's Stat., 407. "SEC. 22. In all cases where a witness shall be duly served with a subpoena, and shall fail to attend at the trial, conformably thereto, the justice shall have power to issue an attachment, directed to any constable of the county, commanding him forthwith to bring before such justice the body of such witness so failing to attend as aforesaid, to show cause why he should not be fined for such contempt; and on the appearance of such witness on such attachment, it shall be lawful for the justice of the peace to fine him in any sum not less than one dollar, nor more than ten dollars, or wholly discharge him, if satisfactory excuse be made."

It would be proper that the justice, before issuing an attachment against a witness, should be satisfied of the due service of the subpoena. If the service is made by a constable, his return would be evidence of that fact; but if the service is made by any other person, the justice should satisfy himself of that fact by administering an oath and receiving proof.

The subpoena ought to be served on the witness a reasonable time before the trial, so as to give him time to at

tend; otherwise an attachment ought not to be granted. 1 Str. Rep., 509.

2. Of taking depositions.

Deposition is the testimony of a witness, otherwise called a deponent, put down in writing by way of answers to interrogatories exhibited for that purpose. Jac. Law Dic., (tit. Deposition.)

Gale's Stat., 405. "SEC. 13. If any witness, residing within the county wherein a suit shall be pending before account of age, a justice, shall be unable to attend on sickness, or other cause, it shall be lawful for the justice before whom such suit shall be pending, or some other justice of the county, to take the deposition of such witness in writing."

The deposition taken under this section, it is presumed, is taken only conditionally to be used on the trial, provided the witness himself cannot be produced; and the party offering it should prove to the satisfaction of the justice that the attendance of the witness could not be procured, otherwise it would not appear that the deposition is the best evidence, as the public examination of a witness viva voce in open court in the presence of the parties, witnesses, and jurors, is much the most conducive to the ascertaining of truth. 1 Stark. Ev., 264.

As the jurisdiction of a justice of the peace is confined to the limits of the county for which he was elected, he has no power to compel the attendance of witnesses unless they inay be found in such county. This inconvenience, however, is remedied by sec. 14 of the same statute, which provides that, "If any witness, whose testimony shall be material in a suit pending before a justice, shall reside out of the county wherein such suit shall be pending, the party desiring it, may take his, her, or their deposition or depositions, before any justice of the peace in the county in which such witness or witnesses reside; and the depositions taken in conformity thereto may be given in evidence in said suit, if it shall be made to appear that the opposite party had reasonable notice of the time and place of taking such depositions."

Gale's Stat., 421. "SEC. 9. In all cases, before justices of the peace, either party may have the case continued any reasonable time, not exceeding one month, for the purpose of taking the deposition of any non-resident witness; which deposition shall be taken in conformity to the manner of taking and returning depositions of non-resident witnesses in the circuit courts in this state."

This statute has not in terms authorized a justice to issue a commission to any person as commissioner, or to any judge or justice, to take the testimony of witnesses. It however

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