Chapter 50. JUSTICES AND CONSTABLES.

§1. Construction of Words.—The following rules of construction shall apply to this chapter:

(a) The word “justice” or “justices” shall be construed as if immediately followed by the words “of the peace”;

(b) The word “officer” shall be construed to include any person specially deputed by the justice pursuant to the fourteenth section of this article unless such construction be inconsistent with the context.(Code 1868, c. 50, §154; 1881, c. 8, §§154, 239; Code 1923, c. 50, §§154, 239.)

§2. Payments to Justice; Bond.—Every justice shall receive the money tendered to him on any claim in suit before him, or on any judgment on his docket, or any docket lawfully in his possession, on which no execution has been issued, or, if issued, has been returned unsatisfied, and no other execution has been issued thereon since such return, and from the proper officer the money collected, less the officer’s fees, on any execution, process, or order issued by him, and pay the same on demand to the person entitled thereto: Provided, That no money shall be received by a justice until he has executed a bond according to law.(1863, c. 122, §175; Code 1868, c. 50, §133; 1872-3, c. 24, §7; 1881, c. 8, §133; Code 1923, c. 50, §133.)

§3. Liability Where Justice Fails to Account for Money.—If a justice fail to pay any money which comes to his hands by virtue of his office, when demanded by the person entitled thereto, such justice and the sureties on his official bond, or any one or more of them, and the personal representative of such of them as are dead, shall be liable to the person entitled thereto for such money, with legal interest thereon from the time of such demand, and ten per cent on the principal, in addition, as damages.(1863, c. 122, §175; Code 1868, c. 50, §134; 1872-3, c. 24, §7; 1881, c. 8, §134; Code 1923, c. 50, §134.)

§4. Designation of Successors of Outgoing Justices.—When two justices are elected or appointed in any district in place of two others, the county court of the county shall declare, as to each of those going out of office, which of the two elected or appointed shall be deemed his successor.(1863, c. 122, §226; Code 1868, c. 50, §188; 1881, c. 8, §188; Code 1923, c. 50, §188.)

§5. Absence of Justice Ground for Removal.—Any justice who absents himself from his district for a longer period than sixty days may be removed from office as provided by law.(1863, c. 122, §223; Code 1868, c. 50, §185; 1881, c. 8, §185; Code 1923, c. 50, §185.)

§6. Purchase of Judgment by Justice or Constable.—Whenever a justice or constable shall purchase any judgment or any interest in a judgment rendered in the county of such justice or constable by a justice thereof, such judgment or interest shall thereby become uncollectible.(1863, c. 122, §238; Code 1868, c. 50, §119; 1872-3, c. 226, §77; 1881, c. 8, §119; Code 1923, c. 50, §119.)

§7. Purchase by Justice or Officer at Execution Sale.—Neither the justice who issued, nor the officer holding the execution or any order of sale, shall purchase, directly or indirectly, any property sold on such execution or order. If either of them shall do so, he shall be fined not less than twenty nor more than one hundred dollars.(1863, c. 122, §183; Code 1868, c. 50, §143; 1872-3, c. 226, §99; 1881, c. 8, §143; Code 1923, c. 50, §143.)

§8. No Justice or Constable to Act as Agent or Attorney.—No justice or constable shall act as agent or attorney for a party to an action, proceeding, or prosecution before a justice, and, if he does so act, he shall be guilty of a misdemeanor, and, upon conviction thereof, be fined not less than twenty nor more than one hundred dollars.(1891, c. 112, §22; Code 1923, c. 50, §22.)

§9. Officer to Attend Trials.—The constable, or other officer, shall attend all trials in his district in which he may have served process, and preserve order and enforce the lawful commands of the justice during the same.(1863, c. 122, §230; Code 1868, c. 50, §234; 1872-3, c. 226, §156; 1881, c. 8, §234; Code 1923, c. 50, §234.)

§10. Duties of Officer as to Process.—It shall be the duty of such officer, on the receipt of any summons, order, execution, or other process issued by a justice, except a subpoena, to note thereon the time of receiving the same; to serve and execute the same, subpoena included, according to the command thereof and the provisions of law; to make true return thereof to the proper justice on the return day, stating in such return the time and manner of executing the same, or why it was not executed; to subscribe his name to such return; and to pay all money received by him in his official capacity, or except his own fees, to the justice before whom the suit or proceeding is pending.(1863, c. 122, §231; Code 1868, c. 50, §235; 1881, c. 8, §235; Code 1923, c. 50, §235.)

§11. Powers of Officer as to Orders and Process.—In serving and executing the orders and process issued by a justice, the officer may exercise the same authority over persons and property as it would he lawful for a sheriff to exercise under like orders or process from the circuit court.(1863, c. 122, §232; Code 1868, c. 50, §236; 1872-3, c. 226, §157; 1881, c. 8, §236; Code 1923, c. 50, §236.)

§12. Liability of Officer for Failure to Execute Process or for False Return.—Every officer who shall neglect or refuse to serve or execute any lawful process or order in his hands, issued by a justice, when in his power to do so, or shall fail to return the same on the return day thereof, or shall fail to perform any duty which he is required by law to perform in relation thereto, shall, if there be no other fine or punishment imposed therefor, be fined not exceeding twenty dollars for every such offense; and every officer who shall make a false return on such process or order shall, if there be no other fine or punishment imposed therefor, be fined not exceeding fifty dollars for every such offense; and, moreover, he and his sureties, or any one or more of them, and the personal representatives of such of them as are dead, shall be liable, to the person injured by any such neglect, refusal, failure or false return, to the extent of such injury, with interest and ten per cent damages.(1863, c. 122, §233; Code 1868, c. 50, §237; 1872-3, c. 226, §158; 1881, c. 8, §237; Code 1923, c. 50, §237.)

§13. Duties and Liability of Constable on Expiration of Term; of Personal Representatives When Constable Dies.—Every constable going out of office may finish the business in his hands remaining unfinished, in the same manner as if his term had not expired, and, in such case, he and his sureties, or any one or more of them and the personal representatives of such of them as are dead, shall be liable with respect to such business, in the same manner and to the same extent as if his term had not expired; but, if he declines to do so, he shall deliver to his successor all process and orders in his hands, with his proceedings thereon indorsed, and also all property levied on or attached and remaining unsold, and take such successor’s receipt therefor, including in different receipts the process and orders from different justices, and shall return such receipts, respectively, to the proper justices, who shall enter the contents of the same on their dockets and carefully preserve the originals. Upon the death of a constable, the same duty shall devolve on his personal representatives.(1863, c. 122, §234; Code 1868, c. 50, §238; 1872-3, c. 226, §159; 1881, c. 8, §238; Code 1923, c. 50, §238.)

§14. Appointment of Special Constable.—Whenever it shall satisfactorily appear to a justice issuing a summons, attachment or warrant of arrest in a civil action, or a warrant in a criminal proceeding, that a necessity exists therefor, he may appoint a special constable to execute the same, either by directing such process to such special constable by name as follows:

“To A.............................. B.................................., who is hereby appointed a special constable to execute this process,” or by indorsing such appointment on such process.(1863, c. 122, §38; Code 1868, c. 50, §30; 1881, c. 8, §30; Code 1923; c. 50, §30.)

§15. Record of Appointment of Special Constable; Liability of Justice for His Acts; Powers.—The justice shall note such appointment on his docket and shall, with his sureties, be liable on his official bond for any neglect of duty, default or misconduct of such person in the matter for which he was deputed. And the person so appointed shall have all the powers, perform all the duties, receive the same fees, and be subject to the same penalties in relation to such process, as if he were a constable duly elected and qualified and had received such process as such constable.(1863, c. 122, §39; Code 1868, c. 50, §31; 1881, c. 8, §31; 1882, c. 145, §31; Code 1923, c. 50, §31.)

§1. Jurisdiction and Authority in General.—A justice of the peace, within and coextensive with the county in which the district is for which he was elected, shall have civil jurisdiction and authority:

(a) Of all civil actions for the recovery of money or the possession of property, including actions in which damages are claimed as compensation for an injury or wrong: Provided, That the amount of money or damages, or the value of the property claimed, does not exceed three hundred dollars, exclusive of interest and costs; subject, nevertheless, to the exceptions hereinafter contained;

(b) Of actions of unlawful entry or detainer of real estate situated within his county as provided in article eleven of this chapter;

(c) Of actions for trespass on real estate or damages to the same, or to rights pertaining thereto, if the cause of action arose in his county;

(d) Of actions on bonds given pursuant to this chapter;

(e) Of actions to recover rent as provided in article six, chapter thirty-seven of this Code;

(f) To administer any oath or affirmation, authorized or required by law to be administered, and to take any affidavit or deposition, unless otherwise expressly provided by law;

(g) To take, under such regulations as are prescribed by law, the acknowledgment of deeds and other writings.(Const. 1863, art. 7, §8; Const. 1872, art. 8, §33; same, as amended 1880, art. 8, §28; 1863, c. 122, §§15, 16, 17; Code 1868, c. 50, §§1, 4, 5, 8, 9, 11, 16; 1872-3, c. 24, §2, c. 226, §§2, 3, 7; 1881, c. 8, §§1, 4, 5, 8, 9, 10, 16; 1891, c. 112, §16; Code 1923, c. 50, §§1, 4, 5, 8, 9, 10, 18.)

§2. Cases in Which no Jurisdiction.—A justice shall not have cognizance of any action:

(a) In which the title to real estate is sought to be recovered, or is drawn in question;

(b) For false imprisonment;

(c) For malicious prosecution;

(d) For slander, verbal or written;

(e) For breach of marriage promise;

(f) For seduction.(1863, c. 122, §18; Code 1868, c. 50, §§10, 11; 1881, c. 8, §§10, 12; Code 1923, c. 50, §§10, 12.)

§3. When Justice Under Disability; Another Justice May Act.—If a justice be a party to the suit, or be interested in the result thereof, otherwise than as a resident or taxpayer of the district or county, or be related to either of the parties, as grandfather, grandson, father, father-in-law, son, son-in-law, brother, brother-in-law, nephew, uncle, first cousin, or guardian, or be a material witness for either party, or at any time has had the claim, which is the subject of the suit, in his hands for collection, he shall not take cognizance thereof, unless all parties to the suit consent thereto in writing: Provided, That whenever a justice is called as a material witness, the party calling him shall, by affidavit, show why he is a material witness and what he expects to prove by him. But when a justice is under such or any disability to act in a case before him, or is absent, any other justice in the same county not so disqualified, or disabled, may attend in his place, and shall thereupon become vested with and exercise his authority and perform his duties for the time being. In the event that a woman shall hold the office of justice, the same degrees of relationship herein inhibited shall likewise disqualify her.(Const. 1863, art. 7, §8; 1863, c. 122, §§14, 21, 22; 1867, c. 39, §21; Code 1868, c. 50, §§3, 14, 15; 1872-3, c. 24, §4, c. 226, §5; 1881, c. 8, §§3, 14, 15; Code 1923, c. 50, §§3, 14, 15.)

§4. Venue.—The civil jurisdiction of a justice shall not extend to any action unless the cause of action arose in his county, or the defendant, or one of the defendants, resides therein, or being a nonresident of the State is found, or has property or effects, within the county; or being a corporation has its principal office in the county, or its mayor, president or other chief officer resides therein. If the principal office of a defendant corporation be not in this State, or its mayor, president or other chief officer do not reside in this State, such jurisdiction shall extend to any action brought in the county wherein it does business.(1863, c. 122, §23; Code 1868, c. 50, §16; 1872-3, c. 226, §7; 1881, c. 8, §16; 1891, c. 112, §16; Code 1923, c. 50, §16.)

§5. Summons to Appear Before Justice of Another District.—A justice of one district may issue a summons to the defendant to appear before the justice of another district in the same in county if the suit be cognizable by the latter.(1863, c. 122, §13; Code 1868, c. 50, §2; 1881, 8, §2; Code 1923, c. 50, §2.)

§6. Jurisdictional Amount in Action on Penal Bond.—When the action is on a penal bond, the amount claimed for the breaches alleged, and not the penalty, shall be considered in determining the question of jurisdiction.(1863, c. 122, §19; Code 1868, c. 50, §12; 1872-3, c. 226, §8; 1881, c. 8, §11; Code 1923, c. 50, §11.)

§7. Amount Named in Summons to Determine Jurisdiction; Release of Excess.—The amount named in the summons shall determine the jurisdiction of a justice in a civil action; but whenever it appears in any action brought before a justice that the principal sum claimed by the plaintiff exceeds three hundred dollars, the justice shall dismiss the action and render a judgment against the plaintiff for costs, unless the plaintiff shall, at the time of filing his complaint, in writing remit the excess of principal, above three hundred dollars, with the interest on such excess, and, in such writing, direct the justice to make an entry in form or effect as follows: “The plaintiff, in this action, forgives and remits to the defendant so much of the principal of this claim as is in excess of three hundred dollars, together with the interest on said excess.”

§1. How Action Commenced.—Actions before justices are commenced by summons, or the appearance and agreement of the partie without summons; and not otherwise. Any action so commenced by agreement shall be proceeded with to trial, judgment and execution in the same manner and with like effect as if the same had been commenced by summons.(1863, c. 122, §§29, 48; Code 1868, c. 50, §19 1872-3, c. 226, §10; 1881, c. 8, §19; Code 1923, c. 50, §19.)

§2. When Action Deemed Commenced.—When the action is commenced by summons it shall be deemed commenced as of the date of the summons; and every summons shall be dated as of the day that a proper demand therefor is made. When the action is commenced by appearance and agreement, it shall be deemed commenced as of the time of docketing the case.(1863, c. 122, §30; Code 1868, c. 50, §20; 1872-3, c. 226, §10; 1881, c. 8, §20; Code 1923, c. 50, §20.)

§3. Direction and Service of Process.—If the justice have jurisdiction of the action, any lawful process, order or notice therein, unless otherwise specially provided, may be directed to any constable in the county where it is issued, or to any person specially deputed by the justice to serve or execute the same, as provided in section fourteen, article one of this chapter, and the officer or person to whom it is directed may serve or execute the same anywhere within his county, or upon any river or creek adjoining thereto. It may be directed to the constable by name or by his official designation without naming him.(Code 1868, c. 50, §17; 1872-3, c. 24, §5, c. 226, §6; 1881, c. 8, §17; Code 1923, c. 50, §17.)

§4. Form of Summons; Return; Trial; Order of Arrest.—The summons in justices’ courts, except as provided in article eleven of this chapter, shall be in form or in substance as follows:

The summons shall be made returnable not less than five nor more than thirty days from its date; and no trial shall be had or judgment rendered in less than five days after the summons has been served on the defendant unless the defendant appear and submit to the trial without objection. If the action be to recover the possession of personal property, the cause of action may be stated in the summons, as follows: “For the recovery of the possession of one horse (or one cow, etc., according to the fact) of the value of $.............. and $.............. damages for the detention thereof”; but no summons shall be quashed or set aside for any defect therein if it be sufficient on its face to show what is intended thereby. In a case where an order of arrest is issued pursuant to the provisions of article nine of this chapter, the summons may be made returnable and be served at the same time as the order of arrest, and a trial may be had at any time after execution of the order of arrest and service of the summons.(Code 1868, c. 50, §26; 1872-3, c. 226, §§14, 15; 1882, c. 145, §26; Code 1923, c. 50, §26.)

§5. Process Where Name of Defendant Unknown.—When a party to any note or instrument of writing has signed or indorsed the same with the initials, or some contraction of his name, or of his first name, or by a fictitious name, he may be designated in the summons, or in any other process, as he is in such signature or indorsement, if suit be brought on such note or instrument of writing. When the name of a defendant is not known to the plaintiff, the summons or other process may be issued against him by a fictitious name, or any description to designate the person intended, and shall not be set aside or dismissed for that cause, if served on the proper person; and in any case in which a defendant shall be proceeded against by any other than his true name, it shall be the duty the of the justice, when his true name is ascertained, to amend the summons or other process to by inserting the same therein, and thereafter to proceed against him by his true name.(1863, c. 122, §40; Code 1868, c. 50, §28; 1872-3, c. 226, §17; 1881, c. 8, §28; Code 1923, c. 50, §28.)

§6. Suits in Partnership Name.—Persons associated as partners in any trade or business may sue as such before a justice in the firm name, but the names of the individuals composing such firm shall be set forth in the summons.(1863, c. 122, §35; Code 1868, c. 50, §25; 1872-3, c. 226, §13; 1881, c. 8, §25; 1895, c. 36; Code 1923, c. 50, §25.)

§7. Separate Process for Joint Defendants.—When two or more persons are jointly liable to the action, a separate summons, if the plaintiff require it, may be issued at the commencement of the action, or at any time thereafter, against any one or more of them, and be directed and served as provided in section three of this article, but the summonses issued at the commencement of the action must all be returnable at the same time, and the summons against every such defendant separately must state who are sued with him.(Code 1868, c. 50, §27; 1872-3, c. 226, §16; 1881, c. 8, §27; Code 1923, c. 50, §27.)

§8. Mode of Service of Process and Effect of Written Acknowledgment of Service, or Appearance.—If the defendant be found, the process, order, or notice, unless person or property is to be taken into custody, or it be otherwise specially provided, shall be served by delivering him (or her) a copy thereof; or if he (or she) be not found, it may be served at his (or her) usual place of abode, by delivering a copy thereof, and giving information of its purport, to his wife (or her husband) or to any person found there who is a member of his (or her) family and above the age of sixteen years; or, if neither his wife (or her husband) nor any such other person be found there, and he (or she) be not found, by posting a copy thereof at the front door of such abode. An acknowledgment in writing of the service of such process, order, or notice by the defendant, his agent or attorney, or his appearance to answer the action, is equivalent to personal service.(1863, c. 122, §§42, 43; Code 1868, c. 50, §§32, 33; 1872-3, c. 226, §§19, 20; 1881, c. 8, §§32, 33; Code 1923, c. 50, §§32, 33.)

§9. Serving of Notice When Agent or Attorney Appointed.—When an agent or attorney has been appointed, service of any notice in the suit on him shall be equivalent to service on his principal.(1863, c. 122, §33; Code 1868, c. 50, §23; 1881, c. 8, §23; Code 1923, c. 50, §23.)

§10. Service of Process on Infants.—When a minor is a party to an action, the service of any process, order or notice must be on him if he be found within the county; and, if he be under the age of fourteen years it shall also be served on his guardian or father; or, if neither be found, then on his mother, or the person having the care or control of such minor, or with whom he lives; if neither of them be found, and no guardian for the suit shall have been previously appointed for him, service on such minor shall be sufficient. After a guardian for the suit has been appointed for a minor, a copy of any process, order, or notice shall also be served on such guardian.(1863, c. 122, §47; Code 1868, c. 50, §39; 1872-3, c. 226, §12; 1881, c. 8, §39; Code 1923, c. 50, §39.)

§11. Service of Process or Notice on Domestic Corporation.—Unless otherwise specially provided, process against, or notice to, a corporation created by virtue of the laws of this State may be served as follows:

(a) If a city, town or village, on its mayor, city manager, recorder, clerk, treasurer or any member of its council or board of commissioners;

(b) If a county court of any county, on any commissioner or the clerk thereof, or if they be absent, on the prosecuting attorney of the county;

(c) If a board of education of any district or independent school district, on the president or any commissioner thereof, or if they be absent, on the prosecuting attorney of the county;

(d) If any other corporation, on the auditor as statutory attorney in fact of such corporation, as provided in section seventy-one, article one, chapter thirty-one of this Code, or on any person appointed by it to accept service of process in its behalf, or on its president or other chief officer, or its vice president, cashier, assistant cashier, treasurer, assistant treasurer, secretary, or any member of its board of directors, or, if no such officer or director be found, on any agent of such corporation (including in the case of a railroad company a depot or station agent in the actual employment of the company), if any such attorney, officer or agent, be found in the county in which the action, suit or proceeding is instituted.(Code 1849, c. 170, §7; Code 1860, c. 170, §7; 1863, c. 78, §6, c, 122, §44; Code 1868, c. 39, §62, c. 50, §34, c. 124. §7; 1872-3, c. 114, §2, c. 226, §21; 1881, c. 5, §5, c. 8, §34; 1882, c. 117, §7; 1887, c. 59; 1903, c. 9; Code 1923, c. 39, §5, c. 50, §34, c. 124, §7.)

§12. Service of Process on Foreign Corporation.—Process against, or notice to, a foreign corporation which has a usual place of business in this State, or, with or without such usual place of business, is doing business in this State, permanently or temporarily, and which has qualified to do such business under the laws of this State, may be served in accordance with the provisions of subdivision (d) of the next preceding section.

If such corporation has not qualified to do such business under the laws of this State, service may be made by delivering, within the county where the cause of action arose, a copy of the process or notice to any officer or agent or of such corporation acting or transacting business for it in such county.

§13. Service on Branch Bank.—If a suit against a bank be brought in the county where it has a branch, service on the president or cashier of the branch is sufficient.(1863, c. 122, §45; Code 1868, c. 50, §37; 1872-3, c. 226, §24; 1881, c. 8, §37; Code 1923, c. 50, §37.)

§14. Provisions for Service on Corporations in Circuit Court Proceedings Made Applicable.—Except as otherwise provided in this article, service at any time may be made upon any corporation in the manner prescribed for similar proceedings in the circuit court.(1887, c. 59; 1903, c. 9; Code 1923, c. 50, §34.)

§15. New Summons.—A new summons may, if the paintiff desire it, be issued against a defendant when there has been no service or return of the former summons, and the same shall be indorsed, by the justice issuing it, “second summons,” or “third summons,” as the case may be.(1863, c. 122, §37; Code 1868, c. 50, §29; 1872-3, c. 226, §18; 1881, c. 8, §29; Code 1923, c. 50, §29.)

§16. Acceptance of Service by Auditor as Statutory Attorney in Fact.—The auditor of the State of West Virginia shall accept service of any process against, or any order or notice to, any corporation for which he is statutory attorney in fact, as provided in section seventy-one, article one, chapter thirty-one of this Code, when such process, order or notice is issued by any justice in this State, or in any proceeding pending in any justice’s court in this State.

§1. Form of Action.—The forms of action now existing shall not apply to justices’ courts, and there shall hereafter be but one form of action in such courts, which shall be denominated a civil action.(Code 1868, c. 50, §49; 1872-3, c. 226, §33; 1881, c. 8, §49; Code 1923, c. 50, §49.)

§2. Pleadings.—The pleadings in justices’ courts are, first, the complaint by the plaintiff; second, the answer by the defendant.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§3. Pleadings Oral or Written; Docket Entries; Issues.—The pleadings may be oral or in writing; if oral, the substance of them shall be entered by the justice in his docket; if in writing, they shall be filed by him and a reference to them be made in the docket. In either case, if the parties appear and the defendant make defense, they shall be made up on the return day of the summons, unless good cause be shown to the contrary.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§4. The Complaint.—The complaint shall state in a plain and direct manner the facts constituting the cause of action; and, if more than one cause of action be stated therein, each shall be separately stated and numbered.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§5. The Answer.—The answer of the defendant may contain, first, a denial of the complaint or some part thereof; second, a statement of the facts constituting a defense or counter claim.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§6. No Particular Form Required.—Such pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§7. When Party May Except.—Either party may except to a pleading of his adversary when it is not sufficiently explicit to be understood or it contains no cause of action or defense.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§8. Amendment; Effect of Refusal to Amend.—If the justice deem the exception well founded, he shall order the pleading to be amended, and, if the party refuse to amend, the defective pleading shall be disregarded.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§9. Time of Amendment; Continuance in Consequence Thereof.—The pleadings may be amended at any time before the trial, or during the trial, when by such amendment substantial justice will be promoted. If the amendment be made during the trial, and it be shown to the satisfaction of the justice by the oath of the opposite party, or his agent or attorney, that a continuance of the cause is necessary in consequence of such amendment, a continuance shall be granted, and the justice may, in his discretion, require the party making the amendment to pay the costs of such continuance.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§10. Variance Between Proof and Allegations.—A variance between the proof on the trial and the allegations of a pleading shall be disregarded as immaterial, unless the justice shall be satisfied that the adverse party has been misled to his prejudice thereby.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§11. Account or Other Writing for Payment of Money.—In an action or defense founded upon an account, note, or other writing for the payment of money, it shall be sufficient for the party to deliver the account, note, or other writing to the justice and to state that there is due to him thereon from the adverse party a specific sum which he claims to recover or set forth as a counterclaim in the action.(Code 1868, c. 50, §50; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§12. Filing Instruments Sued On.—If the action of the plaintiff, or the credit or counterclaim of the defendant, be founded on any bond, promissory note, bill of exchange, or other instrument of writing, it shall be filed with the justice, unless good cause be shown why it cannot be so filed; and, when judgment is rendered, the justice shall indorse upon such instrument the title of the suit and the amount allowed in the judgment to the plaintiff or defendant on account of the same. If the instrument be payable in installments, he shall also specify in the indorsement for which of the installments such allowance was made, and no suit shall thereafter be instituted between the same parties, or those claiming under them, for the matter so adjudged and decided. The justice shall retain the instrument and file it with the papers relating to the suit, unless an appeal be taken from the judgment, in which case the same shall be transmitted to the clerk of the court to which the suit is transferred by the appeal, or unless he grant leave to the person entitled thereto to withdraw such instrument, on filing a copy, for the purpose of recovering another installment, or bringing suit thereon against a different party.(1863, c. 122, §96; Code 1868, c. 50, §51; 1872-3, c. 226, §35; 1881, c. 8, §51; Code 1923, c. 50, §51.)

§13. Bill of Particulars.—The justice may, at any time before the trial, require either party, at the request of the other, at that or some other specified time, if the action or defense be founded upon an account, to file a complete statement of the items thereof, with his complaint or answer, and, in case of his default, may preclude him from giving evidence at the trial of any item not so filed.(Code 1868, c. 50, §50; 1881, c.8, §50; Code 1923, c. 50, §50.)

§14. Ascertainment of Value of Property Where Bond in Penalty Double the Value Required.—In all cases where a bond is required by this chapter to be taken in double the value of the property in question, the value thereof shall be ascertained as provided in section eight, article nine of this chapter.(Code 1868, c. 50, §199; 1881, c. 8, §199; Code 1923, c. 50, §199.)

§15. Suit on Bonds.—Suit on any bond, given pursuant to this chapter, may be brought in the name of any person sustaining loss or damage by reason of the nonperformance of the condition thereof.(1863, c. 122, §28; Code 1868, c. 50, §18; 1872-3, c. 226, §9; 1881, c. 8, §18; Code 1923, c. 50, §18.)

§16. Answer of Title to Real Property; Effect if no Answer Filed.—If the defendant in any action brought in a justice’s court claims that the title to real property will come in question therein, he may, either with or without other matter of defense, set forth in his answer the facts showing that such title will come in question on the trial thereof. Such answer shall be in writing, and shall be verified by the affidavit of the defendant, or his agent or attorney. Upon the filing of such answer, if the justice be of opinion that the facts therein stated show that the title to real property will so come in question, he shall dismiss the action at the costs of the plaintiff, unless the plaintiff, or his agent or attorney, shall file an affidavit denying the truth of such facts, in which case the action shall not be dismissed. If, however, it shall appear on the trial of the cause that the title to real property is properly in question between the parties, and that the relation of landlord and tenant does not exist between them, the justice shall dismiss the action at the costs of the plaintiff. But if no such answer of title be filed by the defendant, the justice shall have jurisdiction of the cause, and the defendant shall not be permitted, in his defense, to dispute the title of the plaintiff to the premises in question.(Code 1868, c. 50, §50; 1872-3, c. 226, §34; 1881, c. 8, §50; Code 1923, c. 50, §50.)

§17. Affidavit of Claim; Counter Affidavit; Judgment.—In every civil action before a justice of the peace upon an account for money due on contract, where the plaintiff has filed with the justice, on or before the return day of the summons, a complete statement of the items of his account, together with an affidavit stating that there is, as he verily believes, due and unpaid to him from the defendant, including principal and interest, after deducting all payments, credits and counterclaims made by the defendant, and to which he is entitled, a sum certain to be named in the affidavit, no answer shall be filed before the justice, unless the defendant shall file with his answer his affidavit stating that there is not, as he verily believes, any sum due from him to the plaintiff upon the demand or demands stated in such summons; or stating a sum certain less than that stated in the affidavit, which, as he verily believes, is all that is due from him to the plaintiff upon the demand or demands stated in the summons. If such answer and affidavit be not filed, judgment shall he entered for the plaintiff by the justice for the sum stated in his affidavit, with interest thereon from the date of the affidavit till paid. And if such answer and affidavit be filed by the defendant, and it be denied in such affidavit that any sum is due the plaintiff, the trial of the case shall be proceeded with as if the affidavits hereinbefore mentioned had not been filed. If it be admitted in such affidavit that any sum is due from the defendant, judgment may be taken by the plaintiff for the sum so admitted to be due, with interest thereon from the date of plaintiff’s affidavit till paid, and the case tried as to the residue: Provided, That nothing herein contained shall be so construed as to preclude the defendant from demanding of right a continuance of the case under the provisions of section twenty-five of this article, or from prosecuting an appeal under the provisions of article fifteen of this chapter and filing such counter affidavit in the proceeding on such appeal.(1915, c. 79, §1; Code 1923, c. 50, §50a.)

§18. Joinder or Splitting of Causes of Action.—When the plaintiff has several demands against the same defendant founded on open accounts or on any other contract, express or implied, he shall bring his action for the whole amount due and payable at the time such action is brought, whether the demands be such as might have been heretofore joined in the same action or not. If he bring his action for part only, and such demands do not exceed in the aggregate three hundred dollars, or, in case they do exceed that amount, and the demands are such as could be joined in one action in a court of record having jurisdiction, he shall not recover costs in any subsequent action on the claims not so embraced. But if he have judgment, or an action pending for any demand, he may sue for another demand afterward acquired or becoming due and payable, without joining both demands in the same suit, and the judgment in one suit shall not bar a recovery of costs in the other. And any demand against two or more persons shall not be joined in the same action with one against some of such other persons only; nor a demand against a person in his own right with one against him in a representative capacity.(1863, c. 122, §86; Code 1868, c. 50, §48; 1881, c. 8, §48; Code 1923, c. 50, §48.)

§19. Action by Assignee; Joinder of Causes of Action.—The assignee of any bond, note, account, or writing, not negotiable, may maintain thereupon any action in his own name, without the addition of “assignee,” which the original obligee or payee might have brought, and may unite claims payable to him individually with those payable to him as such assignee.(Code 1849, c. 144, §14; Code 1860, c. 144, §14; Code 1868, c. 99, §14; Code 1923, c. 99, §14.)

§20. Appearance and Conducting Action or Defense.—Any party to a civil action, and the defendant in a criminal prosecution, before a justice, unless he be under the age of twenty-one years, may appear and conduct his action or defense in person, or by agent or attorney.(1863, c. 122, §31; Code 1868, c. 50, §21; 1872-3. c. 226, §11; 1881, c. 8, §21; 1891, c. 112, §21; Code 1923, c. 50, §21.)

§21. Agent or Attorney for Party.—A party authorized to appear by agent or attorney may employ any person except a justice or constable to act as such agent or attorney. The authority to so act may be verbal or written.(1863, c. 122, §32; Code 1868, c. 50, §22; 1881, c. 8, §22; 1891, c. 112, §22; Code 1923, c. 50, §22.)

§22. Effect of Presence of Agent, Attorney, or Guardian for the Suit.—When an agent, attorney, or guardian for the suit has been appointed, his presence at any proceeding therein shall have the same effect as the presence of the party he represents: Provided, however, That process commencing the action shall have been served on the infant as provided in section ten, article three of this chapter.(1863, c. 122, §33; Code 1868, c. 50, §23; 1881, c. 8, §23; Code 1923, c. 50, §23.)

§23. Infant Parties; Appointment of Guardian for the Suit.—Where a party to the action is under the age of twenty-one years, a guardian for the suit must be appointed for him by the justice as follows: (a) If the infant be plaintiff, the appointment must be made before the summons is issued, on the application of the infant, if he be of the age of fourteen years or upwards; if under that age, on the application of some friend. The consent in writing of the guardian to the appointment, and his agreement to be responsible for costs if he fail in the action, must be filed with the justice;

(b) If the infant be defendant, the guardian must be appointed and consent to act as such before the trial. It is the right of the infant defendant to nominate his own guardian, if the infant be fourteen years of age or over, and the proposed guardian be present and consent to serve, otherwise the justice shall appoint some suitable person who gives such consent. The guardian for the defendant shall not be liable for any costs in the action.(1863, c. 122, §34; Code 1868, c. 50, §24; 1872-3, c. 226, §12; 1881, c. 8, §24; Code 1923, c. 50, §24.)

§24. Time for Appearance and Trial.—The time for appearance shall be the day and hour mentioned in the summons or order of continuance, and at such time the justice shall proceed in the trial of the cause, if such summons has been served and at least five days have elapsed since the service: Provided, That the trial may be had at an earlier date where the parties appear and agree thereto, or where the defendant submits to trial without objection.(1863, c. 122, §§110, 112; Code 1868, c. 50, §§63, 65; 1881, c. 8, §§63, 65; Code 1923, c. 50, §§63, 65.)

§25. Continuance as Matter of Right.—On the day the summons is returnable the defendant, upon making oath that he has just defense to the suit, or is justly entitled to a credit or counterclaim not admitted by the plaintiff, may demand of right a continuance of the cause for seven days; and such continuance shall be at the costs of the plaintiff or defendant according to the result of the action.(1863, c. 122, §104; Code 1868, c. 50, §58; 1872-3, c. 226, §42; 1881, c. 8, §58; Code 1923, c. 50, §58.)

§26. Continuance by Justice; Discharge of Defendant From Custody.—On the return day of the summons, if the defendant be not in custody, the justice may, without the consent of either party, continue the cause for not over seven days, but he shall not exercise this privilege at any other time, unless in case of sickness or necessity. If the defendant be in custody, he shall be discharged therefrom if the cause be continued for more than forty-eight hours without his consent.(1863, c. 122, §105; Code 1868, c. 50, §59; 1872-3, c. 226, §43; 1881, c. 8, §59; Code 1923, c. 50, §59.)

§27. Continuance for Cause; Grounds.—When a defendant is not in custody, the justice, on the return day or any subsequent time appointed for the hearing, may continue the cause on application of either party, without the consent of the other, on the applicant showing by his oath, or otherwise, that he cannot safely proceed to trial for want of some material paper, evidence, or witness, and that he has used reasonable diligence to procure the same, and will probably be able to do so, if time be granted. The continuance shall, in such case, be for a reasonable time, to enable the applicant to obtain the paper, evidence, or witness referred to.(1863, c. 122, §106; Code 1868, c. 50, §60; 1872-3, c. 226, §44; 1881, c. 8, §60; Code 1923, c. 50, §60.)

§28. Period of Continuance.—Unless both parties consent, no continuance shall be granted to a time beyond three months after the return of the summons served.(1863, c. 122, §107; Code 1868, c. 50, §61; 1872-3, c. 226, §45; 1881, c. 8, §61; Code 1923, c. 50, §61.)

§29. Costs of Continuance.—Every continuance on the application of a party shall be at his cost, except as provided in section twenty-five of this article, or where the party has subpoenaed his adversary to testify as a witness and he fails to attend or refuses to testify. If the cause is continued on account of such failure or refusal, the party subpoenaed shall pay the costs occasioned thereby unless good cause be shown for such failure or refusal.(1863, c. 122, §109; Code 1868, c. 50, §62; 1872-3, c. 226, §46; 1881, c. 8, §62; Code 1923, c. 50, §62.)

§30. Absence of Justice; Trial or Continuance by Another Justice.—No action shall be discontinued on account of the absence of the justice. If he fail to attend on the return day of the summons, or at the time to which the action stands continued, any other justice of the same county may attend and try the case, or continue it for not exceeding thirty days, and, if he do so, shall make and sign an 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.(1863, c. 122, §111; Code 1868, c. 50, §64; 1872-3, c. 226, §47; 1881, c. 8, §64; Code 1923, c. 50, §64.)

§31. Procedure Where Some Defendants Not Served.—When the summons is issued against two or more defendants but not served on all of them, and those not served do not appear to answer to the action, the plaintiff may proceed to judgment as to the defendants on whom the summons was served, or who appear to answer, 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.(1863, c. 122, §116; Code 1868, c. 50, §69; 1872-3, c. 226, §52; 1881, c. 8, §69; Code 1923, c. 50, §69.)

§32. Trial by Justice.—At the time appointed for the hearing, if a jury be not demanded by either party, the justice shall hear the proofs and give judgment as the law and evidence shall require.(1863, c. 122, §118; Code 1868, c. 50, §71; 1872-3, c. 226, §48; 1881, c. 8, §71; Code 1923, c. 50, §71.)

§33. Transfer of Proceedings.—If a party to any civil or criminal proceeding before a justice shall, at any time before evidence is introduced, make and file an affidavit that the justice before whom the summons is returnable has a personal bias or prejudice either against him or in favor of any opposite party to the proceeding, or an affidavit that said justice has advised or counseled with the plaintiff in respect to the subject matter of the proceeding, such justice shall proceed no further therein, but the proceeding shall be removed to the other justice within the district; but no party in any proceeding shall be entitled to file more than one such affidavit. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, or that such justice has so advised or counseled with the plaintiff, and such affidavit shall be filed with the justice before whom the summons is returnable, on or before the return day of the summons: Provided, however, That if there be no other justice within the district or such other justice be under legal disability to act, then the proceeding shall be removed to the next nearest justice within the county who is under no legal disability. Distance as contemplated in this section shall mean to be by the nearest traveled route.

§34. Procedure and Costs on Such Transfer.—The justice granting the removal provided for in the preceding section shall, on the return day of the summons, or within one day thereafter, deliver or transmit the papers in the case, together with a certified transcript of the proceedings before him, to the justice to whom such case is removed and note the same on his docket, and the latter justice shall try the case on the third day, Sundays and holidays excepted, after the return day of the summons, and shall proceed therein, in all respects, as if suit had been originally instituted before him: Provided, That before such removal, the party seeking it shall be taxed with and pay all costs which have accrued, including the fee for transferring the case to the docket of the other justice; and all other costs in the case not taxed and paid as provided in this section shall abide the result of the suit. .

§1. Rules Respecting Allowance of Counterclaim.—If the plaintiff’s demand in the action be founded on judgment or contract, express or implied, the defendant may set forth as a counterclaim a cause of action against the plaintiff, whether liquidated or not, arising directly out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s demand, or a liquidated demand founded on judgment or contract, express or implied, whether arising out of the same contract or not; but every counterclaim shall be subject to the following provisions:

(a) In no case shall a counterclaim for unliquidated damages be set forth except where it arises directly out of the contract or transaction which is the subject of the plaintiff’s action;

(b) If it be founded on a bond or other contract, sealed or without seal, having a penalty, the sum equitably due by virtue of its condition, and not the penalty, shall be set forth;

(c) It must have belonged to the defendant at the time the plaintiff’s suit was commenced;

(d) No counterclaim shall be allowed against the trustee, assignee or receiver of an insolvent if the same was acquired after the date of the trust deed or assignment or after the appointment of such receiver, or within four months of such date or appointment;

(e) If the plaintiff’s demand be against several defendants, the counterclaim must have belonged to all such defendants jointly at the time the suit was commenced: Provided, however, That if it appear that the persons, against whom such demand is, stand in the relation of principal and surety and the person entitled to the counterclaim is the principal, then such counterclaim may be set forth;

(f) If there be several plaintiffs suing jointly, the counterclaim must be a joint demand against them all;

(g) If the plaintiff be merely a trustee for another, or if the suit be in the name of a plaintiff who has no real interest in the demand sought to be thereby enforced, the counterclaim must be a demand against those whom the plaintiff represents and for whose benefit the suit was brought. A demand against a nominal plaintiff shall not in such ease be allowed as a counterclaim;

(h) In an action brought by an executor or administrator in his representative capacity, for any cause of action existing at the time of the death of the person he represents, a demand against the decedent or against his estate in the hands of such representative, whether then due and payable or not, which belonged to the defendant at the time of the death of the decedent, may be set forth as a counterclaim. But, if such action be founded on any transaction or contract subsequent to the death of the testator or intestate, a demand against the decedent, which existed in his lifetime, shall not be set forth as a counterclaim without the assent of his executor or administrator; and such assent shall not be given if it will work a preference;

(i) The demand to be set forth must be due and payable at the time of trial, except as provided in subdivision (h) of this section. But the plaintiff in such cases may file and prove any counterclaim he may hold against any counterclaim filed by the defendant, and may make such other defenses thereto as he might have made had an original action been brought upon such counterclaim, and, upon a trial, the true state of the demands of the parties shall be ascertained and judgment rendered accordingly;

(j) In an action brought by the assignee of any bond, note, account, or writing, not negotiable, as provided in section nineteen, article four of this chapter, the defendant may file all just counterclaims not only against such assignee, but against the original obligee or payee, before the defendant had notice of the assignment: Provided, That counterclaims against the original obligee or payee to the amount of the assigned claim only shall be set forth.(Code 1849, c. 144, §14; Code 1860, c. 144, §14; Code 1868, c. 50, §52, c. 99, §14; 1872-3, c. 226, §36; 1881, c. 8, §52; Code 1923, c. 50, §52, c. 99, §14.)

§2. Consequence of Failure to Assert Counterclaim.—If the defendant in an action founded on judgment or contract, express or implied, has, at the time the action is commenced, any counterclaim consisting of a cause of action in his favor which might have been allowed to him in defense or reduction of the plaintiff’s demand, upon the trial of the action, as provided by the preceding section, and be personally served with process in the suit or appear and answer the action, he shall set forth the same, with his evidence in support thereof, in the cause, or be forever precluded from maintaining any action for the recovery thereof. And likewise if the plaintiff has any such counterclaim, which might have been so allowed to him in defense or reduction of defendant’s counterclaim, and fail to produce and claim the same, he shall in like manner be forever precluded from maintaining an action for the recovery thereof.(1863, c. 122, §101; Code 1868, c. 50, §55; 1872-3, c. 226, §39; 1881, c. 8, §55; Code 1923, c. 50, §55.)

§3. The Preceding Section Qualified.—The preceding section shall not, however, apply to the following cases:

(a) When the counterclaim shall exceed the plaintiff’s demand more than three hundred dollars, exclusive of interest; in which case the person to whom it is owing may, at his option, sue for the whole amount in any court having jurisdiction, or set forth as a counterclaim so much as will cover the plaintiff’s demand, and sue for the excess;

(b) When the counterclaim consists of a judgment rendered before the commencement of the suit in which the same might be set forth;

(c) Demands in suit before any other court or justice at the time of the commencement of the action.(1863, c. 122, §102; Code 1868, c. 50, §56; 1872-3, c. 226, §40; 1881, c. 8, §56; Code 1923, c. 50, §56.)

§4. Trial of Counterclaim in Plaintiff’s Absence.—In cases in which defendant has filed a counterclaim, he may proceed to trial though the plaintiff fail to appear, or dismiss his action.(1863, c. 122, §103; Code 1868, c. 50, §57; 1872-3, c. 226, §41; 1881, c. 8, §57; Code 1923, c. 50, §57.)

§5. Judgment Where Counterclaim Pleaded.—If the demand of the defendant proved on the trial be equal to that of the plaintiff, judgment shall be entered for the defendant, with costs. If it be less, the plaintiff shall have judgment for the residue only, with costs. If it be more, and the balance found due to the defendant from the plaintiff do not exceed three hundred dollars, exclusive of interest and costs, or the defendant release the excess, judgment shall be rendered for the proper amount, with costs, in favor of the defendant, and execution be awarded thereon, as if the judgment had been obtained in an action brought by the defendant.(1863, c. 122, §99; Code 1868, c. 50, §53; 1872-3, c. 226, §37; 1881, c. 8, §53; Code 1923, c. 50, §53.)

§6. Judgment Where Balance Due Defendant Exceeds Jurisdictional Amount; Record.—If the balance found due the defendant, after deducting the amount to which the plaintiff is found to be entitled, exceeds the amount to which the jurisdiction of the justice is limited, and the defendant do not release the excess, judgment shall be rendered for the defendant for costs; and the defendant may thereafter recover such balance due him in any court having jurisdiction. The record of such judgment shall show the amount, if any, of plaintiff’s claim and the amount, if any, of defendant’s counterclaim allowed and the amount of such balance.(1863, c. 122, §100; Code 1868, c. 50, §54; 1872-3, c. 226, §38; 1881, c. 8, §54; Code 1923, c. 50, §54.)

§1. Subpoenas for Witnesses.—A justice may issue subpoenas for witnesses, residing or found in the county, to appear before him or any other justice; and he may compel their attendance in any suit pending before him, or in any matter respecting which he may lawfully take depositions.(1863, c. 122, §141; Code 1868, c. 50, §97; 1872-3, c. 226, §59; 1881, c. 8, §97; Code 1923, c. 50, §97.)

§2. Service of Subpoenas.—A subpoena may be served by an officer, a party to the suit, or any other person. When not served by an officer, the affidavit of the person who served it shall be evidence of service.(1863, c. 122, §142; Code 1868, c. 50, §98; 1872-3, c. 226, §60; 1881, c. 8, §98; Code 1923, c. 50, §98.)

§3. Production of Writing or Document.—When it appears by affidavit or otherwise that a writing or document in the possession of any person within the county, whether such person is a party to the matter in controversy or not, is material and proper to be produced before the justice, the justice may issue a subpoena duces tecum to compel such production at the time and place therein specified: Provided, however, That in any case where a person so required to produce any writing or document questions the right to require such production, he shall immediately notify the justice and the party demanding the production thereof and shall thereupon be relieved of the duty to produce the same, unless the party so demanding shall procure the indorsement of the judge of the circuit court of the county on the subpoena duces tecum requiring such production.

§4. Amount of Fees and Mileage.—A person attending as a witness under a subpoena or other lawful process shall be allowed fifty cents for each day’s attendance, and five cents for each mile necessarily traveled to the place of attendance, and the same for returning, and also the tolls and ferriages paid by him.(1863, c. 122, §145; Code 1868, c. 50, §101; 1872-3, c. 226, §63; 1881, c. 8, §101; Code 1923, c. 50, §101.)

§5. Prepayment of Fees and Mileage in a Civil Suit; When Not Required.—A witness in a civil suit is entitled, at the time the subpoena is served, to demand payment of his legal fees for traveling to and from the place of trial, and one day’s attendance. If he demand them at such time, and they are not paid, he is not obliged to attend the trial before the justice. But if at the time of issuing such subpoena, or afterwards, the party for whom it is issued file his affidavit with the justice that he is unable pecuniarily to pay the fees and mileage of any witness, and that the testimony of such witness is material to him in the trial of the cause, the justice, if satisfied of the truth of the affidavit, shall indorse on the subpoena the fact of such affidavit having been made, and in such case the witness shall attend without the prepayment of fees or mileage.(1863, c. 122, §144; Code 1868, c. 50, §100; 1872-3, c. 226, §62; 1881, c. 8, §100; Code 1923, c. 50, §100.)

§6. Fees Where More Than Two Witnesses Called.—Any party calling more than two witnesses to any fact which is not contradicted by another witness shall pay the costs of such additional witnesses, unless otherwise ordered by the justice.(1863, c. 122, §147; Code 1868, c. 50, §102; 1872-3, c. 226, §64; 1881, c. 8, §102; Code 1923, c. 50, §102.)

§7. Time for Claiming Fees.—No claim for attendance shall be allowed a witness unless made before judgment is entered.(1863, c. 122, §148; Code 1868, c. 50, §103; 1872-3, c. 226, §65; 1881, c. 8, §103; Code 1923, c. 50, §103.)

§8. Failure of Witness to Attend or Testify.—Whenever it shall appear to the satisfaction of a justice that any person has been duly served with a subpoena, or other lawful process, to give evidence before him in any matter in which he has authority to require such witness to appear and testify; that his evidence is material; and that he fails or refuses to attend, as required by such subpoena or other lawful process, such person, on reasonable notice, and an opportunity of being heard, if he do not show sufficient cause for such failure or refusal, may be fined by the justice not exceeding ten dollars, and adjudged to pay the costs of the proceeding against himself. An entry of such fine and costs, stating the reason therefor, must be made by the justice in his docket, and shall have the effect of a judgment in favor of the State, and may be enforced as other judgments of justices. When a person in attendance refuses to testify, without showing sufficient cause, he shall be subject to like penalty, or may be imprisoned not exceeding five days, or both.(1863, c. 122, §149; Code 1868, c. 50, §104; 1872-3, c. 226, §§66, 67; 1881, c. 8, §104; Code 1923, c. 50, §104.)

§9. Damages for Failure to Testify.—Every person summoned as aforesaid, and failing or refusing to appear and testify, without sufficient cause, and every person present at the trial and refusing to testify, without such cause, shall also be liable, to the party requiring his evidence, for all damages such party may sustain by such failure or refusal.(1863, c. 122, §152; Code 1868, c. 50, §105; 1872-3, c. 226, §68; 1881, c. 8, §105.)

§10. Persons Incompetent to Testify.—The following persons are incompetent to testify, as hereinafter provided, and not otherwise:

(a) Persons of unsound mind, and children who appear incapable of receiving just impressions of their obligation to tell the truth, or of the facts respecting which they are to be examined;

(b) A husband or wife, concerning any confidential communication made by one to the other during the marriage, whether called to testify while the relation subsists or after it is dissolved, and, in criminal cases, as provided in section three, article three, chapter fifty-seven of this Code;

(c) An attorney, without his client’s consent, concerning any communication made to him by his client touching the matter in which he is professionally consulted or employed, or any counsel or advice given by him to his client in a professional capacity;

(d) A minister, clergyman or priest of any religious denomination, concerning any confession made to him according to the course of discipline enjoined by the church to which he belongs;

(e) A physician or surgeon, without his patient’s consent, concerning any communication made to him by his patient, which was necessary to enable him to prescribe and treat the case.(1863, c. 122, §157; Code 1868, c. 50, §108; 1881, c. 8, §108; Code 1923, c. 50, §108.)

§11. Objection to Competency of Witnesses.—If a witness offered at a trial be objected to as incompetent, the objection shall be tried and determined by the justice. The proposed witness may be examined on oath touching the question of his competency, and other evidence may be given in support of or against the objection.(1863, c. 122, §156; Code 1868, c. 50, §107; 1881, c. 8, §107; Code 1923, c. 50, §107.)

§12. Proof of Execution, Assignment or Indorsement of Written Instrument.—The execution of any written instrument, or of any assignment or indorsement thereof, produced at the trial, need not be proved, unless the adverse party, his agent or attorney, makes oath that he does not believe the same to be genuine.(1863, c. 122, §159; Code 1868, c. 50, §109; 1881, c. 8, §109; Code 1923, c. 50, §109.)

§13. Docket Entries as Evidence.—Whenever it is necessary to prove a judgment or other proceeding had before a justice, or any process issued by him, or the return thereof, or any order made by him in a suit, the docket in which it is entered, or a transcript thereof, certified by him or his successor in office, or the person lawfully having the custody of such docket, shall be evidence of the same, but shall not be conclusive, if errors or omissions be shown.(1863, c. 122, §220; Code 1868, c. 50, §182; 1872-3, c. 226, §135; 1881, c. 8, §182; Code 1923, c. 50, §182.)

§14. Depositions of Witnesses Nonresident or Unable to Attend.—In civil cases depositions of witnesses residing out of the county, or sick, or otherwise unable to attend, or about to leave the county, may be taken by either party on reasonable notice to the other, to be used in trials before a justice; and no commission shall be necessary.(1863, c. 122, §160; Code 1868, c. 50, §110; 1872-3, c. 226, §69; 1881, c. 8, §110; Code 1923, c. 50, §110.)

§15. Return of Depositions and Their Use as Evidence.—Such depositions shall be sent under seal to the justice before whom the case is to be tried, the officer taking the same writing his name across the place where it is sealed. And if the witness, at the time of the trial, be absent from the county, or sick, or otherwise unable to attend, the deposition, if competent and proper evidence, may be read in evidence at the trial by either party, and when so used it shall be filed with the papers in the cause.(1863, c. 122, §161; Code 1868, c. 50, §111; 1872-3, c. 226, §70; 1881, c. 8, §111; Code 1923, c. 50, §111.)

§16. Notice of Taking Depositions.—No deposition of any person shall be given in evidence on the trial on behalf of either party, if the other object, unless the party against whom it is offered had at least three days’ notice of the taking thereof, or attended and was given an opportunity freely to cross-examine the witness, subject to the rules of law.(1863, c. 122, §155; Code 1868, c. 50, §106; 1872-3, c. 226, §69; 1881, c. 8, §106; Code 1923, c. 50, §106.)

§17. Oath of Witness; Affirmation; Rules of Evidence.—Every witness, before giving his testimony, shall be sworn that the evidence he will give relating to the matter in difference between the plaintiff and defendant shall be the truth, the whole truth, and nothing but the truth. A solemn affirmation shall, in all cases, have the same effect as an oath; and the rules of evidence in trials and proceedings before justices shall, unless otherwise provided, be the same as in the circuit court.(1863, c. 122, §162; Code 1868, c. 50, §112; 1881, c. 8, §112; Code 1923, c. 50, §112.)

§1. Right to Trial by Jury.—Either party to a civil action before a justice, when the value in controversy or the damages claimed exceed twenty dollars, or the possession of real estate is in controversy, shall be entitled, under the regulations herein prescribed, to a trial by six jurors, if demanded.(1863, c. 122, §119; Code 1868, c. 50, §72; 1872-3, c. 226, §48; 1881, c. 8, §72; Code 1923, c. 50, §72.)

§2. Time for Demand of Jury.—The demand must be made before the justice has commenced an investigation of the merits of the case, by the examination of any witness, or the hearing of other evidence.(1863, c. 122, §120; Code 1868, c. 50, §73; 1881, c. 8, §73; Code 1923, c. 50, §73.)

§3. Deposit of Jury Fees.—The party demanding the jury must deposit with the justice six dollars to pay the fees of such jury: Provided, That the party demanding such jury may file his affidavit that he is unable pecuniarily to make such deposit, and the justice, if satisfied of the truth of the affidavit, shall issue an order for the jury, without such deposit being made.(1863, c. 122, §121; Code 1868, c. 50, §74; 1881, c. 8, §74; 1891, c. 93; Code 1923, c. 50, §74.)

§4. Adjournment of Trial for Return of Jury.—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.(1863, c. 122, §122; Code 1868, c. 50, §75; 1881, c. 8, §75; Code 1923, c. 50, §75.)

§5. Summoning the Jury.—When a party demanding a jury shall have made the deposit required by section three of this article, or such deposit has been dispensed with, as provided in said section, the justice shall issue an order, directed to any constable of the district, or in the county, commanding 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 may be deputed to serve the same, to execute such process, and to return the same, with the names of the jurors summoned in obedience thereto, on the return day named therein.(1863, c. 122, §§125, 126; Code 1868, c. 50, §82; 1881, c. 8, §82; Code 1923, c. 50, §82.)

§6. Failure of Juror to Attend or Serve.—Any person so summoned who fails to appear, or when in attendance refuses to serve on the jury, without sufficient cause, may, after notice and an opportunity to be heard, be fined by the justice not exceeding five dollars, and adjudged to pay the costs 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 costs, and may be enforced like other judgments of justices.(1863, c. 122, §127; Code 1868, c. 50, §83; 1881, c. 8, §83; Code 1923, c. 50, §83.)

§7. Persons Liable to Service; Competency Exemptions.—The provisions of chapter fifty-two of this Code relative to persons liable to jury service and exemptions therefrom, except where otherwise expressly provided in this article, shall govern the selection of juries in cases before a justice of the peace.

§8. Competency of Jurors.—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 result of the action.(1863, c. 122, §124; Code 1868, c. 50, §78; 1881, c. 8, §78; Code 1923, c. 50, §78.)

§9. Examination of Jurors.—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 taxpayers 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 impartial in the case, another shall be placed in his stead for the trial thereof.(Code 1860, c. 162, §21; Code 1868, c. 50, §79; 1881, c. 8, §79; Code 1923, c. 50, §79.)

§10. Summoning Bystanders.—If a sufficient number of competent jurors be not obtained as aforesaid, the justice, in order to supply the deficiency, may direct the constable, or person deputed, to call and summon bystanders, or other persons to serve as jurors, who shall be subject to the examination provided for in the preceding section.(1863, c. 122, §128; Code 1868, c. 50, §84; 1881, c. 50, §84; Code 1923, c. 50, §84.)

§11. Challenges.—The plaintiff and defendant shall each be entitled to two peremptory challenges in making up the jury and the persons so challenged shall not be permitted to serve thereon.(1863, c. 122, §128; Code 1868, c. 50, §85; 1881, c. 8, §85; Code 1923, c. 50, §85.)

§12. Exception to Juror.—No exception to a juror on account of age or legal disability shall be allowed after he is sworn, unless by leave of the justice; but if the justice require it, a juror may be set aside at any time before the introduction of evidence and another placed in his stead.(1860, c. 162, §22; Code 1868, c. 50, §80; 1881, c. 8, §80; Code 1923, c. 50, §80.)

§13. Irregularities in Selection or Impaneling of Jurors.—No irregularity in any order summoning a jury, or the service thereof, or in selecting, or impaneling the jurors, shall be sufficient to set aside a verdict, unless it appear , that the party making the objection was in jured thereby, or that such objection was made before the jury was sworn.(Code 1860, c. 162, §23; Code 1868, c. 50, §81; 1881, c. 8, §81; Code 1923, c. 50, §81.)

§14. Oath.—The jury shall be sworn by the justice well and truly to try the matter in difference between the plaintiff and defendant, and a true verdict give according to the evidence.(1863, c. 122, §130; Code 1868, c. 50, §86; 1881, c. 8, §86; Code 1923, c. 50, §86.)

§15. Hearing of Case.—After the jury are sworn, they shall sit together and hear the evidence of the parties, which shall 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 been discharged by the justice.(1863, c. 122, §131; Code 1868, c. 50, §87; 1881, e. 8, §87; Code 1923, c. 50, §87.)

§16. Return and Entry of Verdict.—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.(1863, c. 122, §132; Code 1868, c. 50, §88; 1881, c. 8, §88; Code 1923, c. 50, §88.)

§17. Failure to Agree; Continuance.—Whenever the justice is satisfied the jury can not agree, he may discharge them and order another jury to be drawn and summoned to appear within forty-eight hours, unless the parties agree on a longer time or agree to dispense with a jury in the 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.(1863, c. 122, §133; Code 1868, c. 50, §89; 1881, c. 8, §89; Code 1923, c. 50, §89.)

§18. Compensation of Jury; Costs.—On the verdict being delivered to the justice, if the deposit mentioned in section three of this article has been made, each juror shall be entitled to receive from him one dollar out of the money so deposited. When the jury are unable to agree, or the trial by jury is dispensed with, the same compensation shall be paid them out of such 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 costs awarded against the adverse party. And when such costs are collected in eases where no deposit was made, the fees of the jury shall be paid therefrom. When the jury shall be occupied in the trial of a case more than one day, there shall be taxed as a part of the costs of the suit, for each additional day so occupied for each juror who serves, fifty cents, to be recovered from the party against whom judgment is rendered, and when such costs are collected the justice shall pay the fees of the jurors therefrom.(1863, c. 122, §134; Code 1868, c. 50, §90; 1881, c. 8, §90; 1891, c. 93; Code 1923, c. 50, §90.)

§19. New Trial; When Granted.—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 the payment of the costs of the former 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 draw and order summoned another jury, if demanded by either party, in accordance with the provisions of this article. But not more than one new trial shall be granted by a justice to the same party in any case.(1863, c. 122, §135; Code 1868, c. 50, §91; 1881, c. 8, §91; Code 1923, c. 50, §91.)

§1. Submission to Arbitration.—At any time before judgment the plaintiff and defendant may, by mutual agreement, have the cause submitted to the arbitrament of three disinterested men, who shall be chosen by the parties to the cause; and, if the arbitrators be present, they shall hear and determine the matter in difference between the parties, being first sworn by the justice impartially to decide the same according to the law and the evidence. In the pleadings, hearing and determination of the matter, the arbitrators and the parties to the arbitration shall be governed by the provisions of this chapter in so far as they are applicable. But if they be not present, a time and place shall be appointed by the justice for the hearing, unless the parties agree on the same, and the justice shall, if necessary, issue a summons to the arbitrators to attend. The fees of the arbitrators shall be the same as those of jurors.(1863, c. 122, §136; Code 1868, c. 50, §92; 1872-3, c. 226, §54; 1881, c. 8, §92; Code 1923, c. 50, §92.)

§2. Award.—When the arbitrators attend at the time and place so appointed, being first sworn as aforesaid, they shall hear and determine the cause, and make their award in writing (which shall be valid when signed by any two of them) and return the same to the justice, who shall enter a note thereof on his docket, and render judgment thereon, and issue execution as in other cases. But continuances may be granted as in other cases.(1863, c. 122, §137; Code 1868, c. 50, §93; 1872-3, c. 226, §55; 1881, c. 8, §93; Code 1923, c. 50, §93.)

§3. Judgment on Award.—Every judgment on such award shall conclude the rights of the parties, unless, within fourteen days from the rendition of such judgment, it be made to appear, by evidence introduced before the justice, that the award was obtained by mistake, fraud, corruption, or other undue means. In such case the award and judgment may be set aside by the justice, upon motion by either party, the other party, his agent or attorney being present or having had at least three days' notice of the motion, and the cause be tried as if the arbitration had not been agreed upon.(1863, c. 122, §138; Code 1868, c. 50, §94; 1872-3, c. 226, §56; 1881, c. 8, §94; Code 1923, c. 50, §94.)

§4. Appeal From Judgment Setting Aside or Refusing to Set Aside Award.—An appeal may be taken to the circuit court or any inferior court in the county having appellate jurisdiction in civil cases, under the regulations prescribed in article fifteen of this chapter so far as they are applicable, from a judgment of a justice setting aside or refusing to set aside an award, but in no other case. If on the appeal the appellate court shall be satisfied that the award was obtained by mistake, fraud, corruption, or other undue means, such court shall set aside the award and proceed to hear and determine the cause on its merits, as in other cases of appeals from justices’ courts; but if the appellate court shall find that the award was not so obtained, then such court shall render judgment on the award, including all costs of the appeal, and award execution as in other cases.(1863, c. 122, §139; Code 1868, c. 50, §95; 1872-3, c. 226, §57; 1881, c. 8, §95; Code 1923, c. 50, §95.)

§5. Setting Aside Arbitration Agreement.—If, after the arbitration has been agreed upon as provided in this article, the award be not returned to the justice within fourteen days, the justice, on the application of either party, the other having reasonable notice, may, in his discretion, set aside the agreement, and thereafter proceed to trial and judgment as in other cases.(1863, c. 122, 140; Code 1868, c. 50, §96; 1872-3, c. 226, §58; 1881, c. 8, §96; Code 1923, c. 50, §96.)

§6. Rehearing by Arbitrators.—Where an award is vacated, and the time within which the submission requires the award to be made has not expired, the justice, in his discretion, may direct a rehearing by the arbitrators.

§7. When Award May be Modified and Corrected.—Any party to such submission may also move to modify or correct such award in the following cases: (a) Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing or property referred to in such award; (b) where the arbitrators shall have awarded upon some matter not submitted to them, nor affecting the merits of the decision of the matter submitted; (c) where the award shall be imperfect in some matter of form not affecting the merits of the controversy, and when, if it had been a verdict, such defect could have been amended or disregarded by the justice.

§1. Affidavit; Grounds of Attachment; Order.—The plaintiff, at the commencement of his action or at any time during its pendency, and before judgment, may, subject to the provisions contained in the following section, have issued, by the justice, an order of attachment against the personal property and claims of a defendant, or any of the defendants to the action, if he show to the satisfaction of the justice by his own affidavit, or the affidavit or affidavits of one or more credible persons, made before any person authorized to administer oaths, the nature of his claim, that it is just, the amount thereof, as near as may be, and that one or more of the following grounds exists as to the defendant, or any of the defendants to the action:

(a) That the defendant, or any of the defendants, is removing, has removed or is about to remove his property or a material part thereof out of the State, with intent to defraud his creditors; or

(b) Is converting, has converted or is about to convert his property or a material part thereof into money or securities, with like intent; or

(c) Has assigned, disposed of, or removed, his property or a material part thereof, or is about to do so, with like intent; or

(d) Has property or rights in action which he fraudulently conceals; or

(e) Fraudulently contracted the debt or incurred the liability for which the action is to be or has been brought; or

(f) Being a resident of this State, is about to depart therefrom and reside out of the State, without having paid the plaintiff’s demand against him; or

(g) Has absconded or concealed himself with intent to hinder or defraud any creditor or avoid service of process; or

(h) Is a foreign corporation, or a nonresident of this State.

Such order of attachment shall be directed and executed as prescribed in section three, article three of this chapter, and shall be returnable when executed, but, if not previously executed, within sixty days from its date. And it may be issued or executed on Sunday or on any holiday if oath be made that the defendant is actually removing his effects on that day.(1863, c. 122, §55; Code 1868, c. 50, §193; 1872-3, c. 226, §139; 1881, c. 8, §193; 1882, c. 158, §8; Code 1923, c. 50, §193.)

§2. Attachment Bond; When Officer Liable for Wrongful Levy.—But such order shall not be issued until a bond with good security, to be approved by the justice, in a penalty double the amount of the claim sworn to, is filed with the justice, with condition that the plaintiff will pay all costs and damages which may be awarded against him or sustained by any officer or other person by reason of the suing out of the attachment, or levying the same, and to pay to any claimant of any property seized or sold under or by virtue of such attachment, all damages which he may sustain in consequence of such seizure or sale, should it thereafter appear that it was issued upon false suggestions, or without sufficient cause. No action shall be maintained against the officer levying an attachment upon personal property not belonging to the debtor, unless it shall appear that such wrongful levy was willfully and knowingly made.(1863, c. 122, §58; Code 1868, c. 50, §194; 1872-3, c. 226, §140; 1881, c. 8, §194; Code 1923, c. 50, §194.)

§3. Amendment of Affidavit.—The affidavit required by section one of this article may be amended at any time before trial by the substitution of a new affidavit complying with the requirements of the statute and containing allegations of fact existing at the time of making the former affidavit, and the new affidavit shall stand in lieu of the old one for all purposes.

§4. On What Claims Attachment Granted.—The order may be issued whether the action be founded on contract or brought to recover damages for a wrong; and, except where the ground of attachment is that the defendant is a foreign corporation, or a nonresident of the State, it may be issued though the plaintiff’s demand be not yet due and payable. If the affiant shows by his affidavit that such defendant was a resident of this State when the debt was contracted, and that the plaintiff believed he would remain a resident of this State at the time he gave the defendant credit, then the order may be issued even though the demand be not due.(1863, c. 122, §56; Code 1868, c. 50, §195; 1872-3, c. 226, §141; Code 1923, c. 50, §195.)

§5. Attachment for Rent.—An attachment for rent may be issued by a justice and proceedings therein shall be had in the manner provided in section seventeen, article six, chapter thirty-seven of this Code.(1881, c. 8, §195; Code 1923, c. 50, §195.)

§6. Contents of Order of Attachment.—The order shall command the officer who is to execute it to attach the personal property and claims of the defendant against whom it is issued, found within the county where the order is to be executed, and not exempt by law from execution or other process, or so much of the said property and claims as will satisfy the plaintiff’s demand, with interest and costs; which demand shall be stated in the order in substance as it is in the affidavit, so far as may be necessary to enable the officer to ascertain the amount thereof, which order may be in form or effect as follows:

(1863, c. 122, §60; Code 1868, c. 50, §196; 1872-3, c. 226, §142; 1881, c. 8, §196; Code 1923, c. 50, §196.)

§7. Officer’s Return.—The officer serving the attachment shall make a return of the day and hour and manner of service on each person designated as being indebted to, or having in his possession or under his control personal property of, any such defendant; and shall also return a list and description of the personal property, if any, levied upon or levied upon and seized under such attachment, and of the date of the service, or execution thereof, on each person and each parcel of property. Such return shall show, as to any personal property levied upon, whether such property was merely levied upon, or was both levied upon and seized.

§8. Taking Attached Property Into Custody; Forthcoming Bond; Appraisement.—The officer shall take into his custody and care any property found subject to the attachment, or a sufficiency thereof, and hold the same subject to the order of the justice, unless a bond with good security, to be approved by the justice, in a penalty equal to the value of the property, or the amount of the claim for which the attachment issued, with costs, at the option of the person giving it, be delivered to him, conditioned to the effect that the said property, or its value in money, will be forthcoming to answer any judgment in the action against the defendant. If such bond be offered, the officer shall cause an appraisement of such property to be made and signed by two disinterested householders of the neighborhood, sworn for the purpose, unless the value be agreed upon between the plaintiff and the person theretofore in possession or control of such property. Such bond, with the agreement or appraisement, shall be returned to the justice with the order of attachment.(1863, c. 122, §§62, 66; Code 1868, c. 50, §199; 1872-3, c. 226, §145; 1881, c. 8, §199; Code 1923, c. 50, §199.)

§9. Interest and Profits Pending Suit.—When any attachment is sued out (except against a nonresident) on such affidavit as is provided for in section one of this article, and the property is seized and retained by the officer, the interest and profits thereof, pending the suit and before judgment, may be paid to the defendant, if the justice deem it proper.

§10. Trial of Action Involving Attachment; Contest of Attachment; Procedure; Rehearing.—When the summons in the action has been served on the defendant against whom an order of attachment is issued, or such defendant appears to answer the action, the plaintiff may proceed to trial and judgment against him as in other actions before justices. But if the summons be not served on such defendant, and he do not appear to answer the action, a second summons shall be issued against him, returnable in not less than one nor more than two months after its date, stating that property or claims of the said defendant have been attached to answer the plaintiff’s demand; and the officer to whom such second summons is delivered to be served shall forthwith cause copies thereof to be posted at the front door of the courthouse and two other public places in the county where the action is pending, and shall serve the same on such defendant, if he be found in the county on or before the return day thereof. If such second summons be returned served upon such defendant, or he appear to answer the plaintiff’s action, or if it be returned that the said defendant could not be found in the county, and that copies were posted as aforesaid, the plaintiff may proceed to trial and judgment against such defendant. If judgment be rendered in favor of such defendant, the plaintiff shall be liable for the costs of the order of attachment and proceedings under the same, as well as of the principal suit. The right to sue out an attachment may be contested, and when the justice is of opinion that the facts stated in the affidavit were not sufficient to authorize the issuing thereof, or that the affidavit is otherwise insufficient, judgment shall be entered that the attachment be quashed. If the defendant desire to controvert the existence of the grounds for the attachment stated in the affidavit, he may file a plea in abatement, denying the existence of such grounds, and the issue on such plea shall be tried by a jury, unless the same be waived by the parties. The affirmative of such issue shall be with the plaintiff; and if he fail to prove to the satisfaction of the jury or justice, if a trial by jury be waived, the existence of the grounds denied by the defendant, the verdict shall be for the defendant, and judgment shall be entered that the attachment be abated. But the justice may grant new trials as in other cases. When the attachment is properly sued out, and the case heard upon its merits, if the justice be of the opinion that the claim of the plaintiff is not established, final judgment shall be given for the defendant. In either case the defendant shall recover his costs, and there shall be an order for the restoration to him of the attached effects. If any such judgment be rendered without the service of process on the defendant, he, or his personal representative, if he be dead, may appear and have the case reheard in the manner provided for in section twenty, article thirteen of this chapter; and all the provisions of said section, as to the rehearing therein provided for, shall be applicable to a rehearing under this section.(1863, c. 122, §67; Code 1868, c. 50, §202; 1872-3, c. 226, §147; 1881, c. 8, §202; 1882, c. 145, §202; Code 1923, c. 50, §202.)

§11. Judgment and Execution Where Summons Not Served on Defendant.—A judgment rendered by a justice where the summons has not been served on the defendant, and he has not appeared to answer the action, shall have the effect of a judgment only as to the property and claims of such defendant attached in the action. An execution issued on such judgment may be levied on the property subject to the attachment, but not on any other.(1863, c. 122, §68; Code 1868, c. 50, §203; 1872-3, c. 226, §148; 1881, c. 8, §203; Code 1923, c. 50 §203.)

§12. Execution or Order of Sale; Sale; Application of Proceeds; Action on Forthcoming Bond.—After the plaintiff has obtained judgment, he may proceed by execution as aforesaid, or the justice, on his application, shall issue an order commanding the officer having in his custody any property subject to the attachment, or any officer to whom an execution might be directed by such justice, to sell the property so subject, or so much thereof as will be sufficient, as provided for in section nineteen, article fourteen of this chapter. But if the attachment and judgment be for a debt not yet due, the property shall be sold on a credit corresponding to the time it will become due, if such time be longer than that mentioned in said section, and the notes of the purchaser, with good security, bearing interest from date, shall be taken for the purchase money. Such sale shall be made, the order of sale returned, and the proceeds accounted for, paid and applied as if the property had been taken under an execution issued on such judgment, and the officer and his sureties, his and their personal representatives, shall be liable in respect thereto in the same manner and to the same extent. If any property or its value in money be not forthcoming to answer such judgment pursuant to the bond mentioned in section eight of this article, the plaintiff may bring an action in his own name on the bond against any one or more of the parties who signed the same, and recover therein, besides costs, so much as will be necessary to satisfy such judgment, not exceeding, however, the value of the property detained. If the property mentioned in the bond, or any part of it, be forthcoming, the same, or so much of it as will be sufficient, shall be sold under the order of the justice and applied as aforesaid. If the value in money be paid pursuant to the bond, such payment shall be to the justice, and be applied by him to the satisfaction of such judgment so far as it is necessary, and the balance paid to the said defendant, on demand.(1863, c. 122, §82; Code 1868, c. 50, §204; 1872-3, c. 226, §149; 1881, c. 8, §204; Code 1923, c. 50, §204.)

§13. Service of Attachment Order on and Liability of Garnishee; Answer.—The officer who is to execute the order of attachment shall, within his county, deliver a copy thereof to any persons designated by the plaintiff, or whom the officer believes to have in his possession, or control, any personal property of the defendant, or to be liable to such defendant for any sum of money, and such delivery shall be a sufficient levy of the attachment in respect to the person to whom such copy is delivered. The officer shall note upon the order of attachment and state in his return the exact time of every such levy; and, if he fail to do so, shall, with his sureties and his and their personal representatives, be liable to the same penalty as for failing to indorse on an execution the day and hour it comes to his hands to be executed. The person to whom a copy of the order of attachment is so delivered, and who is hereinafter called garnishee, shall be liable to the plaintiff for whatever personal property of the defendant, not exempt by law from execution or other process, was in his possession or control when the levy was made, or was in his possession or control at any time thereafter and before the time of answering, or the return day of the order of attachment, whichever comes first, and whatever amount he was then liable for to such defendant, whether then due and payable or thereafter to become so, so far as may be necessary to satisfy any judgment the plaintiff may recover against such defendant, not exceeding the sum mentioned in the order of attachment, with interest and costs, including the costs of the attachment proceedings: Provided, That if such garnishee shall return an answer that he or it is not liable to the defendant for any sum of money, and has not in his or its possession or control any personal property of the defendant, the plaintiff may, within thirty days from the time of filing such answer, contest the truth of such answer, after having first served notice upon the garnishee of his purpose so to contest the truth of such answer, and, if such notice be not served within such time, an order shall be entered discharging such garnishee: Provided further, That if the plaintiff’s cause of action against the defendant arose outside of the State of West Virginia while both the defendant and the plaintiff (or the original owner of the plaintiff’s claim, if the plaintiff holds such claim by assignment) were nonresidents of the State of West Virginia, then the garnishee shall not be held liable to the plaintiff for any amount for which he or it may be liable to the defendant for wages on account of services rendered by the defendant, unless the said defendant is a resident of the State of West Virginia at the time of the institution of the suit, in which event such garnishee shall be liable as in other cases.

In any contest hereunder as to the place of residence of any party or assignor, or as to where a cause of action arose, the burden of proof shall be upon the plaintiff.(Code 1860, c. 151, §7; 1863, c. 122, §§60, 74; Code 1868, c. 50, §197; 1872-3, c. 226, §143; 1881, c. 8, §197; 1885, c. 37, §197; Code 1923, c. 50, §197; 1927, c. 41, §197.)

§14. Discharge of Garnishee on Delivery of Property or Payment of Money.—The garnishee may, at any time before judgment against himself, deliver the property or pay the money for which he is so liable, or a sufficiency thereof to satisfy the attachment, to the officer before the return of the order of attachment, or to the justice, and as to the property so delivered and/or money so paid, he shall be discharged from all liability whatsoever to the defendant: Provided, however, That if the obligation upon which the garnishee is indebted to the defendant is evidenced by a negotiable instrument, such obligation shall not, as to a holder in due course, be discharged by such payment: Provided further, That the holder in due course of a negotiable warehouse receipt, bill of lading, or other negotiable instrument for any property so delivered, shall not be impaired by such delivery.(.1863, c. 122, §75; Code 1868, c. 50, §198; 1872-3, c. 226, §144; 1881, c. 8, §198; Code 1923, c. 50, §198.)

§15. Order to Garnishee to Answer After Judgment.—On motion of the plaintiff, after he has obtained judgment as aforesaid against the defendant, the justice shall make an order requiring any garnishee who has not returned an answer as provided for in section thirteen of this article, at a time and place specified in such order, to appear and answer, under oath, respecting the property and money with which he is chargeable; and may also subpoena witnesses to testify concerning the same.(1863, c. 122, §71; Code 1868, c. 50, §205; 1872-3, c. 226, §150; 1881, c. 8, §205; Code 1923, c. 50, §205; 1927, c. 41, §205.)

§16. Answer of Garnishee; Failure to Appear or Answer.—If the garnishee appear and answer, he shall be examined, under oath, respecting whatever he is liable for, as provided by section thirteen of this article, and the justice shall also hear any proper evidence concerning the same, and shall ascertain whether the liability of such person, or any part thereof, is represented by a negotiable instrument, and, in the case of a bailee, whether there is outstanding any negotiable warehouse receipt, bill of lading, or other negotiable instrument for any of the personal property of the judgment debtor in his possession or control. If he fail to appear at the time and place specified in the order, and it be shown that a copy of such order was delivered to him ten days at least before that time, the justice may either proceed to hear proof respecting the property and money with which the garnishee is chargeable, or, on motion of the plaintiff, shall appoint another time, and cause not less than ten days’ notice, to be given to the garnishee, that, if he do not appear and answer at the time so last appointed, it will be taken as an admission that he is liable for money sufficient to satisfy the judgment against the defendant, with interest and costs, and the costs of the attachment. If he fail to appear after such second notice, or if at any time he appear and refuse to answer any proper question, and in either case no sufficient cause be shown therefor, the justice may proceed as if the garnishee had admitted sufficient money to be in his hands as aforesaid: Provided, That if the garnishee reside in another county, he may always answer in writing, under oath, being first served with a copy of such order within the county where the judgment was rendered, and such answer, if sufficient, shall be equivalent to his personal appearance and examination; or, if insufficient, he may be required, being first served with a copy thereof, to answer, under oath, proper interrogatories in writing, approved and allowed by the justice; and his failure to file with the justice his answer to such interrogatories within two weeks after he has been served with a copy thereof shall, unless good cause be shown for such failure, be taken as an admission by the garnishee that he has sufficient money in his hands as aforesaid.(1863, c. 122, §73; Code 1868, c. 50, §206; 1872-3, c. 226, §151; 1881, c. 8, §206; Code 1923, c. 50, §206.)

§17. Order for Payment or for Delivery of Property by Garnishee; Sale of Property.—If it appear by the admission or examination of the garnishee, or otherwise, that he is liable for any money or personal property, whether sufficient to satisfy the judgment or not, and that such liability to pay such money or deliver such property was not evidenced by a negotiable instrument, the justice, if it be a sum of money, shall order him to pay the same, or so much thereof as will be sufficient, to the plaintiff, to be applied first to the costs of the attachment, and the balance to the discharge of the judgment against the defendant; but, if it be shown that such sum of money is not yet due and payable, the order shall be for the payment thereof at the time (to be stated in such order) when it will be due and payable. If it be property, and not money, for which the garnishee is liable, the justice shall ascertain the value thereof, and order the garnishee to pay the said value, or so much thereof as will be sufficient, to the plaintiff, to be applied as aforesaid, on a certain day to be specified in the order, unless the garnishee, on or before such day, deliver such property, or a sufficiency thereof, to the officer designated by the justice to receive it. If property be so delivered, it shall be sold as if taken on execution under an order of sale to be made by the justice, and the proceeds applied as aforesaid: Provided, however, That if it shall appear, from the answer of the garnishee, that his debt or liability to pay money or deliver property is evidenced by a negotiable instrument, the justice may order such payment or delivery, but only upon condition that the holder of such negotiable instrument shall deliver the same to the garnishee simultaneously with the payment of the money or delivery of the property: Provided further, That any garnishee holding property under a pledge or lien shall not be required to deliver up such property except upon payment to him of the debt secured by the pledge or lien.(1863, c. 122, §78; Code 1868, c. 50, §207; 1872-3, c. 226, §152; 1881, c. 8, §207; Code 1923, c. 50, §207.)

§18. Enforcement of Such Order; Appeal.—Any order, made by a justice pursuant to the preceding section, directing the payment of money by a garnishee, may be enforced by execution against the garnishee in the name of the plaintiff, when such money is or becomes due and payable; and an appeal shall lie therefrom to the circuit court in like cases and manner as from other judgments of justices.(1863, c. 122, §78; Code 1868, c. 50, §208; 1872-3, c. 226, §153; 1881, c. 8, §208; Code 1923, c. 50, §208.)

§19. Costs and Expenses of Garnishee.—If the garnishee fairly disclose whatever he is liable for, and comply with and perform the orders of the justice, he shall be allowed his reasonable costs and expenses out of the money or property surrendered.(1863, c. 122, §80; Code 1868, c. 50, §209; 1872-3, c. 226, §154; 1881, c. 8, §209; Code 1923, c. 50, §209.)

§20. Lien of Attachment; Prior Lien Not Impaired.—The plaintiff shall have a lien upon any personal property and claims of the defendant, from the time of the levy of such attachment, but such lien may be defeated by a sale, pledge, or other transfer of such property or claims before seizure, if such property or claims are subject to levy and sale under an execution, to a purchaser for value without notice, who advances money or other value at the time of such transfer, in reliance upon the defendant’s title to such property or claims: Provided, however, That in the case of a pledge, or other transfer of the property or claims, other than a complete sale, the lien of the attachment shall bind any equity, or other interest therein, remaining in the defendant. The plaintiff shall have a lien upon the claim or right which the defendant has against any garnishee for any debt or liability owed by such garnishee to the defendant, whether then due and payable or thereafter to become so, or any personal property in the possession or under the control of the garnishee, belonging to the defendant, at the time of the delivery to the garnishee of a copy of the order and indorsement, as provided in section thirteen of this article, and at any time thereafter and before the time of answering or the return day of the attachment order, whichever comes first: Provided, however, That if such debt or liability be evidenced by a negotiable instrument, and such instrument be negotiated after the delivery of such copy to the garnishee, to a holder in due course, so that the garnishee becomes obligated to pay the money or deliver the property to such holder, the lien of the attachment thereon shall, to the extent of such obligation to such holder, be discharged. But no prior lien on any claim or property shall be impaired by attachment.

§21. Sale of Perishable Property Attached; Compensation of Officer.—When any property delivered to the officer or taken into his custody as aforesaid is of a perishable nature or expensive to keep, the justice may order sale to be made thereof as the case shall require. The officer shall be allowed by the justice the reasonable expenses of executing the attachment and keeping and selling any property under the same; which expenses shall be paid by the plaintiff and taxed in the costs.(1863, c. 122, §§69, 70; Code 1868, c. 50, §200; 1872-3, c. 226, §146; Code 1923, c. 50, §200.)

§22. Laws Applicable.—The twenty-third, twenty-fourth, twenty-fifth and twenty-sixth sections of article fourteen of this chapter shall apply to orders of attachment as well as to executions.(Code 1868, c. 50, §201; 1872-3. c. 226, §146; 1881, c. 8, §201; Code 1923, c. 50, §201.)

§23. Priority of Attachment; Determination; Claim of Third Party.—The attachment first served on the same personal property, or on the person having such property in his possession, or on the person indebted to the defendant in the attachment suit, shall have priority of lien; and the officer making the levy shall note on the order of attachment the day and hour at which the levy is made. When there are two or more orders of attachment in the hands of the same officer against the property and claims of the same person, they shall be levied in the order they were received. When they are delivered to the officer at the same time they shall be served at the same time, and, if more than one of such attachments be sustained, such of them as are sustained shall be satisfied pro rata out of the proceeds of the attached property. When attachments, issued by different justices, are levied on the same property or claims, or upon the same garnishee, and proceedings be taken to determine which of them has priority of lien, neither of the justices issuing any one or more of such attachments shall have jurisdiction to determine such questions; but any other justice of the county may, on the motion of any one or more of the plaintiffs, try and determine the priorities of the several attachments, and the proceeds shall be applied accordingly. But notice of such motion shall be served on the other attaching creditors, their agents or attorneys, at least five days before the trial thereof; and if such proceedings be commenced before more than one justice, the justice before whom such proceedings shall be first commenced shall alone have jurisdiction in the case, unless he be disqualified, as provided in section three, article two of this chapter. If any property, which has been attached, be claimed by any person other than the defendant against whom the order of attachment was issued, proceedings may be had according to the provisions of article ten of this chapter.(1863, c. 122, §§64, 65; Code 1868, c. 50, §210; 1872-3, c. 226, §155; 1881, c. 8, §210; Code 1923, c. 50, §210.)

§24. Appeal Bond; Return of Property.—Where a judgment in favor of the plaintiff is rendered in any case in which an attachment is issued, and, on appeal therefrom, an appeal bond is given with condition to prosecute the appeal with effect, or pay the debt, interest, costs and damages, as well as the costs of the appeal, the officer, in whose custody any attached property may be, shall deliver the same to the owner thereof.

§25. Civil Arrest of Defendant; Grounds; Affidavit.—An order for the arrest of a defendant in a civil action may be made by the justice before whom the action is brought, when there is filed in his office an affidavit of the plaintiff, or any credible person, made before any person authorized to administer oaths, showing to the satisfaction of the justice the nature of the plaintiff’s claim, that it is just, the amount thereof, as near as may be, and the existence of one or more of the particulars set forth in subdivisions (a), (b), (c), (d), (e), and (f) of section one of this article.(1863, c. 122, §49; Code 1868, c. 50, §40; 1872-3, c. 226, §27; 1881, C. 8, §40; 1923, c. 50, §40.)

§26. Bond; Discharge of Defendant.—The order of arrest shall not be issued until the plaintiff, or some responsible person for him, shall execute and file with the justice a bond with good security, to be approved by the justice, in a penalty double the amount sworn to, but not less in any case than one hundred dollars, conditioned that the plaintiff will pay the defendant all damages he may sustain by reason of the arrest should it thereafter appear that the order of arrest was wrongfully obtained. The circuit court of the county, or the judge thereof in vacation, may, upon reasonable notice in writing to the plaintiff, his agent or attorney, discharge any person arrested under such order from custody, if it be made to appear by the evidence offered or otherwise that such order was wrongfully obtained.(1863, c. 122, §50; Code 1868, c. 50, §41; 1872-3, c. 226, §28; 1881, c. 8, §41; Code 1923, c. 50, §41.)

§27. Time and Place of Arrest; Order.—The order of arrest may accompany the summons or be made at any time afterwards before judgment. It may be directed like a summons, but shall not be executed out of the county in which the action is pending. It shall state the names of the parties, the amount of the plaintiff’s claim as stated in the affidavit, be signed by the justice issuing it, and require the person who is to execute it to arrest the defendant and bring him forthwith before the justice.(1863, c. 122, §§51, 52; Code 1868, c. 50, §42; 1872-3, c. 226, §29; 1881, c. 8, §42; Code 1923. c. 50, §42.)

§28. Duties of Officer Making Arrest.—The officer receiving such order shall, as soon as possible thereafter, arrest the defendant, and, unless the plaintiff’s claim and the costs are paid, or the defendant is discharged by order of the plaintiff, take him forthwith before the justice and keep him in custody until discharged according to law.(1863, c. 122, §52; Code 1868, c. 50, §43; 1872-3, c. 226, §30; 1881, c. 8, §43; Code 1923, c. 50, §43.)

§29. Trial of Civil Action Involving Arrest; Continuance.—Upon the return of the summons and such order executed, the trial shall proceed, if such return be made on the return day of the summons, or on any day to which the trial has been continued, unless for good cause shown by either party, or, at the instance of the justice himself, the same be continued. If the trial be continued for any period, or the defendant be brought before the justice before the return day of the summons, or after that day, and before the day to which the trial has been continued, as aforesaid, the defendant shall be discharged from custody upon executing, with one or more sufficient sureties to be approved by the justice, a bond to be filed with the justice and in the sum specified by him, with condition to the effect that, if a judgment be rendered in the action against such defendant, he will either satisfy the same or render himself to answer the process on such judgment. But in no case shall the defendant be detained in custody where such continuance is for more than forty-eight hours, unless it was made at the instance or with the consent of the defendant himself.(1863, c. 122, §54; Code 1868, c. 50, §44; 1872-3, c. 226, §31; 1881, c. 8, §44; Code 1923, c. 50, §44.)

§30. Grounds for Imprisonment.—When judgment is rendered against a defendant, who is in custody under an order of arrest issued pursuant to section twenty-five of this article, the justice, if, upon the whole evidence produced, he believe the defendant to have been guilty of fraud in any of the particulars set forth in subdivisions (a), (b), (c), (d), (e), and (f) of section one of this article, may issue an order to the officer having him in custody to deliver him to the jailer of the county, to be confined in jail until lawfully discharged, which order shall be executed according to the command thereof. With such order an execution may also be issued.(1863, c. 122, §191; Code 1868, c. 50, §155; 1872-3, c. 226, §109; 1881, c. 8, §155; Code 1923, c. 50, §155.)

§31. Affidavit and Order for Arrest and Imprisonment After Judgment.—If, at any time after a judgment rendered by a justice, there is filed with such justice, or his successor, the affidavit or affidavits of one or more credible persons stating the amount yet remaining unpaid on such judgment, and showing to the satisfaction of the justice that the person against whom such judgment was rendered has, since the date thereof, been guilty of fraud in any of the particulars set forth in subdivisions (a), (b), (e), (d), (e), and (f) of section one of this article, the justice may thereupon issue an order for the arrest of such person, and to bring him before such justice for examination as to such alleged fraud. If, after hearing all the evidence adduced by the parties upon such examination, the justice be satisfied that the judgment debtor has been guilty of fraud in any of the particulars so alleged against him, he may order him to be imprisoned, as provided in the preceding section.(1863, c. 122, §192; Code 1868, c. 50, §156; 1872-3, c. 226, §110; 1881, c. 8, §156; Code 1923, c. 50, §156.)

§32. Making of Such Arrest; Accompanying Execution.—An execution may be issued with the order mentioned in the last section, or the order may be issued while an execution is outstanding; and if sufficient property be found to satisfy the execution the order shall not be executed, or, if executed, the person so in custody shall be discharged. The order shall be dated the day it is issued, be signed by the justice, directed like the summons, but shall not be executed out of the county where the judgment was rendered; and if an execution be issued with it, or be outstanding, both shall be directed to the same officer for execution. It shall state the parties to the judgment, the debt, interest and costs, and the credits to which the judgment is subject, as required in an execution; and it shall command the officer to arrest the party against whom the judgment was rendered and deliver him to the jailer of the county to be confined in jail until lawfully discharged. It shall be returnable whenever executed, or, if not previously executed, in sixty days from its date, and shall be executed according to the command thereof.(1863, c. 122, §193; Code 1868, c. 50, §157; 1872-3, c. 226, §111; 1881, c. 8, §157; Code 1923, c. 50, §157.)

§33. Bond for Arrest and Imprisonment.—But the order mentioned in section thirty-one of this article shall not be issued until a bond, signed by one or more sufficient parties, to be approved by the justice, in a penalty at least double the sum claimed in the affidavit, but in no case less than one hundred dollars, is filed with the justice, with condition to pay the person to be arrested all damages he may sustain by such arrest and imprisonment, if it should thereafter appear that the order was issued without sufficient cause therefor.(1863, c. 122, §194; Code 1868, c. 50, §158; 1872-3, c. 226, §112; 1881, c. 8, §158; Code 1923, c. 50, §158.)

§34. Order for Arrest as Authority to Jailer.—A copy of the order, either in the case mentioned in section thirty or thirty-one of this article, signed by the justice, or the officer having the prisoner in custody, shall be sufficient to require the jailer to receive and keep such prisoner in jail until discharged according to law.(1863, c. 122, §196; Code 1868, c. 50, §159; 1872-3, c. 226, §113; 1881, c. 8, §159; Code 1923, c. 50, §159.)

§35. Period of Imprisonment.—The prisoner committed as aforesaid, unless sooner discharged, as provided for in section twenty-six of this article or otherwise, shall be kept in jail for ten days, and one day in addition for every ten dollars over twenty dollars due on such judgment at the commencement of his imprisonment, including interest and costs; and at the expiration of such time shall be discharged by the jailer without further order.(1863, c. 122, §197; Code 1868, c. 50, §160; 1872-3, c. 226, §114; 1881, c. 8, §160; Code 1923, c. 50, §160.)

§36. Discharge From Custody.—He shall be discharged by order of the justice at any time, upon his paying to such justice the whole amount due on the judgment, together with the costs of his arrest and imprisonment; or upon surrendering property sufficient to satisfy the same to such officer as the justice may direct to receive and sell such property; or by filing with the justice a bond, with good security, to be approved by him, to pay the judgment and costs aforesaid within sixty days. If such bond be not paid when due, it shall have the force and effect of a judgment from that date against the obligors therein, and execution may be awarded thereon by the justice, upon five days’ notice to the obligors, or their personal representatives. If property be so surrendered, it shall be sold and applied as if levied on under an execution.(1863, c. 122, §200; Code 1868, c. 50, §161; 1872-3, c. 226, §115; 1881, c. 8, §161; Code 1923, c. 50, §161.)

§37. Fees and Expenses of Imprisonment.—The party at whose instance any person is committed as aforesaid shall he liable to the jailer for the maintenance and support of the prisoner during his confinement, and the jailer may at any time, after reasonable notice to such party, discharge the prisoner if such maintenance and support be not paid, and the prisoner be not held under other process.(1863, c. 122, §199; Code 1868, c. 50, §162; 1872-3, c. 226, §116; 1881, c. 8, §162; Code 1923, c. 50, §162.)

§1. Rights of Claimant; Petition; Bond; Proceedings; Judgment.—When an officer, by virtue of an execution, writ in detinue, order of sale, or order of attachment, has levied on or attached, or has taken into his possession, or is about to sell, property claimed by any person other than the party against whom the execution, order or writ is issued, if such claimant, or another for him, shall file with the justice by whom the execution, order or writ was issued, or his successor, his petition stating such a claim to or interest in the property levied on, or about to be sold, as entitles him to have the same released from such levy, or to prevent the sale thereof (as the case may be), and praying that an issue be made upon such petition by the justice to try the claimant’s right or interest in such property; and shall at the same time deliver to the justice a bond with good security, to be approved by the justice, in a penalty at least double the value of such property, with condition that if the claimant, on the trial of such issue, shall fail to prove that at the time of such levy, or at the time such property was about to be sold, as aforesaid, he had such claim thereto, or interest therein, as is hereinbefore stated, he will pay to the plaintiff in such execution, writ, or order, the value of the property or so much thereof as will be necessary to pay the plaintiff’s claim and the costs of the trial of such issue, the justice shall issue his order directed to the officer having such execution, writ in detinue, order of sale, or attachment, commanding him to deliver up the property to such claimant; and such officer shall obey the same. The justice shall note in his docket the filing of such petition and bond, and the issue on such petition shall be made up by the answer of the plaintiff in the execution, writ or order, denying the allegations of such petition, and the affirmative of such issue shall be with such claimant. The proceedings on such issue shall be the same in all respects as in other cases in a justice’s court. If the judgment of the justice, or the verdict of a jury, on such issue, be for the plaintiff in such execution, writ or order, the justice or jury (if the issue be tried by a jury) shall ascertain the value of the property so claimed, and the justice shall thereupon render judgment for the plaintiff against the claimant and his sureties in such bond for the sum so ascertained, or for so much thereof as may be necessary to pay the plaintiff’s claim, and the costs incurred by him in the trial of such issue. But if such issue be found for the claimant, he shall recover his costs against such plaintiff.(1863, c. 122, §188; Code 1868, c. 50, §151; 1872-3, c. 226, §106; 1881, c. 8, §151; Code 1923, c. 50, §151; Code 1923, c. 50, §151.)

§2. Proceeding Without Bond.—Or the claimant in such case, without giving the bond mentioned in the preceding section, may apply to any justice of the county in which the levy was made, or the order of sale or attachment, or writ in detinue, was issued, for an order to notify both the creditor and debtor to appear and show cause why the property should not be discharged from the levy, order of sale or attachment, or writ in detinue. Such order shall be returnable within five days from the date thereof, and be served and returned according to the command thereof; and, if it be returned served, the justice on the return day thereof, or at such reasonable time thereafter as he may appoint for the purpose, shall hear the parties, or such of them as attend, and dismiss the claim or order the officer to deliver the property to the claimant, as the right shall appear; and the party prevailing shall recover his costs. The justice may also make any order necessary to prevent the property from being sold before the right thereto is determined as aforesaid.(1863, c. 122, §189; Code 1868, c. 50, §152; 1872-3, c. 226, §107; 1881, c.8, §152; 1882, c. 145, §152; Code 1923, c. 50, §152.)

§3. Appeal.—Any party considering himself aggrieved by the decision of the justice, or verdict of a jury, under either of the two preceding sections, may appeal therefrom to the circuit court in like manner as from a judgment.(1863, c. 122, §190; Code 1868, c. 50, §153; 1872-3, c. 226, §108; 1881, c. 8, §153; Code 1923, c. 50, §153.)

§1. Action Must be Commenced Within Three Years; Venue.—If any forcible or unlawful entry be made upon land, or if, when the entry was lawful, the tenant detain possession of land after his right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right or title he had thereto, or the party against whom such possession is unlawfully detained, may commence suit to obtain possession of the land and damages for its detention, which shall include rent, within three years after the cause of action accrues, before any justice of the county in which such land or the greater part thereof is situated.(Code 1860, c. 134, §1; 1864, c. 23, §1; Code 1868, c. 50, §211; 1872-3, c. 226, §15; 1881, c. 8, §211; 1882, c. 145, §211; Code 1923, c. 50 §211.)

§2. Summons.—At the instance of the party so turned out of possession, or against whom possession is unlawfully detained as aforesaid, the justice shall issue a summons commanding the officer to summon the defendant to appear before the said justice, at a time and place therein specified, to answer the action of the plaintiff for unlawfully withholding from the plaintiff the premises in question (describing them) and damages for their detention (if any are claimed). The place at which the defendant is to appear must be within the county, and the time must be not less than three nor more than ten days from the delivery of the summons to the officer to be served. No such summons shall be quashed or held insufficient for any defect in the description of the premises therein mentioned, if the description be such as to enable a person of common understanding to know what is intended thereby. And if in the opinion of the justice such description is not sufficient under the provisions of this section, the plaintiff may amend the summons so as to make the description sufficient.(1864, c. 23, §3; Code 1868, c. 50, §212; 1872-3, c. 226, §15; 1881, c. 8, §212; 1882, c. 145, §212; Code 1923, c. 50, §212.)

§3. Direction, Service and Return of Summons.—The summons must be directed, served, and returned as other summonses issued by justices.(1864, c. 23, §4; Code 1868, c. 50, §213; 1881, c. 8, §213; Code 1923, c. 50, §213.)

§4. Trial; Jury; Title Not to be Inquired of.—On the return of the summons served, the justice shall proceed to try the case, unless good cause be shown for a continuance. Either party shall be entitled to a trial by six jurors, if demanded, under the same regulations which are prescribed in relation to such trials in other cases before justices, except that the jury shall be sworn well and truly to try whether the defendant unlawfully withholds the premises in controversy from the plaintiff, and, if damages are claimed for the detention, to assess the plaintiff’s damages, which shall include rent, for being so kept out of possession. On such trial the title to the real estate shall not be inquired of, but only the possession and the unlawful entry, or detainer and the dam ages shall be in question.(1864, c. 23, §5; Code 1868, c. 50, §214; 1881, c. 8, §214; Code 1923, c. 50, §214.)

§5. Procedure for Raising Question of Title.—If the defendant desires to raise the question of title, he shall proceed as provided in section sixteen, article four of this chapter.

§6. Judgment for Plaintiff; Damages; Costs; Execution.—If the verdict of the jury, or the finding of the justice when the case is tried without a jury, be that the defendant unlawfully withholds the premises in controversy, or any part thereof (describing the part) from the plaintiff, judgment shall be rendered in favor of the plaintiff that he recover possession of the premises, or of the part so described, and his costs. If damages are assessed by the justice or jury in favor of the plaintiff, the same shall also be included in the judgment, and the justice, when required by the plaintiff, shall issue an execution commanding the officer to whom it is directed to deliver possession of the premises, or such part thereof, to the plaintiff, and remove the defendant and his goods therefrom, and collect the said damages and costs out of the personal property of the defendant. Such execution shall be returnable within sixty days from its date, and, as to the delivery of possession and removal of the tenant and his goods, it shall be executed within five days from the time it comes into the hands of the officer.(1864, c. 23, §6; Code 1868, c. 50, §215; 1872-3, c. 226, §15; 1881, c. 8, §215; Code 1923, c. 50, §215.)

§7. Judgment for Defendant.—If the verdict of the jury, or the finding of the justice, when the case is tried without a jury, be for the defendant, he shall have judgment and execution for his costs.(1864, c. 23, §8; Code 1868, c. 50, §216; 1881, c. 8, §216; Code 1923, c. 50, §216.)

§8. Judgment Shall Not Affect Title.—A judgment in a proceeding under this article shall not affect the title to the real estate or bar any subsequent action of ejectment brought by either party.(1864, c. 23, §9; Code 1868, c. 50, §217; 1881, c. 8, §217; Code 1923, c. 50, §217.)

§9. New Trial; Appeal; Judgment on Appeal; Execution.—The justice may set aside the verdict of the jury, or his own judgment, and grant a new trial as in other cases; and the laws relating to civil actions and proceedings before justices, so far as they are applicable and consistent with the provisions of this article, shall regulate the actions provided for in this article and the process to be issued or proceedings had in such actions. Appeals shall lie to the circuit court, or to any inferior court of the county having appellate jurisdiction in civil cases, from the judgments of justices in such actions, within the same time as in other cases, upon the party desiring to appeal giving such bond as is required by section two, article fifteen of this chapter, and such appeal shall be subject to the same regulations as in other cases in so far as such regulations are not changed as to such appeal by the provisions of this section. Upon the trial of such appeal in the circuit court, or in any inferior court of the county having appellate jurisdiction in civil cases, if the verdict of the jury, or the finding of such court when the case is tried without a jury, be that the defendant before the justice unlawfully withholds the premises in controversy, or any part thereof (describing the part) from the plaintiff before the justice, such verdict shall further assess the amount of such plaintiff’s damages, if any, which shall include rent, for being kept out of possession of the premises unlawfully withheld, accruing up to the date of the verdict, or, if the appeal is tried by the court in lieu of a jury, the court shall find the amount of such damages, if any, accruing up to the date of its judgment, and judgment shall be rendered in favor of such plaintiff, where he is the appellant, that he recover possession of the premises, or of the part so described, together with such damages, where any are assessed by the jury in their verdict, or found by the court, with interest thereon from the date of the verdict, or from the date of the judgment, where the case is tried by the court in lieu of a jury, and his costs both before the justice and in the circuit court. The judgment in such court, if in favor of the appellee, and such appellee has been the defendant before the justice, shall be against the appellant and those who signed the appeal bond. The judgment in such court, if in favor of the appellee, and such appellee has been the plaintiff before the justice, shall be against the appellant for possession of the premises and against the appellant and those who signed the appeal bond for the damages assessed by the jury in their verdict, or found by the court, with interest thereon as aforesaid and said costs. Executions may issue separately for possession of the premises and for such damages and costs, or they may be included in the same execution, at the option of the party in whose favor the judgment has been rendered.(1864, c. 23, §10; Code 1868, c. 50, §218; 1881, c. 8, §218; 1882, c. 145, §218; Code 1923, c. 50, §218.)

§1. Acts for Which Justice May Punish.—A justice may punish for contempt a person guilty of any of the following acts, and in no other case:

(a) Contemptuous or insolent behavior towards such justice while engaged in the trial of a case or in any other judicial proceeding;

(b) Any breach of the peace, willful disturbance, or indecent conduct in the presence of such justice while so engaged, or so near as to obstruct or interrupt his proceedings;

(c) Violence or threats of violence to such justice, or any officer, juror, witness, or party going to, attending, or returning from, any judicial proceeding before such justice, in respect to anything done or to be done in the course of such proceeding;

(d) Misbehavior of any officer in his official character in respect to any action or judicial proceeding had or pending before such justice, or any process, judgment, order or notice therein;

(e) Willful resistance, in the presence of the justice, by an officer, juror, witness, party, or other person to any lawful process or order of such justice.(1863, c. 122, §227; Code 1868, c. 50, §190; 1881, c. 8, §190; Code 1923, c. 50, §190.)

§2. Procedure in Contempt Cases.—An order of arrest may be issued by the justice, on which the person so guilty may be taken and brought before him, or such person may be taken in custody by any officer or person present, upon the oral order of the justice, and held to answer for the contempt. An opportunity must be given him to be heard in defense or explanation of his conduct; and the justice may thereupon discharge him, or adjudge him guilty of the contempt, and punish him by fine or imprisonment, or both. The fine shall not exceed ten dollars, or the imprisonment five days.(1863, c. 122, §228; Code 1868, c. 50, §191; 1881, c. 8, §191; Code 1923, c. 50, §191.)

§3. Judgment and Commitment.—The conviction, specifying the particular circumstances of the offense and judgment thereon, shall be entered by the justice in his docket. A warrant of commitment for the term of imprisonment adjudged may be issued by the justice, commanding an officer to take the offender to the jail of the county, and the jailer to imprison him therein for the said term; and such warrant shall contain a transcript of the entry in the docket. The judgment may include, in addition to the fine, all costs in the case, including costs of arresting and keeping in prison the offender.(1863, c. 122, §229; Code 1868, c. 50, §192; 1881, c. 8, §192; Code 1923, c. 50, §192.)

§1. Dismissal of Action Without Prejudice.—Saving the right of a defendant who has filed a counterclaim to proceed to trial, though the plaintiff fail to appear, or dismiss his action, judgment may be rendered against the plaintiff dismissing his action, with costs, but without prejudice to a new action for the same cause in the following cases:

(a) If he fail to appear and prosecute his action at the time for appearance mentioned in the summons, or last order of continuance;

(b) If he fail to make or file his complaint at or before the time the summons is returnable;

(c) If he fail or refuse to testify when properly required to do so;

(d) If he fail to give security for costs when properly required to do so;

(e) If the summons be defective or erroneous and cannot properly be amended;

(f) If the plaintiff himself dismiss his action.

But in cases (a), (b) and (c) 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 costs whenever it appears that it has been brought in the wrong county, or that for any other reason the justice has not jurisdiction thereof.(1863, c. 122, §133; Code 1868, c. 50, §66; 1872-3, c. 226, §66; 1881, c. 8, §66; Code 1923, c. 50, §66.)

§2. Setting Aside Dismissal.—The judgment against the plaintiff for failure to appear 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 at least three days’ notice of the motion to set aside such judgment and an opportunity to be heard in opposition thereto.(1863, c. 122, §114; Code 1868, c. 50, §67; 1872-3, c. 226, §50; 1881, c. 8, §67; Code 1923, c. 50, §67.)

§3. Plaintiff Must Prove Case to Recove Judgment.—When a defendant does not appear, the plaintiff cannot recover without proving his case. The justice, if the process has been served on the defendant, shall in such case proceed to hear the allegations and evidence of plaintiff, and render judgment as the right shall appear.(1863, c. 122, §115; Code 1868, c. 50, §68; 1872-3, c. 226, §51; 1881, c. 8, §68; Code 1923, c. 50, §68.)

§4. Setting Aside Default Judgment.—When the defendant does not appear, and judgment is rendered against him in his absence, the justice may set aside the judgment within fourteen days thereafter, on motion of defendant and payment of costs. But of such motion, at least three days’ notice must be given to the plaintiff, his agent, or attorney and an opportunity to be heard in opposition thereto; and the judgment shall not be set aside, unless the defendant makes oath that he has a lawful defense to the action, or is entitled to some credit or counterclaim 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.(1863, c. 122, §117; Code 1868, c. 50, §70; 1872-3, c. 226, §53; 1881, c. 8, §70; Code 1923, c. 50, §70.)

§5. Offer to Confess Judgment.—The defendant may, either before suit is brought, or at any time afterwards before trial, make an offer in writing to confess judgment in favor of the plaintiff for the sum or property specified in such offer. Such offer shall be served on the plaintiff by delivering to him a copy thereof, and the original, with proof of the service thereof, shall be filed with the justice at or before the trial. If the plaintiff fail to accept such offer before trial, or to give notice to the defendant of such acceptance, and do not recover a more favorable judgment, the justice, on proof of such offer being made, shall adjudge the plaintiff to pay all costs of the action from the time of the offer; but the offer and failure to accept it cannot be given in evidence, to effect the recovery, otherwise than as to the costs as above provided.(1863, c. 122, §164; Code 1868, c. 50, §113; 1872-3, c. 226, §71; 1881, c. 8, §113; Code 1923, c. 50, §113.)

§6. Entry of Judgment; Amount; Interest.—When the plaintiff dismisses his action (except in the case mentioned in section four, article five of this chapter), or judgment is confessed, or the defendant is in custody, or property is held under attachment, judgment shall be entered without delay. In other cases judgment shall be entered within twenty-four hours (Sundays and holidays excepted) after the trial. The justice or jury shall, in all cases, ascertain the balance due (if any) from one party to the other, after allowing any counter claim or credit established by the party against whom judgment is to be rendered, and judgment shall be entered for the aggregate amount of principal and interest so ascertained to be due. Every judgment shall bear interest from its date, upon such amount.(1863, c. 122, §163; Code 1868, c. 50, §114; 1872-3, c. 226, §72; 1881, c. 8, §114; Code 1923, c. 50, §114.)

§7. Setting Aside Judgment.—In any case tried without a jury, the justice who rendered the judgment may, subject to the restriction as to more than one new trial contained in section twenty-four, article seven of this chapter, on motion of either party, the other, his agent or attorney being present or having had at least three days’ notice of the motion, set aside the judgment, within fourteen days after it is entered, and grant a new trial on such terms and conditions as he sees fit to impose. But this shall only be done when the justice is satisfied that injustice was done by the judgment to the party by whom the motion is made.(1863, c. 122, §166; Code 1868, c. 50, §115; 1872-3, c. 226, §73; 1881, c. 8, §115; Code 1923, c. 50, §115.)

§8. Revival of Judgment.—A judgment may be revived in favor of or against the personal representative of a deceased party within three years after it is rendered, or (unless the three years shall have expired before the death of such party) within two years after his personal representative shall have qualified. And such revival may be by an order to that effect, entered on his docket by the justice who rendered the judgment, or his successor, on the motion of the party in whose favor the judgment was rendered, or his personal representative, the other party, or his personal representative, agent or attorney being present, or having had at least three days’ notice of such motion.(1863, c. 122, §§235, 236; Code 1868, c. 50, §116; 1872-3, c. 226, §74; 1881, c. 8, §116; Code 1923, c. 50, §116.)

§9. Entry of Judgment on Lien Docket.—Judgments of justices may be docketed in the judgment lien docket kept in the office of the clerk of the county court in like manner and with like effect, in all respects, as the judgments of circuit courts.(1865, c. 28, §4; Code 1868, c. 50, §117; 1872-3, c. 226, §75; 1881, c. 8, §117; Code 1923, c. 50, §117.)

§10. Filing Transcript in Circuit Clerk’s Office; Issuance of Execution Thereon.—The person in whose favor a judgment is rendered by a justice, or who is entitled to receive the money due thereon, or any part of it, may file, in the clerk’s office of the circuit court of the county in which the judgment was rendered, a transcript thereof, certified by the justice who has the lawful custody of the docket in which such judgment is entered; and such clerk may issue executions thereon in the same manner, and with like effect as if the judgment had been rendered by the circuit court. The transcript, filed as aforesaid, shall be entered by the clerk in his execution docket and indexed in the name of both plaintiff and defendant, and be filed in separate bundles for each year, for which service the clerk shall be entitled to a fee of fifty cents, to be paid by the person at whose instance the same is rendered.(1865, c. 28, §3; Code 1868, c. 50, §118; 1872-3, c. 226, §76; 1881, c. 8, §118; Code 1923, c. 50, §118.)

§11. Judgment of Justice Shall Not Bar Title to Real Estate.—No judgment of a justice in an action for trespass on real estate or damages to the same, or in an action of unlawful entry or detainer, shall bar the title of any party or any remedy therefor.(Code 1868, c. 50, §11; 1881, c. 8, §10; Code 1923, c. 50, §10.)

§12. Release of Amount in Excess of Jurisdiction.—When a balance is found in favor of a party, either by the verdict of a jury or award of arbitrators, or upon a hearing before the justice, exceeding the sum for which a justice is authorized to give judgment, such party may release the excess and take judgment for the residue.(1863, c. 122, §20; Code 1868, c. 50, §13; 1872-3, c. 226, §4; 1881, c. 8, §13; Code 1923, c. 50, §13.)

§13. When Suggestion Order Issued.—On a suggestion by a judgment creditor, verified by affidavit, to the justice who rendered the judgment, or his successor, that any person, whether in the same or another county, has personal property of the judgment debtor in his possession or control, not exempt by law from execution, or is liable to the debtor in any sum of money, whether then due and payable, or thereafter to become so, not exempt from the lien of an execution, the justice shall order such person and the judgment debtor to appear before him, at the time and place specified in such order, and answer, under oath, respecting such property and liability; and may also subpoena witnesses to testify concerning the same.(1865, c. 28, §6; Code 1868, c. 50, §120; 1872-3, c. 226, §78; 1881, c. 8, §121; Code 1923, c. 50, §120.)

§14. Service and Return of Order; Liability of Person Suggested; Bond of Judgment Creditor.—The order shall be signed by the justice and served and returned like a summons, but the exact time of the service shall be stated in the return: Provided, That where the person suggested resides in another county, the order shall be served on him within the county where the judgment was rendered. And the person suggested as having such property, or as liable to the judgment debtor for a sum of money, shall, from the time of service thereof on him, be liable to the judgment creditor for whatever property (real estate excluded) of the judgment debtor, not exempt by law from execution, was in his possession or control when the order was served, or was in his possession or control at any time thereafter and before the time of answering, or the return day of the execution, whichever comes first, and whatever amount he was so liable for to the judgment debtor, not exempt from the lien of an execution whether then due and payable or thereafter to become so, but so far only as may be necessary to satisfy the judgment, including the costs of the proceedings upon the suggestion: Provided, That such property, or the sum of money for which any such person is so liable, shall not be liable to the judgment creditor if the judgment debtor shall show to the satisfaction of the justice that he is a husband or parent and is a resident of the State, and that his personal estate including such property and money does not exceed two hundred dollars: Provided further, That no such order shall be issued until the judgment creditor shall file with the justice a bond with good security, to be approved by such justice in a penalty at least double the amount of his claim against the judgment debtor, with condition that, if he fail to have the property or money, or both (as the case may be) in the hands of, or owing by, the person suggested, applied to the payment of his claim, he will pay to the judgment debtor all such costs and damages as he may sustain by reason of the filing and trial of such suggestion.(Code 1868, c. 50, §121; 1872-3, c. 226, §79; 1881, c. 8, §121; Code 1923, c. 50, §121.)

§15. Appearance and Answer of Person Served With Suggestion.—If any person against whom such order is issued appear and answer, such person shall be examined under oath touching the money and property for which the person so suggested is liable as aforesaid, and the justice shall hear any proper evidence respecting the same, and shall ascertain whether the liability of such person, or any part thereof, is represented by a negotiable instrument, and, in the case of a bailee, whether there is outstanding any negotiable warehouse receipt, bill of lading, or other negotiable instrument for any of the personal property of the judgment debtor in his possession or under his control. If the person so suggested fail to appear, and it be shown that the order was served on him ten days, at least, before the time of appearance specified therein, the justice may hear proof respecting the money and property for which such person is liable as aforesaid; or, on motion of the judgment creditor, may appoint another time, and cause not less than ten days’ notice to be given to the person so liable that, unless he appear and answer at the time so appointed, it will be taken as an admission that he has in his hands sufficient money of the judgment debtor to satisfy the judgment, including the costs of the proceedings on the suggestion. If he fail to appear at the time so last appointed, and it be shown that the notice was served not less than ten days before that time, or if at any time he appear and refuse to answer any proper question, and in either case no good cause be shown for such failure or refusal, the justice may proceed as if he had admitted sufficient money to be in his hands: Provided, That if the person so liable reside in another county, he may answer in writing, under oath, being first served with a copy of such order within the county where the judgment was rendered, and such answer, if sufficient, shall be equivalent to his personal appearance and examination; or, if insufficient, he shall be examined on interrogatories in writing, approved and allowed by the justice; and his failure to file with the justice his answers, under oath, to such interrogatories, within two weeks after he has been served with a copy thereof, shall, unless good cause therefor be shown, be taken as an admission that he has in his hands sufficient money of the judgment debtor to satisfy the judgment, including the costs of the proceedings on the suggestion.(Code 1868, c. 50, §122; 1872-3, c. 226, §80; 1881, c. 8, §122; Code 1923, c. 50, §122.)

§16. Discharge of Liability of Person Suggested by Negotiation of Instrument.—If the debt or liability of the person suggested to the judgment debtor for the money or property owed or held by such person be evidenced by a negotiable instrument, and such instrument be negotiated after service on the person suggested, to a holder in due course, so that such person becomes obligated to pay the money or deliver the property to such holder, the lien of the execution thereon shall, to the extent of such obligation to such holder, be discharged.

§17. Discharge of Person Suggested by Payment of Money or Delivery of Property.—A person suggested may, at any time before the return day of the order mentioned in section thirteen of this article, deliver the property or pay the money for which he is liable, or a sufficiency thereof to satisfy the execution, to the officer serving the order and shall thereby be discharged from any further liability under the execution, and, as to the property so delivered and/or money so paid, he shall be discharged from all liability whatsoever to the judgment debtor: Provided, however, That if the obligation upon which such person is indebted to the judgment debtor is evidenced by a negotiable instrument, such obligation shall not, as to a holder in due course, be discharged by such payment: Provided further, That the right of a holder in due course of a negotiable warehouse receipt, bill of lading, or other negotiable instrument for any property so delivered, shall not be impaired by such delivery. If any payment or delivery is made to the officer under the provisions of this section, the officer shall give a receipt for, and make a return of what is so paid and delivered.

§18. Procedure Where Person Suggested Fails to Answer Fully or Pay Debt or Deliver Property.—If it be asserted by the judgment creditor that the person so suggested has not fully disclosed the debts or liabilities due by him to, or personal property in his possession or under his control of, the judgment debtor, or has not delivered to the officer the property, or paid the money, for which he was liable, the justice shall cause a jury to be drawn and summoned to inquire as to such debts or liabilities or property, or as to such payment or delivery, unless a trial by jury be waived by the parties, and, if a trial by jury be waived, the justice shall proceed to hear and determine the matters in controversy. Whether the facts be found by the court or by a jury, the justice shall proceed in respect to any facts so found, in the same manner as if they had been confessed by the person suggested, but either party shall be entitled to an appeal as in other cases. If the verdict or finding of the justice be for the person suggested, he shall have judgment for his costs against the judgment creditor, and if the judgment be against the person suggested, he shall be adjudged liable for the costs of the suggestion proceeding. The provisions of article seven of this chapter shall apply as to the jury mentioned in this section.

§19. Order for Payment by Person Suggested.—If it appear by the admission or examination of the person against whom the proceedings on the suggestion are pending, or by other evidence, that, at the time the order mentioned in section thirteen of this article was served, or thereafter, and before the time of answering or such examination, or the return day of the execution, whichever comes first, such person was indebted or liable to the judgment debtor or had in his possession or under his control any personal property belonging to the judgment debtor, not exempt from execution under section fourteen of this article, whether sufficient to satisfy the judgment or not, and that he had not, before the service of such order paid the money or delivered the property to the judgment debtor, or upon his order, and that such debt or liability to pay such money or deliver such property was not evidenced by a negotiable instrument, the justice shall order such person, if it be a sum of money, to pay the same to the judgment creditor, to be applied first to the costs of the proceedings on the suggestion, and the balance to the discharge of the judgment; but if it be shown that such sum of money is not yet due and payable, the order shall be for the payment thereof at the time (to be stated in such order) when it will be due and payable. If such person be liable for property other than money, the justice shall ascertain the value thereof, and order such person to pay such value, or so much as will be sufficient, on a certain day to be specified in the order, to the judgment creditor, to be applied as aforesaid, unless such person on or before that day, deliver such property, or a sufficiency thereof to the officer designated by the justice to receive the same. If property be so delivered, it shall be sold as if taken on execution, under an order of sale to be made by the justice, and the proceeds to be applied as aforesaid: Provided, however, That if it shall appear from the admission or examination of the person suggested, that his debt or liability to pay money or deliver property is evidenced by a negotiable instrument, the justice may order such payment or delivery, but only upon condition that the holder of such negotiable instrument shall deliver the same to the person suggested simultaneously with the payment of the money or delivery of the property: Provided further, That any person suggested holding property under a pledge or lien shall not be required to deliver up such property except upon payment to him of the debt secured by the pledge or lien.(Code 1868, c. 50, §123; 1872-3, c. 226, §81; 1881, c. 8, §123; Code 1923, c. 50, §123.)

§20. Enforcement of Such Order; Rehearing.—Any order, made by the justice pursuant to the preceding section, directing the payment of money by the person against whom the proceedings on the suggestion were instituted, may be enforced by execution against such person in the name of the judgment creditor when such money is or becomes due and payable; and an appeal shall lie from such order, on behalf of any party interested, to the circuit court, in like cases and manner as from other judgments of justices. If any such order as is mentioned in the next preceding section be made by a justice without the service on the judgment debtor of the order mentioned in section thirteen of this article, such judgment debtor or his personal representative may, within one year after the date of the order mentioned in this and the next preceding section, upon giving bond with good security, in such reasonable penalty as the justice may prescribe, with condition that he will pay and satisfy all costs which have accrued, or may accrue in the case if such order be affirmed, have the case reheard, and may make any defense therein which might have been made if he had appeared before such order was made. If on such rehearing the decision of the justice be for the judgment debtor, or his personal representative, in case of his death, the justice shall order the plaintiff in the suggestion proceeding in which such order was made to restore any money or property received by him under such order, and, if money has been received, with interest thereon from the date of the order under which it was received, and may enter judgment therefor; and, if the decision of the justice be against such judgment debtor, or his personal representative, on such rehearing, the original order shall be confirmed, and in either case the prevailing party shall recover his costs.(Code 1868, c. 50, §124; 1872-3, c. 226, §82; 1881, c. 8, §124; 1882, c. 145, §124; Code 1923, c. 50, §124.)

§1. When Stay May be Obtained; Bond.—The party against whom a judgment is rendered by a justice may, within twenty days thereafter, obtain a stay of execution thereon, by filing with the justice a bond with good security, to be approved by the justice, in a penalty double the amount of the judgment and costs, conditioned to the effect that the amount of such judgment, including interest and costs, will be paid at the expiration of the stay, or, in the event execution be issued prior to the expiration of the stay, as provided in section seven of this article, and be not recalled as provided in said section seven, that he will pay all damages any person may sustain by reason of such stay of execution. The justice shall note the filing of the bond in his docket, stating the names of the parties signing the same, and the time of stay allowed. Upon such bond being so filed, if execution has been previously issued, it shall be recalled by the justice.(1863, c. 122, §167; Code 1868, c. 50, §125; 1872-3, c. 226, §83; 1881, c. 8, §125; Code 1923, c. 50, §125.)

§2. When Stay of Execution Not Allowed.—No stay of execution shall be allowed in the following cases:

(a) On any judgment upon a bond filed to obtain such stay;

(b) On the judgment rendered on any other bond filed with a justice or given to a constable pursuant to this chapter;

(c) On any judgment against a justice or constable for refusing or neglecting to pay, as the law requires, money collected or received by such justice or constable in his official capacity; or against a constable for failing to make return, or making a false return of any process or order.(1863, c. 122, §170; Code 1868, c. 50, §128; 1872-3, c. 226, §86; 1881, c. 8, §128; Code 1923, c. 50, §128.)

§3. Period of Stay of Execution.—When the judgment, exclusive of interest and costs, does not exceed fifty dollars, such stay shall be for two months; and if over fifty dollars and not over one hundred dollars, for four months; and if over one hundred dollars, for six months.(1863, c. 122, §169; Code 1868, c. 50, §127; 1872-3, c. 226, §85; 1881, c. 8, §127; Code 1923, c. 50, §127.)

§4. Judgment on Stay Bond if Payment Not Made When Stay Expires.—If the judgment, with interest and costs, be not paid when the stay expires, the justice shall, without process or further proceeding, enter judgment on the bond, against the judgment debtor and the parties who signed the bond, in favor of the judgment creditor for the amount due him, including interest and costs. It shall be the duty of the justice to issue execution on such judgment within three days after the stay expires, unless otherwise ordered by the party who is entitled to receive the money to be collected thereon.(1863, c. 122, §168; Code 1868, c. 50, §126; 1872-3, c. 226, §84; 1881, c. 8, §126; Code 1923, c. 50, §126.)

§5. Form of Judgment on Bond.—The judgment entered by the justice under the provisions of the preceding section shall be in the following form or to the following effect:

§6. Payment by and Remedies of Surety on Stay Bond.—If any surety who signed the bond given to obtain a stay of execution pay the judgment before or after the stay expires, the judgment against the principal shall remain in force for his use; and execution thereon may be issued by the justice on the application of such surety, after the expiration of the stay, with an indorsement on such execution showing for whom it is to be collected.(1863, c. 122, §171; Code 1868, c. 50, §129; 1872-3, c. 226, §87; 1881, c. 8, §129; Code 1923, c. 50, §129.)

§7. Additional Security for Stay of Execution.—If, at any time before the stay expires, the judgment creditor, by the affidavit of himself or one or more credible persons, satisfies the justice that the security taken on granting such stay is insufficient, the justice shall give notice to the judgment debtor to appear on a day certain, which shall be not less than three days, and show cause why additional security should not be required; and if the judgment debtor fail to appear, or if he fail to satisfy the justice that the security is sufficient, and does not give such additional security as the justice may require, within three days after the day on which he is ordered to appear, the justice shall make an entry of the fact on his docket and forthwith issue execution on the judgment. But if additional security, to the satisfaction of the justice, be given within two weeks after the service of such notice, the execution, if issued in the meantime, shall be recalled and the stay originally granted remain in force. The liability of the additional surety shall be the same as if he had been a party to the original bond. When execution issues prior to the expiration of the stay, all damages sustained by any party by reason of the stay may be ascertained and recovered in a proceeding on the bond.(1863, c. 122, §172; Code 1868, c. 50, §130; 1872-3, c. 226, §88; 1881, c. 8, §130; Code 1923, c. 50, §130.)

§8. Surety May Have Execution Issued.—If a surety for stay of execution, by the affidavit of himself or one or more credible persons, satisfies the justice that, by delaying the execution until the expiration of the stay, he may be compelled to pay the judgment, the justice shall forthwith issue execution against the judgment debtor. Such surety shall not thereby be discharged from liability, but may be proceeded against after the expiration of the stay, as if execution had not issued as aforesaid.

§9. Period for Issuance and by Whom Issued.—Subject to the provisions of law in relation to causes in which stay of execution is granted or the cause is removed on appeal to the circuit court, executions for the enforcement of the judgment of a justice in a civil action may be issued by the justice by whom such judgment was rendered, or his successor in office, or the justice with whom the docket in which such judgment is entered is lawfully deposited, at any time within ten years from the entry of the judgment, or, where execution issues within ten years as aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon, on which there is no return by an officer or which has been returned unsatisfied, or, if the judgment be revived, within ten years from the date of such revival.(1863, c. 122, §173; Code 1868, c. 50, §131; 1881, c. 8, §131; 1897, c. 45; Code 1923, c. 50, §131.)

§10. Time for Issuance.—If a stay of execution be not granted within twenty days after the judgment is rendered, or the cause be not removed on appeal to the circuit court within that time, it shall be the duty of the justice, on the expiration of such twenty days, to issue execution, unless otherwise directed by the person entitled to receive the money collected thereon; and, on the application of such person, the justice shall issue execution before the twenty days expire.(1863, c. 122, §174; Code 1868, c. 50, §132; 1872-3, c. 226, §90; 1881, c. 8, §132; Code 1923, c. 50, §132.)

§11. Requisites of Execution; Effect of Errors or Omissions; Amendment.—The execution must be filled up before it is delivered to be executed; otherwise it shall be void. It must describe the judgment, on which it is issued, by stating the party in whose favor, and the party against whom, the justice by whom, the county and district in which, and the time when, such judgment was rendered. It must also state the principal sum to be collected, the time the interest commenced, the amount of costs to be collected, and the credits, if any, to which it is subject by reason of payments made since the judgment was rendered. It shall be returnable within sixty days from its date, be signed by the justice, and command the person to whom it is directed to collect the amount due out of the personal property of the judgment debtor, and pay the money made to the justice, and make return thereof, showing how it has been executed. If there be any defect, error or omission in an execution, or in any other order issued by a justice for the sale of property, such defect, error or omission shall not vitiate anything done under such execution or order which would have been proper if the execution or order had been correctly issued, but the justice may, at any time, amend the same according to the truth.(1863, c. 122, §176; Code 1868, c. 50, §135; 1872-3, c. 226, §91; 1881, c. 8, §135; Code 1923, c. 50, §135.)

§12. Direction and Execution of Execution or Order of Sale.—The execution or order of sale may be directed and executed as provided in section three, article three of this chapter. When, for any cause, it is unfit for an execution or order of sale to be directed to a constable, it may be directed to the sheriff, deputy sheriff, or sergeant of a town or village, and the sergeant of a town or village, to whom any execution or order of sale issued by a justice is directed, may, like the others, execute the same within the county, or on any creek or river adjoining the same.(1863, c. 122, §176; Code 1868, c. 50, §136; 1872-3, c. 226, §92; 1881, c. 8, §136; Code 1923, c. 50, §136.)

§13. Successive Executions.—If an execution be returned unsatisfied, or no return be made thereof, new executions may successively be issued after the return day of the former, to be indorsed, respectively, “second execution,” “third execution,” and so forth, as the case may be.(1863, c. 122, §178; Code 1868, c. 50, §137; 1872-3, c. 226, §93; 1881, c. 8, §137; Code 1923, c. 50, §137.)

§14. Execution Against Surety; Property of Principal Debtor First Liable.—When a joint judgment is rendered against a principal debtor and his surety, if such suretyship appear to the satisfaction of the justice by any evidence at the trial, or paper filed in the cause, or by admission of the parties, he shall note the fact on his docket, and in such case a memorandum thereof shall be indorsed on the execution, and the personal property of the principal debtor subject to execution, within the jurisdiction of the officer, shall be first sold, unless the surety direct otherwise.(1863, c. 122, §179; Code 1868, c. 50, §138; 1872-3, c. 226, §94; 1881, c. 8, §138; Code 1923, c. 50, §138.)

§15. Indorsement on Execution of Time of Delivery; Liability for Failure; Lien.—The officer, to whom an execution issued by a justice is delivered to be executed, shall indorse thereon the year, month, day and hour when it came to his hands. If he fail to do so, the judgment creditor may recover against him and his sureties, or any one or more of them, and the personal representatives of such of them as are dead, before the justice by whom the execution was issued, or his successor, a sum not exceeding fifteen per cent on the whole amount, including interest and costs due on the execution. From the time the execution came to the hands of such officer to be executed, it shall operate as a lien on the personal property of the judgment debtor, liable to be seized under it; which lien, however, shall be subject to any prior lien acquired on such property by the issue or levy thereon of any other process. When there are several executions in the hands of the same officer against the same judgment debtor, they shall be executed in the order in which they were received; or, if received together, they shall be satisfied ratably, without preference to one over another.(Code 1860, c. 187, §13; 1863, c. 122, §180; Code 1868, c. 50, §139; 1872-3, c. 226, §95; 1881, c. 8, §139; Code 1923, c. 50, §139.)

§16. Purchaser for Value Takes Free of Lien.—The lien of an execution shall not be good as against a purchaser of the property subject to the lien, for a valuable consideration and without notice of such lien, unless, at the time of such purchase, the execution shall have been actually levied upon the property, and the property shall have been in the actual possession of the officer or of some person, other than the judgment debtor, holding such property for the officer.

§17. Levy on Money or Bank Notes; How Accounted for.—The execution may be levied as well on money and bank notes as on other goods and chattels. If the levy be on gold or silver coin, or other currency which is legal tender in the United States, the same shall be accounted for at par value as so much money made under the execution. If it be on bank notes or currency not a legal tender in the United States and the creditor will not take them at their nominal value, they shall be sold and accounted for as any other property taken under execution.(Code 1860, c. 187, §§11, 12; Code 1868, c. 50, §140; 1881, c. 8, §140; Code 1923, c. 50, §140.)

§18. Indorsement After Levy; Notice of Sale.—The officer, after taking into his custody the personal property levied on by virtue of the execution, shall indorse on the execution the time of the levy, and indorse thereon or annex thereto a list of the property. He shall then immediately post notice, at three public places in the district in which such property or the greater part in value thereof was found, of the time and place at which it will be sold. Such notice shall describe the property, or there shall be a list thereof annexed to the same, and the notice shall be posted ten days at least before the time of sale. But when property levied on is of a perishable nature or expensive to keep, the justice may order sale to be made thereof as the case may require.(1863, c. 122, §181; Code 1868, c. 50, §140; 1872-3, c. 226, §96; 1881, c. 8, §140; Code 1923, c. 50, §140.)

§19. Sales Under an Execution or Order of Sale.—Every sale under an execution or order of sale, by virtue of this chapter, except as hereinafter provided, shall be at public auction in the district in which the property, or the greater part thereof in value, was levied on, between the hours of ten in the forenoon and four in the afternoon of the day appointed for the sale, and at the house or on the premises where the property was taken, or at one of the most public places in the district. At the time and place appointed for the sale, the officer or person shall sell to the highest bidder, for cash, except as hereinafter provided, the property (except gold or silver coin or other currency which is legal tender in the United States, and such bank notes and other currency as the creditor will take at their nominal value) or so much thereof as may be necessary; but if there be not time to complete the sale on the day appointed, it may be adjourned from day to day until completed. Before any such sale shall be made, if the judgment debtor, his agent or attorney, or, in their absence, his or her spouse, so desires, the property to be sold shall be appraised by two disinterested householders of the district in which the levy is made, one to be selected by the judgment debtor, his agent, attorney, or, in their absence, by his or her spouse, and the other by the judgment creditor, his agent or attorney, or in their absence or failure to act, by the officer who made the levy, who, after being duly sworn for the purpose, shall appraise, at its fair cash value, each item of property to be sold, and reduce their appraisement to writing and sign the same, and deliver it to the officer whose duty it is to make the sale. If they disagree as to the value of any such item, the officer making the levy shall, on his official oath, act as umpire in the case; and his decision, and that of one of such appraisers, shall determine the value of such item. Such appraisement shall be returned by such officer, with the execution or order of sale. Items of property so appraised shall be sold separately or in lots or as a whole, according to the method which, in the opinion of the officer, will bring the higher price. The property so appraised shall be first offered for sale for cash, and if, when so offered, the highest aggregate bids therefor amount to two-thirds or more of its appraised value, the sale thereof shall be for cash. But if no bid be made therefor amounting to two-thirds of its appraised value, no sale thereof shall then be made for cash if such appraised value exceed five dollars, but the same shall then be offered for sale, one-half on a credit of four months, and the residue on a credit of eight months, the purchaser giving his notes, with good security, bearing interest from date, for the purchase money. If, when so offered, a greater sum shall be bid for such property than was offered in cash, the sale shall be made on such credit; otherwise the cash bid shall be received. All moneys paid to the officer, on any note so taken, shall be regarded as so much money received by him on the execution or order of sale, and the officer shall indorse the same on the execution or order of sale, whether the same has been returned or not, at the time such payment is made. If any note taken on such sale shall be not paid to the officer when due, he shall indorse thereon any payments made to him and return it to the justice, who shall indorse thereon the date of the return and, without further process or proceedings, enter, in his docket, judgment in favor of the officer upon such note for the amount remaining unpaid, with interest.(1863, c. 122, §182; Code 1868, c. 50, §141; 1872-3, c. 226, §97; 1881, c. 8, §141; Code 1923, c. 50, §141; 1925, c. 79.)

§20. Form of Judgment on Notes.—The judgment entered by the justice under the provisions of the preceding section shall be in the following form or to the following effect:

§21. Resale Under Execution on Noncompliance With Bid.—If at any such sale a purchaser do not comply with the terms thereof, the officer may resell the property, either forth with or upon such notice as he deems proper, or return that the property was not sold for want of bidders. If on the resale the property be sold for less than it sold for before, the first purchaser shall be liable for the difference to the creditor, so far as it is necessary to satisfy him, and to the debtor for the balance. This section shall not prevent the creditor from proceeding as he might have done if it had not been enacted.(Code 1860, c. 187, §16; Code 1868, c. 50, §142; 1872-3, c. 226, §98; 1881, c. 8, §142; Code 1923, c. 50, §142.)

§22. Expenses of Execution Sale.—The officer shall be allowed by the justice the reasonable expenses of executing the process and keeping the property, out of the proceeds of sale, or the same may be taxed and collected as other costs in the action.(1863, c. 122, §184; Code 1868, c. 50, §144; 1881, c. 8, §144; Code 1923, c. 50, §144.)

§23. Return of Execution; Payment of Proceeds; List of Property Unsold; Fine and Liability for Failure.—The officer, to whom an execution or order of sale is delivered to be executed, shall make true return thereon at the proper time and place, stating in such return the time and manner of executing the writ or order, or why it has not been executed; and shall subscribe his name to such return. He shall pay the money made, except his own fees and costs, to the justice. When any property is sold under the execution or order, he shall return with the writ or order a true account of such sale, specifying the several articles sold and the prices thereof. If there be any property remaining in his hands unsold, subject to the execution or order, he shall annex to his return a true list of such property, specifying the several articles. If he fail herein, he shall be fined not exceeding ten dollars; and, moreover, he and his sureties, or any one or more of them, and the personal representatives of such as are dead, shall be liable, for such failure to the person entitled to receive the money mentioned in the execution or order. A judgment for such fine shall not be a bar to further proceedings, if the failure be continued; but there shall be a further fine, from time to time, of not exceeding ten dollars for every month subsequent to such judgment that the failure shall continue, until it appear that the return cannot be made, or that the amount due upon the execution or order has been paid to the justice or the creditor: Provided, That not more than ten dollars shall be recovered in any one prosecution.(Code 1860, c. 49, §§27, 28; 1863, c. 122, §185; Code 1868, c. 50, §145; 1872-3, c. 226, §100; 1881, c. 8, §145; Code 1923, c. 50, §145.)

§24. Failure to Pay Over Money Received Under Execution.—If any officer make such return upon an execution or order of sale issued by a justice as entitles any person to recover money from such officer, and fail to pay the same as he ought, the justice having jurisdiction may, on motion, after five days’ notice, or in an action on behalf of such person, give judgment against such officer and his sureties, or any one or more of them, or the personal representatives of such of them as are dead, for so much principal and interest as is due at the time the judgment is rendered, with interest thereon at the rate of not less than six nor more than fifteen per cent per annum, as the justice may deem proper, from that time until payment.(Code 1860, c. 150, §12; Code 1868, c. 50, §146; 1872-3, c. 226, §101; 1881, c. 8, §146; Code 1923, c. 50, §146.)

§25. Record Evidence of Such Default.—A copy from the entry in the justice’s docket, of the date of any execution or order of sale issued by him, and to whom delivered, shall be evidence in any proceeding against the officer to whom it is entered as delivered, for failure to make due return thereof, or failure to pay over money received thereon. If a justice, upon being applied to for a copy of any entry, refuse it, or, upon being summoned to produce the docket in which such entry is or ought to have been made, fail to produce such entry, he shall forfeit twenty dollars to the person making such application, or on whose behalf he is summoned.(Code 1860, c. 150, §11; Code 1868, c. 50, §147; 1872-3, c. 226, §102; 1881, c. 8, §147; Code 1923, c. 50, §147.)

§26. Collection After Return Day of Execution; Moneys Received on Other Claims; Receipt as Evidence.—If an officer, after the return day, collect money mentioned in an execution or order of sale issued by a justice, he and his sureties shall be liable for the money so collected, in like manner as if the collection had been made before the return day.(Code 1860, c. 150, §13; Code 1868, c. 50, §148; 1872-3, c. 226, §103; 1881, c. 8, §148; Code 1923, c. 50, §148.)

§27. Unsatisfied Execution; Sale of Property in Hands of Officer.—When an execution or order of sale is returned unsatisfied in whole or in part, and there is property in the hands of the officer remaining unsold for the want of bidders, or other cause, it shall be the duty of the justice, unless otherwise directed by the person entitled to receive the money remaining uncollected, forthwith to issue his order commanding such officer to sell such property and pay over the proceeds thereof to the justice, which sale shall be subject to the same regulations as sales on execution.(1863, c. 122, §186; Code 1868, c. 50, §149; 1872-3, c. 226, §104; 1881, c. 8, §149; Code 1923, c. 50, §149.)

§28. Security for Delivery of Property Retained.—Any officer having levied on property of which he permits the party against whom the execution or order of sale issued, or any other person, to retain or have possession, may take such security for his own indemnity as he shall require, that such property shall be delivered at the time and place appointed for the sale thereof.(1863, c. 122, §187; Code 1868, c. 50, §150; 1872-3, c. 226, §105; 1881, c. 8, §150; Code 1923, c. 50, §150.)

§29. Motion to Quash Execution.—A motion to quash an execution may, after three days’ notice to the adverse party, be heard and decided by the justice who issued the execution; and such justice may, without such notice, make an order staying proceedings on the execution until such motion can be heard and determined. A copy of the order so made must be served upon the officer in whose hands the execution is. But before such stay is granted, the judgment debtor shall enter into a bond, with security approved by the justice, in an amount equal to the judgment with costs, conditioned that the judgment debtor will pay all damages which may be sustained by the judgment creditor by reason of such stay. Appeals shall lie from the judgment of the justice on such motion as in other cases.

§1. When Appeals Allowed.—In all civil cases an appeal shall lie, under the regulations herein prescribed, from the judgment of a justice to the circuit court of the county, or to any inferior court of the county having appellate jurisdiction in civil cases, when the amount in controversy on the trial before the justice exceeds fifteen dollars, exclusive of interest and costs, or the case involves the freedom of a person, the validity of a law or of an ordinance of any corporation, or the right of a corporation to levy tolls or taxes.(1863, c. 122, §201; Code 1868, c. 50, §163; 1872-3, c. 226, §117; 1881, c. 8, §163; Code 1923, c. 50, §163.)

§2. Appeal Bond.—The appeal shall not be granted by the justice unless, within ten days after the judgment is rendered or revived or an order is entered refusing to set aside a judgment, bond with good security, to be approved by the justice, in a penalty double the amount of the judgment, is filed with him, with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him on such appeal by the court to which the appeal is taken as provided in section one of this article, or if he does not wish to stay the execution on such judgment, with condition to pay the costs on such appeal if the judgment appealed from be affirmed. In ease there be judgment before the justice against the plaintiff for costs only, and the plaintiff desires to appeal, the bond shall be for costs, conditioned as aforesaid, and in a penalty not exceeding one hundred dollars. In suits for the forcible or unlawful entry upon land, or for the unlawful detention of real estate, if judgment be rendered for recovery of possession of the premises, either with or without damages for detention, the bond shall be in a penalty double the amount of the damages, where judgment has been rendered for damages for the detention, together with an amount sufficient, in the opinion of the justice, or of the circuit or other appellate court or judge thereof, when the appeal is granted by such court judge, to cover one year’s rent of the premises. In such suits where the judgment is not for damages for detention, the bond shall be in a penalty equal to an amount sufficient, in the opinion of the justice, or of the circuit or other appellate court or judge thereof, when the appeal is granted by such court or judge, to cover one year’s rent of the premises, and an additional sum of not less than fifty nor more than one hundred dollars.(1863, c. 122, §202; Code 1868, c. 50, §164; 1872-3, c. 226, §118; 1881, c. 8, §164; 1882, c. 145, §164; Code 1923, c. 50, §164.)

§3. When Appeal Bond Not Required.—But if the appeal be applied for on behalf of a district, town, village, county court of a county, or board of education, in their corporate capacity, or by a fiduciary, it shall be granted without such bond.(1865, c. 28, §8; Code 1868, c. 50, §165; 1872-3, c. 226, §119; 1881, c. 8, §165; Code 1923, c. 50, §165.)

§4. Stay of Proceedings; Discharge From Custody.—After the appeal is granted, if the bond first mentioned in section two of this article has been given, or if the appeal be allowed under section three of this article, all further proceedings on the judgment of the justice shall cease, and if any execution, order of arrest or other process or order be outstanding, it shall be recalled by the justice, and if the appellant be in custody he shall be discharged.(1863, c. 122, §204; Code 1868, c. 50, §167; 1872-3, c. 226, §121; 1881, c. 8, §167; Code 1923, c. 50, §167.)

§5. Transcript of Proceedings; Delivery of Papers to Clerk.—The justice shall, within twenty days from the day on which the appeal is perfected, make out and certify a complete transcript from his docket of all the proceedings before him in the action, and deliver or transmit the same, together with such bond, the pleadings, the depositions, and all original papers in the cause, to the clerk of the court of the county to which the appeal is taken. If the justice omit or refuse to do so, he shall be fined not less than five nor more than one hundred dollars; and moreover shall, with the sureties on his official bond, be liable to the party aggrieved for any loss or damage he may sustain thereby.(1863, c. 122, §205; Code 1868, c. 50, §168; 1872-3, c. 226, §122; 1881, c. 50, §168; Code 1923, c. 50, §168.)

§6. Appeals Granted by Circuit or Other Appellate Court After Ten Days; Bond.—Appeals from the judgments of justices may be granted after the expiration of ten days and within ninety days after date of judgment, by the circuit court or any inferior court of the county having appellate jurisdiction in civil cases, in term time, or by the judge thereof in vacation, when the party seeking the appeal (except as provided in section three of this article) shall deliver to the court or judge a proper bond, as prescribed in section two of this article, and show by his own oath, or otherwise, good cause for his not having taken such appeal within the said ten days.(1863, c. 122, §212; Code 1868, c. 50, §174; 1872-3, c. 226, §128; 1881, c. 8, §174; Code 1923, c. 50, §174.)

§7. Stay on Such Appeal; Procedure.—In such case, if the appeal be granted, and the bond given by the appellant be with condition that he will perform and satisfy any judgment which may be rendered against him on such appeal by the court to which the appeal is taken, the court or judge shall make and certify to the justice an order directing him to cease all further proceedings in the cause, and recall all executions and orders that may be outstanding for the enforcement of the judgment, and transmit without delay, to the clerk of such court, a complete transcript from his docket of the proceedings in the action, together with all the original papers relating thereto, but if such bond be not given, the court or judge shall omit from such certificate so much thereof as directs the justice to recall all executions and orders outstanding for the enforcement of the judgment. Upon the receipt of such transcript and papers by the clerk, the cause shall be proceeded with in such court as in other cases of appeals from the judgments of justices.(1863, c. 122, §213; Code 1868, c. 50, §175; 1872-3, c. 226, §129; 1881, c. 8, §175; Code 1923, c. 50, §175.)

§8. Appeal by One of Several Parties.—When there are two or more plaintiffs or defendants, any one or more of them may appeal, without joining therein the others on the same side.(1863, c. 122, §203; Code 1868, c. 50, §166; 1872-3, c. 226, §120; 1881, c. 8, §166; Code 1923, c. 50, §166.)

§9. Proceedings on Appeal; Pleadings; Jury; Evidence.—The clerk of the court to which the appeal is taken, on receiving such transcript and papers, shall file the same and docket the appeal. The appeal may be tried upon the pleadings made up in the justice’s court, or the pleadings may be amended before or during the trial of the appeal, when substantial justice will be promoted by the amendment. If the amendment be made during the trial of the appeal, and it be made to appear to the satisfaction of the court that a continuance of the cause is necessary in consequence of such amendment, a continuance shall be granted, and the court may in its discretion require the party making the amendment to pay the costs of the continuance. If the sum in controversy exceeds twenty dollars, and either party so require, a jury shall be selected and impaneled to try the cause, in like manner as other juries are selected and impaneled in such court. All lawful evidence produced in relation to the matter in difference between the parties shall be heard, whether such evidence was produced before the justice or not, and the cause shall be determined with out reference to the judgment of the justice, on the principles of law and equity: Provided, That no appeal shall be tried as aforesaid, on motion of the appellant, if the transcript and papers have been filed with such clerk less than thirty days before the beginning of a term, unless at least ten days’ notice of the trial has been given to the appellee, his agent or attorney, or unless the appellee, his agent or attorney be present at the time of application for the appeal.(1863, c. 122, §206; Code 1868, c. 50, §169; 1872-3, C. 226, §123; 1881, c. 8, §169; Code 1923, c. 50, §169.)

§10. Effect of Failure to Prosecute Appeal After it is Docketed.—If, after the appeal is regularly placed upon the docket, neither party brings the case to a hearing before the end of the second term thereafter at which it is called for trial, the court, unless good cause for a continuance be shown, shall render judgment in favor of the party prevailing before the justice, to the same effect and for the same amount as the judgment rendered by the justice, and, in addition thereto, if the judgment rendered by the justice was against the appellant, then the judgment of the circuit or other appellate court, where there has been such failure to bring the case to a hearing, shall be against the appellant and those who signed the bond. as is provided in the following section of this article. But in every case where there has been such failure to prosecute an appeal, the circuit or other appellate court shall render judgment for the costs of the appeal against the appellant and those who signed the bond.

§11. What Judgment Against Appellant to Include.—When the judgment appealed from is against the appellant for any sum of money, and an equal or greater sum is found due by the appellant, judgment shall be rendered by the circuit court against the appellant and those who signed the bond first named in section two of this article, if such bond be given, for the sum due, including interest and costs up to the time the appeal was taken, with damages on the aggregate at the rate of ten per cent per annum, from the time the appeal is taken until payment, and the costs of the appeal; but if the appeal bond be for the payment of costs only, judgment shall be given against the appellant and those who signed the bond for the costs of the appeal.(1863, c. 122, §209; Code 1868, c. 50, §172; 1872-3, c. 226, §126; 1881, c. 8, §172; Code 1923, c. 50, §172.)

§12. Procedure Where Bond or Security In sufficient; When Appeal Not Dismissed; Trial.—If the court, in any case, be of opinion that the bond filed is insufficient, or the security doubtful, it shall order a new bond, in proper form and with good security, to be given within the time specified in such order, and, if it be not given, or good cause be not shown why it was not, the same judgment which was rendered by the justice, with the costs of the appeal, shall be entered in the circuit or other appellate court, without further trial, against the appellant and those who signed the bond, if it be such bond as is first named in section two of this article, and judgment shall be entered against the appellant and sureties for the costs of the appeal if it be not such bond: Provided, That no appeal from any justice of the peace of any county of this State shall be dismissed on account of any failure of any such justice to comply with any requirements of any statute relating to appeals from justices of the peace, if the appellant or appellants have executed bond when such bond is required and done all necessary on his or their part to perfect such appeal, and in no case shall any appeal from any justice be dismissed when it shall appear to the appellate court that injustice might be done to the appellant or appellants, but in every such case such appeal shall be docketed, heard and disposed of by such appellate court in accordance with the ordinary rules of law governing the trial of such cases, and under such other orders as the court may see fit to impose.(1863, c. 122, §207; Code 1868, c. 50, §170; 1872-3, c. 226, 5124; 1881, c. 8, §170; 1901, c. 79; Code 1923, c. 50, §170.)

§13. Costs on Appeal.—If, upon the trial in the circuit court, the appellant does not increase the original judgment if it was in his favor, or reduce it if it was against him, more than five dollars, exclusive of interest and costs, the appellant and those who signed the bond shall pay the costs of the appeal, except in cases involving the title to specific personal property, or the possession of real estate, the freedom of a person, the validity of a law or an ordinance of any corporation, or the right of any corporation to levy tolls or taxes. In such cases costs shall be awarded as the court deems right. But the appellant shall be liable for all costs of the appeal where the original judgment against him is reduced more than five dollars, unless, before such appeal is tried, he shall have tendered the appellee an amount equal to or greater than the judgment recovered by him on the trial of such appeal, together with all costs that may have accrued up to the time of such tender.(1863, c. 122, §208; 1868, c. 63; Code 1868, c. 50, §171; 1872-3, c. 226, §125; 1875, c. 59; 1881, c. 8, §171; Code 1923, c. 50, §171.)

§14. General Principles Applicable to Civil Appeals.—In all cases of appeal from a justice to a circuit court or to any inferior court of the county having appellate jurisdiction in civil cases, the court (subject to the foregoing rules, when they are applicable) shall make any order during the progress of the cause, which the principles, of law or equity may require; and shall render judgment as the right shall appear, and proceed to enforce the same as other judgments of the court are enforced without remanding the cause again to the justice. The judgment in such court, if in favor of the appellee, shall be against the appellant and those who signed the bond. Upon the trial of the appeal, the amount due, if any, from one party to the other, shall be ascertained, and judgment rendered therefor, in the manner required by section six, article thirteen of this chapter.(1863, c. 122, §211; Code 1868, c. 50, §173; 1881, c. 8, §173; Code 1923, c. 50, §173.)

§1. Docket Must be Kept by Justice.—Every justice shall keep a book denominated a “docket,” to be furnished at the expense of the county, and used exclusively for entering therein his judicial proceedings.(1863, c. 122, §214; Code 1868, c. 50, §176; 1872-3, c. 226, §130; 1881, c. 8, §176; Code 1923, c. 50, §176.)

§2. Order of Docketing Cases; Files of Papers.—He shall number the cases progressively on his docket, and number the papers of each case to correspond. He shall keep all the papers of each case together in one package, and file them in the order they are numbered.(1863, c. 122, §219; Code 1868, c. 50, §177; 1872-3, c. 226, §131; 1881, c. 8, §177; Code 1923, c. 50, §177.)

§3. Entries on Docket at Institution of Suit.—He shall enter in his docket the title of every action commenced before him, setting forth the names of the parties, if known, and showing , which are plaintiffs and which are defendants, and stating the time the action was commenced, and the amount of money or damages, or the specific property, which the plaintiff demands.(1863, c. 122, §215; Code 1868, c. 50, §178; 1872-3, c. 226, §132; 1881, c. 8, §178; Code 1923, c. 50, §178.)

§4. Other Docket Entries.—Underneath the title of the action he shall enter, at the times they occur, the following particulars, commencing the proceedings of every day with the proper date:

(a) The date of the summons, the time it, is returnable, and the name of the person to, whom it was delivered to be served; and the same particulars in relation to any order of arrest or attachment which may be issued in the action; and, if an order of arrest or attach ment be issued, on whose affidavit it was founded;

(b) A brief note of the return made on the process;

(c) The name of the agent, attorney or guardian, if any, appointed on behalf of any party;

(d) The filing by either party of his complaint or answer, if made orally, with a brief notice of the contents thereof;

(e) Every continuance, at whose instance it is made, and to what time, and at whose costs; and, if made to a different place, the place;

(f) A notation of the bonds filed in the action by either party, with the names of the parties who signed the same;

(g) The party or parties present at the trial;

(h) When a jury is demanded, by which, party such demand was made, the amount of money deposited, and the time appointed for the trial by jury;

(i) The verdict of the jury in full; or, if the jury disagreed and were discharged, a statement of that fact;

(j) The judgment of the justice, with the items of the costs included therein;

(k) The execution and orders to sell issued, to whom delivered to be executed, and the returns made on any such process, also every sum of money received by the justice in the cause, showing when and by whom paid;

(1) If an appeal be taken, by which party, the bond filed by him, by whom signed and, when filed, and the time of filing the notice of appeal;

(m) The bond filed for stay of execution, by whom signed, and when filed and the stay granted;

(n) The satisfaction of the judgment and how and when satisfied;

(o) Any other proceedings in the action which the justice is by law directed to enter in his docket, or may think it necessary or proper to enter.(1863, c. 122, §216; Code 1868, c. 50, §179; 1872-3, c. 226, §133; 1881, c. 8, §179; Code 1923, c. 50, §179.)

§5. Form of Docket Entries Immaterial.—So far as the entries in the docket are concerned, the form shall be regarded as immaterial, if the truth be stated so as to be intelligible.(1863, c. 122, §217; Code 1868, c. 50, §180; 1881, c. 8, §180; Code 1923, c. 50, §180.)

§6. Index to Judgments Docketed.—Every justice shall keep an alphabetical index to all judgments entered in his docket. In such index shall be inserted the names of the parties to each judgment, with a reference to the page where the judgment is entered.(1863, c. 122, §218; Code 1868, c. 50, §181; 1872-3, c. 226, §134; 1881, c. 8, §181; Code 1923, c. 50, §181.)

§7. Delivery of Docket, Papers and Books to Successor.—Every justice, upon the expiration of his term of office, shall deposit with his successor his official docket, as well as those of his predecessors which may be in his custody, together with all papers relating to his judicial proceedings, in their proper files and order, and all statutes, books and papers received by him in his official capacity, to be kept by such successor as public records and property.(1863, c. 122, §221; Code 1868, c. 50, §183; 1872-3, c. 226, §136; 1881, c. 8, §183; Code 1923, c. 50, §183.)

§8. Delivery of Dockets, Papers and Books to Other Justice in Case of Vacancy.—If the office of a justice become vacant by death, removal from the district, or otherwise, the dockets, papers, statutes and books in the possession of such justice, by virtue of his office, shall be delivered to the other justice, if there be one, of the district; otherwise, to the justice of an adjoining district, to remain in his custody until such vacancy is filled, and then to be delivered to the person elected or appointed and qualified to fill such vacancy.(1863, c. 122, §222; Code 1868, c. 50, §184; 1872-3, c. 226, §137; 1881, c. 8, §184; Code 1923, c. 50, §184.)

§9. Deposit of Dockets, Papers and Books When Absent.—Any justice absenting himself from his district for a longer period than sixty days shall deposit the dockets, papers, statutes and books, which came to his hands by virtue of his office, with the other justice, if there be one, of the same district; otherwise with the justice of an adjoining district.(1863, c. 122, §223; Code 1868, c. 50, §185; 1881, c. 8, §185; Code 1923, c. 50, §185.)

§10. Receipt for Dockets, Papers and Books Delivered.—Any person receiving, as aforesaid, the dockets, papers, books and statutes which were in the possession of any justice by virtue of his office shall, if requested, give a receipt therefor to the person delivering the same.(1863, c. 122, §224; Code 1868, c. 50, §186; 1881, c. 8, §186; Code 1923, c. 50, §186.)

§11. Authority of Justice Having Docket and Papers.—A justice with whom the docket and papers of another are lawfully deposited, during vacancy or absence, or, as the successor of such other justice, shall make and sign proper entries of the proceedings in the docket of the absent justice, and is hereby authorized, while such docket and papers remain lawfully in his custody, to issue execution or other process in the suits entered thereon, give and certify transcripts thereof, and do all such other acts in relation thereto as he may do in relation to his own docket and papers. But executions and process so issued shall be returned to the justice who may have the legal custody of such docket, on the return day thereof.(1863, c. 122, §225; Code 1868, c. 50, §187; 1872-3, c. 226, §138; 1881, c. 8, §187; Code 1923, c. 50, §187.)

§1. Fees of Justices in Civil Cases.—Every justice of the peace shall be entitled to charge and receive the following fees in civil cases, and no other fees shall be charged by any justice in civil cases and proceedings before him:

Provided, however, That in an action brought before a justice to recover a sum of money where an attachment is issued against the wages of the defendant and the claim is not contested, the maximum total fee, covering all costs, to be charged by the justice, shall not exceed five dollars: Provided further, That if the defendant appear on or before the day set for trial of the case and confesses judgment, then the maximum total fee to be charged by the justice shall not exceed three dollars.(1863, c. 133, §1; Code 1868, c. 137, §24; 1872-3, c. 10, §13; 1875, c. 58, §10; 1882, c. 129, §12; 1919, c. 63, §12; Code 1923, c. 137, §12; 1925, c. 55, §12.)

§2. Fees of Constables in Civil Cases.—Every constable shall be entitled to charge and receive the following fees in civil cases:

(1863, c. 133, §2; Code 1868, c. 137, §25; 1872-3, c. 10, §14, c. 51, §11; 1882, c. 129, §13; 1919, c. 63, §13; Code 1923, c. 137, §13.)

§3. Fee Bills, How Charged and Collected.—Except where it is otherwise provided, the fee bills of justices and constables shall be chargeable to the persons at whose instance or request the services were rendered. Such officers may issue their fee bills against the person so chargeable, and place them in the hands of any constable of the county in which the persons against whom they are issued, respectively, reside. The officer collecting the same may retain for his compensation ten per cent of the amount collected and paid over to the officer entitled there to.(1863, c. 133, §4; Code 1868, c. 137, §26; 1882, c. 129, §14; Code 1923, c. 137, §14.)

§4. Unlawful Fee Bills; Collection Without Fee Bill; Penalties.—If any justice or constable shall, knowingly and with intent to defraud, issue a fee bill for any service against any person not chargeable therewith, or for a greater amount than the law allows, or, if any justice or constable shall collect a fee from any person without first presenting to such person a fee bill therefor, he shall pay to the person against whom the same is issued, or to the person from whom such collection is made, as the case may be, four times the amount so unlawfully charged, which may be recovered by such person before any court or any justice, not interested, having jurisdiction. He shall be also liable to indictment for a misdemeanor, and, upon conviction thereof, shall be fined not less than ten nor more than fifty dollars, and imprisoned, at the discretion of the court, not to exceed thirty days.(1863, c. 133, §5; Code 1868, c. 137, §27; 1882, c. 129, §15; Code 1923, c. 137, §15.)

§5. Prepayment of Fees.—For any service rendered by virtue of his office, for which a fee is allowed by law, except fees chargeable to the State or county, the justice or constable may require the proper fee to be paid before the service is rendered.(1863, c. 133, §6; Code 1868, c. 137, §28; 1882, c. 129, §16; Code 1923, c. 137, §16.)

§6. Security for Costs by Nonresident Plaintiff.—If a person who intends to bring an action before a justice is not a resident of the State, the justice may require security for the costs before issuing the summons. And if the summons be issued without such security having been given, the defendant may demand the same, and the action shall not proceed till it be given. And when a plaintiff after suit is begun removes from the State, the justice or defendant may also require security, as well for the costs already accrued as for those that may accrue thereafter. If the plaintiff, after being notified of this requirement, fail to comply therewith within the time prescribed by the justice, or to show cause why he should not do so, the justice shall dismiss the suit and give judgment against him for costs.(1863, c. 122, §87; Code 1868, c. 50, §45; 1872-3, c. 226, §32; 1881, c. 8, §45; Code 1923, c. 50, §45.)

§7. Form of Such Security.—Security for costs may be given either by depositing with the justice such sum as the latter shall deem sufficient, or by a bond with good security, to be approved by the justice, in such penalty as the justice shall prescribe, with condition to pay to the justice the costs incurred at the plaintiff’s instance, when demanded, and that, if judgment be given against him in the action, he will pay the defendant’s costs when demanded.(1863, c. 122, §88; Code 1868, c. 50, §46; 1872-3, c. 226, §32; 1881, c. 8, §46; Code 1923, c. 50, §46.)

§8. Judgment on Bond for Costs.—When such bond has been given, the justice, on notice or summons served on the persons, or any of them, who signed the same, may render judgment thereon, against the person or persons so served, for the costs remaining unpaid in the action for which the plaintiff is liable, together with the costs of the proceeding against such person or persons; and such judgment may be in his own name, or in that of the defendant, and may be enforced in the same manner as other judgments.(1863, c. 122, §89; Code 1868, c. 50, §47; 1881, c. 8, §47; Code 1923, c. 50, §47.)

§9. Fee Book Required.—The justice shall keep a fee book, or a memorandum or account upon his docket, so as to show underneath the title of each suit the costs made by each party, separately, for services rendered at the instance or request of such party, and to whom the same are due, whether to himself, the constable, witnesses, or other persons; and shall note, from time to time, which of the items are paid, so far as the facts may come to his knowledge.(1863, c. 133, §7; Code 1868, c. 137, §29; 1882, c. 129, §17; Code 1923, c. 137, §17.)

§10. What Costs to be Included in Judgment or Execution; What Costs to be Indorsed on Execution; How Collected.—The costs to be included in the judgment or execution are only those made by the party in whose favor the judgment is rendered, and which have been paid by him, or which he is bound to pay, if the same be not collected from the adverse party. But the costs made by the party against whom the judgment is rendered, and which he is bound to pay, may be separately indorsed or noted on the execution, which shall then, as far as such costs are concerned, be equivalent to a fee bill. When costs are included in an execution, or indorsed or noted thereon, it shall show the sum due each person, whether justice, constable, witness, or other person; and the costs so noted on the execution shall be collected and accounted for, by the officer in whose hands the execution is, at the same time and in the same manner as the costs included in the execution.(1863, c. 133, §8; Code 1868, c. 137, §30; 1882, c. 129, §18; Code 1923, c. 137, §18.)

§11. Fees of Justices in Criminal Cases.—Every justice shall be entitled to the following fees in all criminal cases and proceedings before him, and no other fees shall be taxed or charged by any justice in such cases and proceedings :

In all other cases the fees allowed in civil cases by law to other county officers for similar services.(1863, c. 132, §14; Code 1868, c. 137, §31; 1882, c. 129, §19; 1919, c. 63, §19 ; Code 1923, c. 137, §19; 1925, c. 55, §19.)

§12. Fees of Constables in Criminal Cases.—Every constable shall be entitled to the following fees in criminal cases:

In cases of search warrants and proceedings under article one, chapter sixty-two of this Code, the fees of constables shall be chargeable to the county, and shall be audited and paid as other claims of like nature by the county court.

In criminal cases, other than felony, such fees shall be charged and paid as provided in section fifteen, article five, chapter seven of this Code, and section eight, article eighteen of this chapter.(Code 1860, c. 184, §35; Code 1868, c. 137, §§33, 34; 1882, c. 129, §21; Code 1923, c. 137, §21.)

§13. Receipts for Fines and Costs.—When any money is paid to a justice of the peace on account of a fine, or fine and costs, imposed by him, he shall give to the person paying the same a receipt therefor, stating briefly but intelligibly for what purpose the money has been paid, showing separately the amount of the fine and the amount of the costs, the name of the defendant and the docket page upon which the case appears. These receipts shall be prepared and furnished to the justices by the state tax commissioner and shall be numbered and made out in triplicate, one copy to be delivered to the person paying over the money, one copy to be forwarded to the clerk of the county court by the justice, and one copy to be retained and to remain in the receipt book for the inspection of the state tax commissioner.(1925, c. 55, §19a.)

§14. Recovery of Fees Not Paid by Parties.—In all misdemeanor cases and all proceedings under search warrants and proceedings for recognizance or bond to keep the peace, when the fees prescribed in section eleven of this article are not paid by the parties, such fees shall be charged and recovered as provided in section fifteen, article five, chapter seven of this Code: Provided, however, That executions shall have been issued by such justice for all fines and costs imposed by him in criminal proceedings which are not paid by the parties and delivered to a constable of the county, and such constable shall collect the same by levy or otherwise if the same can be so collected, and shall return such executions to the justice issuing the same, showing how he has executed the same and the justice shall note such returns on his docket.

In all felony cases and proceedings in relation to felonies, the fees so charged by any justice as prescribed in section eleven of this article shall be audited and paid by the county court as other claims against the county.

No payment shall be made as provided herein until after the foregoing provisions have been complied with, and until after the claim has been submitted to the prosecuting attorney and his approval or disapproval noted thereon.(1863, c. 133, §3; Code 1868, c. 137, §32; 1882, c. 129, §20; 1919, c. 63, §20; Code 1923, c. 137, §20; 1925, c. 55, §20.)

§15. Disposition of Fines Collected.—All fines which accrue to the State, collected or paid in any proceeding before a justice, except as otherwise provided, shall immediately be paid, by the justice receiving the same, to the sheriff of the county; and at the time of making such payment the justice shall furnish to the sheriff a list of the persons fined and the amount collected from each person as a fine and as costs. If a justice fail to comply with any provision of this section, he shall forfeit twenty dollars for every such offense.(1863, c. 132, §10; Code 1868, c. 50, §229; 1872-3, c. 226, §165; 1881, c. 8, §229; 1882, c. 145, §229; Code 1923, c. 50, §229; 1925, c. 55, §19a.)

§16. Reports to County Clerk and State Tax Commissioner.—Every justice shall quarterly, on the first day of January, April, July and October, certify to the clerk of the county court of his county and the state tax commissioner a list of all fines imposed by him and a list of all fines that have been paid to him during the preceding quarter, giving the number of the receipt issued for each payment, and such as remain uncollected by him; and he shall also state in such list for which of such fines (if any) executions have not been returned, or returned unsatisfied, and for which (if any) executions have been returned satisfied and the money not paid to him, with the name of the person or officer so failing to return or pay, and such as have been paid by him to the sheriff. If any justice fail to comply with any of the provisions of this section, he shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than three hundred dollars.(1925, c. 55, §19a.)

§17. Other Sections of Code Applicable.—Sections twenty, twenty-four, twenty-five, twenty-six and twenty-seven, article one, chapter fifty-nine of this Code, in so far as they are applicable to justices and constables and not inconsistent with the provisions of this article, are hereby made applicable and shall govern as to making out and collecting fee bills herein authorized.

§1. Limits of, and Cases in Which Justice May Exercise, Criminal Jurisdiction; Penalties.—A justice shall have jurisdiction of the following offenses committed in his county, or on any river or creek adjoining thereto:

(a) In cases of assault and battery, unless the offense was committed on a sheriff or other officer or justice, or riotously, or with intent to commit a felony; and no compromise with the party injured shall affect or prevent the trial of such offense by the justice; and if a defendant be convicted of such offense he shall be fined not less than five nor more than fifty dollars;

(b) In cases of trespass to personal property; and, if a defendant be convicted of such offense, he shall be fined not less than five nor more than fifty dollars;

(c) In cases for the violation of section fourteen, article six, chapter sixty-one of this Code; and, upon the conviction of a defendant for a violation of any of the provisions of said section, he shall be punished as therein provided;

(d) In cases of adultery and fornication; and, if a defendant be convicted of such offense, he shall be fined twenty dollars;

(e) In cases of petit larceny; and, if a defendant be convicted of such offense, he shall be fined not less than ten nor more than thirty dollars, and may, at the discretion of the justice or jury trying the case, be imprisoned in the county jail not exceeding thirty days;

(f) In cases for the violation of article seven, chapter sixty-one of this Code; and upon the conviction of a defendant for a violation of any of the provisions of said section, he shall be punished as therein provided;

(g) In any case where the punishment is limited to a fine not exceeding ten dollars, or to imprisonment for not more than ten days.

Provided, however, That wherever a person has been convicted in the municipal or police court of any incorporated town or city, such conviction shall be a bar to any criminal proceeding before a justice for the same offense.(Const. 1863, art. 7, §9; 1863, c. 132; Code 1868, c. 50, §219; Const. 1872, as amended 1880, art. 8, §28 1872-3, c. 226, §160; 1881, c. 8, §§219, 220; 1882, c. 145, §219; 1891, c. 112, §219; Code 1923, c. 50, §219.)

§2. Warrant; When Not Required.—Proceedings before a justice shall be by warrant of arrest in the name of the State, except that when an offense of which the justice has jurisdiction is committed in his presence, or in that of a constable, either of them may forthwith apprehend the offender or cause him to be apprehended, and in such case the offender may be tried before the justice and dealt with according to law, without such warrant.(1863, c. 132, §§1, 2; Code 1868, c. 50, §221; 1872-3, c. 226, §161; 1881, c. 8, §221; Code 1923, c. 50, §221.)

§3. Direction and Execution of Warrant.—If the justice have jurisdiction, the warrant of arrest may be directed to any constable in the county in which the offense was committed, and the officer to whom it is directed may execute the same anywhere within his county, or on any river or creek adjoining thereto. It may be directed to the constable by name or official designation.(Code 1868, c. 50, §222; 1881, c. 8, §222; Code 1923, c. 50, §222.)

§4. Issuance of Warrant.—The warrant arrest shall be issued only on the information, under oath, of some credible person. It shall describe the offense alleged to have been committed, as heretofore required in such cases by law, and command the officer forthwith to apprehend the accused and bring him before the justice, to be dealt with according to law.(1863, c. 132, §4; Code 1868, c. 50, §223; 1872-3, c. 226, §162; 1881, c. 8, §223; Code 1923, c. 50, §223.)

§5. Witnesses.—The justice may also, by indorsement on the warrant or by subpoena, direct witnesses to be summoned, and may proceed against them as for contempt if they fail or refuse to attend or testify.(1863, c. 132, §4; Code 1868, c. 50, §224; 1881, c. 8, §224; Code 1923, c. 50, §224.)

§6. Continuance; Recognizance; Judgment Thereon.—On the appearance of the accused, the justice may proceed to try the case; but he may grant continuances from time to time, if the circumstances of the case require it. If a continuance be granted at the instance of the accused, the justice, if he sees fit, may require him to enter into a recognizance, with surety deemed sufficient, conditioned for his appearance at the time and place appointed for trial, to answer for the offense with which he is charged, and, if such recognizance be not given, may commit him to prison until the time appointed for trial, but such imprisonment shall not exceed five days. The accused, if such continuance be not at his instance, shall be discharged from custody on his own recognizance, or without a recognizance, as the justice shall deem proper. The justice may render judgment on any recognizance taken by him pursuant to this section.(1863, c. 132, §4; Code 1868, c. 50, §225; 1872-3, c. 226, §163; 1881, c. 8, §225; Code 1923, c. 50, §225.)

§7. Trial by Jury.—When the penalty authorized by law is a fine exceeding five dollars, or imprisonment, the accused shall be entitled to a trial by twelve jurors, or a less number if demanded, under the regulations respecting such trials in civil suits before justices; except that the jury shall be sworn well and truly to try the case between the State and the accused, and to give a true verdict according to the evidence, and that in drawing the names of jurors four more names shall be drawn than will be required after each side has exercised its right to two peremptory challenges. If the jury find the accused guilty, they shall, subject to the limitations pre scribed in section one of this article, ascertain the fine and term of imprisonment, if any, not exceeding ten days, unless the same be fixed by of law.(Const. 1863, art. 7, §10; 1863, c. 132, §§5, 6; Code 1868, c. 50, §226; Const. 1872, art. 3, §10; 1872-3, c. 226, §163; 1881, c. 8, §226; Code 1923, c. 50, §226.)

§8. Costs; Execution.—Whether the trial is by jury or not, if the judgment be against the accused, it shall be for the costs of the proceeding in addition to the fine and term of imprisonment imposed, and when the accused is sentenced to imprisonment, whether a fine be also imposed or not, or is imprisoned for nonpayment of a fine and costs, the jailer’s compensation for maintenance of the prisoner shall be included in the costs. Execution, to be collected out of the personal property of the accused, may be issued on such judgment for fine and costs, or for the costs alone, if the judgment be for imprisonment and costs without fine. Fee bills may be issued against the accused for costs incurred at his instance, including the jailer’s compensation, under the same regulations and with like effect as in civil suits.(1863, c. 132, §§8, 9; Code 1868, c. 50, §227; 1872-3, c. 226, §164; 1881, c. 8, §227; Code 1923, c. 50, §227.)

§9. Imprisonment for Nonpayment of Fine.—When a fine is imposed, whether with or without imprisonment, and whether execution be issued under the preceding section or not, the justice, if he see fit, may adjudge the offender to be imprisoned until such fine and all the costs are paid, but not exceeding ten days for that cause; and, if fine and imprisonment be imposed, the offender may be imprisoned for not exceeding ten days on account of the nonpayment of the fine and costs, in addition to the term of imprisonment imposed for the offense. When the offender is to be imprisoned it shall be in the county jail unless otherwise provided by law, under a warrant of commitment to be issued by the justice. And if he is not in custody, the justice may issue a warrant for his arrest and commitment in such jail: Provided, however, That whenever any able-bodied male person over the age of sixteen years shall be sentenced to imprisonment in the county jail, such sentence shall conform to the provisions of article fifteen, chapter seventeen of this Code.(1863, c. 132, §8; Code 1868, c. 50, §228; 1881, c. 8, §228; Code 1923, c. 50, §228.)

§10. Appeals in Criminal Cases; Recognizances; Procedure in Circuit Court.—Every person sentenced to imprisonment by the judgment of a justice, or to the payment of a fine of ten dollars or more (and in no case shall a judgment for a fine of less than ten dollars be given by a justice if the defendant, his agent or attorney, object thereto), shall be allowed an appeal to the circuit court of the county upon application therefor within a reasonable time after such judgment is entered. But such defendant shall not be released from custody until he shall have entered into a recognizance before the justice, with surety deemed sufficient, to appear before the said court on the first day of the next term thereof, to answer for the offense wherewith he is charged, and not depart thence without leave of the court. If such appeal be taken, the warrant of arrest (if there be any), the transcript of the judgment, the recognizance (if there be any) and other papers of the case shall be forthwith delivered by the justice to the clerk of the court, and the court shall proceed to try the case as upon indictment or presentment, and render such judgment, without remanding the case, as the law and the evidence may require. If the judgment be against the accused, it shall include the costs incurred in the proceedings before the justice as well as in such court, including a fee of ten dollars to the prosecuting attorney, and the jailer’s fees, if any.(1863, c. 132, §§11, 12; Code 1868, c. 50, §230; 1872-3, c. 226, §166; 1881, c. 8, §230; 1882, c. 145, §230; Code 1923, c. 50, §230.)

§11. Provisions for Civil Proceedings Made Applicable.—The provisions of this chapter concerning civil proceedings and the fees and costs therein provided shall apply to proceedings under this article except where it is otherwise expressly provided.