and cause them to be filed with the Clerk; and the Sheriff shall thereupon be exonerated from liability. A. D. 1870. Propertyhow taken if inclosure or SEC. 78. If the property, or any part thereof, be concealed in a building or enclosure, the Constable shall publicly demand its delivery. If it concealed in be not delivered, he shall cause the building or inclosure to be broken building. open, and take the property into his possession; and, if necessary, he may call to his aid the power of his County. SEC. 79. When a Constable shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same. Property how kept. perty by third person. SEC. 80. If the property taken be claimed by any other person than Claim of prothe defendant or his agent, and such person shall make affidavit of his title thereto, and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the Constable, the Constable shall not be bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, shall indemnify the Constable against such claim, by an undertaking, executed by two sufficient sureties, accompanied by their affidavits, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, and freeholders and householders of the County. And no claim to such property, by any other person than the defendant or his agent, shall be valid against the Constable, unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity. The actions so commenced shall be tried in all respects as other actions are tried in Trial Justices' Courts. The judgment for the Plaintiff may be for the possession, or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the Plaintiff, and the Defendant claim a return thereof, judgment for the Defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgment be for the delivery of the possession of personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof cannot be had. The execution shall be returnable within sixty days after its receipt by the officer, to the Trial Justice who issued the same. In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to Plaintiff, or the Defendant, by answer, shall claim a return thereof, the Trial Justice or Jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the Trial Justice shall render judgment accordingly, with costs and disbursements. If it shall appear by the return of a Constable that he has taken the property described in the Plaintiff's affidavit, and that Defendant cannot be found, and has no last place of abode in said County, or that no agent A. D. 1870. No jurisdiction in certain cases. Answer of title. of Defendant could be found on whom service could be made, the Trial Justice may proceed with the cause in the same manner as though there had been a personal service. For the indorsement on said affidavit the Trial Justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit. SEC. 81. But no Trial Justice shall have cognizance of a civil action : 1. In which the State is a party, excepting for penalties not exceeding one hundred dollars. 2. Nor where the title to real property shall come in question. 3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction; where the damages claimed exceed one hundred dollars. 4. Nor of an action against an executor or administrator as such. SEC. 82. In every action brought in a Court of Trial Justice, where the title to real property shall come in question, the Defendant may, either with or without other matter of defence, set forth in his answer any matter showing that such title will come in question. Such answer shall be in writing, signed by the Defendant or his attorney, and delivered to the Trial Justice. The Trial Justice shall thereupon countersign the same, and deliver it to the Plaintiff. SEC. 83. At the time of answering the Defendant shall deliver to the Written un- Trial Justice a written undertaking, executed by at least one sufficient dertaking to be given. surety, and approved by the Trial Justice, to the effect that if the Plaintiff shall, within twenty days thereafter, deposit with the Trial Justice a summons and complaint in an action in the Circuit Court for the same cause, the Defendant will, within twenty days after such deposit, give an admission in writing of the service thereof. Action discontinued. Costs. Where the defendant was arrested in the action before the Trial Justice, the undertaking shall further provide, that he will, at all times, render himself amenable to the process of the Court during the pending of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable not exceeding one hundred dollars. SEC. 84. Upon the delivery of the undertaking to the Trial Justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him if he recover costs in the action to be brought for the same cause in the Supreme Court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the Trial Justice may be recovered of the plaintiff. SEC. 85. If the undertaking be not delivered to the Trial Justice, he If undertak- shall have jurisdiction of the cause, and shall proceed therein; and the ing not given. defendant shall be precluded, in his defence, from drawing the title in question. The same. SEC. 86. If, however, it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the Trial Justice shall dismiss the action and render judgment against the plaintiff for the costs. SEC. 87. When a suit before a Trial Justice shall be discontinued by Another ac- the delivery of an answer and undertaking, as provided in Sections eightytion may be brought. two, eighty-three, eighty-four, the plaintiff may prosecute an action for the same cause in the Circuit Court, and shall complain for the same cause of action only on which he relied before the Trial Justice; and the answer of the defendant shall set up the same defence only which he made before the Trial Justice. A. D. 1870. SEC. 88. If the judgment in the Circuit Court be for the plaintiff, he Costs. shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the Judge certify that the title to real property came in question on the trial. cause of ac Trans SEC. 89. If, in an action before a Trial Justice, the plaintiff have Answer of tiseveral causes of action, to one of which the defence of title to real tle as to one property shall be interposed, and as to such cause the defendant shall tion. fer of cases to deliver and answer an undertaking, as provided in Sections eighty-two Circuit Court. and eighty-three, and the Trial Justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the Circuit Court. As to the other causes of action, the Trial Justice may continue his proceedings. Docketing Justices. SEC. 90. A Trial Justice, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may judgment of be filed and docketed in the office of the Clerk of the County where the judgment was rendered. The time of the receipt of the transcript by the Clerk shall be noted thereon and entered in the docket; and from that time the judgment shall be a judgment of the County Court. A certified transcript of such judgment may be filed and docketed in the Clerk's office of any other County, and with the like effect, in every respect, as in the County where the judgment was rendered. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, shall be so docketed or enforced against real property. SEC. 91. The following rules shall be observed in the Courts of Trial Justices: 1. The pleadings in these Courts are: 1. The complaint by the plaintiff; 2. The answer by the defendant. 2. The pleadings may be oral or in writing; if oral, the substance of them shall be entered by the Trial Justice in his docket; if in writing, they shall be filed by him, and a reference to them shall be made in the docket. 3. The complaint shall state, in a plain and direct manner, the facts constituting the cause of action. 4. The answer may contain a denial of the complaint, or any part thereof, and also a notice, in a plain and direct manner, of any facts constituting a defence or counter claim. 5. 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. 6. Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defence, although it be taken as true. 7. If the Court deem the objection well founded, it shall order the pleading to be amended; and if the party refuse to amend, the defective pleading shall be disregarded. Rules. A. D. 1870. 8. In case a defendant does not appear and answer, the plaintiff cannot recover without proving his case. 9. In an action or defence founded upon an account, or an instrument for the payment of money only, it shall be sufficient for a party to deliver the account or instrument to the Court, and to state that there is due to him thereon, from the adverse party, a specified sum, which he claims to recover or set off. 10. A variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the Court shall be satisfied that the adverse party has been misled to his prejudice thereby. 11. The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when, by such amendment, substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment shall be granted. The Court may also, in its discretion, require, as a condition of an amendment, the payment of costs to the adverse party. 12. Execution may be issued on a judgment, heretofore or hereafter rendered in Trial Justice's Court, at any time within five years after the rendition thereof, and shall be returnable sixty days from the date of the same. 13. If the judgment be docketed with the Clerk of the Circuit Court, the execution shall be issued by him to the Sheriff of the County, and have the same effect, and be executed in the same manner, as other executions and judgments of the Circuit Court. 14. The Court may, at the joining of the issue, require either party, at the request of the other, at that or some other specified time, to exhibit his account, or state the nature thereof, as far forth as may be in his power, and, in case of his default, preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated. 15. The provisions of this Act respecting forms of action, parties to actions, the rules of evidence, the times of commencing actions, and the service of process upon corporations, shall apply to these Courts. The defendant may, on the return of process, and before answering, make an offer in writing to allow judgment to be taken against him for an amount, to be stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceedings shall be had in the action, determine whether he will accept or reject such offer. If he accept the offer, and give notice thereof in writing, the Trial Justice shall file the offer and the acceptance thereof, and render judgment accordingly. If notice of acceptance be not given, and if the Plaintiff fail to obtain judg ment for a greater amount, exclusive of costs, than has been specified in the offer, he shall not recover costs, but shall pay to the Defendant his costs accruing subsequent to the offer. SEC. 92. Distinction between actions at law and suits in equity abolished. 93. Parties, how designated. between ас equity abol SEC. 92. The distinction between actions at law and suits in equity, Distinction and the forms of all such actions and suits, heretofore existing, are abol- tions at law ished; and there shall be in this State, hereafter, but one form of action and suits in for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action. SEC. 93. In such action, the party complaining shall be known as the Parties, how plaintiff, and the adverse party as the defendant. ished. designated. Actions SEC. 94. No action shall be brought upon a judgment rendered in any Court in this State, except a Court of Trial Justice, between the same par- Judgments. ties, without leave of the Court, for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a Trial Justice shall be brought in the same County within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the County, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed. SEC. 95. Feigned issues are abolished; and instead thereof, in the cases where the power now exists to order a feigned issue, or when a question ed. on Feigned isabolish sues |