delivery of the undertaking, the defendant may maintain an action against the plaintiff to recover his costs before the justice. From Co. Proc. § 57. See § 1352, Consol. Act. § 2955. Effect of failure to give undertaking. If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question. From Co. Proc. § 58. See § 1353, Consol. Act. § 2956. When title comes in question on plaintiff's own showing. If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly. From Co. Proc. § 59. See § 1354, Consol. Act. § 2957. Pleadings in new action; undertaking before justice, when applicable. In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was replevied, in the justice's court, each undertaking given in the justice's court, continues to be valid in, and is applicable to the new action. From Co. Proc. § 60. See § 1355, Consol. Act. § 2958. Answer of title as to one of several causes of action. Where, in an action before a justice, the plaintiff has two or more causes of action, and the defence, that the title to real property will come in question, is interposed as to one or more, but not to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper court; and the original action must proceed as to the other causes. From Co. Proc. § 62 See 1356, Consol. Act. TITLE IV. Proceedings between the joinder of issue and the trial. ARTICLE 1. Adjournments. 2. Compelling the attendance of a witness. 3. Commission to take testimony. ARTICLE FIRST. Adjournments. SEC. 2959. Adjournment by justice. 2960. Adjournment on application of plaintiff. 2961. Adjournment on application of defendant. 2962. Id., undertaking thereupon. 2963. Undertaking to procure discharge of defendant from custody. 2965. Subsequent adjournments. 2966. Justice may impose conditions upon adjournment. 2967. Adjournment when warrant to attach absent witness is issued. 2968. Adjournment not to exceed ninety days. § 2959. Adjournment by justice. At the time of the return of a summons, or of the joinder of issue without process. but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjournment shall be made. From 2 R. S. 238, Part 3, ch. 2, tit. 4, §§ 67 and 68 (2 Edm. 254). § 2960. Adjournment on application of plaintiff. At the time of the return of a summons, or of the joinder of issue without process. the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial. From Id., § 69 and sub. 3 of § 70 (2 Edm. 254, 255). § 2961. Adjournment on application of defendant. At the time of the joinder of issue, the justice must, upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements: 1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness, specified by him. 2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel. Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness. From Id., § 74 and part of sub. 2 of § 70. § 2962. Id.; undertaking thereupon. The undertaking prescribed in the last section must be executed by one or more sureties, approved by the justice; and must be to the effect that, if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, upon demand, pay to the plaintiff the sum due upon the judgment. From ch. 300 of 1831, § 40 (4 Edm. 474). § 2963. Undertaking to procure discharge of defendant from custody. Where the defendant has been arrested, the trial must be adjourned upon his application, upon the same terms, and in the same manner, as where he has not been arrested; except that the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment. must continue, during the time of adjournment, in the custody of the constable; unless he gives an undertaking to the plaintiff, with one or more sureties, approved by the justice, to the effect that if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot be found: the sureties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given, the defendant must be discharged from custody. From 2 R. S. 238, §§ 71 and 77 and part of § 76 (2 Edm. 255). § 2964. When defendant to be discharged. If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. From Id., § 72, first clause. § 2965. Subsequent adjournments. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security. if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise. to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testimony or witness. But if the defendant has given an undertaking upon a former adjournment, a new undertaking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. From Id., § 75, and last clause of § 76. § 2966. Justice may impose conditions upon adjourn ment. Upon granting the defendant's application for an adjournment, where the trial has been once adjourned, or where the plaintiff is a non-resi dent of the county, the justice may, in his discretion, upon the plaintiff s application, direct that any witness on the part of the plaintiff, who is in attendance be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing certified by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. From Id., § 70, sub. 2, last clause. § 2967. Adjournment when warrant to attach absent witness is issued. Where, upon a trial, a warrant of attachment is issued to compel the attendance of a witness, who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial, for such a time as he deems necessary for the return of the warrant, not exceeding five days. See § 3003. § 2968. Adjournment not to exceed ninety days. The trial of an action shall not be adjourned to a time beyond ninety days from the joinder of issue, without the consent of both parties, except in one of the following cases: 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesman, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jur to be procured. 2. Where a jury has not been able to agree upon a verdict and is aischarged, the trial may be adjourned a sufficient time beyond the ninety days to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. From Id., last four words of § 74 and § 78. ARTICLE SECOND. Corspelling the Attendance of a Witness. SEC. 2969. When justice may issue subpœna. 2970. Subpœna; how served. 2971. Warrant of attachment against defaulting witness 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify 2976. Minute of conviction. 2977. Execution thereupon. 2978. Money collected; how applied. 2979. Defaulting witness liable for damages. § 2969. When justice may issue subpoena. A justice of the peace may issue a subpoena to compel a witness to attend, in the county where the justice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness except as otherwise expressly prescribed by law to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying therefor proves, by his own oath, or the oath of another person, that an 'action is actually pending before the other justice. From 2 R. S. 240, Part 3, ch. 2, tit. 4, §§ 80 and 81 (2 Edm. 257). § 2970. Subpoena; how served. A subpoena may be served by a constable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying or tendering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is presumptive evidence of the facts therein stated. From Id., § 82. § 2971. Warrant of attachment against defaulting wit ness. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena; and no just cause for the neglect or refusal is shown to exist; and the party, in whose behalf the witness was subpœnaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the attendance of the witness. From Id., 83, as amended by ch. 235 of 1834. § 2972. Id.; how executed; fees thereupon. Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it, must be paid by the person against whom it is issued, |