Issue of

иров.

Second. That the property is wrongfully detained by the defendant.

Third. That the same has not been taken for any tax, assessment or fine levied by virtue of any law of this state, or seized under any execution or attachment, against the goods and chattels of such plaintiff, or if so seized, that they are by statute exempt from such seizure; and

Fourth. The actual value of the property according to his best knowledge and belief.

Sec. 23. The county clerks shall thereupon issue a writ of rewrit there- plevin which shall be substantially the same as provided in section six, chapter one hundred and twenty-four of the revised statutes, to which the affidavit shall be annexed.

Sheriff to seize and

Sec. 24. Upon the receipt of such writ with the affidavit anmake deliv- nexed, and a bond executed to the sheriff and his assigns, with the property on addition of his name of office, with one or more sufficient sureties

erance of

receiving

from plain

cert'in bond to be approved of [by] such officer, in a penalty not less than one wiff. hundred dollars, and in at least double the value of the property, as stated in the affidavit, conditioned that the plaintiff will prosecute the suit to effect, and that if the defendant recover judgment against him in the action, he will return the same property, if return thereof be adjudged, and will pay the defendant such sum of money as may be recovered by such defendant against him in the said action; the sheriff shall forthwith take the property, if it be in the possession of the defendant, or his agent, and deliver it to the plaintiff.

Proceedings

in county

courts to conform to

circuits as

far as prac

ticable.

Sec. 25. The proceedings in actions of replevin in the county in replevin courts, had subsequent to those required in the preceding sections, shall be the same in all respects as is provided for actions of replev practice in in in the circuit court, in title twenty-four of the revised statutes of 1846, so far as the provisions thereof can be made to apply, and are consistent with the practice of said county courts, herein established; but no exceptions shall be taken in the county court to the sufficiency of the sureties taken by the sheriff or his deputy, or other officer in any such action; but the officer taking the same shall be liable for the sufficiency thereof; nor shall it be necessary Jury not ne- that the issue in any action of replevin in the county court shall

cessary. be tried by a jury, unless one of the parties demand the same. It

shall not be necessary for the officer executing the writ, to cause the property seized to be appraised, nor shall the bond be delivered to the defendant unless the property specified in the writ or any part thereof, be seized or delivered to the plaintiff.

Of Pleading in Civil Actions.

claration.

Sec. 26. All causes not commenced by an amicable appearance Form of deof the parties thereto, or by warrant, attachment or writ of replevin, shall be commenced by filing with the clerk, a declaration therein, made in writing by the plaintiff in person, or by agent, or attorney, which said declaration shall be a brief statement of the form of the action, and of the plaintiff's claim or demand, and in all actions arising upon contract, may be made without regard to any form of declaration heretofore used, but such declaration shall in all cases set forth the nature of the plaintiff's claim or demand; and if for money due upon a contract, the amount due after allowing all credits to which the defendant is entitled, shall be the damages claimed therein.

Pleadings &

issue.

Sec. 27. At the time of the first appearance of the parties before the court, either upon the return of process, or their voluntary joining of appearance to join issue, the pleadings of the parties shall be made, unless the court shall allow further time upon cause shown. When both parties have appeared, an issue shall be joined before an adjournment shall be had, (except as aforesaid) and when the defendant shall have appeared upon a warrant, the pleadings shall be made within such reasonable time as the court shall allow for that purpose.

visions of R

to pleas and set off applicable to Co. courts.

Sec. 28. The twenty-second, twenty-third, twenty-fourth and Certain protwenty-sixth sections of chapter ninety-nine of the revised statutes S, relative in relation to pleas and set-off shall apply to county courts. Sec. 29. If a defendant neglect to set-off any demand which according to the provisions of this act might have been allowed to him glect to set on the trial of the cause, he shall be forever thereafter precluded from recovering costs in any action brought to recover such demand, or any part thereof, which might have been set-off.

Effect of ne

off dem'nda

sented witha

Sec. 30. In all actions founded in whole or in part on any paper, Documents writing, book of account or record, the party making the same, to be preshall with his declaration, present such paper, writing, account or declaration. record, or a copy thereof, if in his possession or under his control,

Continuan

res.

by confes

and if otherwise, he shall state it, that the court may lend its aid in procuring the same.

Of Continuances.

Sec. 31. In all cases if the plaintiff or defendant shall make it appear to the satisfaction of the court, by his own oath or other le gal testimony, that he cannot safely proceed to trial for want of some material testimony or witness, naming such witness, the court shall order a continuance of the cause for such reasonable time, so often as he shali deem it necessary: Provided, That a party claiming a second or subsequent continuance, shall further make it ap pear to the satisfaction of the court, that he has used reasonble diligence to procure such testimony or witness since the last continuance; and provided further, that every continuance shall be made to a day in term.

Of Judgments by Confession.

Proceedings Sec. 32. Judgments may be entered in any county court in va in judgem's cation as well as in term, upon a plea of confession signed by an attorney of such court, although there be no suit then pending be tween the parties, if the following provisions be complied with:

sue-when

court.

First. The authority for confessing such judgement shall be in some proper instrument distinct from that containing the bond, contract or other evidence of the demand for which said judgment was confessed.

Second. Such authority shall be produced by such attorney and shall be filed by the clerk of the court at the time of entering up such judgment. Judgments entered under the provisions of this section, may be signed by the county judge or any circuit court commis

sioner.

Of Trials by Court or Jury.

Sec. 33. If an issue of law be made in the cause it shall be tried Trial of is by the court; if an issue of fact, it shall on demand of either party by jury or as hereinafter provided, be tried by a jury, to consist of not less than six nor more than twelve, at the option of the party demanding the same, and if no jury be demanded by either party, the issue shall be tried by the court.

Sec. 34. The demand for a jury shall be made after issue is

jury, when to be paid, &c.

made, fees

List of ju

oined, and shal! be accompanied by the payment into court, of one Demand for dollar for each juror demanded; (such fee to be taxed against the party losing.) on such demand the court shall direct the clerk to make an entry of such demand upon the record and shall upon the day to which the cause stands adjourned, direct an officer or disinterested person present, to write down the names of three times the number of persons required for the jury, who are qualified to servers. as jurors in the circuit court, and not of kin to either party, nor in any manner interested in the cause; such officer or other person being by the court first sworn to select such names without partiality to either party. The list being made, the parties shall each alternately strike out a name until the requisite number be left, and if either party shall refuse or neglect to strike out on his part, the court or clerk may strike out the names in his stead; a venire shall thereupon be issued by the court for the persons thus selected, and Venire, delivered to an officer who shall forthwith proceed to summon the jury therein named. If any of the jurors named in such venire, shall not be found, or shall fail to appear according to the summons, or if there shall be any legal objections to any who shall appear, the court shall direct the officer to summon a sufficent number of Talismen.

talismen to supply the deficiency; but in all cases the parties may agree upon any number of persons to try the cause.

&c.

Sec. 35. When a jury shall have been regularly empannelled and Hearing of sworn, they shall sit together and hear the testimony and charge of jury verdict, the court, and after deliberation render their verdict according to law and evidence given them in open court.

how tried.

Sec. 36. In cases of appeal from a justice's court, now pending Issues on or hereafter to be brought in the county court, if the appeal be not appeals, dismiss d, and there be an issue of law made in the cause, it shall be tried by the court, if an issue of fact, it shall on demand of either party, be tried by a jury of the same number, and to be called and empannelled in the same manner as hereinbefore provided; but if no jury be demanded by either party, the issue shall be tried by the

court.

Sec. 37. The fees of the sheriff for his services in drawing, summoning and attending the jury, shall be twenty-five cents for each juror, to be taxed as costs of suit.

Sheriff fecs.

Stay of ex

judgements.

Of Executions and staying Executions on Judgments.

Sec. 38. The party against whom any judgment may be renecutions on dered in the county court, whether on confession or on trial, may at any time within ten days from the date of such judgment, stay the execution thereof by filing with the clerk of the court, a bond or other security in writing, to the plaintiff, executed by one or more persons to be approved by the county judge, for the payment of the judgment and interest within three months from the commencement or the suit, and if upon an appeal from the day of filing the return from the justice with the county clerk, if such judgment shall not exceed twenty-five dollars, exclusive of costs; within six months, if such judgment exceed twenty-five dollars, and is under fifty dollars, exclusive of costs; and within ten modths if said judgment exceed fifty dollars; and paying in either case to the said clerk, the costs for which judgment was rendered; and if the amount of such judgment and interest be not paid within the time limited for such stay, execution may issue against the party to such judgment, and the person or persons named in such bond or security; Provided, That this section shall not apply to any judgment against any attorney at law, justice of the peace, sheriff, constable or other officer. for money collected, nor to any other individual for money deposi ted with him, nor to any judgment for costs only, nor to actions of replevin, but in all such cases, execution may issue immediately.

Proceedings

of executi'n

moves from

Sec. 39. In all cases where security for the stay of execution when stay shall be put in upon any judgment, rendered in the county court, Gies or re- and the person becoming such security shall die or remove from the county. the county in which such judgment is obtained, before the expiration of the time for which said execution is stayed, the plaintif his agent or attorney, may serve a notice in writing upon the defendant, informing him of the facts in relation to the decease or removal of the surety. Ten days after the return of said notice to the county clerk, the plaintiff may have execution against the goods and chattels of the defendant and his surety, unless before the expiration of said ten days the defendant shall give further security, for the stay of execution satisfactory to the court. Epon the return of said notice to the clerk, affidavit of the service thereof shall be made by the person serving the same.