§ 2878. Service of summons. Personal service of the summons must be made by delivering a copy thereof to the defendant; except where it is specially prescribed in this chapter that personal service may be made by delivering a copy to another person. Where service of a summons is personal, it must be made at least six days before the time of appearance specified therein; except where it is accompanied with an order of arrest.

§ 2879. Id.; upon a corporation. Where the defendant to be served is a corporation, the summons may be personally served upon it by delivering a copy thereof to an officer or person, to whom a copy of the summons in an action, brought against the corporation in the supreme court, might be delivered, as prescribed in sections 431 and 432 of this act; or, to any director or trustee of the corporation, by whatever official title he is called.

2880. Id.; special provision relating to railroad corporations.Where the defendant to be served is a railroad corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last section, it may be personally served, by delivering a copy thereof to a local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of the corporation, residing in the county; unless, at least thirty days before it was issued, the corporation. had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it, may be served; in which case the summons may be personally served by delivering a copy to the person so designated. [AM'D BY CHAP. 511 OF 1900. In effect Sept. 1, 1900.]

§ 2881. Id.; relating to express companies. Where the defendant to be served is a corporation, association, partnership or person doing busi ness in the state as an express company or an insurance company, and no person resides in the county to whom a copy of the summons may be delivered, as prescribed in the foregoing sections of this article, it may be personally served on the express company by delivering a copy thereof to any local or general agent to receive freight, or parcels, route agent, or messenger of the defendant, residing in the county, and on any insurance company by delivering a copy thereof to any local or general agent of the defendant, residing in the county; unless at least thirty days before it was issued, the defendant had filed in the office of the clerk of the county, a written instrument designating a person residing in the county, upon whom process to be issued by a justice of the peace against the defendant may be served; in which case the summons may be personally served by delivering a copy thereof to the person so designated. [AM'D BY CHAP. 349 OF 1895. In effect Sept. 1, 1895.]

§ 2882. Last two sections qualified. Where a person has been designated as prescribed in either of the last two sections, and the designation has been revoked, or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the county; or that he cannot, after due diligence, be found within the county, so as to deliver a copy of the summons to him; the original summons, or the second or third summons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation.

§ 2883. Second and third summons; effect thereof. Where it appears, by the return of the constable, to whom a summons has been duly delivered for service, that it was not served for any cause, a second summons may be issued by the same justice, in the same action, within twenty days after the first summons was issued; and, upon the like return thereof,

a third summons may be issued, within twenty days after the second was issued. The second or the third summons, as the case may be, relates back to the time when the first summons was issued; and, with respect to all proceedings before actual service, the service thereof has the same effect, as if the first summons had been seasonably served. For the purpose of issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof.

§ 2884. Where name of defendant is unknown. Where the plaintiff is ignorant of the name, or part of the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, identifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the insertion of the true or full name, in place of the fictitious name, or part of a name; and all subsequent proceedings must be taken under the name so inserted.

§ 2885. Return of summons. A constable who serves a summons, must at or before the time when the same is returnable, make and deliver to the justice a written return thereof, under his hand stating the time when, and the manner in which, he served it. A constable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it.

ARTICLE SECOND.

APPEARANCE OF PARTIES.

SECTION 2886. Parties may appear in person or by attorney. 2887. Guardian ad litem for infant plaintiff.

2888. Id.; for infant defendant.

2889. When constable, etc., may not act as attorney.

2890. Authority of attorney; how proved.

2891. Plaintiff to prove his case.

2892. Defendant may offer to compromise proceedings thereupon.

2893. Justice to wait one hour.

§ 2886. Parties may appear in person or by attorney. A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same, in person or by attorney, at his election, 'nless he has been judicially declared to be incompetent to manage his affairs.

§ 2887. Guardian ad litem for infant plaintiff. Before a summons is issued in behalf of, or an issue is joined without summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice before his appointment. The guardian so appointed is responsible for the costs.

§ 2888. Id.; for infant defendant. After the service and return of a summons against an infant defendant, no other proceeding shall be taken in the action until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the jus

If the defendant does

tice must appoint a proper person for that purpose. not appear upon the return of the summons, or if he neglects or refuses to nominate, the justice may, on the application of the plaintiff, appoint any proper person as his guardian. The written consent of the person so appointed must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs.

$2889. When constable, etc., may not act as attorney. Subject to the provisions of sections 63 and 64 of this act, any person, other than the constable who served the summons or the venire, or the law partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace.

§ 2890. Authority of attorney; how proved. The attorney's authority may be conferred orally or in writing; but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted by the adverse party, or proved by the affidavit or oral testimony of himself, or another.

§ 2891. Plaintiff to prove his case. If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case.

§ 2892. Defendant may offer to compromise; proceedings thereupon. Except in an action to recover a chattel, the defendant may, upon the return of the summons and before answering, file with the justice a written offer to allow judgment to be taken against him for a sum therein specified, with costs. If there are two or more defendants, and the action can be severed, a like offer can be made by one or more of the defendants, against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice may render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time.

§ 2893. Justice to wait one hour. Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return unless the parties sooner appear.

ARTICLE THIRD.

ORDER OF ARREST.

SECTION 2894. Order of arrest; in what cases it may be granted.

2895. Id.; in what actions.

2896. Id.; upon what papers.

2897. Id.; its contents.

2898. Duty of constable.

2899. Return. When plaintiff notified must appear.

2900. Constable to keep defendant in custody.

2901. Motion to discharge from arrest.

2902. Effect of discharging defendant.

2903. When plaintiff must prove extrinsic facts.

2904. Privilege from arrest.

§ 2894. Order of arrest; in what cases it may be granted At the time when the summons is issued, in an action specified in the next section, the justice who issues the summons must, upon the application of the plain

tiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases:

1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or if there are two or more plaintiffs, where all are non-residents thereof.

3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto.

But such an order cannot be granted, where the defendant, against whom it is applied for, is a female.

§ 2895. Id.; in what actions. An order of arrest shall not be granted, except where the action is brought for one or raore of the following causes: 1. To recover a fine or penalty.

2. To recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury to property, including the wrongful taking, detention, or conversion of personal property; misconduct or neglect in office, or in a professional employment; fraud; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel.

3. To recover for money received, or to recover a chattel; where it appears that the money was received, or that the chattel was embezzled or fraudulently misapplied by a public officer, or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment; or by a factor, agent, broker, or other person in a fiduciary capacity.

§ 2896. Id; upon what papers. Where it appears to the justice, by the affidavit of the plaintiff or another person, that a sufficient cause of action exists, against the defendant, and that the case is within the provisions of the last two sections, he must grant the order of arrest. But before granting it, he must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least one hundred dollars.

§ 2897. Id.; its contents. The order must be subscribed by the justice and indorsed upon or attached to the summons. It must briefly recite the ground of arrest; and it must direct the constable, who serves the summons, to arrest the defendant; to bring him forthwith before the justice; and to notify the plaintiff of the arrest, if he can do so with reasonable diligence.

§ 2898. Duty of constable. The constable must, at the time of serving the summons, execute the order of arrest, by arresting the defendant, and taking him forthwith before the justice. If the justice is absent, or unable to try the action, the constable must forthwith take the defendant before another justice of the same town or city; who must take cognizance of the action, and proceed therein, as if the summons had been issued, and the order of arrest had been granted by him.

§ 2899. Return. When plaintiff notified must appear. The constable, executing the order of arrest must forthwith deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff, or that he could not do so, with reasonable diligence. If he returns that he has notified the plaintiff, the latter must appear within one hour after the

S$ 2900-2904. defendant is brought before the justice; otherwise judgment of nonsuit must be rendered against him.

§ 2900. Constable to keep defendant in custody. The constable executing the order, or another constable, by direction of the justice, must keep the defendant in custody, until he is discharged by the order of the justice, or judgment is rendered in his favor; but the detention shall not, in any case, exceed twelve hours from the time when the defendant is brought before the justice; unless, within that time, a venire is issued, or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant.

§ 2901. Motion to discharge from arrest. A defendant, arrested as prescribed in this article, may, without notice, upon the appearance of the plaintiff before the justice, or at any time afterwards before judgment, upon two days' notice given personally to the plaintiff, or to his agent or attorney who appeared for him before the justice, apply to the justice for an order, discharging him from the arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The justice must grant the application, where it appears that the case is not within the provisions of sections 2894 and 2895 of this act. The justice must also, upon the defendant's application, grant an order discharging him from arrest, if the plaintiff fails to take out, from the justice, an execution upon a judgment in his favor, before the expiration of one hour after he is entitled thereto.

§ 2902. Effect of discharging defendant. The discharge of the defendant from arrest, before judgment, as prescribed in the last section, or in section 2963 of this act, does not affect the jurisdiction of the justice over the action, which must proceed, as if it had been commenced in the ordinary manner. His discharge from arrest, after judgment, as prescribed in the last section, does not affect the execution.

§ 2903. When plaintiff must prove extrinsic facts. Where an order of arrest has been granted and executed, in a case specified in subdivision third of section 2895 of this act, the plaintiff cannot recover upon a default, and the defendant is entitled to judgment upon a trial, unless the plaintiff establishes all the matters of fact, which are required, by that subdivision, to entitle him to an order of arrest.

§ 2904. Privilege from arrest. This article does not abridge or otherwise affect a privilege from arrest given by law, or a right of action for the breach thereof. A privileged person is entitled to be discharged from arrest, by the order of the justice before whom he is brought, upon proof, by affidavit, of the facts entitling him to a discharge; or he may apply for and obtain an orde for his discharge, as prescribed in section 564 of this act

ARTICLE FOURTH.

ATTACHMENT OF PROPERTY.

RCTION 2905. In what actions, warrant of attachment may be granted. 2906. What must be shown to procure a warrant.

2907. Warrant; form and contents thereof.