CHAPTER L.

(Acts 1881, p. 50.)

OF THE POWERS, DUTIES AND LIABILITIES OF JUSTICES AND CONSTABLES, AND THE PROCEEDINGS IN CIVIL SUITS,

AND IN THE TRIAL OF OFFENSES OF WHICH

JUSTICES HAVE JURISDICTION.

OF THE CIVIL JURISDICTION OF JUSTICES.

1. The civil jurisdiction of a justice of the peace shail extend throughout the county in which the district is for which he was elected.

2. A justice of one district may issue a summons to the defendant to appear before the justice of another district in the same county if the suit be cognizable by the latter.

3. If a justice be under any disability to act in a case before him, any other justice in the same county not disqualified under the provisions of section fourteen of this chapter, may exercise the powers of a justice in such case.

4. Where any oath may lawfully be administered, or affidavit or deposition taken within any county, it may be done by a justice therein, unless otherwise expressly provided by law.

5. A justice under such regulations as are prescribed by law may take within his county the acknowledgment of deeds and other writings, and the privy examination of married women respecting the same.

6. Where the acknowledgment of any deed or other writing, or the privy examination of a married woman respecting the same has been heretofore taken by any justice out of his township at a time when it should have been taken therein, or it does not appear by the certificate of the justice that such acknowledgment or privy examination was taken within his township, the same shall nevertheless be sufficient, unless there be other lawful objection thereto.

7. And the record of any deed or other writing made upon any such acknowledgment or examination, as is mentioned in the preceding section, is hereby legalized and made as valid and binding in all respects as if such acknowledgment had been taken and certified by a justice within his township

8. The jurisdiction of justices within their several districts and counties shall extend to 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, 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.

9. They shall have jurisdiction as hereinafter provided in case of the unlawful detention of real estate situated within their respective

counties.

10. A justice shall have jurisdiction of actions for trespass on real estate, or damages to the same, or to rights pertaining thereto, if the damages claimed do not exceed three hundred dollars and the cause of action arose in his county. But, such actions and cases of the unlawful detention of real estate excepted, he shall not have jurisdiction of any suit in which the title to real estate is sought to be recovered, or is drawn in question, except as hereinafter provided, nor shall any judgment of a justice in such action for trespass or damages or case of unlawful detention, bar the title of any party or any remedy therefor.

11. When the action is on a penal bond, the amount of damages claimed for the breaches alleged, and not the penalty, shall be considered in determining the question of jurisdiction.

NO JURISDICTION IN CERTAIN CASES.

12. A justice shall not have cognizance of any action : First. For false imprisonment; or,

Second. For malicious prosecution ; or,

Third. For slander, verbal or written; or,
Fourth. For breach of marriage promise; or

Fifth. For seduction.

13. When a balance is fouud in favor of a party, either by the verdict of a jury or award of arbitrators, or upon a hearing before the justices, exceeding the sum for which a justice is authorized to give judgment, such party may release the excess and take judgment for the residue.

14. If a justice be a party to the suit, or be interested in the result thereof, otherwise than as a resident or tax-payer of the district or county, or be related to either of the parties, as grandfather, father, father-in-law, son, son-in-law, brother, brother-in-law, nephew, uncle or first cousin, guardian or ward, or be a material witness for either party, he shall not take cognizance thereof, unless all parties to the suit consent thereto in writing. But when a justice is under such disability, any other justice in the same county may exercise jurisdiction in the case, if there be no other objection.

15. In case of sickness or disability or absence of a justice, another justice of the same county may attend in his place, and shall thereupon become vested with his authority for the time being. The attending justice shall in such case make and sign proper entries of the proceedings in the docket of the absent justice.

16. 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, reside therein, or being a non-resident of the state, is found, or has effects or estate within the county. 17. 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 thirty 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 of ficial designation without naming him.

18. Subject to the provisions of the sixteenth section of this chapter, a justice shall have jurisdiction of actions on bonds given pursu ant to this chapter, and suit may be brought on any such bond, before the justice or court having jurisdiction, by and in the name of any person sustaining loss or damage, by reason of the non-performance of the condition thereof.

HOW ACTIONS BEFORE JUSTICES ARE TO BE COMMENCED, ETC. 19. Actions before justices are commenced by summens, or by the appearance and agreement of the parties 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 sum

mons.

20. In the former case the action is commenced upon the delivery of the summons to be served, and the constable shall note thereon the time of receiving the same. In the latter case the action is commenced at the time of docketing the case.

RIGHT TO APPEAR BY ATTORNEY,

21. Any plaintiff or defendant in an action before a justice, unless he be under twenty-one years of age, may appear and conduct his suit or defense in person or by agent or attorney.

22. A party authorized to appear by agent or attorney, may ap point any person to act as such. The authority may be written or verbal.

23. When an agent, attorney or guardian for the suit has been appointed, service of any notice in the suit on him shall be equivalent to service on his principal, and his presence at any proceeding therein have the same effect as the presence of the party he repre

sents.

INFANT PLAINTIFF OR DEFENDANT.

24. 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: First, 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. Second, 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.

SUITS IN PARTNERSHIP NAME.

25. Persons associated as partners in any trade or business, may sue as such before a justice in the firm name by which such partnership is usually known; and it shall not be necessary to allege or prove in such suit who are the persons composing the partnership.

FORM AND REQUISITES OF THE SUMMONS.

26. (Acts 1882, p. 458.) The summons in justices' courts shall be in form or in substance as follows:

To any Constable in said County:

County, to-wit:

You are hereby commanded in the name of the state of West Virginia to summon A-B- to appear before me at my office in the district of -, in the said county, on the day of

at — 'o'clock, A. M., (or P. M., as the case may be,) to answer the complaint of CD in a civil action for the recovery of money due on contract (or for damages for a wrong, as the case may be,) in which the plaintiff will claim judgment for $▬▬ Given under my hand this

day of

eighteen E——F——, J. P.”

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. 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 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.

27. 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 seventeen of this chapter, 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.

28. When a party to any note or instrument of writing has signed or endorsed 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 as he is in such signature or endorsement, 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 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 procceded against by any other than his true name, it shall be the duty of the justice, when his true name is ascertained, to amend the summons by inserting the same therein, and thereafter to proceed against him by his true name.

29. A new summons may, if the plaintiff desire it, be issued against a defendant when there has been no service, or return of the former summons, and the same shall be endorsed, by the justice issuing it, "second summons," or "third summons," as the case may be.

APPOINTMENT OF SPECIAL CONSTABLES.

30. 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 endorsing such appointment on said process.

31. (Acts 1882, p. 458.) 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, 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 said process as such constable.

SERVICE OF PROCESS AND NOTICES.

32. If the defendant be found, the process, order or notice, unless person or property is to be taken in custody, or it be otherwise specially provided, shall be served by reading the same to him, or stating its contents and informing him of the time and place at which he is required to appear and answer the action, or by delivering him a copy thereof; and such copy shall always be furnished if demanded. If he be not found, it may be served at his usual place of abode, by delivering a copy thereof, and giving information of its purport to his wife, or if she be not found there, by delivering such copy and giving information of its purport to any person found there who is a member of his family and above the age of sixteen years, or if no such person be found there, by posting a copy thereof on the front door of such abode.

33. An acknowledgement in writing of the service of such process,