2. Of Change of Venue, or removing the Suit from one Justice to another.

Revised Statutes, 322, Sec. 51. "Previous to the commencement of any trial before a justice of the peace, the defendant, or his or her agent, may make oath that it is the belief of such deponent that the defendant cannot have an impartial trial before such justice; whereupon it shall be the duty of the justice immediately to transmit all the papers and documents belonging to the suit, to the nearest justice of the peace, who shall proceed as if the said suit had been instituted before him."

Form of Oath to be administered by the Justice upon application for Change of Venue.

You do solemnly swear that it is your belief that you cannot have an impartial trial before me, in the case now pending, in which you are defendant, and A. B. is plaintiff, (or in case the oath is made by the agent, then say, “in the case now pending, in which A. B. is plaintiff and C. D. is defendant.")

In case of change of venue, as aforesaid, the justice will copy from his docket the proceedings of the cause as far as the same has progressed before him, adding thereto a certificate in the following form:

Form of Certificate by the Justice to accompany the Papers and Documents on Change of Venue.

STATE OF ILLINOIS, SS.

I., E. F., a justice of the peace in and for the said county, do hereby certify that the foregoing is a true copy of the proceedings in the cause therein entitled had before me, and that herewith enclosed are all the papers and documents belonging to the said suit. Witness hand this day of A. D.,

my

-

18-.

E. F., J. P.

Upon granting a change of venue, all the papers pertaining to the cause, should be properly enclosed by the justice in a wrapper or envelope, and addressed to the nearest justice of the peace, and it will be his duty it is to see that they are safely transmitted, with as little delay as possible. The papers are usually entrusted by the justice, with the constable, if in attendance, or the plaintiff in the suit.

The consent of parties to a change of venue, without fulfilling any of

the requirements of the statute, is proper.

A party who has obtained

a change of venue, cannot object to a trial in the court to which he has caused the case to be removed, if enough appears to give the court jurisdiction.

II. OF TRIAL IN THE ABSENCE OF THE DEFENDANT.

Revised Statutes, 318, Sec. 23. "If the defendant shall not appear at the time of trial, after giving bail as aforesaid, or after being served with a summons, as described in the twenty-first section of this chapter, and no sufficient reason be assigned to the justice, why he or she does not appear, then the justice shall proceed to hear and determine the cause, in the absence of said defendant, but shall not give judgment in favor of the plaintiff, unless the said plaintiff shall fully prove his demand in the same manner as if the defendant had been present and denied the same."

The omission of the defendant to appear and plead, is not considered as an admission of the plaintiff's demand, but he must establish it by testimony in the same manner as though an issue had been joined.

The justice is bound to hear the merits in all cases before judgment against the defendant. Strictly speaking there is no such a thing before a justice of the peace as a judgment by default, but always a trial or a hearing in the nature of a trial.3

III. OF TRIAL BEFORE THE JUSTICE, WITHOUT A JURY.

Rev. Stat. 319, Sec. 28. "When the parties shall appear and be ready for trial, the justice shall proceed to hear and examine their respective allegations and proofs, and shall thereon give judg ment against the party who shall be proved to be indebted to the other, for so much money in dollars and cents as shall appear to be due, with costs of suit; but if neither party shall appear to be indebted to the other, then the judgment shall be against the plaintiff for the costs of suit only; and if such judgment be rendered upon any note or bond, or for a balance due upon a settled account, the justice shall allow in(3) 8 Cowen, 133; 10 Johns. 106.

(1) 3 Scam. 354.

(2) 13 Ill. 76.

terest from the time when the same became due, and include the same in the said judgment; and in all cases the judgment shall bear interest at the rate of six per cent. per annum until paid.”

A justice of the peace must not decide on his own previous knowledge of facts, but only on evidence adduced before him. He must de. cide upon evidence produced in court.1

In trials before a justice alone, if the party means to submit to a non-suit, he must do so before the cause is finally submitted for advisement, or the judgment will be a bar to a new action.2

8

In an action against several, for a tort, where the trial is before a justice, without a jury, he may, when the plaintiff closes his proof, dis charge a defendant against whom no evidence has been given. No judgment, however, should be entered under such circumstances, until the final disposition of the cause. Most of the rules which govern proceedings in justices' courts in trials of issue of fact, are applicable as well to trials by jury, as to trials before the justice, without a jury. Hence, the further general rules which govern proceedings before justices of the peace in trials of issue of fact, will be found under the following head, and to which reference will generally be had.

IV. OF TRIAL BY JURY.

1. When the jury shall be demanded, and how obtained.

Revised Statutes 321, Sec. 44. "At any time before judgment is given in any suit before a justice, either party may demand to have the cause tried by a jury, provided the matter in controversy exceed twenty dollars; whereupon, it shall be the duty of the justice to issue his writ, directed to any constable, commanding him to summon a jury of six men, or twelve, if a less number be objected to; and the said jury shall be empanneled as soon as may be, the justice adjourning the cause, if necessary, to any time not exceeding three days, for that purpose. The jury, when empanneled, shall be sworn by the justice to try the case according to the evidence, and the justice shall enter judg ment upon their verdict, according to the finding thereof."

(1) 2 Johns. 189.

(2) 11 Johns. 457.

(3) 3 Hill, 104.

66

Sec. 45. The following shall be the form of the writ for summoning the jurors, viz:

STATE OF ILLINOIS,

COUNTY.

The People of the State of Illinois to any constable of said County,

GREETING:

tiff as the said defendant have put themselves upon the country for trial,

and have you then there the names of the jury and this writ. Witness my hand and seal this

day of

18-.

JOHN DOE, J. P."

"Sec. 47. No justice of the peace shall order a trial by jury without the consent of all parties, unless such jury be demanded before the hearing of any evidence in the case, nor unless the party demanding such jury shall first pay the fees to which such are by law entitled." Upon the return of the venire by the constable, with the panel of jurors, the parties being ready for trial, the justice will proceed to call the names of the jurors, for the purpose of ascertaining that the number required have been summoned, and all the persons so summoned are in attendance. The justice should then enter upon his docket the names of those who have been summoned, and the names of those who appeared, and those who did not appear.

"Sec. 49. If any juror summoned as aforesaid shall be interested in the event of the suit, or of kin to either party, or shall have expressed his opinion on the matter about to be tried, or shall for any other cause, to be judged of by the justice, be considered as a partial or improper juror in that case, the justice shall discharge such juror; and when, by such discharge, or the failure of any juror to attend, the jury shall not be complete, the justice shall direct the constable to summon as many persons as shall be required to complete such jury instantly from among the bystanders or other persons in his bailiwick, which summons shall be verbal; and the persons so summoned shall be bound to serve on such jury, and on refusal or failure to do so, may be attached and fined for contempt, as aforesaid.” 1

(1) Jurors so summoned are called talesmen, from a latin word to denote persons of like qualifications.

2. Who shall be competent to serve as Jurors.

Rev. Stat. 308, Sec. 1. "All free white male taxable inhabitants in any of the counties in this state, being natural born citizens of the United States, or naturalized according to the constitution and laws of the United States, and of this state, between the ages of twentyone and sixty years, not being judges of the supreme or circuit court, county commissioners, judges of probate, clerks of the circuit or county commissioners' court, sheriffs, coroners, postmasters, licensed attorneys, overseers of the high way, or occupiers of mills, ferries, toll bridges or turnpike-roads, being of sound mind and discretion, and not subject to any bodily infirmity amounting to a disability, shall be considered and deemed as competent persons, (except in cases where legal disabilities may be imposed for the commission of some criminal offence,) to serve on all grand and petit juries in and for the bodies of their counties respectively."

By the act to establish and maintain a system of free schools, approved February 15, 1855, school commissioners, trustees of schools, school directors, and all other school officers, are exempt from serving on juries.

3. Proceedings against defaulting Jurors.

In all cases where a person has been summoned as a juror, to try any cause before a justice of the peace, and shall fail to attend at the time and place appointed in such summons, the justice has power to issue an attachment, directed to any constable of the county, commanding him forthwith to bring before such justice, the body of such juror so failing to attend as aforesaid, to show cause why he should not be fined for such contempt; and on the appearance of such juror on such attachment, it is lawful for the justice to fine him in any sum not less than one dollar, nor more than ten dollars, or wholly discharge him, if satisfactory excuse be made.1

Form of Attachment against Defaulting Juror.

The People of the State of Illinois, to any Constable of said County, GREETING:

Whereas, C. D. was summoned to appear this day before E. F.,

(1) Rev. Stat. 322, Sec. 48.