granted. The Court may also, in its discretion, when an adjournment will, by the amendment, be rendered necessary, require, as a condition to the allowance of such amendment, made after issue joined, the payment of costs to the adverse party, to be fixed by the Court, not exceeding twenty dollars. The Court may also, on such terms as may be just, and on payment of costs, relieve a party from a judgment by default taken against him by his mistake, inadvertence, surprise, or excusable neglect; but the application for such relief must be made within ten days after the entry of the judgment, and upon an affidavit showing good cause therefor. 860. When a pleading is amended, the adverse party may answer or demur to it within such time, not exceeding two days, as the Court may allow. Answer or demurrer to amended pleadings. CHAPTER IV. PROVISIONAL REMEDIES IN JUSTICES' COURTS. ARTICLE I. ARREST AND BAIL. II. ATTACHMENT. III. CLAIM AND DELIVERY OF PERSONAL PROPERTY. ARTICLE I. ARREST AND BAIL. SECTION 861. Order of arrest, and arrest of defendant. 862. Affidavit and undertaking for order of arrest. 863. A defendant arrested must be taken before the Justice immediately. 864. The officer must give notice to the plaintiff of arrest. 865. The officer must detain the defendant. 861. (§ 544.) An order to arrest the defendant Order of may be indorsed on a summons issued by the Justice, and the defendant may be arrested thereon by the arrest, and arrest of defendant. Same. Affidavit and undertaking for order of arrest. A defend ant arrested must be taken before the Justice imme diately. Sheriff or Constable, at the time of serving the summons, and brought before the Justice, and there detained until duly discharged, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State, with intent to defraud his creditors; 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied, or converted to his own use by one who received it in a fiduciary capacity; 3. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; 4. When the defendant has removed, concealed, or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female can be arrested in any action. 862. (§ 545.) Before an order for an arrest can be made the party applying must prove to the satisfaction of the Justice, by the affidavit of himself or some other person, the facts on which the application is founded. The plaintiff must also execute and deliver to the Justice a written undertaking, in the sum of three hundred dollars, with two or more sureties, to the effect that if the defendant recover judgment the plaintiff will pay to him all costs that 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. 863. (§ 546.) The defendant immediately upon being arrested, must be taken to the office of the Justice who made the order, and if he is absent or unable to try the action, or if it appears to him by the affidavit of the defendant that he is a material witness in the action, the officer must immediately take the defendant before another Justice of the township or city, if there is another, and if not, then before the Justice of an adjoining township, who must take jurisdiction of the action, and proceed thereon, as if the summons had been issued and the order of arrest made by him. 864. (§ 547.) The officer making the arrest must immediately give notice thereof to the plaintiff, or his attorney or agent, and indorse on the summons, and subscribe a certificate, stating the time of serving the same, the time of the arrest, and of his giving notice to the plaintiff. 865. (§ 548.) The officer making the arrest must keep the defendant in custody until he is discharged by order of the Justice. ARTICLE II. ATTACHMENT. SECTION 866. Writ of attachment shall issue upon affidavit. 868. Writ of attachment, substance of. Officer may take 869. Certain provisions apply to all attachments in Justices' 866. ($552.) A writ to attach the property of the defendant must be issued by the Justice at the time of, or after issuing summons and before answer, on receiving an affidavit by or on behalf of the plaintiff, showing the same facts as are required to be shown by the affidavit specified in Section 538 of this Code. 867. (§ 553.) Before issuing the writ, the Justice must require a written undertaking on the part of the plaintiff, with two or more sufficient sureties, in a sum not less than fifty nor more than three hundred dollars, Writ of shall issue attachment upon affidavit. Undertakattachment ing on must be required. Writ of attachment, substance of. Officer may take an undertak ing of levying. Certain provisions attach ments in Justices' Courts. to the effect that if the defendant recover judgment the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. 868. (§ 554.) The writ may be directed to the Sheriff or any Constable of the county, or the Sheriff of any other county, and must require him to attach and safely keep all the property of the defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, the amount of which must be stated in conformity with the complaint, unless the defendant give him security, by the undertaking of two sufficient sureties, in an amount sufficient to satisfy such demand besides costs; in which case, to take such undertaking. 869. (§ 555.) The sections of this Code from Secapply to all tion 541 to Section 559, both inclusive, are applicable to attachments issued in Justices' Courts, the word "Constable" being substituted for the word "Sheriff," whenever the writ is directed to a Constable, and the word "Justice" being substituted for the word Judge." How claim and delivery enforced. ARTICLE III. CLAIM AND DELIVERY OF PERSONAL PROPERTY. SECTION 870. How claim and delivery enforced. 870. In an action to recover possession of personal property, the plaintiff may, at the time of issuing summons or at any time thereafter before answer, claim the delivery of such property to him; and the sections of this Code from Section 510 to Section 521, both inclusive, are applicable to such claim when made in Justices' Courts, the powers therein given and duties imposed on Sheriffs being extended to Constables, and the word "Justice" substituted for "Judge." CHAPTER V. JUDGMENT BY DEFAULT IN JUSTICES' COURTS. SECTION 871. Judgment when defendant fails to appear. 872. Judgment against defendant on demurrer. when fails to 871. When the defendant fails to appear and answer Judgment or demur, at the time specified in the summons, or defendant within one hour thereafter, then, upon proof of service of the summons, the following proceedings must be had: 1. If the action is based upon a contract, and is for the recovery of money or damages only, the Court must render judgment in favor of plaintiff for the sum specified in the summons; 2. In all other actions the Court must hear the evidence offered by the plaintiff, and must render judgment in his favor for such a sum (not exceeding the amount stated in the summons) as appears by such evidence to be just. appear. against on 872. In the following cases the same proceedings Judgment must be had, and judgment must be rendered in like defendant manner, as if the defendant had failed to appear and demurrer. answer or demur: 1. If the complaint has been amended, and the defendant fails to answer it as amended, within the time allowed by the Court; 2. If the demurrer to the complaint is overruled, and the defendant fails to answer at once; 3. If the demurrer to the answer is sustained, and the defendant fails to amend the answer within the time allowed by the Court. |