THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Law Library University of Washington HAEEIS' JUSTICE OP THE PEACE GUIDE FOB THE STATE OF WASHINGTON BY ARTHUR M. HARRIS Of the Seattle Bar PORTLAND, OREGON GEO. A. BATESON & CO., INC. Law Book Publishers 1912 T H, 1512 COPYRIGHT, 1912 BY GEO. A. BATESON & CO., INC. SAN FRANCISCO THE PILMEB BROTHEES ELECTROTYPE COMPANT TYPOGRAPHERS AND STEREOTYPERS PEEFACE. The aim of this book is to show the conduct of the case in a justice of the peace court from the filing of the complaint to the execution of the judgment or the appeal therefrom. It is not a treatise or thesis on the origin and history of justices of the peace; it is a plain, practical guide to the laws and procedure of these courts of limited jurisdiction. The author has endeavored to simplify the intricacies of procedure by simple explanatory introductions or editorial matter to the various statutes. The justice is cited to Remington & Ballinger's Code and include the amended garnishment statutes of the Session of The form is given with the statute, and can be found in the index. ARTHUR M. HARRIS. Seattle, Washington, 1912. (iii) TABLE OF CONTENTS. CHAPTEE I. THE ACTION. 8 1. Jurisdiction of civil actions. 5 2. Actions arising from contract. S 3. Actions for injuries to person or property, S 4. Actions on bonds. S 5. Actions on surety bonds. S 6. Actions arising from fraud* i 7. Judgment on confession. S 8. Attachments, etc. S 9. All other actions. S 10. General powers. 11. Jurisdiction, when vested. 12. Territorial extent of justice's jurisdiction. 13. Where justice's office shall be held. 14. Jurisdiction specifically prohibited. 15. Acting without jurisdiction. 16. Jurisdiction How lost. 17. Questioning the want of jurisdiction. 18. The special appearance. 19. Statute of limitations (as applicable to justice procedure)* CHAPTER II. THE PARTIES TO THE ACTION. I 20. What is meant by "parties." S 21. Who may be parties to the action. 9 22. Husband and wife. S 23. When husband and wife must join in the action. S 24. When husband and wife may join in the action. yi TABLE OF CONTENTS. 25. Separate and antenuptial debts. 26. When wife may be joined on husband's promissory note. 27. The general rule. 28. Liability for the expenses of the family. 29. To secure judgment against the community property. 30. Infants. 31. When the infant is defendant he likewise appears by guardian. 32. Administrators, etc. 33. Assignees as parties. 34. Partners and corporations as parties. 35. Persons severally liable as parties. 36. Eights of parties to intervene. 37. Defect of parties. 38. Correcting mistake in name. 39. Striking one of the plaintiffs out. 40. When the wrong defendant is sued. $ 41. Bights of one not made a party. CHAPTER III. THE PLEADINGS. HOW THE PLAINTIFF PEEPAEES HIS CASE FOB TBIAL. 8 42. The complaint What is meant by pleadings. 43. Contents of the complaint. 44. Oral pleadings. S 45. Pleadings for money only. 46. Pleadings to be made certain. 47. The parts of a complaint. 48. Title. 49. Parties. $ 50. The statement of the cause of action Plain language. 51. Be certain. 52. Ambiguity. 53. Duplicity. 54. Eepugnancy. 55. Evidentiary facts. 56. General statements. 57. Neatness. 58. Joinder of causes of action. 59. The prayer for relief. S 60. Verification. 1 61. When pleadings take place. TABLE OF CONTENTS. TU OHAPTEK IV. TAKING THE CAUSE INTO COURT. 62. The notice. 63. The service of complaint and notice. 64. Time of service. 5 65. By whom service may be made By appointed persons. 66. By publication. S 67. How weekly publication is made. 68. Sheriffs, constables, and other persons. 1 69. Manner of service. 70. Certified copy. 71. Service when there are two or more defendants. S 72. The return of process and proof of service Penalty. S 73. How service is proved. , 74. Rules adopted by Bang County justices. 75. Other methods of commencing actions. 76. Action commenced by summons. S 77. Action commenced by complaint and notice. 78. The defendant's answer, etc. 79. When the defendant is in default. 80. The dismissal of the action. 81. The defendant's appearance. 82. The special appearance. 83. The continuance. 84. Continuance by agreement of the parties. 85. Amendments generally. 86. The answer of the defendant. 87. The denial. 88. Denial of knowledge or information. 89. Undenied allegations admittedly true. 90. General rules governing the preceding pleadings Amendments. 9L Filing amended pleadings. 92. Variance between the pleadings and the proof. 93. Immaterial variance. 94. Practice in case of variance. 95. Failure to prove. 96. Amendments generally. 97. Setoffs. 98. Counterclaims. S 99. Setoffs generally. 100. Allowing setoff. 8 101. The plaintiff's reply. V1U TABLE OF CONTENTS. CHAPTER V. THE TRIAL. 102. The venue or place of trial. 103. Venue of actions. 104. Change of venue. 105. Same as in superior court. 106. Only one change allowed. 107. Venue when private corporation is defendant. 108. Venue in other cases. 109. Manner of proceeding on change of venue. 110. Change of venue on affidavit. 111. Cost bond of nonresident plaintiff. 112. The demurrer. 113. Grounds of demurrer. S 114. Bill of particulars. CHAPTER VI. THE JURY TRIAL. 115. Those exempt from jury service. | 116. Those who are qualified to be jurors. 117. Demanding a jury Number Fees. 118. Selecting the jury. 119. Summoning the jury. 120. Personal service. S 121. The juror's oath. 122. The verdict. 123. When the jury disagrees. 124. Juror failing to answer summons. S 125. Challenging, argument, etc. CHAPTER VII. THE WITNESSES. 5 126. Who may be witnesses. 127. Persons not qualified to be witnesses. 128. Disqualifications of witnesses by reason of relationship, etc. 129. Witnesses within twenty miles. 130. Service. TABLE OF CONTENTS. IX 8 131. Compelling adverse party to testify. 132. Effect of party refusing to testify. 133. Party examined on his own behalf. 134. Witness failing to appear Liability for damages. S 135. Writ of attachment for witness. 136. Writ to be served same as warrant. 137. Depositions. 138. Time of taking depositions. 139. Deposition taken out of state. 140. Depositions to be taken on notice. 141. Use of depositions. 142. Service of notice by publication. 143. Deposition to be written and certified. 144. Sealing and transmitting deposition. 145. Use on trial. CHAPTER VIII. EXAMINATION OP WITNESSES. 146. The direct examination. 147. Cross-examination. 148. Redirect examination. 149. Leading questions. 150. Impeaching a witness. 151. Eefreshing the witness* memory. S 152. Objections to questions. CHAPTER IX. THE JUDGMENT. 153. Dismissal. S 154. Judgment by default. 155. The costs. 156. When defendant tenders judgment and cost*. 157. The judgment lien. 158. The transcript of judgment. 159. What the transcript contains. 160. Entering the transcript. S 161. Property in another county. X TABLE OF CONTENTS. CHAPTER X. THE APPEAL. 162. The amount in controversy. S 163. How the appeal is taken. 164. Appeal stays proceedings. 165. Execution recalled by appeal. $ 166. The transcript. S 167. The same pleadings as in lower court. 168. Superior court may compel transcript. 169. Defective bond How cured. 170. Judgment also against sureties. 171. Costa on appeal. CHAPTER XL EXECUTIONS UPON JUDGMENTS. { 172. Limit of five years. 173. Execution How directed. 5 174. Indorsement of writ. 175. Notice of sale of goods. 176. Return of sale. 177. Officer not to purchase at sale. 178. Claim of third person. 179. Alias executions (renewal). 180. Stay of execution. 181. Bond for stay. 182. Execution revoked. 183. Execution against sureties. 184. Substitution of surety. S 185. Offsetting mutual judgments. S 186. Execution for the balance of mutual judgments. 187. Offset of judgment rendered by another justice. 188. Execution issued by justice's successor. 189. Arrest of defendant on return of execution. 190. Execution for costs. 191. Claimant may have any remedy. 192. Examination of garnishees. 193. Statutory exemptions. S 194. Pension money exemption. 195. Insurance money exempt. | 196. Life insurance money exempt. TABLE OF CONTENTS. f 197. Cemeteiy lots exempt. { 198. Who is a householder, i 199. Procedure on claiming exemptions. CHAPTER XII. ARREST IN CIVIL ACTIONS. i 200. Warrant of arrest (civil). 9 201. Affidavit for warrant. S 202. Bond for arrest in civil action. 203. Arrest of defendant. 9 204. Plaintiff notified of arrest. 205. Detention of defendant. 9 206. Discharge of defendant. 9 207. Guardian for infant plaintiff. S 208. Guardian for infant defendant. CHAPTER XIII. ATTACHMENTS. 9 209. Attachment, time of. 9 210. Order in which writs are executed. 9 211. Sale of attached property Perishable. 9 212. Discharge of improper writ. 9 213. Eeturn of writ. 9 214. Moneys received on attachment. 9 215. Garnishment of sheriff or constable. 9 216. Attaching funds in hands of the court. 9 217. Officer to inventory goods. 9 218. Eeturn of unsatisfied writ. 9 219. Deficiency and surplus execution. 9 220. Execution of judgment on attached property. 9 221. Release on judgment for defendant. 9 222. Examination of defendant as to his property. 9 223. Pursuing property to another county. 9 224. Motion for discharging attachment. 9 225. Hearing on motion to discharge attachment. 9 226. Counter-bond to discharge attachment. 9 227. Judgment on counter-bond. 9 228. Suit on attachment bond. 9 229. Construction of amendment statutes. xii TABLE OF CONTENTS. 230. Affidavit for writ of attachment. 231. Bond on attachment. 232. Additional security. 233. The writ of attachment. 234. Execution of writ. CHAPTEE XIV. REPLEVIN. 235. Form of affidavit. 236. Justice's order for delivery. 237. Execution. 238. Defendant's counter-bond. 239. Sureties Their justification. 240. The defendant's sureties. 241. Claim of third party for property. 242. Execution Bight to break into buildings. 243. Execution Officer shall keep and deliver chattel. 244. Execution The officer's return. CHAPTER XV. GARNISHMENT. 245. Who may be garnished. 246. Affidavit for writ of garnishment. 247. Writ of. 248. Writ to be indorsed. 249. Service. 250. Service binding on garaishee. 251. Service upon bank. 252. Answer of garnishee. 253. Answer when names are uncertain. 254. Answer Pleading Defense. 255. Answer of garnishee controverted. 256. Bond of defendant. 257. Garnishee defendant discharged when. 258. Garnishee to surrender property. 259. Judgment on default of garnishee defendant* 260. Judgment against garnishee on the answer. 261. Execution of judgment against garnishee. 262. Refusal of garnishee to deliver is contempt. f 263. Costs allowed garnishee on controverted answer. TABLE OF CONTENTS. Xlll I 264. Garnishment of corporation. 265. Conduct of sale. 266. Sale conveys title. CHAPTER XVI. NE EXEAT. S 267. General authority. 268. Bond. 269. Venue. 270. Defendant discharged on recognizance. 271. Writ for any surety. 272. Proceedings before justice. 273. Bemedy by writ of habeas corpus. CRIMINAL JURISDICTION OF JUSTICE OP THE PEACE. CHAPTER XVIL PROCEDURE. S 274. Warrant issued on complaint. 275. Jurisdiction of criminal offenses. 276. Bail with or without examination, 277. Hearing and commitment. 278. Offense in presence of justice. 279. Plea of guilty to any offense. 280. Necessity of hearing. 281. Trial by jury and magistrate. S 282. Punishment Adequate and inadequate. 283. Injured party as witness. S 284. Continuance. S 285. Recognizance of witnesses. 288. Sureties required of witnesses, when. 287. Recognizance for witnesses not sui juris. S 288. Judgment includes fine and costs. S 289. Bond for stay of execution. 290. Bight of appeal to superior court. 9 291. Recognizance for witnesses on appeal XIV TABLE OF CONTENTS. 292. Defendant not to advance fees of appeal. 293. Examination upon complaint. 294. Trial when justice has jurisdiction of offense. 295. Bail when justice has not jurisdiction. 296. Recognizance of witnesses. 297. Deposition to be written and signed. 298. Record to be transcribed to superior court. 299. Suit against witness on the bond. 300. Costs to be forwarded. 301. Complainant pays costs for malicious complaint. i 302. Compound of misdemeanors. CHAPTER XVIII. CRIMES. 303. Accessory to a crime. 304. Acquittal, foreign. 305. Acquittal or conviction in other county. 306. Adultery. 307. Amusement, dangerous. 308. Animals Vicious animals at large. 309. Animals Diseased. 310. Animals Disposal of carcasses. 311. Animals, injury to. 312. Arson. 313. Automobiles Speed of. i 314. Beggar is vagrant. 315. Brands on animals, etc. 316. Brand, imitating lawful. 317. Burglary. 318. Child, abandonment of. 319. Concert halls, minors in. 320. Children, employment of. 321. Conveyance Offenses in public. 322. Defendant. 323. Desecration of flag. 324. Felony. 325. Felony Punishment, when not fixed by statutfi. 326. Firearms. 327. Forgery. 328. Gambling. 329. Highways. i 330. Intoxicating liquors. 331. Manslaughter. 8 332. Misdemeanor defined. TABLE OF CONTENTS. 333. Murder. 334. Murder in the second degree. 335. Orchard, injury to. 336. Public peace, crimes against. 337. Sabbath-breaking. 338. Keligious meeting, disturbing. 339. Vagrancy. CHAPTER XIX. CONSERVING THE PEACE. 340. The peace bond. 341. Complaint for peace bond. 342. Warrant on complaint. 343. Trial and recognizance. 344. Imprisonment in default of bond. 345. Discharge on giving bond. 346. Appeal to superior court. 347. Bond effective on failure to prosecute appeal. 5 348. Judgment of appellate court. 349. Peace recognizance to be certified to superior court. 350. Complainant to pay costs of prosecution, when. 351. Costs (when defendant may be liable). 352. Summary recognizance for offense in presence of the court. 353. Penalty on bond may be remitted. 354. Hearing and transcript to superior court. 355. Eights of surety on peace bond. 356. Either singular or plural number. CHAPTER XX. CONTEMPT PROCEEDINGS. 357. Persons guilty of contempt. 358. Punishment. 359. Form of warrant. 360. Form of judgment. 361. Contempt in presence of the court. 362. Cause to be heard. i 363. Commitment of defendant. CHAPTER XXI. JUSTICE OF THE PEACE AS POLICE JUDGE. i 364. Establishment of police court. 365. Jurisdiction and duties of police judge. XVI TABLE OF CONTENTS, 366. General powers. 367. Police powers of justices. 368. In cities of the third class. 369. In cities of the fourth class. 370. In cities of the first class. CHAPTER XXII. JUSTICE OF THE PEACE AS NOTARY. 371. Justice of the peace as notary. i 372. General form of acknowledgment. CHAPTER XXIII. JUSTICE OF THE PEACE AS CORONER. CHAPTER XXIV. JUSTICE OF THE PEACE AS DEPUTY STATE FIRE MARSHAL. CHAPTER XXV. JUSTICES' OFFICE EQUIPMENT, FEES, ETC. S 373. Clerk and assistance. 374. The justice's docket. 375. Fees of justice of the peace. 376. Fees of salaried justices. 5 377. Other fees not to be collected. 378. Fees to be paid in advance. 379. Salary of justice pro tern. 380. How justices' salaries are paid. 381. Fee-book and accounts. 382. Salary in city of more than five thousand. 383. Salary in cities of over thirty-five thousand. 384. Moneys to be paid to county treasurer. TABLE OF CONTENTS. XV11 CHAPTER XXVI. HOW JUSTICES OF THE PEACE ARE ELECTED AND QUALIFY. 385. Election precincts. 386. Number in incorporated cities. 387. In cities of more than five thousand inhabitants. 388. Number in first class cities Must be a lawyer. 389. In cities of over thirty-fire thousand inhabitants. 390. The number of justices. 391. Who are eligible. 392. Term of the office. S 393. Certificate and oath, 394. Jurisdiction. 395. New precinct. f 396. Liability on bond. 397. Successor in office. 398. Penalty of failure. CHAPTER XXVII. SOLEMNIZING MARRIAGE. 399. Authority to solemnize. 400. License by county auditor. 401. Affidavit for marriage license, etc. f 402. Marriage forbidden in certain cases. 403. Marriage forbidden Continued. 5 404. Penalty for violating marriage statute. 405. Authorized officer not to solemnize. 406. Form of ceremony. 407. The marriage certificate. 408. Form of certificate. 409. Certificate to be recorded. 410. Penalty for failure to deliver certificate. 411. Marriages, when valid. i 412. Solemnization by unqualified person. 413. Voidable marriages. XVlii TABLE OP CONTENTS. CHAPTER XXVIII. TRUANT CHILDREN AND COUNTY PRISONERS. 414. Justice of the peace may sentence prisoners to work. 415. County prisoners to be worked. 416. Truant children. 417. Concurrent jurisdiction over truants. CHAPTER XXIX. SWINE. 418. Swine may be impounded. 419. Assessment of damages by appraisers. 420. Fees of the justice. 421. Slaughtered animals. 422. Justice to have copy of record. CHAPTER XXX. SEAGULLS. 423. Penalty. 424. Justice's power to punish. S 425. Actions in favor of towns. CHAPTER XXXI. CONSTABLES. S 426. His duties and authority. 427. Eelative to unclaimed property or lost money and goods. 428. Constable's sale of unclaimed property. 429. Beturn of sale. 430. The constable's election. 431. In cities of five thousand population. 432. The constable's salary. 433. The constable's oath. 434. The constable's bond. 435. Appointment to vacant office. S 436. Schedule of fees. { 437. Incomplete business to successor. TABLE OF CONTENTS. XIX GENEEAL STATUTES. CHAPTER I. BILLS OF SALE. 438. Bill of sale to be recorded or possession taken. 439. Certain contracts to be in writing. 440. Affidavit of vendor for stock of goods. 9 441. Sale of goods void When. CHAPTER II. THE LAW OF WILLS AND DESCENT OF PROPERTY. 442. There must be two witnesses. 443. When witness is beneficiary. 444. Devise of land. 445. Signing testator's name for him. 446. When will is revoked. 447. Construction. 448. Keal property. 449. When the real estate does not descend by devise. 450. Surviving spouse and child. 451. Surviving spouse and parents. 452. Surviving brothers and sisters. 453. Surviving spouse and no issue nor near blood, 9 454. Next of kin. 455. Deceased child's estate shared by survivors. 456. Issue of same parent. 457. When estate goes to the state. 458. The inheritance by illegitimate children. 9 459. How personal property is distributed. CHAPTER III. COMMUNITY PROPERTY. 9 460. The husband's separate property. 9 461. The wife's separate property. 9 462. What is community property. 9 463. The husband to manage real property. XX TABLE OF CONTENTS. CHAPTER IV. CONCERNING DEEDS. 464. The grantor. 465. The grantee. 466. The warranty deed. 467. Consideration. 468. The quitclaim deed. 469. The bargain and sale deed. 470. The form of acknowledgment. 471. Conveyances by and between husband and wife. 472. The mortgage. 473. The satisfaction of mortgages. S 474. Penalty for failing to satisfy mortgage. CHAPTER V. CONCERNING LEASES. 475. The monthly tenant. 476. Tenant by sufferance. 477. Tenancy at specified time. S 478. Year to year tenancy. CHAPTER VI. CHATTEL MORTGAGES OR MORTGAGES OF PER- SONAL PROPERTY. 479. Personal property may be mortgaged. 480. Must be made under affidavit. 481. Mortgage must be recorded. 482. A mixed mortgage on personal and real propertj. 483. Unlawful removal of mortgaged property. TABLE OF CONTENTS. XXI CHAPTER VII. LABOR AND MATERIALMEN'S LIEN. 484. Lien for improvements on real property when. 485. Form of claim, filing, etc. 486. What the claim shall state. 487. Form of claim. 488. Lien right is assignable. 489. Action on lien within eight months. 490. The innkeeper's lien. 491. Limitation of innkeeper's responsibility. 492. The agistor's lien. S 493. The farm laborer's lien. 494. The logger's lien. 495. Lien on lumber at the mill. 9 496. Lien on cut timber. 497. Filing claim for logger's lien Form. CHAPTER VIII. PRIVATE CORPORATIONS. 498. General provision for forming. 499. Two or more persons. 500. Written articles. 501. File one of such articles. 502. Said articles shall state. 503. This limit of existence. 504. Amendments may be made. 9 505. Form of corporation acknowledgment. 506. Names of officers to be filed. S 507. Corporation powers. CHAPTER IX PARTNERSHIPS. 508. Two or more persons may form partnership. 509. Limited partnership. 510. Filing of partnership certificate. 511. Partnership certificate to be published. 9 512. As parties to actions. 9 513. Dissolution of partnership. TABLE OF CONTENTS. CHAPTER X. SALES OF UNCLAIMED PROPERTY. 514. Notice of sale of unclaimed property. 515. Affidarit for sale. 8 516. Order of sale. 517. How sale is made. 518. The constable's return. 519. Proceeds of sale disposed. 520. Sale of perishable property. 521. Pees for justice and constable. S 522. Finder of lost property. CHAPTER XL ABATEMENT OF NUISANCES. 523. Public nuisance. 8 524. Any person may abate. 525. Action by private person. 526. Definition of nuisance. 527. Statutory nuisances. 528. Resorts declared to be nuisances. 529. Order of abatement and warrant. 530. Bond for staying warrant. S 531. Execution of warrant. CHAPTER XII. DOMESTIC ANIMALS AND FISH LAWS. 532. Damaged party may retain animals. 533. Notice to owner. 534. Notice by posting. 535. Action for damages. 8 536. Judgment lien on animals. 537. Continuance and service where defendant is unknown. 538. Surplus money deposited with county treasurer. 8 539. Justices have jurisdiction. 8 540. Jurisdiction of violations of fishing laws. JUSTICE OF THE PEACE GUIDE. CIVIL JURISDICTION OF JUSTICE OF THE PEACE. CHAPTER I. THE ACTION. S 1. Jurisdiction of civil actions. 5 2. Actions arising from contract. 5 3. Actions for injuries to person or property. 5 4. Actions on bonds. 5. Actions on surety bonds. '6. Actions arising from fraud. S 7. Judgment on confession. 8. Attachments, etc. S 9. All other actions. 10. General powers. 11. Jurisdiction, when vested. S 12. Territorial extent of justice's jurisdiction. 13. Where justice's office shall be held. 14. Jurisdiction specifically prohibited. 15. Acting without jurisdiction. 16. Jurisdiction How lost. S 17. Questioning the want of jurisdiction. S IS. The special appearance. S 19. Statute- of limitations (as applicable to justice procedure). An action is defined to be a legal prosecution in an appro- priate court by a party complainant against a party defend- ant to obtain the judgment of that court in relation to some rights claimed to be secured or some remedy claimed to be given by law to the party complaining. (Am. & Eng. Ency.) The most important duty of the justice of the peace, as well as the most considerable part of all his duties, is the adjudication of what are known as civil suits; disputes aris- ing between individuals rather than between society and the individual.. Both the civil and the criminal jurisdiction of the justice of the peace are limited, as we shall see later; 1 (1) 2 JUSTICE OF THE PEACE GUIDE. yet the interests involved in a civil suit are large enough to require a careful knowledge of the civil procedure of the justice court. Concerning, then, the matter of civil suits, let us inquire, first, as to the justice's 1. JURISDICTION OF CIVIL ACTIONS. It might properly be explained here that the word "juris- diction" means the power to hear and determine. There are various other definitions, but the general broad mean- ing is the power to hear and determine certain civil actions and proceedings. 2. ACTIONS ARISING FROM CONTRACT. Of an action arising on contract for the recovery of money only in which the sum claimed is less than one hundred dollars. 3. ACTIONS FOR INJURIES TO PERSON OR PROP- ERTY. Of an action for damages for injuries to the person, or for taking or detaining personal property or for injuring personal property, or for an injury to real property when no issue raised by the answer involves the plaintiif 's title to or possession of the same, when the amount of damages claimed is less than one hundred dollars; also of actions to recover the possession of personal property, when the value of such property, as alleged in the complaint, is less than one hundred dollars; Of an action for a penalty less than one hundred dol- lars; 4. ACTIONS ON BONDS. Of an action upon a bond conditioned for the payment of money, when the amount claimed is less than one hundred dollars, though the penalty of the bond exceed that sum, the judgment to be given for the sum actually due, not exceeding the amount claimed in the com- plaint; 5. ACTIONS ON SURETY BONDS. Of an action on an undertaking or surety bond taken by him or his predecessor in office, when the amount claimed is less than one hundred dollars; THE ACTION. 3 6. ACTIONS ARISING FROM FRAUD. Of an action for damages for fraud in the safe, pur- chase or exchange of personal property, when the dam- ages claimed are less than one hundred dollars; 7. JUDGMENT ON CONFESSION. To take and enter judgment on confession of a de- fendant when the amount of the judgment confessed is less than one hundred dollars; 8. ATTACHMENTS, ETC. To issue writs of attachment upon goods, chattels, moneys and effects, when the amount is less than one hundred dollars; 9. ALL OTHER ACTIONS. Of all other actions and proceedings of which juris- diction is specially conferred by statute, when the amount involved is less than one hundred dollars, and the title to or right of possession of or to a lien upon real property is not involved. [44.] 10. GENERAL POWERS. The justice has power to hear, try and determine all of the actions set forth in the preceding statute, and for that purpose the law has vested him with all the necessary pow- ers which are possessed by courts of record of this state, with the further decree that all laws of a general nature shall apply to the justice's court within proper limits. Every justice of the peace elected in any precinct in this state is hereby authorized to hold a court for the trial of all actions in the next section enumerated, to hear, try and determine the same according to law; and for that purpose, where no special provision is otherwise made by law, such court shall be vested with all the necessary powers which are possessed by courts* of record in this state; and all laws of a general nature shall apply to such justice's court, as far as the same may be applicable, and not inconsistent with the pro- visions of this chapter. [43.] From this it is apparent that the justice should, whenever possible, have a general knowledge of the law. This also illustrates the fact that even though justice procedure is 4 JUSTICE OF THE PEACE GUIDE. simple and the amount in controversy small, nevertheless questions involving the weightier principles of law are often submitted to a justice's deliberations. In cities of the first class the justice must be an at- torney at law. [6533.] 11. JURISDICTION, WHEN VESTED. In a dispute between two individuals the court has no power to hear and determine the difference until certain steps have been taken by one or both of the disputants to invoke the court's power and authority. One of the dis- tinctions between a civil action and a criminal action is that in the civil action the matter comes voluntarily into the jurisdiction; in the criminal action the criminal comes involuntarily into the jurisdiction. Another difference is that of time: a civil dispute between two persons may run like an open sore for years, nor shall the civil authority have power of its own motion to interfere and apply the healing ointment of impartial judgment and speedy execu- tion, but let the flesh be scratched never so little with criminal intent, and immediately the law begins to operate upon the aggressor, as a surgeon would deplete the body of a diseased member which threatens the health of other members. The court shall be deemed to have obtained possession of the case from the time the complaint or claim is filed, after completion of service, whether by publica- tion or otherwise, and shall have control of all subse- quent proceedings. [1769.] 12. TERRITORIAL EXTENT OF JUSTICE'S JURIS- DICTION. The jurisdiction of justices of the peace in all civil actions, except as provided in the preceding section, shall be coextensive with the limits of the county in which they are elected or appointed, and no other and greater, but every justice of the peace shall continue to reside and perform all the duties of his office in the precinct for which he was elected or appointed during his continuance in office. [1757.] THE ACTION. 5 The boundary here is geographical, and confined to the county limits in which the justice is elected or appointed. This general limitation was found not specific enough to prevent hardship being maliciously forced on a defendant of dragging him from one end of the county to the other. This was in a large measure prevented by the following enact- ment: All civil actions commenced in a justice court against a defendant or defendants residing in a city or town of more than three thousand inhabitants shall be brought in the justice court of the precinct in said city or town in which one or more of such defendants re- side. [1756.] 13. WHERE JUSTICE'S OFFICE SHALL BE HELD. Every justice of the peace shall keep his office in the , precinct for which he may be elected, and not else- where, but he may issue process in any place in his county. [48.] The justice may not have his office with a lawyer other than his law partner. If he have a law partner, such part- ner shall not be permitted to appear or practice as an attorney in any case tried before such justice of the peace. [49.] 14. JURISDICTION SPECIFICALLY PROHIBITED. The expression, "jurisdiction specifically prohibited," is rather an unfortunate and illogical one, for a court only has jurisdiction to the extent that jurisdiction is granted it by the proper authority. When the court passes these bound- aries, jurisdiction automatically ceases. The term "jurisdiction prohibited" is used in the codified statutes, and for that reason is introduced here. 1. In which the title to real property shall come in question. 2. Nor to an action for the foreclosure of a mort- gage, or enforcement of a lien on real estate. 3. Nor to an action for false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction. 6 JUSTICE OF THE PEACE GUIDE. 4. Nor to any action against an executor or admin- istrator as such. [45.] 16. ACTING WITHOUT JURISDICTION. If the justice of the peace shall pass beyond the bound- aries of his jurisdiction, the judgments which he shall ren- der are void not merely voidable, but void absolutely. Nor can any agreement between the parties to an action that the court may try the case confer a jurisdiction which the court has not by law. When he exceeds his jurisdic- tion, the justice becomes a wrongdoer and liable to the injured party for damages. 16. JURISDICTION HOW LOST. When it appears from the answer of the defendant that the real issue of the case involves the title to real estate, the court will lose jurisdiction of the case. If on the trial of any cause it appears that the title to lands is in question, the justice must certify the cause to the superior court of the county. If it appear on the trial of any cause before a justice of the peace, from the evidence of either party, that the title to lands is in question, which title shall be disputed by the other, the justice shall immediately make an entry thereof in his docket, and cease all further pro- ceedings in the cause, and shall certify and return to the superior court of the county, a transcript of all the entries made in his docket relating to the cause, to- gether with all the process and other papers relating to the action, in the same manner, and within the same time, as upon an appeal; and thereupon the parties shall file their pleadings, and the superior court shall proceed in the cause to final judgment and execution, in the same manner as if the action had been originally com- menced therein, and the cost shall abide the event of the suit. [1863.] 17. QUESTIONING THE WANT OP JURISDICTION. We have seen that the matter of jurisdiction is a most important matter, and that the consequences of exceeding the jurisdiction are to make void the whole judgment. If the defendant then wishes to question the jurisdiction of the THE ACTION. 7 court in which he has been brought, he may do so by plead- ing to the jurisdiction, or by a plea in abatement. When jurisdiction is wanting, that fact often appears on the rec- ord, and in that event the defendant may move to dismiss the action for want of jurisdiction. 18. THE SPECIAL APPEARANCE. When the defect is the want of the proper process or want of proper service, the pleader must be careful of the form in which he makes his motion to dismiss the action, or the motion itself will give the court jurisdiction of the person. In such cases, the defendant will say that he ap- pears specially and for the purpose of making the motion upon the ground of the want of jurisdiction, and for that reason only. 19. STATUTE OP LIMITATIONS (AS APPLICABLE TO JUSTICE PROCEDURE). Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued, except when in special cases a different limita- tion is prescribed by statute ; but the objection that the action was not commenced within the time limited can only be taken by answer or demurrer. [155.] Within six years, An action upon a contract in writing, or liability ex- press or implied arising out of a written agreement. [157.] Within three years, An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated; An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument; An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; An action upon a statute for penalty or forfeiture, where an action is given to the party aggrieved, or to such party and the state, except when the statute im- JUSTICE OF THE PEACE GUIDE. posing it prescribed a different penalty [limitation]. [159.] Within two years, An action for libel, slander, assault, assault and bat- tery, and false imprisonment. An action upon a statute for a forfeiture or penalty to the state. [160.] Other relief: An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued. [165.] THE PAETIES TO THE ACTION. 9 CHAPTER II. THE PARTIES TO THE ACTION. | 20. What is meant by "parties." 21. Who may be parties to the action. | 22. Husband and wife. 23. When husband and wife must join in the action. i 24. When husband and wife may join in the action. 25. Separate and antenuptial debts. 26. When wife may be joined on husband's promissory note. | 27. The general rule. 28. Liability for the expenses of the family. 29. To secure judgment against the community property. 30. Infants. i 3*1. When the infant is defendant he likewise appears by guardian. 32. Administrators, etc. i 33. Assignees as parties. 34. Partners and corporations as parties. 35. Persons severally liable as parties. S 36. Bights of parties to intervene. 37. Defect of parties. 38. Correcting mistake in name. 39. Striking one of the plaintiffs out. 40. When the wrong defendant is sued. | 41. Bights of one not made a party. The first thing in a lawsuit is to determine who the parties who are really interested in the action are and whether or not it is permitted to sue them or otherwise involve them In the contemplated action. 20. WHAT IS MEANT BY "PAETIES." The first thing in this connection is to decide the meaning of the word "parties." In the Encyclopedia of Pleading and Practice the definition of the term "parties" is given concisely as follows : The term "parties" to an action is used to designate the person or persons seeking to establish a right and the person or persons upon whom it is sought to impose a corresponding duty or liability. 10 JUSTICE OF THE PEACE GUIDE. The term may mean either a single individual or a class or number of persons, according to the circumstances sur- rounding the particular case. 21. WHO MAY BE PARTIES TO THE ACTION. Everyone, as we have seen above, who seeks to establish a right or upon whom it is sought to impose some corre- sponding duty or liability. Not everyone can come directly into court and establish his rights. The older law imposed legal disability to sue or be sued upon a number of persons, usually those in a domestic dependent condition, as women in marriage or children under the legal age. The modern tendency has been to broaden this phase of the law, and in the state of Washington it is provided: Every action shall be prosecuted in the name of the real party in interest, except as is otherwise provided by law. [179.] 22. HUSBAND AND WIFE. The law affecting the relationship of husband and wife one toward the other and the relation of both individually or together has undergone an almost complete change within the last few decades. Woman, as a party to the action in law, has been practically emancipated. In the eyes of the law she is now an altogether responsible person, one who cannot cover her crimes nor avoid her liabilities by plead- ing that she is a married woman. The woman, in so far as she can contract debts or bind herself with obligations, as a rule, must defend herself or prosecute her rights alone and in her own name, and that whether she be married or single. Nevertheless, the matrimonial state so directly affects many of the most important property rights of both of the persons to the marriage, that the pleader in bringing an action against either the husband or the wife should be at pains to decide as exactly as possible their true legal status. In view of the nature of the actions in justice court and from the further fact that the interests of real estate are beyond the jurisdiction of the justice of the peace, the question of the propriety or necessity of either spouse to THE PARTIES TO THE ACTION. 11 an action in the justice court is very much simplified. The pleader, however, who seeks to secure a judgment which shall be binding upon the community property of both par- ties after the proper steps are taken to make the judgment a lien thereon, should be informed of the general statutes governing this matter of the legal capacity of married per- sons, both male and female, to be parties to the action. 23. WHEN HUSBAND AND WIFE MUST JOIN IN THE ACTION. The general rule in the state of Washington is that when a married woman is made a party to an action, her husband must be joined with her as one of the parties. The excep- tion to this is, as we have stated above, when the wife has capacity to obligate herself with debts and contracts. In that event she may sue or be sued alone. 1. When the action concerns her separate property, or her right or claim to the homestead property ; 2. When the action is between herself and her hus- band, she may sue or be sued alone ; 3. When she is living separate and apart from her husband she may sue or be sued alone. [181.] The plaintiff should take pains to understand the exact nature of these exceptions. Attention to this matter will save a good deal of unnecessary costs. 24. WHEN HUSBAND AND WIFE MAY JOIN IN THE ACTION. It should be thoroughly understood at this point that the relation of the husband and wife before marriage in the matter of debts and obligations with third persons is not affected by the union. 25. SEPARATE AND ANTENUPTIAL DEBTS. Neither husband nor wife is liable for the debts or liabilities of the other incurred before marriage nor for the separate debts of each other, nor is the rent or income of the separate property of either liable for the separate debts of the other. [5930.} 12 JUSTICE OP THE PEACE GUIDE. Another matter which has undergone some change, even within a comparatively few years, is the question of the liability of the wife to be joined in an action against the husband on a promissory note, when the said note evi- denced a community debt. 26. WHEN WIFE MAY BE JOINED ON HUSBAND'S PROMISSORY NOTE. In the case of McDonough v. Craig, reported in 10 Wash. 239, the supreme court of the state of Washington held that in an action upon a promissory note executed by the husband alone for what is properly alleged to be a com- munity debt, it is proper to make the wife a party defend- ant. If the plaintiff secures judgment upon the note, he is therefore entitled to have the debt adjudged to be one binding upon the community property. 27. THE GENERAL RULE. The law on this subject is covered by the following statute : Husband and wife may join in all causes of action arising from injuries to the person or character of either or both of them, or from injuries to the property of either or both of them, or arising out of any contract in favor of either or both of them. If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also. And she may defend in all cases in which she is interested, whether she is sued with her husband or not. [182.] 28. LIABILITY FOR THE EXPENSES OF THE FAM- ILY. The property of either the husband or the wife, or of both, is properly chargeable with the family expenses. The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately. [5931.] THE PARTIES TO THE ACTION. 13 29. TO SECURE JUDGMENT AGAINST THE COM- MUNITY PROPERTY. The justice having jurisdiction and the necessary parties appearing upon the pleadings, judgment which shall be- come a lien on the community or separate property is usually asked for in the prayer for relief which closes the plaintiff's complaint; judgment against the community es- tate being particularly prayed for. The absence of a specific demand for such judgment does not prevent the rendition of such judgment if the proper jurisdictional facts appear and it appear that the action is against the husband and wife jointly. 30. INFANTS. By reason of his immaturity and want of experience, the courts protect the infant fully, nor suffer his own acts nor the acts of other persons to prejudice his rights. In- fancy is the period of a person's age from his birth until he attains the age of twenty-one years, or, if the infant be a female, until she attains the age of eighteen years. No action shall be commenced by an infant plaintiff, except by his guardian or until a next friend for such infant shall have been appointed. Whenever re- quested, the justice shall appoint some suitable person, who shall consent thereto in writing, to be named by such plaintiff, to act as his next friend in such action, who shall be responsible for the costs therein. [1771.} 31. WHEN THE INFANT IS DEFENDANT HE LIKE- WISE APPEARS BY GUARDIAN. After service and return of process against an infant defendant, the action shall not be further prosecuted until a guardian for such infant shall have been ap- pointed. Upon the request of such defendant, the jus- tice shall appoint some person, who shall consent thereto in writing, to be guardian of the defendant in defense of the action; and if the defendant shall not appear on the return day of the process, or if he neglect or refuse to nominate such guardian, the justice may, at the request of the plaintiff, appoint any discreet person as such guardian. The consent of the guardian or next 14 JUSTICE OP THE PEACE GUIDE. friend shall be filed with the justice ; and such guardian for the defendant shall not be liable for any costs in the action. [1772.] 32. ADMINISTRATORS, ETC. The executor or administrator of an estate, the guardian of a minor, and, in fact, persons obligated with an express trust, or authorized by statute, are often compelled to come into the courts to prosecute actions on behalf of their trust or their wards. In such cases the law empowers them to bring the action in their own names. An executor or administrator, or guardian of a minor or person of unsound mind, a trustee of an express trust, or a person authorized by statute, may sue with- out joining the person for whose benefit the suit is prosecuted. A trustee of an express trust within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. [180.] When suit is brought by such administrator or executor, it is the practice to set forth in the complaint the facts of such administration, to wit, the death of the intestate; that letters of administration were issued from the superior court to the plaintiff; that the plaintiff thereupon qualified as such administrator, and that the letters of administra- tion have not been revoked. 33. ASSIGNEES AS PARTIES. The exigencies of commerce and business have created the custom of assigning book accounts, judgment bonds and other choses in action to third persons. The action which the assignor would have on such accounts is thereby transferred to the assignee, and the latter may sue thereupon in his own name. Any assignee or assignees of any judgment bond, specialty, book account, or other chose in action for the payment of money, by assignment in writing signed by the person authorized to make the same, may, by virtue of such assignment, sue and maintain an action or actions in his or her name, against the obligors, debtor or debtors, therein named, notwithstanding the assignor may have an interest in the thing assigned: THE PABTIES TO THE ACTION. 15 Provided, that any debtor may plead in defense a coun- terclaim or an offset, if held by him against the original owner, against the debt assigned, save that no counter- claim or offset shall be pleaded against negotiable paper assigned before due, and where the holder thereof has purchased the same in good faith and for value, and is the owner of all interest therein. [191.] It will be noticed that the proviso permits the debtor to counterclaim or offset against the debt assigned. The as- signment of such a debt, therefore, does not affect any rights which the debtor may have against the debt. In the case of negotiable instruments assigned before they are due, the holder who has purchased the same in good faith may hold the same against any counterclaim or offset on the part of the debtor. This provision is made necessary by the practices of business life, and is designed, of course, to prevent the impairment of the negotiability of such in- struments. It is not necessary in your complaint in an action upon an account which has been assigned to allege that the as- signment is in writing. It may, however, be necessary to prove a written assignment upon the trial of the case. In the assignment of a promissory note for collection or for the purpose of suing thereon, his interest therein is con- sidered sufficient to make him the real party in interest. A negotiable instrument indorsed after maturity is sub- ject to any and all defenses existing between the maker and the payee, although an indorsee after maturity, taking it from one who acquired the instrument before maturity, takes free from such equities. 34. PARTNERS AND CORPORATIONS AS PARTIES. Partnerships and corporations may be sued in the firm or corporate name and may sue in such firm or corporate name. When the firm is bringing suit, it is proper to set forth in the complaint that the plaintiff is a copartner- ship, and if the plaintiff be a corporation, it is the practice to state in the complaint that the said corporation is duly organized and existing under and by virtue of the laws of 16 JUSTICE OP THE PEACE GUIDE. the state of Washington, together with a further allega- tion that the annual license fee last due under the law has been paid. In a suit against persons forming a copartner- ship, when sued as individuals composing the partnership, being particularly designated in the papers of the case, and judgment is therein obtained in the firm name, the said judgment will not, under such circumstances, be void. 35. PERSONS SEVERALLY LIABLE AS PARTIES. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all, or any of them, be in- cluded in the same action, at the option of the plaintiff. [192.] 36. RIGHTS OP PARTIES TO INTERVENE. Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either party, 'or an in- terest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, and is made by a complaint setting forth the grounds upon which the intervention rests filed by leave of the court or judge on the ex parte motion of the party desiring to intervene. [202.] The procedure when permission to intervene is given by the court follows: When leave is given to intervene, a copy of the in- tervener's complaint shall be served upon the parties to the action or proceedings who have not appeared, or publication of a notice of the intervention contain- ing a brief statement of the nature of the intervener's demand shall be made in all cases where are absent or nonresident defendants. The notice shall be published in the same manner and for the same length of time as prescribed by law for publication of summons. And the complaint shall also be served upon the attorneys THE PARTIES TO THE ACTION. 17 of the parties who have appeared, who may answer or demur to it as if it were an original complaint. The court shall determine upon the rights of the intervener at the same time the action is decided, and if the claim of the party intervening is not sustained, he shall pay all costs incurred by the intervention: Provided, that no intervention shall be cause for delay in the trial of an action between the original parties thereto. [203.} 37. DEFECT OF PARTIES. We have seen that the general rule is that an action at law should be prosecuted in the name of the real party in interest. 38. CORRECTING MISTAKE IN NAME. If it should appear that there is a mistake in the name of , one of the parties to an action, the mistake may be cor- rected at any time. The justice should make an entry on his docket showing the correction. 39. STRIKING ONE OF THE PLAINTIFFS OUT. Sometimes, when there are two or more parties plaintiff, one will be joined who has no cause of action. In that event his name may be stricken out and the proper entry made in the docket showing the ruling of the court. The costs should be taxed against the party needlessly bringing the stricken party into the case. 40. WHEN THE WRONG DEFENDANT IS SUED. If there is only one defendant, and it should appear from the testimony that he is the wrong person and that some other person should have been made defendant, the name of another person cannot be substituted for that of the defendant, and the plaintiff will fail. 41. RIGHTS OF ONE NOT MADE A PARTY. If, by proceeding to trial, the rights of a person not made a party plaintiff will not be prejudiced, it will not be neces- sary to make him a party. The procedure generally in amending the various plead- ings to omit or insert the name or names of parties plain- 2 18 JUSTICE OP THE PEACE GUIDE. tiff or defendant is to apply for leave by motion, settin w forth the facts and the names. If the amended parties have not appeared in court, they must be served with due notice as if they were original parties and thus given an opportunity to defend. The justice will make the proper entries in his docket showing the rulings in the case. THE PLEADINGS. 19 CHAPTER III. THE PLEADINGS. HOW THE PLAINTIFF PREPARES HIS CASE FOB TBJAlt 42. The complaint What is meant by pleadings. 43. Contents of the complaint. 44. Oral pleadings. 45. Pleadings for money only. 46. Pleadings to be made certain. 47. The parts of a complaint. 48. Title. 49. Parties. 50. The statement of the cause of action Plain laagiage. 51. Be certain. 52. Ambiguity. 53. Daplicity. 54. Repugnancy. 55. Evidentiary facts. 56. General statements. 57. Neatness. 58. Joinder of causes of action. 59. The prayer for relief. 60. Verification. 61. When pleadings take place. 42. THE COMPLAINT WHAT IS MEANT BY PLEADINGS. The object of every step and every movement in an action at law is to cause to issue from the statements of both the plaintiff and defendant some particular point or points upon which the judge or jury may make an adjudication. Was such and such an agreement made? What was the nature of the agreement? Has the agreement been carried out or has it not? These are the vital facts which the statements should put squarely before the court, and sueh preliminary statements, statements other than the evidence, are generally called the pleadings. Let the pleader re- member to exert his ingenuity in raising the real issue in the case; let him closely regard the controverted point and much verbiage and surplusage will be thereby avoided. 20 JUSTICE OP THE PEACE GUIDE. Now, it is provided that the pleadings in justice court may be either spoken or written: The pleadings in justice court may be oral or in writing. [1780.] When the justice has any considerable number of cases, as in a busy city precinct, the pleadings are usually in writing. In other cases the pleadings may take place upon the appearance of the parties unless they shall have been previously filed. The pleadings in the justice court shall be: (1) The complaint of the plaintiff, which shall state in a plain and direct manner the facts constituting the cause of action; (2) The answer of the defendant, which may con- tain a denial of the complaint, or any part thereof, and also a statement, in a plain and direct manner, of any facts constituting a defense; (3) When the answer sets up a setoff by way of defense, the reply of the plaintiff. [1779.] The first step, then, is the complaint. The complaint means just what the word means a complaining to the court of some wrong. The law has defined what the com- plaint shall contain. 43. CONTENTS OF THE COMPLAINT. The complaint shall contain: (1) The title of the cause, specifying the name of the court, the name of the county in which the action is brought and the name of the parties to the action, plaintiff and defendant. (2) A plain and concise statement of facts consti- tuting the cause of action, without unnecessary repeti- tion. (3) A demand for the relief which the plaintiff claims; if the recovery of money or damages be de- manded, the amount thereof shall be stated. [258.] 44. ORAL PLEADINGS. When the pleadings are oral, the substance of them shall be entered by the justice in his docket. When in writing they shall be filed in his office and a refer- THE PLEADINGS. 21 ence made to them in his docket. Pleadings shall not be required to be in any particular form, but shall be such as to enable a person of common understand- ing to know what is intended. [1786.] 45. PLEADINGS FOR MONEY ONLY. When the cause of action, or setoff, arises upon an account or instrument for the payment of money only, it shall be sufficient for the party to deliver the ac- count or instrument, or a copy thereof, to the court, and to state that there is due to him thereon, from the adverse party, a specified sum, which he claims to recover or set off. The court may, at the time of pleading, require that the original account, or instru- ment, be exhibited to the inspection of the adverse party, with liberty to copy the same; or if not so ex- hibited, may prohibit it being given in evidence. , [1783.] 46. PLEADINGS TO BE MADE CERTAIN. Either party may object to a pleading by his ad- versary, or to any part thereof that is not sufficiently explicit for hi to understand it, or that it contains no cause of action or defense, although it be taken as true. If the court deem the objection well founded, it shall order the pleading to be amended; and if the party refuse to amend, the defective pleading shall be disregarded. [1786.] 47. THE PARTS OF A COMPLAINT. The complaint is roughly divisible into five parts: (1) The title. (2) The names of the parties. (3) A statement of the cause of action. (4) The demand or prayer for relief. (5) The oath, or verification. 48. TITLE. This is the venue or county and state in which the court has jurisdiction which is to try the case. It is important that the title show the name of the justice trying the cause, as: 22 JUSTICE OP THE PEACE GUIDE. "In Justice's Court. Before James C. Smith, Justice of the Peace, Seattle Pre- cinct, King County, Washington," 49. PARTIES. First the name of the plaintiff and then the name or names of the defendant or defendants. When the true name of a party is not known, a fictitious name may be inserted, as "John Doe Brown (whose true Christian name is to the plaintiff unknown)," or "John Doe (whose true Christian name is to the plaintiff unknown)." If the plain- tiff or defendant be a corporation, the name should appear "Seattle Wire Works, a corporation." If the parties should be partners, it is proper to entitle them "James Jones and William Mitchell, copartners, doing business under the designation of Tacoma Laundry." 50. THE STATEMENT OP THE CAUSE OF AC- TION PLAIN LANGUAGE. Leave many syllabled words to scientific treatises, and flowery expressions to love letters. Be clear in your think- ing and you will be clear in your pleading. State your case simply and effectively and only state it once. Don't keep repeating and enlarging on your troubles. If you are suing the defendant for the price of a barrel of sugar, say directly that it was sugar, that it was a barrelful, and that the agreed price was what it was. Do not go into the whole question of the origin of that sugar, how it was grown in the cane in sunny Demerara, how it was ex- tracted from the cane, and the name of the vessel by which it was imported into the United States, and whether or not the crew of that vessel were well fed and received their wages. Remember, we are all suspicious of the story which is told hidden and secreted in a mass of irrelevant matter, and this attitude, consciously or unconsciously, is adopted by all who have to consider redundant pleadings. 81. BE CERTAIN. State as positively as you can the facts surrounding the transaction in question. Be particular to show the facts THE PLEADINGS. 23 of time, place, values and parties where those facts are necessary to a clear presentation of your case. When you are not certain, you may allege that the transaction took place some time within the statute of limitations, as "dur- ing the two years last past." This, however, invites your opponent to demand an itemized statement of the business, or bill of particulars as it is called, and will delay the judg- ment of your cause. When there are a great many items, of course, you may properly allow your adversary a bill of particulars. 52. AMBIGUITY. The effect of words that have either no definite sense or else a double one. ft 53. DUPLICITY. This means uniting in one count matters which really are two causes of action to support one claim of recovery. 54. REPUGNANCY. Simply statements in your cause of action which do not agree or contradict each other. The whole effort of the pleader is to tell a straight story. With this purpose fixedly in mind you will, without being an expert pleader, be able to determine whether or not you are ambiguous or confused. 55. EVIDENTIARY FACTS. It is improper to plead in your complaint those details of a transaction which should be brought out by the evi- dence upon the trial of your cause. Clear your paragraphs of all such, allov;ing each clause in your statement to be a bare but fruitful branch which shall blossom with evi- dence in the proper season. 56. GENERAL STATEMENTS. When the possession of property is in dispute, allege generally the plaintiff's right and title thereto. By or against a corporation, allege its legal existence. In ac- tions upon a contract, allege the consideration. This is 24 JUSTICE OP THE PEACE GUIDE. not necessary in those contracts in which the law presumes a consideration. This implied consideration operates usu- ally in the matter of negotiable instruments. 57. NEATNESS. Not the least virtue is the neat preparation of pleadings. Each separate statement should be numbered and para- graphed as in the sample form. 58. JOINDER OF CAUSES OF ACTION. The plaintiff may unite several causes of action in the same complaint, when they all arise out of: (1) Contract, express or implied; or (2) Injuries, with or without force, to the person; or (3) Injuries, with or without force, to property; or (4) Injuries to character; or (5) Claims to recover personal property, with or without damages, for the withholding thereof; or (6) Claims against a trustee, by virtue of a contract or by operation of law. But the causes of action, so united, must affect all the parties to the action, and not require different places of trial, and must be separately stated. [296.] 59. THE PRATER FOR RELIEF. If the plaintiff is suing for the price of a barrel of sugar, say valued at five dollars, he will conclude his statement of the transaction by asking judgment for the five dollars, together with all the costs for filing his complaint, his wit- nesses, and so forth, and the statutory attorney's fee, and for such other and further relief as to the court may seem proper. 60. VERIFICATION. Every complaint, answer, or reply shall be verified by the oath of the party pleading; or if he be not present, by the oath of his attorney or agent, to the effect that he believes it to be true. The verification shall be oral or in writing, in conformity with the pleading verified. [1784.] This is the oath which seals the complaint. The com- plaint is insufficient without such verification. THE PLEADINGS. 25 GENERAL FORM. The Complaint in Action upon a Promissory Note. In Justice's Court. Before R. R. George, Justice of the Peace, in and for Seattle Precinct, King County, State of Washing- ton. No. 41,144. Nathaniel Grumble, Plaintiff, vs. Jonathan Quibble, Defendant. _, COMPLAINT. Comes now the plaintiff and for cause of action against the defendant alleges: L That plaintiff and defendant are residents of Seattle Precinct, King County, state of Washington; n. That on the 1st day of August, 1911, at Seattle, King County, state of Washington, the defendant, Jonathan Quibble, made his certain promissory note in writing, bearing date the 1st day of August ; the said note being in words and figures as follows, to wit : [make an exact copy of the note] , and then and there delivered the said note to the plaintiff herein ; m. That the plaintiff is the holder and owner of said note ; that the same has not been paid, nor any part thereof. Wherefore the plaintiff prays that he have judgment against the defendant in the sum of [principal of note], together with interest thereon amounting to [insert here interest], together with his costs and disbursements in this suit incurred. NATHANIEL GRUMBLE, Plaintiff. 26 JUSTICE OP THE PEACE GUIDE. State of Washington, County of King, ss. Nathaniel Grumble, being first duly sworn, on oath deposes and says, that he is the plaintiff in the above- entitled action, that he has read the foregoing com- plaint, knows the contents thereof and believes the same to be true. NATHANIEL GRUMBLE. VERIFICATIONS. State of Washington, County of King, ss. John Borne, being first duly sworn, says that he is the plaintiff in the above-entitled action; that he has read [or heard read] the foregoing complaint, knows the contents thereof, and believes the same to be true. JOHN BORNE. Subscribed and sworn to before me this 3d day of April, 1912. WM. SEAL, Notary Public in and for the State of Washington, Re- siding at Seattle. VERIFICATION BY PLAINTIFF'S ATTORNEY. State of Washington, County of King, ss. James Calf, being first duly sworn, says that he is the attorney for the plaintiff in the above-entitled action; that he has read the foregoing complaint, knows the contents thereof and believes the same to be true; and that plaintiff is not present to make this verification. JAMES CALF. Subscribed and sworn to before me this 3d day of May, 1911. WM. SEAL, Notary Public in and for the State of Washington, Re- siding at Seattle. 61. WHEN PLEADINGS TAKE PLACE. The pleadings in justice's court shall take place upon the appearance of the parties, unless they shill have been previously filed, or unless the justice shall, for good cause shown, allow a longer time than the time of appearance. [1778.] TAKING THE CAUSE INTO COUET. 27 CHAPTER IV. TAKING THE CAUSE INTO COURT. 62. The notice. 63. The service of complaint and notice. 64. Time of service. 65. Bj whom service may be made By appointed persona. 66. By publication. 67. How weekly publication is made. 68. Sheriffs, constables, and other persona. 69. Manner of service. 70. Certified copy. 71. Service when there are two or more defendants. 72. The return of process and proof of service Penaltj. 73. How service is proved. 74. Rules adopted by King County justices. 75. Other methods of commencing actions. 76. Action commenced by summons. 77. Action commenced by complaint and notice. 78. The defendant's answer, etc. 79. When the defendant is in default. 80. The dismissal of the action. 81. The defendant's appearance. 82. The special appearance. 83. The continuance. 84. Continuance by agreement of the parties, 85. Amendments generally. 86. The answer of the defendant. 87. The denial. 88. Denial of knowledge or information. 89. Undenied allegations admittedly true. 90. General rules governing the preceding pleadings Amendments. 91. Filing amended pleadings. 92. Variance between the pleadings and the proof. 93. Immaterial variance. 94. Practice in case of variance. 95. Failure to prove. 96. Amendments generally. 97. Setoffs. 98. Counterclaims. 99. Setoffs generally. 100. Allowing setoff. 101. The plaintiff's reply. 28 JUSTICE OP THE PEACE GUIDE. You have now prepared your complaint and it has been verified, or sworn to. Now is the time to begin putting the agency of the law into operation; in other words, you are ready to bring the cause into court. 62. THE NOTICE. Any person desiring to commence an action before a justice of the peace, by the service of a complaint and notice, can do so by filing his complaint verified by his own oath or that of his agent or attorney with the justice, and when such complaint is so filed, upon payment of his fees if demanded, the justice shall at- tach thereto a notice, which shall be substantially as follows: FORM. State of Washington, County, ss. To (In the name of the state of Washington). You are hereby notified to be and appear at my office in on the day of , 19 , at the hour of M., to answer to the foregoing com- plaint or judgment will be taken against you as con- fessed and the prayer of the plaintiff granted. Dated , 19. ... [1759.] J. P. The practice generally is for the attorney or the person desiring to commence an action in the justice court to ob- tain from the clerk of the court a blank printed notice, which blanks are supplied free of charge. The pleader will fill in the name of the justice and the names of the parties, leaving the date of the return day blank and leav- ing blank the line for the justice's signature. He will draw his complaint with an original and two carbon copies thereof, the original to be filed with the clerk of the court, one copy to be served upon the defendant and the plain- tiff retaining the last copy for his own use and reference. You now have the original complaint attached to the original notice blank. You also have a copy of the com- plaint attached to a copy of the notice. These two sets you will take to the clerk of the court, leaving your third copy in your office files. TAKING THE CAUSE INTO COURT. 29 You present your original complaint with the notice at- tached to the clerk and will pay him the filing fee of one dollar. The clerk then puts the next consecutive number on the original complaint, which is the number under which it will be hereafter distinguished in all the records. You should copy that number onto the copy of the complaint and notice which you have brought with you. The next thing is for the clerk to give you the return day, or the day on which the defendant must make his appearance and answer in the cause. If it is a busy justice court with a great many cases awaiting deliberation, the return day may be some weeks off. When the clerk fills in on the original notice the date of return, you copy that date into your copy of the notice. ' The clerk will then affix the justice's signature to the original notice and you will enter the signature on your copy of the notice. You receive a receipt for your one dollar filing fee and depart, leaving the original complaint and notice in the files of the court and taking with you the copy of the complaint and notice, which are now ready for service on the defendant. Of course, it is not necessary for you to take that copy into court when you file your original; you may get the number of the case and the return day from the clerk and enter them on your copy when you get back to the office. You will guard against error and confusion, how- ever, by following the method I have outlined to you above. What the clerk does with the original you have left with him is considered under the duties of the justice of the peace; but as we are following the case step by step to judgment and execution, we will consider next 63. THE SERVICE OF COMPLAINT AND NOTICE. Let us assume that you filed your original complaint and notice with the court on- the first day of April and that the return day has been set on the fifteenth day of the same month. 30 JUSTICE OP THE PEACE GUIDB. 64. TIME OP SERVICE. The complaint and notice shall be served at least five days before the time mentioned in the notice for the defendant to appear and answer the complaint, by delivering to the defendant, or leaving at his place of abode, with some person over twelve years of age, a true copy of the complaint and notice, certified by the officer or person making the service to be such. [1761.] 65. BY WHOM SERVICE MAY BE MADE BY AP- POINTED PERSONS. Any justice may, by appointment in writing, author- ize any person other than the parties to the proceeding, or action, to serve any subpoena, summons, or notice and complaint issued by such justice; and any such person making such service shall return on such process or paper, in writing, the time and manner of service, and shall sign his name to such return, and be entitled to like fees for making such service as a sheriff or con- stable, and shall indorse his fees for service thereon: Provided, it shall not be lawful for any justice to issue process or papers to any person but a regularly qual- ified sheriff or constable, in any precinct where such officers reside, unless from sickness or some other cause said sheriff or constable is not able to serve the same: Provided further, that it shall be lawful for notice and complaint or summons in a civil action in the justice court to be served by any person over the age of twenty-one years and not a party to the action in which the summons or notice and complaint shall be issued without previous appointment by the justice. [1764.] 66. BY PUBLICATION. In case personal service cannot be had by reason of the absence of the defendant from the county in which the action is sought to be commenced, it shall be proper to publish the summons or notice with a brief state- ment of the object and prayer of the claim or com- plaint, in seme weekly newspaper published in the county wherein the action is commenced; or if there is no paper published in such county, then in some news- paper published in the nearest adjoining county, which notice shall be published not less than once a week for three weeks prior to the time fixed for the hearing of the cause, which shall not be less than four weeks from TAKING THE CAUSE INTO COURT. 31 the first publication of said notice. Said notice may be substantially as follows: FORM. State of Washington, County of , ss. In Justice's Court, , Justice. To : You are hereby notified that has filed a complaint [or claim, as the case may be] against you in said court which will come on to be heard at my of- fice in , in County, Wash., on the day of A. D. 19 , at the hour of o'clock .... M., and unless you appear and then and there answer, the same will be taken as confessed and the demand of the plaintiff granted. The object and demand of said claim [or complaint, as the case may be] is [here insert a brief statement]. , J. P. Complaint filed , A. D. 19 [1766.] SERVICE BY PUBLICATION. Affidavit for Publication. In Justice's Court, etc. [CaseJv James Words, being first duly sworn, says that he is the plaintiff in the above-entitled action; that the de- fendant cannot after due diligence be found within the said county of King; that a summons was duly issued against said defendant and placed in the hands of Henry Badge, a constable of said county, for service, but has been returned by the said Henry Badge with his indorse- ment thereon; that defendant could not be found in said county and that no place of his abode could be found in said county; which summons so indorsed is now on file in said court. That a cause of action exists against the said defend- ant in favor of the plaintiff, as appears by the complaint of the plaintiff on file in this cause. JAMES WORDS. Subscribed and sworn, etc. 32 JUSTICE OP THE PEACE GUIDE. ORDER TO PUBLISH SUMMONS. In Justice's Court, etc. [Case.] The affidavit of James Words, the plaintiff in the above-entitled action, having been filed herein, and it appearing from the said affidavit that the plaintiff has a just cause of action against the defendant herein, and it further appearing from such affidavit, and from the return upon the complaint and notice [or summons] herein as well, that personal service cannot be had upon the defendant, for the reason that he cannot be found within the said county and has no known place of abode therein : It is hereby ordered that the service of the summons in this action be made upon the said defendant, requir- ing him to appear before the undersigned, one of the justices of the peace in and for Seattle Precinct, King County, on the 3d day of January, 1912, at 9:30 o'clock in the forenoon, at my office, in room 602, Prefontaine Building, in the city of Seattle, King County, to answer to James Words, the plaintiff, in a civil action, by pub- lication of said summons in the "Broken Bugle," a weekly newspaper published in said King County, once in each week for three consecutive weeks. Given under my hand this 12th day of December, 1911. R. R. GEORGE, Justice of the Peace. SUMMONS FOR PUBLICATION. [Case.] To Vernon Deaf, Greeting: In the name of the state of Washington, you are hereby notified that James Words has filed a complaint against you in said court, which will come on to be heard at my office, in room 602, Prefontaine Building, in the city of Seattle, King County, state of Washington, on the 3d day of January, 1912, at the hour of 9:30 o'clock in the forenoon of said day, and unless you appear and then and there answer, the same will be taken as con- fessed, and the demand of the plaintiff granted. The object of said complaint is to recover [state gen- erally the demand]. Complaint filed December 12, 1911. R. R. GEORGE, Justice of the Peace. TAKING THE CAUSE INTO COURT. 33 67. HOW WEEKLY PUBLICATION IS MADE. The publication of legal notices required by law, or by an order of a judge or court, to be published in a newspaper once in each week for a specified number of weeks, shall be made on the day of each week in which such newspaper is published. [253.] FORM. AFFIDAVIT OF PUBLICATION. State of Washington, etc. I, James Inker, on oath declare that I am the pub- lisher [printer, or foreman] of the "Broken Bugle," a weekly newspaper published in King County, Wash- ington, and of general circulation in said county; and that the summons, of which the annexed is a printed copy, was published in said newspaper three tunes con- ' secutively for three successive weeks ; that the first pub- lication thereof was made on the day of , and the last publication was made on the .... day of Signature. 68. SHEEIFFS, CONSTABLES, AND OTHER PER- SONS. Sheriffs and constables are officers authorized by law to serve process or complaint and notices, yet it is provided that service may be made of summons or notice and com- plaint as follows: but a summons or notice and complaint may be served by any citizen of the state of Washing- ton over the age of twenty-one years and not a party to the action. 69. MANNER OF SERVICE. The summons or notice and complaint shall be served by delivering a copy thereof, as follows: 1. If the action be against any county in this state, to the county auditor. 2. If against any town or incorporated city in the state, to the mayor thereof; 3. if against a school district, to the clerk thereof; 3 34 JUSTICE OF THE PEACE GUIDE. 4. If against a railroad corporation, to any station, freight, ticket or other agent thereof within the county ; 5. If against a corporation owning or operating sleeping-cars, or hotel cars, to any person having charge of any of its cars or any agent found within the county; 6. If against an insurance company, to any agent, authorized by such company to solicit insurance within this state. 7. If against a company or corporation doing any express business, to any agent authorized by said com- pany or corporation to receive and deliver express mat- ters and collect pay therefor within this state; 8. If the suit be against a company or corporation other than those designated in the preceding subdi- visions of this section, to the president or other head of the company or corporation, secretary, cashier or managing agent thereof; 9. If the suit be against a foreign corporation or nonresident joint stock company or association doing business within this state, to any agent, cashier or sec- retary thereof; 10. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, guardian, or if there be none within this state, then to any person having the care or control of such minor, or with whom he resides, or in whose service he is employed, if such there be; 11. If against any person for whom a guardian has been appointed for any cause, then to such guardian; 12. Whenever any domestic or foreign corporation, which has been doing business in this state, has been placed in the hands of a receiver and the receiver is in possession of any of the property or assets of such corporation, service of all process upon such corpora- tion may be made upon the receiver thereof; 13. In all other cases, to the defendant personally, or by leaving a copy of the summons or complaint and notice at his place of abode as specified in sections three hundred and fifty-four and three hundred and fifty-six. Service made in the modes provided in this section shall be taken and held to be personal service. [226.] TAKING THE CAUSE INTO COURT. 35 70. CERTIFIED COPY. The defendant must be served with a certified copy of the complaint and notice, and the certification of the per- son serving such complaint and notice should appear on the defendant's copy. 71. SERVICE WHEN THERE ARE TWO OR MORE DEFENDANTS. The following provisions apply to cases where there are two or more defendants, and also when summons is served on one or more but not on, all of them: 1. If the action is against defendants jointly in- debted upon a contract, he (the plaintiff) may proceed against the defendants served unless the court other- wise directs; and if he recovers judgment it may be entered against all the defendants thus jointly indebted ' so far only as it may be enforced against the joint prop- erty of all and the separate property of the defendants served; 2. If the action is against defendants severally liable he may proceed against the defendants served in the same manner as if they were the only defendants; 3. Though all of the defendants may have been served with the summons, judgment may be taken against any of them severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them alone. [236.] 72. THE RETURN OF PROCESS AND PROOF OF SER- VICEPENALTY. The server, whether he be sheriff, constable or unofficial but qualified person, having served the defendant in ac- cordance with law, or publication of notice having been made in some weekly newspaper, the agent making such service makes his return as follows: Every constable or sheriff serving any process or complaint and notice, shall return thereon in writing the time, manner and place of service, and indorse thereon the legal fees therefor, and shall sign his name to such return. [1763.] If any officer, without showing good cause therefor, fail to execute any process to him delivered, and make 36 JUSTICE OP THE PEACE GUIDE. due return thereof, or make a false return, such offi- cer, for every such offense, shall pay to the party in- jured ten dollars, and all damage such party may have sustained by reason thereof, to be recovered in a civil action. [1776.] 73. HOW SEEVICE IS PROVED. When the person to whom process or complaint and notice has been delivered, to be served upon the defendant, shall have made his service as set forth in the above stat- utes, he shall make proof of the fact of such service in the following ways: 1. When made by a constable or sheriff, his return signed by him and indorsed on the paper or process ; 2. When made by any person other than such offi- cer, then by the affidavit of the person making the ser- vice. [1765.] 3. Proof of service in case of publication shall be the affidavit of the publisher, printer, foreman or prin- cipal clerk, showing the same, and [1767.] 4. The written admission of the defendant, his agent or attorney, indorsed upon any summons, complaint and notice, or other paper, shall be complete proof of service in any case. [1768.] FORM. RETURN OP SERVICE BY OFFICER. State of Washington, etc. I hereby certify and return that the within summons [or complaint and notice] came to my hands on the 4th day of December, 1911, and that thereafter on the 4th day of December, 1911, 1 served the same by deliver- ing to and leaving with Jonathan Quibble, the defend- ant named therein, at the city of Seattle, in said county, a full, true and correct copy of said summons [or com- plaint and notice], duly certified by me to be such. Dated this 5th day of December, 1911. HENRY BADGE, Constable. Service $.60 Copy 20 Mileage 2 miles 20 Total $1.00 TAKING THE CAUSE INTO COURT. 37 RETURN OP APPOINTED SERVES. State of Washing-ten, etc. H. Willing, of King County, state of Washington, being first duly sworn, says that the within summons [or complaint and notice] came to his hands on the 4th day of December, 1911, and that thereafter and on the 4th day of December, 1911, I served the same by delivering to and leaving with Jonathan Quibble, the defendant therein named, at the city of Seattle, in said county, a full, true and correct copy of said summons [or com- plaint and notice] duly certified by me to be such; and that his fees for the said service are as follows, to wit: Service on one defendant, 60c, and six miles' travel, 60c. H. WILLING. RETURN BY OFFICER WHEN DEFENDANT NOT SERVED. State of Washington, etc. I hereby certify and return that the within summons [notice and complaint] came to my hands on the 4th day of December, 1911, and that thereafter on the 4th day of December, 1911, I served the same by leaving a true copy thereof, certified by me to be such, at his place of abode in said county with one Annie Board, a person over twelve years of age , defendant not being found. Dated this 5th day of December, 1911. HENRY BADGE, Constable. Fees: Service $ .60 Copying 40 Mileage 2 miles 20 Total $1.20 RETURN OF SERVICE NOT FOUND. State of Washington, etc. I hereby certify that the within summons [or com- plaint and notice] came to my hands on the 4th day of December, 1911, and that I made diligent search and inquiry for the within named defendant, Jonathan Quibble, in the county of King and state of Washington, but was unable to find him, and could not ascertain, after diligent search and inquiry, that he had a place 38 JUSTICE OP THE PEACE GUIDE. of abode in said county, and for that reason I return this summons not served. Dated this 4th day of December, 1911. HENRY BADGE, Constable. SERVICE ON CORPORATION AND RAILROAD. Add: "By delivering a true copy thereof, certified by me to be such, to Thomas Mint, the president [or what his official title may be] thereof." For a municipal corporation add: "The mayor of said city [or what the proper officer may be]." For a railroad: "Percy Punch, the acting station agent of such railroad company, the defendant, in said county and state, etc. ' ' 74. RULES ADOPTED BY KING COUNTY JUSTICES. The following rules will be rigorously enforced on and after November 1, 1911, in the justice courts of Seattle Precinct, King County, Washington : I. Parties must be ready in all cases set for trial or cases will be dismissed. Exceptions will be made where the parties or their attorneys are engaged in a trial in the superior court, in which event an affidavit to that effect must be filed on or before 9 :30 A. M. on the day on which the said cases are set for trial. n. In all cases in which there is no appearance by the plaintiff or his attorney at 9:30 A. M. or within one hour thereafter, an order of dismissal will be entered. HI. Proof of service in all default cases must be on file by 10:30 A. M. on the return day of the notice, or a dismissal will be entered. 75. OTHER METHODS OF COMMENCING ACTIONS. Civil actions in the several justices' courts of this state may be instituted either by the voluntary appear- ance and agreement of the parties, by the service of a summons, or by the service upon the defendant of a true copy of the complaint and notice, which notice TAKING THE CAUSE INTO COUET. 39 shall be attached to the copy of the complaint, and cite the defendant to be and appear before the justice at the time and place therein specified, which shall not be less than six nor more than twenty days from the date of filing the complaint. [1755.] 76. ACTION COMMENCED BY SUMMONS. A party desiring to commence an action before a jus- tice of the peace for the recovery of a debt by sum- mons shall file his claim with the justice of the peace, verified by his own oath, or that of his agent or attor- ney; and thereupon the justice of the peace shall, on payment of his fees, if demanded, issue a summons to the opposite party, which summons shall be in the fol- lowing form, or as nearly as the case will admit, viz. : FORM. The State of Washington, County, s&. To the Sheriff or Any Constable of Said County. In the name of the state of Washington, you are hereby commanded to summon if he [or they] be found in your county, to be and appear before me at on day of at o'clock A. M. [or P. M.], to answer the complaint of for a failure to pay him a certain demand, amounting to dollars and cents, upon [here state briefly the nature of the claim] ; and of this writ make due service and return. Given under my hand this day of , 19.. Justice of the Peace. And the summons shall specify a certain place, day, and hour for the appearance and answer of the defend- ant, not less than six nor more than twenty days from the date of filing plaintiff's claim with the justice, which summons shall be served at least five days before the time of trial mentioned therein, and shall be served by the officer delivering to the defendant, or leaving at his place of abode, with some person over twelve years of age, a true copy of such summons, certified by the officer to be such. [1758.] The general method of commencing an action in the justice court is by complaint and notice; the complaint 40 JUSTICE OF THE PEACE GUIDE. being prepared as set forth, under the heading of the "Com- plaint." 77. ACTION COMMENCED BY COMPLAINT AND NOTICE. Any person desiring to commence an action before a justice of the peace by the service of a complaint and notice can do so by filing his complaint, verified by his own oath or that of his agent or attorney, with the jus- tice, and when such complaint is so filed, upon payment of his fees, if demanded, the justice shall attach thereto a notice which shall be substantially as follows : FORM. The State of Washington, County, ss. To ......... In the name of the state of Washington, you are hereby notified to be and appear at my office in on the day of , 19 , at the hour of M., to answer the foregoing complaint, or judgment will be taken against you as confessed, and the prayer of the plaintiff granted. Dated . .19.. J. P. [1759.] 78. THE DEFENDANT'S ANSWER, ETC. The complaint has been drawn and filed, the copy and notice have been served on the defendant in one of the ways specified in the preceding chapter, and it is now time for the defendant to meet the attack. 79. WHEN THE DEFENDANT IS IN DEFAULT. First of all, we will assume that the defendant refuses to obey the notice and decides to allow the plaintiff's action to take its course. He refuses to make any appearance or serve and file any pleadings in the case. He is therefore liable to have judgment rendered against him as confessed. When the defendant fails to appear and plead at the time specified in the notice, or within one hour there- after, judgment shall be given as follows: TAKING THE CAUSE INTO COUBT. 41 1. When the defendant has been served with a true copy of the complaint, judgment shall be given without further evidence for the sum specified therein; 2. In other cases, the justice shall hear the evidence of the plaintiff, and render judgment for such sum only as shall appear by the evidence to be just, but in no case exceed the amount specified in the complaint. [1858.] In taking the defendant's default, particular notice should be paid to the rules adopted by the King County justices set forth in the preceding chapter. FORM. JUDGMENT ON DEFAULT. August 1st, 1910, at 9:30 o'clock A. M., the case being called, plaintiff appeared, but defendant did not appear , within one hour after the time specified in the summons. Plaintiff testified in his own behalf under bath. Case rested. Whereupon, it is adjudged this 1st day of Au- gust, 1910, that the plaintiff recover of the defendant the sum of ten dollars, his damages as confessed [or proven] and costs of this action incurred, taxed at $7 and $5 attorney's fees, making a total judgment against the defendant of twenty-two dollars. J P. 80. THE DISMISSAL OF THE ACTION. If the dispute has been settled before the return day, the case may be dismissed. Usually in the settlement of the case the plaintiff will demand his costs, that is, the filing fee of one dollar; the cost of service, treated of under the head of "Costs," and the statutory attorney's fee of five dollars. Judgment that the action be dismissed, without prejudice to a new action, may be entered, with costs, in the following cases : 1. When the plaintiff voluntarily dismisses the action before it is finally submitted; 2. When he fails to appear at the time specified in the notice, upon continuance, or within one hour thereafter ; 3. When it is objected at the trial, and appears by the evidence, that the action is brought in the wrong county; but if the objection be taken and overruled, it shall be cause only of reversal or appeal; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal. [857.] 42 JUSTICE OP THE PEACE GUIDE. In every case other than those wherein judgment of dis- missal is rendered, the judgment shall be rendered on the merits. FORM. JUDGMENT ON DISMISSAL. [State here that plaintiff has failed to appear, or that he has dismissed the case, etc.] Wherefore, it is adjudged this 1st day of August, 1010, that this action be dismissed without prejudice to the plaintiff to bring a new action for the same cause, and that the defendant have and recover of the plaintiff his costs in this action taxed at seven dollars. J P. 81. THE DEFENDANT'S APPEARANCE. Let us assume, however, that the defendant decides to con- test the action. On the return day, he will make what is called the appearance in person or by attorney. Previously to the return date, however, he will be said to appear in the action when he answers or demurs or gives the plaintiff writ- ten notice of his appearance. A defendant appears in an action when he answers, demurs, makes an application for an order therein, or gives the plaintiff written notice of his appearance. After appearance a defendant is entitled to notice of all subsequent proceedings; but when a defendant has not appeared, service of notice or papers in the ordinary proceedings in an action need not be made upon him. Every such appearance made in an action shall be deemed a general appearance, unless the defendant in making the same states that the same is a general ap- pearance. [241.] The parties shall be entitled to one hour in which to make their appearance after the time mentioned in the summons or notice for appearance, but shall not be re- quired to remain longer than that time, unless both par- ties appear, and the justice, being present, is actually engaged in the trial of another action or proceeding; in such case he may postpone the time of appearance until the close of such trial. [1773.] 82. THE SPECIAL APPEARANCE Is an appearance made to take advantage of any defect or defects ; as, for instance, the want of jurisdiction. This is an. TAKING THE CAUSE INTO COURT. 43 appearance that must be made carefully and with the distinct understanding that it is a special appearance, and must be properly made as to form, or it will react on the party to give the court jurisdiction. The defendant having appeared generally, the justice will then set the case down for trial, the time of trial being de- termined by the number of cases ahead of any given one. 83. THE CONTINUANCE. The necessity of procuring certain evidence may compel the defendant to ask that the cause be continued until such time as he can get the desired witness into court or else take his deposition. Or there may be other good cause for continu- ance, in which case a continuance fee of twenty-five cents shall be paid to the clerk of the court. But the limit of such continuance shall be sixty days. A continuance for more than sixty days will devest the justice of jurisdiction. When the pleadings of the parties shall have taken place the justice shall, upon the application of either party if the defendant be not under arrest, and sufficient cause be shown on oath, continue the case for any time not exceeding sixty days. If the continuance be on account of absence of testimony, it shall be for such reasonable time as will enable the party to procure such testimony, and shall be at the cost of the party applying therefor, unless otherwise ordered by the justice; and in all other respects shall be governed by the law ap- plicable to continuances in the superior court. [1847.] 84. CONTINUANCE BY AGREEMENT OF THE PARTIES. A continuance for more than sixty days will not operate to devest the justice of jurisdiction, if the continuance is made on the agreement of the parties and the docket so shows. 85. AMENDMENTS GENERALLY. The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, to supply any deficiency or omissions in the allegations or denials necessary to support the action or defense, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court that a 44 JUSTICE OF THE PEACE GUIDE. continuance is necessary to the adverse party in conse- quence of such amendment, a continuance shall be granted. The court may also, in its discretion, require as a condition of an amendment the payment of costs to the adverse party. [1788.] 86. THE ANSWER OF THE DEFENDANT. We have seen that the pleadings in the justice court shall consist of the complaint, the answer and the reply. Let us consider, now, the answer of the defendant. Remember that the pleadings may be either spoken or writ- ten, so that, if you are the defendant, it is not necessary for you to write out your answer. You may come into court on the return day and simply say that the answer is a general denial. When you have any facts which it is necessary to set forth at length by way of setoff or counterclaim, it is ex- pedient to make the answer then in writing. The answer of the defendant which may contain a denial of the complaint, or any part thereof, and also a statement in a plain and direct manner of any facts constituting a defense. [1779.] 87. THE DENIAL. The denial may go to each and every allegation of the plain- tiff's complaint, thus putting the plaintiff on his proof of each separate statement. This is a denial of the complaint; or the denial may be specifically made to some material alle- gation or allegations of the complaint. The common form of the denial is as follows: "The defendant, for answer to the complaint of the plaintiff, denies each and every allegation thereof." 88. DENIAL OF KNOWLEDGE OR INFORMATION. The defendant may answer an allegation by denying that he has knowledge or information sufficient to form a belief concerning the truth thereof. [1782.] The answer must be verified by the defendant or his attorney in form similar to the verification of the complaint. TAKING THE CAUSE INTO COURT. 45 89. UNDENTED ALLEGATIONS ADMITTEDLY TEUE. It is a rule founded upon reason and logic that those ma- terial allegations of the complaint which the defendant does not deny are by his pilence admitted as true. Every material allegation of the complaint, or relat- ing to a setoff in the answer not denied by the pleading of the adverse party, shall, on the trial, be taken to be true; except that when a defendant who has not been served with a copy of the complaint fails to appear and answer, the plaintiff cannot recover without proving his case. [1785.] 90. GENERAL RULES GOVERNING THE PRECED- ING PLEADINGS AMENDMENTS. The pleadings may be amended at any time before the , trial, or during the trial, or upon appeal, to supply any deficiencies or omissions in the allegations or denials necessary to support the action or defense, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court that a continuance is necessary to the adverse party in conse- quence of such amendment, a continuance shall be granted. The court may also, in its discretion, require as a condition of an amendment the payment of costs to tiie adverse party. 91. FILING AMENDED PLEADINGS. When leave has been granted to amend the pleadings, the next step is to draw a new complaint or pleading, as the case may be, and filing that. Ths case will then be determined upon the new and not upon the old pleading. When any pleading or proceeding is amended before trial, mere clerical errors excepted, it shall be done by filing a new pleading, to be called the amended com- plaint, or otherwise, as the case may be. Such amended pleading shall be complete in itself, without reference to the original, or any preceding amended one. [304.] 92. VARIANCE BETWEEN THE PLEADINGS AND THE PROOF. It frequently happens that the pleader in drawing his pleadings will not have understood thoroughly some of the 46 JUSTICE OP THE PEACE GUIDE. details of the cause, with the result that when the witness is placed on the stand his evidence does not coincide with his sworn complaint. The aim of the court being to ascertain the truth, and it being more likely that the story told by the witness under examination and personally in the courtroom is true as against some difference in his pleadings, the effect will not be to brand the whole complaint or answer or what- ever the pleading as wholly false; but it is held not to be material. This rule is modified to the extent that the adverse party may not be prejudiced or misled by such variance. That is to say, he is not to be told one story in the complaint and then when he has prepared his whole case to meet that attack, find on the trial that the plaintiff departs entirely from the pleadings and leaves the defendant without adequate re- ply. In such a case the defendant is properly granted a con- tinuance to meet the new change of attack. Or, if that be not done, and it be really more than a case of variance, it shall be deemed a failure of proof. 93. IMMATERIAL VARIANCE. A variance between the proof on the trial and the allegations in a pleading shall be disregarded as imma- terial, unless the court be satisfied that the adverse party has been misled to his prejudice thereby. [1787.] 94. PRACTICE IN CASE OF VARIANCE. When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs. [300.] 95. FAILURE TO PROVE. When, however, the allegation of the cause of action or defense, to which the proof is directed, is not proved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof. [301.] 96. AMENDMENTS GENERALLY. The statute covering amendments generally is as follows : The court may, in furtherance of justice, and on such terms as may be proper, amend any pleadings or pro- TAKING THE CAUSE INTO COURT. 47 ceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may upon like terms, enlarge the time for answer or demurrer. The court may likewise, upon affidavit showing good cause therefor, after notice to the adverse party, allow upon such terms as may be just, an amendment to any plead- ings or proceedings in other particulars, and may upon like terms, allow an answer to be made after the time limited by this code, and may upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representatives, from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. [303.] 97. SETOFFS. In many cases the pleadings are not so simple that they cai> be mere matters of affirmation and denial. Frequently a case will grow out of complicated transactions between the plaintiff and the defendant wherein both parties have been indebted each to the other. The plaintiff may be suing the defendant on a promissory note of twenty-five dollars and the defendant may be the plaintiff's creditor on an open ac- count to the amount of fifty dollars. The defendant, admit- ting the note, will ask cancellation and judgment for twenty- five dollars and costs. To entitle a defendant to any setoff he may have against the plaintiff, he must allege the same in his answer; and the statutes regulating setoffs in the su- perior court shall in all respects be applicable to setoffs in a justice's court, if the amount claimed to be set off, after deducting the amount found due the plaintiff, be within the jurisdiction of the justice of the peace ; judg- ment may, in like manner, be rendered by the justice, in favor of the defendant, for the balance found due the plaintiff. [1789.] 98. COUNTERCLAIMS. When the defendant has a cause of action which springs from the transaction on which the plaintiff founds his action, and in which said action the defendant might himself ask for affirmative relief, he is said to have a counterclaim. 48 JUSTICE OP THE PEACE GUIDE. However, the terms "setoff" and "counterclaim," although technically distinct, are often used interchangeably. The counterclaim .... must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the com- mencement of the action. [265.] 99. SETOFFS GENERALLY. The following is a general statement: The defendant in a civil action upon a contract ex- pressed or implied may set off any demand of a like nature against the plaintiff in interest which existed and belonged to him at the time of the commencement of the suit. And in all such actions, other than upon a negotiable promissory note or bill of exchange negoti- ated in good faith, and without notice before due, which has been assigned to the plaintiff, he may also set off a demand of a like nature existing against the person to whom he was originally liable, or any assignee prior to the plaintiff of such contract, provided such demand existed at the time of the assignment thereof, and be- longing to the defendant in good faith before notice of such assignment, and was such a demand as might have been set off against such person to whom he was orig- inally liable, or such assignee while the contract be- longed to him. [266.] 100. ALLOWING SETOFF. When the setoff of the defendant proved shall exceed the claim of the plaintiff, and such excess in amount exceed the jurisdiction of a justice of the peace, the court shall allow such amount as is necessary to cancel the plaintiff's claim, and give the defendant a jadgment for costs; but in such case the court shall not render judgirent for any further sum in favor of the defendant. [1861.] TAKING THE CAUSE INTO COURT. 49 101. THE PLAINTIFF'S REPLY. If the defendant in his answer should allege a setoff or counterclaim such as we have seen above, the plaintiff shall reply thereto. 3. When the answer sets up a setoff by way of de- fense, the reply of the plaintiff. [1779.] This is, of course, only reasonable. If the defendant in his answer only denied the allegations of the complaint, an issue would thereupon be reached, and there would be no need of further response from the plaintiff. It would simply be a case of "yes" and "no," and which one is true. But if the defendant in his answer introduces the new matter of a setoff, the plaintiff is properly given opportunity to deny the new allegations. The new matter may be demurred to, and further, judgment may be rendered against the party failing to plead to new matter. The court shall establish the rules prescribing the time in which pleadings subsequent to the complaint shall be filed. FORM. REPLY. [Court and Cause.] Comes now the plaintiff, and replying to the answer of the defendant denies each and every allegation, mat- ter and statement in said answer contained and each and every portion thereof. Wherefore plaintiff prays judgment according to the demand of the complaint. J. S. SMITH, Attorney for Plaintiff. 4 50 JUSTICE OP THE PEACE GUIDE. CHAPTER V. THE TRIAL. 102. The venue or place of trial. 103. Venue of actions. 104. Change of venue. 105. Same as in superior court. 106. Only one change allowed. 107. Venue when private corporation is defendant. 108. Venue in other eases. 109. Manner of proceeding on change of venue. 110. Change of venue on affidavit. 111. Cost bond of nonresident plaintiff. 5 112. The demurrer. 113. Grounds of demurrer. 114. Bill of particulars. The cause is now ready to be tried. The parties to the trial are the plaintiff and defendant, in person or by their attorneys, the witnesses, the judge and the jury, if a jury has been demanded. 102. THE VENUE OB PLACE OP TRIAL. The venue means the place from which the jury comes who are to try the case; or the county where the cause of action arose, or the precinct fn which the court sits before whom the case is brought. 103. VENUE OF ACTIONS. All civil actions commenced in a justice court against a defendant or defendants residing in a city or town of more than three thousand inhabitants shall be brought in the justice court of the precinct in said city or town in which one or more of such defendants reside. [1756.] The jurisdiction of justices of the peace in all civil actions, except as provided in the preceding section, shall be coextensive with the limits of the county in which they are elected or appointed, and no other or greater, but every justice of the peace shall continue THE TRIAL*. 51 to reside and perform all the duties of his office in the precinct for which he was elected or appointed during his continuance in office. [1757.] 104. CHANGE OF VENUE. It may be that the defendant has reason to believe that in the court before whom the plaintiff has brought him he can- not have the fair and impartial trial which is guaranteed to all men. A change, then, of the place of trial most be granted upon the following grounds : The court may, on motion, in the following cases, change the place of trial, when it appears by affidavit or other satisfactory proof: 1. That there is reason to believe that an impartial trial cannot he had therein; or 2. That the convenience of witnesses or the ends of ' justice would be forwarded by the change; or 3. That from any cause the justice is disqualified; which disqualification exists in either of the following cases : In an action or proceeding to which he is a party, or in which he is interested ; when he is related to either party by consanguinity or affinity within the third de- gree; when he has been of counsel for either party in the action or proceeding. [209.] 105. SAME AS IN SUPERIOR COURT. Change of venue may be allowed for the same causes for which they are allowed in the superior court. [1775.] 106. ONLY ONE CHANGE ALLOWED. Neither party shall be entitled to more than one change of the place of trial, except for causes not in existence when the first change was allowed. [210.] 107. VENUE WHEN PRIVATE CORPORATION IS DEFENDANT. An action against a corporation may be brought in any county where the corporation has an office for the transaction of business, or any person resides upon whom process may be served against such corporation, unless otherwise provided in the code. [206.] 52 JUSTICE OP THE PEACE GUIDE. 108. VENUE IN OTHER CASES. In all other cases the action must be tried in the county in which the defendants, or some of them, reside at the time of the commencement of the action, or may be served with process. [207.] 109. MANNER OP PROCEEDING ON CHANGE OF VENUE. The justice should show in his docket that an affidavit has been made for change of venue, that it has been filed, and an order entered for the transfer of the cause to another justice. The new justice should then receive a transcript of all proceedings up to this point, together with all the papers and records in the action, so that he will be fully advised in the premises. 110. CHANGE OP VENUE ON AFFIDAVIT. If, previous to the commencement of any trial before a justice of the peace, the defendant, his attorney or agent, shall make and file with the justice an affidavit that the deponent believes that the defendant cannot have an impartial trial before such justice, it shall be the duty of the justice to forthwith transmit all papers and documents belonging to the case to the nearest justice of the peace in the same county, who is not of kin to either party, sick, absent from the county, or interested in the result of the action, either as counsel or otherwise. The justice to whom such papers and documents are so transmitted shall proceed as if the suit had been instituted before him. Distance, as con- templated by this section, shall mean to be by the near- est traveled route. The costs of such change of venue shall abide the result of the suit. [1774.] 111. COST BOND OF NONRESIDENT PLAINTIFF. If the defendant prevail against the plaintiff, his interest is to see that he secures the costs which the judgment may award him against the plaintiff. When the plaintiff is a non- resident of the county, the defendant may require security for the costs as follows : Whenever the plaintiff is a nonresident of the county, the justice may require of him security for the costs in a sum not exceeding fifty dollars at the time of the THE TRIAL. 53 commencement of the action, provided, however, that after an action has been commenced by a nonresident plaintiff and no security given for costs, the defendant may require such security by motion; when allowed all proceedings shall be stayed until such security shall be given. [1777.] 112. THE DEMURRER. "A demurrer is to rest or pause. It is an allegation that, admitting the facts of the preceding pleading to be true as stated by the party making it, it has yet shown no cause why the party demurring should be compelled by the court to proceed further. Its object is to sweep away a defective pleading, by raising issues of law upon the facts stated in the pleading demurred to." [3 Cyc. 270.] -113. GROUNDS OF DEMURRER. The code provides the following grounds of demurrer in this state: The defendant may demur to the complaint when it shall appear upon the face thereof either, 1. That the court has no jurisdiction of the person of the defendant or of the subject matter of the action; 2. That the plaintiff has no legal capacity to sue ; or 3. That there is another action pending between the same parties for the same cause; or 4. That there is a defect of parties, plaintiff or de- fendant; or 5. That several causes of action have been improperly united ; 6. That the complaint does not state facts sufficient to constitute a cause of action; 7. That the action has not been commenced within the time limited by law. [259.] In the superior court service is made of a written demurrer; in the justice court the demurrer may be made orally or in writing. 114. THE BILL OF PARTICULARS. This is a detailed or itemized statement of the separate parts of an account ; as where the plaintiff sues for groceries supplied to the defendant in various quantities of a total 54 JUSTICE OP THE PEACE GUIDE. value, say, of forty dollars, the defendant may demand a sworn statement setting forth the quantity of each item and the price thereof. Unless it appears that the complaint is sufficiently explicit, the court will grant the defendant a bill of particulars. This demand is usually made, of course, on or before the return day, as it is necessary to the defendant's proper defense. [284.] FORM. DEMAND FOR BILL OF PARTICULARS. [Court and Cause.] To William Jones, Attorney for Plaintiff, Samuel Smith. This is to notify you that the defendant hereby de- mands a bill of particulars, setting forth the items of the account whereon plaintiff is maintaining this action Dated November 1, 1910. THOMAS JUGGLER, Attorney for Defendant. THE JURY TRIAL. 55 CHAPTER VI. THE JURY TRIAL. f 115. Those exempt from jury service. 8 116. Those who are qualified to be jurors. 5 117. Demanding a jury Number Fees. f 118. Selecting the jury. 8 119. Summoning the jury. 120. Personal service. S 121. The juror's oath. 122. The verdict. 123. When the jury disagrees. 8 124. Juror failing to answer summons. i 125. Challenging, argument, etc. Trial by jury is one of the oldest institutions of our legal system. Either party may demand a trial by jury, in the justice courts as well as in the superior courts. The general difference is that a number less than twelve may sit as jurors in justice courts ; six being the number for the smaller court. As a rule, it is a duty incumbent on all qualified citizens to serve as jurors when properly summoned. By the nature of their occupations, however, some men are properly exempted from this duty. A list of those exempt follows : 115. THOSE EXEMPT FROM JURY SERVICE. Civil officers of the United States. Civil and judicial officers of the state. Attorneys at law. Ministers of the gospel or priests. School teachers. Practicing physicians. Locomotive engineers. Active members of fire department. Those who have served twice as jurors in two years. Persons over sixty years of age. [97] 116. THOSE WHO ARE QUALIFIED TO BE JURORS. The general run of men are qualified, however, as will be seen from the following: JUSTICE OF THE PEACE GUIDE, A person is not competent to act as a juror unless he be 1. An elector of the state of Washington ; 2. A male inhabitant of the county in which he is re- turned, and who has been an inhabitant thereof for the year next preceding the time he is drawn or called; 3. Over twenty-one years of age ; 4. In the possession of his natural faculties and of sound mind; 5. Able to read and write the English language ; 6. A person who has been convicted of a felony is not competent to act as a juror. [94.] 117. DEMANDING A JURY NUMBER FEES. The time to demand a jury is after the defendant has appeared in the action; the party demanding the jury pay- ing to the justice the sum of six dollars as fees for the jurors . After the appearance of the defendant, and before the justice shall proceed to inquire into the merits of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful men having the qualifications of jurors in the superior court of the same county unless the parties shall agree upon a less number ; provided, that the party demanding the jury shall first pay to the justice the sum of six dollars, which shall be paid over by the justice to the jury before they are discharged, and said amount shall be taxed as costs against the losing party. [1849.] The effect of demanding a jury is to continue the cause until the time fixed for the return of the jury . When a jury is demanded, the trial of the case must be adjourned until the time fixed for the return of the jury; if neither party desire an adjournment the time must be determined by the justice and must be on the same day or within the next two days. The jury must be immediately selected as herein provided. [1850.] 118. SELECTING THE JURY. In the superior court the jury is drawn from boxes con- taining a quantity of cards with the names of qualified per- sons on them, the drawing being done usually by a man blindfolded. As he draws out the cards, the attendant calls the name thereon and makes a note of the list for summon- THE JURY TRIAL. 57 ing later. The procedure is more direct in the justice court ; the judge writing in a panel the names of eighteen citizens of the county, both parties striking off names alternately until but six remain, which said six are then summoned for service. The justice shall write in a panel the names of eighteen persons, citizens of the county, from which the defendant, his agent or attorney, must strike one name; the plaintiff, his agent or attorney, one; and so on alternately until each party shall have stricken six names, and the remaining six names shall constitute the jury to try such case; and if either party neglect or refuse to aid in striking the jury as aforesaid, the justice shall strike the name in behalf of such party. [1851.] 119. SUMMONING THE JUEY. The six final names having been reached by the process of striking as above, the jurors are then summoned ; the said summons being served upon each member personally. The justice shall thereupon issue a summons for the jury, in which the following form shall be observed in substance : FORM. The State of Washington, County of , ss. The State of Washington to the Sheriff or Any Con- stable of Said County: You are hereby commanded to summon to appear before me at my office in precinct, said county, on the day of , A. D. 19 , at .... o'clock in the noon, to serve as jurors in a case pending before me, then and there to be tried. And this they shall in no wise omit : And have you then and there this writ, with your doings thereon. Given under my hand this the day of , A. D A.B., Justice of the Peace. [1852.] 120. PERSONAL SERVICE. The summons must be personally served on the jurors. Which said summons shall be personally served upon the persons named, and the same shall be returned, with 56 JUSTICE OP THE PEACE GUIDE. the names of the persons summoned, at the time ap- pointed for the trial of the cause. [1852.] 121. THE JUROR'S OATH. The jurors having been selected, the whole six are usually required to rise together and each holding up his right hand are then sworn. When the jury is selected, the justice shall administer to them an oath or affirmation, well and truly to try the cause. [1853.] FORM. Of Juror at Challenge: You do solemnly swear that you will true answers make to all such questions as shall be put to you, touch- ing your qualifications as a juror in the cause about to be tried between Nathaniel Grumble, plaintiff, and Jona- than Quibble, defendant. So help you God. Of Jurors Impaneled: You, and each of you, do solemnly swear that you will well and truly try the matter in issue between Nathaniel Grumble, plaintiff, and Jonathan Quibble, defendant, and a true verdict give according to the evidence as given you on the trial. So help you God. Of Bailiff in Charge of Jurors : You do solemnly swear that you will keep this jury together in some suitable place, without food or drink, except water, unless ordered by this court; that you will suffer no communication to be made to them, nor make any yourself about the cause, unless by order of this court, except to ask them whether they have agreed upon their verdict; that you will permit no person to overhear any conversation or discussion they may have while deliberating upon their verdict ; and that you will not, before their verdict is rendered to this court, com- municate to any person the state of their deliberations or the verdict agreed upon. So help you God. OATH TO JURORS IN CRIMINAL CAUSE. You and each of you do solemnly swear that you will well and truly try the issue in this action between the state of Washington and the defendant, and a true ver- dict give according to the evidence given you in court and the laws of this state. So help you God. THE JURY TRIAL* 59 122. THE VERDICT. When the jury have agreed on their verdict, they shall de- liver the same to the justice publicly, who shall enter it on his docket. FORM. VERDICTS. (In Criminal Action.) [Court and Cause.] We, the jury, in the case of the state of Washington, plaintiff, against William Wilfull, defendant, find the defendant guilty as charged [or not guilty]. Foreman. For Defendant: [Court and Cause.] We, the jury, find for the defendant [or plaintiff]. On Counterclaim or Offset : We, the jury, find for the defendant on his counter- claim, in the sum of eighty dollars. Foreman. For Plaintiff: [Court and Cause.] We, the jury, find for plaintiff, and assess his damages at seventy-five dollars. Foreman. For Defendant on Replevin: [Court and Cause.] We, the jury, find for defendant, and we find the value of the property in dispute to be eighty dollars, and that defendant is entitled to the return thereof from plaintiff. We also find for defendant in the sum of fifty dollars damages for the taking and detention of said property by the plaintiff herein. Foreman. For Plaintiff on Replevin: [Court and Cause.] We, the jury, find for plaintiff, and find the value of the property in dispute to be eighty dollars, and that 60 JUSTICE OP THE PEACE GUIDE. the plaintiff is entitled to the return thereof from the defendant. We also find for plaintiff in the sum of fifty dollars damages for the taking and detention of said property by defendant herein. Foreman. 123. WHEN THE JURY DISAGREES. When the jury cannot agree, they may be discharged and a new venire issued. Whenever a justice shall be satisfied that a jury sworn in any civil cause before him, having been out a reason- able time, cannot agree on their verdict, he may dis- charge them, and issue a new venire, unless the parties consent that the justice may render judgment on the evidence before him, or upon such other evidence as they may produce. [1855.] 124. JUROR FAILING TO ANSWER SUMMONS. Every person who shall be duly summoned as a juror, and shall not appear nor render a reasonable excuse for his default, shall be subject to a fine not exceeding ten dollars. [1856.] 125. CHALLENGING, ARGUMENT, ETC. When the jury shall have come into court, they are sworn to answer truly all questions properly propounded to them touching their qualifications to act as jurors (see "Qualifica- tions," 116). When the answer shows that the juror un- der examination is not qualified to act as juror, he may be challenged by either party, the challenge being said to be for "cause" as opposed to the "peremptory" challenge, or the challenge without cause assigned. The places vacant on the jury by challenge may be filled by the constable, who may select bystanders or persons in the court. All being then found qualified jurors, they are sworn to try the cause and the jury is said to be impaneled. At the conclusion of the evidence, counsel for both parties may address the jury in argument. The right of argument by counsel is as well estab- lished as the right of a party to be represented by coun- sel. Argument of a case is as much a part of the trial as the hearing of evidence. [18 Cent. Law Journal, 363.] THE WITNESSES. 61 CHAPTER VII. THE WITNESSES. f 126. Who may be witnesses. 9 127. Persona not qualified to be witnesses. 128. Disqualifications of witnesses by reason of relationship, etc. 129. Witnesses within twenty miles. 130. Service. 131. Compelling adverse party to testify. 132. Effect of party refusing to testify. 133. Party examined on his own behalf. 134. Witness failing to appear Liability for damages. 5 135. Writ of attachment for witness. 136. Writ to be served same as warrant. 137. Depositions. 138. Time of taking depositions. 139. Deposition taken out of state. 140. Depositions to be taken on notice. 141. Use of depositions. 9 142. Service of notice by publication. 5 143. Deposition to be written and certified. 144. Sealing and transmitting deposition. 145. Use on trial. The justice of the peace has authority to compel the attend- ance of persons as witnesses in his court within an area of twenty miles. The witness must be served with subpoena a command, under penalty, for the person to attend ; a penalty which may be enforced for the nonattendance of the person commanded. 126. WHO MAY BE WITNESSES. Every person of sound mind, suitable age and discretion, except as hereinafter provided, may be a witness in any action or proceeding. [1210.] It will be seen that there is no strict age requirement for a witness. As long as the witness is of years of discretion and able to appreciate the solemnity of an oath, he is qualified, even though he may be quite a young child. The fact that the witness may be one of the parties to the action does not, of necessity, disqualify him from testifying. 62 JUSTICE OF THE PEACE GUIDE. No person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of the action, as a party thereto or otherwise, but such in- terest may be shown to affect his credibility: Provided, however, that in an action or proceeding where the adverse party sues or defends as executor, administra- tor or legal representative of any deceased person, or as deriving right or title by, through or from any de- ceased person, or as the guardian or conservator of the estate of any insane person, or of any minor under the age of fourteen (14) years, then a party in interest or to the record, shall not be admitted to testify in his own behalf as to any transaction had by hi with, or any statement made to him by any such deceased or insane person, or by any such minor under the age of fourteen (14) years: Provided, further, that this exclu- sion shall not apply to parties of record who sue or defend in a representative or fiduciary capacity, and who have no other or further interest in the action. [1211.] 127. PERSONS NOT QUALIFIED TO BE WITNESSES. Insanity, intoxication, and being under the age of ten years will disqualify a witness. The provision against a child under ten years is conditional upon the child's inca- pacity of receiving true impressions of the facts in question or of relating them truly. Many facts, though, a child under ten years of age may be able to appreciate and relate, and generally he is allowed to take the stand. The following persons shall not be competent to testify: 1. Those who are of unsound mind, or intoxicated at the time of their production for examination, and 2. Children under ten years of age, who appear in- capable of receiving just impressions of the facts, re- specting which they are examined, or of relating them truly. [1213.] 128. DISQUALIFICATIONS OF WITNESSES BY REA- SON OF RELATIONSHIP, ETC. Public policy requires that the relationship existing be- tween certain persons shall be a bar to those persons acting as witnesses. There are confidential relations between people in THE WITNESSES. 63 some cases which the law will not violate, as husband and wife, lawyer and client, priest and parishioner. The following persons shall not be examined as wit- nesses : 1. A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the hus- band; nor can either, during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other. 2. An attorney or counselor shall not, without the consent of his client, be examined as to any communica- tion made by the client to him, or his advice given -thereon in the course of professional employment. 3. A clergyman or priest shall not, without the con- sent of the person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs. 4. A regular physician or surgeon shall not, with- out the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient. 5. A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure. [1214.] 129. WITNESSES WITHIN TWENTY MILES. A subpoena issued by a justice of the peace shall be valid to compel the attendance of a witness in the justice's court, if such witness be within twenty miles of the place of trial. [1898.] 130. SERVICE. A person over eighteen years of age may serve the subpoena. A subpoena may be served by any person above the age of eighteen years, by reading it to the witness, or by delivering to him a copy at his usual place of abode. [1899.] 64 JUSTICE OP THE PEACE GUIDE. FORM. SUBPOENA. State of Washington, County of , ss. To : In the name of the state of Washington, you are hereby required to appear before the undersigned, one of the justices of the peace in and for the said county, on the day of , 19. . . ., at o'clock in the .... noon, at his office in , to give evidence in a certain cause, then and there to be tried, between A B, plaintiff, and C D, defendant, on the part of [the plaintiff or defendant as the case may be]. Given under my hand this day of , 19 JP, Justice of the Peace. SUBPOENA DUCES TECUM. (The following should be added to the above form when it is desired to have the witness bring in books or documents material to the issue:) And you, the said Timothy See, are further required to bring with you [the books, papers or documents de- sired] and all other papers which you have in your pos- session touching the matter in dispute. Given under my hand, etc. 131. COMPELLING ADVERSE PARTY TO TESTIFY. A party to the action may be examined as a witness, at the instance of the adverse party, and for that pur- pose may be compelled in the same manner, and subject to the same rules of examination, as any other witness, to testify at the trial or appear and have his deposition taken. [1903.] The examination of a party thus taker may be re- butted by adverse testimony. [1904.] 132. EFFECT OF PARTY REFUSING TO TESTIFY. When a party refuses to testify, his complaint, answer or pleadings may be stricken and judgment taken against him. If a party refuse to attend and testify at the trial, or give his deposition before trial, "or give his deposi- THE WITNESSES. 65 tion before trial when required, ' ' his complaint, answer or reply, may be stricken out and judgment taken against him. [1905.] 133. PARTY EXAMINED ON HIS OWN BEHALF. If the adverse party examine his opponent, the opponent may then be examined on any matter pertinent to the issue. If he testify, however, to new matter, his adversary may likewise be examined. A party examined by an adverse party may be ex- amined on his own behalf, in respect to any matter perti- nent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the ad- verse party, or necessary to qualify or explain his an- swer thereto, or to discharge, when his answer would charge himself, such adverse party may offer himself as a witness, and shall be so received. [1906.] 134. WITNESS FAILING TO APPEAR LIABILITY FOR DAMAGES. The witness being necessary to the proper maintenance of the action, the party who subpoenas him may have and recover damages from him for his failure to appear and testify, provided fees and mileage were tendered or paid the witness at the time of service. Every person subpoenaed as aforesaid, and neglecting to appear, shall also be liable to the party in whose be- half he may have been subpoenaed, for all damages which such party may have sustained by reason of his nonappearance : Provided, that such witness had the fees allowed for mileage and one day's attendance paid, or tendered him, in advance if demanded by him at the time of the service. [1902.] 135. WRIT OF ATTACHMENT FOR WITNESS. Attachment is the process whereby the justice may compel the attendance in court of any witness properly subpoenaed. Whenever it shall appear to the satisfaction of the justice, by proof made before him, that any person, duly subpoenaed to appear before him in an action, shall have failed, without a just cause, to attend as a witness in conformity to such subpoena, and the party in whose behalf such subpoena was issued, or his agent, shall 5 66 JUSTICE OF THE PEACE GUIDE. make oath that the testimony of such witness is ma- terial, the justice shall have the power to issue an at- tachment to compel the attendance of such witness: Provided, that no attachment shall issue against a wit- ness in any civil action, unless his fees for mileage and one day's attendance have been tendered or paid in ad- vance, if previously demanded by such witness from the person serving the subpoena. [1900.] It will be seen from this that where a witness is not alto- gether willing to come in and testify, the safest way is to make the tender of one day's fees and his mileage. 136. WRIT TO BE SERVED SAME AS WARRANT. The defaulting witness must pay the costs of the service of the writ of attachment and for the issuing thereof, unless he had good cause for not coming to court. Every such attachment may be directed to any sheriff or constable of the county in which the justice resides, and shall be executed in the same manner as a warrant ; and the fees of the officer for issuing and serving the same shall be paid by the person against whom the same was issued, unless he show reasonable cause, to the satisfaction of the justice, for his omission to attend ; in which case the party requiring such attachment shall pay all costs. [1901.] 137. DEPOSITIONS. When circumstances prevent the personal attendance of a witness in court, his deposition may be taken. The deposi- tion is a written statement of his testimony and is usually in the form of questions and cross-questions, just as though he were being examined face to face. The plaintiff will submit his list of questions for the answers to be written thereon and the defendant will cross-question on those questions. Depositions may be generally taken before persons authorized to administer oaths. Either party, in an action pending before a justice of the peace, may cause the deposition of a witness therein to be taken, when such witness resides, or is about to go more than twenty miles from the place of trial, or is so sick, infirm, or aged, as to make it prob- able that he will not be able to attend at the trial. [1907.] THE WITNESSES. 67 The deposition is taken, certified and returned in the same manner as are depositions for the superior court. The notice shall be served, and the deposition taken, certified and returned, according to the law regulating the taking of depositions to be read in the superior court. [1908.] 138. TIME OF TAKING DEPOSITIONS. Either party may commence taking testimony by depositions at any time after service of summons upon the defendant. [1232.] 139. DEPOSITION TAKEN OUT OP STATE. When the witness is out of the state a commission may issue from the superior court for the taking of his testimony. . Depositions may be taken out of the state by a judge, justice or chancellor or clerk of any court of record, a justice of the peace, notary public, mayor or chief mag- istrate of any city or town, or any person authorized by a special commission from any court of this state. [1239.] 140. DEPOSITIONS TO BE TAKEN ON NOTICE. Previous notice of the time and place of taking depositions must be served on the adverse party or his attorney. Either party may have the deposition of a witness taken in this state before any judge of the superior court, justice of the peace, clerk of the supreme or su- perior court, mayor of a city, or notary public, by serv- ing on the adverse party or his attorney previous notice of the time and place of examination. The notice shall be served such time before the time when the deposition is to be taken as to allow the adverse party sufficient time by the usual route of travel to attend, and three days for preparation, exclusive of the day of service, and the examination may, if so stated in the notice, be adjourned from day to day. The notice shall specify the action or proceeding, the name of the court or tribunal in which the deposition is to be used, and the time and place of the taking of deposition. It shall be served upon the adverse party, his agent or attorney of record, or be left at his usual place of abode. [1233.] 68 JUSTICE OP THE PEACE GUIDE. A. shorter time of notice may be prescribed by the court. The court, or a judge thereof, or in an action or pro- ceeding before a justice of the peace, the justice may, upon sufficient cause being shown by affidavit, prescribe a shorter time for notice than that specified in the last preceding section. A copy of the order shortening time must be served with the notice. [1234.] 141. USE OP DEPOSITIONS. Such deposition may be used by either party upon the trial, or other proceeding against any party giving or receiving the notice, subject to all legal exceptions, to the competency or credibility of the witness, or the manner of taking the deposition. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial, unless the same was taken at the time of the examination. It shall be the duty of the person taking the deposition to propound to the witness every question proposed by either party, and to note all objections to the form of any interrogatory, and when any interrogatory is objected to on account of form, unless the form is amended and the objection waived, he shall write after the question and before the answer the words "ob- jected to," and when any witness declines to answer a question on the ground that it will criminate himself, that fact shall also be noted after the question if writ- ten down. The deposition may be taken in the form of a narrative, or by question and answer, or partly in either form, as either party present at the examination shall require. When taken by question and answer, the officer shall first write down the question and then the answer, as nearly as may be in the language of the wit- ness; but when the deposition is read to the witness previous to signing it, he shall be permitted to amend his answer to any question or any part of his deposition ; such amendment, however, unless both parties shall otherwise agree, shall not be made by way of interlining or erasing, but shall be added at the end of the deposi- tion under the title "amendment by the witness," and such amendment shall intelligibly refer to the part so amended. [1244.] When the adverse party is not present and has no attorney of record on whom to make notice, notice of the taking of THE WITNESSES. 69 deposition may be had by publication for three consecutive weeks. 142. SERVICE OP NOTICE BY PUBLICATION. When the party against whom the deposition is to be read is absent from or a nonresident of the state, and has no agent or attorney of record therein, he may be notified of the taking of the deposition or the appli- cation for a commission by publication. The publica- tion must be made three consecutive weeks in some newspaper printed in the county where the action or proceeding is pending, if there be any printed in such county, and if not, in some newspaper printed in this state, of general circulation in that county. The publi- cation must contain all that is required in the written or printed notice, and may be proved in the manner prescribed in case of the publication of summons. [1241.] 143. DEPOSITION TO BE WRITTEN AND CERTI- FIED. The deposition shall be written by the officer taking the same, or by the witness, or by some disinterested person in the presence and under the direction of such officer. When completed it shall be carefully read to or by the witness, corrected if desired, and subscribed by him. If taken upon notice it shall be certified by the officer substantially as follows: State of Washington, County of , ss. I, A B, justice of the peace in and for said county (or judge, clerk, etc., as the case may be), do hereby certify that the above deposition was taken before me and reduced to writing by myself (or witness as the case may be) at in said county, on the day of , 19 , at o'clock, in pursuance of notice hereto annexed; that the above-named witness, before examination was sworn (or affirmed) to testify the truth, the whole truth, and nothing but the truth, and that the said deposition was carefully read to (or by) said witness, and then subscribed by him, A B, Justice of the Peace. Dated at the day of , 19 If the deposition be taken upon a commission the commissioner shall certify it in substantially the same 70 JUSTICE OP THE PEACE GUIDE. manner, and annex to it the commission and interroga- tories. [1242.] 144. SEALING AND TRANSMITTING DEPOSITION. The deposition, whether taken upon notice or upon a commission, shall be inclosed in a sealed envelope by the officer taking the same and directed to the clerk of the court, arbitrators, referee or justice of the peace before whom the action is pending, or to such persons as the parties in writing may agree upon, and either delivered to the clerk of the court or other person, or transmitted through the mail or by some private per- son. [1243.] 145. USE ON TRIAL. The justice shall allow every deposition taken, certi- fied and returned according to law, to be read on the trial of the cause in which it is taken, in all cases where the same testimony, if given verbally before him, could have been received; but no such deposition shall be read on the trial, unless it appears to the justice that the witness, whose deposition is so offered: 1. Is dead, or resides more than twenty miles from the place of trial; or 2. Is unable, or cannot safely attend before the jus- tice, on account of sickness, age, or other bodily in- firmity; 3. That he has gone more than twenty miles from the place of trial without the consent or collusion of the party offering the deposition. [1909.] EXAMINATION OP WITNESSES. CHAPTEK VIII. EXAMINATION OF WITNESSES. S 146. The direct examination. ( 147. Cross-examination. 148. Redirect examination. 149. Leading questions. 150. Impeaching a witness. S 151. Refreshing the witness* memory. S 152. Objections to questions. As outlined in the statute, the plaintiff first presents his evidence to the court. The plaintiff, competent to be a wit- ness in his own behalf, let us say, will take the stand first and answer the questions which are propounded to him by his attorney. When the attorney is satisfied that the plaintiff's complaint is fully stated, he yields to the defendant's attor- ney, who then cross-examines the witness upon the matters to which he has just testified. The defendant should con- fine his cross-examining questions to those points which have been brought out by the plaintiff. He must not seek on cross-examination to present the defendant's defense; his attention is properly directed to skillfully ascertaining and, if possible, demonstrating any falsehood or inconsistency in the plaintiff's story. The defendant is guaranteed by law and the practice plenty of opportunity to build his defense by taking the stand when his turn comes and tell- ing his side under the sympathetic questioning of his own counsel, subject also to cross-examination by the plaintiff. So with each witness until the whole trouble is presented, more or less clearly, to the justice's understanding. FORM. OATHS. Of Witness: You do solemnly swear that the evidence you shall give in the cause now being heard between Nathaniel 72 JUSTICE OP THE PEACE GUIDE. Grumble, plaintiff, and Jonathan Quibble, defendant, shall be the truth, the whole truth, and nothing but the truth. So help you God. To which the witness replies, "I do." Of Interpreter : You do solemnly swear that you will justly, truly, and impartially interpret to Otto Forin the oath about to be administered to him; and the questions which may be asked him, and the answers that he shall give to such questions, relative to the cause now being heard before this court. So help you God. 146. THE DIRECT EXAMINATION. This examination of a witness by the party calling him is known as the direct examination, and, as we have seen, is sympathetically conducted with a view to drawing out the whole story. 147. CROSS-EXAMINATION Is the questioning by the adverse party, as we have seen, and may be followed by 148. REDIRECT EXAMINATION, Which is an examination by the party calling the wit- ness of matters brought out beneath the cross-examination of the opposing party. 149. LEADING QUESTIONS. The leading question is a question which suggests to the witness the answer which the examiner desires him to return. Other forms of leading questions are sometimes distinguished from each other, unnecessarily, I venture to say, for the sum of it all is that a leading question is one propounded to produce a certain answer, no matter whether the form of propounding is obviously suggestive or conceals a fact be- neath the form of a question which the propounder wishes the witness to simply admit or deny. The leading question is not permitted in the direct examination of a witness, but con- siderable latitude is allowed on cross-examination. EXAMINATION OP WITNESSES. 73 150. IMPEACHING A WITNESS. This is to call his testimony untrue, not necessarily inten- tional falsehood, for often a witness may be honestly mis- taken and his testimony shown to be inconsistent with the story told under direct examination, or inconsistent with, statements made out of court concerning the matter. 151. REFRESHING THE WITNESS' MEMORY. When the transaction as to which the witness may be testi- fying is involved, as in a matter of numerous small account* of different dates and different sums, the memory is often hazy, and when such is the case the witness may use memo- randa to bring the matters back to mind. His counsel must show, however, certain important things ; as, for instance, he should ask the witness when the memorandum in question was made, seeking thereby to show that the memorandum was made at or near the time of the original transaction. Two or three simple questions should suffice to bring this out. It may be that the memorandum is in the witness' handwriting and he knew it to be correct when he made it, or it may be that he saw somebody else make the memorandum at the time of the transaction and that he knew that it was correct. 152. OBJECTIONS TO QUESTIONS. Opposing counsel has the right of objecting to questions as follows: To the form of the question; that it is leading, etc. That the matter is irrelevant, incompetent and immaterial. That the answer would incriminate the witness. That the examiner is improperly impeaching his own wit- ness. 74 JUSTICE OP THE PEACE GUIDE. OHAPTER IX. THE JUDGMENT. 153. Dismissal. 154. Judgment by default. 155. The costs. 156. When defendant tenders judgment and costs. 157. The judgment lien. 158. The transcript of judgment. 159. What the transcript contains. 160. Entering the transcript. 161. Property in another county. The plaintiff has submitted his case and the defendant has finished his. The court has been the judge of the law and the facts under the following authority: Upon issue joined, if a jury trial be not demanded, the justice shall hear the evidence, and decide all ques- tions of law and fact, and render judgment accordingly. [1848.] And now the time has come for the justice to say which party shall prevail. His judgment is the final determina- tion of the rights of the parties as far as his court is con- cerned; the right of appeal, of course, existing for either party which considers itself aggrieved by the judgment. The judgment should be entered in the docket in a civil case within three days after the close of the trial. If it be a criminal case, the defendant is either discharged or committed, as the case may be; if the trial be by jury, the justice shall imme- diately render his decision thereon. Upon the verdict of a jury, the justice shall immedi- ately render judgment thereon. When the trial is by the justice, judgment shall be entered immediately after the close of the trial, if the defendant has been arrested and is still in custody ; in other cases it shall be entered within three days after the close of the trial. [1859.] There are two peculiar forms of judgment aside from the usual judgment upon a submitted case, and those two forms are the judgment of nonsuit and the judgment by default. THE JUDGMENT. 75 Such judgments carry the costs to the nonsuited or defaulting party. 153. DISMISSAL. Judgment that the action be dismissed without preju- dice to a new action, may be entered, with costs, in the following cases: 1. When the plaintiff voluntarily dismisses the ac- tion before it is finally submitted. 2. When he fails to appear at the time specified in the notice, upon continuance, or within one hour there- after. 3. When it is objected at the trial, and appears by the evidence that the action is brought in the wrong county; but if the objection be taken and overruled, it shall be cause only of reversal or appeal ; if not taken at the trial, it shall be deemed waived, and shall not be cause of reversal. [1857.] 154. JUDGMENT BY DEFAULT. When the defendant fails to appear and plead at the time specified in the notice, or within one hour there- after, judgment shall be given as follows: 1. When the defendant has been served with a true copy of the complaint, judgment shall be given without further evidence for the sum specified therein; 2. In other cases, the justice shall hear the evidence of the plaintiff, and render judgment for such sum only as shall appear by the evidence to be just but in no case exceed the amount specified in the complaint. [1858.] Thus the failure of the plaintiff to appear within one hour of the appointed time is cause for a nonsuit, and the same failure to act on the part of the defendant is cause for de- fault judgment. If the plaintiff comes in and the defendant is not there, he waits until the justice calls the title of the cause from his calendar, when he informs the court that personal ser- vice was had on the defendant. At the end of one hour he may then move for a judgment by default, which shall be accordingly rendered. 76 JUSTICE OP THE PEACE GUIDE. If the defendant is in court and the plaintiff does not come in within the hour, the defendant may thereupon move the court for judgment of nonsuit, which shall be rendered ac- cordingly. It should be noticed, however, that when the de- fendant obtains the judgment of nonsuit, it does not operate to debar the plaintiff bringing a new suit for the same cause; it will operate sometimes to the extent that the justice shall require the plaintiff to pay the defendant's costs in the non- suited action before hearing the new cause. FORM. JUDGMENT FOR PLAINTIFF. The jury by their verdict [or the court] having found for the plaintiff and assessing his damages at thirty dollars : It is adjudged, this 30th day of May, 1912, that the plaintiff recover of the defendant the sum of thirty dollars damages, and the costs of this action, taxed at $7, and $5 as attorney's fees, making a total judgment, in favor of plaintiff and against defendant, of forty- two dollars. J P. JUDGMENT FOR DEFENDANT. The jury by their verdict [or the court] having found for the defendant and against plaintiff: Therefore, it is adjudged, this 30th day of May, 1911, that the defend- ant recover of the plaintiff the sum of eight dollars, his costs as taxed, and $5 attorney's fees, amounting in all to thirteen dollars. J P. JUDGMENT ON COUNTERCLAIM. The jury having found [or the court] that the de- fendant is indebted to the plaintiff in the sum of $15 alleged in the complaint, and that the plaintiff is in- debted to the defendant in the sum of $30 as alleged in defendant's counterclaim: Therefore, it is adjudged, this 1st day of August, 1910, that the defendant recover of the plaintiff the sum of $15, and the costs of this action, taxed at $7, and $5 attorney's fees, amounting in all to twenty-seven dollars. J P. THE JUDGMENT. 77 155. THE COSTS. We have seen that the plaintiff has spent one dollar for filing his complaint and to this must be added the cost of serving the notice and complaint, if any, and, in addition, if plaintiff has been represented by counsel, the law allows a five dollar attorney's fee; all of which costs are added to the judgment rendered for the plaintiff. In like manner the defendant, if he prevail, is allowed his costs, as attorney's and witnesses' fees. The costs include witnesses' fees. When the prevailing party is entitled to recover costs in a civil action before a justice of the peace, the jus- tice shall add the amount thereof to the judgment; in case of failure of the plaintiff to recover or of dis- missal of the action, the justice shall enter up judgment in favor of the defendant for the amount of his costs; and in case any party so entitled to costs is represented in the action by an attorney, the justice shall include an attorney's fee of five dollars as part of the costs. [1862.] 156. WHEN DEFENDANT TENDERS JUDGMENT AND COSTS. The defendant may think that he owes but a part of the bill the plaintiff is suing on. He will, therefore, tender in writing an offer allowing judgment to be taken against him for that amount and tendering what costs have accrued to that time. If he loses, and the plaintiff recover more than the tendered judgment, the defendant cannot draw that money out of the registry of the court, but it is turned over to the plaintiff. If the defendant, at any time before the trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with costs then accrued; but if he do not accept such offer before the trial, and fail to recover on the trial of the action, a sum greater than the offer, such plaintiff shall not recover any costs that may accrue after he shall have been notified of the offer of the defendant, but such costs shall be adjudged against him, and if he recover, deducted from his recov- ery. But the offer and failure to accept it shall not be 78 JUSTICE OF THE PEACE GUIDE. given in evidence to affect the recovery, otherwise than as to costs, as above provided. [I860.] 157. THE JUDGMENT LIEN. What is the judgment worth to the prevailing party after it is secured? Well, if the loser has any real estate, the judgment becomes a lien thereon for a period of five years, but such lien does not commence until the lien laws have been complied with. When the law has been complied with, then the property is subject to be sold to satisfy the judgment in the same manner as judgments rendered in the superior court. The enforcement of judgments against per- sonal property will be treated of later. 158. THE TRANSCRIPT OF JUDGMENT. The prevailing party, if he wishes to make the judgment a lien on the debtor's property, must secure a transcript, or abstract, of the proceedings in the justice court and must file the same with the clerk of the county, paying, generally, a fee of seventy-five cents for such filing. The real estate of any judgment debtor and such as he may acquire, shall be held and bound to satisfy any judgment of a justice of the peace for the period of five years from the day on which said judgment was rendered, and such judgments shall be a lien thereupon to commence from the time of the filing and indexing of a duly certified transcript or abstract of such judg- ment, as provided by this chapter, with the county clerk of the county in which said real estate is situated, [450.] 159. WHAT THE TRANSCRIPT CONTAINS. An abstract of judgment as provided for in this chap- ter shall contain : 1. The name of the party or parties in whose favor the judgment was rendered; 2. The name of the party or parties against whom the judgment was rendered; 3. The date of the rendition of the judgment; 4. The amount for which the judgment was ren- dered, and in the following manner, viz.: Principal, $ interest, $ , costs, $ ; total, $ THE JUDGMENT. 79 A transcript of a judgment of a justice of the peace provided for by this chapter shall contain an exact copy of the judgment from the justice's docket. [451.] 160. ENTERING THE TRANSCRIPT. The county clerk shall enter such transcript in his execu- tion docket, where whoever is interested may consult the rec- ord and ascertain the liens of this character which may he against certain property. It shall he the duty of the county clerk to enter in his execution docket any duly certified abstract or transcript of any judgment of any of the courts men- tioned in this chapter, and he shall index the same in the same manner as judgments originally rendered in the superior court of the county of which he is clerk. [453.] 161. PROPERTY IN ANOTHER COUNTY. When the judgment debtor does not possess goods or chat- tels in the county of the judgment to satisfy the judgment but has some in another county, transcript is transferred to a justice in the county where the property is, who may issue execution thereon. If the defendant have not goods and chattels in the county in which judgment was rendered sufficient to satisfy the execution, the justice before whom such judgment may be shall, at the request of the party entitled, make out a certified transcript of the same, which may be delivered to a justice in any other county, who shall make an entry thereof in his docket, and issue execution thereon for the amount of the judgment, or such part as shall be unsatisfied, with costs as in other cases. 80 JUSTICE OF THE PEACE GUIDE. CHAPTER X. THE APPEAL. S 162. The amount in controversy. $ 163. How the appeal is taken. 164. Appeal stays proceedings. 165. Execution recalled by appeal. 166. The transcript. 167. The same pleadings as in lower court. 168. Superior court may compel transcript. 169. Defective bond How cured. 170. Judgment also against sureties. 171. Costs on appeal. The ease has been tried and the justice has rendered judg- ment, we will say, unfavorable to you. You feel dissatisfied. In the language of the statute, you "consider yourself ag- grieved" by the decision; you do not wish the matter to end at this stage. Nor does it have to end. You have the right of appeal to the superior court a right, however, which must be exercised within definite restrictions and limits, and the first of these is 162. THE AMOUNT IN CONTROVERSY. Any person considering himself aggrieved by the judgment or decision of a justice of the peace in a civil action may, in person or by his agent, appeal therefrom to the superior court of the same county where the judg- ment was rendered or the decision made: Provided, there shall be no appeal allowed unless the amount in controversy exclusive of costs, shall exceed the sum of twenty dollars. [1910.] 163. HOW THE APPEAL IS TAKEN. The appeal must be taken within twenty days after the judgment is rendered or the decision made. The appellant must serve a notice of his intention to appeal upon the jus- tice of the peace. And a copy upon the adverse party. The notice of appeal should be in plain terms, specifying the cause, THE APPEAL. 81 venue, parties and time. The appellant must then file a bond, in a sum equal to twice the amount of the judgment and costs, securing the appellant to pay what costs may be taxed against him on appeal. Such appeal shall be taken by filing a notice of appeal with the justice and serving a copy on the adverse party or his attorney, and, unless such appeal be by a county, city or school district, filing a bond or under- taking, as herein provided, within twenty days after the judgment is rendered or the decision made. No appeal, except when such appeals are by a county, city or school district, shall be allowed in any case unless a bond or undertaking shall be executed on the part of the appellant and filed with and approved by the jus- tice, with one or more sureties, in the sum of one hun- dred dollars, to the effect that the appellant will pay all costs that may be awarded against him on the ap- ' peal; or if a stay of proceedings before the justice be claimed, except by a county, city or school district a bond or undertaking, with two or more sureties to be approved by the justice, in a sum equal to twice the amount of the judgment and costs, to the effect that the appellant will pay such judgment, including costs, as may be rendered against him on the appeal. [1911.] 164. APPEAL STAYS PROCEEDINGS. The effect of appeal, properly made, is to stay proceedings in the cause, such as execution of the judgment appealed from, until the superior court has had the opportunity of passing upon the appeal. Upon appeal being taken and a bond filed to stay all proceedings, the justice shall allow the same and make an entry of such allowance in his docket, and all further proceedings on the judgment before the justice shall thereupon be suspended ; and if in the meantime execu- tion shall have been issued, the justice shall give the appellant a certificate that such appeal has been al- lowed. [1912.] 6 82 JUSTICE OF THE PEACE GUIDE. FORM. APPEAL BOND. [Court and Cause.] Know all men by these presents, that we, John Jones, as principal, and William Smith and Thomas " Robinson, as sureties, are held and firmly bound unto Edward Rash, the plaintiff above named, in the full sum of one hundred dollars, lawful money of the United States, for which payment, well and truly to be made, we bind ourselves and our and each of our heirs, execu- tors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this 3d day of May, 1910. The condition of this obligation is such that whereas on the 23d day of April, 1910, J P, Esq., one of the justices of the peace in and for said King County, did render a judgment in the above-entitled cause in favor of said plaintiff, Richard Rash, and against said de- fendant, John Jones, for the sum of $50, and whereas the said John Jones has given due and proper notice that he appeals from the said judgment to the Superior Court of said county: Now, therefore, if the said John Jones shall pay such judgment, including costs, as may be rendered against him on appeal, then this obligation shall become void; otherwise, to remain in full force and effect. Dated, signed, etc. 165. EXECUTION RECALLED BY APPEAL. If the officer having the writ of execution shall have pro- ceeded to carry out the order and shall have taken the prop- erty of the defendant on execution, he will be obliged to release the same on being presented with the certificate of appeal as above. On such certificate being presented to the officer hold- ing the execution, he shall forthwith release the prop- erty of the defendant that may have been taken on execution; and if the body of the defendant have been taken on execution he shall be discharged from impris- onment. [1913.] 166. THE TRANSCRIPT. When the cause goes up to the superior court for review, all the entries made in the justice's docket concerning the APPEAL. 83 action must be transcribed and certified to the upper court, together with all the process and papers filed with the justice. Within ten days after the appeal has been taken in a civil action or proceeding, the appellant shall furnish the superior court with a transcript of all entries made in the justice 's docket relating to the case, together with all the process and other papers relating to the action and filed with the justice, which shall be certified by such justice to be correct, and upon filing of such tran- script, the superior court shall become possessed of the cause, and shall proceed in the same manner as near as may be, as in actions originally commenced in that court, except as herein otherwise provided. [1914.] FORM. No In Justice's Court. 'Before John E. Carroll, Justice of the Peace, ra and for Seattle Precinct, King County, State of Washing- ton. State of Washington, County of King, ss. Attorney! Cost Book J. P. Date Fees Paid. Amount Paid C. B. Paid By Whom Paid Plaintiff. Tersus EE CIS TRY FUND Beceired Disbursed Defendant. Nature of Action 191.. Complaint day filed and notice 19 issued. Return ....,9:30A.M. 84 JUSTICE OF THE PEACE GUIDE. CERTIFICATE OF TRANSCRIPT OF JUDGMENT. [Court and Cause.] [Exact Copy from the Docket of the Judgment.] [Venue.] I hereby certify that I have compared the foregoing with the original entry of judgment rendered by me in the above-entitled cause, and that the same is a true and correct transcript therefrom and of the whole thereof, as the same appears from my docket. Dated at Seattle, King County, this 1st day of August, 1911. J P. 167. THE SAME PLEADINGS AS IN LOWER COURT. The issue before the justice shall be tried in the su- perior court without other or new pleadings, unless otherwise directed by the court. [1915.] 168. SUPERIOR COURT MAY COMPEL TRAN- SCRIPT. Upon an appeal being taken and allowed the superior court may, by rule and attachment, compel the justice to make and deliver to the appellant a certified copy of the proceedings upon paying to such justice the fees allowed by law for making such transcript, and when- ever the court is satisfied that the return of the justice is substantially erroneous or defective, it may, by rule and attachment, compel him to amend the same. [1916.] 169. DEFECTIVE BOND HOW CURED. If the appellant should file a defective bond in the cause, the adverse party cannot take advantage of that fact if the appellant make and file in the superior court a proper bond. No appeal allowed by a justice shall be dismissed on account of the bond being defective, if the appellant will, before the motion is determined, execute and file in the superior court such a bond as he should have executed at the time of taking the appeal, and pay all costs that shall have accrued by reason of such defect. [1917.] 170. JUDGMENT ALSO AGAINST SURETIES. In all cases of appeal to the superior court if, on the trial anew in such court, the judgment be against the THE APPEAI* 85 appellant, in whole or in part, such judgment shall be rendered against him and his sureties in the bond for the appeal. [1918.] 171. COSTS ON APPEAL. If the party appellant does not recover a more favorable judgment in the higher court, he must pay all costs. In all civil actions tried before a justice of the peace, in which an appeal shall be taken to the superior court, and the party appellant shall not recover a more favor- able judgment in the superior court than before the jus- tice of the peace, such appellant shall pay all costs. FORM. INDEMNITY BOND. Know All Men by These Presents, that we , as principal, and and , as sureties, of , in the county of and state of Wash- ington, are jointly and severally indebted unto in the sum of dollars, lawful money of the United States, to be paid to the said , heirs or assigns ; for which payment, well and truly to be made, we jointly and severally bind ourselves, our and each of our heirs, executors, administrators and assigns, firmly by these presents. Signed this day of ,19 The condition of the above and foregoing bond and obligation is such that, Whereas, the said did, on the day of ,19...., Now, therefore, if the above-bounden shall jointly and severally well and truly save, keep and bear harmless, and indemnify the same of and from all harm, expense, trouble, damage, costs, suits, actions, judgments and executions, which shall or may at any time arise, come or be brought against or suffered or expended by arising from any of the matters referred to herein, , then this obligation to be null and void; otherwise to be and remain in full force and effect. [Seal.] [Seal.] [Seal.] Signed and delivered in presence of [Acknowledgment.] 86 JUSTICE OP THE PEACE GUIDE, 'CHAPTER XL EXECUTIONS UPON JUDGMENTS. S 172. Limit of five years. 173. Execution How directed. 8 174. Indorsement of writ. 175. Notice of Bale f goods. $ 176. Return of sale. 177. Officer not to purchase at sale. 178. Claim of third person. 179. Alias executions (renewal). 8 180. Stay of execution. 181. Bond for stay. I 182. Execution revoked. 8 183. Execution against sureties. 184. Substitution of surety. 185. Offsetting mutual judgments. 186. Execution for the balance of mutual judgment* 187. Offset of judgment rendered by another justice. 188. Execution issued by justice's successor. 8 189. Arrest of defendant on return of execution. I 190. Execution for costs. S 191. Claimant may have any remedy. 192. Examination of garnishees. 193. Statutory exemptions. S 194. Pension money exemption, 195. Insurance money exempt. S 196. Life insurance money exempt. 197. Cemetery lots exempt. 8 198. Who is a householder. 199. Procedure on claiming exemptions. It has been said that almost any lawyer can get a judg- ment but that it takes a good lawyer to get the money after judgment. This is more a matter of energy than anything else, for the procedure upon execution is not peculiarly in- tricate. There are four kinds of executions: Against the property of the debtor, the person of the debtor and for possession of personal property wrongfully detained, and enforcing a court order. There shall be four kinds of execution: One against the property of the judgment debtor; another against EXECUTIONS UPON JUDGMENTS. 87 his person; the third for the delivery of the possession of personal property, or such delivery with damages for withholding the same, and the fourth commanding the enforcement of or obedience to any special order of the court. And in all cases there shall be an order to collect the costs. [611.] FORMS OF EXECUTION. State of Washington, County of , ss. To the Sheriff or Any Constable of Said County: Whereas, judgment against C D for the sum of dollars and dollars, costs of suit, was recovered on the day of , 19. . . ., before the under- signed, one of the justices of the peace in and for said county, at the suit of A B. These are, therefore, in the name of the state of Washington, to command you to levy on the goods and chattels of the said C D (except- ing such as the law exempts), and make sale thereof according to law, to the amount of said sum and costs upon this writ, and the same return to me within thirty days, to be rendered to the said A B for his debt, inter- ests and costs. Given under my hand this day of , 19 JP, Justice of the Peace. EXECUTION AGAINST THE BODY. [Court and Cause.] To the Sheriff or Any Constable of Said County, Greet- ing: Whereas, judgment against William James for the sum of twenty dollars and thirteen dollirs, costs of suit, was recovered on the 1st day of August, 1911, before the undersigned, one of the justices of the peace in and for said county, at the suit of James Salt on, and an execution against his property returned unsatisfied; these are, therefore, in the name of the state of Wash- ington, to command you to take the body of the said Vv illiam James, and him convey and deliver to the keeper of the jail of said county, who is hereby commanded to receive and keep the said William James in safe 88 JUSTICE OF THE PEACE GUIDE. custody in prison until the aforesaid sum and all legal expenses be paid and satisfied, or until he be discharged by due course of law; and of this writ make due return within thirty days. Given under my hand this llth day of September, 1911. JP. 172. LIMIT OF FIVE YEARS. But there may be no execution after the lapse of five years. Execution for the enforcement of a judgment in a justice's court may be issued on the application of the party entitled thereto, in the manner hereinbefore pre- scribed, but after the lapse of five years from the date of the judgment, no execution shall issue except by leave of the justice before whom such judgment may be, upon reasonable notice to the defendant. [1876.] The first step in executing judgment is to obtain a writ of execution from the justice of the peace. This is a simple form, with a statement of the parties to the case, the amount of the judgment, etc., and on the back a notation of the costs collectible, including the costs of the writ. The writ of execution shall be issued in the name of the state of Washington, and subscribed by the jus- tice, and shall be directed to the sheriff or any con- stable of the county where the justice resides, and shall intelligently refer to the judgment, stating the court, the county where judgment was rendered, the names of the parties, the amount of the judgment if it be for money, and the amount actually due thereon, and shall require substantially as follows: 1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judg- ment, with interest, out of the personal property of the debtor; 2. If it be against the person of the judgment debtor, it shall require the officer to arrest such debtor, and commit him to the jail of the county until he shall pay the judgment, with interest, or be discharged according to law; 3. If it be for the delivery of the possession of per- sonal property, it shall require the officer to deliver the possession of the same, particularly describing it, to EXECUTIONS UPON JUDGMENTS. 89 the party entitled thereto, and may, at the same time, require the officer to satisfy any charges or damages recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, shall be specified therein. And in all cases the execution shall require the collection of all interest, costs and increased costs thereon. [513.] FORM. EXECUTION WRIT GENERAL. [Court and Cause.] To the Sheriff or Any Constable of Said County, Greet- ing: Whereas, judgment against Timothy Winn for the sum of ten dollars and $7 costs of suit was recov- ' ered on the 1st day of August, 1911, before the under- signed, one of the justices of the peace within and for said county, at the suit of Wm. Chisolm. These are, therefore, in the name of the state of Washington, to command you to levy on the goods and chattels of the said Timothy Winn (excepting such as the law exempts) and make sale thereof according to law, to the amount of said sum and costs upon this writ, and return the same to me within thirty days, to be rendered to the said Wm. Chisolm for his debt, interests and costs. Given under my hand this 15 day of August, 1911. J P. 173. EXECUTION HOW DIRECTED. The execution shall be directed (except when it is otherwise specially provided) to the sheriff or any con- stable of the county where the justice resides; shall be dated on the day it is issued, and made returnable within thirty days from the date; and it shall be against the goods and chattels of the person against whom the same is issued. [1879.] The justice and the constable should both indorse the writ of execution as follows: 174. INDORSEMENT OF WRIT. Before any execution shall be delivered the justice shall state in his docket, and also on the back of the execution, the amount of the debt, or damages and 90 JUSTICE OP THE PEACE GUIDE. costs, and of the fees due to each person separately, and the officer receiving such execution shall indorse the time of the reception of the same. [1880.] We will assume that the execution is the common one against goods and chattels. The officer, with the writ of execution properly indorsed, proceeds to the place where the debtor's goods are situated, takes them into his custody, and advertises them for sale. 175. NOTICE OF SALE OF GOODS. The officer, after taking goods and chattels into his custody by virtue of an execution, shall, without delay, give public notice by at least three advertisements, put up at three public places in the county of the time and place, when and where they will be exposed for sale. Such notice shall describe the goods and chattels taken, and shall be put up at least ten days before the day of sale. [1882.] FORM. NOTICE OF SALE ON EXECUTION. [Court and Cause.] By virtue of a writ of execution issued by J P, Esq., a justice of the peace of said King County, and to me directed and delivered, for a judgment rendered by said justice cf the peace on the 1st day of August, 1911, in favor of Henry Biggs, plaintiff, and against Richard Wright, defendant, for the sum of forty dollars, and the sum of seven dollars costs of suit and five dollars at- torney's fee, I have levied upon the following described personal property, to wit: [Describe property.] Notice is hereby given that on the 1st day of Novem- ber, 1911, at the hour of 9:30 o'clock in the forenoon of said day, at the front door of the courthouse of King County, in the city of Seattle, said county, I will sell all the right, title and interest of the said Richard Wright, defendant, in and to the above-described per- sonal property, at public auction, to the highest and best bidder for cash, to satisfy said execution and all costs. Dated and signed this 1st day of September, 1911. HENRtf BADGE, Constaole. EXECUTIONS UPON JUDGMENTS. 91 176. RETURN OF SALE. The chattels on such sale are sold to the highest bidder and the constable makes return of sale. At the time and place so appointed, if the goods and chattels be present for inspection of bidders, the officer shall expose them to sale at public vendue to the high- est bidder; he shall return the execution and have the money before the justice at the time of making such return, ready to be paid over to the persons respec- tively entitled thereto. [1883.] The officer shall not be a purchaser at such sale. 177. OFFICER NOT TO PURCHASE AT SALE. No officer shall directly or indirectly purchase any goods or chattels at any sale made by him upon execu- tion, and every such purchase shall be absolutely void. [1884.] Supposing, however, that when the sheriff or constable goes to levy upon certain goods a third person, against whom the plaintiff has no action, should be the possessor, or claim to be, of the chattels: In that case the new claimant must make affidavit of ownership and serve the same upon the levying officer, who, in turn, may demand an indemnity bond from the plaintiff, thereafter notifying the plaintiff and the court, who shall thereupon set the cause for trial. 178. CLAIM OF THIRD PERSON. If any property levied on be claimed by any other person than the defendant in execution, and the claim- ant make affidavit of his title or right to the possession of the same, stating the ground of such title or right, and serve the same upon the sheriff or constable, while the property is in his possession, said sheriff or constable shall not be bound to keep the property unless the plaintiff on demand indemnify him in the same manner as provided in this act for cases where property held under attachment is claimed by persons not parties to the suit and when such claim is made, the sheriff or constable shall immediately file the claimant's affidavit with the justice, and notify the plaintiff thereof, and unless the property be at once released, the justice shall set the case for trial upon the allegations of the claim- 92 JUSTICE OP THE PEACE GUIDE. ant's affidavit, and the case shall proceed and be deter- mined in the same manner as provided in this act for cases where property held under attachment is claimed by persons not parties to the suit. [1888.] 179. ALIAS EXECUTIONS (RENEWAL). This is simply a renewal of the execution until judgment shall have been executed. If an execution be not satisfied, it may, at the request of the plaintiff, be renewed from tune to time by the justice who issues the same, or by the justice to whom his docket is transferred, by an indorsement thereon to that effect, signed by him and dated when the same shall be made. If any part of such execution has been satis- fied the indorsement of renewal shall express the sum due on the execution. Every such indorsement shall renew the execution in full force in all respects for thirty days, and no longer, and an entry of such re- newal shall be made in the docket of the justice. [1881.] 180. STAY OF EXECUTION. The proceedings on execution may be stayed for a period of from one to two months, according to the value of the judgment, by the filing of a stay bond, with proper sureties. The execution upon a judgment by a justice of the peace may be stayed in the manner hereinafter pro- vided, upon reasonable notice to the opposite party, and for the following periods of time, to be calculated from the date of the judgment: 1. If the judgment be for any sum not exceeding twenty-five dollars, exclusive of costs, one month. 2. If it be for more than twenty-five dollars, two months. [1867.] 181. BOND FOR STAY. To entitle any person to such stay of execution some responsible person, to be approved by the justice, and not being a party to the judgment, must, within five days after rendering of the judgment, enter into a bond, before the justice, to the adverse party, in a sufficient sum to secure the payment of the judgment and costs conditioned to be void upon such payment, at the expiration of the stay. [1868.] EXECUTIONS UPON JUDGMENTS. 93 FORM. BOND TO STAY EXECUTION. [Court and Cause.] Whereas, James Sutton has obtained a judgment be- fore J P, Esq., one of the justices of the peace in and for Pierce County, on the 1st day of August, 1911, against William James, for thirty- three dollars; now, therefore, I, John Willing, acknowledge myself bound to the said James Sutton in the sum of seventy-five dol- lars, this bond to be void if such judgment shall be paid at the expiration of two months after the time it was rendered. Dated the 3d day of August, 1911. JOHN WILLING. Now, when the justice issues the stay of execution, the effect of it is to revoke and recall the execution which may have been issued, releasing the goods if they have been taken and discharging the defendant if he has been arrested. 182. EXECUTION REVOKED. If judgment be stayed in the manner above provided, after an execution has been issued thereon, the justice shall revoke such execution, in the same manner, and with like effect as he is hereinafter directed to revoke an execution, after an appeal has been allowed; and if the defendant have been committed, shall order him to be discharged from custody. [1872.] 183. EXECUTION AGAINST SURETIES. If at the expiration of such stay, the judgment be not paid, the execution shall issue against both the principal and bail. If the principal do not satisfy the execution, and the officer cannot find sufficient property belonging to him upon which to levy, he shall levy upon the prop- erty of the bail, and in his return shall state what amount of money collected by him on the execution, was collected from the bail, and the time when the same was received. [1870.] 94 JUSTICE OF THE PEACE GUIDE. FORM. EXECUTION AGAINST PRINCIPAL AND SURETY. State of Washington, County of , ss. To the Sheriff or Any Constable of Said County : Whereas, judgment against C D for the sum of dollars and for dollars, costs of suit, was recov- ered on the day of , 19 , before the undersigned, one of the justices of the peace in and for said county, at the suit of A B; and, whereas, on the day of ,19 , E F became surety to pay said judgment and costs, in month from the date of the judgment aforesaid, agreeably to law, in the pay- ment of which the said C D and E F have failed ; these are therefore in the name, etc. [as in the common form]. 184. SUBSTITUTION OF SURETY. After the return of such execution, the bail shall be entitled, on application to the justice, to have the judg- ment, or so much thereof as may have been collected from him in satisfaction of the execution, transferred to his surety, and he may collect the same from the de- fendant by execution, together with the interest at the rate of twelve per cent per annum. [1871.] 185. OFFSETTING MUTUAL JUDGMENTS. Where there are mutual judgments, one judgment may be set off against the other. If there be mutual justices' judgments between the same parties, upon which the time for appealing has elapsed on judgment, on the application of either party, and reasonable notice given to the adverse party, one may be set off against the other, by the justice before whom the judgment against which the setoff is proposed may be. [1873.] 186. EXECUTION FOR THE BALANCE OF MUTUAL JUDGMENTS. If any justice shall set off one judgment against an- other, he shall make an entry thereof on his docket, and execution shall issue only for the balance which may be due after such setoff. If a justice shall allow a tran- EXECUTIONS UPON JUDGMENTS. 95 script of a judgment rendered by another justice to be set off, he shall file such transcript among the papers relating to the judgment in which it is allowed in setoff. If he shall refuse such transcript as a setoff, he shall so certify on the transcript, and return the same to the party who offered it. [1875.] 187. OFFSET OF JUDGMENT RENDERED BY AN- OTHER JUSTICE. Where one desires to offset a judgment rendered by a jus- tice other than the one issuing the writ of execution, the pro- cedure is to obtain a transcript from the first justice, certi- fying that the judgment is unsatisfied in whole or in part, and that no appeal has been taken thereon. If the judgment proposed as a setoff was rendered be- fore another justice, the party proposing such setoff -shall produce before such justice a transcript of such judgment, upon which there is a certificate of the justice before whom such may be, that it is unsatisfied in whole or in part, and that there is no appeal, and that such transcript was obtained for the purpose of being set off against the judgment to which it is offered as a setoff. The justice granting such transcript shall make an entry thereof on his docket, and all further proceedings on such judgment shall be stayed, unless such transcript b returned with the proper justice's certificate thereon that it has not been allowed in setoff. [1874.] 188. EXECUTION ISSUED BY JUSTICE'S SUCCES- SOR. A judgment rendered by a justice may be executed upon the writ of his successor in office. When any judgment shall have been rendered by any justice of the peace, and the same not be satisfied dur- ing his continuance in office, and the docket of such jus- tice shall have been transferred to another justice, or to the successor of the justice rendering such judgment, the justice to whom the docket shall be delivered shall issue execution upon such unsatisfied judgment in the same manner, and with like effect as if he himself had rendered the judgment. [1877.] 96 JUSTICE OP THE PEACE GUIDE. 189. ARREST OF DEFENDANT ON RETURN OF EXECUTION. If the action be one in which the defendant might have been arrested upon a warrant, an execution against the person of such defendant may be issued after the return of an execution against his property unsatisfied in whole or in part. An execution against the person may likewise be issued after such return, where the de- fendant has been arrested upon a warrant and not dis- charged according to law. [1885.] 190. EXECUTION FOR COSTS. Any justice of the peace may issue an execution against the prevailing party, to collect fees and costs for vtfrich such party may be liable, after an execution has been first issued against the other party, and re- turned "no property found." [1887.] 191. CLAIMANT MAY HAVE ANY REMEDY. Nothing contained in the last section shall be so con- strued as to prevent the claimant of property levied on by execution from resorting to any legal remedy he may choose to pursue, instead of proceeding in the manner therein prescribed. [1889.] 192. EXAMINATION OF GARNISHEES. If there be no property found, or if the goods and chattels levied on be not sufficient to satisfy such execu- tion, the officer shall, on demand of the plaintiff, summon in writing, as garnishees, such persons as may be named to (him by) the plaintiff, or his agent, to appear before the justice on the return day of the execution, to answer such interrogatories as may be put to them, touching their liabilities as garnishees, and the like proceedings shall be had thereon before the justice to final judgment as in the proceedings by attachment. [1886.] 193. STATUTORY EXEMPTIONS. The law has wisely placed restrictions upon the scope of the writ of execution. Not everything a man has may be taken to satisfy a debt. On the contrary, the law aims to preserve to him enough for the support of himself and family, even though the creditor's execution go for the time, EXECUTIONS UPON JUDGMENTS. 97 at least, unsatisfied. The following exemptions should be carefully noticed: The following property shall be exempt from execu- tion and attachment, except as hereinafter specially pro- vided: 1. All wearing apparel of every person and family; 2. All private libraries, not to exceed five hundred dollars in value, and all family pictures and keepsakes; 3. To each householder, one bed and bedding, and one additional bed and bedding for each additional member of the family, and other household goods and utensils and furniture not exceeding five hundred dollars, coin, in value. The other household goods and utensils and furniture specified above shall on the demand of the officer having the execution or attachment in hand, be selected by the husband, if present, if not present they shall be selected by his wife, and in case neither husband ' nor wife, nor other person entitled to the exemption by having the description of a householder, shall be present to make th3 selection, then the sheriff shall make a selec- tion of the household goods, utensils and furniture equal in value to said five hundred dollars, and shall return the same as exempt by inventory, and such selection by the sheriff or other person described above shall be prima facie evidence 1. That such household goods, utensils, and furniture are exempt from execution and attachment; 2. That the value of the property so se- lected is not over five hundred dollars ; 4. To each householder, two cows, with their calves, five swine, two stands of bees, thirty-six domestic fowls, and provisions and fuel for the comfortable maintenance of such householder and family for six months, also feed for such animals for six months: Provided, That in case such householder shall not possess or shall not desire to retain the animals above named, he may select from his property and retain other property not to exceed two hundred and fifty dollars, coin, in value. The selection in the proviso mentioned shall be made in the manner and by the person and at the time mentioned in subdi- vision three, and said selection shall have the same eif ect as selections made under subdivision three of this sec- tion; 5. To a farmer, one span of horses or mulo-*, with har- ness, or two yoke of oxen, with yokes aiiu cli^ms, and 7 98 JUSTICE OP THE PEACE GUIDE. one wagon, also fanning utensils actually used about the farm, not exceeding in value five hundred dollars in coin; also one hundred and fifty bushels of wheat, one hundred and fifty bushels cf cats or barley, fifty bushels of potatoes, ten bushels of corn, ten bushels of peas, and ten bushels of onions for seeding purposes ; 6. To a mechanic, the tools and instruments used to carry on his trade for the support of himself and family, also material used in his trade, not exceeding in value five hundred dollars in coin; 7. To a physician, his library, not to exceed five hun- dred dollars in coin; also, one horse, with harness and buggy; the instruments used in his practice, and medi- cines not exceeding in value two hundred dollars in coin; 8. To attorneys, clergymen and other professional men, their libraries, not exceeding one thousand dollars in coin value; also office furniture, fuel and stationery, not exceeding in value two hundred dollars, in coin ; 9. All firearms kept for the use of any person or family; 10. To any person, a canoe, skiff or small boat, with its oars, sails and rigging, not exceeding in value two hundred and fifty dollars ; 11. To a person engaged in lightering for his support or that of his family, one or more lighters, barges or scows, and a small boat, with oars, sails and rigging, not exceeding in the aggregate two hundred and fifty dol- lars, in coin, value; 12. To a teamster or drayman engaged in that busi- ness for the support of himself, or his family, his team, consisting of one span of horses, or mules, or two yoke of oxen, or a horse and mule, with harness, yokes, one wagon, tru^ek, cart, or dray; 13. To a person engaged in the business of logging for his support or that of his family three yoke of work cattle and their yokes, and axes, chains, implements for the business, and camp equipments, not exceeding three hundred dollars, coin, in value; 14. A sufficient quantity of hay, grain, or feed to keep the animals mentioned in the several subdivisions of this section for six weeks. But no property shall be exempt from an execution issued upon a judgment for the price thereof, or any part of the price thereof, or for any tax levied thereon; EXECUTIONS UPON JUDGMENTS. 99 Each person shall be entitled to select the property to which he is entitled under the several subdivisions of this section. [563.] 194. PENSION MONEY EXEMPTION. Any money received by any citizen of the state of Washington as a pension from the government of the United States, whether the same be in the actual posses- sion of such person or be deposited or loaned by him, shall be exempt from execution, attachment, or seizure by or under any legal process whatever. [566.] When a debtor dies or absconds, and leaves his family any money exempted by the last preceding section, the same shall be exempt to his family as provided in said section. [567.] 195. INSURANCE MONEY EXEMPT. Whenever property which by the laws of this state is exempt from execution or attachment is insured and the same is destroyed by fire, then the insurance money coming to or belonging to the person thus insured, to an amount equal to the exempt property thus destroyed, shall be exempt from execution and attachment. [568.] 196. LIFE INSURANCE MONEY EXEMPT. The proceeds or avails of all life and accident insur- ance shall be exempt from all liability for any debt. [569.] 197. CEMETERY LOTS EXEMPT. Burial lots sold by such [cemetery] association shall be for the sole purpose of interment and shall be exempt from taxation, attachment, execution, or other claims, liens or process whatsoever, if used as intended, exclu- sively for burial purposes, and in no wise with a view to profit. [3647.] 198. WHO IS A HOUSEHOLDER. A householder, as designated in all statutes relating to exemptions, is defined to be : 1. The husband or wife, or either; 2. Every person who has residing with him or her, and under his or her care and maintenance, either: 100 JUSTICE OF THE PEACE GUIDE. the property having to secure affidavits as to the domestic status of the parties. 466. THE WARRANTY DEED. This, in simple language, is a deed in which th grantor warrants that the title is in him and that he can lawfully convey the same; in the words of the statute, that he has an "indefeasible estate in fee simple" in the premises. Here is the statute with the statutory form: Warranty deeds for the conveyance of land may be substantially in the following form: The grantor [here insert the name or names and place of residence] for and in consideration of [here insert consideration] in hand paid, convey and warrant to [here insert the grantee 's name or names] the following described real estate [here insert description] situated in the county of , state of Washington. Dated this day of 19 [Don't forget the acknowledgment.] Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple to the grantee, his heirs and assigns, with covenants on the part of the grantor : 1. That at the time of making and delivery of such deed he was lawfully seised of an indefeasible estate in fee simple in and to the premises therein described, and had good right and full power to convey the same; 2. That the same were then free from all encum- brances ; 3. That he warrants to the grantee, his heirs and as- signs, the quiet and peaceable possession of such prem- ises, and will defend the title thereto against all per- sons who may lawfully claim the same; and such cove- nants shall be obligatory upon any grantor, his heirs 260 JUSTICE OP THE PEACE GUIDE. and personal representatives, as fully and with like effect as if written at full length in such deed. [8747.] 467. CONSIDERATION Means generally the value which the grantor receives for the property. It may be symbolical, as "one dollar," or it may state the full purchase price of the land. 468. THE QUITCLAIM DEED. This deed is often given by a grantor having some in- terest in the estate and whose removal from the record is necessary to clear the title. Quitclaim deeds may be in substance in the following form: The grantor [here insert name or names and place of residence] for the consideration [here insert the consid- eration] convey and quitclaim to [here insert grantee's name or names] all interest in the following described real estate [here insert description] situated in the county of , state of Washington. Dated this day of 19 Every deed in substance in form as prescribed in this section, when otherwise duly executed, shall be deemed and held a good and sufficient conveyance, release and quitclaim to the grantee, his heirs and assigns, in fee of all the then existing legal or equitable rights of the grantor in the premises therein described, but shall not extend to the after-acquired title unless words are added expressing such intention. [8749.] 469. THE BARGAIN AND SALE DEED. Bargain and sale deeds for the conveyance of land may be substantially in the following form: The grantor [name or names and residence] for [and] |n consideration of [here insert consideration] in hand paid, bargain, sell, and convey to [here insert the gran- tee's name or names] the following described real es- tate [here insert description] situated in the county of ....... state of Washington. Dated this day of ,19 CONCERNING DEEDS. 2G1 Every deed in substance in the above form shall con- vey to the grantee, his heirs or other legal representa- tives, an estate of inheritance in fee simple, and shall be adjudged an express covenant to the grantee, his heirs or other legal representatives, to wit, that any grantor was seised of an indefeasible estate in fee sim- ple, free from encumbrance, done or suffered from the grantor, except the rents and services that may be re- served, as also for quiet enjoyment against the grantor, his heirs and assigns, unless limited by express words contained in such deed; and the grantee, his heirs, executors, administrators and assigns, may, in any ac- tion, recover for breaches, as if such covenants were expressly inserted. [8748.] It was the old custom to seal all such instruments with the seals of the parties, but this formality has been ex- pressly abolished by law. The use of private seals upon all deeds, mortgages, leases, bonds, and other instruments, and contracts in writing, is hereby abolished, and the addition of a pri- vate seal to any such instrument or contract in writing, hereafter made, shall not affect its validity or legality in any respect. [8751.] It is not necessary that a deed should be witnessed in this state. 470. THE FORM OF ACKNOWLEDGMENT. A certificate of acknowledgment substantially in the fol- lowing form shall be sufficient: State of Washington, County of , ss. I [here give name of officer and official title], do hereby certify that on this .... day of 19. . . ., personally appeared before me [name of grantor, and if acknowledged by wife, her name and add "his wife"] to me known to be the individual or individuals de- scribed in and who executed the within instrument, and acknowledged that he [she or they] signed and sealed the same as his [her or their] free and voluntary act and deed, for the uses and purposes therein mentioned. Given under my hand and official seal this day of , A. D. 19 [Signature of officer.] 262 JUSTICE OP THE PEACE GUIDE. 471. CONVEYANCES BY AND BETWEEN HUSBAND AND WIFE. The husband and wife may convey his or her community right to the other without prejudice to the existing equity of creditors in and to the property. The form of the convey- ance does not recite the married state, but is simply, "Tim- ,othy Twig" to "Annie Twig," and the same is acknowl- edged as by a single person. The separate estate of either husband or wife may be conveyed by the one or other through power of attorney to either, providing the same is properly acknowledged and certified according to law. In the same manner, the com- munity estate may be conveyed through power of attorney to either. A husband may make and execute a letter of attor- ney to wife, or the wife may make and execute a letter of attorney to the husband, authorizing the sale or other disposition of his or her community interest or estate in the community property, and as such attorney in fact, to sign the name of such husband or wife to any deed, conveyance, mortgage, lease or other encum- brance, or to any instrument necessary to be executed by which the property conveyed or transferred shall be released from any claim as community property. And either said husband or said wife may make and execute a letter of attorney to any third person to join with the other in the conveyance of any interest either in separate real estate of either, or in the community estate held by such husband or wife in any real prop- erty. And both husband and wife owning community property may jointly execute a power of attorney to a third person authorizing the sale, encumbrance, or other disposition of community real property, and so execute the necessary conveyance or transfer of said real estate. [8769.] 472. THE MORTGAGE. A mortgage is an instrument whereby one secures the payment of money on any lawful agreement or condition. Mortgages of land may be in the following form, substan- tially: The mortgagor [here insert name or names] mort- gages to [here insert name or names of mortgagee or CONCERNING DEEDS. 263 mortgagees] to secure the payment of [here recite the nature and amount of indebtedness, showing when due, rate of interest, and whether secured by note or not], the following described real estate [here insert descrip- tion] situated in the county of , state of Wash- ington. Dated this day of , 19 Every such mortgage, when otherwise properly exe- cuted, shall be deemed and held a good and sufficient conveyance and mortgage to secure the payment of money therein specified. The parties may insert in such mortgage any lawful agreement or condition. [8750.] 473. THE SATISFACTION OP MORTGAGES. When the amount due on a mortgage is paid, the same is said to be satisfied, and the satisfaction is noted on the margin of the mortgage record, or by an instrument in writing. Whenever the amount due on any mortgage is paid, the mortgagee, his legal representatives or assigns, shall, at the request of any person interested in the property mortgaged, acknowledge satisfaction of the same on the margin of the page upon which the mort- gage is recorded (which marginal satisfaction shall be at the time attested by the auditor or his deputy), or by executing an instrument in writing referring to the mortgage by the volume and page of the record, or otherwise sufficiently describing it and acknowledging satisfaction in full thereof. Said instrument shall be duly acknowledged, and upon request shall be recorded in the county wherein the mortgaged property is situ- ated. Every instrument of writing heretofore recorded and purporting to be a satisfaction of mortgage, which sufficiently describes the mortgage which it purports to satisfy so that the same may be readily identified, and which has been duly acknowledged before an officer authorized by law to take acknowledgments or oaths, is hereby declared legal and valid, and a certified copy of the record thereof is hereby constituted prima facie evidence of such satisfaction. [8798.] 264 JUSTICE OP THE PEACE GUIDE. 474. PENALTY FOR FAILING TO SATISFY MORT- GAGE. If the mortgagee shall fail so to do after sixty days from the date of such request or demand, he shall for- feit and pay to the mortgagor the sum of twenty-five dollars, to be recovered in any court having competent jurisdiction, and said court, when convinced that said mortgage has been fully satisfied, shall issue an order in writing, directing the auditor to cancel said mort- gage, and the auditor shall immediately record the order and cancel the mortgage as directed by the court, upon the margin of the page upon which the mortgage is recorded, making reference thereupon to the order of the court and to the page where the order is re- corded. [8799.] CONCERNING LEASES. 265 CHAPTER V. CONCERNING LEASES. f 475. Tte monthly tenant. 5 476. Tenant by sufferance, i 477. Tenancy at specified time. 5 478. Year to year tenancy. 475. THE MONTHLY TENANT. When premises are rented for an indefinite time, with monthly or other periodic rent reserved, such tenancy shall be construed to be a tenancy from month to month, or from period to period on which rent is payable, and shall be terminated by written notice of thirty days or more, preceding the end of any of said months or peri- ods, given by either party to the other. [8803.] 476. TENANT BY SUFFERANCE. Whenever any person obtains possession of premises without the consent of the owner or other person hav- ing the right to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his right to possession of said premises shall terminate immedi- ately upon said demand. [8805.] 477. TENANCY AT SPECIFIED TIME. In all cases where premises are rented for a specified time, by express or implied contract, the tenancy shall be deemed terminated at the end of such specified time. [8804.] 478. YEAR TO YEAR TENANCY. Tenancies from year to year are hereby abolished, except when the same are created by express written contract. Leases may be in writing or print, or partly in writing and partly in print, and shall be legal and valid for any term or period not exceeding one year, without acknowledgment, witnesses, or seals. [8802.] 266 JUSTICE OP THE PEACE GUIDE. CHAPTER VI. CHATTEL MORTGAGES OR MORTGAGES OP PER SONAL PROPERTY. 479. Personal property may be mortgaged. 480. Must be made under affidavit. 481. Mortgage must be recorded. 482. A mixed mortgage on personal and real property. 483. Unlawful removal of mortgaged property. 479. PERSONAL PROPERTY MAY BE MORTGAGED. Mortgages may be made upon all kinds of personal property, and upon the rolling stock of a railroad com- pany, and upon all kinds of machinery, and upon boats and vessels, and on growing crops, and on portable mills and such like property. [3659.] 480. MUST BE MADE UNDER AFFIDAVIT. A mortgage of personal property is void against cred- itors of the mortgagor or subsequent purchasers, and en- cumbrancers of the property for value and in good faith, unless it is accompanied by the affidavit of the mort- gagor that it is made in good faith, and without any design to hinder, delay or defraud creditors, and it is acknowledged and recorded in the same manner as is required by law in conveyance of real property. [3660.] 481. MORTGAGE MUST BE RECORDED. A mortgage of personal property must be recorded in the office of the county auditor of the county in which the mortgaged property is situated, in a book kept exclusively for that purpose. When personal property mortgaged is thereafter removed from the county in which it is situated, it is, except as between the parties to the mortgage, exempt from the operation thereof, un- less either: 1. The mortgagee within thirty days after such re- moval causes the mortgage to be recorded in the county to which the property has been removed; or 2. The mortgage be recorded in the custom-house; or MORTGAGES OP PERSONAL PROPERTY. 267 3. The mortgagee within thirty days after such re- moval take possession of the property: Provided, that a mortgage on any vessel or boat or part of a vessel or boat, over twenty tons burden, shall be recorded in the office of the collector of customs, where such vessel is registered, enrolled, or licensed, and need not be recorded elsewhere. [3668.] 482. A MIXED MORTGAGE ON PERSONAL AND REAL PROPERTY. Any mortgage upon property of a mixed character, consisting in part of real estate and in part of personal property, and particularly upon railroad property, in the state of Washington, shall be admitted to record and be recorded, in the several counties wherein the property is located, as a real estate mortgage when ac- knowledged in the manner provided by law; and the original of such mortgage, or a copy thereof certified - by the auditor of any county in the state of Washing- ton, wherein the original has been recorded, may be filed in a file to be kept for that purpose in the office of the auditor of the county wherein such property is situated, and said record and filing shall constitute notice to all persons of the existence of the mortgage lien provided for by the said mortgage. [8782.] 483. UNLAWFUL REMOVAL OF MORTGAGED PROP- ERTY. Any mortgagor of personal property, or the successor in interest of such mortgagor, who, with intent to hin- der, delay or defraud the mortgagee thereof, or his or her assigns or legal representatives, shall injure or destroy such property or any part thereof, or shall conceal such property or any part thereof, or shall re- move the same or any part thereof from the county where it was situated at the date of the mortgage before it is duly released, without the consent in writing of the mortgagee, or shall sell or dispose of the same, or any interest therein, where he parts with the possession thereof, without the consent in writing of the mortga- gee, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprison- ment in the county jail for a period not to exceed six months or by a fine of not more than twice the value of such property, or by both such fine and imprison- ment. [3669.] 268 JUSTICE OP THE PEACE GUIDE. CHAPTER VII. LABOR AND MATERIALMEN'S LIEN. 484. Lien for improvements on real property when. 485. Form of claim, filing, etc. 486. What the claim shall state. 487. Form of claim. 488. Lien right is assignable. 489. Action on lien within eight months. 490. The innkeeper's lien. 491. Limitation of innkeeper's responsibility. 492. The agistor's lien. 493. The farm laborer's lien. 494. The logger's lien. 495. Lien on lumber at the mill. 496. Lien on cut timber. 497. Filing claim for logger's lien Form. Every person performing labor upon or furnishing material to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, dyke, flume, tunnel, fence, machinery, railroad, street railway, wagon road, aqueduct to create hy- draulic power or any other structure, or who performs labor in any mine or mining claim or stone quarry, has a lien upon the same for the labor performed or materials furnished by each, respectively, whether per- formed or furnished at the instance of the owner of the property subject to the lien, or his agent; and every contractor, subcontractor, architect, builder or person having charge of the construction, alteration or repair of any property subject to the lien as aforesaid, shall be held to be the agent of the owner for the purposes of the establishment of the lien created by this chapter: Provided, that whenever any railroad company shall contract with any person for the construction of its road, or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such per- son shall pay all laborers, mechanics and materialmen, and persons who supply such contractors with provi- sions, all just dues to such persons or to any person to whom any part of such work is given, incurred in carrying on such work, which bond shall be filed by such LABOB AND MATERIALMEN 's LIEN. 269 railroad company in the office of the county auditor in each county in which any part of such work is situ- ated. And if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor. [1129.] 484. LIEN FOR IMPROVEMENTS ON REAL PROP- ERTY WHEN. Any person who, at the request of the owner of any real property, his agent, contractor or subcontractor, clears, grades, fills in or otherwise improves the same, or any street or road in front of, or adjoining the same, has a lien upon such real property for the labor per- forrred, or the materials furnished for such purposes. [1131.] 485. FORM OF CLAIM, FILING, ETC. No lien created by this chapter shall exist, and no action to enforce the same shall be maintained, unless within ninety days from the date of the cessation of the perform- ance of such labor or of the furnishing of such materials a claim for such lien shall be filed for record as hereinafter provided in the office of the county auditor of the county in which the property, or some part thereof to be affected thereby, is situated. 486. WHAT THE CLAIM SHALL STATE. Such claim shall state, as nearly as may be, the time of the commencement and cessation of performing the labor or furnishing the material, the name of the person who per- formed the labor or furnished the material, the name of the person by whom the laborer was employed (if known) or to whom the material was furnished, a description of the property to be charged with the lien sufficient for identifica- tion, the name of the owner or reputed owner if known, and if not known, that fact shall be mentioned, the amount for which the lien is claimed, and shall be signed by the claim- ant or by some person in his behalf, and be verified by the oath of the claimant, or some person in his behalf, to the effect that the affiant believes the claim to be just. In case 270 JUSTICE OF THE PEACE GUIDE. the claim shall have been assigned, the name of the assignee shall be stated, and such claim of lien may be amended, in case of action brought to foreclose the same, by order of the court, as pleadings in other cases may be, in so far as the in- terests of third parties shall not be affected by such amend- ment. 487. FORM OF CLAIM. A claim for lien substantially in the following form shall be sufficient: Claimant, v. Notice is hereby given that on the .... day [date of commencement of performing labor or furnishing ma- terial] at the request of commenced to perform labor [or to furnish material to be used] upon [here describe property subject to the lien] of which property the owner or reputed owner, is [or if the owner or reputed owner is not known, in- sert the word "unknown"] the performance of which labor [or the furnishing of which material] ceased on the day of ; that said labor performed [or material furnished] was of the value of dollars, for which labor [or material] the undersigned claims a lien upon the property herein described, for the sum of dollars. [In case the claim has been assigned, add the words, "and is assignee of said claim or claims," if several are united.] Claimant. State of Washington, County of , ss. , being sworn, says: I am the claimant [or attorney of the claimant] above named; I have heard the foregoing claim read and know the contents thereof, and believe the same to be just. Subscribed and sworn to before me this day of LABOB AND MATERIALMEN 'S LIEN. 271 Any number of claimants may join in the same claim for the purpose of filing the same and enforcing their liens, but in such case the amount claimed by each original lienor, respectively, shall be stated: Provided, it shall not be necessary to insert in the notice of claim of lien provided for by this chapter any itemized state- ment or bill of particulars of such claim. [1134.] 488. LIEN RIGHT IS ASSIGNABLE. Any lien or right of lien created by law and the rights of action to recover therefor shall be assignable so as to vest in the assignee all rights and remedies of the assignor, subject to all defenses that might be made if such assignment had not been made. [1136.] 489. ACTION ON LIEN WITHIN EIGHT MONTHS. No lien created by this chapter binds the property ' subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such lien; or, if credit be given, then eight calendar months after the expiration of such credit; and in case such action be not prosecuted to judgment within two years after the commencement thereof, the court, in its discretion, may dismiss the same for want of prosecution, and the dismissal of such action, or a judgment rendered therein, that no lien exists, shall constitute a cancellation of the lien. [1138.] 490. THE INNKEEPER'S LIEN. Hereafter all hotel-keepers, innkeepers, lodging-house keepers, and boarding-house keepers in this state shall have a lien upon the baggage, property, or other valu- ables of their guests, lodgers, or boarders brought into such hotel, inn, lodging-house, or boarding-house by such guests, lodgers, or boarders, for the proper charges due from such guests, lodgers, or boarders for their accommodation, board, or lodging, and such other ex- tras as are furnished at their request, and shall have the right to retain in their possession such baggage, property, or other valuables until such charges are fully paid, and to sell such baggage, property, or other valuables for the payment of such charges in the manner 272 JUSTICE OF THE PEACE GUIDE. provided in the next succeeding section of this chapter. [1201.] [See Rem. & Bal. Code, for procedure of sale.] 491. LIMITATION OF INNKEEPER'S RESPON- SIBILITY. No innkeeper who constantly has in his inn an iron safe or suitable vault in good order, and fit for the safe custody of money, bank notes, jewelry, articles of gold and silver manufacture, precious stones and bullion, and who keeps a copy of this section, printed by itself in large, plain Roman type, and framed, constantly and conspicuously suspended in the office, bar-room, saloon, reading, sitting, and parlor room of his inn, and also a copy printed by itself in ordinary steed plain Roman type, posted upon the inside of the entrance door of every public sleeping-room of his inn, shall be liable for the loss of any such article suffered by any guest, unless such guest has first offered to deliver such property lost by him to such innkeeper for custody in such iron safe or vault, and such innkeeper has refused or neg- lected to receive and deposit such property in his safe or vault and to give such guest a receipt therefor : Pro- vided, that all doors to rooms furnished to guests shall be provided with slide-bolts inside of such rooms on all doors ; otherwise he shall be liable ; but every innkeeper shall be liable for any loss of the above-enumerated articles by a guest in his inn, when caused by the theft or negligence of the innkeeper or any of his servants. [1203.] 492. THE AGISTOR'S LIEN. Any farmer, ranchman, herder of cattle, tavern- keeper, livery and boarding-stable keeper to whom any horses, mules, cattle, or sheep shall be intrusted for the purpose of feeding, herding, pasturing, training, caring for, or ranching, shall have a lien upon said horses, raules, cattle, or sheep for the amount that may be due for such feeding, herding, pasturing, training, caring for, or ranching, and shall be authorized to retain possession of such horses, mules, cattle, or sheep until the said amount is paid. Provided, that these pro- visions shall not be construed to apply to stolen stock. [1197.] LABOR AND MATERIALMEN *S LIEN. 273 493. THE FARM LABORER'S LIEN. Any person who shall labor upon any farm or land, in tilHug the same or in sowing or harvesting or thresh- ing any grain, as laborer, contractor, or otherwise, or laboring upon, or securing or assisting in securing or housing any crop or crops sown, raised or threshed thereon during the year in which said work or labor was done, such person shall have a lien upcn all such crops as shall have been raised upon all or any of such land, for such work or labor; and every landlord shall have a lien upon the crops grown or growing upon the demised lands of any year for the rents accrued or accruing for such year, whether the same is paid wholly or in part in money or specific articles of property, or products of the premises, or labor, and also for the faithful performance of the lease; and the lien created by the provisions of this section shall be a preferred lien, and shall be prior to all other liens. [1188.] The law further provides that these liens are preferred liens generally, and that the claim must be filed within forty days after the work is done, or at the expiration of the term or after the expiration of each year of the lease. 494. THE LOGGER'S LIEN. Every person performing labor upon or who shall assist in obtaining or securing sawlogs, spars, piles, cordwood, shingle-bolts or other timber, and the owner or owners of any tugboat or towboat which shall tow or assist in towing, from one place to another within this state, any sawlogs, spars, piles, cordwood, shingle- bolts or other timber, and the owner or owners of any logging or other railroad over which sawlogs, spars, piles, cordwood, shingle-bolts, or other timber shall be transported and delivered, shall have a lien upon the same for the work or labor done upon, or in obtaining or securing, or for the services rendered in towing, transporting or driving, the particular sawlogs, spars, cordwood, shingle-bolts or other timber in said claim of lien described, whether such work, labor or services were done, rendered or performed at the instance of the owner of the same or his agent. The cook in a logging camp shall be regarded as a person who assists in ob- taining or securing the timber herein mentioned. [1162.] 18 274 JUSTICE OP THE PEACE GUIDE. 495. LIEN ON LUMBER AT THE MILL. Every person performing work or labor or assisting in manufacturing sawlogs and other timber into lumber and shingles has a lien upon such lumber while the same remains at the mill where it was manufactured or in the possession or under the control of the manufacturer, whether such work or labor was done at the instance of the owner of such logs or his agent or any contractor or subcontractor of such owner. The term "lumber," as used in this chapter, shall be held and be construed to mean all logs or other timber sawed or split for use, including beams, joists, planks, boards, shingles, laths, staves, hoops, and every article of whatsoever nature or description manufactured from sawlogs or other timber. [1163.] 496. LIEN ON CUT TIMBER. Any person who shall permit another to go upon his timber land and cut thereon sawlogs, spars, piles or other timber, has a lien upon the same for the price agreed to be paid for such privilege, or for the price such privilege would be reasonably worth in case there was no express agreement fixing the price. [1164.] 497. FILING CLAIM FOR LOGGER'S LIEN FORM. Every person within thirty days after the close of the rendition of the services, or after the close of the work or labor mentioned in the preceding sections, claiming the benefit hereof, must file for record with the county auditor of the county in which such saw- logs, spar piles and other timber were cut or in which such lumber or shingles were manufactured, a claim containing a statement of his demand and the amount thereof, after deducting as nearly as possible all just credits and offsets, with the name of the person by whom he was employed, with a statement of the terms and conditions of his contract, if any, and in case there is no express contract, the claim shall state what such service, work or labor is reasonably worth; and it shall also contain a description of the property to be charged with the lien sufficient for identification with LABOR AND MATERIALMEN *S LIEN. 275 reasonable certainty, which claim must be verified by the oath of himself or some other person to the effect that the affiant believes the same to be true, which claim shall be substantially in the following form: Claimant, v. Notice is hereby given that of county, state of Washington, claims a lien npon a of , being about in quantity, which were cut or manufactured in county, state of Washington, are marked thus , and are now lying in , for labor performed upon and assistance rendered in said ; that the name of the owner or reputed owner is ; that employed said to perform snch labor and render such assistance upon the following terms and conditions, to wit : The said agreed to pay the said for such labor and assistance ; that said con- tract has been faithfully performed and fully complied with on the part of said , who performed labor upon and assisted in said for the period of ; that said labor and assistance were so performed and rendered upon said between the day of and the day of ; and the rendition of said service was closed on the day of ; and thirty days have not elapsed since that time; that the amount of claimant's demand for said service is ; that no part thereof has been paid except , and there is now due and remain- ing unpaid thereon, after deducting all just credits and offsets, the sum of in which amount he claims a lien upon said The said also claims a lien on all said now owned by said of said county to secure payment for the work and labor performed in obtaining or securing the said logs, spars, piles or other timber, lumber or shingles herein described. 276 JUSTICE OF THE PEACE GUIDE. State of Washington, County of , ss. being first duly sworn, on oath says that he is named in the foregoing claim, has heard the same read, knows the contents thereof, and believes the same to be true. Subscribed and sworn to before me this day of [1168.] PRIVATE CORPORATIONS. 277 CHAPTER VIII. PRIVATE CORPORATIONS. 498. General provision for forming. 499. Two or more persons. 500. Written articles. 5 501. File one of such articles. 502. Said articles shall state. 503. This limit of existence. 504. Amendments may be made. 505. Form of corporation acknowledgment; J 506. Names of officers to be filed. S 507. Corporation powers. 498. GENERAL PROVISION FOR FORMING. Corporations for manufacturing, mining, milling, wharfing and docking, mechanical, banking, mercantile, improvement and building purposes, or for the building, equipping and managing water flumes for the trans- portation of wood and lumber, or for the purpose of building, equipping and running railroads, or construct- ing canals or irrigation canals, or engaging in any other species of trade or business, may be formed according to the provisions of this chapter ; such corporations and the members thereof being subject to all the conditions and liabilities herein imposed, and to none others: Pro- vided, that no such corporation shall commence business or institute proceedings to condemn land for corporate purposes until the whole amount of its capital stock is subscribed: And provided further, that the provisions of the foregoing proviso shall not apply to corporations engaged exclusively in raising money from, and loan- ing or repaying it to, their own members, and which confine their loaning and business operations wholly to the counties of their principal place of business respec- tively, and to the counties adjacent and adjoining thereto. [3677.] 499. TWO OR MORE PERSONS. Any two or more persons, who may desire to form a company for one or more of the purposes specified in the preceding section. 278 JUSTICE OP THE PEACE GUIDE. 500. WRITTEN ARTICLES. Shall make and subscribe written articles of incorpo- ration in triplicate and 601. FILE ONE OF SUCH ARTICLES; In the office of the secretary of state, and another in the office of the county auditor of the county in which the principal place of business of the company is in- tended to be located, and retain the third in the posses- sion of the corporation. 502. SAID ARTICLES SHALL STATE ; The corporate name of the company, the objects for which the same shall be formed, the amount of its capital stock, the time of its existence, not to exceed fifty years: Provided, that 503. THIS LIMIT OF EXISTENCE; Shall not apply to any life, accident and health in- surance company the number of shares of which the capital stock shall consist, the number of trustees and their names, who shall manage the concerns of the com- pany for such length of time (not less than two nor more than six months) as may be designated in such certificate, and the name of the city, town, or locality and county in which the principal place of business of the company is to be located. 504. AMENDMENTS MAY BE MADE. To the articles of incorporation by a majority vote of its trustees and the vote or written assent of two-thirds of the capital stock of such corporation. If the written assent of two-thirds of the capital stock has not been obtained then the vote of said stock may be taken at any regular meeting of the stockholders or at any special meeting of the stockholders called for that purpose in the manner provided in the by-laws of such corporation for special meetings of the stockholders. The president and secretary of said corporation shall certify said amendments in triplicate under the seal of said corpora- tion to be correct, and file and keep the same as in the case of original articles, and from the time of filing said amendments sucli corporation shall have the same powers and it and the stockholders thereof shall be sub- PRIVATE CORPORATIONS. 279 ject to the same liabilities as if such amendments had been embraced in the original articles of incorporation. Nothing contained in this section shall be construed to cure or amend any defect existing in any original arti- cles of incorporation in that such articles did not set forth the matters required to make the same valid at the time of filing, nor cure or amend any defect in the ex- ecution thereof. The time of existence of such corpora- tion shall not be extended by amendments beyond the time fixed in the original articles of incorporation. [3679.] 505. FORM OP CORPORATION ACKNOWLEDG- MENT. Certificates of acknowledgment of an instrument acknowl- edged by a corporation substantially in the following form shall be sufficient: State of , County of , ss. On this day of , A. D. 19 , before me personally appeared , to me known to be the [president, vice-president, secretary, treasurer, or other authorized officer or agent, as the case may be] of the corporation that executed the within and fore- going instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said cor- poration, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation. In witness whereof I have hereunto set my hand and affixed my official seal the day and year first above written. [Signature and title of officer.] 506. NAMES OP OFFICERS TO BE FILED. Every corporation heretofore organized under the laws of the territory or state of Washington, and every corporation which may hereafter be organized under the laws of this state, shall, on or before the second Tuesday of January of each year, and at such other times as such corporations may elect so to do, file with the county auditor of the county in which such corporation has its principal place of business, a statement, sworn 280 JUSTICE OF THE PEACE GUIDE. to by its president and attested by its secretary and sealed with its corporate seal, containing a list of all its officers and their respective titles of office, names and addresses, and the term of office for which they had been chosen. [3691.] 507. CORPORATION POWERS. When the certificate shall have been filed, the persons who shall have signed and acknowledged the same, and their successors, shall be a body corporate and politic in fact and in name, by the name stated in their certificate, and by their corporate name have succession for the period limited, and shall have power : 1. To sue and be sued in any court having competent ju- risdiction. 2. To make and use a common seal and to alter the same at pleasure. 3. To purchase, hold, mortgage, sell and convey real and personal property. 4. To appoint such officers, agents, and servants as the business of the corporation shall require; to define their powers, prescribe their duties, and fix their compensation. 5. To require of them such security as may be thought proper for the fulfillment of their duties, and to remove them at will, except that no trustee shall be removed from office unless by a vote of two-thirds of the stockholders as hereinafter provided. 6. To make by-laws not inconsistent with the laws of the Congress of the United States and of this state. 7. The management of its property, the regulation of its affairs, the transfer of its stock, and for carrying on all kinds of business within the objects and purposes of the company, as expressed in the articles of incorporation. PARTNERSHIPS. 281 CHAPTER IX. PARTNERSHIPS. I 508. Two or more persons may form partnership. 509. Limited partnership. 510. Filing of partnership certificate. 511. Partnership certificate to be published. 512. As parties to actions. 513. Dissolution of partnership. 508. TWO OR MORE PERSONS MAY FORM PART- NERSHIP. Limited partnership for the transaction of mercantile, mechanical or manufacturing business may be formed within this state, by two or more persons, upon the terms and subject to the conditions contained in this act. ' [8359.] 509. LIMITED PARTNERSHIP. A limited partnership may consist of two or more per- sons, who are known and called general partners, and are jointly and severally liable as general partners now are by law, and of two or more persons who shall con- tribute to the common stock a specific sum in actual money as capital, and are known and called special part- ners, and are not personally liable for any debts of the partnership, except as in this act specially provided. [8360.] 510. FILING OF PARTNERSHIP CERTIFICATE. The persons forming such partnership shall make and sev- erally subscribe a certificate, in duplicate, and file one of such certificates with the county auditor of the county in which the principal place of business of the partnership is to be. Before being filed, the execution of such certificate shall be acknowledged by each partner subscribing it before some officer authorized to take acknowledgments of deeds, and such certificate shall contain: The name assumed by the partnership and under which its business is to be conducted ; The names and respective places of residence of all the general and special partners; 282 JUSTICE OP THE PEACE GUIDE. The amount of capital which each special partner has con- tributed to the common stock ; The general nature of the business to be transacted ; and The time when the partnership is to commence and when it is to terminate. 611. PARTNERSHIP CERTIFICATE TO BE PUB- LISHED. Such partnership cannot commence before the filing of the certificate of partnership, and if a false statement is made in such certificate, all the persons subscribing thereto are liable as general partners for all the debts of the partnership. The partners shall for four con- secutive weeks immediately after the filing of the cer- tificate of partnership publish a copy of the same in some weekly newspaper published in the county where the principal place of business of the partnership is, or if no such paper be published therein, then in some news- paper in general circulation therein, and until such pub- lication is made and completed, the partnership is to be deemed general. [8361.] 512. AS PARTIES TO ACTIONS. All actions, suits or proceedings respecting the busi- ness of such partnership, shall be prosecuted by and against the general partners only, except in those cases where special partners or partnerships are to be deemed general partners, or partnership, in which case all the partners deemed general partners may join therein; and excepting also those cases where special partners are severally liable on account of sums or amounts received or withdrawn from the capital stock as provided in sec- tion [8366.] 513. DISSOLUTION OF PARTNERSHIP. No dissolution of a limited partnership shall take place except by operation of law, before the time speci- fied in the certificate of partnership, unless a notice of such dissolution, subscribed by the general and special partners, is filed with the original certificate of partner- ship or the certificate, if any, renewing or continuing such partnership, nor unless a copy of such notice be published for the time and in the manner prescribed for the publication of the certificate of partnership. [8367.] SALES OF UNCLAIMED PROPERTY. 283 CHAPTER X. SALES OP UNCLAIMED PROPERTY. f 514. Notice of sale of unclaimed property. i 515. Affidavit for sale. 516. Order of sale. 517. How sale is made. 8 518. The constable's return. S 519. Proceeds of sale disposed. 520. Sale of perishable property. S 521. Fees for justice and constable. 522. Finder of lost property. The law provides that a forwarding merchant, wharfinger, warehouse or tavern keeper, or the keeper of any depot for the storage of trunks, baggage and other personal property, shall keep a record of such property. Upon receipt of the same, he must then notify the consignee that he has such property in care for him, and thereafter, if the consignee does not call for or claim the same, the property is to be held for the period of one year and then sold according to the following procedure: 514. NOTICE OF SALE OP UNCLAIMED PROPERTY. Before any such property shall be sold, if the name and residence of the owner thereof be known, at least sixty days' notice of such sale shall be given him, either personally or by mail, or by leaving a notice at his resi- dence or place of doing business; but if the name and residence of the owner be not known, the person having the possession of such property shall cause a notice to be published, containing a description of the property, for the space of six weeks successively, in a newspaper, if there be one published in the same county; if there be no newspaper published in the same county, then said notice shall be published in a newspaper nearest thereto in the state; the last publication of such notice shall be at least eighteen days previous to the time of sale. [7130.] After sixty days the holder makes affidavit before a jus- tice of the peac*, setting forth compliance with the above statute. 284t JUSTICE OF THE PEACE GUIDE. 515. AFFIDAVIT FOR SALE. If the owner or person entitled to such property shall not take the same away, and pay the charges thereon, after sixty days' notice shall have been given, it shall be the duty of the person having possession thereof, his agent or attorney, to make and deliver to a justice of the peace of the same county an affidavit, setting forth a description of the property remaining unclaimed, the time of its reception, the publi cation of the notice, and whether the owner of such property be known or un- known. [7131.] Whereupon the justice opens the package, inventories the contents, and orders the constable to sell the same. 516. ORDER OF SALE. Upon the delivery to him of such affidavit, the justice shall cause such property to be opened and examined in his presence, and a true inventory thereof to be made, and shall annex to such inventory an order, under his hand, that the property therein described be sold by any constable of the precinct where the same shall be, at public auction. [7132.] 517. HOW SALE IS MADE. It shall be the duty of such constable receiving such inventory and order to give ten days' notice of sale, by posting up written notices thereof in three or more places in such precinct, and to sell such property at public auction to the highest bidder, in the same man- ner as provided by law for sales under execution from justices' court. [7133.] 518. THE CONSTABLE'S RETURN. Upon completing the sale, the constable making the same shall indorse upon the order aforesaid a return of his proceedings thereon, and return the same to the jus- tice, together with the inventory and the proceeds of sale, after deducting his fees. [7134.] 519. PROCEEDS OF SALE DISPOSED. From the proceeds of such sale, the justice shall pay all legal charges that have been incurred in relation to such property, or a ratable proportion of each charge, if the proceeds of said sale shall not be sufficient to pay SALES OP UNCLAIMED PROPERTY. 285 all the charges ; and the balance, if any there be, he shall immediately pay over to the treasurer of the county in which the same shall be sold, and deliver a statement therewith, containing a description of the property sold, the gross amount of such sale, and the amount of costs, charges, and expenses paid to each person. [7135.] Perishable property may be kept thirty days and may be sold by giving ten days' notice. Decayed or decaying prop- erty may be summarily sold on the justice's order. 520. SALE OF PERISHABLE PROPERTY. Property of a perishable kind, and subject to decay by keeping, consigned or left in manner before men- tioned, if not taken away within thirty days after it shall have been left, may be sold by giving ten days' notice thereof, the sale to be conducted and the proceeds of the same to be applied in the manner before provided in this title; provided, that any property in a state of decay, or that is manifestly liable immediately to be- come decayed, may be summarily sold by order of a jus- tice of the peace, after inspection thereof, as provided in section 7132, Rem. & Bal. [7139.] 521. FEES FOR JUSTICE AND CONSTABLE. The fees allowed to any justice of the peace, under the provisions of this title, shall be three dollars for each day's service; and to any constable, the same fees as are allowed by law for sales upon an execution, and ten cents a folio for making an inventory of property. [7140.] 522. FINDER OF LOST PROPERTY. Every finder of lost goods of the value of ten dollars or more shall, in addition to the requirements of the pre- ceding section, within fifteen days after finding the same, cause notice thereof to be published in a news- paper printed in the county, if there be one published therein, and if there be none, then such notice shall be posted up in three of the most public places in the county; and if no person shall appear to claim the same, who may be entitled thereto, he shall, within two months after finding such goods, and before using the same to their injury, procure an appraisal thereof by a justice 286 JUSTICE OP THE PEACE GUIDE. of the peace of his county, which appraisal shall be cer- tified to by such justice, and filed in the office of the clerk of the board of county commissioners of such county. [7142.] The owner may recover the same within one year, by paying all the costs and charges and compensating the finder for his trouble. [7143.] ABATEMENT OP NUISANCES. 287 CHAPTER XL ABATEMENT OF NUISANCES. I 523. Public nuisance. I 524. Any person may abate. S 525. Action by private person. 526. Definition of nuisance. 527. Statutory nuisances. 528. Resorts declared to be nuisances. 529. Order of abatement and warrant. 530. Bond for staying warrant. 531. Execution of warrant. 523. PUBLIC NUISANCE. A public nuisance is one which affects equally the 'rights of an entire community or neighborhood, al- though the extent of the damage may be unequal [8307.] When such a nuisance exists, it may be abated by the ac- tion of a public body or officer with proper authority. The action is brought in the name of the community and may be by the indictment of a grand jury or upon information. A public nuisance may be abated by any public body or officer authorized thereto by law. [8317.] When the public nuisance especially injures any one in- dividual, the person so suffering may remove and even de- stroy the offending nuisance, provided that in so doing he does not break the peace. When he cannot peaceably abate the nuisance, he should make his complaint to the proper au- thority and allow the same to be abated by process of law as provided. 524. ANY PERSON MAY ABATE. Any person may abate a public nuisance which is spe- cially injurious to him, by removing, or if necessary de- stroying, the thing which constitutes the same, without committing a breach of the peace or doing unnecessary injury. [8318.] 288 JUSTICE OF THE PEACE GUIDE. On the other hand, he may maintain an action to abate a public nuisance where he is specially injured. 525. ACTION BY PRIVATE PERSON. A private person may maintain a civil action for a public nuisance, i* it is specially injurious to himself, but not otherwise. [8316.] 526. DEFINITION OF NUISANCE. Nuisance consists in unlawfully doing an act, or omit- ting to perform a duty, which act or omission either an- noys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully in- terferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. [8309.] The following are set forth by the statute to be nuisances : 527. STATUTORY NUISANCES. It is a public nuisance, 1. To cause or suffer the carcass of any animal or any offal, filth or noisome substance to be collected, depos- ited or to remain in any place to the prejudice of others; 2. To throw or deposit any offal or other offensive matter, or the carcass of any dead animal, in any water- course, stream, lake, pond, spring, well, or common sewer, street or public highway, or in any manner to corrupt or render unwholesome or impure the water of any such spring, stream, pond, lake or well, to the in- jury or prejudice of others; 3. To obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water; 4. To obstruct or encroach upon public highways, pri- vate ways, streets, alleys, commons, landing-places, and ways to burying places; 5. To carry on the business of manufacturing gun- powder, nitroglycerine or other highly explosive sub- stance, or mixing or grinding the materials therefor, in ABATEMENT OF NUISANCES. 289 any building within fifty rods of any valuable building, erected at the time such business may be commenced ; 6. To establish powder magazines near incorporated cities or towns, at a point different from that appointed by the corporate authorities of such city or town; or within fifty rods of any occupied dwelling-house; 7. To erect, continue, or use any building, or other place, for the exercise of any trade, employment or manufacture, which, by occasioning obnoxious exhala- tions, offensive smells or otherwise is offensive or dan- gerous to the health of individuals or of the public; 8. To suffer or maintain on one's own premises, or upon the premises of another, or to permit to be main- tained on one's own premises, any place where wines, spirituous, fermented, malt or other intoxicating liquors are kept for sale or disposal to the public in contraven- ,tion of law. And every person who has the care, government, man- agement or control of any building, structure, powder magazine, or any other place mentioned in this section shall, for the purposes of this section, be taken and deemed to be the owner or agent of the owner or owners of such building, structure, powder magazine or other place, and, as such, may be proceeded against for the erecting, contriving, causing, continuing or maintaining such nuisance. [8308.] 528. RESORTS DECLARED TO BE NUISANCES. Houses of ill-fame, kept for the purpose, in which are embraced all squaw dance-houses, or squaw brothels, otherwise called mad-houses; all houses, rooms, saloons, booths, scows, boats, or other structures used as a place of resort, where women are employed to draw custom, dance, or fcr purposes of prostitution; all public houses or places of resort where gambling is carried on or per- mitted; all houses or places within any city, town, or village, or upon any public road or highway, where drunkenness, gambling, fighting, or breaches of the peace are carried on or permitted; all opium dens or houses, or places of resort where opium smoking is per- mitted, are nuisances, and may be abated, and the owners, keepers, or persons in charge thereof, and per- 19 290 JUSTICE OP THE PEACE GUIDE. sons carrying on such unlawful business, shall be pun- ished as provided in this chapter. [8319.] 529. ORDER OF ABATEMENT AND WARRANT. When, upon indictment (or information), complaint or action, any person is adjudged guilty of a nuisance, the court before whom such conviction is had may, in addition to the fine imposed, if any, or to the judgment for damages or costs, for which a separate execution may issue, order that such nuisance be abated or re- moved, at the expense of the defendant, and after in- quiry into and estimating, as nearly as may be, the sum necessary to defray the expenses of such abatement, the court may issue a warrant therefor. When the convic- tion is had upon an action before a justice of the peace, and no appeal is taken, the justice, after estimating, as aforesaid, the sum necessary to defray the expenses of removing or abating the nuisance, may issue a like war- rant. [8321.] A bond that the defendant will discontinue the nuisance will operate to stay the execution of the warrant. 530. BOND FOR STAYING WARRANT. Instead of issuing such warrant, the court or justice may order the same to be stayed upon motion of the defendant, and upon his entering into a bond in such sum and with such surety as the court may direct to the state, conditioned either that the defendant will discon- tinue said nuisance, or that within a time limited by the court, and not exceeding six months, he will cause the same to be abated and removed, as either is directed by the court, and upon his default to perform the con- dition of his bond, the same shall be forfeited, and the court, or justice of the peace, as the case may be, upon being satisfied of such default, may order such warrant forthwith to issue, and a rule to show cause why judg- ment should not be entered against the sureties of said bond. [8322.] The fences, materials and buildings of obstructions may be sold on the process of the warrant, just as an execution of a judgment; any balance that may be left over being returned to the defendant. ABATEMENT OP NUISANCES. 291 531. EXECUTION OF WARRANT. The expense of abating a nuisance by virtue of a war- rant can be collected by the officer in the same manner as damages and costs are collected on execution, except that the materials of any buildings, fences, or other things that may be removed as a nuisance may be first levied upon and sold by the officer, and if any of the proceeds remain after satisfying the expense of the re- moval, such balance must be paid by the officer to the defendant or to the owner of the property levied upon, and if said proceeds are not sufficient to pay such ex- penses, the officer must collect the residue thereof. [8323.] 292 JUSTICE OF THE PEACE GUIDE. CHAPTER XII. DOMESTIC ANIMALS AND FISH LAWS. 532. Damaged party may retain animals. 533. Notice to owner. 534. Notice by posting. 535. Action for damages. 536. Judgment lien on animals. 537. Continuance and service where defendant is unknown. 538. Burplus money deposited with county treasurer. 639. Justices have jurisdiction. 540. Jurisdiction of violations of fishing laws. The justice of the peace has jurisdiction of all damages made by the depredations of domestic animals when the amount of the damage so done does not exceed one hundred dollars ($100). He has also authority to punish violations of the state fishery laws. He has power to abate nuisances. 532. DAMAGED PARTY MAY RETAIN ANIMALS. A person suffering damage by the trespassing of another's domestic animals may take the animals and keep them until his damages are paid. Any person suffering damage done by horses, mares, mules, asses, cattle, goats, sheep, swine or any such ani- mals, which shall trespass upon any cultivated land, in- closed by lawful fence, may retain and keep in custody such offending animals until the owner of such animals shall pay such damage and costs, or until good and suffi- cient security be given for the same. [3187.] The person so retaining cattle must give the owner thereof written notice within twenty-four hours of his action. 633. NOTICE TO OWNER. Whenever any animals are restrained as provided in the last section, the person restraining such animals shall within twenty-four hours thereafter notify in writ- ing the owner, or person in whose custody the same was at the time the trespass was committed, of the seizure DOMESTIC ANIMALS AND PISH LAWS. 293 of such animals, and the probable amount of the dam- ages sustained: Provided, he knows to whom such ani- mals belong. [3188.] When the person seizing such animals does not know the owner, the foregoing notice is given by publication. 534. NOTICE BY POSTING. If the owner or the person having charge or pos- session of such animals is unknown to the person sus- taining the damage, the notice provided in the last sec- tion shall be given by posting three notices, in three public places in the neighborhood where the animals are restrained, for ten days. [3189.] 535. ACTION FOR DAMAGES. If the owner of the trespassing cattle does not settle the damages, the injured person has an action therefor. If the owner or person having such animals in charge fails or refuses to pay the damages done by such ani- mals, or give satisfactory security for the same within twenty-four hours from the time the notice was served, if served personally, and within ten days from the date of posting of the notice as provided in the last section, the person damaged may commence a suit, before any court having jurisdiction thereof, against the owner of such animals, or against the persons having the same in charge, or possession, when the trespass was committed, if known; and if unknown, the defendant shall be desig- nated as John Doe, and the proceedings shall be the same in all respects as in other civil actions, except as herein modified. [3190.] The judgment secured on the trial of such action becomes a lien upon the animals in question. 536. JUDGMENT LIEN ON ANIMALS. Upon the trial of an action as herein provided the plaintiff shall prove the amount of damages sustained and the amount of expenses incurred for keeping the offending animals, and any judgment rendered for dam- ages, costs and expenses against the defendant shall be a lien upon such animals committing the damage, and the same may be sold and the proceeds shall be applied in full satisfaction of the judgment as in other cases of 294 JUSTICE OP THE PEACE GUIDE. ' sale of personal property on execution ; Provided, that no judgment shall be continued against the defendant for any deficiency over the amount realized on the sale of such animals, if it shall appear upon the trial that no damage was sustained, or that a tender was made and paid into court of an amount equal to the damage and costs, then judgment shall be rendered against the plaintiff for costs of suit and damage sustained by de- fendant. [3191.] 537. CONTINUANCE AND SERVICE WHERE DE- FENDANT IS UNKNOWN. If upon the trial it appears that the defendant is not the owner or person in charge of such offending animals, the case shall be continued, and proceedings had as in the next section provided, if the proper defendant be ; unknown to plaintiff. [3192.] If the owner or keeper of such offending animals is unknown to plaintiff at the commencement of the action, or if on the trial it appears that the defendant is not the proper party defendant, and the proper party is unknown, service of the summons or notice, with a no- tice attached, stating the object of the action and giving a description of the animals seized, in a weekly news- paper published nearest to the residence of the plain- tiff, if there be one published in the county; and if not, by posting said summons or notice with said notice at- tached in three public places in the county, in either case not less than ten days previous to the day of trial. [3193.] 38. SURPLUS MONEY DEPOSITED WITH COUNTY TREASURER. If, when such animals are sold, there remains a surplus of money, over the amount of the judgment and costs, it shall be deposited with the county treasurer, by the officer making the sale, and if the owner of such animals , does not appear and call for the same, within six months from the day of sale, it shall be paid into the school fund, for the use of the public schools of said county. [3194.] 639. JUSTICES HAVE JURISDICTION. Justices of the peace shall have exclusive jurisdiction of all actions and proceedings under this act when the DOMESTIC ANIMALS AND FISH LAWS. 295 damages claimed do not exceed one hundred dollars: Provided, however, that any party considering himself aggrieved shall have the right of appeal to the superior court as in other cases. [3195.] 540. JURISDICTION OF VIOLATIONS OP FISHING LAWS. Justices of the peace shall have concurrent jurisdic- tion with the superior court of all offenses mentioned in this act. [5201.] This refers to various statutes prohibiting the use of ex- plosives for fishing purposes ; restoring young salmon to the water; nets, seines and boats; closed season for sturgeon, etc., to be found in the second volume of Remington & Bal- linger's Code, Title XXXV and Chapter IV. INDEX. (297) INDEX. FAGS 8EO. Accessory. To crime 174 303 Acknowledgment. General form of 210 372 Action. On contract 2 2 For injuries to person or property 2 3 On bonds 2 4 On surety bonds 2 5 - On fraud 3 6 Actions, all 3 9 How commenced. By summons 39 76 By complaint and notice 40 77 Other methods 38 75 Dismissal of 41 80 Parties to. See Parties. Acquittal Foreign 175 304 In other county 175 305 Administrators. As parties to actions 14 32 Adultery 175 306 Agistor. Lien of 272 492 Allegations. Undenied admitted true 45 89 (299) 300 INDEX. PAGE SEO. Ambiguity. In pleadings 23 52 Amendment. Of pleadings, generally 43 85 To be filed 45 91 Amusement. Dangerous 175 307 Animals. Vicious 176 308 Diseased 176 309 Disposal of carcasses 176 310 Injury to 176 311 Slaughtered, to be recorded 236 421 Trespass by 292 Damaged party may retain 292 532 Notice to owner '. 292 533 Notice by posting 293 534 Action for damages 293 535 Judgment is a lien on 293 536 Service where defendant unknown 294 537 Surplus money 294 538 Jurisdiction 294 539 Answer. Of defendant 44 86 Appeal. Above twenty dollars 80 162 How taken 80 163 Stays proceedings 81 164 Recalls execution 82 165 Transcript on 82 166 Superior court may compel transcript on. ... 84 168 Bond 81 164 Bond, defective, how cured 84 169 Costs of. . . 85 171 INDEX. 301 PAGE SEC Appeal (Continued). Judgment against sureties 84 170 In criminal actions, no advance fee for 164 292 Pleadings same as in lower court 84 167 Right of in criminal actions 161 290 Record of appeal in criminal action to be transcribed to superior court 170 298 Appearance. Special 7 18 General 42 81 Arrest (Arrest and Bail). Warrant of 103 200 Affidavit for 104 201 Bond 104 202 Of defendant 105 203 Plaintiff notified of 106 204 Defendant detained 106 205 Discharge of 106 206 Appearance of defendant in 106 206 Arrest (Criminal Action). Warrant 148 274 Arson. First degree 177' 312 Assignees. As parties to actions 14 33 Attached Goods. Inventory of Ill 217 Attachment. Time of 109 209 Writ of 118 233 Bond for writ.. ..116 231 302 INDEX. PAGE SEC. Attachment (Continued). Affidavit for 115 23 Executing writ 119 234 Executing writs, order of 109 210 Sale of property on (perishable) 110 211 Improper writ of 110 212 Return of writ of 110 213 Money received on 110 214 Eeturn of writ unsatisfied Ill 218 For deficiency execution Ill 219 Release of 112 221 Garnishment of attached goods Ill 215 Examination of defendant 113 222 Funds in hands of court Ill 216 In other county 113 225 Inventory of goods in Ill 217 Motion to discharge 113 224 Motion to discharge, hearing on 114 225 Bond to discharge 114 226 Execution on property in 112 220 Judgment on bond to discharge 115 227 Suit on bond in 115 228 Statutes, how construed 115 229 Additional bond for 117 232 Jurisdiction in 3 8 Automobiles. Speed of 178 313 Bail. With or without examination 150 276 When justice has no jurisdiction of criminal offense 166 295 Beggar. Is vagrant 178 314 INDEX. 303 PAGE SEC. Bond. Cost, of nonresident plaintiff 52 111 To keep the peace 194 340 Complaint for peace bond 197 341 Brand. On animals 178 315 Imitating lawful 179 316 Burglary ,...179 317 Causes of Action. Statement of 22 50 Joinder of 24 58 Certificate. Of election 223 393 Chattel Mortgages. Affidavit 266 480 Recorded 266 481 Child. Abandonment of 180 318 Children. Employment of 181 320 Clerk. Justice's 214 373 Complaint. Contents of 20 43 Parts of 21 47 Title of 21 48 Parties to.. . 22 49 304 INDEX. PAGE SEC. Commitment. After hearing 152 277 Community Property. Judgment against 13 29 Defined 256 462 Compound of Misdemeanors 172 302 Concert Halls. Minors in 181 319 Constables. Bond 241 434 Fees 242 436 Unclaimed property 239 427 Sale of 240 428 Return of sale of 240 429 Oath 241 433 Salary 240 432 Election 240 430 In cities of five thousand 240 431 Duties and authority 238 426 Successor, incomplete business to 243 437 Serve process of military courts 238 426 Appointment of 241 435 Contempt Proceedings. Persons guilty 202 357 Cause to be heard 204 362 Punishment 202 358 Commitment of defendant 204 363 Warrant 203 359 Judgment 203 360 In presence of court 154 278 Continuance. By agreement 43 84 In criminal actions . . . . 156 284 INDEX. 305 PAOB SEC. Contracts. To be in writing, when 246 439 Conveyance. Offenses in public 181 321 Coroner. Justice as 211 Corporations as Parties to Actions. Private 277 498 Articles 278 500 Filing 278 501 Existence of 278 503 - Form of corporate acknowledgment 279 505 Names to be filed 279 506 Powers of 280 507 Costs. Recovery of 77 155 To be forwarded up in criminal action 171 300 For malicious complaint 171 301 Counterclaims. In pleadings 47 98 Criminal Jurisdiction. Of justices of the peace 149 275 Deeds. Warranty 259 466 Quitclaim 260 468 Bargain and sale 260 469 Consideration 260 467 20 306 INDEX. PAGE SBC. Default. Judgment on 40 79 Defendant. Answer of 44 86 Bight to counsel 182 322 Presumption of innocence 182 322 Right to face witnesses 182 322 Conviction, when had 182 322 Demurrer, The. Grounds of 53 113 Denial, The 44 87 Of knowledge or information 44 88 Allegations undenied admitted 45 89 Depositions. Time of taking 67 138 Out of state 67 139 On notice 67 140 Use of 68 141 Notice by publication 69 142 Written and certified 69 143 Sealing and transmitting 70 144 Use on trial 70 145 In criminal action 170 297 Descent. Of property 251 448 Desecration. Of flag 183 323 Docket. Justice's 214 374 Duplicity. In pleadings 23 59 INDEX. 307 A SIC. Election of Justices. Precincts 221 385 Number of justices 223 390 Eligibility 223 391 Term of office 223 392 Certificate and oath 223 393 Number in incorporated cities 221 386 Number in cities of more than five thousand . 222 387 Number in first class cities 222 388 Number in cities of more than thirty-five thousand 222 389 Must be lawyer, when 222 388 Bond, liability on 224 396 New precinct 224 395 Jurisdiction 224 394 Successor in office 224 397 Penalty for failure to deliver records 225 398 Eligibility. Of justices 223 391 Must be lawyer, when 222 388 Evidentiary Facts 23 55 Examination, In criminal action 165 293 Of witnesses. See Witnesses. Direct. See Witnesses. Cross. See Witnesses. Redirect. See Witnesses. Execution. On judgments 86 Time of, limited 88 172 Writ of 89 '173 Indorsement on writ of 89 174 Notice of sale on execution 90 175 Return of sale on . . .91 176 308 INDEX. PAQB SEC. Execution (Continued). Officer cannot purchase on 91 177 Claim of third person 91 178 Alias 92 179 Stay of 92 180 Bond for stay of 92 181 Revocation of 93 182 Against sureties 93 183 Against substituted surety 94 184 Mutual judgments 94 185 For balance of unsatisfied judgment 94 186 Judgment rendered by another justice 95 187 Issued by justice 's successor 95 188 Arrest of defendant on 96 189 For costs 96 190 General remedy on 96 191 Garnishee may be examined 96 192 Of judgment in criminal action, bond for stay 161 289 Exemptions. Statutory 96 193 Pension money 99 194 Insurance money (fire) 99 195 Insurance money (life) 99 196 Cemetery lota 99 197 Procedure on claims. . . .100 199 Family. Liability for expenses of 12 28 Farm Laborers. Lien of 273 493 Fee-book. And accounts. . 218 381 INDEX. 309 Fees. Accounting for 218 381 Schedule of 215 375 Of salaried justices 216 376 To be paid in advance 217 378 To go to treasurer 220 384 Felony. When punishment not fixed 183 325 Firearms 184 326 Fire Marshal Justice as deputy 213 Fishing Laws. Violation of 295 640 Forgery. First degree 184 327 Second degree 185 327 Gambling. Devices 186 328 Conducting 185 328 Swindling 186 328 Garni shee. Examination of 96 192 To surrender property 139 258 Garnishment. Who may be subject to 129 245 Affidavit for writ 130 246 Writ of 131 247 Writ to be indorsed 133 248 Service of writ. . ..133 249 310 INDEX. PAGE SEC. Garnishment (Continued)'. Service binding on garnishee 134 250 Service on bank 134 251 Answer of garnishee 135 252 Answer when names are uncertain 136 253 Answer pleading defense 137 254 Answer controverted 137 255 Bond of defendant 138 256 Discharge of garnishee defendant 138 257 Default of garnishee 139 259 Judgment against garnishee 140 260 Execution against garnishee 142 261 Refusal of garnishee to deliver 142 262 Costs allowed on controverted answer 142 263 Of corporation 143 264 Conduct of sale of stock 143 265 Sale conveys title 143 266 Guilty. Plea of.. ..154 279 Hearing. Defendant must have 155 280 Highways. Disturbances 186 329 Throwing glass on 186 329 Householder. Who is 99 198 Husband and Wife. As necessary parties to actions 11 23 When may be parties 11 24 Antenuptial debts 11 25 On promissory note of husband 12 26 General rule. . , 12 27 INDEX. 311 PAGE SEC. Husband and Wife (Continued). Separate property of husband 256 460 Separate property of wife 256 461 Husband to manage real property 257 463 Conveyances between 262 471 Family, expenses of 12 2-8 Infants. As parties to action 13 30 Guardian for plaintiff 13 30 Guardian for defendant 13 31 Innkeepers. , Lien of 271 490 Responsibility of 272 491 Intervene. Eight to 16 36 Intoxicating Liquors. In public conveyance 187 330 Misrepresenting age of 187 330 Judgment. On verdict 74 By default 40 79 Tender of 77 156 Lien of 78 157 Transcript of 78 158 Contents of 78 159 Entry of 79 160 Transferred to another county 79 161 Mutual effect of 94 185 Execution for balance of 94 186 In criminal actions .. ..160 2S8 312 INDEX. PAGE SXC. Judgment (Continued). On confession 3 7 Of dismissal 75 153 Jurisdiction. Defined 2 1 Of civil actions 2 1 When vested 4 11 Extent of 4 12 Prohibited specifically 5 14 How lost 6 16 Effect of acting without 6 15 Criminal 147 Want of, how questioned 6 17 Juror. Qualifications of 55 116 Service on 57 120 Failure to answer summons 60 124 Jury. Trial by 55 Exempt from 55 115 Demand for 56 117 Number of 56 117 Fees of 56 117 Selecting 56 118 Summoning 57 119 Oath of 58 121 Verdict of 59 122 Disagreement of 60 123 Challenging 60 125 Argument to 60 125 Justices' Election. See Election of Justices. INDEX. 313 PAGE SEC. Leases. Month to month' 265 475 Tenant by sufferance 265 476 Tenancy at specified time 265 477 Year to year tenancy 265 478 Lien. Of judgment 78 157 Labor and materialmen 268 For improving real property 269 484 Form of claim 269 485 Right assignable 271 488 Action on lien 271 489 Innkeeper's lien 271 490 Agistor's lien 272 492 ' Farm laborer's lien 273 493 Of loggers 273 494 On lumber 274 495 On cut timber 274 496 Limitations. Statute of 7 19 Logger's Lien. Filing claim for 274 497 Lost Property. Finder of 285 522 Unclaimed property. See Unclaimed Property. Malicious Complaint. Liability for 171 301 Manslaughter 188 331 Marriage 226 Affidavit for license 227 401 When voidable.. ..232 413 314' INDEX. PAGE SIC. Marriage (Continued). Solemnize, authority to 226 399 Officer not to solemnize, when 229 405 Certificate 230 407 Record of certificate 231 409 Penalty on failing to deliver certificate 231 410 Consent for minors 227 401 Prohibited in certain cases 228 402 Ceremony 229 406 License by county auditor 227 400 Certain marriages declared valid 231 411 Solemnization by unauthorized person 232 412 Penalty general 229 404 Misdemeanor. Defined 188 322 Misdemeanors, Compound of 172 302 Mortgaged Property. Removal of 267 483 Mortgages. Mixed 267 482 Real estate 262 472 Chattel 266 Satisfaction of 263 473 Penalty for failure to satisfy 264 474 Murder. Proof of death 188 333 First degree 188 333 Second degree 189 334 In duel 189 334 Ne Exeat. Authority in general 144 267 Bond in 144 268 Venue in . . . . 145 269 INDEX. 315 PACK SEC. Ne Exeat (Continued). Bond of defendant 145 270 Writ of 145 271 Proceedings in 146 272 Habeas corpus writ, remedy of 146 273 Notary Public. Justice as , 210 371 Notice, The. See Service, etc. Certified, must be 35 70 Nuisances. Abatement of 287 Public , 287 523 Any person may abate 287 524 Action by private person 288 525 Defined 288 526 Statutory nuisances 288 527 Resorts as nuisances 289 528 Order of abatement 290 529 Warrant 290 529 Bond for staying warrant 290 530 Execution of warrant.. ..291 531 Oath. Of office 223 393 Offense. In presence of justice 154 278 Office. Location of justice of the peace 5 13 Orchard. Injury to 189 335 316 INDEX. PAGE SEC. Particulars. Bill of 53 114 Parties. To action 9 20 Who may be 10 21 Defect of 17 37 Mistake in name 17 38 Wrong plaintiff 17 39 Wrong defendant 17 40 Right to be made 17 41 Partner. Justice 's law 5 13 As parties to actions 15 34 Partnerships. Limited , 281 509 Certificate 281 510 Dissolution of 282 513 Peace. Crimes against 189 336 Disturbing meeting 191 338 Riot 189 336 Unlawful assembly 190 336 Remaining after warning 190 336 Peace Bond. Complainant pays costs, when 200 350 Costs to defendant 200 351 Offense in presence of court 200 352 Penalty remitted 201 353 Transcript to superior court 201 354 Rights of surety on peace bond 201 355 Complaint for 197 341 Warrant 197 342 Trial on. . 198 343 INDEX. 317 PACK SEC. Peace Bond (Continued). Imprisonment in default of 198 344 Appeal 199 346 Discharge on bond 198 345 Failure to prosecute appeal 199 347 Judgment of appellate court 199 348 Bond certified to superior court 199 349 Personal Property. Distribution of 254 459 Persons. Severally liable as parties 16 35 Pleadings. What is meant by 19 42 What must be in writing 20 42 Orally 20 44 For money only 21 45 Time of 26 61 To be made certain 21 46 Verification of 24 60 Police Judge. Establishment of police court 205 364 Jurisdiction of police judge 205 365 General powers 207 366 Police powers of justice 207 367 In cities of third class 208 368 In cities of fourth class 208 369 In cities of first class 209 370 Powers. General, of justices of the peace 3 10 Prisoners. May be worked 233 414 City.. 233 414 County 233 415 318 INDEX. PAGE SXC. Private Corporations 277 Proof. Variance between pleading and 45 92 .Variance between pleading and, immaterial when 46 93 Failure of 46 95 Practice when pleading and proof vary 46 94 Public Peace. Crimes against 189 336 Publication, Service by 30 66 Weekly, how made 33 67 Punishment. Adequacy of 155 282 Belief. Prayer for 24 59 Religious Meeting. Disturbing 191 338 Replevin. Affidavit for 121 235 Bond 122 235 Order for delivery 122 236 Counter-bond of defendant 124 238 Justification of sureties 124 239 Sureties of defendant .125 240 Intervention of third party 125 241 Return of writ 126 244 Execution of writ 123 237 Officer to keep and deliver chattels 126 243 Right to enter buildings 126 242 INDEX. 319 PACT SEC. Reply. Plaintiff 's 49 101 Bepugnancy. In pleadings 23 54 Sabbath-breaking 190 337 Salaries. Of justices 216 Justices pro tern 217 379 How paid 217 380 In cities of more than five thousand 219 382 In cities of more than thirty-five thousand. .219 383 In cities of more than eighty thousand 220 383 Salary Fund 219 381 Sale. Bills of 245 To be recorded 246 438 Void, when 248 441 Seagulls. Punishment for taking or killing 237 424 Search-warrant. Affidavit for 172 302 Service. Of complaint and notice 29 63 Time of 30 64 By whom made 30 65 By publication 30 66 By sheriff or other officer 33 68 Manner of 33 69 On county officer 33 69 320 INDEX. PAGE SEC. Service (Continued)'. City officer 33 School district 33 Railroad corporation 33 Sleeping-car corporation 33 Insurance company 33 f Express company. 33 Corporations generally 33 Foreign corporations 33 Minor child 33 Ward 33 Receiver 33 Generally 33 Proof of 36 Return of 35 Rules of King County justices 38 On two or more defendants 35 Setoffs 47 97 Generally 48 99 Allowing 48 100 Successor. In office 224 397 Swine. Damages by 235 Appraisers appointed 235 419 Fees of justice 236 420 May be impounded 235 418 Tender. Of judgment and costs, effect of 77 156 Term. Ofomce.. ..223 392 INDEX. 321 PAGB 810. Town. Action in favor of disqualifies justice 237 425 Transcript. On appeal 82 166 Superior court may compel 84 168 Trial 50 By jury and magistrate 155 281 .When justice has jurisdiction of criminal of- fense 166 294 Truant Children. Jurisdiction of 233 416 Concurrent jurisdiction with superior courts 234 417 Unclaimed Property. Notice of sale of 283 514 Affidavit for sale 284 515 Order of sale of 284 516 How sale is made 284 517 Constable 's return of sale 284 518 Proceeds of sale, how disposed 284 519 Sale of perishable property 285 520 Fees for justice and constable 285 521 Vagrancy 192 339 Vendor. Affidavit of, if goods in bulk 246 440 Venue 50 102 Of action 50 103 Change of 51 104 Same as in superior court 51 105 21 322 INDEX. PAGE SEC. Venue (Continued)'. One change of only 51 106 When corporation is defendant 51 107 In other cases 52 108 Proceedings to change 52 109 On affidavit 52 110 Verification, Of pleadings 24 60 Warrant. Of arrest 148 274 Wills. Two witnesses 250 442 When witness is beneficiary 250 443 Devise of land 250 444 Testator's name.. ..250 445 Revocation of will 251 446 Construction 251 447 Witnesses. Deposition of 66 137 Who may be 61 126 " Persons not qualified to be 62 127 '- Who may refuse 62 128 Husband 62 128 Wife 62 128 Attorney 62 128 Clergyman ...62 128 Physician 62 128 Public officer 62 128 " Jurisdiction of within twenty miles 63 129 Service on 63 130 Adverse party competent to be 64 131 Effect of party refusing to be 64 132 Principal parties as 65 13$ INDEX. 323 PAGE SEC. Witnesses (Continued). Failure to appear 65 134 Attachment for 65 135 Service of writ of attachment for 66 136 Examination of, direct 72 146 Cross-examination of 72 147 Redirect examination of 72 148 Questions, leading 72 149 Impeaching 73 150 Memory of, refreshing 73 151 Suit against on bail bond 171 299 Objections to questions 73 152 In criminal actions. Injured party as witness 156 283 Recognizance of 156 285 Sureties for 158 286 Sureties for not sui juris 160 287 Recognized for appeal 164 291 FORM INDEX. PAGE 00. Acknowledgment. General 210 372 By corporation 279 505 Affidavits. For garnishment 130 246 For replevin 121 235 Of publication of summons 33 67 For publication of summons 31 66 Appeal ' Bond in civil action 82 164 Bond in criminal action 162 290 Arrest. Warrant of 148 274 Arrest and Bail Bond 105 202 Warrant of 104 200 Attachment. Writ of 118 233 Bond for 117 231 Bond to discharge 114 226 Bail bond 150 276 Bench-warrant.. 149 274 Bill of Particulars. Demand for 54 114 Bond. Appeal (civil) 82 164 Appeal (criminal) 162 290 (325) 326 FORM INDEX. PAGE SEC. Bond (Continued). Replevin 122 235 Of justice ...223 393 Attachment 117 231 Stay of execution 93 181 To keep peace. .-. 195 340 Indemnity.... 85 171 Arrest and bail 105 202 To discharge attachment 114 226 Certificate of Marriage 231 408 Commitment 152 277 When no jurisdiction to try 167 295 Of witness 157 285 Temporary. 152 277 Return of... 153 277 Complaint. General form 25 60 Contempt. Warrant in 203 359 Judgment in 203 360 Conviction. Certificate of .. ..155 280 Deed. Warranty 259 466 Quitclaim 260 468 Bargain and sale 260 469 Acknowledgment of 261 470 Deposition. Certificate of . . .69 143 FORM INDEX. 327 PAGE SEC. Execution. Against the body 87 172 Notice of sale 90 175 Writ of 89 172 Against principal and surety 94 183 Of judgment in criminal action 161 288 Stay of 93 181 Bond for stay of 93 181 Garni shee Defendant. Answer of 135 252 Judgment of default 140 259 Garnishment. - Affidavit for 130 246 After judgment 130 246 Writ of.. ..132 247 Indemnity Bond 85 171 Judgment. For plaintiff 76 154 For defendant 76 154 On counterclaim 76 154 Of dismissal 42 80 Of default... .41 79 Of default of garnishee 139 259 Jury. Summons for 57 119 Justice of the Peace. Bond 223 393 Lien. Claim of 270 487 Of logger 275 497 328 FORM INDEX. PAGE SZC. Marriage Ceremony. Form of 230 406 Certificate 231 408 Notice. Form of 40 77 With complaint 28 62 Oaths. To jurors in criminal action 58 121 To bailiff in charge of jurors 58 121 To witness 71 146 To interpreter 72 146 To juror at challenge 58 121 To jurors impaneled 58 121 Peace. Bond to keep 195 340 Warrant for breach 197 342 Principal and Surety. Execution against 94 183 Publication. Of summons 32 66 Affidavit for 31 66 Affidavit of printer 33 67 Replevin. Affidavit 121 235 Return of writ 126 244 Bond of 122 235 Writ of 122 236 Reply. Of plaintiff 49 101 FORM INDEX. 329 PAGE SEC. Search-warrant 173 302 Affidavit for 172 302 Service. Return of by officer 36 73 When defendant not found 37 73 Return by appointed server 37 73 On corporation 38 73 By publication 31 66 Affidavit for 31 66 Order for 32 66 Subpoena 64 130 Subpoena Duces Tecum 64 130 Summons 39 76 For publication 32 66 Affidavit of publication 33 67 Transcript. Of judgment 83 166 Certificate of 84 166 Of criminal record 170 298 Vendor. Affidavit of 247 440 Verdicts. In criminal action 59 122 In civil action. For defendant 59 122 For plaintiff 59 122 On counterclaim 59 122 For plaintiff with damages 59 122 For defendant in replevin 59 122 For plaintiff in replevin 59 122 330 FORM INDEX. PACK SEC. Verifications 26 60 By agent or attorney 26 60 Warrant. For breach of peace 197 342 On arrest and bail .'.104 200 Criminal. 148 274 Bench 149 274 Witness. Commitment of. 157 285 Recognizance of 158 286