TITLE XXI. CHAPTER 93.

When justice to

commit witness refusing to be

sworn or to testi

fy.

Warrant what to specify.

Cause to be adjourned until

witness shall tes.

cause,

shall refuse to be sworn in the form prescribed by law, or to answer any pertinent and proper question, and the party at whose instance he attended, shall make oath that the testimony of such witness is so far material, that without it he cannot safely proceed to the trial of such cause, such justice may, by warrant, commit such witness to the jail of the county.

SEC. 209. Such warrant shall specify the cause for which the same is issued, and if it be for refusing to answer any question, such question shall be specified therein; and such witness shall be closely confined pursuant to such warrant, until he submit to be sworn or to answer, as the case may be.

SEC. 210. The justice shall thereupon adjourn such cause at the request of the party in whose favor such witness attended, from time tify, or be incapa- to time, until such witness shall testify in the cause, or be dead, or otherwise incapable of testifying as a witness.

ble, &c.

When partner

be used in pro

cess.

SEC. 211. In all cases where a suit is commenced for or against a ship name may copartnership, and the names of all the several partners are not known, such suit may be commenced in the partnership name of said plaintiffs or defendants, and the plaintiffs or defendants shall have the right at any time before the pleadings are closed, to amend the same by inserting the names of the parties composing such copartnership. SEC. 212. When the name of any defendant shall not be known to may be prosecu- the plaintiff, he may be described in the process and proceedings by a fictitious name; and if a plea in abatement be interposed by such defendant, or his name be otherwise ascertained, the justice before whom the suit is pending shall amend the proceedings according to the truth of the matter, and shall thereafter proceed therein in like manner as if the defendant had been sued by his right name.

When defendant

ted by fictitious

name, &c.

Constable may

proceed on exe cution, after ex

piration of his term, &c.

When justice

may require security for costs.

When property

SEC. 213. Every constable to whom any execution shall have been delivered, and whose term of office shall expire before the time within which the return or collection of such execution is required by law, shall proceed thereon in the same manner, and shall have the same powers in relation thereto, as if his term of office had not expired; and such constable and his sureties shall be liable for any neg lect of duty, and for moneys collected upon such execution, in the same mnnner, and to the same extent as if the term of office of such constable had not expired.

SEC. 214. Any justice of the peace may, in his discretion, require security of the plaintiff for costs in any action, either before or after the issuing of process; and the person becoming security therefor shall sign a memorandum to that effect, which the justice shall file and preserve; and in all cases, plaintiffs who are not residents of this state, shall give such security before process shall issue.

SEC. 215. Every officer having an execution in his hands for collecof principal debtor to be first ex- tion, upon an affidavit being served upon him, made by any co-dehausted. fendant in such execution, his agent or attorney, showing the principal debtor therein, shall first exhaust all the personal estate of said principal debtor which may be turned out by any one of the defendants, before selling the property of any other defendant who may be surety in the demand upon which judgment was rendered. SEC. 216. It shall be competent to call and examine any party to a

Party to suit may

his attendance

be examined, and suit, and to compel his attendance by subpoena or otherwise, in such manner, and under such restrictions and limitations as may be prescribed by law.

compelled.

CHAPTER 94.

OF CRIMINAL PROCEEDINGS BEFORE JUSTICES OF THE PEACE.

TITLE XXI. CHAPTER 94.

SECTION 1. Any justice of the peace shall have power to hold a Powers and ju court subject to the provisions hereinafter contained, to hear and de- risdiction of jus termine charges for offences arising within their respective counties, in certain crimias follows:

1. All cases of larceny, not charged as a second offence, when the value of the property stolen shall not exceed twenty-five dollars :

2. Cases of assault and battery, not charged to have been commited riotously, or upon any public officer in the execution of his duties, or with intent to commit any other offence:

3. Charges for wilfully destroying, removing, injuring or defacing any mile-stone or mile-board, or injuring or defacing any inscription or device upon any guide-post or guide-board on any highway, or removing, destroying or injuring any guide-post or guide-board:

4. Charges for wilfully and maliciously killing, maiming or disfiguring any horses, cattle, or other beast of another person, or for wilfully and maliciously destroying or injuring the personal property of another, by any other means, where the value of the beasts killed, or the injury done, shall not exceed twenty-five dollars:

5. Charges for wilfully and maliciously breaking down, injuring removing or destroying any monument erected for the purpose of designating the boundaries of any township, or any tract or lot of land, or any tree marked for that purpose; or for. wilfully and maliciously marring or defacing any building, or any sign board; or wilfully and maliciously extinguishing any lamp, or breaking, destroying, or removing any lamp, or any lamp post, or any railing or post erected on any bridge, side-walk, street, highway, court, or passage:

6. Charges against any person for wilfully committing any trespass, by cutting down or destroying any timber or wood, standing or growing on the land of another, or by carrying away any kind of timber or wood, cut down or lying on such land; or by digging up or carrying away any stone, ore, gravel, clay, sand, turf or mould from such land, or any roots, fruit or plant there being, or by cutting down or carrying away any grass, hay, or any kind of grain, standing, growing, or being on such land, or by carrying away from any wharf or landing place, any goods whatever, in which he has no interest, of the value of five dollars or more :

7. Charges against any person for wilfully committing any trespass, by entering upon the garden, or orchard, or other improved land of another, without permission of the owner thereof, with intent to cut, take, carry away, destroy or injure the trees, grain, grass, hay, fruit or vegetables there growing or being:

8. And all other offences punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in the county jail not exceeding three months, or punishable by both said fine and imprison

ment.

tices of the peace

nal cases.

OTYOF

before justice.

SEC. 2. Upon complaint made to any justice of the peace by any Proceeding on constable or other person, that any of the foregoing offences have complaint made been committed within the county, he shall examine the complainant on oath and witnesses produced by him, and shall reduce the complaint to writing, and cause the same to be subscribed by the com

CHAPTER 94.

TITLE XXL plainant, and if it shall appear that such offence has been committed, the said justice shall issue his warrant, reciting the substance of the complaint, and requiring the officer to whom it is directed, forthwith to arrest the accused, and bring him before such justice, or some other justice of the same county, to be dealt with according to law; and in the same warrant may require the officer to summon such witnesses as shall be named therein, to appear and give evidence at the trial.

Hearing and trial by justice.

Bail for defend

and commitment

SEC. 3. On the return of the warrant with the accused, the said justice shall proceed to hear, try and determine the cause within one week after the return of the same.

SEC. 4. From the time of the return of the warrant until the time ant's appearance; of the trial, the accused may give bail with one or more sufficient in case of failure. sureties for his appearance at the time fixed for the trial, or in the event of failure so to do, may be committed to jail for safe keeping by warrant of said justice, or left in custody of the arresting officer.

Charge to be

tered.

SEC. 5. The charge made against the accused, as stated in the warread aud plea en rant of arrest, shall be distinctly read to him, and he shall be required to plead thereto, which plea the court shall enter in their minutes; if the accused refuse to plead, the court shall enter the fact with a plea of not guilty in behalf of such accused in its minutes.

When issue to be tried by court.

Ifdefendant plead

guilty, judgment

SEC. 6. If the plea of the accused be not guilty, and no jury be demanded by him, the said court shall proceed to try such issue, and to determine the same according to the evidence which may be produced against and in behalf of such accused.

SEC. 7. If the accused shall plead guilty to such charge, the court to be rendered. shall thereupon convict him of the offence charged, and render judgment thereon.

If defendant de

ry, list to be made, &c.

SEC. 8. After the joining of issue, and before the court shall promand trial by ju ceed to an investigation of the merits of the cause, the accused may demand of such court that he be tried by a jury; whereupon the court shall direct the sheriff or any constable of the county to make a list in writing, of the names of eighteen inhabitants of the county qualified to serve as jurors in the courts of record of this state, from which list the complainant and accused may each strike out three names.

Proceedings if

parties neglect to

venire for jury,

&c.

SEC. 9. In case the complainant or the accused shall neglect to strike out names, strike out such names, the court shall direct some suitable disinterested person to strike out the names for either or both the parties so neglecting; and upon such names being struck out, the justice shall issue a venire, directed to the sheriff or any constable of the county, requiring him to summon the twelve persons whose names shall remain upon such list, to appear before such court at the time and place to be named therein, to make a jury for the trial of such offence.

Service and return of venire.

Talesmen.

SEC. 10. The officer to whom such venire shall be delivered, shall summon such jurors personally, and shall make a list of the persons summoned, which he shall certify and annex to the venire, and return the same with such venire to the court within the time therein specified.

SEC. 11. If any of the jurors named in such venire shall fail to attend in pursuance thereof, or if there shall be any legal objection to any that shall appear, the court shall supply the deficiency by directing the sheriff or any constable who may be present and disinterested, to summon any of the bystanders or others who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause.

SEC. 12. If the officer to whom the venire shall have been deliv

TITLE XXI. CHAPTER 94.

to be summoned,

same &c.

ered, shall fail to return the same as thereby required, or if the jury shall fail to agree, and shall be discharged by the court, a new jury When new jury shall be selected and summoned in the same manner, and the proceedings shall thereupon be had, as herein prescribed in respect to the first jury, unless the accused shall consent to be tried by the court, in which case the court shall proceed to the trial of the issue, as if no jury had been demanded.

SEC. 13. To each juror one of such justices (justice) shall administer Oath to be adthe following oath or affirmation:

"You do solemnly swear (or You do solemnly and sincerely declare and affirm,' as the case may be,) that you will well and truly try this cause between the people of the state of Michigan and

ministered to ju

rors.

proofs, &c., and

the accused, and a true verdict give according to law and the evidence given you in court, unless discharged by the court." SEC. 14. After the jury shall have been sworn, they shall sit to- Jury to sit together and hear the proofs and allegations in the case, which shall be gether and hear delivered in public, and in the presence of the accused; and after to be kept togeth hearing such proofs and allegations, the jury shall be kept together er until they in some convenient place, until they agree on a verdict, or are dis- charged, &c. charged by the court, and a sheriff or constable shall be sworn to take charge of the jury, in like manner as upon trials in justices' courts in civil proceedings.

agree or are dis

SEC. 15. When the jurors have agreed on their verdict, they shaly Verdict, how dedeliver the same to the court, publicly, who shall enter it in the min livered and enter utes of its proceedings.

ed.

Punishment to be

inflicted on conviction.

SEC. 16. Whenever the accused shall be tried under the preceding provisions of this chapter, and found guilty either by the court or by a jury, or shall be convicted of the charge made against him upon a plea of guilty, the court shall render judgment thereon, and inflict such punishment, either by fine or imprisonment, or both, as the nature of the case may require; but such punishment shall in no case exceed the limit fixed by law for the offence charged. SEC. 17. Whenever the accused, tried under the preceding provi- When defendant sions of this chapter, either by the court or by a jury, shall be acquit- to be discharged ted, he shall be immediately discharged; and if the court before to pay costs, &c. whom the trial is had, shall certify in its minutes, that the complaint was wilful and malicious, and without probable cause, it shall be the duty of the complainant to pay all the costs that shall have accrued to the court and sheriff or constable, and jury, in the proceedings had upon such complaint, or to give satisfactory security by bond to the people of this state, with one or more sureties, to pay the same in thirty days after the said trial.

and complainant

ant after convic

SEC. 18. The person charged with, and convicted by any such jus- Appeal by defend tice of the peace, of any such offence, may appeal from the judg- tion, to circuit ment of such justice of the peace to the circuit court; provided said court. person shall enter into a recognizance with one or more sufficient sureties conditioned to appear before said court and abide the judgment of the court therein. And the justice from whose judgment an appeal is taken, shall make a special return of the proceedings had before said justice; and shall cause the warrant and return, together with the recognizance or recognizances to be filed in said circuit court on or before the first day of the circuit court next to be holden for said county, and the complainant and witnesses may also be re

CHAPTER 94.

TITLE XXI. quired to enter into recognizances with or without sureties, in the discretion of the court, to appear at said circuit court at the time last aforesaid, and to abide the order of the court therein.

When judgment to be rendered against complain ant, and execution issued.

Judgments by whom and how executed.

Fines to whom

mittal.

SEC. 19. If the complainant shall refuse or neglect to pay such costs, or to give such security, the court may forthwith enter judgment against him for the amount of such costs, and forthwith issue execution thereon in the same manner, and with the like effect as in case of an execution issued by a justice of the peace, on a judgment in an action for a trespass or other wrong; and such moneys, when collected, shall be paid over to such court, and be applied to the payment of the costs for which the judgment was rendered.

SEC. 20. The judgment of every such court shall be executed by the sheriff or any constable of the county where the conviction shall be had, by virtue of a warrant under the hands (hand) of the justice who held the court, to be directed to such officers, and specifying the particulars of such judgment.

SEC. 21. All fines imposed by any such court, if paid before the paid, before com- accused is committed, shall be received by the magistrate who constituted the court before which the accused was convicted, and by such magistrate paid over to the county treasurer, within thirty days after the receipt thereof, to be distributed according to law.

To whom fines paid after committal.

Suit to be prose.

cuted by county not paid over.

SEC. 22. If the accused be committed, payment of any fine imposed on him, shall be made to the sheriff of the county; who shall, within thirty days after the receipt thereof, pay over the same to the county treasurer for the purpose aforesaid.

SEC. 23. If any person who shall have received any such fine, or treasurer if fine any part thereof, shall neglect to pay over the same pursuant to the foregoing provisions, it shall be the duty of the county treasurer immediately to commence a suit therefor, and to prosecute the same diligently to effect.

Subpoenas for witnesses, &c.

Proceedings against jurors and witnesses

&c.

SEC. 24. Any justice of the peace may issue subpoenas to compel the attendance of witnesses before any court held by a justice of the peace, and may administer all necessary oaths in proceedings before such court.

SEC. 25. In case any person summoned to appear before any court held by a justice of the peace pursuant to the provisions of this chapfailing to appear, ter, as a juror or witness, shall fail to appear, or if any witness appearing shall refuse to be sworn or to testify, he shall be liable to the same penalties, and may be proceeded against in the same manner, as provided by law in respect to jurors and witnesses in justices' courts in civil proceedings.

Certificate of

SEC. 26. Whenever any conviction shall be had before a court held conviction, &c. by a justice of the peace, the justice by whom such court shall have been held, shall make a certificate of such conviction under his hand, in which it shall be sufficient brifly to state the offience charged, and the conviction and judgment thereon, and if any fine has been collected, the amount thereof.

Certificate to be filed with clerk of county.

Certificate or co

SEC. 27. Within twenty days after such conviction, the said magistrate shall cause such certificate to be filed in the office of the clerk of the county in which the conviction shall have been had.

SEC. 28. Every certificate of conviction, made and filed under the by thereof evi- foregoing provisions, or a duly certified copy thereof, shall be evidence in all courts and places of the facts therein contained.

dence.