4. Justices shall not have cognizance of any action,

First. To recover damages for an assault, or assault and battery; or Second. In any action for malicious prosecution

; or

Third. In actions against justices of the peace, or other officers for misconduct in office, except in the cases provided for in this act; or Fourth. In action for slander, verbal or written; or

Fifth. In actions on contracts for real estate; or

Sixth. In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except actions for trespass on real estate which are provided for in this act.

ARTICLE II. Of the Commencement of Suits, Service and Return of Process, and Proceedings in Arrest and Attachment.

§ 5. Actions before justices of the peace are commenced by summons, or by the appearance and agreement of the parties without summons. In the former the action is deemed commenced, upon delivery of the writ to the constable to be served; and he shall note thereon the time of receiving the same. In the latter case, the action is deemed commenced at the time of docketing the case.

6. When a guardian to the suit is necessary, he must be appointed by the justice as follows:

First. If the infant be plaintiff, the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years or upwards; if under that age, upon the application of some friend,

The consent in writing of the guardian to be appointed, and to be responsible for costs if he fail in the action, must be filed with the justice.

Second. If the infant be defendant, the guardian must be appointed before trial. It is the right of the infant to nominate his own guardian, if the infant be over fourteen years of age, and the proposed guardian be present and consent in writing to be appointed. Otherwise the justice may appoint any suitable person who gives such consent.

§ 7. The style of the summons shall be: "The Territory of Nebraska, County;" it shall be dated the day it is issued, signed by the justice issuing the same, directed to the constable or sheriff of the proper county (except in case a person be deputed to serve it, in which case it shall be directed to such person), must contain the names of the defendant or defendants, if known; if unknown, give a description of him or them, and command the officer or person serving the same, to summon the defendant or defendants to appear before such justice, at his office, in county, at a time specified therein, and must describe the plaintiff's cause of action in such general terms as to apprise the defendant of the nature of the claim against him; and there shall be endorsed on the writ, the amount for which the plaintiff will take judgment if the defendant fail to appear. If the defendant fail to appear, judgment shall not be rendered for a larger amount, and the costs.

88. The summons must be returnable not more than twelve days from its date, and must, unless accompanied with an order to arrest, be served at least three days before the time of appearance, as follows:

First. By delivering a copy of the summons with the endorsement thereon (certified by the constable or person serving the same to be a true copy), to the defendant, or leaving the same at his usual place of residence.

Second. An acknowledgement on the back of the summons, or the voluntary appearance of a defendant, is equivalent to service.

§ 9. A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer; or, if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, or usual place of business of such corporation, with the person having charge thereof. § 10. When the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency.

§ 11. When the defendant is a foreign corporation, having a managing agent in this territory, the service may be upon such agent.

§ 12. When the defendant is a minor under the age of fourteen years, the service must be upon him and upon his guardian or father; or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone shall be sufficient. The manner of service may be the same as in the case of adults.

Appearance.

§ 13. The parties are entitled to one hour in which to appear, after the time mentioned in the summons for appearance, but are not bound to remain longer than that time, unless both parties have appeared, and the justice being present, is engaged in the trial of another cause. In such case, the justice may postpone the time of appearance until the close of such trial.

Arrest before Judgment.

§ 14. An order for the arrest of the defendant in a civil action, shall be made by the justice of the peace before whom the same is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, made before any person authorized by law to administer oaths, stating the nature of the plaintiff's claim, that it is just, the amount thereof as near as may be, and establishing one or more of the following particulars :

First. That the defendant has removed or begun to remove any of his property out of the county with intent to defraud his creditors.

Second. That the defendant has begun to convert his property or any part thereof into money for the purpose of defrauding his creditors. Third. That he has property or rights in action which he fraudulently conceals.

Fourth. That he has assigned, removed or disposed of, or begun to remove, assign or dispose of his property or any part thereof, with intent to defraud his creditors.

Fifth. That the defendant fraudulently contracted the debt or incurred the obligation for which suit is about to be brought.

The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars. § 15. The order of arrest may be made to accompany the summons, or at any time afterwards, before judgment.

§ 16. The order of arrest shall not be issued by a justice of the peace until there has been executed by the plaintiff, if a resident freeholder of the county where suit is brought, otherwise by one or more sufficient sureties of the plaintiff, a written undertaking, to the effect, that the plaintiff shall pay the defendant all damages which he may sustain by reason of the arrest, if the order be wrongfully obtained, not exceeding double the amount of the plaintiff's claim, stated in the affidavit.

§ 17. The order of arrest shall be addressed and delivered, with a copy of the affidavit, to a constable of the proper county; it shall state the names of the parties, the amount of the plaintiff's claim specified in the affidavit, be signed by the justice of the peace issuing it, and shall require the constable to arrest the defendant and bring him forthwith before said justice.

§ 18. The officer receiving said order shall execute the same by forthwith arresting the defendant and delivering to him a copy thereof, and of the affidavit. And the defendant, so arrested, unless the claim of the plaintiff specified in the affidavit and costs of suit are paid, or unless discharged from custody by order of the plaintiff, shall be taken by such constable forthwith before the justice of the peace by whom said order of arrest was issued, and kept in custody until discharged by law.

§ 19. Upon the return of said order of arrest, executed in pursuance of the preceding section, the trial of said cause shall proceed, unless for good cause shown, upon the application of either party, or at the instance of the justice himself, the same shall be continued, as is provided for in other cases before justices of the peace. And when the trial of said cause is continued for any period, the defendant upon executing with one or more sufficient sureties, a written undertaking to the effect that he will pay the amount of the judgment that may be rendered against him upon the final determination of the action, or upon depositing in the hands of the justice of the peace the amount of money mentioned in the order of the arrest, and the probable amount of costs of suit, shall be forthwith discharged from custody: provided, however, that in no case shall the defendant be detained in the custody of the officer, when said continuance has been for a period of more than fortyeight hours, unless said continuance has been made at the instance, or with the consent of the defendant himself.

Arrest after Judgment.

§ 20. On the judgment against the defendant in any civil suit before a justice of the peace, when the defendant is in the custody of the officer, as herein before provided for, or if, after judgment against him, there is filed in the office of such justice an affidavit of the plaintiff, his authorized agent or attorney, made before any person competent to ad

minister an oath, stating the amount of said judgment remaining unpaid, and establishing one or more of the particulars mentioned in section fourteen, said justice of the peace shall, unless otherwise ordered by the plaintiff, issue an execution, and accompany the same with an order for the arrest of the defendant.

§ 21. Said order of arrest shall be addressed and delivered, with a copy of the affidavit, to the constable having said execution, and shall state the names of the parties, be signed by the justice issuing it, and state the amount of the judgment and costs unpaid, and shall require the officer, in case the same shall not be paid, or an amount of property of the defendant whereon to levy execution sufficient to satisfy the same can not be found in his county, to arrest the defendant, if not already in the custody of the officer, and deliver him to the sheriff of the proper county, to be committed by him to the jail of the county, and kept in custody until discharged by law: Provided, however, that no such order of arrest shall be issued until the undertaking required by the sixteenth section of this act, shall have been executed.

Attachment.

§ 22. The plaintiff shall have an order of attachment against the property of the defendant, in a civil action before a justice of the peace, for the recovery of money before or after the commencement thereof, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing the nature of the plaintiff's claim; that it is just the amount which the affiant believes the plaintiff ought to recover; and the existence of some one or more of the following particulars:

First. That the defendant, or one of the several defendants, is a foreign corporation, or is a non-resident of the territory; or

Second. Has absconded with intent to defraud his creditors; or Third. Has left the county of his residence to avoid the service of a summons; or

Fourth. So conceals himself, that a summons can not be served upon him; or

Fifth. Is about to remove his property, or a part thereof, out of the county, with the intent to defraud his creditors; or

Sixth. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of creditors; or

Seventh. Has property or rights in action which he conceals; or Eighth. Has assigned, removed or disposed of, or is about to dispose of his property, or a part thereof, with intent to defraud his creditors; or Ninth. Fraudulently contracted the debt, or incurred the obligation for which suit is about to be or has been brought. When the defendant is a foreign corporation, or a non-resident of the territory, the attachment shall not be granted, unless the claim is for a debt or demand arising upon contract, judgment or decree.

§ 23. When the ground of attachment is, that the defendant is a foreign corporation, or a non-resident of the territory, the order of attachment may be issued without an undertaking, but in all other cases the order of attachment shall not be issued by the justice until there has been executed in his office, by one or more sufficient sureties of the plaintiff,

to be approved by the justice, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect, that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained.

§ 24. The order of the attachment may be made to accompany the summons, or at any time afterwards, before judgment, it shall be addressed and delivered to any constable of the proper county, and shall require him to attach the goods, chattels, stocks, or interests in stocks, rights, credits, moneys and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars.

§ 25. The return day of the order of attachment, when issued at the commencement of the action, shall be the same as that of the summons; when issued afterwards, it shall be executed and returned forthwith.

§ 26. When there are several orders of attachment against the same person, in the hands of the same officer, they shall be executed in the order in which they are received by said officer; he shall go to the place where the defendant's property may be found, and there, in the presence of two credible persons, declare that by virtue of said order, he attaches said property at the suit of said plaintiff; and the officer with two residents of the county, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all property attached, which shall be signed by the officer and said residents and returned with the order; when the property can be come at, he shall take the same into his custody, and hold it subject to the order of the justice.

27. The constable shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the constable, an undertaking of the plaintiff, with one or more sufficient sureties resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property or its appraised value in money shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person or persons so bound.

§ 28. Different attachments of the same property may be made, and one inventory and appraisement shall be sufficient. The lien of the attachment shall be in the order in which they are served, and the subsequent attachments shall be served on the property, as in the hands of the officer, and subject to the prior attachments. The justice who issued the attachment having the priority of lien, shall determine all questions as to the priority of liens on the property attached.

§ 29. If the order of attachment is made to accompany the summons, a copy thereof, and the summons, shall be served upon the defendant in the usual manner for the service of a summons, if the same can be done within the county; and when any property of the defendant has been taken under the order of attachment, and it shall appear that the