Page:1862-63 Territory of Dakota Session Laws.pdf/182

 debt may be made of a demand existing against any person or persons, who shall have assigned or transferred such note or bill after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him

Sec. 46. If the plaintiff be a trustee for any other, or if the suit be in the name of the plaintiff who has no real interest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought may be set off as will satisfy the plaintiff's debt, if the same might have been set off in an action brought by those beneficially interested.

Sec. 47. To entitle a defendant to a set off of any counter claim he may hare against the plaintiff, he must specifically and clearly allege the same in his answer, stating the particular items of such counter claim; but no set-off shall be allowed a justice's court, unless the same shall bc alleged in the defendant's answer as required in this section.

Sec. 48. If the amount of the set-of duly established be equal to the plaintiff's debt or demand, judgment shall be entered that plaintiff take nothing by his action, if it be less than the plaintiff's debt or demand, the plaintiff shall have judgment for the reside only.

Sec. 49. If there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered for the defendant for the amount thereof; but no such judgment skull be rendered against the plaintiff where the contract which is the subject of the suit shall have been assigned before the commencement of such suit, nor for any balance due from any other person than the plaintiff in the action.

WITNESSES AND DEPOSITIONS.

Sec. 50. A subpenasubpoena [sic] may be served by any person by reading it to the witness, or by delivering a copy thereof to him.

Sec. 51. Whenever it shall appear to the satisfaction of the justice by proof made before him, that any person duly subpenaed to appear before him in a suit, shall have failed without a just cause to attend as a witness in conformity to such subpena, and the party in whose behalf such subpena was issued,