Page:United States Statutes at Large Volume 47 Part 1.djvu/1014

 090 72d CONGRESS. SESS. II. CH. 127. FEBRUARY 27, 1933 . 3 . If the application is on the part of a defendant under arrest, before it can be granted he must execute an undertaking, with two or more sufficient sureties, to be approved by,, and in a sum to be fixed by, the justice, to the effect that he will render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein ; or that the sureties will pay to the plaintiff the amount of any judgment which he may recover in the action, not exceeding the amount specified in the undertaking. On filing the under- taking specified in this subdivision, the magistrate must order the defend ant to b e discha rged fro m custod y. 4. The p arty makin g the appli catio n must, if requi red by the adverse party, consent that the testimony of any witness of such adverse party, who is in attendance, may be then taken by deposi- tion before the magistrate and that the testimony so taken may be re ad on the trial, with the same effect, and subject to the same objections, as if the witness was produced ; But the court may require the party making the application to state, upon affidavit, the evidence which he expects to obtain ; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed. Limitation on con- SEC. 453. No CO NTINU ANCE FOR MORE THAN TEN DAYS TO BE GRANTED, tinuance. UNLESS UPON FILING OF UNDERTAKING.-No adjournment must, unle ss by consent, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the magistrate, with two sureties, to be approved by the magistrate, to the effect that they will pay to the opposite. party the amou nt of any j udgme nt which may be recovered against the party applying, not exceeding the sum specified in the undertaking. Trials in magistrates' TRIALS IN MAGISTRATES' COURTS courts. "Issue" defined. SEC. 454. ISSUE DEFINED, AND THE DIFFERENT KINDS :Issues arise upon t he plead ings whe n a fact or conc lusion o f law is maintai ned Mnds° by the one party and is controverted by the other. They are of two kinds : 1. Of law ; and, 2. Of fact. Hew raised. Issue of Raw. SEC. 455. ISSUE OF LAW, How RAISED.-An issue of law arises upon of fact. a demurrer to the complaint or answer, or t o some part ther eof. SEC. 456. ISSUE OF FACT, HOW RAISED.-An issue of fact arises- 1 . Upon a material allegation in the complaint controverted by the answer ; and, 2 . Upon new matter in the answer, except an issue of law is joined How tried. thereon. SEC. 457. ISSUES, HOW TRUED.-Issues ; both of law and of fact, must be tried by the court. aF p s Lure of party to SEC. 458. EITHER PARTY FAILING TO APPEAR, TRIAL MAY PROCEED AT REQUEST OF OTHER PARTY .-If either party fails to appear at the time fixed for trial, the trial may proceed at the request of the adverse Exhibition of original party. instrument. SEC. 459. REQUIRING EXHIBITION OF ORIGINAL INSTRIIMENT :When the cause of action or counterclaim arises p ion an account or instru- ment fo r the pa yment of money o nly, the court, at any t ime befo re the trial, may, by an order under his hand, require the original to be exhibited to the inspection of, and a copy to be furnished to, the adverse party, at such time as may be fixed in the order ; or, if