or persons, or their property, except as is provided in the ninth section, over, any lake, river, creek, or any other water course, where any ferry or toll bridge shall, at the time, be established, and kept, or within three miles thereof, either with or without compensation, with intent to injure the keeper or proprietor of such ferry, &c., he, she, or they shall incur the same forfeitures, and may be proceeded against in the same manner as is provided in the eleventh section."

It will be observed that the above sections have been amended so as not to apply to the Mississippi, Ohio, Illinois, or Great Wabash rivers, and so as to prohibit the running a boat, or erecting a toll bridge within one mile of an established ferry or toll bridge on any other river, creek, or water course. Gale's Stat., 311.

9. OF SECURITY FOR COSTS BY NON-RESIDENTS.

Gale's Stat., 420. "SEC. 8. No person, who is not a resident of this state, shall hereafter commence any action before a justice of the peace, until such non-resident shall file with the justice before whom such action may be brought, a bond, with sufficient security, for the payment of all costs which may be awarded against the plaintiff, should he fail in his suit; which bond shall be in the following form, as near as may be, inserting the names of the parties, the county and state: "Sate of Illinois,

County of

666

A. B.

"I, E. F., do enter myself security for all costs that may accrue in the above case, this—day of -18-.'

"Which bond shall be signed by the security; and if the said plaintiff shall be cast in his suit, discontinue, or make default, and shall not, within ten days thereafter, pay to the justice all the costs that may have been occasioned to the defendant, to the justice and constable, jurors or witnesses, the justice shall issue his execution against the security for the amount thereof, accompanied with a bill of costs, in which shall be set down. every particular charged. And if any suit shall be commenced by a non-resident, as aforesaid, without filing a bond for costs, as aforesaid, the suit shall be dismissed on the motion of the defendant, and the plaintiff shall be liable to pay all costs occasioned thereby, which may be recovered before any justice of the county, in the name of the party injured."

A non-resident plaintiff cannot institute a suit before a justice of the peace until he has given a bond for costs, although he sues for the use of a resident. The statute in relation to costs in the circuit court in like cases, is different. 1 Scam. Rep., 192.

CHAPTER III.

OF THE APPEARANCE OF PARTIES.

THE appearance of parties is either in person or by attorney, or, in case of infancy, by next friend or guardian. 2 Saund., 119, f.

A minor may commence a suit before a justice of the peace by his next friend, whenever his next friend shall have filed with the justice a bond acknowledging himself bound for all costs that may accrue and legally devolve upon such minor. Gale's Stat., 537.

If an infant plaintiff appear by attorney, it must be pleaded in abatement, and is not a ground of nonsuit at the trial. 7 Johns. Rep., 373.

In a suit against an infant, the plaintiff should be careful that a guardian is appointed for the defendant, for if no such appointment should be made, a judgment against the defendant would be erroneous. 2 Saund., 212. 14 Johns. Rep., 419. If the infant defendant does not nominate a guardian, the justice may appoint such person as he may think proper, on the motion of the plaintiff.

The guardian should be a real person. 2 Cowen Rep., 430. If several defendants appear by attorney, and one is an infant, it is error, and as the judgment is entire, it shall be reversed against all. If a minor defendant appears by attorney, the court will, at the instance of the plaintiff, compel an amendment of the appearance by substituting a guardian, and although an infant defendant against whom judgment has been given, may assign for error that he appeared by attorney. 6 Wend. Rep., 526.

Yet if a judgment be given in favor of an infant defendant, the plaintiff shall not avail himself of the infant's appearance by attorney as a ground of error. 2 Saund., 212.

Even where an infant is sued as a co-executor with others, a guardian must be appointed. But where an infant sues as a co-executor with another, the executor of full age may retain an attorney for them both. 2 Saund., 212.

By the common law, the next friend or guardian for an infant plaintiff, is liable for costs. Willes Rep., 190. On motion of the defendant the court will not only require a prochien amy, or next friend, for an infant to be appointed, but they will compel such prochien amy to give security for costs to the defendant. Should the promise to pay costs be omitted, still the consent and appointment would be valid. 1 Term Rep., 491. Should this be refused, however, the justice might also refuse to proceed, and nonsuit the plaintiff. It is now

provided by statute, Gale's Stat., 537, sec. 2, that "Hereafter, minors may bring suits in all cases whatever, by any person that they may select as their next friend; and the person so selected shall file bond with the clerk of the circuit court, or justice of the peace before whom the suit may be brought, acknowledging himself bound for all the costs that may accrue and legally devolve upon such minor. And after bond shall have been so filed, said suit shall progress to final judgment and execution, as in other cases."

There is little doubt that judgment may go against an infant plaintiff for costs as well as damages, and that the defendant may elect either to collect the costs of the infant on execution, or pursue the prochien amy when he becomes regularly bound to pay the same, as he might do any other collateral security.

The prochien amy, or guardian of the plaintiff, is liable to the justice for his fees to the same extent a plaintiff would be liable in ordinary cases; and an action of assumpsit will lie for them. 2 Esp. Rep., 473.

The order for the admission of a guardian for the defendant should be obtained before plea. 2 Saund., 119.

A married woman, when she appears alone, must appear in person, but where husband and wife sue, or are sued, he may retain an attorney for them both. 2 Saund., 212.

An idiot must appear in person, and any one may be admitted to sue or defend for him; but a lunatic must appear by guardian, if within age, 2 Saund., 333, or by attorney, if of full age.

When an attorney commences an action in the name of another, or appears for another, the court will presume he has authority to do so until the contrary is shown; and if such suit be instituted, or appearance entered, without legal authority, the remedy is by motion to the court, founded on evidence, to shew the abuse (in acting without such authority) of the process of the court, or irregular act of the attorney in entering his appearance. 1 Scam. Rep., 291. Breese Rep., 258.

OF DEFAULT OR WANT OF APPEARANCE.

Gale's Stat., 404. "SEC. 6. If the plaintiff or his agent shall not appear at the time appointed for the trial aforesaid, and no sufficient reason shall be assigned to the justice why such plaintiff or his agent does not appear, the justice shall dismiss the suit, and the plaintiff shall pay the costs, unless the defendant shall consent that such suit shall be continued to another day, in which case, the same proceedings shall take place at the second day, so fixed for the trial as above provided; but this section shall not require the dismissal of a suit on a note placed in the hands of a justice for collection."

"SEC. 5. If the defendant shall not appear at the time of

trial, after giving bail as aforesaid, or after being served with a summons, as described in the third section of this act, and no sufficient reason be assigned to the justice, why he or she does not appear, then the justice shall proceed to hear and determine the cause, in the absence of said defendant, but shall not give judgment in favor of the plaintiff, unless the said plaintiff shall fully prove his demand in the same manner as if the defendant had been present and denied the same."

The omission of the defendant to appear and plead, is not considered as an admission of the plaintiff's demand, but he must establish it by testimony in the same manner as though an issue had been joined.

Strictly speaking, there is no such thing before a justice of the peace as a judgment by default, but always a trial, or a hearing in the nature of a trial.

Where the time of the appearance of the parties has been appointed by the justice, either in the process or by adjournment, he ought to wait a reasonable time for the appearance of either of the parties; and perhaps an hour's delay would not be deemed unreasonable.

The parties having appeared, the next object of consideration is the pleadings in the cause. There is no statute requiring that the plaintiff should state his cause of action in writing before the justice, or that the defendant should state his defence in writing. For the purpose, however, of obtaining a

decision upon the disputed claim, the court must be informed in some manner of the matter in litigation, of the facts constituting the plaintiff's cause of action, and whether they are denied, or confessed and avoided. In the statement of the parties, there should be sufficient certainty to show that the subject matter is within the jurisdiction of the justice, and to avoid subsequent disputes about the nature of the action, the character of the defence, and what was admitted and what denied, so that the court may determine what evidence is admissible under the issue on either side.

The statement of the facts which constitute the plaintiff's cause of action, and the objections and statements constituting the defendant's grounds of defence, are called the pleadings of the parties. 1 Chit. Pl., 244. And by that name it is presumed they are known by every person, however limited may be his acquaintance with proceedings in courts of justice.

The object of the legislature in establishing these courts, was to dispense with technical forms and pleadings, and to require causes to be disposed of with as little delay as possible. Breese Rep., 96.

In the case of Legg v. Robinson, 7 Wend. Rep., 196, Sutherland, Justice, says, that "Mere matter of form is not regarded in proceedings before justices of the peace. Any statement of the cause of action or of the defence which fairly apprises the opposite party of the ground relied upon, either to support or defeat the action, is sufficient. The name by which any thing may be called, is not in these cases material, if the thing itself is right. The mistake in the name is not calculated to mislead. Technical niceties will not be exacted, but parties must be held to a plain and intelligible statement of their cases. There is no difficulty in this; any man however unlettered is capable of doing it."

In proceedings before justices of the peace, a party is bound to avail himself of the first opportunity to take advantage of a defence which is of a dilatory character. Breese Rep., 96. 1 Scam. Rep., 554.

Objections in the nature of a plea in abatement, must be made in the first instance. It is too late to make them on appeal. 1 Scam. Rep., 266.

A party will not be permitted to conceal mere technical objections, and then, after the trial has begun, to raise them. Breese Rep., 96.

Where a suit is commenced by a plaintiff in a particular character, if the defendant wishes to contest the plaintiff's right to recover in that character, the objection must be made by way of plea in abatement. As where the plaintiff sues as administrator, he is not required to prove that he is entitled to sue in that character, unless it is objected on the trial that he is not administrator. 2 Scam. Rep., 63.

Gilliam and Challen sued Luston before a justice of the