1st. To the payment of the amount of such claims filed, or the amount determined, as provided in the next section, which the justice shall insert in the writ.

2d. To the payment of the judgment and costs and constable's fees; and shall direct the payment of any balance to the owner, master, agent or consignee, who may have appeared in the action; but if no appearance by them be made therein, it shall direct a deposit of the balance in court. Gen. Laws, 5267, 5464.

SEC. 18. If the claim of the mariner, boatman or other person, filed with the justice, as provided in the last section, be not contested within five days after notice of the filing thereof by the owner, master, agent or consignee, of the steamer, vessel or boat, against which the claim is filed, it shall be deemed admitted; but if contested, the justice shall indorse upon the affidavit thereof a statement that it is contested, and the grounds of the contest; and shall immediately thereafter order the matter to a single referee for his determination, or he may hear the proofs and determine the matter himself. The judgment of the justice or referee may be received by the county judge either in term or vacation, immediately after the same is given, and the judgment of the county judge shall be final. On the review, the county judge may use the minutes of the proofs taken by the justice or referee, or may take the proofs anew. Gen. Laws, 5268, 5464.

Contents of Notice of Sale.

SEC. 19. The notice of sale published by the constable shall contain a statement of the measurement and tonnage of the steamer, vessel or boat, and a general description of her condition. Gen. Laws, 5269, 5464.

Appeals.

SEC. 20. From orders and judgments under this chapter, an appeal may be taken by the owner, master, agent or consignee, on the same terms and conditions as appeals in actions against individuals. Gen. Laws, 5270, 5464.

GROUNDS FOR ADJOURNMENT... 9-11 ORDERING CASE TO STAND OPEN

Adjournment Discretionary with the Court.

SECTION 1. The granting or refusing of a continuance rests in the sound discretion of the court. Musgrove vs. Perkins, 9 Cal. 212.

Adjcurnment by Consent.

SEC. 2. The trial may be adjourned by consent. Gen. Laws, 5514.

SEC: 3. Where a case is adjourned to no certain day, but the time is left to the agreement of counsel, the justice has no authority afterwards to appoint a time and place for the trial, without the consent of both parties. If the defendant refuse to agree to any time, the plaintiff must commence his action anew. 4 Zab. (N. J.) 419.

SEC. 4. A justice cannot adjourn a cause on an adjourned day, in the absence of the defendant, and without his consent, and then hear the cause in his absence and without notice. 2 Green, (N. J.) 590.

Adjournment for a Period not Exceeding Ten Days.

SEC. 5. The trial may be adjourned by consent, or upon application of either party, without the consent of the other, for a period not exceeding ten days (except as provided in the next section), as follows:

1st. The party asking the adjournment shall, if required by his adversary, prove, by his own oath or otherwise, that he cannot for want of material testimony, which he expects to procure, safely proceed to trial, and shall show in what respect the testimony expected is material, and that he has used due diligence to procure it, and has been unable to do so.

2d. That the party asking the adjournment shall also, if required by the adverse party, consent that the testimony of any witness of such adverse party who is in attendance, be then taken by deposition before the justice, which shall accordingly be done, and the testimony so taken may be read on the trial, with the same effect and subject to the same objections as if the witness were produced; but such objections shall be made at the time of taking the deposition.

3d. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain, and if the adverse party thereupon admit 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 shall not be postponed. Pr. Act, 583; Gen. Laws, 5514. SEC. 6. A justice cannot postpone a cause indefinitely. 3 Hill, 499.

SEC. 7. Neither can he adjourn a cause for a longer period than is allowed by statute, without express consent of both parties. And having adjourned ten days by consent, he was held to have lost jurisdiction by an adjournment, without consent, for one day more. 2 E. D. Smith, (N. Y.) 339.

Adjournment for a Period not Exceeding Four Months.

SEC. 8. An adjournment may be had, either at the time of joining issue or at any subsequent time to which the case may stand adjourned, on application of either party, for a period longer than ten days, but not to exceed four months, from the time of the return of the summons, upon proof by the oath of the party or otherwise, to the satisfaction of the justice, that such party cannot be ready for trial before the time to which he desires an adjournment, for

want of material evidence, particularly describing it, and that the delay has not been made necessary by any act of negligence on his part since the action was commenced; that he has used due diligence to procure the evidence, and has been unable to do so; and that he expects to procure the evidence at the time stated by him; provided, that if the adverse party admit that such evidence would be given, and consent that it may be considered as given on the trial, or offered, or overruled as improper, the adjournment shall not be had. Gen. Laws, 5515.

Grounds for Adjournment.

SEC. 9. A refusal to grant a continuance for the absence of witnesses or counsel, under circumstances showing that the party or his counsel was surprised as to the time or place of holding court, is error. Ross vs. Austill, 2 Cal. 192.

SEC. 10. A mistaken advice of counsel to his client not to prepare for trial is no ground for a continuance. Mistakes in matters of law are frequently made by counsel, and if parties could be relieved by simple allegations of having acted, or neglected to act, in consequence of advice predicated upon such mistakes, there would be no end of the cases in which such excuses would be offered. Musgrove vs. Perkins, 9 Cal. 212.

SEC. 11. The absence of evidence is no cause for a continuance, unless reasonable diligence has been used to procure it. The party must have resorted to the proper legal means for that purpose, or he must show to the satisfaction of the court that a resort to such means would have been unavailing. Where the evidence is in his own possession, its absence is not excused by showing that through inadvertence he is unable to produce it. 17 Cal. 128.

The Affidavit for Adjournment.

SEC. 12. An affidavit for continuance, on the ground of the absence of a witness, must aver, that the party cannot, to his knowledge, prove the same facts by any other witness (Pierce vs. Paine et al., 14 Cal. 419; People vs. Gaunt, 23 Cal. 156); that the testimony wanted is not merely cumulative, that such application is not made for delay,

and the character of diligence used in trying to obtain the attendance of the witness. The allegation that a party has used all the diligence in his power is not sufficient; it should be shown to the court of what such diligence consisted, whether by exhausting the process of the court or otherwise. People vs. Thompson, 4 Cal. 241; Kuhland vs. Sedgwick, 17 Cal. 128.

Form of the Affidavit for Adjournment.

SEC. 13. The following is a form of an affidavit for adjournment:

In the justice's court in and for

plaintiff, against

defendant.

township, county of

state of

is a material witness [if required, state

Personally appeared before me, the defendant above-named, who being by me first duly sworn, deposes and says, that .... for him in his defense, that he can prove by said what you can prove by him] facts which he has made known to his counsel, and is by his said counsel advised that said facts are material, and that he cannot go safely-to trial without proving the same; that he can prove said facts by said witness, and that he cannot, to his knowledge, prove the same by any other witness; that the testimony of said witness will not be merely cumulative, thst he has procured the issuance of a subpena and directed the same to said and did place the same in the hands of .... constable of said township, and directed said constable where, according to the best knowledge and belief of said affiant, said witness could be found; that said constable has made return of said subpena, saying that he has made diligent search for said .... ...., and that he cannot be found, that since the return of said constable he has made inquiry of persons likely to know the whereabouts of said .... ...., and has been informed that said witness left this county for a short time on business and that he will not return within the jurisdiction of this court until about the .... day of [whatever cause exists for his non-service you should state it, the object being to show the court what diligence you have used]; that he can procure theat tendance of said witness within the next ten days, and that this application is not made for delay but that he may have justice.

......

The Undertaking on Adjournment for a Period not Exceeding Four

Months.

SEC. 14. No adjournment shall be granted for a period longer than ten days, upon the application of either party,