Pagina-afbeeldingen
PDF
ePub

serve.

Oath of ju

rors.

Oath of wit

Desses.

said jurors shall not attend, at the time so summoned to appear, or in case there should be legal objections raised to any of those who Talesmen to shall appear, it shall be the duty of the officer to summon a sufficient number of talesmen to supply the deficiency. The jurors so selected shall take the following oath or affirmation: "You and each of you do solemnly swear (or affirm) that you will well and truly try the matter of difference between plaintiff, and defendant, and true verdict give, according to law and the evidence given to you in court, so help you God;" and after having been sworn, they shall sit together and hear the several proofs and allegations of the parties, which shall be delivered in public, in their presence. And to each witness on any trial, the justice shall administer the following oath (or affirmation) to wit: "You do swear in the presence of Almighty God, (or affirm) that the evidence you shall give in this matter of difference between plaintiff, and defendant, shall be the truth, the whole truth, and nothing but the truth, so help you God;" and after hearing the proofs and allegations, the Jury kept jury shall be kept together, in some convenient place, until they all agree upon a verdict, or be discharged by the justice, and for which purpose a proper officer shall be sworn or affirmed, to whom the said justice shall administer the following, to wit: "You do swear in the presence of Almighty God, that you will, to the utmost of your ability, keep every person sworn in this inquest together, in some private convenient place, without drink, except water; you will not suffer any person to speak to them, nor speak to them yourself, unless by order of the justice, except it be to ask them whether they have agreed on their verdict, until they have agreed on their verdict, or are discharged by the court, so help you God." And when the jurors have agreed on their verdict, they shall deliver the saine to the justice in the same court, who is hereby required to give judgment thereupon, and to award execution in manner hereinafter directed. S3. Whenever a justice shall be satisfied that a jury sworn in When new any civil cause before him, after having been out a reasonable time, venire issu- cannot agree on their verdict, he may discharge them and issue a new venire, unless the parties consent that the justice may render judgment.

together.

Oath of officer.

ed.

S4. Every person who shall be duly summoned as a juror, and Penalty for shall not appear, nor render a reasonable excuse for his default, shall non-attend- be subject to a fine not exceeding ten dollars.

ance of ju.

ror..

ARTICLE SEVENTH.

Of judgment, and filing transcripts thereof, and of the stay of executions.

S1. No confession shall be taken, or judgment rendered thereon, Justice not unless the following requisites be complied with:

to take con

fession, except, &c.

1st. The defendant must personally appear before the justice; or, 2d. The confession must be in writing, signed by the defendant, attested by two witnesses, and filed with the justice.

S2. If there be mutual justices' judgments between the same parties, upon which the time of appealing has elapsed, on which ments may there is no existing execution, one judgment on the application of

When my

inal judg.

be set off.

either party, and reasonable notice given to the adverse party, may be set off against the other, by the justice before whom the judgment, against which the set-off is proposed, may be.

Mode of pro

$3. If the judgment proposed as a set-off, was rendered before another justice, the party proposing such set-off must produce before ceeding." the justice a transcript of such judgment, upon which there is a certificate of the justice rendering the judgment, that it is unsatisfied in whole or in part, and that there is no appeal or existing execution thereon, and such transcript was obtained for the purpose of being set off against the judgment to which it was offered as a set-off. The justice granting such transcript, shall make an entry thereof in his docket, and all further proceedings on such judgment shall be stayed, unless such transcript shall be returned with the proper justice's certificate thereon, that it has not been allowed in set-off.

S4. If any justice shall set off one judgment against another, he ь. shall make an entry thereof in his docket, and execution shall issue only for the balance which may be due after such set-off. If a justice shall allow a transcript of a judgment rendered by another justice to be set off, he shall file such transcript among the papers relating to the judgment in which it is allowed in set-off. If he shall refuse such transcript as a set-off, he shall so certify on the transcript, and return the same to the party who offered it.

is witness, or

5. If, previous to joining issue in any cause, the defendant, his Proceedings agent or attorney, shall make affidavit that the justice before whom when justice the same is pending, is a material witness for such defendant, with- of kin to out whose testimony he cannot safely proceed to a trial thereof, or if plaintif it shall be proven that the justice is near of kin to the plaintiff, then, and in such case, the said justice shall transfer said suit, and all other [the] papers appertaining to the same, to some other justice of the same county, who may thereupon proceed to hear, try and determine the same, in the same manner as it would have been lawful for the justice before whom the said suit was commenced, to have done.

ed and dock

$6. In cases where a plaintiff shall be non-suited, or withdraw Judgment his action, or where judgment shall have been confessed, and in all how render. cases where a verdict shall be rendered, or the defendant shall be in eted. custody at the time of hearing the cause, the justice shall forthwith render judgment, and shall enter the same in his docket. In all other cases he shall render judgment, and enter the same in his docket, within three days after the cause shall have been submitted to him for his decision.

exceed ju

$7. If any sum be found in favor of a party, either by verdict of If sum due a jury, or upon hearing of the cause before a justice, exceeding the risdiction of sum for which a justice is authorized to give judgment, such party justice. may remit or release the excess, and take judgment for the residue.

may be

$8. The execution upon a judgment by a justice of the peace Execution may be stayed in the manner hereinafter provided, and for the fol- stayed. lowing periods of time, to be calculated from the date of the judg

ment.

1st. If the judgment be for a sum not exceeding ten dollars, exclusive of costs, one month.

2d. If it be for any sum above ten dollars, and not exceeding thirty dollars, two months.

Some per

zance.

3d. If it be for any sum above thirty dollars, exclusive of costs, three months; but if all the parties to the judgment agree upon any other time, the stay shall be for the time so agreed upon.

$9. To entitle any person to such stay of execution, some responrecogniter sible person, to be approved by the justice, and not being a party to the judgment, must, within five days after rendering (of) the judgment, enter into a recognizance before the justice to the adverse party, in a sum sufficient to secure the payment of the judgment and costs, conditioned to be void upon such payment at the expiration of the stay.

Form of recogni.

Zance.

If judgment not paid,

execution to issue.

When bail

entitled to judginent.

When judg. ment stayed

tion issued.

$10. Such recognizance must be signed by the person entering into the same, and may be in the following form: acknowledge myself indebted to

"I,

in the sum of

Whereas

justice of the peace of

county, on the

tion of

dollars, to be void upon this condition : obtained a judgment before

day of

township, in

a

18 against

now, if such judgment shall be paid at the expiramonths from the time it was rendered, this

recognizance shall be void.

A. B."

S11. If at the expiration of such stay the judgment be not paid, the execution shall issue agaist both principal and bail; if the principal do not satisfy the execution, and the officer cannot find sufficient property belonging to him upon which to levy, he shall levy upon the property of the bail, and in his return shall state what amount of the money collected by him on the execution, was collected by him from the bail, and the time when the same was received.

$12. After the return of such execution, the bail shall be entitled, on motion, to a judgment before the justice, for the amount collected from him in satisfaction of such execution, with interest thereon at twelve per cent per annum; and such return of the officer upon motion, shall be evidence of the facts therein stated. No motion shall be made after three months from the return of the execution.

S 13. If a judgment be stayed in the manner a ove prescribed, after execu- after an execution has been issued thereon, the just ce shall revoke such execution in the same manner, and with like effect, as he is hereinafter directed to revoke an execution after an appeal has been allowed; and if the defendant has been committed, shall order him to be discharged from custody.

Justice to give transcript of

&c.

S14. Every justice, on the demand of any person in whose favor he shall have rendered judgment for more than ten dollars, exclusive judgment, of costs, shall give to such person a certified transcript of such judgment; and the clerk of the district court of the same county in which the judgment was rendered, shall, upon the production of any such transcript, file the same in his office, and forthwith enter such judgment in the docket of the district court judgments and decrees, and shall note therein the time of filing such transcript.

be lien on

real estate.

Judgment to S 15. Every such judgment, from the time of such filing of the transcript thereof, shall have the same lien on the real estate of the defendant in the county, as a judgment of the district court of the same county, shall be equally under the control of the district court, and shall be carried into execution in the same manner, and with

[ocr errors]

the like effect, as the judgments of such district court; but no execution shall be issued thereon out of the district court until an execution shall have been issued by a justice, and returned that the defendant has no goods or chattels whereon to levy the same.

ARTICLE EIGHTH.

of executions, and proceedings thereon.

be issued.

§ 1. Upon every judgment rendered by a justice, execution shall Execution to be issued by such justice in the manner hereinafter prescribed, at any time upon demand.

When exe

cution may issue against

debtor.

$2. In the following cases, execution may be issued by the justice against the person of the debtor, and in no other. 1st. When the debt is founded on a contract, and the creditor shall body of prove to the satisfaction of the justice that the debtor has property sufficient to satisfy the judgment, over and above that which is by law exempt from being taken on execution, which cannot be come at to be levied upon, and the debtor shall refuse to assign or deliver the same to the creditor, or so much thereof as shall be necessary to satisfy the judgment; and

2d. When the action in which judgment is rendered is founded in

tort.

mand officer

3. The execution shall command the officer to levy the debt or what execudamages, together with the interest thereon, and the costs of the tion 10 comgoods and chattels of the person against whom the execution shall to do. be granted, (his arms and accoutrements excepted, and also such other articles as are exempted by law from execution,) and to pay the money within thirty days from the date, to the justice who issued the execution, to render to the party who recovered the same; and if the execution be issued against a male person in case where imprisonment is authorized by law, it shall command the sheriff or constable that if no goods or chattels can be found, or not sufficient to satisfy such execution, then to take the body of the person against whom the execution shall be issued, and convey him to the common jail of the county, there to remain until such execution shall be satisfied and paid, or he be otherwise discharged according to law.

$4. Before any execution shall be delivered, the justice shall state in what justice his docket, and also on the back of the execution, the amount of the to state in docket, &c. debt or damages and costs, separately; and the officer receiving such execution shall endorse thereon the time of the receipt of the same.

how renew

5. If any execution be not satisfied, it may, at the request of the Execution plaintiff, be renewed from time to time by the justice issuing the same, not satisfied, by an endorsement thereon to that effect, signed by him, and dated ed. when the same shall be made. If any part of such execution has been satisfied, the endorsement of renewal shall express the sum due on the execution. Every such endorsement shall renew the execution in full force in all respects, for thirty days and no longer. An entry of such renewal shall be made in the docket of the justice.

taking goods

$6. The officer, after taking goods and chattels into his custody officer by virtue of an execution, shall without delay give public notice by to give no at least three advertisements, put up at three public places in the tice of sale. township, where the property is to be sold, of the time and place when and where the same shall be exposed to sale. Such notice

Manner of sale, &c.

Officer not

shall describe the goods and chattels taken, and shall be put up at least ten days before the day of sale.

$7. At the time so appointed, the officer shall expose the goods and chattels to sale at public vendue to the highest bidder. The officer shall in all cases return the execution, and have the money before the justice at the time of making such return.

$8. No officer shall directly or indirectly purchase any goods or to purchase. chattels at any sale made by him upon execution, but every such sale shall be absolutely void.

Garnishees, $9. If there be no property found, or if the goods and chattels how summoned. levied on are not sufficient to satisfy such execution, the officer shall, upon the demand of the plaintiff, summons in writing as garnishees, such persons as may be named to him by the plaintiff or his agent, to appear before the justice on the return day of the execution, to answer such interrogatories as may be put to them, touching their liabilities as garnishees; and the like proceedings shall be had therein before the justice to final judgment and execution, as in suits instituted by attachment in a justice's court..

Officer to receive money.

Person may appeal.

Appeal to be made in six

days.

Recogni

zance.

Form of recognizance.

$10. The officer who shall hold any execution, shall receive all money tendered to him in payment thereof, and shall endorse the same on the execution, and give the person paying the same a receipt therefor, in which shall be specified on what account the same was paid, if demanded.

ARTICLE NINTH.

Of appeals and proceedings thereon in the district court.

1. Any person aggrieved by any judgment rendered by a justice of the peace, except judgment of nonsuit, where the plaintiff fails to appear, may, in person or by his agent, make his appeal therefrom to the district court of the same county where the judgment was rendered.

§ 2. No appeal shall be allowed, in any case, unless the following requisites be complied with:

1st. The appeal must be made within six days after the judgment

is rendered.

2nd. The applicant, or some person for him, together with one or more securities, to be approved by the justice, must, within the time prescribed in the first clause of this section, enter into a recognizance before the justice, to the adverse party, in a sum sufficient to secure such judgment, together with the costs.

and

3rd. The fees of the justice shall be first paid by such applicant. 3. Such recognizance must be signed by the persons entering into the same, and attested by the justice, and shall be in the form following: "We acknowledge ourselves to owe and be indebted unto in the sum of dollars, to be levied of our several goods and chattels, lands and tenements, to the use of or his assigns, if default be made in the conditions following to wit: Whereas the said judgment of

justice of the peace, rendered the day of

A. D. 18 in an action between
defendant: Now if the said

has appealed from the

plaintiff, and

shall prosecute his appeal with

all due diligence to a judgment, in the district court, and if judg

« VorigeDoorgaan »