TITLE 4. Remedy for lected by con stable. $163. If monies be collected by a constable upon an execution, and not paid over by him according to law, an action of assumpsit may money col- be maintained by the party entitled to such money, in his own name, upon the instrument of security given by such constable and his sureties, pursuant to the provisions of the second Article of the third Title of the eleventh Chapter of the First Part of the Revised Statutes; and in such suit, the amount so collected, with interest from the time of collection, shall be recovered. Execution shall be immediately issued upon the judgment in such suit. 346, ( 21, 99 & 23.] Executions on judgments scripts are $ 164. Whenever a transcript of a judgment in a justice's court, where tran- shall have been filed and docketed by the clerk of the county, all executions thereon shall be issued by such clerk, under the seal of the court of common pleas of the county; and the power and authority of the justice, in respect to such judgment, shall cease. 59 filed. When to be issued. Subject to $165. No such execution shall be issued by a county clerk, until the expiration of ninety days after the time when the judgment was rendered. 5 59 166. The court of common pleas of the county, shall have the com. pleas. same power to amend every such execution, and to control the same in all respects, with the like authority as if it had been issued upon a judgment rendered in such court. Form of such execution. Return, &c. how enforced Property exempt from execution. 8 167. Whenever an execution shall be issued by a county clerk, upon a justice's judgment, it shall be in the same form, as near as may be, as executions in the court of common pleas, against the goods and chattels, lands and tenements, of the person against whom the judgment shall have been obtained; and in addition thereto, it shall command the sheriff, for want of goods and chattels, lands or tenements, to satisfy such execution, to take the body of the defendant, and commit him to the jail of the county, there to remain until discharged by due course of law; and to make return of his proceedings thereon to the clerk of the county, within ninety days from the date thereof. It shall be tested in the name of the first or senior judge of the court of common pleas, and be signed by the clerk.59 $ 168. The same proceedings may be had to compel a return of every such execution, and the payment of any money collected by virtue thereof, by rule and attachment against the sheriff, as if the same had issued out of the court of common pleas of the county. S 169. The following property when owned by any person being a householder, shall be exempt from levy and sale, under any execu tion, and such articles thereof as are moveable, shall continue so exempt, while the family of such person, or any of them, may be removing from one place of residence to another: 1. All spinning-wheels, weaving-looms and stoves, put up or kept for use by the family: (59) Laws of 1824, p. 290, § 21. 2. The family bible, family pictures and school books, used by or ART. 10. in the family of such person; and books not exceeding in value fifty dollars, which are kept and used as part of the family library: 3. A seat or pew occupied by such person or his family, in any house or place of public worship: 4. All sheep to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same; one cow, two swine, the necessary food for them; all necessary pork, beef, fish, flour and vegetables, actually provided for family use, and necessary fuel for the use of the family for sixty days: 5. All necessary wearing apparel, beds, bedsteads and bedding, for such person and his family; arms and accoutrements, required by law to be kept by such person; necessary cooking utensils; one table; six chairs; six knives and forks; six plates; six teacups and saucers; one sugar-dish; one milk-pot; one tea-pot and six spoons; one crane and its appendages; one pair of andirons, and a shovel and tongs: 6. The tools and implements of any mechanic, necessary to the carrying on of his trade; but the amount thereof shall not exceed twenty-five dollars in value.60 ARTICLE TENTH. Of the Removal of Causes to the Court of Common Pleas, by Certiorari. SEC. 170. Causes which may be removed into common pleas. 171. Affidavit to be made; its contents. 172. When and to whom to be presented; when certiorari to be allowed. 173 & 174. Bond to be executed; its penalty and condition. 175. Certiorari when to be served; papers and fee to accompany it. 176. Proceedings on judgment stayed by certiorari. 177. When and how return to be made; to be filed; its contents. 178. Certiorari, bond, &c. to be filed with county clerk. 179. Common pleas may compel return, or its amendment. 180. How cause noticed and brought on to argument. 181. Common pleas how to decide; their power; executions, &c. 182. Costs, how awarded in different cases. 183. Amount thereof; counsel fee. 184. Grounds on which judgment not to be reversed. 185. Restitution when to be awarded; proof necessary. may be re $ 170. In all cases of judgments rendered before a justice of the causes which peace, where the debt or damages recovered shall not exceed twenty-moved." five dollars, exclusive of costs, and in all cases where issue was not joined before the justice, either party thinking himself aggrieved by such judgment, may remove the same by writ of certiorari, to the court of common pleas of the county where the judgment was rendered. $171. The party intending to apply for such certiorari, shall make, Affidavit; its or cause to be made, an affidavit, setting forth the substance of the (60) Laws of 1824, p. 294, § 35. contents. TITLE 4 testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded. When to be presented, &c $172. Such affidavit shall, within twenty days after rendering such judgment, be presented to the first judge of the county courts where the judgment was rendered, or to some other judge or officer authorised to perform the duties of a justice of the supreme court at Proceedings. chambers; and if such judge or officer shall be satisfied that any er Bond to be given; pe nalty and condition. ть Service of certiorari, fees, &c. Effect of ser vice. Return to certiorari. Certiorari,&c to be filed. ror affecting the merits of the controversy, has been committed by the justice or jury, in the proceedings, verdict or judgment, he shall allow the certiorari by endorsing his allowance thereon. $ 175. The party obtaining such certiorari, shall execute to the opposite party, a bond, with one or more sufficient sureties to be approved by the justice who rendered the judgment, or the judge who allowed the certiorari, in a penalty of fifty dollars, if the judgment was rendered against him, conditioned that if such judgment be affirmed, such party will pay the same, together with all such costs, as shall be awarded against him, on such affirmance. S 174. If the judgment was in favor of the party applying for such certiorari, then such bond shall be in a penalty of at least twenty-five dollars, conditioned to pay such costs as shall be awarded against him on such affirmance. $ 175. The certiorari so allowed, shall be served within ten days after its allowance, upon the justice by whom the judgment was rendered, together with the affidavit on which the same was allowed, and the bond made pursuant to the foregoing provisions; and the sum of two dollars shall be paid to the justice for his fees, for making a return to the certiorari; and no certiorari shall be of any effect, until all the preceding requisitions shall have been complied with. $176. If the certiorari, bond and affidavit shall be served on the justice, before an execution shall be issued, it shall stay the issuing of the same; and if the execution shall have been issued, but not collected, the justice shall grant the party requiring it, a certificate of the issuing of such certiorari, which on being served on the officer in whose hands the execution may be, shall suspend such execution. $177. The justice, before the return day of such certiorari, or within ten days after the service of such certiorari, shall make return thereto in writing, and file the same; in which return he shall truly and fully answer to all the facts set forth in the affidavit on which the certiorari was allowed. $178. The justice shall cause the certiorari, the affidavit on which the same was allowed, the bond served upon him, and his return to such certiorari, to be filed in the office of the clerk of the county where such judgment was rendered, and shall pay the clerk, for filing the same twelve cents. $179. The court of common pleas shall have power to compel ART. 11. such justice to make or amend such return, by rule, attachment or mandamus, as the case may require. Return, &c. how compelled. argument. $180. When such certiorari, affidavit, bond, and return shall be Notice &c. of so filed with such clerk, the cause may be brought on to argument, before the judges of the court of common pleas of such county, at any time thereafter, on the notice of either party, without any assignment or joinder in error, and without furnishing the judges with any other copy or copies of the affidavit, certiorari and return, than those so filed with the clerk; which papers shall be brought into court, for the use of the court and the parties, on the notice of either party. execution. $181. The judges of such court of common pleas shall proceed and Judgment & give judgment in the cause, as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in whole or in part, and may issue execution as upon other judgments rendered before them. $182. If the judgment be affirmed, costs shall be awarded to the Costs. defendant in error; if it be reversed, costs shall be awarded to the plaintiff in error; if judgment be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party. $183. The costs to be taxed, shall be common pleas costs only, Amount of except that a counsel fee of five dollars may be taxed, for arguing the cause before the court of common pleas; but no more than twenty-five dollars costs shall be taxed against either party. costs, &c. rors not to af $ 184. No judgment shall be reversed, merely for the omission or Certain er misrecital of any oath, nor on account of any fees having been impro- feet judgment perly allowed by a justice. $ 185. If a judgment rendered before a justice be collected, and af- Restitution. terwards be reversed, the court of common pleas shall award restitution of the amount so collected, with interest from the time of collection. To justify such award, the party claiming it, shall present an affidavit of the fact of such collection having been made, to the court, at the argument of the cause, and shall serve a copy of such affidavit on the adverse party, at the time of giving notice of such argument. ARTICLE ELEVENTH. Of Appeals to the Courts of Common Pleas. SEC. 186. Cases in which appeals to common pleas may be made. 187. Affidavit to be made; when and to whom to be presented. 188. In what cases allowance of appeal to be endorsed. 189. Bond to be executed by appellant; its form. 190. Costs and fee to be paid to justice. 191. Bond, &c. to be served, and fee, &c. to be paid, in 30 days after judgment. 192 & 193. Effect of appeal in superseding execution, &c. 194. Return when to be made; its contents. 195. Return, with certain papers, to be filed with county clerk. TITLE 4. SEC. 196, 197 & 198. Proceedings to compel return to appeal. Cases of ap peal. Affidavit; to whom, &c. 199. Court may compel amendment of return. 200. Power of court on return of attachment. 201. When court possessed of cause; when proceedings may be compelled. 203. Motions to dismiss appeal not to be heard in certain cases. 204. Not to be granted in certain case; bond of appellant may be amended, &c. 206. Costs on dismissing appeal, and how collected. 20S. Proceeding by justice on appeal being dismissed, &c. 209. Execution to be returned before suit on appeal bond. 210. Cause, when to be heard by court; when to be tried by jury. 213. Proceedings to try issue of fact. 214. Issue of fact before justice only, to be tried; exceptions. 215. When proof of demand, set-off, &c. overruled, may be given. 216. Issues to be tried or referred; venire not necessary. 217. Judgment on verdict or report of referees. 218. Costs to be awarded to prevailing party; exceptions, &c. 219. Certain disbursements, &c. to be allowed appellant in his costs. 221. Executions upon judgments on appeals. 222. To be sued out by appellee in 30 days after judgment. 223. Suit on appeal bond, if execution be unsatisfied. 224. Ib. in cases where appeal was dismissed, &c. $186. Any party to a judgment rendered by a justice of the peace, where the recovery shall exceed twenty-five dollars, exclusive of costs, conceiving himself aggrieved thereby, may appeal therefrom to the court of common pleas of the county where the same was rendered, in the following cases: 1. Where the judgment was rendered upon an issue of law joined between the parties: 2. Where it was rendered upon an issue of fact joined between the parties, whether the defendant was present at the trial or not.61 $187. Within ten days after the rendering of a judgment, the party prosented. intending to appeal therefrom, shall present to one of the justices of the supreme court, or to some officer authorised to execute the duties of such justice in vacation, or to the first or senior judge of the county courts of the county, an affidavit, setting forth the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded, or upon which a new trial is claimed.61 Allowanco of appeal. $188. If such justice, judge or officer, be satisfied by such affidavit, 1. That any error affecting the merits of the cause, has been committed, either by the justice or the jury: or, 2. That any witness or testimony, material to the controversy, could not be produced on the trial before the justice, where due diligence shall have been used to obtain the same, and that no adjournment by reason thereof could be procured: or, (61) Laws of 1824, p. 294, § 36. |