TITLE 4.

$223. Upon such execution being returned unsatisfied, in whole or in part, the appellee may commence an action on the bond given peal bond. by or for the appellant, and may recover therein, as damages, the

Suits on ap

Ib.

Ib:

Appeal bond when to be

cancelled.

Practice on appeals.

Fees under this title.

To the judge, on allowance of appeal or certiorari.

To the jus

tice.

amount remaining due and unsatisfied on such execution, with interest from the time of the rendering of the judgment.70

$224. When an appeal shall have been dismissed, or discontinued before trial, and an execution shall have been issued on the original judgment, and returned unsatisfied, in whole or in part, the party in whose favor such execution was issued, may commence an action on the bond given by or for the appellant, and may recover therein, as damages, the amount remaining due and unsatisfied on such execution, with interest from the time of rendering judgment by the justice, together with the costs incurred in the proceedings.

$ 225. No action shall be brought on any bond given by or on behalf of the appellant, until an execution shall have been issued against him, and returned, as herein before provided.70

$226. If judgment on an appeal be rendered in favor of the appellant, or if there be no sum, balance or costs found due to the appellee, the court shall order the bond of the appellant to be cancelled and delivered up.71

$227. The several courts of common pleas may, from time to time, adopt such rules to regulate the practice in relation to appeals, in their respective courts, as they may deem expedient to carry the foregoing provisions into effect; and by such rules may authorise the entry of judgment of non-suit or discontinuance against the appellant, when he shall not prosecute his appeal to effect, according to such rules and the practice of the court.71

ARTICLE TWELFTH.

Of the Fees of Officers, and of Witnesses and Jurors, for Services under this Title.

SEC. 228. Fees for services under this Title.

229. Fees to sheriffs on executions upon justices' judgments.

230. Party of whom fees wrongfully collected, may recover them.

$228. For services rendered, pursuant to the provisions of this Title, the following fees shall be allowed:

To the Judge or other Officer, to whom Application for the Allowance of an Appeal or Certiorari shall be made,

Fifty cents for the hearing of such application, whether the same be granted or not.

To the Justice,

For a summons, nine cents;

For a warrant, twelve and a half cents;

(70) Laws of 1824, p. 296, § 39. (71) Ib. § 39 & 40,

For an attachment or execution, nineteen cents;

For every adjournment, except such as shall be made by the justice, without the motion of either party, nine cents;

For a subpoena, six cents;

For administering any oath, six cents;

For filing every paper required to be filed with him, three cents; but no fee shall be allowed for filing any written declaration, plea or other written pleading, or for filing any process issued in any cause; For a venire, nineteen cents;

For swearing a jury, twelve and a half cents;
For entering a judgment, twenty-five cents;

For a transcript of a judgment, twenty-five cents;

For every bond or other written security, directed to be taken by any of the provisions of this Title, if drafted by the justice, twenty-five cents;

For making a return upon an appeal, seventy-five cents.

To Witnesses,

From the same county, subpoenaed and attending, twelve and a half cents; from any other place than the same county, twenty-five cents for every day's actual attendance.

To Constables.

For serving a warrant or summons, twelve and a half cents; For a copy of every summons delivered on request, or left at the dwelling of the defendant in his absence, nine cents;

For serving an attachment, fifty cents; for a copy thereof, and of the inventory of the property seized, left at the last residence of the defendant, fifty cents;

For serving an execution, five cents for every dollar collected, to the amount of fifty dollars, and two and a half cents for every dollar collected over fifty dollars;

For every mile going only, more than one mile, when serving a summons, warrant, attachment or execution, six cents; to be computed from the place of abode of the defendant, or where he shall be found, to the place where the precept is returnable;

For notifying a plaintiff of the service of a warrant, twelve and a half cents; and for going to the plaintiff's residence, or where such notice was served, six cents for every mile more than one; Summoning a jury, fifty cents.

To Jurors.

ART. 12.

To witneares

To consta bles.

To jurors.

For attending to serve as such, although not sworn, six cents each; For attending and trying a cause, twelve and a half cents each; To a constable or other person, for serving a subpoena, twelve and Serving a a half cents for each witness served; but no allowance shall be made 34

VOL. II.

subpora.

TITLE 4 in any judgment, for service upon more than four witnesses, in any

Sheriff's foos

Remedy to recover fees

Oollected.

$229. The same fees, and no others, shall be allowed to sheriffs, for serving executions issued by the clerk of the court of common pleas, upon the judgment of a justice, as are herein allowed to constables in the like cases.73

$230. If judgment be rendered by any justice, for a greater amount wrongfully of costs than is allowed by law, or for any item of costs or fees, improperly, and the same be collected, the person paying the same, may, notwithstanding such judgment, recover of the party who shall have received such costs or fees, the amount thereof, with interest.

ARTICLE THIRTEENTH.

General Provisions concerning Justices' Courts, and Proceed-
ings therein.

Sec. 231. This Title to apply to justices' courts in Albany, Hudson and Troy; but not in
New-York.

232. Process to be signed by justice; may be sealed or not.

233. Certain process to be entirely filled up, and to have no blank.

234. Constables not to take rewards for certain acts.

235. Justices and constables not to buy, &c. securities for prosecution.
236. Penalty for violating last section.

237. Defendant may plead, &c. such violation in bar.

238. Plaintiff may be required to attend trial.

239. Proceedings if plaintiff do not attend.

240. Plaintiff, &c. may be examined by defendant on trial.

241. In what cases plaintiff to be non-suited.

242. Evidence of plaintiff, &c. not to be used on criminal prosecution.

243. Justices to keep books; entries to be made therein.

244. Such entries to be made in each cause,

&c.

245. Docket of a justice or transcript, evidence before him.

246 & 247. Transcripts of justices' proceedings, &c. how verified and when evidence.

249. Other modes of proving proceedings before justices.

249. Power of justices to take affidavits.

250. Justices to file and preserve affidavits and papers.

251. To keep indexes to docket books; what to contain.

252. Justice removing from town, to deposit papers with town clerk.

253. On removal from office, to deliver books, &c. to town clerk.

254. Certificate to be entered in books delivered to town clerk.

255. On death or vacancy in office of justice, town clerk to demand papers.

256. Proceedings to compel delivery of papers, &c. to town clerk.

257. Entries in books delivered to clerk, how far evidence.

258. Powers of justices after expiration of terms of office.

259. Penalty for not paying over money collected by a justice.

260. Justices out of office to make return to appeals, &c.

261. Affidavits, &c. to be received instead of return to appeals, in certain cases.

262. Also, instead of return to certiorari.

263. Allowance of appeal, &c. may in some cases be served on county clerk.

264. Notice of such service to appellee, to render appeal valid.

265. When action of debt may be brought on justice's judgment.

266. Return by justice removed out of the county, may be compelled.

267. Proof of judgment when docket is lost, &c.

268 & 269. Proceedings to remove from office constables who have neglected to pay

over money collected.

270. Office vacated by service of instrument of removal.

271. Justices may authorise private persons to execute certain process.

272. Powers of person appointed; not to receive any fees.

(72) Laws of 1824, p. 293, § 31. (73) Ib. § 32.

SEC. 273. Constables to act in person, and can not have a deputy.
274. Cases in which justices may punish for criminal contempts.
275. Extent of punishments for such contempts.

276. Party to be heard; warrant may issue for him.

277. Record of conviction to be made up; its contents; to be filed.

278. Commitments to set forth circumstances of offence.

279. Witnesses refusing to be sworn, &c. may be committed.

280. Contents of warrant; prisoner how and how long to be confined. 281. Cause to be adjourned until witness testify, &c.

ART. 13.

tended to cet

courts.

$231. The several provisions of this Title, so far as the same This Titio ex may be applicable, shall apply to the justices' courts in the cities of tain special Albany, Hudson and Troy, respectively, except in those cases where repugnant provisions exist in the acts organizing those courts, or relating thereto; but the provisions of this Title shall not be considered as applicable to the courts in the city of New-York.

$232. All process issued by any justice of the peace, shall be sign- Process to be ed by him, and may be under seal or without seal.

$233. Every summons, warrant, attachment and execution issued by a justice of the peace, shall be entirely filled up, and shall have no blank either in the date or otherwise, at the time of its delivery to an officer, to be executed. Every such process, which shall be issued and delivered to an officer to be executed, contrary to the foregoing provision, shall be void.74

signed, may be sealed or not.

Blank prorese forbidden.

constables,

$234. No constable shall ask, or receive any money or valuable Rewards to thing from a defendant, or any other person, as a consideration, re- forbidden." ward or inducement, for omitting to arrest any defendant, or to carry him before any justice; or for delaying to take any party to prison; or for postponing the sale of any property, under any execution; or for omitting or delaying the execution of any duty pertaining to his office.74

rities, &c. fur prosecution.

$235. No justice of the peace or constable shall, directly or indi- Buying secu rectly, buy, or be interested in buying any bond, note or other demand, or cause of action, for the purpose of commencing any suit thereon, before a justice, nor shall any justice or constable, either before or after suit brought, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or other valuable thing, to any person, in consideration of, or as a reward for, or inducement to, the placing or having placed in the hands of such justice or constable, any debt, demand or cause of action whatever, for prosecution or collection.74

$236. Every justice or constable offending against either of the Penalty.

provisions of the three last sections, shall be deemed guilty of a misdemeanor, and on conviction, shall be subject to fine or imprisonment, or both, in the discretion of the court. Every such conviction shall operate as a forfeiture of the office of the justice or constable, so convicted.74

(74) Laws of 1820, p. 141, § 1, 2, 3, 4.

TITLE 4

Violation may be

pleaded, &e,

Plaintiff may be notified to

$237. The defendant in any suit to be brought in any action of debt, covenant or assumpsit, may give notice with his plea, in addition to any other matter of defence, that on the trial of the cause, he will insist and prove, that the demand on which such action is founded, has been bought and sold, or received, for prosecution, contrary to law, without setting forth any other particulars.75

$238. The defendant in any such suit, may serve a notice on the attend trial plaintiff two days before the trial, requiring him to appear personally on such trial, to be examined; and it shall be the duty of the plaintiff to attend such trial, for that purpose; and in case of such attendance, he shall be entitled to the like fees as are allowed by law to witnesses; but the plaintiff shall not be so summoned, nor required to attend the trial, to give evidence as aforesaid, except from the same county, or the county next adjoining that in which the cause is tried.75 $239. In case such plaintiff shall not attend such trial, he shall, of neglect, on proof of the due service of such notice, be non-suited in such action, unless such failure to attend shall be accounted for to the satisfaction of the court; in which case the court may postpone the trial, on the plaintiff's paying the costs of preparing for the trial. And if such plaintiff shall not attend at the time to which the trial shall be postponed, he shall be non-suited.75

Consequence

Plaintiff, &o to testify.

When plain tiff to be pop

$240. On the trial of the cause in which such notice shall have been given, if the defendant shall require it, the plaintiff and his attorney, and any other person who may be interested in the recovery in such cause, shall be examined, on oath, touching the matters set forth in such notice.75

$241. If any such plaintiff, so required to be examined, or if any suited. person interested in the recovery of the suit, shall refuse to answer on oath, such questions as shall be pertinent to show a violation of the provisions of this Article; or if on such examination, it shall appear that the cause of action, on which such suit is founded, has been bought or procured, contrary to the true intent of the provisions of this Article, the plaintiff in such action shall be non-suited.75

Evidence not

to be used

$242. No evidence derived from the examination of any such Crimiually. plaintiff or other person, shall be admitted in proof, on any criminal prosecution against the party so examined, for violating any of the provisions of this Article.75

Books to bo kept by justi.

сев.

Entries thore in.

$243. Every justice of the peace shall keep a book, in which he shall enter,

1. The titles of all causes commenced before him :

2. The time when the first process was issued against the defendant, and the particular process issued:

(75) Laws of 1820, p. 141, § 1, 2, 3, 4.