that they come from the proper depository. Where the proof is by copy, an examined copy, duly made and sworn to by any competent witness, is always admissible. Such witness may be either the person appointed by law to furnish copies, or, it seems, any officer having legal custody of the book, and whose duty it is to keep the original.'

OF THE POWER TO COMPEL THE ATTENDANCE OF WITNESSES.

Until recently, justices of the peace have had no power to compel the attendance of witnesses in actions pending before themselves; but now, if any person duly summoned and obliged to attend as a witness in any cause or matter pending before any justice of the peace, or judge of any municipal or police court, shall fail so to do, without any reasonable excuse, such person shall not only be liable to the aggrieved party for all damages by him sustained by such default, but such justice, or judge, shall have power to issue a capias, directed to the proper officer, to apprehend such witness, and bring him before such justice or judge, and to fine him at discretion, not exceeding the sum of twenty dollars, and order him to pay the costs of such attachment, and commit him until the same and all costs attending such commitment shall be paid. If such witness, being present before such justice or judge, shall refuse to answer such questions as may be propounded to him under the direction of such justice or judge, he may fine such witness at discretion, not exceeding twenty dollars, and commit him until the same and all costs are paid. The form for a capias to compel the attendance of a witness will be found in a subsequent part of

this volume.

The plaintiff having opened his case, and put in his evidence, and the defendant having cross-examined the plaintiff's witnesses, the defendant next proceeds to open his own case, and put in his evidence, the plaintiff, in his turn, having the same right of cross-examination. The plaintiff then puts in his rebutting testimony, and if the defendant has any still farther in reply, he follows with it; after which the closing arguments are made, first for the defendant, then for the plaintiff. The magistrate will then, upon the issue thus joined, and the facts thus presented, proceed to render his judgment in the case, according to his best knowledge of the law.

11 Green. Ev. § 485.

2Act of 1847, ch. 9.

CHAPTER IX.

OF THE JUDGMENT.

THE judgment is the disposition which the magistrate makes of the matter before him, and may be either interlocutory, (as upon a motion to dismiss, that the motion be not granted,) or final. If the disposition of the case is taken out of the hands of the magistrate, whether by the act of the parties, as by entering "neither party," (by which is meant. that neither party will prosecute or defend further,) or by act of law, as when it appears that the title to real estate is concerned, or in replevin that the damages demanded exceed twenty dollars, or property in the beasts is in question and their value exceeds twenty dollars, and one party requests the removal of the action, he will render no judgment, but simply enter the facts in his record.

The judgment varies according to the nature of the action, and of the determination itself.

I. PLEAS IN ABATEMENT AND MOTIONS TO DISMISS.

The judgment on these, if for the plaintiff, is interlocutory, unless issue is taken on a question of fact, in which case it is final.'

If for the defendant, it is final in all cases-that the writ be abated, or the action dismissed. As to when costs are given, and when not, see chapter on costs.

II. DEFAULT.

If any person duly served with process, fail to appear and answer thereto, his default shall be recorded, and the charge against him in the declaration shall be taken to be true; and upon such default, and also when the plaintiff maintains his action upon trial, the justice shall award and enter judgment for such sum, not exceeding twenty

118 Maine, 320.

dollars, as he shall upon inquiry find the plaintiff is entitled to recover, with costs.

In actions where the damages are liquidated or certain, this may be done from the contract produced, or the plaintiff's bill of particulars. Where they are unliquidated or uncertain, there must be an ex-parte hearing for that purpose.

In entering judgment on default, the magistrate will look well to it that the cause of action which may be filed by the plaintiff in his bill of particulars corresponds with his declaration, as that, for instance, he do not file a claim in tort, under a declaration in assumpsit.

III. NONSUIT.

Judgment is given upon nonsuit when the plaintiff fails to prosecute his action. This includes also the judgment on a complaint for costs by the defendant, where the plaintiff fails to enter the action. In either case it is a judgment only for costs.

IV. TRIAL.

If the plaintiff enters his action, and the defendant appears, and the parties proceed to trial, then judgment will be rendered on the issue joined, and the facts proved, whether in favor of the plaintiff, or of the defendant. And the justice should render his judgment only on the facts legally proved. He has no right to make himself a witness, and take into consideration, in forming his opinion, facts within his own cognizance, but of which there is no evidence in the case.'

If he find for the plaintiff, he will assess damages, for which he will give judgment, as also for costs. If he find for the defendant, he will give judgment for costs alone, unless, in case of set-off filed, he shall find that the balance of account is in favor of the defendant, in which case he will give judgment for such balance with costs.

V. TENDER, AND OFFER TO BE DEFAULTED.

In all cases of tender pleaded and proffered, and of offer to be defaulted, the plaintiff may, as we have already seen, elect whether he will accept the tender, or offer, or proceed with his action.

110 Johns. 250.

If the profert be made upon a previous tender, and the plaintiff elect to accept the tender, costs will be taxed up to the time of the tender, which should be paid into court by the defendant, who may then take judgment against the plaintiff for costs from the time of the tender to the time of the judgment.

If there be no previous tender, and the plaintiff elect to accept the sum proffered, costs should be taxed up to the time the money is brought into court, and then paid by the defendant, and "neither party” entered in the action. Because in theory the defendant is supposed to tender cost, as well as debt, and if the plaintiff accepts the sum tendered in full satisfaction, there remains nothing upon which to render judgment.

If, however, the plaintiff elect to proceed with his action, he does it at his peril. And if the magistrate shall find that no more is due than the sum proffered, he will render judgment for the defendant for costs from the time of the tender, if a tender has been made, or from the time of the profert.1

But if the justice is satisfied that the tender is too small, he should render judgment for the plaintiff for the overplus, however small, and his costs.

But he should not render judgment for a less sum than the amount proffered, unlesss the defendant show some fraud or deceit practised upon him.2

When the defendant has proffered without a previous tender a certain sum as the full amount of damages, and has prayed that his costs may be taxed by the court, but has not paid in his costs, and the plaintiff elects to proceed with his action, and the magistrate finds that no more is due than the sum tendered, the question has been raised whether the plaintiff is entitled to his execution for the costs up to the time of the profert. The question is yet an open question, the rule of practice being unsettled. It may, however, be avoided, by having the costs in all cases taxed up to the time of the tender, and requiring them to be paid in before any disposition is made of the action; which may undoubtedly be done.

When an offer is made to be defaulted, the offer is, as we have seen, for a specified sum as damages. If the offer is accepted, judgment is

15 Mass. 369-Howe's Pr. 406.

2Howe's Pr. 407.

rendered for such sum as damages, and for costs up to the time when it was made. If the offer is not accepted, and the plaintiff proceed to trial, and recover no greater sum for his debt or damages, up to the time when the offer was made, the defendant recovers his costs from the time of such offer, and they are set off against the sum so offered.

VI. IN OTHER MATTERS.

In replevin for beasts distrained or impounded, the judgment for the plaintiff is for damages and costs; for the defendant, for such sum, as shall be found to be due from the plaintiff, for the penalty or forfeiture, or for the damages for which the beasts were impounded, together with all the legal fees, costs, and expenses, incurred by reason of the distress, and also the costs of the action of replevin; or, instead of such judgment, the justice may in his discretion enter judgment for a return of the beasts to the defendant, to be held by him for the original purpose, irrepleviable by the plaintiff, and for the defendant's damages for the taking thereof by the replevin, and for his costs of the suit.'

In replevin for goods unlawfully taken, or unlawfully detained, the judgment for the plaintiff is for damages and costs; for the defendant for a return of the goods, with damages for the taking thereof by the replevin, with his costs, and a writ of restitution thereupon accordingly.2 If the goods when replevied were taken in execution, or if they were attached, and judgment be afterwards rendered for the attaching creditor, and if in either case, the service of the execution be delayed by means of the replevin, the damages to be assessed for the defendant, in case of a judgment for a return, shall not be less than twelve per cent by the year on the value of the goods, for so long time as the service of the execution shall be delayed.3

In forcible entry, the judgment for the plaintiff is possession of the demanded premises and costs; for the defendant costs. The forms of the various judgments will be found in the 'subsequent chapter on records.

When any person is adjudged to be a trustee in the original suit, it shall not be necessary to specify in the judgment the sum for which he is chargeable; but if, upon a writ of scire facias against him, it shall