appear that he is chargeable as a trustee, the sum, for which he is chargeable, shall be expressed in the judgment.'

When an executor or administrator is adjudged a trustee in that capacity, the judgment is against the goods and effects of the deceased in his hands.2

In case of the death of the defendant, pending the suit, and the suggestion of the fact, the magistrate cannot give judgment till after issuing a citation."

If the executor or administrator shall not appear, at the time mentioned in the citation, after the same has been served upon him, according to the order of court, he shall be nonsuited, or defaulted, and judgment may be rendered against him; but in such case, not having taken upon himself the prosecution or defence of the suit, he shall not be personally liable for any costs of the action, but judgment shall be rendered for such costs against the estate of the deceased in his hands.*

When a judgment for costs shall be rendered against an executor or administrator, in an action commenced by or against him, or in any action commenced by or against the testator or intestate, wherein the executor or administrator has appeared and taken upon himself the defence of the action, he shall be personally liable for costs; but in the latter case only for costs after he took upon himself the prosecution or defence. When the judgment against the executor or administrator is for costs only, the execution shall be awarded against his body, goods and estate, as if it were his own debt; when for debt or damages, and costs also, an execution for the debt shall be awarded against the goods and estate of the deceased in the hands of the executor or administrator, and another execution for the sum due for costs, against the goods of the executor, and also his body, as if it were his own debt."

In case of scire facias on suggestion of waste against an executor or administrator, the judgment, if he do not appear after due notice, is against him personally, for the amount of the waste, if it can be ascertained."

In actions of trespass on property, if the magistrate is satisfied the trespass was committed wilfully, a record is to be made by him of that fact, and when execution issues, a memorandum is to be made on the

1R. S. ch. 119, sec. 72.

2Ib. sec. 49.

R. S. ch, 120, sec. 13.

Ib. secs. 13, 14. 5Ib. secs. 2, 3, 4. 6Ib. sec. 6.

margin, that the judgment was rendered for a trespass committed wilfully.'

A judgment can never be awarded by a justice for more than twenty dollars, exclusive of costs.

As to cases in which judgment may be rendered for costs, and for rules for taxation of costs, see chapter xi.

7R. S. ch. 115, sec. 109.

CHAPTER X.

OF APPEAL, RECOGNIZANCE, EXECUTION, AND CERTIORARI.

I. APPEAL AND RECOGNIZANCE.

ANY party aggrieved by the judgment of a justice of the peace, may appeal to the next District Court in the same county, and may enter such appeal at any time within twenty four hours, Sundays not included, after the judgment is rendered by the justice; in which case, no execution shall issue, and the case shall be entered, tried, and determined in the District Court in like manner as if it had been commenced there.' The appellant shall, before the allowance of his appeal, recognize with sufficient surety or sureties to the adverse party, if required by him, in a reasonable sum, with condition to prosecute his appeal with effect, and to pay all such costs, as may arise after the appeal.2

The appellant shall produce at the District Court a copy of the record, and of all the papers filed in the case, except that when depositions, or other written evidence or documents, are filed, the originals shall be produced at the District Court instead of copies; and if the appellant shall fail to produce such papers, and enter and prosecute his action, the court may, on the complaint of the adverse party, affirm the former judgment and costs.

3

It has been holden, on a statute of Massachusetts similar in its wording, in regard to appeal from the Court of Common Pleas to the Supreme Judicial Court, that the right of appeal given must be confined to cases of final judgment, and should not be extended to any interlocutory judgment.*

And therefore that a refusal to receive a plea in abatement, or dismiss an action cannot be appealed from."

But an order whose effect is to terminate the suit may be appealed from, as an order dismissing an action.

1R. S. ch. 116, sec. 9.

2Ib. sec. 10.

Ib. sec 11.

6

45 Mass. 194.

$4 Mass. 107-4 Pick. 89.

611 Mass. 275, 276.

When an action commenced before a justice has been defaulted, no appeal lies to the District Court.'

2

In trustee process, either the trustee or plaintiff may appeal." In replevin, either party may appeal from the final judgment of the justice, as in other civil actions."

In forcible entry and detainer, either party may appeal from the judgment of the justice, upon issue joined, the plaintiff recognising as in other cases of appeal, and the defendant to pay all intervening damages and costs, and also such reasonable intervening rent for the premises, as such justice shall adjudge, in case his judgment shall not be reversed on such appeal. If the defendant files a brief statement of title in himself, or some other person under whom he claims the premises in question, he is required to recognise in the same manner, excepting that the condition to pay rent, is to be to pay reasonable intervening rent; and the plaintiff is also, in such case, required to recognise, with the usual conditions. If in this last case either party refuses to recognise, the justice shall enter judgment, as, in case of nonsuit or default, against the party so neglecting or refusing.*

As to the mode of claiming the appeal, and entering into recognisance, it is sufficient to say, that the appellant appears at any time within twenty-four hours after judgment, with his sureties, before the justice, claiming his appeal, and the justice, if satisfied with the sureties, thereupon verbally takes their recognizance for the entry and prosecution of the appeal, and such other condition as may be. It is not necessary, however, that the party appealing should personally enter into recognisance. If done by sureties, it is equivalent to doing it "with sureties."""

The magistrate will transcribe at length the original recognizance, (a form for which may found hereafter,) which is carried up with the papers to the appellate court; and will transcribe also a copy of the recognizance into his records.

He will also certify his fees on the copies, for recognizance, copies, and for travel for returning the papers to court, making each charge separately. The amount of these items may be found in the chapter on Fees and Costs.

128 Maine, 102.

212 Pick. 414-28 Maine, 455.

R. S. ch. 130, sec. 6.

4R. S. ch. 128, sec. 4.

54 Maine, 62.

II. OF EXECUTION.

Executions are either original or alias executions.

I. Of original execution. When it may be issued and made returnable.

It is not usual for magistrates to issue execution till twenty four hours, Sundays not included, after judgment. In a case, however, where the judgment is on default, there is nothing to prevent the issuing execution immediately upon judgment; for in such cases, as we have seen, the defendant cannot appeal, and there seems to be no provision of law requiring delay in the issuing execution excepting that which gives the defendant twenty four hours for entering his appeal.1

No first execution can be issued after the expiration of one year, from the time judgment is entered, unless where the defendant, being an inhabitant of the State, is absent therefrom, and it does not appear that he had actual notice of the suit, or has returned to the State, in which case the court may enter judgment on default; but execution cannot issue on such judgment within one year after such default, unless the plaintiff shall give bond to the defendant, with one or more sureties, in a sum equal to double the amount of the damages and costs, with condition to repay said amount to the defendant, if the judgment shall be reversed upon review.2

Executions issued by a justice of the peace shall be made returnable in three months from the day they were issued."

1. Of the form of the execution. The issuing of execution is, as we have already seen, a ministerial process, and therefore the magistrate will look well to it, for his own protection, that he conforms to the letter of the law. It should agree with the judgment, in all respects.1

Where there are two or more plaintiffs or defendants, and one or more of them dies after judgment, and before execution, execution may be had for or against the survivors. But as the execution must agree with the judgment, it must be sued out in the joint names of all the plaintiffs or defendants, unless a motion be made to the court for the change, in which case it may issue in the name of the survivor.”

1R. S. ch. 116, sec. 9-28 Maine, 102. 42 Conn. 462. 2R. S. ch. 115, sec. 104.

3Ib. sec. 103.

59 Mass. 18, 19, 160-2 Saund. 72, K.