But when a single plaintiff or defendant dies, there is no authority to issue execution, and the proper course is, to resort to a writ of scire facias, which may be had by or against his personal representatives.' And so in case of the marriage of a feme sole plaintiff after judgment and before execution." If for a debt, it should be for the amount found due, and interest from the time of rendition of judgment, and if for any thing else, for the matter adjudged; and in all cases of judgment for costs, the justice ought personally to examine the taxation, that it be not too large. If execution be issued against those privileged from arrest or imprisonment, on civil process, the command to take the body should be stricken out; or if the judgment is for less than ten dollars, or the defendant has successfully disclosed before final judgment, upon the same debt; and to this point, the magistrate should give most particular attention, as for every illegal arrest made under such command, he is personally responsible. We have already considered, in a former chapter, who are and who are not exempted from arrest, to which we refer. Too much can hardly be said, of the necessity of great care in the performance of this part of a magistrate's duty. This is the final mandate which is to carry into execution the behests of the law; and deserves more attention and care, than, we fear, has been often given to it. The execution may be directed to any officer who might serve the original writ, and should, like an original writ, bear the scal as well as the signature of the justice. When he has signed the execution, the justice should preserve some memorandum of it, if for no other reason, at least to guard him against issuing an alias after the time for one has run out. Perhaps the most convenient form for doing this is to enter in his docket the amount of the debt and damage, the amount of the costs, and of the writ of execution, and the date of the execution; and also to make a minute of the same on the back of the original writ, thus A magistrate must sometimes issue two separate executions in the same suit-thus, in the case of an executor or administrator who has taken upon himself the defence of a suit, when the judgment is for debt or damages, and for costs also, an execution or for the debt damages 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, shall be awarded against the goods and estate of the executor or administrator, and also against his body, as if it were for his own debt. So, too, in case of tender, it may be that there shall be execution against both plaintiff and defendant. In actions for trespass on property, we have before stated, that it is the duty of the magistrate to inquire and determine whether the trespass was committed wilfully. If the magistrate so determines, a memorandum is to be made by him on the margin of the execution, that the judgment was rendered for a trespass committed wilfully.* If a magistrate is called upon, under the provisions of statute, to issue execution on a record of a deceased justice, brought before him and transcribed upon his own book of records, the form of execution must be changed from the usual form, by the justice, as circumstances shall require. So if he shall have occasion to issue execution against persons or property out of his own county. 2. Of alias executions. An alias, or pluries execution may be issued within three years next after the day, on which the last preceding execution was returnable, and not afterwards. If not issued within that time, the plaintiff must sue out scire facias, or, what is more common and convenient, bring an action of debt upon the judgment." No alias execution should be issued, till the return of the preceding one. If the preceding execution has been put into an officer's hands, it should appear, by his return that it is "wholly unsatisfied," or "satisfied in part only," as the fact may be; and if it has never been put into an officer's hands, that fact, as well as the fact whether it has been satisfied at all, and if so, for how much, should appear either by a certificate of the plaintiff himself, or of the attorney employed by him in the suit. 1R. S. ch. 120, sec. 4. 2R. S. ch. 115, sec. 109. 3R. S. ch. 116, secs. 19, 20, 21, 22. 4R. S. ch. 115, sec. 105. The execution, we have said, should follow the judgment. Therefore it follows, that when an alias issues, it should issue for the amount without interest or the unsatisfied judgment; or for the balance remaining after deducting the amount received from the amount of the judgment, when the judgment has been satisfied in part, without interest either on the judgment or payment. Whenever a magistrate issues an alias, he should make a memorandum, similar to the memorandum made when the original execution is sued out. It will be convenient, in this connection, to point out the manner of issuing execution upon the records of deceased justices. Whenever any justice shall die, after having given judgment in a cause, but before such judgment is satisfied, it is in the power of any justice of the peace of the same county, on complaint of the creditor, to issue a summons to the person, in whose possession the record of such judgment is, directing him to bring to him the same record; and if such person shall contemptuously refuse to produce the same, or to be examined respecting it on oath, the justice may commit him to prison, as punishment for the contempt, until he shall submit to such examination, and produce the record.' When such record is produced, the justice should transcribe it upon his own book of record, returning the original to the person producing it.2 On such transcribed record, the justice may issue execution, in the same manner as if judgment had been rendered by himself, changing the form as circumstances may require; but no such execution shall issue after the expiration of one year from the time the judgment was rendered, unless after scire facias." Any justice, whose commission has expired, and shall not be renewed, is authorised to issue and renew execution on any judgment by him rendered while in commission; but this power continues for two years only after his commission shall have expired.* III. OF CERTIORARI. When a magistrate acts in processes out of the course of the common law, and no appeal is given to the party aggrieved, he may have, upon his showing sufficient cause, for the more complete furtherance of justice, a writ of certiorari issuing from the supreme judicial court, directed to the magistrate by whose decision he feels himself aggrieved, commanding him to certify and return the records in the cause. With the cause which may or may not be sufficient for the issuing of this writ, or with the proceedings under it, we have nothing to do. Our only object is, to point out the course which the magistrate is to pursue when he finds himself thus made a party to the suit in which he before sat as judge. The writ of certiorari not being a writ of right, before issuing it the court will order notice to the adverse parties to appear and show cause why it should not issue. The justice will remember that, though the nominal party on the record, he has no interest in the suit, and is neither bound nor ought to take upon himself the defence of the case. It is a matter immaterial to him, whether his judgment is to stand or fall. If on this preliminary hearing, the court are satisfied that the writ should issue, they will issue a writ directed to the justice, commanding him to distinctly and openly send to them the record and process in the case, with all things touching them, under his seal, together with the writ of certiorari, at a time therein mentioned. It then becomes the duty of the justice to obey the precept of the writ, which he will do by annexing a certified copy of the record, of the original writ or complaint, and also of every paper filed in the case, to the writ of certiorari, and making return on said writ, under his seal, that by virtue of the precept within the same, he thereby returns the writ of certiorari, together with certified copies of the record and process in the case, and all things touching them. After this he has performed all his duty, and his connection with the case ceases. it. He should proceed no further with CHAPTER XI. OF THE FEES OF THE JUSTICE AND OF COSTS IN CIVIL ACTIONS. I. FEES OF JUSTICES OF THE PEACE. FOR every blank writ of attachment and summons thereon, or original summons, ten cents. For every subpoena, for one or more witnesses, ten cents. For the entry of an action, or filing a complaint in civil causes, including filing of papers, swearing of witnesses examining, allowing and taxing the bill of costs, and entering up the judgment and recording the same, thirty cents. For the copy of a record, or other paper, at the rate of twelve cents a page. For a writ of execution, fifteen cents. Taking a recognizance to prosecute an appeal, including principal and surety, twenty cents. For taking a deposition, affidavit, or disclosure of a trustee, in any cause not depending before himself, twenty cents; for writing the same, with the caption, and for the notifications to the parties and witnesses, at the rate of twelve cents a page.* For taking a deposition in perpetual memory of the thing, the same fees to each justice, as in taking other depositions. Administering an oath in all cases, except on a trial or examination before himself, and to qualify town or parish officers, and a certificate thereof, twenty cents, whether administered to one or more persons at the same time. Taking the acknowledgment of a deed, with one or more seals, provided it be done at one and at the same time, and certifying the same, seventeen cents. Granting a warrant of appraisement in any case, and swearing appraisers, thirty two cents. *The word "page" shall mean two hundred and twenty-four words. R. S. ch. 151, sec. 23, |