When en $140. But no endorsement shall be made by a justice, on any exe- ART. 9. cution, pursuant to the foregoing provisions, in the following cases: 1. Where the amount of the judgment, exclusive of costs, exceeds dorsement twenty-five dollars: 2. Where the judgment was for a trespass proved on the trial to have been wilful and malicious.48 not to be against joint $141. When a judgment shall be obtained against joint debtors, Executions upon process which was not served upon all the defendants, execution debtors. may be issued in form against all; but the justice shall endorse there. 43 11W.43 on the names of such of the defendants who did not appear in the suit, as were not served with process of warrant, summons or attachment.49 $142. Such execution shall not be served upon the persons of the defendants whose names are so endorsed thereon; nor shall it be levied on the sole property of any such defendant; but it may be collected of the personal property of any such defendant, owned by him as a partner of the other defendants, appearing or served with process, or with any of them.49 How served. $143. Whenever any recovery shall be had before a justice of the For certain peace, for any penalty or forfeiture incurred by violating any provi- penalties. sion contained in the ninth Title of the twentieth Chapter of the First Part of the Revised Statutes, which is entitled "Of excise, and the regulation of taverns and groceries;" or for any penalty or forfeiture incurred by violating any provision contained in the eleventh Title of the same Chapter, relating to fisheries, execution shall issue thereon immediately, and the justice shall endorse upon such execution, the cause for which such judgment was rendered; and in case no goods Defendant or chattels can be found to satisfy such execution, the constable hav-imprisoned. ing the same shall commit such defendant to the jail of the county, and shall deliver to the keeper thereof a certified copy of such execution and endorsement; by virtue of which, such keeper shall detain such defendant for a period not exceeding sixty days, without allowing him the benefit of the liberties of such jail.50 to $144. Every execution issued by a justice, shall be dated on the Date and reday when it actually issued, and shall be returnable, 1. In ninety days from the date thereof, in cases where the judg ment, exclusive of costs, exceeds twenty-five dollars: 2. In thirty days from the date thereof, in all other cases.51 turn of exe- $145. If any execution be not satisfied, it may, from time to time, Renewal. be renewed by the justice issuing the same, by an endorsement thereon to that effect, signed by him, and dated when the same shall be made. If any part of such execution has been satisfied, the endorsement of renewal shall express the sum due on the execution. Every such endorsement shall be deemed to renew the execution in full newing. (48) Laws of 1824, p. 287, § 14. (49) 1 R. L. p. 521, § 13. (50) Laws of 1821, p. 182, § 1; of 1823, p. 134, § 2. (51) Laws of 1824, p. 257, § 14. Effect of ro TITLE 4. force, in all respects, for ninety days, if it issued on a judgment for more than twenty-five dollars, exclusive of costs, and for thirty days, in all other cases; and no longer.52 Within what time to be issued. Further executions. Duty of con stable on executions. Notice of sale. Sale, return of execution, &c. Constable not to purchaso at sale. When defendant to be $146. An execution may be issued upon any judgment recovered before a justice, at any time within two years from the time such judgment shall have been rendered. $147. If an execution be returned unsatisfied, in whole or in part, a further execution, for the amount remaining due, may be issued. 52 $148. The constable, after taking goods and chattels into his custody, by virtue of an execution, shall endorse thereon the time of levying the same, and immediately give public notice, by advertisement, signed by himself and put up at three public places in the city or town, where such goods and chattels shall be taken, of the time and place, within such city or town, when and where they will be exposed to sale. Such notice shall describe the goods and chattels taken, and shall be put up at least five days before the time appointed for the sale.5 53 $ 149. At the time and place so appointed, if the goods and chattels be present, and pointed out to the inspection and examination of the bidders, the constable shall expose them to sale at vendue, to the highest bidder. He shall return the execution, and pay the debt, or damages, and costs levied, to the justice who issued the same, returning the overplus, if any, to the person against whom the execu tion issued. 53 $150. No constable or other officer shall, directly or indirectly, purchase any goods or chattels, at any sale made by him, upon execution; but every such purchase shall be absolutely void. "4 $151. For want of goods and chattels whereon to levy, the conimprisoned. stable shall, in the cases authorised by law, if the execution require it, take the body of the person against whom the execution shall have issued, and convey him to the common jail of the city or county, the keeper whereof is hereby required to keep such person in safe custody, in jail, until the debt, or damages and costs, shall be paid, or he be thence discharged, by due course of law.55 When to be discharged in $152. If the person so committed to jail, have a family in this certain cares. state, for which he provides, and be not a freeholder, he shall be discharged, after he shall have remained in prison thirty days; and if he have no family, and be not a freeholder, he shall be discharged, after remaining in prison sixty days.55 Affidavit necessary. $153. Before such prisoner shall be discharged, he shall make and deliver to the sheriff or jailer, an affidavit, taken before some officer authorised to take affidavits, stating the facts which, according to the provisions of the preceding section, entitle him to such discharge. (52) Laws of 1824, p. 287, § 14. (53) Ib. § 14 & 16. (54) Ib. § 35. (55) Ib. § 16. 55 ART9. $154. The sheriff or jailer, upon the receipt of such affidavit, shall forthwith discharge the prisoner from his custody; and shall file the Discharge; affidavit in the office of the clerk of the county, whose duty it shall affidavit to be be to file the same, without fee or reward.56 filed. not discharg $155. If the sheriff or jailer, upon the receipt of such affidavit, Penalty for shall refuse to discharge such prisoner, he shall forfeit twenty-five dol- ing. lars for each day he shall detain such prisoner, to be recovered, with costs, by the party aggrieved, to his own use, in addition to any damages he may recover for the false imprisonment. 56 $156. If the sheriff or jailer be prosecuted, by reason of any such Defence for discharge, he may plead the general issue, and give in evidence such discharging. affidavit, or a copy thereof, duly certified by the clerk of the county, under the seal of the court of common pleas, in his full justification and defence, 56 to affect $157. Notwithstanding the discharge of the defendant, under the Discharge not preceding sections, the judgment upon which the execution was issu- judgment, &c ed shall remain good against the property of the defendant, and a new execution may be issued thereon against his property, in like manner as if he had not been imprisoned.56 to be impri soned. not returning $158. No female shall be arrested or imprisoned, upon any exe- Females not cution issued from a justice's court. $ 159. If a constable neglect to return an execution, within five Remedy for days after the return day thereof, the party in whose favor the same execution. was issued, may maintain an action of debt against such constable, and shall recover therein the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued; and if a judgment be obtained in such suit against the constable, execution shall immediately issue thereon.57 $160. A constable shall not be liable, under the preceding section, Exception. for not serving and returning an execution, upon which the defendant's exemption shall have been endorsed, if he duly collect and return the money payable by instalments, or return the execution as to person and property not found. 57 under execu turn day, &c. $161. A constable shall not levy upon or sell any property, or Not to act imprison a defendant, upon any execution, after the time limited there- tion after rein for its return; unless such execution shall have been renewed. Nor shall any constable do any act under a renewed execution, after the expiration of the time, or times, for which the same may have been renewed.58 $162. The last section shall not apply to executions upon which Exception. proceedings are stayed by an endorsement of the defendant's exemption, on the payment of monthly instalments; but such execution may be collected as herein before provided. 58 (56) Laws of 1824, p. 288, § 16. (57) Ib. § 17. (58) Ib. § 18. TITLE 4: Remedy for money collected by constable. $ 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 be maintained by the party entitled to such money, in his own name, upon the instrument of security given by such constable and his sure346, $21, 22 ties, 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. [See vol. 1, p. & 23.] Executions on judgments scripts are filed. $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.69 When to be issued. Subject to authority of $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. 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 ex empt from execution. $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 judg ment 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." $ 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. $169. The following property when owned by any person being a householder, shall be exempt from levy and sale, under any execution, and such articles thereof as are moveable, shall continue so exempt, while the family of such person, or any of them, may be remov ing 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 // W-45 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 e; 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 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 contents. (60) Laws of 1824, p. 294, § 35. $128.264 |