subsequent time; and if a rule shall have been entered requiring such ART. 11. return, as herein before authorised, and shall have been served ten days before the first day of the term, the court shall issue an attachment against such delinquent justice, unless good cause to the contrary be shown by him.

turn.

$199. Upon satisfactory evidence that the return of a justice is Amending resubstantially erroneous or defective, the court may compel him to amend the same.64

court.

$200. Upon an attachment being issued against a justice, pursuant Powers of to either of the foregoing sections, the court may punish the disobedience of the justice, by imprisonment until he submit, and may adjudge that he pay the costs of the proceedings against him; and such order shall be enforced as other orders of the court.

in cause.

$201. Upon the return of the justice being filed, the court of com- Proceedings mon pleas shall be possessed of the cause, and shall cause the parties to proceed therein with all due diligence; but no proceeding shall be compelled at any term, unless the return of the justice shall have been filed at least ten days before the first day of such term.64

trial, &c.

$ 202. If the return of the justice be filed, the appellant may serve Notices of notice of trial for the next term of the court, eight days before the first day of such term; and the appellee may in like manner, serve such notice of trial; and he may give the like notice of a motion to dismiss the appeal, or he may give either notice.

dismiss ap

$203. No motion to dismiss an appeal shall be heard, unless no- Motions to tice thereof, specifying the grounds of such motion shall have been peals. given, or some reasonable and satisfactory excuse for not having given such notice, be allowed by the court; and no such motion shall be heard after the first term at which the same might have been made.

bond of ap

$204. No appeal shall be dismissed, on account of any informality Amending or other imperfection in the bond executed by or in behalf of the ap- pellant, &c. pellant, if he and his sureties consent to amend the same, or if another sufficient bond, to be approved by the court, shall be filed. And in such case, the court shall amend or receive such bond accordingly. $205. Nor shall any appeal be dismissed, on the ground that the Not to be di costs of the suit, or the fee of the justice, have not been paid; nor upon tain cases. any other ground than such as shall have been expressed in the notice. But in all cases, the fact of a return having been made by a justice, shall be conclusive evidence of such costs and fees having been paid.

missed in cer

missing.

$206. If an appeal be dismissed, the court shall award costs to the Costs on di:appellee, and may enforce the payment of the same by rule and attachment.

(64) Laws of 1824, p. 296, § 38.

TITLE 4.

$207. If an appeal be not prosecuted within such time as the court When to be shall by its general rules have prescribed, the court shall order the discontinued. same to be discontinued, with costs.

Proceedings on disconti

$208. Upon an appeal being dismissed or discontinued, and a nuance, &c. certified copy of the order of dismissal or discontinuance, being served upon the justice who rendered the judgment, he shall proceed thereon as if no appeal had been entered.

Suit on ap peal bond.

Hearing and

trial of cause.

Proceedings on issue of law.

Ib.

Ib. on issuo of fact.

What issues to be tried.

$209. The appellee in whose favor a judgment shall have been rendered, shall not be entitled to prosecute the bond given on an appeal which shall have been dismissed or discontinued, until an execution on the judgment appealed from, shall have been returned that sufficient goods and chattels of such defendant cannot be found to satisfy the same.

$210. If the appeal be not dismissed, the court shall proceed to the hearing of the cause, if the issue joined before the justice was an issue of law; or to the trial thereof by jury, if such issue was upon a question of fact.66

$211. If the issue joined before the justice was an issue of law, the court shall render judgment thereon, according to the law of the case; and if such judgment be against the pleading of either party, an amendment of such pleading may be allowed, on the same terms, and in the like cases, as in pleadings in suits originally commenced in such court; and the court may thereupon require the opposite party to answer such amended pleading, or to join issue thereon, as the case may require, summarily.

$212. If, upon an appeal on an issue of law, the court should adjudge the pleading complained of, to be valid, it shall in like manner require the opposite party summarily to answer such pleading, or to join issue thereon, as the case may require.

S213. Upon an issue of fact being so joined, the court shall proceed to have the same tried by a jury, in the same manner as other issues joined in such court.

$214. If the issue joined before the justice, was an issue of fact, such issue, and no other, shall be tried by a jury, by the court of common pleas; and no declaration or other pleading shall be allowed in Exceptions. the cause, except as herein before provided, unless some demand of

1b.

the plaintiff, or some defence or set-off of the defendant, shall have been overruled by the justice, and the party shall have been prevented by the justice from going into proof thereof.

66

$215. If the court be satisfied that error was committed by the justice in overruling such demand, defence or set-off, it may allow proof of the same to be given on the trial, as if issue had been joined thereon before the justice.

(66) Laws of 1824, p. 296, § 38.

ART. 11.

Issues of fact

ed, &c.

$216. Every issue of fact so joined or brought up, on appeal, shall be tried by a jury, or referred in the same mannner as if the same had been joined in a suit originally commenced in the court of common tried or refer pleas; but no venire, or other jury process, shall be necessary.67 $217. The court shall have the same power over the verdict of verdict or rethe jury, or the report of the referees, and shall render judgment there- port. on in the same manner, as in other suits in such court.

Judgment on

given to pro

$218. Costs shall be allowed to the prevailing party, in judgments Costs to be rendered on appeal, in all cases, with the following exceptions and vailing party limitations:

1. If the defendant, against whom judgment is rendered before the Exceptions. justice, appeal, and judgment thereon be rendered in his favor, or the amount recovered before the justice be reduced ten dollars, or more, full costs shall be awarded to the appellant:

2. If a defendant in whose favor a judgment is rendered before the justice, shall appeal, and he shall not recover at least five dollars, more than the amount recovered before the justice, full costs shall be awarded to the appellee:

3. If the plaintiff, in whose favor judgment is rendered before the justice, appeal, and he shall not recover at least five dollars more than the amount recovered before the justice, full costs shall be awarded to the appellee:

4. In all other cases, the party recovering any sum, shall be entitled to costs.68

appellant.

$219. Whenever costs are awarded to the appellant, he shall be Allowance to allowed to tax, as part thereof, the costs and fee paid to the justice on making the appeal, as disbursements, in addition to the costs in the common pleas; and where the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him which he would have been entitled to recover, in case the judgment below had been rendered in his favor.69

costs against

$220. If, upon an appeal, a recovery for any debt or damages be Set-off of had by one party, and costs be awarded to the other party, the court damages. shall set off such costs against such debt or damages, and render judgment for the balance.

$221. Upon a judgment being rendered on an appeal, (except in Executions. cases where the appeal has been dismissed or discontinued before trial,) the party recovering the same shall be entitled to execution thereon, in the like manner as if such judgment had been rendered in a suit originally commenced in a court of common pleas.69 $222. If the judgment be rendered in favor of the appellee, he shall sue out execution thereon, within thirty days after the term when such judgment was rendered, or the sureties in the appeal bond shall be discharged.

(67) Laws of 1824, p. 296, § 38. (68) Ib. § 39 & 41. (69) Ib. § 39.

When to be

sued out by

appellee.

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 undor this title.

To the judge, on allowance of appeal or certiorari.

To the justice.

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

S224. 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

S 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 witnesses

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.

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