other justice charged with the duty of collecting the judgment whereon such execution issued, to allow the constable, for keeping of the same, a reasonable compensation, to be taxed and collected as other costs in the

auit.

not to pur

Sec. 172. No constable shall, directly or indirectly, purchase any Constabl goods or chattels, upon any sale made by him upon execution; and ev- chase at sale. ery such purchase shall be absolutely void.

stable to

defendant.

Sec. 173. For want of sufficient goods and chattels whereon to levy, when conthe constable shall, in the cases authorized by law, if the execution re- take body of quire it, take the body of the person against whom the execution shall $139, 145. have issued, and convey him to the common jail of the 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.

Sec. 174. No female shall be arrested or imprisoned upon any exe- No female to cution issued by a justice of the peace.

be arrested on execut'n.

neglect to

cution, &c.,

be maintain

him and his

Sec. 175. If a constable shall neglect to return an execution and pay if constable over the moneys by him collected thereon, within five days after the return exereturn day thereof, or shall neglect to levy an execution, or otherwise action may execute the same according to law, the party in whose favor such exe- ed against cution was issued, or who shall be entitled to such moneys, may main- sureties. tain an action of assumpsit, in his own name, upon the instrument of security given by such constable and his sureties; and in such suit the amount of the execution, with interest from the time of the rendition of the judgment upon which the same was issued, shall be recovered, and execution shall issue forthwith, and no stay of execution shall be No stay alallowed.

lowed.

or sell, &c.,

Sec. 176. No constable shall levy upon, or sell any property, or im- Not to levy prison a defendant, upon any execution, after the time limited therein after return for its return, except as is provided in the next section.

day.

where levy

not suffici'nt

-170.

Sec. 177. Whenever an execution is returned by an officer having Proceedings the same, that he had levied on property, but there was not sufficient is made, but time after such levy to advertise and sell the same, the justice may re- time to sell. new such execution, or issue another execution and annex thereto a copy of such return, and such property may be sold on the renewed or alias execution in the same manner as on the first execution; and if such property be insufficient, other property may be levied on to satisfy such

Constable may pro

ceed on execution aft'r

of his term.

$268.

execution, either before or after such sale. In case the officer who levied upon the property shall be living and in office, the renewed or alias execution shall be executed by him.

Sec. 178. Every constable to whom any execution shall have been delivered, and whose term of office shall expire before the time within expirarion which the return or collection of such execution is required by law, shall proceed thereon in the same manner, and shall have the same powers in relation thereto, as if his term of office had not expired; and such constable and his sureties shall be liable for any neglect of duty, and for moneys collected upon such execution, in the same manner and to the same extent as if the term of office of such constable had not expired.

Where constable shall die, &c., other con

stable may

proceed.

When transcript filed

Sec. 179. If any constable to whom any execution shall have been delivered, shall die, become insane, or by sickness, or otherwise, be incapable of completing the service and return thereof, before such writ shall have been fully executed, any other constable may proceed thereon in the same manner that the constable to whom such writ was originally delivered might have done.

Sec. 180. Whenever a transcript of a judgment rendered by a jusand docket- tice of the peace shall have been filed and docketed by the clerk of the

ed, execut'n

of circuit

court.

to issue out circuit or district court for the county, all executions thereon shall be issued out of and under the seal of such circuit or district court, and the power and authority of the justice in respect to such judgment shall

cease.

Contents of Sec. 181. Whenever an execution shall be issued out the circuit court

execution

court.

from circult on a justice's judgment, it shall be in the same form, as near as may be, as other executions issued out of such court, against the goods and chattels, lands and tenements, of the person against whom it shall issue; and in cases where execution against the body of any person against whom the judgment was rendered, might have been issued by the jus tice thereon, such execution shall command the sheriff, for want of goods and chattels, lands or tenements, to satisfy such execution, to take the body of such person 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 on said execution to the said court, within ninety days from the date thereof.

Sec. 182. Executions between the same parties, upon judgmente re

between

may be set

covered in their own right, may be set off, one against another, if re- Executions quired by either party, in the following manner: When one of the ex- same parties ecutions is delivered to a constable to be served, the person who is the off, and how. debtor therein, may deliver his execution to the same constable, and such constable shall apply the amount thereof, so far as it will extend, or so far as may be necessary, to the satisfaction of the first execution; and the balance due on the larger execution shall be collected and paid in the same manner as if there had been no set-off.

Of Appeals.

which an

lowed.

Sec. 183. Any party to a judgment rendered by a justice of the Cases in peace, conceiving himself aggrieved thereby, may appeal therefrom to appeal is al the circuit or district court for the county where the same was rendered, in the following cases:

1st. Where final judgment was rendered on an issue of law joined between the parties;

2d. Where final judgment was rendered on an issue of fact joined between the parties;

3d. Where the defendant did not appear and plead, and final judgment was rendered for the plaintiff on the merits of his

claim;

4th. Where a judgment of non-suit has been rendered.

party ap

Sec. 184. The party appealing under the provisions of the prece-Affidavit of ding section, shall, within five days after the rendition of the judgment, pealing. present to the justice an affidavit made by himself, his agent, or attor ney, before any person authorized to administer oaths, stating that such judgment is not in accordance with the just rights of such party, as the person making such affidavit verily believes; and in case there shall be any objection to the process, pleadings, or other proceedings, and to the decision of the justice thereon, which would not be allowed to be made on the trial of the appeal, the same may be set forth specifically in the affidavit.

zance or

Sec. 185. The party appealing under the provisions of the prece- Recogniding section, shall, also, within five days after the rendition of the band on spjudgment, deliver to the justice a bond or recognizance to the adverse

party, in conformity with the following provisions:

peal.

1st. It shall be in a penalty not less than fifty dollars, and not less Persity. than doul le the smount of the judgment, excluding costs;

recogni

Contents of 2d. It shall recite the judgment so far as to exhibit the names of all the parties, the character in which they prosecuted or defended before the justice, the amount recovered, and the name of the justice;

zance.

roid.

Bureties.

Surety to justify.

When justlfication not

3d. It shall contain a condition, that the appellant will prosecute his appeal with all due diligence to a decision in the circuit or district court; and that if a judgment be rendered against him in such court, he will pay the amount of such judgment, including the costs of the appeal, with interest thereon; and if his appeal shall be discontinued or dismissed, that he will pay the costs of such appeal;

4th. It shall be executed by the appellant, with one or more sufficient sureties, or by two or more sufficient sureties, without the appellant; such bond or recognizance may be taken by the justice by whom the judgment was rendered, or by any other justice of the peace of the same township.

Sec. 186. No justice of the peace shall take any bond or recognizance, on appeal as hereinbefore provided, unless the person entering into the same as surety justifies his responsibility on oath, and answers any question touching his pecuniary circumstances which such justice may deem proper to put.

Sec. 187. Such justification shall not be necessary when the opnecessary. posite party, or his attorney, admits the pecuniary responsibility of Justice to such surety or sureties to be sufficient; and it shall be the duty of the justice, at the time of taking such bond or recognizance, to certify whether the surety justified, or his responsibility was admitted as aforesaid.

certify.

Costs to be

paid.

When term

of justice

&c.

Sec. 188. The appellant shall also, within the said five days, pay to the justice the sum of one dollar for making and filing his return, and also the costs of the opposite party included in the judgment.

Sec. 189. When the term of office of a justice shall expire, or othershall expire, wise become vacant, between the rendition of a judgment by him and the time limited for appealing, such justice may take and approve the bond or recognizance, and it shall be his duty to make return to such appeal in like manner as if he was in office at the time of taking such bond or recognizance, and of making such return.

When cir

cuit court

Sec. 190. Appeals may be authorized by the circuit or district court, may auth' after the expiration of five days, where the party making the appeal

has been prevented from taking the same by circumstances not under ize appeal his control.

alter tive

days.

nizance ser

justice ab

Sec. 191. The affi lavit and bond or recognizance, in case of the ab- How recog sence from his dwelling house of the justice by whom the judgment ved when was tender d, may be served on any member of his family of suitable sent. age, and the costs and fees may be paid to such person.

erty to be

&c.

Sec. 192. On such certificate being presented to the officer holding when prop the execution, he sha'l forthwith release the property, or the body of released, the party against whom the same was issued, which may have been taken; and if such party shall have been committed to prison, upon service of the like certificate upon the jailor, he shall release him from imprisonment.

justice to

Sec. 193. Within ten days after any appeal shall have been made, Return of the justice shall make a return of the proceedings had before him to appeal. the circuit or district court for the county, in which shall be stated:

1st. The title of the cause, and the character in which the parties prosecuted or defended before him;

2d. The demand of the plaintiff; and if his declaration was in writing, a copy thereof shall be set forth;

3d. The plea of the defendant, and any notice of set-off or matter of defence given by him, and all other proceedings of the parties upon which a trial was had or an issue was formed; and if in writing, copies thereof shall be set forth;

4th. If the trial was by jury, the names of the jurors and their verdict;

5th. The judgment rendered, and the time of rendering the same; 8th. The time when the affidavit and bond or recognizance hereinbefore required were delivered to the justice, and the fees of the justice were paid.

Additional particulars

turned.

Sec. 194. The justice, in addition to the particulars required by the preceding section, shall make a full and complete return as to all matters to be restated and set forth in such affidavit mentioned in the latter part of the preceding section one hundred and eighty-four, and shall also return copies of all processes, returns, pleadings and affidavits upon which any process issued or motion was made, and so much of the evidence and proceedings as may be necessary fully to exhibit the questions, motions and decisions, made and presented in such cause,