TITLE 4 testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded. When to be $172. Such affidavit shall, within twenty days after rendering such judgment, be presented to the first judge of the county courts where the judgment was rendered, or to some other judge or officer authorised to perform the duties of a justice of the supreme court at Proceedings. chambers; and if such judge or officer shall be satisfied that any erlimended ror affecting the merits of the controversy, has been committed by the 1832. 376 justice or jury, in the proceedings, verdict or judgment, he shall allow the certiorari by endorsing his allowance thereon. Bond to be linended 1933 40 Service of certiorari, fees, &c. Effect of ser vice. Return to Certiorari,&c to be filed. $173. The party obtaining such certiorari, shall execute to the opposite party, a bond, with one or more sufficient sureties to be approved by the justice who rendered the judgment, or the judge who allowed the certiorari, in a penalty of fifty dollars, if the judgment was rendered against him, conditioned that if such judgment be affirmed, such party will pay the same, together with all such costs, as shall be awarded against him, on such affirmance. $174. If the judgment was in favor of the party applying for such certiorari, then such bond shall be in a penalty of at least twenty-five dollars, conditioned to pay such costs as shall be awarded against 'him on such affirmance. $ 175. The certiorari so allowed, shall be served within ten days after its allowance, upon the justice by whom the judgment was rendered, together with the affidavit on which the same was allowed, and the bond made pursuant to the foregoing provisions; and the sum of two dollars shall be paid to the justice for his fees, for making a return to the certiorari; and no certiorari shall be of any effect, until all the preceding requisitions shall have been complied with. $176. If the certiorari, bond and affidavit shall be served on the justice, before an execution shall be issued, it shall stay the issuing of the same; and if the execution shall have been issued, but not collected, the justice shall grant the party requiring it, a certificate of the issuing of such certiorari, which on being served on the officer in whose hands the execution may be, shall suspend such execution. $177. The justice, before the return day of such certiorari, or within ten days after the service of such certiorari, shall make return thereto in writing, and file the same; in which return he shall truly and fully answer to all the facts set forth in the affidavit on which the certiorari was allowed. $178. The justice shall cause the certiorari, the affidavit on which the same was allowed, the bond served upon him, and his return to such certiorari, to be filed in the office of the clerk of the county where such judgment was rendered, and shall pay the clerk, for filing the same twelve cents. Return, &c. how compelled. argument. $179. The court of common pleas shall have power to compel ART. 11. such justice to make or amend such return, by rule, attachment or mandamus, as the case may require. $180. When such certiorari, affidavit, bond, and return shall be Notice &c. of so filed with such clerk, the cause may be brought on to argument, before the judges of the court of common pleas of such county, at any time thereafter, on the notice of either party, without any assignment or joinder in error, and without furnishing the judges with any other copy or copies of the affidavit, certiorari and return, than those so .filed with the clerk; which papers shall be brought into court, for the use of the court and the parties, on the notice of either party. execution. $181. The judges of such court of common pleas shall proceed and Judgment & give judgment in the cause, as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in whole or in part, and may issue execution as upon other judgments rendered before them. $182. If the judgment be affirmed, costs shall be awarded to the Costs. defendant in error; if it be reversed, costs shall be awarded to the plaintiff in error; if judgment be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party. $183. The costs to be taxed, shall be common pleas costs only, Amount of except that a counsel fee of five dollars may be taxed, for arguing the cause before the court of common pleas; but no more than twenty-five dollars costs shall be taxed against either party. costs, &c. rors not to af $184. No judgment shall be reversed, merely for the omission or Certain ermisrecital of any oath, nor on account of any fees having been impro- fect judgment perly allowed by a justice. $ 185. If a judgment rendered before a justice be collected, and af- Restitution. terwards be reversed, the court of common pleas shall award restitution of the amount so collected, with interest from the time of collection. To justify such award, the party claiming it, shall present an affidavit of the fact of such collection having been made, to the court, at the argument of the cause, and shall serve a copy of such affidavit on the adverse party, at the time of giving notice of such argument. ARTICLE ELEVENTH. Of Appeals to the Courts of Common Pleas. SEC. 186. Cases in which appeals to common pleas may be made. 187. Affidavit to be made; when and to whom to be presented. 188. In what cases allowance of appeal to be endorsed. 189. Bond to be executed by appellant; its form. 190. Costs and fee to be paid to justice. 191. Bond, &c. to be served, and fee, &c. to be paid, in 30 days after judgment. 192 & 193. Effect of appeal in superseding execution, &c. 194. Return when to be made; its contents. 195. Return, with certain papers, to be filed with county clerk. TITLE 4. SEC. 196, 197 & 198. Proceedings to compel return to appeal. Cases of ap peal. Affidavit; to whom, &c. 199. Court may compel amendment of return. 200. Power of court on return of attachment. 201. When court possessed of cause; when proceedings may be compelled. 203. Motions to dismiss appeal not to be heard in certain cases. 204. Not to be granted in certain case; bond of appellant may be amended, &c. 206. Costs on dismissing appeal, and how collected. 208. Proceeding by justice on appeal being dismissed, &c. 209. Execution to be returned before suit on appeal bond. 210. Cause, when to be heard by court; when to be tried by jury. 213. Proceedings to try issue of fact. 214. Issue of fact before justice only, to be tried; exceptions. 215. When proof of demand, set-off, &c. overruled, may be given. 216. Issues to be tried or referred; venire not necessary. 217. Judgment on verdict or report of referees. 218. Costs to be awarded to prevailing party; exceptions, &c. 219. Certain disbursements, &c. to be allowed appellant in his costs. 220. Costs may be set off against damages. 221. Executions upon judgments on appeals. 222. To be sued out by appellee in 30 days after judgment. 223. Suit on appeal bond, if execution be unsatisfied. 224. Ib. in cases where appeal was dismissed, &c. $186. Any party to a judgment rendered by a justice of the peace, where the recovery shall exceed twenty-five dollars, exclusive of costs, conceiving himself aggrieved thereby, may appeal therefrom to the court of common pleas of the county where the same was rendered, in the following cases: 1. Where the judgment was rendered upon an issue of law joined between the parties: 2. Where it was rendered upon an issue of fact joined between the parties, whether the defendant was present at the trial or not.61 $187. Within ten days after the rendering of a judgment, the party prosented. intending to appeal therefrom, shall present to one of the justices of the supreme court, or to some officer authorised to execute the duties of such justice in vacation, or to the first or senior judge of the county courts of the county, an affidavit, setting forth the testimony and proceedings before the justice, and the grounds upon which an allegation of error is founded, or upon which a new trial is claimed.61 Allowance of appeal. $188. If such justice, judge or officer, be satisfied by such affidavit, 1. That any error affecting the merits of the cause, has been committed, either by the justice or the jury: or, 2. That any witness or testimony, material to the controversy, could not be produced on the trial before the justice, where due diligence shall have been used to obtain the same, and that no adjournment by reason thereof could be procured: or, (61) Laws of 1824, p. 294, § 36. 3. That since the trial, the party desiring to appeal, has discovered ART. 11. new testimony, unknown to him before the trial, on some point material to the cause, which was not urged on the trial: and, 4. That for either of the above reasons, it is necessary for the at tainment of justice, that a new trial should be had: He shall endorse an allowance of such appeal on the affidavit presented to him.62 pellant. $ 189. The appellant shall also, at the time of serving the affi- Bond by ap davit and allowance of appeal, deliver to the justice a bond, in conformity to the following provisions: 1. It shall be in a penalty of at least one hundred dollars: 2. It shall recite the judgment, so 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: 3. It shall contain a condition, that the appellant will prosecute his appeal with all due diligence, to a decision in the court of common pleas; 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, within thirty days after such judgment rendered; or if his appeal shall be discontinued or dismissed, that he will pay the judgment recovered against him before the justice, and interest thereon, together with the costs of the appeal: 4. It shall be executed by the appellant, with one or more sufficient sureties, or by two or more sufficient sureties without the appellant; which sufficiency shall be certified by the justice on the bond.62 to be paid. $ 190. The appellant shall also, at the time of serving the allow- Coats and fee ance of appeal, pay to the justice the costs of the suit, and the sum of seventy-five cents, for making and filing his return. 2 not valid. $191. No appeal shall be valid, or have any effect, unless within When appeal thirty days after the rendition of the judgment, the party intending to appeal, shall serve the affidavit and allowance of appeal, deliver a bond, and pay the costs and fee, as herein before directed.62 appeal. $192. Upon an appeal being made according to the foregoing pro- Effect of visions, all further proceedings on the judgment before the justice shall be superseded; and if in the mean time, execution shall have been issued, the justice shall give to the appellant, a certificate that an appeal in the cause has been duly made.62 $193. On such certificate being presented to the constable hold- I. ing the execution, he shall forthwith release the goods and chattels, or the body, of the appellant, which may have been taken; and if the appellant shall have been committed to prison, the jailer, upon service of the like certificate upon him, shall release the appellant from imprisonment, 62 (62) Laws of 1824, p. 294, § 36. Attachment by com. pleas $194. Within ten days after any appeal shall have been duly made, the justice shall make a return of the proceedings had before him, to the court of common pleas of the county, in which shall be stated, 1. The title of the cause, and the character in which the parties prosecuted or defended before him : 2. The demand of the plaintiff, and if his declaration was in writing, a copy thereof shall be set forth: 3. The plea of the defendant, and the notice of set-off given by him, if any; and if the same were in writing, a copy to be set forth: 4. Any other proceedings of the parties, upon which an issue was formed, and the issue joined between them : 6. If the trial was by jury, the names of the jurors, and their verdict: 1 6. The judgment rendered thereon, and the time of rendering the same: and, 7. The time when the affidavit, allowance of appeal and bond herein before required, were served, and the costs and fees of the justice were paid. 63 $195. Within ten days after the appeal was duly made, the justice shall file in the office of the clerk of the court of common pleas of the county, his return, made as above directed; together with all papers filed with him by either party, relating to the cause; and the original affidavit served on him, with the allowance of appeal endorsed thereon; and the bond delivered to him, by or on behalf of the appellant.63 S 196. If a return shall not be made by a justice, according to law, the appellant, upon filing an affidavit with the clerk of the county of his having served an affidavit, with the allowance of appeal thereon, delivered a bond, and paid the costs of the suit, with the fee of the justice, as herein before prescribed, may enter a rule in the minutes of the common pleas, in vacation or in term, requiring the justice to make such return within ten days after the notice of such rule, or show cause to the court, on the first day of the next term thereafter, why an attachment should not be issued against him. S 197. If the justice shall fail to make a return, according to law, the appellee, upon filing with the clerk of the county an affidavit that an appeal has been duly made, or that the justice refuses to proceed in the cause, on the ground that an appeal has been made, may enter the like rule in the minutes of the court of common pleas, in vacation or during terin. $198. The court of common pleas of the county, upon evidence being given that an appeal has been duly made, may, by rule and attachment, compel a return by the justice of his proceedings, and of the papers required to be returned by him during the same term, or at a (63) Laws of 1824, p. 295, § 37. |