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 referpleas; 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 pre $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 sued out by S 222. If the judgment be rendered in favor of the appellee, he When to be shall sue out execution thereon, within thirty days after the term appellee. 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. TITLE 4. Suits on ap $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 amount remaining due and unsatisfied on such execution, with interest from the time of the rendering of the judgment.70 Ib. Ib. Appeal bond when to be S 224. 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 $226. If judgment on an appeal be rendered in favor of the appelcancelled. lant, 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 Practice on appeals. Feos under this title. To the judge, on allowance of appeal or certiorari. To the justice. $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. Szc. 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. S228. 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 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. subpæna. HIVERSITY TITLE 4 in any judgment, for service upon more than four witnesses, in any cause.7 72 Sheriff's fees. Remedy to recover fees collected. $229. The same fees, and no others, shall be allowed to sheriffs, for serving executions issued by the clerk of the court of common pleas, upon the judgment of a justice, as are herein allowed to constables in the like cases.73 $230. If judgment be rendered by any justice, for a greater amount wrongfully of costs than is allowed by law, or for any item of costs or fees, improperly, and the same be collected, the person paying the same, may, notwithstanding such judgment, recover of the party who shall have received such costs or fees, the amount thereof, with interest. ARTICLE THIRTEENTH. General Provisions concerning Justices' Courts, and Proceed- Sec. 231. This Title to apply to justices' courts in Albany, Hudson and Troy; but not in 232. Process to be signed by justice; may be sealed or not. 233. Certain process to be entirely filled up, and to have no blank. 234. Constables not to take rewards for certain acts. 235. Justices and constables not to buy, &c. securities for prosecution. 236. Penalty for violating last section. 237. Defendant may plead, &c. such violation in bar. 238. Plaintiff may be required to attend trial. 239. Proceedings if plaintiff do not attend. 240. Plaintiff, &c. may be examined by defendant on trial. 241. In what cases plaintiff to be non-suited. 242. Evidence of plaintiff, &c. not to be used on criminal prosecution. 243. Justices to keep books; entries to be made therein. 244. Such entries to be made in each cause, &c. 245. Docket of a justice or transcript, evidence before him. 246 & 247. Transcripts of justices' proceedings, &c. how verified and when evidence. 248. Other modes of proving proceedings before justices. 249. Power of justices to take affidavits. 250. Justices to file and preserve affidavits and papers. 251. To keep indexes to docket books; what to contain. 252. Justice removing from town, to deposit papers with town clerk. 253. On removal from office, to deliver books, &c. to town clerk. 254. Certificate to be entered in books delivered to town clerk. 255. On death or vacancy in office of justice, town clerk to demand papers. 256. Proceedings to compel delivery of papers, &c. to town clerk. 257. Entries in books delivered to clerk, how far evidence. 258. Powers of justices after expiration of terms of office. 259. Penalty for not paying over money collected by a justice. 260. Justices out of office to make return to appeals, &c. 261. Affidavits, &c. to be received instead of return to appeals, in certain cases. 263. Allowance of appeal, &c. may in some cases be served on county clerk. 264. Notice of such service to appellee, to render appeal valid. 265. When action of debt may be brought on justice's judgment. 266. Return by justice removed out of the county, may be compelled. 267. Proof of judgment when docket is lost, &c. 268 & 269. Proceedings to remove from office constables who have neglected to pay over money collected. 270. Office vacated by service of instrument of removal. 271. Justices may authorise private persons to execute certain process. 272. Powers of person appointed; not to receive any fees. (72) Laws of 1824, p. 293, § 31. (73) Ib. § 32. SEC. 273. Constables to act in person, and can not have a deputy. 276. Party to be heard; warrant may issue for him. 277. Record of conviction to be made up; its contents; to be filed. 278. Commitments to set forth circumstances of offence. 279. Witnesses refusing to be sworn, &c. may be committed. 280. Contents of warrant; prisoner how and how long to be confined. 281. Cause to be adjourned until witness testify, &c. ART. 13. tended to cer courts. $231. The several provisions of this Title, so far as the same This Title ex may be applicable, shall apply to the justices' courts in the cities of tain special Albany, Hudson and Troy, respectively, except in those cases where repugnant provisions exist in the acts organizing those courts, or relating thereto; but the provisions of this Title shall not be considered as applicable to the courts in the city of New-York. $232. All process issued by any justice of the peace, shall be sign- Process to be ed by him, and may be under seal or without seal. signed, may be sealed or not forbidden. $233. Every summons, warrant, attachment and execution issu- Blank process ed by a justice of the peace, shall be entirely filled up, and shall have no blank either in the date or otherwise, at the time of its delivery to an officer, to be executed. Every such process, which shall be issued and delivered to an officer to be executed, contrary to the foregoing provision, shall be void.74 constables, $234. No constable shall ask, or receive any money or valuable Rowards to thing from a defendant, or any other person, as a consideration, re- forbidden. ward or inducement, for omitting to arrest any defendant, or to carry him before any justice; or for delaying to take any party to prison; or for postponing the sale of any property, under any execution; or for omitting or delaying the execution of any duty pertaining to his office.74 rities, &c. for S235. No justice of the peace or constable shall, directly or indi- Buying secu rectly, buy, or be interested in buying any bond, note or other demand, prosecution. or cause of action, for the purpose of commencing any suit thereon, before a justice, nor shall any justice or constable, either before or af ter suit brought, lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or other valuable thing, to any person, in consideration of, or as a reward for, or inducement to, the placing or having placed in the hands of such justice or constable, any debt, demand or cause of action whatever, for prosecution or collection.74 $236. Every justice or constable offending against either of the provisions of the three last sections, shall be deemed guilty of a misdemeanor, and on conviction, shall be subject to fine or imprisonment, or both, in the discretion of the court. Every such conviction shall operate as a forfeiture of the office of the justice or constable, so convicted.74 (74) Laws of 1820, p. 141, § 1, 2, 3, 4. Penalty. |