CHAP. 160. shall be according to the scale of fees for justices and constables under the chapter of the Revised Statutes, entitled "Of Costs and Fees." R. S., c. 102, s. 42. Execution. Return of executions. Execution not to year, except in EXECUTION. 30. Where judgment is given against any person execution (form M) may be issued against the goods and chattels of such person for the sum awarded with costs, or for costs, as the case may be, at the instance of the person obtaining the judgment. R. S., c. 102, s. 27 (part.) 31. All executions shall be made returnable in thirty R. S., c. 102, s. 28. days. 32. No execution shall issue after the lapse of one year issue after one from the time of giving judgment, unless it is made to certain cases. appear by affidavit that a balance is still due on such judgment, and that due diligence has been used to collect the same, in which case an execution or executions may issue for the balance at any time within six years after the giving of the judgment. R. S., c. 102, s. 29; 1887, c. 33, s. 3. Duty of con execution on per. 33.--(1.) The constable to whom the execution is stable in levying delivered, shall proceed forthwith to levy for the sum due, sonal property. and shall take sufficient goods of the person against whom the execution is issued to satisfy the same. Sale, how conducted. If no buyers, may adjourn sale. Proceeds of sale, how disposed of. Goods unsold to be returned. Return of cxecution. (2.) The constable shall cause an advertisement, describing the goods taken, and specifying the time and place of the sale, to be posted up in two or more public places in the polling district or place in which such sale is to be held, at least five days before the time appointed for such sale. R. S., c. 102, s. 30. 34.-(1.) At the time and place so appointed, if the amount to be collected remains unpaid, the constable shall sell the goods at auction to the highest bidder. (2.) If the goods remain unsold for want of buyers the constable may adjourn the sale for any period not less than twenty-four hours, nor more than six days, and may in such case, although the return day of the execution has passed, proceed to advertise anew, and sell such goods. (3.) Out of the proceeds of the sale the constable shall,— (a) retain the fees of the levy and sale; (b) pay to the judgment creditor, or his duly authorized agent, the amount due on the execution; (c) pay any surplus to the judgment debtor, or in his absence, to the justice for the use of such debtor. (4.) If any goods levied on remain unsold after satisfying the execution and the expenses of the sale, they shall be returned to the judgment debtor. (5.) The constable, after any sale, shall forthwith return the execution, with his doings thereon, to the justice who CHAP. 160. issued the same. R. S., c. 102, s. 31. APPEAL. court for county 35.-(1.) Any party dissatisfied with the judgment of Appeal to county the justice or justices, may appeal therefrom to the county in which trial court for the county in which the trial took place. (2.) The appeal shall be granted if such party, within ten days after the judgment, files with the justice took place. Person appeal ing within ten days after judg. ment to file an (a) an affidavit (form N) of himself, or in his absence, affidavit, &c. prosecute ap judgment of and costs, &c., issued before for, on filing execution to (3.) If execution is issued before the appeal is applied execution for, the justice or justices who issued the execution shall, appeal applied as soon as the appeal bond is filed, make, on the application appeal bond of the appellant, an order for the same to be stayed, which be stayed. order shall be obeyed by any constable holding the execution. R. S., c. 102, s. 34 (part); 1887, c. 33, s. 4. 36. The justice or justices before whom the action was Justices to transtried shall, not later than one week after the appeal is week to the granted, send, (a) to the office of the clerk of the county court for nit within a clerk, or local deputy clerk if office nearer, (b) in counties in which there are two offices of the county court, then to the office of the local deputy clerk, if the action was tried in a place nearer by the ordinary route of travel to the office of such local deputy clerk than to the office of the clerk, all the papers in the action appealed, together with the Appeal papers, appeal bond and a transcript of the judgment, and a state- of judgn.ent ment of the costs to which each party would be entitled in of the event of his having succeeded below. R. S., c. 102, s. 37. CLERICAL WORK. bond, transcript costs, &c. and statement Where two jus tices necessary for trial, the one shall prepare the 37. In actions requiring to be tried before two justices, first applied to it shall be the duty of the justice first applied to for the papers, keep writ of summons or capias, them, and transmit to court above in case (a) to prepare, if practicable, the writ of summons, of appeal. CHAP. 160. In actions before one justice he shall perform the duties. Writs to be issued by one justice except writ of capias, execution, venire facias, and subpoenas and copies, and to endorse the writ of capias; (b) to prepare, if requested so to do by the parties requiring the same, the affidavit for arrest, and bond on arrest, the affidavit for the appeal, and the appeal bond; (c) to perform, if practicable, all acts which may be performed by or before one justice only; and (d) to be the custodian of all the papers in the action, and to transmit the same, in case of an appeal, to the court of appeal. R. S., c. 102, s. 41 (part). 38. In actions which may be tried before one justice,(a) he shall, if requested so to do by the party requiring the same, prepare the papers mentioned in the next preceding section; and (b) he shall in all cases be the custodian of the papers in the action, and shall transmit the same, in case of an appeal, to the court of appeal. R. S., c. 102, s. 41 (part). 39. (1.) Writs of summons, capias, subpoena, and venire facias may, in all cases, and although the action execution, which requires to be tried before two justices, be issued by one justice, under his hand and seal. shall, if action tried by two, be issued under hands and seale of both. In case of death, &c., of justice or justices trying by any other justice or justices. In case of death of one of two, by remaining jus tice. Affidavits may (2.) The writ of execution shall be issued, (a) in actions tried before one justice, by such justice under his hand and seal; (b) in actions tried before two justices, by such two justices under their respective hands and seals: Provided that such writs of execution may be issued, (a) in case of the death, resignation, or removal of such justice or justices, or where it is impracticable from other causes for such justice or justices to issue the same, by any other justice or justices; or, (b) if the action was tried before two justices, and the death, resignation, or removal of one of them has occurred, by the remaining justice. R. S., c. 102, ss. 27 (part), 41 (part). 40.-(1.) Under this Chapter all affidavits shall be be sworn before taken before, and all oaths administered by, one justice one justice. Affidavit for a writ of capias, appeal or of service before any justice, whether trial justices or not. Bonds to be witnessed before only. (2.) The affidavit for a writ of capias, or for an appeal, or an affidavit of service made by a constable, or any other affidavit in the course of an action, may be taken before any justice of the peace in the province. c. 102, ss. 34 (part), 41 (part); 1887, c. 33, s. 2. 41. R. S., A bond on arrest, or a bond for an appeal, may be any witness, not executed before any credible witness, and shall not be necessary to required to be executed before the justice or justice CHAP. 160. R. S., c. 102, s. 41 (part). 42. The return to process by constables may one of the forms P to U in the schedule. 43. The forms in the schedule, or forms to effect, shall be sufficient. R. S., c. 102, s. 43. APIAS. day of this ae particulars VIOLATION OF DUTY BY CONSTABLES. Issuing the writ, permitted to give 44. Any constable who fails to serve to a writ of summons or capias, besides action for any damage which has b liable to a penalty of four dolla 45. Any constable Wction 14.) for ten days after th consent of the part SUBPOENA. fails to pay ove-opy to be served on each witness.) thereon, or t................ SS. state in his L. M., N. O., and P. Q. (according to the number.) be suedi every of you are required to appear at on the of the clock, in the justic on, to give evidence on the part of the (plaintiff or defendant, as eighse may be), in an action now depending between A. B., plaintiff, C. D., defendant, and then and there to be tried, which you are to omit under penalty by law in such cases made and provided. a Dated the ...... day of ., 19.. ! E. F., J. P. (Seal.) [Form H.] (Section 14.) OATH TO BE ADMINISTERED TO WITNESSES. In this action between A. B., plaintiff, and C. D., defendant, the evidence you shall give to the court (or, to the court and jury sworn), touching the matter in question, shall be the truth, the whole truth, and nothing but the truth. So help you God. [Form I.] (Section 16.) AFFIDAVIT TO BE MADE BY THE CONSTABLE SERVING THE PROCESS, WHEN REQUired. I, O. P., of .... say that I did on the in the county of ...... make oath and personally serve the defendant in the annexed process named, with a true copy thereof, and time of service was not required by the defendant to explain the Sworn before me at ......, in the county of........, the.... day of... .... 19.. O. P. É. F., J. P. To any of the constables of the said county: You are hereby required to summon three persons duly qualified to act as petit jurors, who are not of kin to either of the parties, to come and be present at ...., on the .... day of at.... of the clock, in the ....noon, to make a jury between Dated the defendant. ....1 plaintiff, and 19.. E. F., J. P. (Seal.) [Form K.] (Section 26.) OATH TO BE ADMINISTERED TO JURORS. You shall well and truly try this action between A. B., plaintiff, and C. D.. defendant, and a true verdict give according to the evidence. So help you God. [Form L.] OATH ΤΟ BE ADMINISTERED TO A CONSTABLE APPOINTED TO ATTEND JURY. OR OTHER PERSON You shall keep every one of the jury sworn, and now about to make up their verdict, in some convenient place; you shall not suffer any person to speak to them, nor shall you, without the leave of the court, speak to them yourself, except to ask if they are agreed on their verdict. So help you God. To any of the constables of the said county : Whereas judgment has been given against C. D., of favor of A. B., for the sum of ... and in more for costs: these are therefore to command you to levy upon the goods and |