TITLE 4. plaintiff, and defendant, and unless discharged by the justice, a true verdict to give, according to evidence.37 $104. After the jury shall be duly sworn, they shall sit together and hear the proofs and allegations of the parties, which shall be delivered publicly, in their presence.37 $105. No ex parte affidavit of any person shall be allowed or given in evidence on any trial, either with or without a jury, unless the parties agree to allow the same.37 S 106. A party in the suit, or having an interest in the verdict, may be a witness to prove the death or absence beyond the reach of a subpoena of the justice, of a subscribing witness to, or the loss of, any instrument, which shall come in question on the trial, in order to introduce other proof of the execution or contents of such instrument; but in no other case, without the consent of the parties.37 $107. If a witness, on being produced, shall be objected to as incompetent, such objection shall be tried aud determined by the justice. Evidence may be given in support of, or against such objection, as in other cases; or the proposed witness may be examined on oath, by the party objecting, and if so examined, no other testimony shall be received from either party, as to the competency of such witness. $108. Every person offered as a witness, before any testimony be given by him, shall be duly sworn or affirmed, that the evidence he shall give relating to the matter in difference between plaintiff, and defendant, shall be the truth, the whole truth, and nothing but the truth.37 $109. After hearing the proofs and allegations, the jury shall be kept together in some convenient place, under the charge of a constable, until they all agree upon their verdict; and for that purpose, the justice shall administer to such constable, the following oath: "You swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial, together, in some private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged; and that you will not, before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed on."37 $110. When the jurors have agreed on their verdict, they shall deliver the same to the justice, publicly, who shall enter it in his docket. Previous to receiving it, the justice shall call the plaintiff. (37) Laws of 1824, p. 291, § 10. If he be absent, and no one appear for him, the verdict shall not be ART. 8. received. $111. Whenever a justice shall be satisfied that a jury sworn in Jury when to be discharged any cause before him, cannot agree on their verdict, after having been out a reasonable time, he may discharge them, and shall issue a new New venicevenire, returnable within forty-eight hours, unless the parties shall have consented that the justice may render judgment on the evidence already before him; which in such cases he may do. Fine on ju fault $112. Every person who shall be duly summoned as a juror, and rors for deshall not appear, nor render a reasonable excuse for his default; or appearing, shall refuse to serve; shall be subject to the same fine, to be prosecuted for and collected with costs, in the same manner, and applied to the same use, as herein before provided, in respect to a person subpoenaed as a witness, and not appearing, or appearing and refusing to testify. 38 ARTICLE EIGHTH. Of Judgments, and Filing Transcripts thereof. SEc. 113. Judgment on confession may be entered for not more than $250. 115. Judgments otherwise confessed void, with certain exceptions. 118. If justice a material witness, cause to be discontinued. 119. Cases in which judgment of non-suit, with costs, to be rendered. 121. When judgment to be rendered for plaintiff. 122. Judgment against joint defendants, on appearance of one, &c. 123. Effect of such judgment against party appearing and party not appearing. 124. In what cases judgment to be rendered forthwith; when within four days. 125. Any party may remit excess, &c. in certain cases. 126. Costs to be awarded; whole amount not to exceed five dollars, except, &c. 127. Justice to furnish transcript of judgments over $25. 123. County clerk to file transcript; to become a lien on real estate. 129. Such judgments may be revived. confession. $113. A justice of the peace may enter a judgment, by confession Judgments by of the defendant, in any case where the debt or damages confessed, shall not exceed two hundred and fifty dollars, with such stay of execution, as may be agreed on by the parties interested in such judgment.39 $114. No confession shall be taken, or judgment rendered there- Requisites. on, unless the following requisites be complied with: 1. The defendant must personally appear before the justice: Defendant must be pre sent. writing. lars,affidavits must be made 2. The confession shall be in writing, signed by the defendant, and It must be in filed with the justice: 3. If the judgment be confessed for a sum exceeding fifty dollars, Ifover 50 dolthe confession shall be accompanied by the affidavit of the defendant and plaintiff, stating that such defendant is honestly and justly indebted to the plaintiff in the sum named in such affidavit, over and above (38) Laws of 1824, p. 291, § 11. (39) Ib. § 12 & 13. TITLE 4. all just demands which he has against him, and that such confession is not made or taken with a view to defraud any creditor.40 When void. $ 115. Every judgment confessed without a compliance with the provisions of the last preceding section, shall be void as against all persons, except a purchaser in good faith of any goods or chattels, lands or tenements, under such judgment, and except the defendant making such confession.40 Proceedings on justices' judgments, may be stay judge. $116. Any judge of the court of common pleas of the county, may, on the application of any creditor of the person against whom any judged by county ment shall have been recovered, upon confession or otherwise, that shall be a lien on the real estate of the defendant, upon sufficient cause shown by affidavit, that such judgment was obtained fraudulently, with intent to defraud creditors, grant an order to stay all proceedings on such judgment, until the further order of the said court of common Powers of pleas; and that court shall have the like power to inquire into the consideration of such judgment, and to set aside the same, or to make any other order in the premises, as if the judgment had been originally rendered in that court. com. pleas. Proceedings on execution. Proceedings whon justice a witness. When judg ment of nonenit. Judgment when there is S 117. If an execution shall have been issued on such judgment, and the judgment be established, the officer having such execution, may proceed thereon to collect the amount of such judgment, in the same manner, as if the proceedings had not been stayed, and within such time as the court shall direct. $118. If, previous to joining issue in any cause, (except where the defendant shall have been arrested by warrant,) the defendant shall make affidavit, that the justice before whom the same is pending is a material witness for such defendant, without whose testimony he cannot safely proceed to the trial, judgment of discontinuance shall be entered, but without costs against either party. $119. Judgment of non-suit, with costs, shall be rendered against a plaintiff prosecuting a suit before a justice of the peace, in the following cases: 1. If he discontinue to withdraw his action : 2. If he fail to appear on the return of any process, within one hour after the same was returnable : 3. If after an adjournment, he fail to appear within one hour after the time to which the adjournment shall have been made: 4. If he become non-suited on the trial: 5. If he shall not appear on the coming in of the jury to hear their verdict. $ 120. Judgment for the defendant, with costs, shall be rendered, no cause of whenever a trial has been had, and it be found by verdict, or by the decision of the justice, that the plaintiff has no cause of action against the defendant. action. (40) Laws of 1824, p. 291, § 12 & 13. S 121. If upon the trial of the cause; or upon an ex parte hearing, in those cases where it may be had on the defendant's failing to appear; a sum, in debt or damages, shall be found in favor of the plaintiff, then judgment shall be rendered against the defendant for such debt or damages, and the costs. ART. 8. When judg ment for plaintiff. Joint debtors, $122. If process shall have issued against two or more per-proceedings sons jointly indebted, and shall have been personally served upon ei- against. ther of the defendants, the defendant who may have been served with process, shall answer to the plaintiff; and the judgment, in such case, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process; but execution shall issue only in the manner herein after directed.11 judgment. ments to be $123. Such judgment shall be conclusive evidence of the liability Effect of of the defendant who was personally served with process in the suit, or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence. $124. In cases where a plaintiff shall be non-suited, discontinue When judg or withdraw his action, and where judgment shall be confessed, and rendered. in all cases where a verdict shall be rendered, or the defendant shall be in custody at the time of hearing the cause, the justice shall forthwith render judgment, and enter the same in his docket. In all other cases, he shall render judgment, and enter the same in his docket, within four days after the cause shall have been submitted to him for his final decision.42 ties may re $ 125. When a balance shall be found in favor of a party, either When parby the verdict of a jury, or upon a hearing before the justice, exceed- mit excess. ing the sum for which the justice is authorised to give judgment, such party may remit and release the excess, and may take judgment for the residue. total amount. $126. Whenever a judgment shall be rendered by a justice against Costs; their any party, unless herein otherwise provided, it shall be with the costs of the suit. But the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not, in any case, exceed five dollars.43 of judgments. $127. It shall be the duty of a justice of the peace, on the demand Transcripts of any person in whose favor he shall have rendered a judgment for above twenty-five dollars, exclusive of costs, to give a transcript of such judgment, together with the original bond of security for stay of execution, if there be such bond.44 liens on real $128. It shall be the duty of the clerk of the county in which such To be filed; judgment shall have been obtained, to file such transcript and bond in estate. his office, and to enter and docket the judgment, in a book to be by him (41) Laws of 1824, p 291, § 15. (42) Ib. § 3. (43) Ib. § 31. (44) Ib. § 20. TITLE 4. kept for that purpose, noting therein the time of receiving the same. Such judgment, from and after the time of such entry and docket, by the clerk, shall be a lien on the real estate of the defendant within the county, in the same manner and with the like effect, as if such judgment had been rendered in the court of common pleas; and may in the same manner, be discharged and cancelled.45 Revival of such judg ments. Executions to be issued. $ 129. Every judgment of which a transcript shall be filed and docketed, as herein directed, may be revived by scire facias, in the court of common pleas of the county, in the same manner, in the like cases, and with the like effect, as if such judgment had been obtained in that court. ARTICLE NINTH. Of Executions; of Sales thereon, and of Imprisonment. SEC. 130. Executions to be issued on judgments. 131. Contents of execution; further clause when against males. 136. Issuing may be stayed by giving bond; its condition. 137. Also by certain persons giving security to pay monthly instalments. 139. Duty of constable; execution may be renewed. 140. Certain cases in which endorsement not to be made. 141. Execution against joint debtors; endorsement to be made thereon. 142. Such executions, how to be served. 143. Executions for certain penalties; defendants how to be imprisoned. 144. Executions when to be dated and when to be returnable. 145. How renewed by endorsement; effect of removals. 146. Executions may be issued within two years after judgment. 147. Further executions when to issue. 148. Constable to endorse time of levying; notice of sale. 149. When and how to sell; return of execution; proceeds how applied. 150. Constable making sale not to purchase any property. 151. If no property to levy upon, defendant to be imprisoned. 152. In certain cases, defendant to be discharged at certain times. 153. Affidavits to be made, to entitle to discharge. 154. Prisoner to be discharged; affidavit where to be filed. 155. Penalty for refusing to discharge. 156. Defence on prosecution for discharging prisoner. 157. Judgment not affected by discharge, &c. 158. Females not to be imprisoned on justice's execution. 159. Remedy against constable neglecting to return execution. 162. Last section not to apply to cases where exemption is endorsed. 163. Proceedings to recover money collected by constable. 164. County clerk to issue executions on judgments of which transcripts are filed. 165. When such execution to be issued. 166. Authority of common pleas to award and control such executions. 167. Form of such execution; how tested and signed. 168. Proceedings against sheriff for return of execution, &c. 169. Certain property of householders exempt from execution. $130. Upon any judgment being rendered before a justice, he shall issue execution, at the time and in the manner herein after prescribed. (45) Laws of 1824, p. 291, § 20. |