According to the English law, no witness is bound to appear except his regular fees be tendered to him at the time of serving the subpœna; nor, if he appear, is he bound to give evidence, till such fees are actually paid or tendered; 13 East., 16. 1 Bl. R., 36; and, if a man who is not subpoenaed happens to be in court during a trial, he shall not be forced to be sworn against his will; but, if he consents, the want of a subpœna is not material. 2 Bac. Ab., 594.

The costs for which judgment is given, are the costs which the prevailing party is entitled to recover according to the statute, taking no notice of the costs of the losing party; therefore, in making up judgment for the costs, the justice should include only the costs made by the party in whose favor the judgment is rendered.

If costs made by the losing party should be included in the judgment, it would be error. 1 Cowen's Rep., 111. 15 Johns. Rep., 195.

When the parties themselves settle a suit, without making any agreement respecting the costs, each party must bear his own. Each party is supposed to advance the costs as the suit proceeds. 1 Caine's Rep., 66. 5 Johns. Rep., 268.

Costs are considered, in a legal sense, as parcel of the damages; 9 East., 298; and are so much an incident of the judgment, that it is a general rule that, in order to recover them, they must be awarded and incorporated in the final judgment. 10 Coke's Rep., 115.

It is presumed that the justice may enter into the judgment prospective costs for one execution, which must be deducted if the judgment is paid before the execution is issued.

On the return of all executions, the constable shall pay over to the justice of the peace who issued the same, all money not previously paid over to the plaintiff; and also, all witness's fees, which remain unpaid to any witness; and it shall be the duty of the justice of the peace to post up in his office, at least once in three months, a list of all witness's fees in his hands, and the name of the person to whom they belong; and for a failure to comply with this provision, a justice of the peace shall be liable to a fine of fifty dollars, to be recovered by action of debt in the name and behalf of the county commissioners' court. Sess. Laws of 1841, p. 177.

To entitle a constable to his commission on an execution, he must levy the money, except when he is prevented by the act of the party in whose favor it was issued, or by operation of law. 2 Cowen's Rep., 421. If the constable levy upon property of the defendant sufficient to satisfy the execution, but, before sale, the parties settle, the constable would be entitled to his commission. 1 Cowen's Rep., 192. 5 Term. Rep., 470. And it seems that he would be entitled to his full commission upon arresting a defendant upon a ca. sa., although the defendant should be discharged by the act of the plaintiff or

by operation of law. 5 Johns. Rep., 252. But, where he has not actually served the execution by a levy or arrest, and a compromise or payment is made between the parties, of which he has notice, of course nothing is due to him, for he has done nothing officially.

But whenever the plaintiff interposes, and a compromise takes place after levy made, the constable is entitled to poundage on the sum realized by the plaintiff, or that might have been collected from the property levied on. Breese Rep., App., 22. 1 Caines Rep., 192. By the act of levying on property, the constable has incurred all the risk and responsibility for the safe keeping of the property, and it ought not to be in the power of the parties to deprive him of compensation for it. If, therefore, the plaintiff settles the judgment, or in any way releases the property from the levy, he would be liable to the constable for his fees and commission. 17 Wend. Rep., 14.

3. OF FILING TRANSCRIPTS.

A transcript is a copy of the original entries made by the justice of the title of the cause, of the process, proceedings, and judgment in his docket.

Gale's Stat., 409. "SEC. 29. When it shall appear by the return of the execution first issued, that the defendant has not personal property sufficient to satisfy the debt and costs within the county, in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real property, in that, or any other county, it shall be lawful for the justice to certify, to the clerk of the circuit court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgment shall thenceforward have all the effect of a judgment of the said circuit court, and execution shall issue thereon, out of that court as in other cases."

The real property of the defendant shall be bound for the payment of such judgment from the date of the filing of a transcript of the judgment in the clerk's office. Gale's Stat., 413, § 52.

The judgment, of which a transcript has been filed in the clerk's office, is a lien upon all the lands of the defendant in the county wherein the judgment was rendered and the transcript has been filed; but it creates no lien beyond the limits of such county. 1 Scam. Rep., 235.

After a transcript has been filed in the office of the clerk of the circuit court, execution issues from the clerk's office like its other process, and all control over it properly belongs to that court, and the power of the justice who rendered judgment is entirely at an end. Payment, therefore, made to him would not be sufficient.

CHAPTER X.

OF EXECUTIONS-OF INQUESTS, &c., AND TRIAL OF THE RIGHT OF PROPERTY-OF GARNISHMENT-OF THE LIABILITY OF CONSTABLES AND THEIR SECURITIES-AND OF EXECUTIONS ISSUED BY THE CLERK OF THE CIRCUIT COURT.

I. Or executions.

II. Of inquests, &c., and trial of the right of property. 1. Of inquest of office.

2. Of the trial of the right of property.

III. Of garnishment.

IV. Of the liability of constables and their securities.
V. Of executions issued by the clerk of the circuit court.

I. OF EXECUTIONS.

When judgment has been rendered in a cause, and it shall not have been removed into the circuit court by appeal or writ of certiorari, the next step is the execution of that judgment, or putting the sentence of the law in force.

Executions which may be issued by a justice of the peace are either,

First. Against the goods and chattels of the defendant; or, Second. Against his body.

1. Of executions against the goods and chattels.

This is a judicial writ, and was allowed by the common law where judgment was had for debt or damages against any man. 2 Inst., 394. Now, by the statute, it is provided that a party in whose favor judgment shall be rendered, may have execution to collect the amount thereof, by which execution the constable is commanded to levy the debt, or damages and costs, of the goods and chattels of the defendant which may be found in his county. Gale's Stat., 408, § 27.

In treating of this writ, it will be considered in the following

manner:

1. Of the time when, and by whom, it may be issued.

2. Of its form, and when returnable.

3. Of issuing further executions.

4. Of proceedings of constables thereon.

1. Of the time when, and by whom, executions may be issued. Gale's Stat., 408. "SEC. 26. No execution shall be issued by a justice of the peace, until after the expiration of twenty days from the date of the judgment, on which such execution

is to be issued, unless the party applying for the same, or the agent of such party, shall make oath that he believes that the debt will be lost, unless execution be issued forthwith. If such oath be made, then the execution shall be issued immediately, and levied, but no sale of any property, under such execution shall take place within twenty days from the date of the judgment; nor shall the issuing of such execution deprive either party of the right to appeal."

Upon the rendition of judgment against a sheriff, coroner, or other officer and his securities, where the officer fails to pay over money collected by him, on demand, execution, when application is made by the plaintiff, or his or her agent or attorney, shall issue forthwith against such sheriff or other officer and his securities, as in other cases. Gale's Stat., 427.

An execution must be sued out within a year and a day after the judgment is entered, otherwise the court concludes prima facie that the judgment is satisfied and extinct; 2 Saund., 6; yet the plaintiff may still bring an action of debt, founded on this dormant judgment, which was the only method of revival allowed by the common law. 3 Bl. Com., 421.

If the plaintiff have judgment with stay of execution, he must take out execution within a year and a day after the stay is determined; 6 Mod. Rep., 288; and where execution has been delayed for a year, att he request of the defendant and for his benefit, the reason of the rule does not apply. 19 Johns. Rep., 173. And it appears that, where the defendant appeals, or removes the case by certiorari, and thereby hinders the plaintiff from taking out execution within the year, and the appeal is dismissed, and the judgment thereby affirmed, or the writ of certiorari abated or discontinued, the plaintiff may take out execution after the year, because the appeal or certiorari was a supersedeas to the execution, and the plaintiff must wait till it be determined. The time he has been obliged to wait is not computed as a part of the year. 2 Cowen's Rep., 503. 9 Johns. Rep., 66.

An execution issued from a court of general jurisdiction. after a year and a day, without a revival of the judgment, is not void, but voidable. The court has control over its process, and if an execution should be issued upon a judgment which has been executed, or in any way discharged, the defendant might show this or any other reason why he should not be disturbed, and the court would avoid or set aside the execution. 5 Johns. Rep., 100. 2 Saund., 6, a. But justices of the peace are not invested with this authority. They cannot by rule of court set aside or annul an execution which has been delivered to an officer. The reason, therefore, why executions issued by courts of general jurisdiction are held to be voidable at the instance of the party against whom issued, does not apply to those issued by a justice of the peace.

All executions are to be issued by the justice of the peace who rendered the judgment while he continues in office.

Sess. Laws, 1838-9, p. 41. It is provided by this act, "That justices of the peace, to whom the dockets and papers of other justices have been, or may hereafter be, transferred or delivered, because of the resignation, removal, death, or expiration of the term of service of the justice whose dockets and papers have been or may be transferred as aforesaid, shall be authorized to issue executions upon all judgments remaining unsatisfied upon such dockets, and proceed in the collection thereof as though such judgments had been rendered by the justice having possession of such docket and papers."

2. Of the form of execution, and when returnable. The execution being founded on the judgment, must, of course, conform to, and be warranted by, it. 2 Saund., 72, i. Hence, where there are a number of parties, it must be in the name of all the plaintiffs and against all the defendants against whom judgment is rendered. 5 Bac. Ab., 165. Although the execution on a joint judgment must be joint, yet it may be levied upon the property of one only, and he may have contribution against the others; 5 Term. Rep., 556; or it may be levied upon the joint property of all or any number of the defendants. The execution should issue for the collection of the debt, or damages and costs, for which judgment is rendered by the justice, and the constable should be directed to collect the amount which the party for whom the execution issues lately recovered before the justice against the opposite party.

It must run in the name of "The people of the state of Illinois," State Const., Art. IV. § 7, and be directed to any constable of the county in which the judgment was rendered.

Every execution issued by a justice of the peace should be dated on the day on which it issues, and must be made returnable to the justice issuing the same within seventy days from the date thereof. Gale's Stat., 408, § 27. After the expiration of seventy days from the date of the execution, it is officially dead, and the constable can take no further proceedings under it. Breese Rep., 290.

3. Of the issuing of further executions. It is said that a man can have but one execution; it must, however, be intended an execution with satisfaction. Jac. Law Dic., (tit. Execution.)

At common law, if an execution against the goods and chattels had been issued within a year and a day after entering judgment and remained unexecuted, a second execution might issue at any time within twenty years. 2 Scam. Rep., 441. 2 Saund., 72, b. So where a part of the debt or damages has been levied upon the first execution, another may be issued for the residue thereof. Jac. Law Dic., (tit. Execution.) Where an execution is returned without being satisfied in whole or in