And unless such judgment shall be paid and satisfied within the period before mentioned, execution shall thereupon be granted by such justice, against the party and his security jointly, on which execution no security shall be taken. Sect. 4. If either party, in any suit hereafter to be brought before any justice of the peace, shall think himself, herself, or themselves grieved, where the debt or subject of trover, or detinue, or damages, exclusive of interest, shall exceed ten dollars, or the sum demanded on any penal statute shall exceed five dollars, such party, within five days from the rendition of such judgment, may enter an appeal to the next monthly term, of the county or corporation court, giving such security as the justice rendering the judgment shall deem sufficient for the payment thereof, and all costs and damages, in case the same shall be affirmed. Sect. 5. The verbal acknowledgment of any security required to be taken under this act shall be sufficient, and the endorsement by the justice of the name of such security upon the warrant, on which the judgment shall be rendered, shall be conclusive evidence of such acknowledgment. Sect. 6. Appeals granted under this act shall be tried in a summary way, without pleadings in writing, on the day to which such appeal shall be returnable, unless good cause be shewn by either party for a continuance; and the courts, in rendering judgments thereon, shall govern themselves by the principles of law and equity. And where judgment is affirmed, the same shall be entered for the amount of the original judgment, and the costs of appeal, together with damages, after the rate of ten per cent. per annum upon the whole amount of the original judgment and costs, from the date thereof, until payment, and such judgment shall be entered against the principal and his security jointly, and execution thereon shall issue accordingly, and be endorsed, "no security to be taken." And if the judgment of the justice shall be reversed, the appellant shall recover full costs. Sect. 7. Every justice of the peace, from whose decision an appeal is prayed, shall, on or before the day to which the same shall be returnable, transmit to the clerk the original warrant, with the judgment and the name of the security endorsed thereon. And the clerk shall docket the same, and be entitled to the same fees upon such appeals as clerks of district courts are entitled to for similar services. Any person or persons who shall be compelled to pay money under this act as a security, his, her, or their executors and administrators, shall have the same remedy against the principal or principals, his, her or their executors and administrators, by motion, for the amount so paid, with interest and costs thereon, as other securities are by law entitled to. Sect. 8. When the constable or other officer to whom any execution shall hereafter be directed by a justice of the peace, shall not be able to find goods and chattels to satisfy the same, he shall make return thereof to the clerk of his county or corporation, who shall docket the same; and the party shall be entitled to such writ or writs of execution for the recovery of the amount due thereon, as if the judgment upon which such execution issued had been rendered in court. And the same proceedings shall be had upon executions, to be issued by the clerks, under this act, as upon executions founded upon judgments rendered by courts of law; and the clerks shall be entitled to the same fees for the services hereby required of them, to which they would have been entitled, if such judgments had been rendered in court. Sect. 9. Every justice of peace shall have power to issue executions and subpoenas for witnesses, to be directed to the constable or other officer of any county or corporation within this commonwealth, where the party or witness resides. Sect. 10. If any constable or other officer shall fail to make return of any execution to him to be directed under this act, on or before the return day thereof (which shall in no case exceed sixty days from the date thereof) it shall be lawful for any justice of the peace, ten days notice being given, upon the motion of the party injured, to fine such constable or other officer, in any sum not exceeding five per centum per month, upon the amount of such execution, counting from the return day thereof. Sect. 11. Whosoever shall bring any action or suit, if it shall appear, either by his own shewing, or the verdict of a jury, that a justice of the peace had cognizance under this act, shall be non-suited. Sect. 12. The same fees for counsel or attornies shall be taxed in the bills of costs, upon appeals under this act, as were heretofore taxed upon petitions and summonses. Sect. 13. If any constable or other officer shall hereafter receive any money or tobacco upon any execution hereafter to be directed by any justice of the peace, and shall not pay the same to the party or his agent entitled thereto, upon the return of such execution, the party or parties, his, her, or their executors or administrators, injured thereby, shall be entitled to the same remedy, by motion, for the sum so received, with interests and costs, against such constable or other officer, and his security or securities, his, her or their executors and administrators, to which he would have been entitled against a sheriff, for money received on an execution issued upon the judgment of a court of law. And the court of the county or corporation, in which the bond of such constable or other officer is or shall be deposited, shall have power to hear such motion, and to render judgment thereon. Sect. 14. Every court within this commonwealth, on reversing any judgment of any justice of the peace, shall pronounce such final judgment, as, in their opinion, such justice ought to have rendered. Sect. 15. All acts and parts of acts contrary to this act, and particularly so much of the act, entitled "An act, reducing into one all acts and parts of acts concerning the county and corporation courts," as relates to petitions for small debts and penalties, shall be and are hereby repealed. But all such petitions as shall be commenced and undetermined before the commencement of this act shall be decided, and executions shall be issued on the judgments to be given thereon, in the same manner as if this act had not been made. BLE." For other matters relating to warrants, see title "CONSTA (A) Warrant for debt: on 2 Rev. Code, ch. 88, sect. 2, county, to wit. p. 114. The commonwealth of Virginia to the constable of trict, in the said county, greeting. dis You are hereby commanded to summon A B to appear before me, or some other justice of the peace for the county aforesaid, at on the for day of next, to answer B C, of a plea of debt due by (account, or bond, or penal bill, or single bill, or promissory note, as the case may be); and then and there make return how you have executed this warrant. Given &c. (If witnesses are required, they may be summoned thus): Summon A W, B W, &c. witnesses for the plaintiff. The warrant must be returnable on a day certain, not more than thirty days from the date. (See the above section.) It must also be directed to a constable, and not to a sheriff. (Sess. Acts of 1808, ch. 11, sect. 4, p. 20.) And on the death, removal, or refusal to act, of a constable of a particular district, any other constable of the county may perform the duties of the constable of that district. See ant. P. 194. (B) Warrant in detinue. county, to wit. The commonwealth of Virginia to the constable of trict, in the said county, greeting. dis You are hereby commanded to summon A D to appear before me, or some other justice of the peace for the county aforesaid, at on the tinue for day of next, to answer B P, of a plea of de(describe the property particularly) and then and there make return how you have executed this warrant. Given &c. (C) Warrant in trover and conversion. county, to wit. The commonwealth of Virginia to the constable of in the said county, greeting. district, You are hereby commanded to summon A T to appear before me, or some other justice of the peace for the county aforesaid, at on the day of ver and conversion, of next, to answer B P, of a plea of tro(describe the property); and then and there make return how you have executed this warrant. Given &c. (D) Warrant for the penalty of an act of Assembly. county, to wit. The commonwealth of Virginia to the constable of in the said county, greeting. district, You are hereby commanded to summon AO to appear before me, or some other justice of the peace for the county aforesaid, at on the day of next, to shew cause why the penalty of should not be levied upon him, for &c. (here describe the of fence particularly for which the law imposes the penalty) of which the said A) is guilty, as I have been informed by BI, of and then and there make return how you have executed this warrant. Given &c. (E) Judgment in debt, on a hearing. On hearing the parties, judgment is granted the plaintiff against the defendant, for (the principal and interest) and costs. Costs cents. J. P. For the costs which may be taxed in the judgment, see title "CONSTABLE," ant. p. 194, and title "WITNESSES," post. (F) Judgment in detinue, on a hearing. On hearing the parties, judgment granted the plaintiff against the defendant, for (the value of the subject in controversy) and damages, besides costs. Costs cents. J. P. The law only authorises judgment for the value of the subject in controversy, with damages and costs. (See 2 Rev. Code, ch. 88, sect. 1, p. 114. (G) Judgment in trover, on a hearing. On hearing the parties, judgment granted the plaintiff against the defendant, for damages (the value of the subject in controversy) and costs. Costs cents. J. P. The law having directed that judgment should be rendered for the value of the subject in controversy, with damages" and costs; and further declared, that execution should issue against the goods and chattels of the defendant, "to be executed and returned as other writs of fieri facias," seems to exclude the idea of a recovery of the specific thing, in detinue, as at common law; for which purpose a distringas is the proper process of execution, and not a fieri facias. (H) Judgment on a penal law, on a hearing. The defendant appearing, and being fully heard in his defence, and the witnesses on the part of the prosecution being fully examined, judgment is granted against the defendant, for (the amount of the penalty) to be applied &c. (according to the direction of the act imposing the penalty) and the costs. Costs cents. J. P. (1) Judgment by default. The defendant having been duly summoned, and failing to appear, and the evidence adduced by the plaintiff having been duly considered, judgment is granted the plaintiff against the defendant, for &c. (the rest of the judgment may pursue the above forms, and must be adapted to the nature of the case.) (J) Stay of execution: on 2 Rev. Code, ch. 88, sect. 3, p. 115. (To be endorsed on the warrant.) At the request of A D, the defendant, execution is stayed on the above (or, within) judgment days; and thereupon BS acknowledges himself security for the said A D, for the payment of the said sum of with interest, till the same shall be satisfied. in the year Given under my hand, this day of J. P.. (K) Appeal: on 2 Rev. Code, ch. 88, sect. 4, p. 115. (To be endorsed on the warrant.) On the motion of A D, an appeal is granted him, from the above (or, within) judgment to the next monthly term of the court of County (or, corporation); and thereupon BS acknowledged himself as security in the said appeal, according to law. Given under my hand, this day of in the year J. P. The warrant, judgment, and name of the security endorsed, must be transmitted by the justice to the clerk, on or before the day to which the appeal is returnable. See 2 Rev. Code, ch. 88, sect. 7, p. 115. (L) Summons for a witness. The commonwealth of Virginia to the constable of ing. greet You are hereby commanded to summon A W to appear before me, or some other justice of the peace for the county of day of at in the said county, on the next, to testify, and the truth to speak, in a certain matter of controversy, on warrant, depending and undetermined between A P, plaintiff, and C D, defen • It is observable, that the law does not require any bond, but only the verbal acknowledgment of the security. (See 2 Rev. Code, ch. 88, sect. 5, p. 115.) The author, having been a member of the legislature when the bill embracing this provision was first introduced, can say, from his own knowledge, that the object of the legislature was to simplify the business, and relieve the magis trates from the trouble of taking bonds. See Journal H. Delegates, of 1804, p. 83. |