dence produced, he believe the defendant to have been guilty of fraud in any of the particulars mentioned in that section, may issue an order to the officer having him in custody to deliver him to the jailor of the county, to be Execution may confined in jail until lawfully discharged, which order shall be executed according to the command thereof. With imprisonment. such order an execution may also be issued.

issue with

order of

When and how judgment debtor may be

arrested and imprisoned for

fraud commit ted after judg

ment, etc.

Execution may be issued with order in such case, or order

may be issued though execu

tion outstanding.

Order of arrest

not to be exe

how dated,

and executed.

156. If at any time after a judgment rendered by a justice, there is filed with such justice, or his successor, the affidavit or affidavits of one or more credible persons, stating the amount yet remaining unpaid on the said judgment, and showing to the satisfaction of the justice that the person against whom such judgment was rendered bas, since the date thereof, been guilty of fraud in any of the particulars mentioned in the fortieth section, the justice may thereupon issue an order for the arrest of such person, and to bring him before said justice for examination as to such alleged fraud. If, after hearing all the evidence adduced by the parties upon such examination, the justice be satisfied that the judgment debtor has been guilty of fraud in any of the particulars so alleged against bim, he may order him to be imprisoned, as provided in the preceding section.

157. An execution may be issued with the order mentioned in the last section, or the order may be issued while an execution is outstanding; and if sufficient property be found to satisfy the execution, the order shall not be executed, or if executed, the person so in custody shall be discharged. The order shall be dated the day it is issued, be cuted; when signed by the justice, directed like the summons, and may Order of arrest; be executed out of the county where the judgment was signed, directed rendered, if the defendant escape or be out of such county; and if an execution be issued with it, or be outstanding, both shall be directed to the same officer for execution. It shall state the parties to the judgment, debt, interests and costs, and the credits to which the judgment is subject, as required in an execution; and command the officer to arrest the party against whom the judgment was rendered, and deliver him to the jailor of the county, to be confined When and how in jail until lawfully discharged. It shall be returnable whenever executed, or, if not previously executed, in sixty days from its date; and shall be executed according to the command thereof.

Order and execution directed to same officer. What must be stated in order.

executed and

returned.

Bond to be

filed before

issued.

158. But the order mentioned in the one hundred and order of arrest fifty-sixth section shall not be issued until a bond, signed by one or more sufficient parties, to be approved by the justice, in a penalty at least double the sum claimed in the affidavit, but in no case less than one hundred dollars, is filed with the justice, with condition to pay the person to be arrested all damages he may sustain by such arrest and

imprisonment, if it should thereafter appear that the order was issued without sufficient cause therefor.

authority for

ceive and

159. A copy of the order, either in the case mentioned What sufficient in the one hundred and fifty-fifth or one hundred and fifty- jallor to resixth section, signed by the justice, or the officer having imprison person the prisoner in custody, shall be sufficient to require the arrested. jailor to receive and keep such prisoner in jail until discharged according to law.

detained in

160. The prisoner committed as aforesaid, unless sooner Prisoner, how discharged, as provided for in the forty-first section of this long to be chapter or otherwise, shall be kept in jail for ten days, jail. and one day in addition for every ten dollars over twenty dollars due on the said judgment at the commencement of his imprisonment, including interest and costs; and at the expiration of the said time shall be discharged by the when jailor to jailor, without further order.

discharge him.

he may be

justice.

161. He shall be discharged by order of the justice at When and how any time, upon his paying to the said justice, or to the discharged by party entitled thereto, the whole amount due on the judg- order of the ment, together with the costs of his arrest and imprisonment; or surrendering property sufficient to satisfy the same, to such officer as the justice may direct to receive and sell the said property; or by filing with the justice a bond, with good security, to be approved by him, to pay the judgment and costs aforesaid, within sixty days. If Force and effect such bond be not paid when due, it shall have the force if not paid and effect of a judgment from that date against the ob- when due. ligors therein, and execution may be awarded thereon by the justice, upon five days' notice to the obligors, or their personal representatives. If property be so surrendered, Sale of propit shall be sold and applied as if levied on under an execu- rendered. tion.

of such bond

erty sur

fees, etc., in

162. The party at whose instance any person is commit- Who liable to ted as aforesaid, shall be liable to the jailor for his fees jailor for his and the support of the prisoner, and the jailor may at any such cases. time, after reasonable notice to such party, discharge the not paid, jailor prisoner if such fees and support be not paid.

Appeals.

lf fees, etc.,

may discharge prisoner, after notice.

163. In all cases an appeal shall lie, under the regula- Appeals from lations herein prescribed, from the judgment of a justice of justices; in judgments to the circuit court of the county, when the amount in what cases lie. controversy on the trial before the justice exceeds fifteen dollars, exclusive of interest and costs, or the case involves the freedom of a person, the validity of a law or of an ordinance of any corporation, or the right of a corporation to levy tolls or taxes.

164. The appeal shall not be granted by the justice, un- How and when less within ten days after the judgment is rendered or re- by justice, etc. appeal granted

Bond.

When bond may be dispensed with and appeal granted.

One of two or more plaintiffs, etc., may appeal, etc.

After appeal granted, proceedings stayed,

etc.

Outstanding executions, etc.,

to be recalled, etc., and party discharged.

Within what

time justice to clerk of court; what to be re

return case to

turned.

vived, bond, with good security, to be approved by the justice in a penalty double the amount of the judgment, is filed with him, with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him by the circuit court on such appeal, or if he does not wish to stay the execution on such judgment, with condition to pay the costs on such appeal if the judgment appealed from be affirmed.

165. But if the appeal be applied for on behalf of a district, town, village, county court of a county, or board of education, in their corporate capacity, or fiduciary, it shall be granted without such bond.

166. When there are two or more plaintiffs or defendants, any one or more of them may appeal, without joining therein the others on the same side.

167. After the appeal is granted, if the bond first mentioned in section one hundred and sixty-four has been given, or if the appeal be allowed under section one hundred and sixty-five, all further proceedings on the judgment of the justice shall cease, and if any execution, order of arrest or other process or order be outstanding, it shall be recalled by the justice, and if the appellant be in custody he shall be discharged.

168. The justice shall, within twenty days from the day on which the appeal is perfected, make out and certify a complete transcript from his docket of all the proceedings before him in the action, and deliver or transmit the same, together with the said bond, the pleadings, the depositions, and all original papers in the cause, to the clerk of the Fine on justice circuit court of the county. If the justice omit or refuse to do so, he shall be fined not less than five nor more than one hundred dollars; and, moreover, shall, with the sureties on his official bond, be liable to the party aggrieved for any loss or damage ho may sustain thereby.

for failure to

return.

His liability,

etc., to party for damages,

etc.

Clerk on reciv

etc., to file same and docket appeal.

Appeal tried upon what pleadings.

Amendment of: pleadings.

169. The clerk of the circuit court, on receiving the said ing transcript, transcript and papers, shall file the same and docket the appeal. The appeal may be tried upon the pleadings made up in the justice's court, or the pleadings may be amended before or during the trial of the appeal, when substantial justice will be promoted by the amendment. If the amendment be made during the trial of the appeal, and it be made to appear to the satisfaction of the court that a continuance of the cause is necessary in consequence of such amendment, a continuance shall be granted, and the court may in its discretion require the party making the amendment to pay the costs of the conIf made during tinuance. If the sum in controversy exceeds twenty dollars and either party so require, a jury of six

trial; what

then.

cause, when it may Trial by jury;

etc.

dence to be

justices or not.

shall be selected and impaneled to try the in like manner as other juries are selected and im- be demanded. paneled in said court. All lawful evidence produced in How selected, relation to the matter in difference between the parties All lawful evishall be heard, whether such evidence was produced before heard whether the justice or not, and the cause shall be determined with- produced before out reference to the judgment of the justice, on the prin- How case to be ciples of law and equity: Provided, No appeal shall be determined. tried as aforesaid, on motion of the appellant, within when appeilant less than three months from the time the transcript and may try case. papers are filed with the clerk of the circuit court, unless the appellee, his agent or attorney, be present at the time of application for the appeal, or ten days' notice of the trial has been given to the appellee, his agent or attorney.

Provisio as to

required.

170. If the court, in any case, be of opinion that the New bond; bond filed is insufficient, or the security doubtful, it shall when it may be order a new bond in proper form and with good security to be given within a time specified in such order, and if it be not given, or good cause shown why it was not, the If not given; same judgment which was rendered by the justice, what then. with the costs of the appeal, shall be entered in the circuit court, without further trial, against the appellant and those who signed the bond, it it be such bond as is first named in section one hundred and sixty-four, and judg ment against the appellant and sureties for the costs of the appeal if it be not such bond.

increase or di

costs, etc.

171. If, upon the trial in the circuit court, the appellant what amount do not increase the original judgment if it was in his favor, appellant must or reduce it if it was against him, more than five dollars, minish judg exclusive of interest and costs, the appellant, and those who ment to recover signed the bond, shall pay the costs of the appeal, except Excepted cases. in cases involving the title to specific personal property, or the possession of real estate, the freedom of a person, the validity of a law or an ordinance of any corporation, or the right of any corporation to levy tolls or taxes. In such cases, costs shall be awarded as the court deems right. Provided, That the appellant shall in no case recover costs Proviso, if where the original judgment against him is reduced more amount against than five dollars, unless before such appeal is tried, he shall duced more have tendered the appellee an amount equal to or greater lars, etc., unless, than the judgment recovered by him on the trial of such etc. appeal, together with all costs that may have accrued up to the time of such tender.

appellant be re

than five dol

rendered against

due, etc., with

172. When the judgment appealed from is against the In what cases appellant for any sum of money, and an equal or greater judgment to be sum is found due by the appellant, judgment shall be appellant for rendered by the circuit court against the appellant and aggregate amt. those who signed the bond first named in section one ten per cent hundred and sixty-four, if such bond be given, for the sum due, including interest and costs up to the time the appeal was taken, with damages on the aggregate at the rate

12 Acts

damages etc.

be for costs

of ten per cent. per annum, until payment, and the costs If appeal bond of the appeal; but if the appeal bond be for the payment of only; what then. Costs only, judgment shall be given against the appellant and those who signed the bond for the costs of the appeal.

What orders

may be made

ing appeal; cause not remanded to justice.

173. In all cases of appeal from a justice to a circuit by court pend- court, the court (subject to the foregoing rules, when they are applicable), shall make any order during the progress of the cause, which the principles of law or equity may require; and shall render judgment as the right shall appear, and proceed to enforce the same as other judgments of the court are enforced, without remanding the cause again to the justice. The judgment in the circuit court, if in favor of the appellee, shall be against the appellant and those who signed the bond. Upon the trial of the appeal, the amount due, if any, from one party to the other, shall What amount be ascertained, and judgment rendered therefor, in the manner required by the one hundred and fourteenth section of this chapter.

Judgment against appellant to be against him and sureties in bond.

judgment to be entered for.

Appeals from justices; when granted by court or judge.

Bond in such cases.

When order to

be made and

certified to

justice by

court or judge granting appeal.

174. Appeals from the judgments of justices may be granted after the expiration of ten days, and within ninety days after date of judgment, by the circuit court in term time, or the judge thereof in vacation, when the party seeking the appeal (except as provided in the one hundred and sixty-fifth section), shall deliver to the court or judge a proper bond with sufficient security thereto, as hereinafter prescribed, and show by his own oath, or otherwise, good cause for his not having taken such appeal within the said ten days.

175. In such case, if the appeal be granted, and the bond given by the appellant be with condition that he will perform and satisfy any judgment which may be rendered against him by the circuit court on such appeal, the court or judge shall make and certify to the justice an order directing him to cease all further proceedings in the cause, and recall all executions and orders that may be outstanding for the enforcement of the judgment, and transmit, without delay, to the clerk of the said court a complete transcript from his docket of the proceedings in the action, together with all the original papers relating thereto, but if such bond be not given, the court or judge shall omit from such certificate so much thereof as directs the justice to recall all executions and orders outstanding for the enforcement of the judgment. Upon the receipt of such transcript and papers by the clerk, the cause shall be proceeded with in the circuit court, as in other cases of appeals from the judgments of justices. Appeals from the judgcases since 1880; ments of justices of the peace rendered since the first day of October, one thousand eight hundred and eighty, where the same have not already been taken, shall be allowed by the justice having possession of the docket of the justice who rendered such judgment, in like manner and with like

Duty of justice

on receiving the order.

Duty of clerk

on receipt of

papers in such

appeal.

Appeals from justices in

how allowed,

ete.