justice before whom the same is pending is a material witness for said defendant, without whose testimony he cannot safely proceed to a trial thereof; or that from prejudice, bias or other cause, he believes such justice will not decide impartially in the matter; or if the justice is near of kin to the plaintiff, then in such case the said justice shall transfer said suit and all other papers appertaining to the same to some other justice of the same or adjoining precinct, who may thereupon proceed to hear and determine the same in the same manner as it would have been lawful for the justice to have done before whom the said cause or proceeding was commenced.

Costs

SEC. 100. When a change of place of trial shall be ordered upon the application of the plaintiff, all costs up to the certificate of the justice transferring the cause, shall be Certificate. paid before a transfer of the papers shall be made; and if such order be made upon the application of the defendant, he shall pay one dollar and fifty cents, justice cost, for making his certificate, and the costs made by the plaintiff shall abide the result of the trial, and when collected before the justice to whom the case is transferred, shall be paid by him to the justice from whom the cause was removed. Provided, That this act shall in no wise change the liability Proviso. of parties to the justice or constable for official services rendered at their request.

Order of transfor.

SEC. 101. When an order of transfer shall be made, the justice making it shall name the day, hour of the day and justice, when and before whom the parties shall appear for trial, unless the parties shall agree to a time, in which case the justice shall fix the time agreed upon, and name the fact of agreement in his order of transfer. When the defendant is under arrest, a reasonable amount of bail shall be fixed by the justice for the appearance of the defendant before the proper justice, and if such bail be not given, the defendant Bail shall be ordered committed, and the time fixed for trial shall be as soon thereafter as the nature of the case will allow. SEC. 102. The justice shall seal up in a package all the

Arrest

Committal.

transferred.

Papers how papers to be transferred, and may deliver them to any person agreed upon by the parties or their agents, or if no agreement shall be made, he may appoint some discreet person not interested in the proceedings or of kin to the parties, or to take and deliver the same in person, and the fees for such delivery by any person shall be one dollar and fifty cents, to be taxed in the costs of the case, and it shall be the duty of the person having in charge such papers to deliver the same before the time fixed for the trial under a penalty of twentyfive dollars, in case of failure.

Pers.

Penalty.

One change only.

Public notice of sale.

SEC. 103. In no case shall there be more than one change of place of trial allowed.

TITLE XVI.

Sale of property on execution.

SEC. 104. The officer having levied upon goods and chattels by virtue of an execution, shall without delay give public notice by at least three advertisements put up at three public places in the precinct where the property is to be sold, of the time, and place, when and where, the same shall be exposed for sale. Such notice shall describe the goods and Ten days' no chattels taken, and shall be put up at least ten days before the day of sale.

tice.

Public vendue.

Adjournment

of sale.

Officer forbid

SEC. 105. At the time so appointed, the officer shall expose the goods and chattels to sale at public vendue and sell to the highest bidder. In case there are no bidders, or if but a single bid be made, the sale shall be adjourned from time to time until a fair sale can be had. The officer shall in all cases return the execution and have the money before the justice at the time of making such return.

SEC. 106. No officer shall directly or indirectly purden to purchase. chase any goods and chattels at any sale made by him upon execution; but every such sale shall be absolutely void.

Replevin.

Jurisdiction.

TITLE XVII.

Replevin.

SEC. 107. Justices of the peace shall have jurisdiction of actions for the recovery of specific personal property not

exceeding one hundred dollars in value, as herein provided. SEC. 108. An action for this purpose shall not be brought until there is filed in the office of the justice an affidavit of the plaintiff, his agent or attorney, showing:

First, A description of the property claimed.

Secmd, That the plaintiff is the owner thereof, or has a special ownership therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property.

Third, That the property is wrongfully detained by the defendant.

Fourth, That it was not taken in execution on any order or judgment against said plaintiff, (or if so taken on execution, that it is by statute exempt from seizure,) or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this act or any other mesne or final process issued against said plaintiff; and,

Fifth, The actual value of the property. When several articles are claimed, the value of each article shall be stated as nearly as practicable.

Affidavit, what to contain.

Summons, how

SEC. 109. Upon such affidavit being executed and filed with the justice, he shall issue a summons as in other issued. cases, but with a clause therein commanding the constable immediately to sieze and take into his custody, wherever they may be found in the county, the goods and chattels mentioned in the affidavit.

SEC. 110. The constable shall execute the writ by taking the property therein mentioned, he shall also deliver a copy of the summons to the persons charged with the unlawful detention of property, or leave such a copy at his usual place of residence or business, and shall make return of the time and manner of service, and of any undertaking taken by him.

How executed.

Return.

Undertaking

SEC. 111. If, within five days after service of the copy of the summons, there is executed, by one or more sufficient within five days sureties of the plaintiff to be approved by the constable, an

Costs

Sufficiency of

sureties.

undertaking to the defendant, in not less than double the amount of the value of the property as stated in the affidavit of the plaintiff, to the effect that the plaintiff will deliver the property to the defendant if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, the constable shall deliver property to the plaintiff. If such undertaking be not given within five days after the taking possession of the property, the constable shall: deliver the property to the defendant and the plaintiff or the party making the affidavit shall be liable for all costs made in taking such property, and if not then paid, judgment shall go against him for such costs which may be collected" like any other judgment.

SEC. 112. The defendant may, within twenty-four hours from the time the undertaking mentioned in the preceding section is given by plaintiff, give notice to the constable that he excepts to the sufficiency of the sureties. If he fails to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice, as bail on arrest. The constable Reality shall be responsible for the sufficiency of the sureties until the objection to them is waived, as above provided for until. they justify.

Responsibility

of constable.

ue.

Affidavit of val

Jury when to.

SEC. 113. The affidavit of the plaintiff as to the value of the property, shall fix the jurisdiction of the justice so far as such value is concerned; but the value of the property shall not be assessed against the defendant at a greater amount than that sworn to by the plaintiff in his

affidavit.

SEC. 114. If the property has been delivered to the be impannelled. plaintiff, and he fails to prosecute his action to final judg

ment, the justice shall, upon the application of the defendant or his attorney impannel a jury to inquire into the right of property, and the right of possession of the defendant to the property taken. If the jury shall be satisfied that the said property was the property of the defendant at the commencement of the action, or if the said jury be satisfied.

that the defendant was entitled to the possession at such time, they shall find accordingly, and shall further find the value of such property, or the value of the possession thereof, and any damages for withholding the same as may be just and proper.

SEC. 115. In all cases when the property has been delivered to the plaintiff, when the jury shall find for the defendant they shall also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit, and, if they find either in his favor, they shall also find the value of the property, or the alue of the possession, and such damages for withholding said property as may be just and proper.

Verdict of jury

Judgment how

SEC. 116. The judgment in the cases mentioned in the two preceding sections, shall be for the return of the property, rendered. or the value thereof, or the value of the possession of the same, in case a return cannot be had, and the costs of the suit.

SEC. 117. In all cases where property has been delivered to the plaintiff, where the jury shall find for the plaintiff on the trial, or on inquiry concerning damages, they shall assess adequate damages to the plaintiff for the illegal detention of the property, for which, with costs of suit, the justice shall render judgment against the defendant.

Assessment of damages.

When property

SEC. 118. When the property claimed has not been taken, the action may proceed as one for damages only, and not taken. the plaintiff shall be entitled to such damages as may be right and proper.

When consta

open buildings.

SEC. 119. The constable, in executing the writ, may break open any building or inclosure in which the property ble may break claimed, or any part thereof is concealed, but not until he has been refused an entrance into such building or inclosure, and the delivery of the property after having demanded the same.

Concealment of

SEC. 120. Whenever it shall be made to appear to the satisfaction of the justice, by the affidavit of the plaintiff, or Property. otherwise, that the defendant, or any other person, knowingly