DEPOSITION IN PERPETUAM.

22. Form of statement.

To J. S. H., esquire, a justice of the peace and of the quorum within and for the county of -:

W. A. S., of, in the county of -, respectfully makes the following statement [here set forth his title, or interest, or claim, &c.]: That J. S. and J. D. are the only persons known to be interested therein; and that he is desirous of examining A. B. and C. D. as witnesses in relation to the matter aforesaid. Wherefore said W. A. S. requests you, the said justice, to take the deposition of A. B. and C. D.; to be preserved in perpetual remembrance of the thing, to fix time and place therefor, and to notify said J. S. and J.D. thereof, and take such other measures as the law in such cases may require. Dated, &c.

me.

STATE OF MAINE.

W. A. S.

[Name of county], ss., [date]. Subscribed and sworn to before J. S. H., Justice of the Peace.

23. Notice to persons interested.

[Name of county], ss. To J. S. and J. D., of

in the county of -.

GREETING.

Whereas, W. A. S., of, &c., has made to me the following statement [here set out the statement], and has required that the deposition of A. B. and C. D. may be taken in perpetual remembrance of the thing, and the office of -, in ; in said county, and the day of, are the place and time appointed therefor, you are hereby notified to be present and put such questions as you see fit.

Dated this

day of, A. D. 187-.

J. S. H., Justice of the Peace and Quorum.

Service as in No. 16.

24. Certificate of caption.

[Name of county], ss. On this day of A. D., personally appeared before me, the within-named, at the office of, in , in said county, and being first sworn according to law before me, then gave the foregoing deposition, which was written by me for the deponent, or Z. Y., a disinterested person in my presence and under my direction]. Said deposition was taken at the request of, to be in perpetual remembrance of the thing. J. S. and J. D. were duly notified to attend, and did (or did not) attend. J. S. H., Justice of the Peace and Quorum.

CHAPTER XV.

JUDGMENT, COSTS, APPEAL, AND EXECUTION.

1. If any person duly served with process does not appear and answer thereto, his default shall be recorded, and the charge in the declaration taken to be true; and on such default, and when the action is, on trial, maintained, the justice shall enter judgment for such sum, not exceeding twenty dollars, as he finds due to the plaintiff, with costs, and issue execution.1

2. If the plaintiff fails to enter and prosecute his action, or if, on trial, he does not maintain his action, the defendant shall recover judgment for his costs, to be taxed by the justice; and execution shall issue therefor.2

3. Every trial justice shall keep a fair record of his proceedings; and if he dies after giving judgment in a cause, and before it is satisfied, any other justice of the county may, on complaint of the creditor, issue a summons to the person in whose possession the record of such judgment is, directing him to produce and deliver it to him; and if he contemptuously refuses to produce it, or to be examined respecting it on oath, the justice may commit him to prison, as punishment for the contempt, to be detained until he submits to such examination, and produces the record; and when the record is so delivered to him, he shall transcribe it upon his own book of records, and return the original to the person who produced it; and a copy thereof, attested by the transcribing justice, or otherwise proved, shall be legal evidence in all cases where an authenticated copy of the original might be received. 3

4. On such transcribed record, the justice may issue execution, as if the judgment was rendered by himself, changing the form as the case requires; but no such first execution shall issue after one year from the time the judgment was rendered, unless on scire-facias.*

1 R. S. c. 83, § 15.—2 R. S. c. 83, § 16.— R. S. c. 83, § 24.-4 R. S. c. 83, § 25.

5. Every justice, who removes from the State, shall first deposit with the clerk of the judicial courts in the county for which he was commissioned, all his official records and papers; and the executor or administrator of a deceased justice shall so deposit all the deceased's official records and papers that come into his hands; and if either neglects to do so, he shall forfeit one hundred dollars. The clerk shall receive and safely keep such records and papers, and may grant certified copies thereof, which shall be as good evidence as if certified by the justice.5

6. If any justice dies or removes from the State, without recording and signing any judgment by him rendered in an action before him, and his docket, original writ, and papers pertaining thereto, and execution if any issued, are so deposited in the office of the clerk, he shall, on payment of usual fees, make out and certify copies of all the papers in such cause, and all facts appearing in such docket; and such copies shall be legal evidence. But if such records have not been deposited with the clerk, the plaintiff in any action may use, in place of such certified copy, an execution issued on such judgment by the justice, with an affidavit thereon made by the plaintiff or his attorney, that it is not satisfied, or satisfied in part only, as the case may be.

APPEAL.

7. Any party aggrieved by the judgment of the justice, may appeal to the next supreme judicial court in the same county, and may enter such appeal at any time within twenty-four hours, Sunday not included, after the judg ment; and in that case no execution shall issue, and the case shall be entered and determined in the supreme judicial court."

(a) An appeal lies only from a final judgment, and not from an interlocutory judgment as a judgment to answer over on a plea in abatement.8

7a. In actions in a municipal or police court, or before a trial justice, either party, after appearing and filing his pleadings, may waive a trial and give the adverse party judgment, and then appeal the same as if there had been an actual trial.9

R. S. c. 83, § 26. R. S. c. 83, § 27.--7 R. S. c. 83, § 17.-8 Waterville v. Howard, 30 Me. 183. Public Laws of 1872, c. 81, § 1.

8. Before such appeal is allowed, the appellant shall recognize with sufficient surety or sureties to the adverse party, if required by him, in a reasonable sum, with condition to prosecute his appeal with effect, and pay all costs arising after the appeal.11

(c) In an appeal from a judgment of a trial justice, the appellant should recognize to prosecute, even if the opposite party waive his right to sureties.12

(d) If the recognizance contain any condition not required by the foregoing section, such as requiring the appellant to personally "appear," ,"13 &c., or to "pay all intervening damages and costs," the appeal will be void.

9. The appellant shall, at the appellate court, produce a copy of the record, and of all the papers filed in the cause, except depositions or other written evidence or documents, the originals of which shall be produced; and if he fails to produce such papers, and enter and prosecute his action, the court, on complaint of the adverse party, may affirm the former judgment with costs.15

(e) The original recognizance, and not a copy, taken before a trial justice on an appeal from his judgment, must be produced at the appellate court, nor is a copy admissible to contradict the original or show it defective.16

10. In cases carried from a trial justice, municipal or police court, to a higher court, depositions and original papers, except the process by which the suit was commenced, the return of service thereon, and the pleadings, shall be certified by the proper officer, and carried up without leaving copies, unless otherwise ordered by the court having original cognizance.16a

11. When an appeal is taken from a judgment of a trial justice, or municipal or police court, and the action by mistake or accident is not duly entered, and the judgment has not been affirmed, the court may, on petition of either party, allow the action or complaint to be entered at another term of the court, upon such terms as are deemed reasonable, and, if entered, the court shall proceed thereon as if entered at the proper term.166

12. Such petition must be presented to the court, or

11 R. S. c. 83, § 18.-12 Bennett v. Green, 46 Me. 499.-13 French v. Snell, 37 Me. 100.-14 Lane v. Crosby, 42 Me. 327.-15 R. S. c. 83, § 19.-16 Stetson v. Corinna, 44 Me. 29.-16a R. S. c. 82, § 8.-166 R. S. c. 82, § $ 6.

filed in the clerk's office within one year after the term at which the action ought to have been entered; and no attachment or bail shall be revived or continued by such proceedings. 16c

(f) A valid appeal vacates the judgment appealed from;17 and the judgment of the appellate court will be conclusive until reversed, although the appeal was improperly taken and prosecuted.18

COSTS.

13. In all actions, the party prevailing shall recover costs, unless otherwise specially provided. If after a verdict returned by a jury the party in whose favor the jury found shall carry the case into the law court and the decision there shall be against him, he shall recover no costs subsequent to the verdict, but the party prevailing in the law court shall recover costs accruing after verdict.19

(g) Upon a defendant's complaint for costs, when the action against him has not been entered, he is bound to prove that the writ was served upon him; otherwise costs will be allowed against him.2)

(h) Where an action is entered at the proper term, and the defendant enters his appearance by attorney, he is entitled to. costs, and this right cannot be taken away by ordering a misentry.21

(i) Although the trial of an action before a magistrate is a nullity, for want of jurisdiction, and on appeal the action is dismissed, the prevailing party is entitled to costs, for the travel and attendance of his witnesses.

22

(j) In assumpsit against two defendants, one was defaulted by consent, his counsel withdrawing his appearance. Subsequently, the court, finding that the promise was not joint, permitted the plaintiff to discontinue as to the defaulted defendant, who thereupon claimed costs, and it was held he was entitled thereto as the prevailing party.24

14. When a plaintiff appeals from a judgment of a municipal or police court, or trial justice in his favor, and does not recover, in the appellate court, a greater sum as damages, he shall recover a quarter of the sum last recovered for costs.25

16c R. S. c. 82, 7.-17 Atkins v. Wyman, 45 Me. 399; Tarbox v. Fisher, 50 Me. 236; Hunter v. Cole, 49 Me. 556.-18 Atkins v. Wyman, supra.-19 R. S. c. 82, § 104, as amended by Pub. Laws of 1871, c. 206, § 1.-20 Hodge v. Swasey, 30 Me. 162.-21 Whitney v. Brown, 30 Me. 557.-22 Call v. Mitchell, 39 Me. 465.-23 Brown v. Allen, 54 Me. 433.-24 Fuller v. Miller, 58 Me. 40.-25 R. S. c. 82, § 105.