This section is from the book "Hill's Manual Of Social And Business Forms: A Guide To Correct Writing", by Thos. E. Hill. Also available from Amazon: Hill's Manual Of Social And Business Forms: The How-To-Do-Everything Book Of Victorian America.
Should the plaintiff fail to appear within the hour appointed, the jury, or the justice, alone, being in readiness to hear the trial, and no good reason being given for his non-attendance, the suit is dismissed, unless the defendant should desire to have the case tried then or at another time.
Should the defendant fail to appear, the justice will hear the case, and if the claim is proved, he will enter Judgment against the defendant for the amount which is due the plaintiff, and will issue an Execution for its collection.
A "Judgment" is simply the decision of the court that a certain demand or claim shall be paid, and no particular form is required in rendering it
An execution is a writ which authorizes an officer, to whom it is directed, to carry into effect the decision of the court. In some States the law permits the imprisonment of a debtor if he refuses to pay the claim against him, and an execution can be issued directing the proper officer to imprison the delinquent until the claim is satisfied. It is more common, however, to issue an execution authorizing an officer to levy upon personal property of the debtor, and a judgment being rendered by the justice against a party, the next step usually taken is to issue an execution for the collection of the amount due.
If the plaintiff is satisfied that the debt will be lost unless execution issue immediately, he may take oath to that effect, and the justice will issue an execution authorizing an officer to make levy upon goods at once, but sale of the same usually will not take place under twenty days.
If no fear of losing the debt is expressed, execution will issue, generally, in about twenty days from the time judgment was rendered, and the officer usually has about seventy days to make a levy and sell the property to satisfy said execution.
The People of the State of--------to any Constable of said County-
Greeting: We command you, that of the goods and chattels of A. B. in your county, you make the sum of--------dollars and--------cents, judgment, and--------dollars and--------cents, costs, which C. D. lately recovered before me in a certain plea against the said A. B., and hereof make return to me within seventy days from this date.
Given under my hand this--------day of--------, 18-.
JOHN DOE, J. P.
When the Writ of Execution against personal property is placed in his hands, it is the duty of the constable to make a levy upon and sell such personal property as he can find sufficient to satisfy the debt, which is not exempted from sale by law, giving ten days' previous notice of such sale by advertisement in writing to be posted up at three of the most public places in the vicinity where the sale is to be made, and or the day appointed for the sale, the constable sells to the highest bidder the property levied upon, or as much of the same as may be necessary to pay the judgment, interest and costs.
Of course discretion must be used by the constable in selecting property not exempted from sale, and not already attached or covered by chattel mortgage; and when covered by the latter, whether it will sell for enough to pay both claims.
If a creditor, his agent or attorney, has good reason to believe that there is danger of losing his claim, because the debtor is a non resident of the State, or conceals himself, in defiance of an officer, so that process cannot be served upon him, or has departed from the State with the intention of removing his goods from the State, or has fraudulently conveyed or assigned his effects so as to hinder or delay his creditors, or is about to do so, he can go before a justice of the peace and make affidavit setting forth the nature and amount of the indebtedness, after allowing all just credits and set-offs, for any one or more of the causes mentioned. He will also state the place of residence of defendant, if known, and file a bond with said justice in double the amount sworn to be due, with sufficient security, payable to defendant, against whom the writ is issued, conditioned for satisfying all costs and damages awarded to such defendant, for wrongfully suing out said attachment.
That being done, the justice will issue a Writ of Attachment, which authorizes the constable in whose hands it is placed to proceed at once to the residence or place of business of the debtor, or elsewhere where he may have goods and effects within the jurisdiction of the court, and immediately take possession of a sufficient amount of personal property with which to pay the claim and all costs; provided, however, if at the residence of the debtor he is allowed to enter. Should the debtor be present when the constable has got possession, he will read the writ to him, the time being specified in the same when his trial will take place. In the meantime the constable or officer will take possession of the goods by removing them or putting them in charge of some person until the day of the trial. If the goods are being removed to another county, he can, in most States, follow and take them there.
At the trial, if it is proven that the debtor had no intention of leaving or refusing to pay his just due, and any damage has been done by the seizure of the property, the creditor will be held responsible for such damage. If the defendant or his representative does not put in an appearance, after having been notified, the justice, at the day appointed, which is usually within a month from the time the attachment was issued, will hear the case, and if the claim be proved, will render judgment accordingly, and order a sale of the necessary amount of goods to pay the debt and all costs.
Where an attachment has been issued against a defendant and the constable returns no property found, and yet the plaintiff is satisfied that the defendant has property concealed, removed or assigned with intent to defraud his creditors, and that there is danger of losing his claim unless the debtor is held to bail, it is common in several States for the justice to issue a Capias for the arrest of the debtor, the form of which is as follows: