must insert therein the names of all the parties to each judgment, and the page of the book, where the judg ment is entered.

Id., 251.

§ 3143. Papers to be filed. - A justice of the peace must carefully file and preserve each affidavit or other paper, delivered to him to be filed in an action or special proceeding.

1d., 250.

3144. Deposit of books and papers with town or city clerk.-If a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit, with the clerk of that town or city, his docket-book, and all other books and papers, in his custody, relating to an action or a special proceeding, which has been heard by him, or commenced before him. A justice who is removed from office, must make a like deposit, within ten days after receiving notice of his removal, or afterwards, upon the demand of the clerk of the town or city. But the omission of the justice to make the deposit, does not affect the validity of any book or paper, so required to be deposited, or of any proceeding to which it relates.

Id., 252 and 253.

§ 3145. Certificate in docket-book deposited. -A justice of the peace must make, in each docketbook deposited by him, as prescibed in the last section, a certificate under his hand, to the effect that each judgment or order, entered therein, was duly rendered or made. as therein stated; and that the sum, appearing by the book to be due thereupon, has not been paid, to his knowledge.

Id., § 254.

§ 3146. Town or city clerk to demand books, etc., upon death, etc., of justice.-If a justice of the peace dies, or his office becomes otherwise vacant, the town or city clerk must demand and receive all books and papers, which belonged to the justice in his official capacity, from any person having them in his possession.

Id., § 255.

§ 3147. Delivery; how compelled.—If any book or paper, required to be deposited with the town or city clerk, as prescribed in this title, is withheld, the like proceedings may be had, at the instance of the town or city clerk, to compel the deposit thereof, as are pre. scribed by law, where an officer refuses or neglects to deliver a book or paper in his custody as such officer, to his successor in office.

Id., 256.

§ 3148. Entries to be evidence.-An entry made, as prescribed by law, in the docket-book kept by a justice of the peace, and deposited with the town or city clerk, as prescribed in this title, is presumptive evidence of the matters of fact stated therein; but the presumption may be repelled by proof.

Id., ? 257.

3149. Justice to furnish copies of papers.-A jus tice of the peace must furnish, upon request and pay. ment of his fees, to any person interested in a judg ment or order entered by him, a transcript of the judg ment or order, together with a copy of all the entries In his docket-book, relating to the cause; a copy of his minutes of the evidence in the cause, or the substance of the testimony, if he has not taken minutes; and a copy of any paper on file in the cause; or such portions thereof as are required.

L. 1841, ch. 141, 1 (4 Edm. 546).

3150. Transfer of action when justice's term expires, etc. If the term of office of a justice of the peace is about to expire, or he is about to remove from the town or city, before judgment is rendered in an ac tion, or a final order is made in a special proceeding, pending before him, he must previously make a written order, reciting the fact, and directing the action or special proceeding to be continued before another jus tice of the same town or city, named in the order.

New.

3151. Id.; when justice is a witness. If, before an issue of fact is joined in an action or special proceed ing, the defendant, or, where he has not been arrested, his attorney, presents to the justice satisfactory proof,

by affidavit, that the justice, before whom the action or special proceeding is pending, is a material witness for the defendant, without whose testimony he cannot safely proceed to trial, setting forth therein the particu lar facts and circumstances, which he expects to prove by him; the justice must forthwith make a written order, directing the action or special proceeding to be continued before another justice of the same town or city, named in the order.

See 2 R. S. 229, 821 (2 Edm. 245); also, id., 118, amended, L. 1838, ch. 243; L. 1875, ch. 334; Board of Comm. v. Doherty, 16 How. 46; Young v. Scott, 3 Hill, 23; Brown v. Brown, 2 E. D. S. 153; Hopkins v. Cabrey, 24 Wend. 264; Vandeveer v. Stanton, 1 Cow. 84; Murtha v. Walters, 2 Sandf. 517

3152. Proceedings upon transfer.-Where an order is made, as prescribed in either of the last two sections, the constable must forthwith take it and all other papers in the action, with the body of the defendant, if he is under arrest, before the justice named in the order. The plaintiff or petitioner must forth with appear before that justice, who must take cognizance of the action or special proceeding, and must proceed therein as if it had been commenced before him. Costs, recovered in the action or special proceeding, include the fees allowed by law, for services performed by the constable and the justice, before the transfer, together with the fees allowed by law, for the proceedings before the justice to whom the cause is transferred.

See note to last section. Hopkins v. Cabrey, 24 Wend. 264; Young v. Scott, 3 Hill, 32.

3153. Penalty for not paying over money.- A justice of the peace, who neglects or refuses, within a reasonable time after demand, to pay any money, collected by him in his official capacity, to the person entitled thereto, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as

a forfeiture of his office.

Section 259 of R. S.

3154. Action on judgment of justice.—In an action upon a judgment of a justice of the peace, brought in the county wherein it was rendered, within five years after the rendition thereof, against a defendant upon whom the summons was personally served, no costs can be recovered, except where the justice, who rendered

the judgment, is dead, or out of office, or otherwise in. capable of acting; or has removed from the county; or where one of the parties has died; or where the docket of the judgment has been lost or destroyed.

Code of Proc., 71, last clause.

3155. Id.; proof of judgment, etc. In an action brought upon a judgment of a justice of the peace, who is dead, or out of office, or otherwise incapable of acting; or has removed from the county; or cannot be found therein; the original docket-book of the justice is presumptive evidence of any matter entered therein, as prescribed by law; but the presumption may be repelled by proof. If the docket-book is lost or destroyed, or if it cannot be produced, after reasonable effort to obtain it, the like proof may be given, respecting the recovery of the judgment, as upon any other question

of fact.

Sections 265 and 267, R. S.

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§3156. Execution of mandate by private person. A justice of the peace, who issues any mandate, authorized by this chapter, except a venire, may, at the request of the party, whenever he deems it expedient so to do, empower, by a written authority indorsed upon the mandate, any proper person of full age, not a party to the action, to serve or otherwise execute it. For that purpose the person so empowered has all the power and authority, and is subject to all the obligations and liabilities, of a constable; and his return is evidence in like manner as a constable's. But a person so empowered is not entitled to any fee or reward for his services. See ante, § 2885.

Sections 271 and 272, R. S. Jackson v. Sherwood, 50 Barb. 356.

$3157. Constable to execute mandates in person. A constable, to whom a mandate is directed and deliv. ered as prescribed in this chapter, must execute it in person, pursuant to the tenor thereof. He cannot act by deputy in such a case. See ante, § 2885.

Id., 273.

3158. Sheriff to act where execution of mandate is resisted. If a constable, to whom a mandate, issued by a justice of the peace, is directed and delivered, finds, or has reason to apprehend, that resistance will be made

to the execution thereof, he may deliver it to the sheriff of the county, with a written certificate, stating the facts, and requiring the sheriff to execute it. There upon the sheriff must execute the mandate; and he is subject to all the liabilities attaching to a constable in executing it. Sections 104, 105, and 106 of this act apply to a mandate delivered to a sheriff, as prescribed in this section.

New; see, also, ¿ 104-106, ante.