Justices authorized to collect and receive monies.

Justices of the peace, being duly qualified according to law are authorized and empowered, and it is hereby made their duty, to receive money on all notes and demands, which may have been placed in their hands for suit or collection, and also upon judgments rendered by them prior to the issuing of execution thereon. General Laws, 1484.

elected and qualified, according to law. Of made, to seek out the party to whom the this fact the certificate of the county clerk | books, etc., are to be delivered. The person under his hand and official seal is prima making the demand is not required to seek facie evidence, since the county clerk is the out the ex-justice at the end of the ten days official custodian of the documents, which and make another demand, before bringing show the election and qualification of justi- suit. ces of the peace in his county; secondly, a demand made, before suit is brought, by the successor in office or by some person duly authorized by him to make such demand, it should show that, at the time of making the demand, the county clerk's certificate of the successor's qualification was shown to the defendant, since without such certificate the defendant would have no official notice that the successor is entitled to the possession of the books and papers demanded; thirdly, that ten days have fully expired, since the day on which the demand was made. If the suit is commenced before the expiration of the ten days, it will be prematurely brought, and must be dimissed, since no right of action exists until the ten days have fully expired; thirdly, that the books and papers, which the defendant has refused or neglected to deliver, are books and papers pertaining to the office and business of the justice of the peace of the particular precinct, and such as the defendant is required by law to deliver to his successor in office. No evidence is required to show that the defendant was a justice of the peace, since the court takes judicial notice who are justices of the peace in its county.

The only questions which can be litigated by the defendant are the above. If either of them are not proved to the satisfaction of the court by a preponderance of the evidence, a judgment ought to be rendered in favor of defendant.

Under the foregoing section the justice of the peace is made a collecting officer, and authorized to receive notes and demands for for collection, without suit, as well as by suit, and the receipt of monies by him on such notes and demands will be an official act, for which the sureties are responsible on their bond. He is also authorized to receive in his official capacity monies on any judgment rendered by him, prior to the issuance of execution thereon, and for such monies his sureties are responsible. It frequently happens that the constable in whose hands an execution has been placed, upon collecting the amount, pays the same over to the justice who issued the execution, as he is authorized to do by 1452, Gen. Laws. The sureties are also liable for such monies, since the justice receives them by virtue of his office.

To maintain an action under this section, the plaintiff must prove: First, that he placed a note or demand in the hands of the justice, as a justice of the peace, for collection or suit; second, that the amount of such note or demand was within the jurisdiction of the It is held by the Supreme Court of Illinois justice; third, if the note or demand was for that an action will not lie under the above the purpose of suit thereon, that the resisection against a justice of the peace for fail-dence of the defendant was in such justice's ure to deliver monies in his hands belonging precinct, since the justice would not be justto plaintiffs in actions in his court, or which ified in issuing process, where the defendant have come into his hands by virtue of his was not a resident of his precinct; and fourth, office, to his successor in office. The succes-that the justice has received money upon sor in office is not entitled to the possession of such monies by virtue of being such successor, since it became the duty of the justice of the peace to pay the same over immediately to the person lawfully entitled to them. 18 1lls., 329.

The demand, provided for in the above section, must be made ten full days before the commencement of the action before the justice; after which action it becomes the duty of him, upon whom the demand is

such note or demand, or upon the judgment rendered in the suit, and has failed to pay it over to the person properly entitled to it. Where the amount of the note or demand, if simple, is in excess of the justice's jurisdiction, the presumption will be that the claim was placed in the justice's hands, not in his official capacity, but as an attorney or as a collecting agent for the party entrusting it to him. In such case, the justice's sureties would not be responsible for it. See Com

monwealth vs. Sommers, 3rd Bush, (Ky.), rado, in conformity with the requirement of $555. the Constititution.

Proceedings in case of failure of justices or constables to pay over money.

It seems also that, like all other cases of a civil nature, they must be commenced in the precinct of the defaulting justice or constable, or in some adjoining precinct, under the provisions of General Laws, 1582 and 1583.

Upon the failure of a justice of the peace or constable to pay over any money by him collected or received, as herein provided, to any person entitled to receive the same, his or her agent or attorney, such person may proceed against such justice or constable, in a summary way, either before the district court or some justice of the peace of the proper county, by motion, upon giving to such justice or constable five day's notice of the application and recover the amount so neglected or refused to be paid, with twenty per cent damages thereon for such detention and shall | STATE OF Colorado, have execution therefor. General Laws, 1565.

The five days notice required is governed by the same rule in computing time as in a summons, that is, the day on which the notice is served must be excluded from the five days, and five full days must elapse before the defendant is in default. The Notice.

The notice may be in form as follows:

County:

sum of

SS.

COUNTY.

To

Justice of in said

Take notice that, you having failed to pay over to me on demand (I being the person lawfully entitled to receive the same) the dollars, which you lately collected (or received) of suit (or collection), in favor of upon a demand, placed in your hands for and against

day of

-.9

I shall on the o'clock

at

M., make a motion before Esq., a Justice of the Peace of said County, for a judgement against you for said sum of

dollars and twenty per cent damages for the detention thereof pursuant to the statute, when and where you may appear and show cause, if any you have, why such judgment should not be rendered against you. A. B., Plaintiff.

A motion is defined in the Code: "Au ap- the Peace of Precinct No. plication for an order." As prior to the making of the motion, provided for by the foregoing section, there is no action pending in the court, in which the motion is made, against the defaulting justice or constable, it would seem proper that the motion be reduced to writing and filed in court in which the proceeding is commenced. An affidavit, stating the facts, ought also to be prepared and filed in support of the motion. This must be done in case the proceeding is commenced in the district court, as the latter is a court of record. After filing the motion and affidavit, the person who begins the proceeding, by himself or his attorney, serves a notice upon defaulting justice or constable, as in the form hereinafter given. The notice is in the form of a summons, requiring the defendant to appear and show cause, if any he have, why judgment shall not be entered against him in favor of the moving party, for the sum of money he has received and failed to pay over in his official capacity as a justice of the peace or constable. It must, therefore, like a sumnions, notify the defendant of the time and place, where the motion will be heard, as well as before what justice of the peace. The safer course will be to have If the amount demanded, and the addisuch summons served by some officer or in- tional twenty per cent damages, together exdifferent person, and proof of the services ceed three hundred dollars, a justice will made by the affidavit of such person making | have no jurisdiction to hear the motion. the service. A service by a constable or officer, not being an official act, the court would not be obliged to recognize an unsworn return.

As the notice is in the form of a process, it is questionable whether it should not run in the name of the People of the State of Colo-.

Dated

The notice is served in the same manner as a summons is requered by law to be served, and must be filed with the justice before the motion is heard. If, however, the delinquent officer enters his appearance, such return is waived.

(To be continued.)

ORLANDO S. BUMP, the author of works on Bankruptcy and Federal Procedure, died at Baltimore, Md., on January 20th.

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Presence of Defendant in a Criminal Prosecu-eighth ground of attachment in the Justice's tion.

The conditions of an accord agreement awake lawyer can afford to be without it. may be waived.

The Code provision as to making a bill of particulars more definite applies to appealsed, the said Plaintiff will apply to the court for the from Justices of the Peace.

WILLIAM O'TOOLE, Defendant.
THE PEOPLE OF THE STATE OF COLORADO SEND
GREETING:

To William O'Toole, defendant above named: You are hereby required to appear in an action brought against you by the above named plaintiff, in the County Court in and for the County of Arapahoe, in the State of Colorado, and to answer the complaint filed therein, within ten days, exclusive of the day of service, if served within this county; or if served out of this county, but in this Second Judicial District of the State of Colorado, within twenty days; otherwise within forty days; or judgment by default will be taken against you, according to the prayer of said complaint.

VS.

Summons.

CLINTON S. KIMES, Defendant.
THE PEOPLE OF THE STATE OF COLORADO SEND
GREETING:

To Clinton S. Kimes, defendant, above named: You are hereby required to appear in an action brought against you by the above named plaintiff in the County Court in and for the County of Arapahoe, in the State of Colorado, and to answer the complaint filed therein within ten days, exclusive of the day of service, if served within this county; or if served out of this county, but in this second judicial district, of the State of Colorado, within twenty days; otherwise within forty days; or judgment by default will be taken against you according to the prayer of said complaint.

The said action is brought to procure a decree of now existing between the plaintiff and defendant, on this County Court dissolving the bonds of matrimony the grounds that the defendant, being in good bodily health, has failed to make reasonable provision for the support of his family for the space of one year and more; that the defendant has been guilty of extreme cruelty toward plaintiff; that the defendant has departed from the State of Colorado without any intention of returning, and awarding to plaintiff the care, custody and control of Fred J. Kimes and Mabel Kimes, minor children, and issues of the marriage between plaintiff and defendant, as will more fully appear by the complaint on file herein, to which

reference is here made.

The said action is brought to procure a decree of this County Court, dissolving the bonds of matrimony now existing between the plaintiff and defendant, on the ground that the defendant has wilfully, and without cause, deserted and abandoned the plaintiff, and has continued in such descrtion for the space of one year and more; that the defendant has wilfully, and without cause, deserted and abandoned the plaintiff, and has departed from the State of Colorado without any intention of returning, and that A. B. East, Attorney for Plaintiff. the defendant, since the marriage between plaintiff and defendant, has been guilty of extreme cruelty toward plaintiff, and for general relief, as will more

And you are hereby notified that if you fail to appear and answer the said complaint as above required, the said plaintiff will apply to the court for the relief demanded in the complaint. Witness, R. W. Steele, clerk of said court, and the seal thereof at Denver, in said county, this [L.S.] 28th day of January, A. D. 1884. R. W. STEELE, Clerk.

JOHN C. FITNAM,

8

fully appear by the complaint on file herein, to which ATTORNEY AND COUNSELOR AT LAW

reference is here made.

NOW READY FOR DELIVERY.

A PRACTICAL TREATISE

ON

THE CODE SUMMONS

AND THE

MODE OF SERVING IT

AS PRESCRIBED BY THE

CIVIL CODES OF COLORADO, WYOMING, KANSAS, NEVADA, NEBRASKA,
AND OTHER STATES, WITH COPIOUS AND ACCURATE FORMS

FOR THE USE OF ATTORNEYS, CLERKS OF COURTS
AND SHERIFFS, IN PREPARING AND
SERVING THE SAME.