court to de § 15. It shall be the duty of the supreme court to decide all the Ib. Sec. 4. causes which may be returned to the said court at the return term Supreme thereof, unless for good cause the same shall be continued; and in all cide at return cases decided in the supreme court, the successful party shall be enti- Tax fee. tled to the same fee which is now allowed in chancery causes in the circuit court. term. Novel ques minal cases only, to be (16. It shall not hereafter be lawful for any circuit court to refer to Ib. Sec. 5. the supreme court any question of law, except such as may be novel tions in cri and difficult, and arise in a criminal case. §17. A writ of error may issue to reverse any final judgment in the referred. circuit court, at any time within three years after the rendition of the Tb. Sec. 7. judgment, and not afterward. Writ of error may sit in supreme court. Sec. 5. 18. It shall be lawful for any judge of the supreme court, who shall not have given an opinion in the case below, to sit in the trial of What judges the said cause in the supreme court. 19. In case the supreme court of errors and appeals shall affirm 1814—(4) enurely any judgment or decree brought before them, the plaintiff in Damages, inerror, if he be the defendant below, shall pay to the defendant in error, terest and ten per centum damages on the amount due with lawful interest from firmance. the time of rendering the original judgment or decree, besides the costs a 1811—(13) of the original suit and writ of error. cost, on af Sec. 1.] Sec. 11. §20. Whenever the judgment of a circuit court shall, on appeal or 1820–(4) writ of error to the supreme court, be affirmed, ten per cent. damages Damages 10 shall be allowed, and not more: Provided, That no damages shall be per cent., but allowed in any cause in the supreme court, unless the judgment of the owed unless court below shall have been suspended. (1) not to be al judgment was suspend 1822-(16) Sec. 1. § 21. In causes wherein the judgments have been affirmed or re-ed. versed by the supreme court, and in which the costs incurred in that court have not been collected, the clerk of the said supreme court may Clerk of suissue the proper writs of execution, in the names of the successful parties, against the parties respectively subjected to the payment of ecution for such costs, returnable to the succeeding term thereof. preme court may issue ex costs not collected. May give and award Sheriff to le 22. When judgment of an inferior court in any cause shall be b. Sec. 2. affirmed or reversed by the supreme court, the said supreme court judgment may give judgment and award execution against the unsuccessful party execution for for the costs of such cause, incurred in the said supreme court: and costs. it shall be the duty of the sheriff or other officer to whom such writ of execution shall be directed, to levy or execute, and make return return. thereof to the said supreme court, on or before the first day of the return term therein named, and render to the said clerk the moneys collected by him, according to the exigency of such writ. vy, and make. Sheriff not returning execution may § 23. If such sheriff or officer fail so to return such writ of execution, Ib. Sec. 3. or to pay the moneys by him made as aforesaid, the clerk of the supreme court may, in the name of the successful party in the cause, be moved upon giving to such sheriff or officer, or to such sheriff and his secu- against, by rities, ten days' previous notice, and upon proof of such notice, move the clerk. for at the next term of the circuit court of the county in which such sheriff or officer resides, and obtain judgment and execution against such sheriff or officer, or such sheriff and his securities so notified, for the amount of the writ of execution not returned as aforesaid, or the deficit of the moneys made and not rendered. Sheriff or § 24. If any sheriff or coroner in this state shall fail or refuse to Ib. Sec. 4. return any execution issued from the supreme court as aforesaid, and coroner fail. ing to return execution, (1) Ten per cent. damages allowed under this act on affirmance of judg- liable to the party ag. ment, whether the suit was founded on a liquidated or an unliquidated demand. motion of the grieved. Heart v. Judson, Min. Rep. 135. placed in his hands, to the return term of said court named in said execution, it shall be lawful for the party at whose instance said execution issued from the supreme court, to obtain judgment against said sheriff or coroner for the amount of money named in said execution, Costs collect and costs of the motion: Provided always, That the certificate of the transmitted postmaster living at the seat of justice of the county of which he is by mail, and sheriff or coroner, or [the nearest one thereto, that said sheriff or certificate of coroner has placed in his office, sealed up in his presence, and directdeposit, a bar ed to the clerk of the supreme court, any execution, and the amount ed may be postmaster's to the mo tion. 1927-(34) Sec. 1. returned, of money collected thereon, which has been placed in his hands, shall be sufficient evidence on the part of said sheriff or coroner, to prevent judgment from being obtained against him and his securities as aforesaid. § 25. The clerk of the supreme court is hereby authorized, whenever On execution any sheriff or coroner shall return on an execution, directed to them or either of them, that the defendant or defendants in said execution, found," clerk or either of them, have no property in his county out of which he can may issue ex- make the amount of costs due on said execution, forthwith to issue against the execution against the plaintiff or plaintiffs in said execution, for all plaintiff for costs due on said execution, created by the plaintiff or plaintiffs in casioned by obtaining his judgment and execution; and no costs created by any ecution the costs oc him. 1826-(39) Sec. 1. Judgment in supreme court to be entered rity, and certified to defendant or defendants on the part of him or them, shall be taxed or collected in said execution: Provided, That an execution which may be returned "no property found," shall have issued to the county from which the case was brought into said court, before an execution under this act shall issue against the plaintiff or plaintiffs. § 26. In all cases in which the judgment, sentence, or decree of any inferior court, shall be affirmed in the supreme court, it shall be the duty of said supreme court to render judgment against the security or securities in the bond executed on obtaining the appeal or writ of error, against secu- in the same manner and for the same sum for which judgment shall judgment be rendered against the plaintiff or plaintiffs, complainant or complainclerk of infe. ants, in said supreme court; and it shall be the duty of the clerk of rior court. said supreme court, to certify the judgment thereof to the court from ferior court which the cause came, against both the principal and the surety or to issue exe- sureties; and it shall be the duty of the clerk of the court whose judg ment or decree shall have been affirmed, immediately on the reception of the certificate, to issue execution returnable to the next term of the said court, against the person or persons against whom judgment shall have been rendered in the supreme court, and for the amount of said judgment, in pursuance of the certificate from the clerk of the supreme Clerk of in cution agree ably to the certificate. 1830-(2) Sec. 1. Circuit court. § 27. The same power and authority that is now vested in the supreme court to render judgment final against the security in bonds for courts may the prosecution of appeals or writs of error to said court, is hereby vested in the circuit courts of this state, upon all bonds for the proseagainst secu-cution of appeals or writs of error from the county courts, to the said peals from circuit courts. enter judg ment final rities, on ap the county courts. 1830-(22) § 28. The same percentage shall be assessed upon appeals and writs of error taken from the county to the circuit court, as is now assessed Damages on in the supreme court, upon appeals or writs of error taken from the appeals from several county or circuit courts to the supreme court. Sec. 1. county to cir cuit court, the same as in supreme court. NOTE. For other provisions on the subject of errors, See next title, "Er rors and Amendments." JUDICIAL PROCEEDINGS AT COMMON LAW. This title comprehends the following subdivisions, arranged alphabetically, viz: 1. Abatement of suits. 2. Appeals from Justices of the Peace. 3. Costs. 4. Detinue. 12. Motions against officers of court. 13. Penal bonds. 14. Penalties. 15. Petition and Summons. When cause not to abate ty: but to in § 1. When any suit shall be depending in any court in this territo- 1802-(2) ry, and either of the parties shall die before final judgment, the execu- of action sur tor or administrator of such deceased, who was plaintiff, petitioner, or vives, suit defendant, shall have full power, (in case the cause of action by law by the death survive) to prosecute or defend such action until final judgment: and of either parthe defendant is hereby obliged to answer thereto accordingly. And ure to reprethe court before whom such cause may be depending, is hereby em-sentative. powered and directed to hear and determine the same, and to render judgment for or against such executor or administrator, as the case may require and if such executor or administrator, having been duly Executor of served with a scire facias, or citation, from the office of the clerk of defendant failing to bethe court, where such suit is depending, fifteen days before the meeting come a party thereof, shall neglect or refuse to become a party to the suit, the court when cited, may render judgment against the estate of the deceased party, in the against the same manner as if the executor or administrator had voluntarily made estate. himself a party to the suit; and the executor or administrator, who Executor enshall become a party as aforesaid, shall, upon motion to the court continuance. where the suit is depending, be entitled to a continuation of the same until the next term, or time of holding the court. judgment titled to one §2. The action of trover shall survive for and against executors 1811-(11) and administrators. Sec. 19. vive for and ecutors and §3. Where any person or persons shall institute any suit in the ver to sur name of any other person or persons, for his or their own use and against exbenefit, the death of such person or persons in whose name or names administrathe suit or suits are instituted, shall not abate such suit; but the same tors. shall progress and be tried in the same manner as though such suit, Sec. 4. was actually brought in the name of the person or persons, for whose Suits for use, use the same was instituted. 1812-(8) not abated by the death nal plaintiff. Scc. 1. § 4. Where there are two or more plaintiffs or defendants to any of the nomi suit or suits, in any court in this state, and one or more of them die; 1824-(2) if the cause of such action shall survive to the surviving plaintiff or on the death plaintiffs, or against the surviving defendant or defendants, the writ or of joint deaction shall not be thereby abated; but such death being suggested plaintiff, suit upon the record, the action shall proceed at the suit of the surviving may be con plaintiff or plaintiffs, against the surviving defendant or defendants. survivors. fendant or tinued by the 1826-(16) Sec. 1. Executor or § 5. Where any person who may sue out a writ of ad quod damnum, may die before the termination of the proceedings on such writ, administra his or her executor or administrator may, on motion, revive the proceedings, and prosecute the same to a final termination. tor may re- or action of § 6. All actions of trespass quare clausum fregit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff or plaintiffs die, be revived by his, her, or their retrespass for presentatives, in the same manner as actions on contracts. injury to pro- § 7. No suit instituted by a feme sole shall abate by her intermar1827-(28) riage: provided, the person marrying such feme sole will make Suit of feme himself a party to such suit, which may be done by motion to the perty. Sec. 1. sole not abat- court. ed by her marriage. Ib. Sec. 2. 8. It may be lawful, when a feme sole defendant shall have intermarried, for the plaintiff to sue out a scire facias to her husband, and husband of make him a party; and such suit shall not abate by reason of the mar Sci. fa. to feme sole de fendant. riage, 1814-(7) Sec. 2. be taken within five days after judgment. 2. APPEALS FROM JUSTICES OF THE PEACE. § 9. Any person aggrieved by the judgment of any justice of the Appeal may peace, may, within five days thereafter, appeal to the next superior court sitting for his county, first giving to such justice, bond, with good security, in double the amount of such judgment, conditioned to prosecute such appeal with effect; and in case he be cast therein, to pay and satisfy the condemnation of the court. (1) And the justice before whom the cause was originally tried, shall issue subpoenas for all witnesses that the parties in such appeals may require. And in case Interest and the superior court affirms the judgment of the justice below, execution firmance of with interest and costs shall issue as in other cases. Appellant to give bond. Justice to summon wit nesses. costs on af judgment. 1814-(17) Sec. 3. Sum not ex tried without § 10. In all cases where the sum claimed does not exceed twenty dollars, the trial shall be by the court without the intervention of a ceeding 20 jury; and in cases where the sum claimed exceeds twenty dollars, dollars, to be the court shall try such appeal de novo, as any other cause is tried, jury. at the first term, on an issue (2) to be made up at or before the trial; Over 20 dolls, and it shall be the duty of the justice of the peace trying such cause, novo, as other to send up to the clerk of the superior court of his county, a statement Justice to of the case, with all the papers and the bond thereunto belonging, besend up state- fore the sitting of said superior court. to be tried de causes. ment and all papers. 1816-(1). Sec. 4. On affirm § 11. Whenever any judgment rendered by any justice shall be removed into any superior court, by appeal, certiorari, or otherwise, and the judgment of the justice be affirn:ed, judgment shall be entered me against the security as well as the principal, and execution may issue against both, or either of them. ance, judg awarded against principal and security. (1) The appeal bond is sufficient evidence that judgment was rendered. McAlpin & Read v. Pool, Min. Rep. 316. After the term to which an appeal is returned, if the appellee has been notified or has appeared, it cannot be dis missed for the insufficiency of the appeal bond, unless a motion to dismiss is made at the return term and continued; and the court before dismissal should allow a good and sufficient bond to be given in open court, if the first was informally or inartificially taken by the justice without the neglect or default of the appellant. Jenkins v. Cauley, 1 Stewt. Rep. 61. Payne v. Martin, ib. 407. But if no bond be filed, a dismissal may be claimed at any time. Payne v. Martin, ib. 407. (2) But if the defendant will not plead, and the instrument ascertains the amount due, judgment may be entered by default as in other cases. Bevin r. Goodman, Min. Rep. 90. Appeals to be 12. In cases of appeals from judgments of justices of the peace, 1819—(6) the court before whom such appeal shall be brought, shall proceed to Sec. 38. try the same according to the justice and equity of the case, without tried accordregarding any defect in the warrant, capias, summons, or other pro- merits, withceedings of the justice of the peace, before whom the same was out regard to tried. (1) ing to their defects in the proceedings 1822-(11) Appeals may lie to the § 13. Appeals shall lie from justices of the peace to the respective below. circuit or county courts, under the same regulations as heretofore prescribed by law, for taking appeals to the circuit courts. the of Sec. 5. courts. county ap- b. Sec. 6. 15 per cent. § 14. In all appeals taken by virtue of this act, from a justice peace, when it shall be made to appear to the court, that the peal was taken merely for delay, the court shall award fifteen per cent. damages. (2) damages on appeals takdelay. 1823-(7) Sec. 1. Causes re tiorari, tria Ib. Sec. 2. and clerk to nas accord 15. Any cause removed by writ of certiorari, shall stand for trial en merely for at the first term of the court to which the same is returnable. § 16. The clerk of the court after issuing any writ of certiorari, is authorized and required, at the request of either of the parties, to moved by cerissue subpoenas for witnesses, returnable to the same term to which ble first term, the writ of certiorari is returnable. § 17. Whenever the defendant in any cause that shall have been de- issue subpoe cided by a justice of the peace, shall appeal from the judgment of ingly. such justice, and the appellate court shall render judgment in favor of 1824-(18) the plaintiff for a less sum than that recovered before such justice; Judgment such appellate court may enter judgment for the costs of such appeal, affirmed for either against the plaintiff or the defendant according to the justice of recovered bethe case: abut where the plaintiff or successful party shall appeal, fore justice, and shall not recover more than was adjudged by the justice of the impose costs peace, in that case he shall pay all the costs. Sec. 1. less sum than court may at its discretion. 18. No appeal shall be tried, unless it appear to the court that [a 1822—(11) Sec. 8.] the appellee, his agent, or attorney, shall have had five days' notice of costs on such appeal previous to the term at which the same shall be tried, or Plaintiff's unless the return of non est inventus be made by the constable on the b. Sec. 2. notice issued by the justice, and for want of such notice or return, the cause shall stand for trial at the ensuing term. 19. On all appeals taken, the justice shall issue a notice to appellee of the same, which shall be served and returned by the stable, and sent up with the papers. the appeal. Appellee to have notice of appeal, or cause to be con- Ib. Sec. 3. continued. Justice shall issue, and constable serve notice. 3. COSTS. Party pre § 20. In all cases, in civil actions, the party in whose favor judg- 1807—(19) ment shall be given, or in case of nonsuit, dismission, or discontinu- Se 35. ance, the defendant, shall be entitled to full costs, except when it is or vailing enmay be otherwise directed by law. titled to costs. $21. In all suits brought to recover damages for slander or trespass, 1822—(1) assault and battery, the plaintiff shall not recover more costs than Sec. 1. damages, if the damages do not exceed five dollars; unless the judge cases plain In certain tiff to recov er no more (1) What defects in the proceedings of justices have been held to be cured costs than by this statute, See Perry v. Brown, Min. Rep. 55. M'Grew v. Adams & El- damages. liott, 2 Stewt. Rep. 502. It does not cure a misjoinder of parties. Smith & Hill v. Cobb, 1 Stewt. Rep. 62. On appeal, objection cannot be made to the return of the warrant, unless it has been made before the justice, and the court should permit the constable to amend his return. Needham v. Newsom, Min. Rep. 407. (2) Damages not allowed on certiorari from justices' judgments. Hudnall & McCabe v. McCarta, Min. Rep. 402. |