Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

term of the court of appeals, if allowed in the recess of that court, or by the then sitting court, when allowed during the session of that court.(2)

133. § 62. In all actions at law, founded on contract, whether such contract be by deed or by parol, brought either in the said circuit superior courts of law and chancery, as courts of common law, or in the county and corporation courts, the defendant may file a special plea in bar, in the nature of a plea of set-off, alleging any such matter of fraud in the consideration, or in the procurement of the contract, or any such failure in the consideration thereof, or any such breach of any warranty to him, of the title or the soundness of personal property, or any parcel of such property, for the price or value whereof he entered into the contract, whereon the action may be founded, as would entitle such defendant, either to recover damages at law, in any form of action, from the plaintiff, or the party to the contract, under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract upon him: alleging also, in such special plea, the damages by him sustained, by reason of the matter so specially pleaded, and verifying such special plea by affidavit in like manner as pleas of non est factum are verified: and such damages being proved and found by the jury, or so much as the jury may assess, shall be allowed and applied as a set-off against the plaintiff's demand. And in all actions founded on any contract by deed, the defendant may file a special plea in bar, in the nature of a plea of set-off, alleging any such matters existing before the execution of the deed, or any such mistake therein, or in the execution thereof, as would entitle him to relief in equity, in whole or in part, against the obligation of the contract upon him; and alleging also, in such special plea, the amount to which he is entitled by reason of such pre-existing matters or mistakes, and verifying such special plea by affidavit in like manner; and such matters or mistakes being proved, and such amount being ascertained by the jury, the amount so ascertained shall be setoff against the plantiff's demand. And in all cases wherein the defendant, being allowed to file such special pleas as in this section mentioned and allowed, shall establish a just and legal demand against the plaintiff, greater in amount than the demand which the plaintiff shall establish against him, the same being found and ascertained by the verdict of a jury, it shall and may be lawful for the court to give judgment for the defendant against the plaintiff for the excess, with continuing interest thereon, or on so much thereof as may lawfully bear interest, to be computed from the date which shall be fixed by the verdict of the jury: Provided, That the court may grant new trials in such cases, as in all other cases: Provided always, That nothing in this section contained shall be construed to impair or any wise affect the obligation of any bond or other deed deemed voluntary in law, upon the party or parties thereto, his, her, or their heirs, executors or administrators; and such voluntary bonds or deeds shall have the same force and effect, as if the provisions in this section contained had never been enacted.

134. § 63. In case of any such special pleas in bar, as in the next preceding section are mentioned and allowed, being pleaded by the defendant, the plaintiff, as he shall be advised, may take issue thereon, or may demur thereto, specially or generally, so as to submit the merits of such pleas, either as to the form or substance thereof, to the judgment of the court, in like manner as a plaintiff may demur to any other special pleas. And if any such special plea

(2) Where an injunction is awarded until the answer comes in, the injunction is not dissolved by the coming in of the answer, but is a subsisting injunction until it is dissolved by the subsequent order of the chancellor.

A dissolved injunction is revived by an appeal taken by the plaintiff in the court of chancery; and it is improper in the appellee to take out an execution so long as the appeal is depending. Turner v. Scott et al. 5 Rand. 333.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

And

in bar as aforesaid, be tendered in court, the court may allow the same as good, or reject it as naught, or as not having been offered in due time, in like manner as the court may allow or reject any other special pleas in bar. if the plaintiff, upon any such special plea as aforesaid being tendered and allowed, be advised to make an issue upon the facts therein set forth, he shall reply, generally, that he ought not to be precluded from his action by reason. of the matters in the plea set forth, in manner and form as they are therein pleaded, because the same are not true; and conclude such replication with a tender of issue, which shall be joined by the defendant; and upon such issue being so tendered and joined, all legal evidence touching the matters in such special plea set forth, shall be admissible, and the whole merits of the case in such special plea stated, and all matters in avoidance thereof, which the plaintiff may adduce and prove, shall be tried and adjudged.

135. § 64. If any such special plea in bar as aforesaid, shall be filed or tendered by the defendant, and the same shall be adjudged bad on demurrer, or rejected by the court as naught; or if, upon issue joined thereon, in manner aforesaid, such issue shall be found against the defendant; in such case, the defendant shall be barred of relief in equity upon the same matters in the plea alleged, unless he shall aver and prove, that owing to some surprise or accident, or to some fraud practised by the plaintiff or other person, justice was not done him at the trial, and that he had no opportunity of praying a new trial for such cause, at the term at which the trial was had. But if the defendant, entitled to such special plea in bar as aforesaid, according to the provisions of this act, shall not tender such plea, or attempt such defence, or if he shall tender such plea, and the same shall be rejected for not having been offered in due time, he shall not be precluded from his recourse to a court of chancery for such relief in equity, as he would have been entitled to if no such special plea as aforesaid had been allowed by this act.

136. § 30. No appeal shall be demandable as of right, from any decree in chancery, interlocutory or final, or from any judgment, proceeding or order, at common law, or in any case of caveat of the county or corporation courts, to the said circuit superior courts of law and chancery. But appeals thereto, shall be demandable as of right, from the orders of the county or corporation courts, in controversies concerning mills, roads or the like; and from sentences or orders of the said inferior courts, in controversies concerning the probat of wills and letters of administration, and concerning the appointing, displacing and controlling the guardians of infants, (a) and committees of persons of insane mind; or, all such causes and matters may be brought before the said superior courts of law and chancery, by writ of error or supersedeas, upon petition assigning error, or any other legal ways or means, now in use, and practised in respect to the same. And in all other cases, wherein any person or persons (e) [body politic or corporate; act of March 8, 1819, R. Č. c. 69, § 56,] shall think himself, herself, or themselves aggrieved(f) by any

(a) Before this act, neither the law relative to the court of appeals nor the superior courts of chancery allowed an appeal from an order of a court appointing or displacing a guardian to the superior court of chancery or from the court of chancery to the court of appeals. Dupuy v. Hardaway, 4 Leigh, 584.

(e) (f) This provision has been liberally expounded in favour of persons, technically, not parties to the cause. On the ex parte settlement of an executorial account being presented to the court for al

lowance and record, a devisee in right of his wife was allowed to appeal from the judgment allowing such account, he being a person who may be injured or aggrieved by such allowance. Triplett's ex'rs v. Jameson, 2 Munf. 242. [See tit. EXECUTORS AND ADMINISTRATORS, notes.]

But the person must appear to be interested in the subject of controversy; a mere volunteer or amicus curia has not the liberty of appealing. Dunlop v. The Com. 2 Call, 284. This has often been decided here. Roane, J. in Sayre v. Grymes, in which it

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

judgment, proceeding or order, of any county or corporation court,(2) (other than decrees, proceedings and orders thereof in chancery,) such judgment, proceeding or order being final, and no wise interlocutory, the said person or persons(h) [body politic or corporate; Ibid.] may prefer a petition for a writ of error or supersedeas, (i) with a transcript of the record of the judgment or order and proceeding complained of, thereto annexed, to any judge of the said circuit superior courts in vacation, or to the circuit superior court of law and chancery having jurisdiction over the county or corporation, in term, assigning errors in such judgment, or order and proceedings, of the said inferior courts: whereupon, if the judge to whom such petition shall be presented in vacation, or the said circuit superior court of law and chancery, in term, to whichever such petition shall be preferred, shall deem the judgment or order and proceeding complained of, plainly right, the judge in vacation, or the court in term, may deny the writ of error or supersedeas prayed for; and when the same shall have been once denied by such court in term, no other petition to the same purpose, and in the same case, shall ever after be preferred to or entertained by any such judge in vacation, or any circuit superior court in term: otherwise, if such judge in vacation, or such circuit superior court in term, to whichever such petition shall be preferred, shall be of opinion, that there is reasonable doubt or question of the justice of the judgment, proceeding or order complained of, fit and proper to be argued and considered, such judge in vacation, or such circuit superior court in term, shall allow the writ of error or supersedeas prayed for, upon the terms provided by the laws now in force concerning writs of error and supersedeas from the former superior courts of law to the county or corporation courts. So, if any person (j) or persons [body politic or corporate; Ibid.] shall think himself, herself or themselves aggrieved by any decree, proceeding, or order in chancery, interlocutory or final, of any county or corporation court, such person or persons [body politic or corporate; Ibid.] may prefer a petition for an appeal from, and supersedeas to the same, with a transcript of the record of the decree or order and proceedings complained of, thereto annexed, to any judge of the circuit superior courts of law and chancery, in vacation, or to the circuit superior court of law and chancery having jurisdiction over such county or corporation, assigning errors in such decree or order and proceedings in chancery, of the said inferior courts; whereupon, if such judge in vacation, or

was again decided. 1 H. & M. 404. And, he must be aggrieved-an error in favour of the party cannot by him be appealed from. Smith v. Harmanson, 1 Wash. 7; Pendleton v. Vandevier, Ib. 381, 389; Roane, J. in Preston v. Harvey, 2 H. & M. 66-67.

(2) See Com. v. Temple, 1 Virg. Cas. 163. This section applies only to civil cases. A writ of error cannot be granted by a judge in vacation to a defendant, against whom there has been a judgment in a county or corporation court in behalf of the commonwealth for a misdemeanour. Gen'l ct. June T. 1820, 2 Virg. Cas. 224, Jones v. Commonwealth. But see "an act regulating the mode of obtaining writs of error in criminal prosecutions for misdemeanours," March 21, 1836, which authorizes a judge to award the writ in vacation, in the same manner, and upon the same terms, that writs of error are now awarded in term time.

(h) Being, technically, a party to the contest in the court from whose judgment the

appeal or supersedeas is taken or prayed. Wingfield v. Crenshaw, 3 H. & M. 245.

(i) A supersedeas is the proper remedy, only where the errors are apparent on the face of the proceedings; with respect to these, the counsel learned in the law are competent to pass their judgment; the act could never have meant to assign to them the function of weighing testimony and estimating credibility. Roane, J. in Wingfield v. Crenshaw, 3 H. & M. 257-8; and see Washington, arg. in Lee v. Turberville, 2 Wash. 163.

(j) See Sadler et al. v. Green, 1 H. & M. 26; Duncan v. Robins, 2 Munf. 341; Sherman et al. v. Christian et al. 1 Rand. 393; Linney's ex'r v. Holliday, 3 Rand. 1; Pugh's ex'r v. Jones, 6 Leigh, 299; Erskine v. Henry et ux. et al. 6 Leigh, 378; Lomax v. Picot, 2 Rand. 265-6; Porter's ex'r v. Arnold et al. 3 Rand. 479.

See act Feb. 16, 1825, c. 21, Sess. Acts 1824-5, p. 20, Sup. R. C. ch. 98, p. 127.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

the said circuit superior court of law and chancery in term, to whichever such petition shall be preferred, shall deem the decree, or order and proceedings complained of, plainly right, the said judge in vacation, or the said circuit superior court of law and chancery in term, may deny the appeal and supersedeas prayed for; and when the same shall have been once denied by such court in term, no other petition to the purpose, and in respect of the same decree or order and proceedings in chancery, shall ever after be preferred to, or entertained by any such judge in vacation, or any such circuit superior court in term: otherwise, if such judge in vacation, or such circuit superior court in term, to whichever such petition shall be preferred, shall be of opinion, that there is reasonable doubt or question of the justice and equity of the decree or order and proceedings complained of, fit and proper to be argued and considered, such judge in vacation, or such circuit superior court in term, shall allow the appeal and supersedeas prayed for, upon the terms provided by the laws now in force concerning appeals from decrees, proceedings, or orders in chancery, of such inferior courts as aforesaid, to the former superior courts of chancery.

Act of March 8, 1819-January 1, 1820. R. C. ch. 69.

137. § 59. Before granting(1) any appeal, or the issuing of any writ of error or supersedeas, the party praying the same, shall enter into bond with sufficient security (3) in a penalty to be fixed by the court or judge granting the same, with condition to pay the amount of the recovery, and all costs and damages awarded, in case the judgment or sentence be affirmed. Where several appeal, or obtain a writ of error or supersedeas, bond and security given by any party shall be sufficient; and any bond for obtaining a writ of error, supersedeas, certiorari, appeal, or any other writ or order, in term time or vacation, shall be valid and sufficient, if executed by any responsible person with security,(k) though the party to the suit be not an obligor. Ibid. [If any person shall apply to an appellate court for a writ of error, to the judgment of any court of law, or for an appeal from any decree in equity, and shall allege that he is unable to give security for the satisfaction of such judgment, or the performance of such decree, it shall be lawful for such appellate court to grant such writ of error or appeal, for error only in the judgment or decree, upon condition that bond and security be given only for the costs of such writ of error or appeal: Provided however, That such writ of error or appeal shall not operate as a supersedeas to the judgment or decree, or in any manner hinder or delay the execution thereof, and that nothing in this act contained, shall be construed to authorize a writ of error or appeal, in any case in which a writ of error or appeal is now allowed by law. Act of Feb. 16, 1825, Ses. Acts 1824-5, c. 21, p. 20; Sup. R. C. c. 98, p. 127.] [The appellate courts

(1) Whether an appeal will lie from any judgment is a question of law to be decided by the court; and the only evidence of what is decided by the court is the record alone. Therefore, where a judgment had been rendered, and the record omitted to state that an appeal was allowed, and at a subsequent term evidence was received that an appeal had been in fact allowed, but that the clerk had neglected making the entry, and on such evidence an order was made to take effect from the former term, the appeal was dismissed as improvidently awarded. Burch et al. v. White, 3 Rand. 104.

(3) From a judgment against executor or

administrator de bonis testatoris, they may appeal without surety. See Sadler's ex'rs v. Green, 1 H. & M. 26; but from judgment de bonis propriis bond with surety must be given. Pugh's ex'r v. Jones, 6 Leigh, 299; and Erskine v. Henry et ux. et al. 6 Leigh, 378.

(k) If the appeal be taken in court, the bond must be given in court, and not in the clerk's office. Thomson et al. v. Evans, 6 Munf. 397.

There must be a principal and a surety. Day v. Pickett, 4 Munf. 104; Rootes v. Holliday et al. 4 Munf. 323; Miller v. Blannerhassett, 5 Munf. 197.

Act of March 8, 1819-January 1, 1820. R. C. ch. 69.

of this commonwealth shall be, and they are hereby authorized and required, where an appeal or writ of error has heretofore been, or shall hereafter be granted, in pursuance of the act, entitled an act to allow writs of error and appeals in certain cases, on giving security for costs only," passed the sixteenth day of February, eighteen hundred and twenty-five, when it shall appear to them that the appellant or plaintiff in such writ of error, is confined in jail, in execution of the original judgment or decree from which an appeal has been granted, or in which a writ of error has been awarded, forthwith to try such appeal or writ of error, without regard to its place on the docket. Act of Jan'y 20, 1827, Ses. Acts 1826-7, c. 18, p. 17; Sup. R. C. c. 99, p. 127. See preceding clause of this number.] [Every bond given upon taking an appeal, or upon the issuing of any writ of error or supersedeas, and all other bonds and obligations, given for a good and valuable consideration, shall be as good and available in law, though the obligee or obligees, or part of the obligees therein mentioned, be dead at the time of the execution thereof, as if such obligee or obligees had then been in full life; and every such bond or obligation may be proceeded on by the surviving obligee or obligees, or by the representatives of the decedent or decedents, in the same manner as if such decedent or decedents had been alive at the time of the execution thereof, and had immediately thereafter died. Feb. 24, 1820, c. 28, § 2.]

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

138. § 31. No appeal to the court of appeals, shall be demandable as of right, from any judgment, decree, proceeding, sentence, or order of the said circuit superior courts of law and chancery, in any case whatsoever. But if any person or persons shall think himself, herself or themselves aggrieved by any order of any circuit superior court of law and chancery, in any controversy concerning mills, roads, or the like; or by any sentence or order of the said circuit superior courts, in any controversy concerning the probat of wills, or letters of administration, or the appointing, displacing or controlling of guardians of infants, and committees of persons of insane mind; or by any judgment, proceeding or order of the said circuit superior courts, in any matter, cause or controversy, at common law, such matter, cause or controversy, being civil and not criminal in its nature, and such judgment, proceeding or order, being final and no wise interlocutory; or by any judgment, proceeding or order of the said circuit superior courts, in any case of caveat, the same being final, and no wise interlocutory; or by any decree, proceeding, or order in chancery, interlocutory or final, of the said circuit superior courts; or by any other judgment, decree, sentence or order, in any other case, wherein by the laws now in force, appeals lay from the former superior courts of law and the former superior courts of chancery respectively to the court of appeals, or wherein, by the laws now in force, writs of error or supersedeas lay from the court of appeals, to the former superior courts of law, or to the former superior courts of chancery: in each and every such case, such person or persons, who shall think himself, herself or themselves aggrieved by any such judgment, decree, proceeding, sentence or order, respectively, of any of the said circuit superior courts of law and chancery, may prefer his petition, with a transcript of the record of the judgment, decree, sentence or order and proceedings complained of, to the court of appeals in term, or to any judge thereof in vacation, assigning errors in the judgment, decree, proceeding, sentence or order and, thereupon, the court of appeals, or the judge thereof in vacation, to whom such petition shall be preferred, shall and may in sound discretion, deny or allow, the appeal, writ of error or supersedeas prayed for, in like manner, and on the like principles, upon which the said superior courts of law and