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

chancery are herein above empowered to deny, or allow, appeals, writs of error or supersedeas, from judgments, decrees, sentences or orders of the county or corporation courts: Provided, That such appeals, writs of error or supersedeas, when allowed by the court of appeals, shall be allowed on the same terms prescribed by the laws now in force concerning appeals, writs of error or supersedeas, which might have been allowed by the court of appeals, to the decrees and orders of the former superior courts of chancery, and to judgments, proceedings, sentences or orders, of the former superior courts of law respectively. And, if any person or persons shall think himself, herself or themselves aggrieved by the refusal of the said circuit superior courts of law and chancery, in term, to allow to him, her or them, an appeal from, or writ of error or supersedeas to, any judgment, decree, proceeding, sentence or order, of any county or corporation court; in such case, such person or persons may present a copy of the said petition, and of the order of such circuit superior court of law and chancery, denying the prayer thereof, 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 any judge thereof in vacation; and such court in term, or such judge in vacation may, if to the court, or to the judge in vacation it seem just and right, direct the appeal, writ of error or supersedeas to be allowed, according to the prayer of the petition, by the circuit superior court, upon the same terms on which the same ought to have been allowed by that court, and to award the proper process thereon and such order of the court of appeals, or of the judge thereof in vacation, being indorsed on the petition, and directed to the clerk of such circuit superior court, shall proceed in such cause in like manner, as if the appeal, writ of error or supersedeas, had been allowed by such circuit superior court, which should have allowed the same: Provided, That no petition for an appeal from, or writ of error or supersedeas to, any decree, judgment, proceeding, sentence or order, of any county or corporation court, to or from the circuit superior courts of law and chancery, shall be received or considered by any judge thereof in vacation, or by said court in term, unless some attorney or counsel practising in such circuit superior court, shall certify, that in his opinion, there is sufficient matter of error for reversing the decree, judgment, proceeding, sentence or order, in such petition complained of; and that no petition for an appeal from, or writ of error or supersedeas to, any decree, judgment, proceeding, sentence or order, of any circuit superior court of law and chancery, to or from the court of appeals, shall be received or considered by the court of appeals, or any judge thereof in vacation, unless some attorney or counsel practising in the court of appeals, shall certify, that in his opinion, there is sufficient matter of error for reversing the decree, judgment, proceeding, sentence or order, in such petition complained of: And provided, That no petition preferred to any circuit superior court of law and chancery, or any judge thereof in vacation, for an appeal from, or writ of error or supersedeas to, any final decree in chancery, or judgment, proceeding, sentence or order of any county or corporation court, shall be received or allowed, unless the same shall be preferred within three years next after the date of such final decree in chancery, or judgment, proceeding, sentence or order, complained of; and that no petition preferred to the court of appeals, or any judge thereof in vacation, for an appeal from, or writ of error or supersedeas to, any final decree in chancery, judgment, proceeding, sentence or order of any circuit superior court of law and chancery, shall be received or allowed, unless the same shall be preferred within five years next after the date of such final decree in chancery, or judgment, proceeding, sentence or order complained of: And provided, That all appeals which may be taken as of right, or allowed upon petition shew

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

ing error, according to the provisions of this act, from the county or corporation courts, to the circuit superior courts of law and chancery, shall lie only to the circuit superior court which shall have jurisdiction over the county or corporation; and that likewise in all cases of writs of error or supersedeas, which may be allowed upon petition shewing error, according to the provisions of this act, from the said circuit superior courts to the said inferior courts, such writs of error or supersedeas shall only be returnable into the circuit superior court of law and chancery having jurisdiction over the county or corporation. And such appeals from sentences and orders of the county and corporation courts, as may be taken as of right, and such appeals from decrees, judgments, proceedings, sentences or orders of the said inferior courts, as may be allowed in vacation, upon petition shewing error, shall be taken and allowed generally, to the next term of the circuit superior courts of law; and all writs of error or supersedeas which shall or may be allowed or awarded to the county or corporation courts from the said circuit superior courts, and all process consequent thereon, shall be made returnable to the term next after, or to the first Monday in any month next after such writ of error or supersedeas, or other process, allowed or awarded, as the appellant, or plaintiff in error or his attorney, may appoint and require; or if he give no direction, as to the clerk shall seem most convenient. And appeals, or writs of error or supersedeas, allowed by the court of appeals, or any judge thereof in vacation, from or to the circuit superior courts of law and chancery, and all process consequent thereupon, shall be regulated by the laws and usages now in force and in practice, regulating such proceedings in the courts of appeals: And provided, That no appeal shall be allowed from interlocutory decrees or orders in chancery of the county or corporation courts, to the circuit superior courts of law and chancery, or from interlocutory decrees or orders in chancery, of the said circuit superior courts, to the court of appeals, unless by such decree or order, money shall be required to be paid, or the possession or title of property to be changed, or the judge or court to whom the petition for such appeal shall be preferred, shall think such appeal proper to settle the principles of the cause, and to avoid expense and delay,

Act of March 20, 1832, Ses. Acts 1831-2, ch. 49, p. 41. Sup. R. C. ch. 112, p. 173.

139. § 1. If any person or persons shall think himself, herself, or themselves aggrieved by any judgment, order or decree of any circuit superior court of law and chancery in this commonwealth, and shall desire to appeal therefrom to the court of appeals, pursuant to the provisions of the thirty-first section of the act, entitled, an act to establish a court of law and chancery in each of the counties of the commonwealth, and in certain corporations therein mentioned," it shall be lawful for the court in which such judgment, order or decree shall be rendered, and at the term when rendered, or for any judge of the general court after such term ended, and within sixty days thereafter, by an order under his hand and seal, to suspend the execution of such judgment, order or decree, or in case any execution have been issued or levied, to arrest the same: provided the party desirous of appealing shall enter into bond with sufficient security, in the manner now prescribed by law, on appeals allowed, with a condition, reciting such judgment, order or decree, and the intention of the party to apply for an appeal, pursuant to the act aforesaid, within a reasonable time, to be fixed by the court or judge aforesaid, and specified in the suspending order; and binding such party to pay all costs and damages, and the profits of the property recovered, in case such judgment, order or decree be affirmed, or the party shall fail to obtain or prosecute an appeal. [See preceding No. 138.]

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

140. 32. In all cases of appeals which may be taken as of right, from any sentence or order of any county or corporation court, to the circuit superior courts of law and equity, and of appeals, writs of error or supersedeas allowed from or to the said inferior courts, to or from the said circuit superior courts, the practice and proceedings, and the decree, judgment, sentence or order, either of affirmance or reversal, shall conform with the practice, and be regulated by the laws regulating the proceedings in the former superior courts of law, and the former superior courts of chancery, respectively, according to the nature of the cause: so, likewise, in all cases of appeals, which may be allowed from, or writs of error or supersedeas allowed to, the circuit superior courts, to or from the court of appeals, the present practice and proceedings of the court of appeals, shall be observed and followed, and the decree, judgment, sentence or order of that court, either of affirmance or reversal, shall be such as are authorized by the laws now in force, and the practice of the court in conformity with those laws: Provided, That henceforth, upon the affirmance of any decree or judgment whatsoever, of any inferior court by any appellate court, no damages shall be awarded to the party prevailing, beyond legal interest on the debt or damages, or profits of property adjudged, and the costs:(3) And provided, That causes which may be hereafter brought to the court of appeals, by appeals from interlocutory decrees in chancery, (except only appeals from interlocutory orders dissolving injunctions,) shall not be allowed any privilege as to the time and order of hearing; but such appeals, (except as before excepted,) shall be heard as they shall be called in their order on the docket.

141. § 53. If the record upon any appeal from any county or corporation court, to any circuit superior court of law and chancery, in such cases wherein, according to the provisions of this act, appeals may be taken as of right, shall not be delivered to the clerk of the circuit superior court, within sixty days after the same was granted, the same shall not be received thereafter, unless good cause be shewn to the contrary; and after such dismission, no writ of error or supersedeas shall be allowed. And in case of any appeal allowed from, or writ of error or supersedeas allowed to, any decree, judgment, proceeding, sentence or order of any inferior court, to or from any circuit superior court, if the party praying such appeal, writ of error or supersedeas, shall not deliver the record, with the order allowing such appeal, writ of error or supersedeas, to the clerk of the circuit court, within fifteen days after the appeal, writ of error or supersedeas allowed, the same shall not be received thereafter, unless good cause be shewn to the contrary; and after such dismission, no appeal, writ of error or supersedeas shall be allowed. And in case of any appeal allowed from, or writ of error or supersedeas allowed to, any decree, judgment, proceeding, sentence or order of any circuit superior court of law and chancery, to or from the court of appeals, if the party praying such appeal, writ of error or supersedeas, shall not deliver the record, with the order allowing such appeal, writ of error or supersedeas, to the clerk of the court of appeals, within thirty days after such appeal, writ of error or supersedeas allowed, the same shall not be received thereafter, unless good cause be shewn to the contrary; and after such dismission, no appeal, writ of error or supersedeas shall be allowed.

142. § 54. The clerk of the court of appeals shall, as now by law directed, certify and transmit to the respective clerks of the circuit superior courts of law and chancery, whence the causes were brought to the court of appeals,

(3) See act providing for the recovery of hires of slaves accruing during the pendency of appeals, writs of error or supersedeas.

Feb. 11, 1831, ch. 34, Ses. Acts, p. 102. See Alderson v. Bigger's adm'r, 4 Munf. 528, for the law as understood anterior to this act.

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

copies of the judgments, decrees and decisions of the court of appeals in the same; which, if received by the clerk of a circuit superior court, in vacation of such court, shall be entered by him of record at the end of the proceedings of the preceding term of that court; and thereupon the said clerk shall, upon application, issue execution thereon, if, by the decision of the court of appeals, it be proper to do so; and in all other respects shall proceed according to the directions of such judgments and decisions, in the same manner as if they had been entered during the session of such circuit superior court. When such copies shall be received by the clerk of a circuit superior court during the session thereof, the same proceedings shall be had thereon, as have heretofore been had in such cases.

143. § 55. All judgments, decrees or orders rendered in the former district courts, or in the former superior courts of law, or in the former superior courts of chancery, which may remain wholly or in part unexecuted, shall be executed by the respective circuit superior courts of those counties, wherein the court was held by which the same shall have been rendered. And every judgment, decree or order rendered by the court of appeals, touching judgments, decrees or orders of the former district courts, or former superior courts of law, or former superior courts of chancery, upon any appeal, writ of error or supersedeas, shall be certified to the circuit superior court of that county or corporation in which the first judgment, decree or order shall have been rendered, or wherein the district court of chancery from which the appeal was taken or allowed, was held; and if, in such case, the decree or order of the court of appeals be not final, the circuit superior court to which the same shall be certified, may retain and proceed to final decision of the cause, or may transfer it to any other circuit superior court, in like manner as any other unfinished cause in chancery, which shall be transferred from the former district courts of chancery to the circuit superior courts of the respective counties wherein the former district courts of chancery were held, may be transferred to any other circuit superior court, according to the provisions herein after contained and if the judgment or decree of the court of appeals be final, such proceedings shall be had thereupon, in the court to which the same shall be certified, as are by the next preceding section authorized and directed, in the case of judgments, decrees or orders, of the court of appeals, upon writs of error or supersedeas, or on appeals to and from the judgments, decrees or orders of the circuit superior courts hereby ordained and established.

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

144. 60. If, upon hearing any writ of error or supersedeas, the judgment of the inferior court be reversed in whole, or in part, the circuit court shall enter such judgment thereupon as ought to have been entered(7) in the inferior court. Ibid.

145. § 56. When any interlocutory order or decree, from which an appeal shall have been granted as aforesaid, shall be reversed or affirmed, and when any final decree of a county or corporation court shall be reversed in a superior court of chancery, the cause shall not be remanded to the county or cor

(1) And if the appellate court neglects to enter such judgment as the inferior should have pronounced, its judgment will be erroneous for that omission. Darby v. Henderson et al. 3 Munf. 115; Mantz v. Hendley, 2 H. & M. 308, and 2 Call, 496.

On a supersedeas to a judgment of a county court, the circuit court reverses the judgment with costs, but omits to give such

judgment as the county court ought to have given, and retains the cause: Held, this judgment of the circuit court is to be regarded as its final judgment in its appellate character, and a supersedeas will lie thereto, from the court of appeals. Norris v. Tomlin & al. 2 Munf. 336, overruled; Janey v. Blake's adm'r, 8 Leigh, 88.

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

poration court for further proceedings, but shall be retained in the superior court, and there proceeded on to a final decree, unless, by consent of the parties, or for good cause shewn, the court shall otherwise direct. Feb. 26, 1816,

c. 8.

146. § 57. In any cause depending in any superior court of chancery within this commonwealth, wherein any interlocutory order(1) or decree hath been made, or shall be made, it shall be lawful for such court, or the judge thereof in vacation, at any time before a final decree in the cause, to grant an appeal to the court of appeals, from such interlocutory order or decree, in the same manner, and upon the same conditions, as if a final decree had been made: Provided, That by such interlocutory order or decree, money is required to be paid, or the possession or title of property to be changed, or that the court shall think such appeal proper, in order to settle the principles of the cause,(1) or to avoid expense and delay;(1) and if the superior court of chancery shall refuse an appeal from any such interlocutory order or decree, it shall be lawful for the court of appeals, or any judge thereof in vacation, upon petition, to grant an appeal from such interlocutory order or decree, for any error therein, and to award the proper process thereupon, in the manner and upon the conditions now prescribed by law for granting appeals from final decrees. Ibid. and Jan. 1798, c. 223, R. C.; 1807, c. 103, ed. 1808. [See ante, No. 138.] [No appeal (2) shall be granted from any interlocutory decree of a superior court of chancery, except by the court of appeals; but the superior court of chancery, and the judges thereof, in vacation, may suspend the execution of any interlocutory decree requiring the payment of money, or changing the possession and title of property: Provided, the party desirous of appealing shall enter into bond with sufficient security in the manner now prescribed by law, with a condition reciting the interlocutory decree, and the intention of the party to take an appeal, so soon as a final decree shall be made, and binding such party to pay all costs and damages, and the profits of the property recovered, in case the decree be affirmed, or the party shall fail to take or prosecute an appeal. Act Feb. 27, 1828, c. 25, § 4, Ses. Acts 1827-8, p. 21; Sup. R. C. c. 96, § 4, p. 126.]

147.51. In like manner, and under like regulations, [See ante, No. 136,](o) an appeal may be prayed and granted unto a defendant, from any decree or final order of the superior court of chancery for the district, unto the court of appeals. Nov. 1794, c. 167, R. C.

148. § 54. If, upon a petition to any judge of the court of appeals, or the

(1) An appeal will lie from an order of the chancellor overruling a motion to dissolve an injunction, where the motion has been overruled on the ground that the plaintiff in equity is entitled to relief on the merits, and fixing the principle on which the cause depends, or where it is necessary to avoid expense and delay. Lomax v. Picot, 2 Rand. 247.

(2) When a party has obtained an injunction from the court of chancery to a judgment at law, which is afterwards dissolved, and he appeals to the court of appeals, he cannot be required to give surety for the amount of the judgment injoined, but only for such costs as may be awarded against him by the court of appeals. Eppes v. Thurman, 4 Rand. 384. A party appealing from an order dissolving an injunction can only be required to give security to perform the

decree of the inferior court, and to pay the costs and damages awarded in the appellate court, if the decree shall be affirmed. M'Kay v. Hite's ex'rs, 4 Rand. 564. See Graves v. Graves, 1 Leigh, 34.

(0) It is not irregular for the chancellor to grant an appeal from his own decree during the term, with an allowance of time to the appellant to give security after the expiration of the term. Though the act of assembly might be susceptible of a different construction, if it were res integra, that which had been adopted by the chancellor, has been so long acquiesced in by this court, that it is now too late to disturb it. Stealy v. Jackson, 1 Rand. 413.

In this case a specified time (30 days) was allowed. But it is error to allow an indefinite time. Broaddus et ux. v. Turner, 2 Rand. 5; Morris v. Deshazo, 4 Rand. 460.