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No writ of error shall be a supersedeas, unless the court of appeals, or some judge thereof in vacation, as the case may be, after inspecting a copy of the record, [and being of opinion that there is sufficient error therein for reversing the judgment in whole or in part, shall certify the same:] (g) in which case the clerk issuing the said writ, shall endorse on the said writ of error, "that it shall be a And it supersedeas, and it shall be obeyed as such accordingly." shall also be necessary before a writ of error shall operate as a supersedeas, that bond to be approved by the clerk of the court issuing the said writ, shall be given in the same manner under the like penalty. And the plaintiff in error shall lodge an authenticated copy of the record under the same regulations, and the parties in error shall be subject to the same judgment and mode of execution as is already directed in the case of appeals.

1798.

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IN FORCE FROM ITS PASSAGE.

Appellant to deliver a copy of record to the

clerk of court of appeals, and

when.

To be non

AN ACT to amend the act entitled "an act establishing the Court of Appeals and for other purposes:" Approved December 20, 1798.-2 Litt. 226. SEC. 1. Be it enacted by the General Assembly, That when an appeal shall be granted from the judgment of any court to the court of appeals, the appellant shall deliver to the clerk of the court of appeals an authenticated copy of the record, on or before the third day of the second term of the said court after such appeal. If the appellant fail to deliver the record as aforesaid, he shall be non-suited, suited on failand his appeal dismissed; [unless for good cause shown to the court at that term, they allow him a further time to bring in the record. If further time be so allowed to the appellant, and he shall again fail to deliver the record to the clerk within the limited time, no further indulgence shall be granted, but the appeal shall be absolutely dismissed. (h)]

And

ure thereof.

Damages on nonsuit the

same as when judgment is af

SEC. 2. When an appellant shall be non-suited, or his appeal be dismissed, the court shall give the same judgment for damages and costs, as if the judgment appealed from had been affirmed. when an appeal shall be prayed and granted from the judgment of firmed. any court, to the court of appeals, and bond and security given in the clerk's office of such court, agreeably to the order of the said court, and the party praying such appeal, shall fail to prosecute the same within the time prescribed by this act, and pursuant to the

can be no appeal or writ of error.-Com. v.
Brown, 3 J. J. Mar. 597; Com. v. Mitchell, 3
J. J. Mar. 630;-See Montee v. Com'th, 3 J.
J. Mar. 145; Com. v. Alsman, 5 J. J. Mar. 28.

(g) The part of the above clause included in brackets has been repealed. See post.

(h) The part of the above clause included in brackets has been repealed. See post.

When appeal is not prosecuted, appellee

may sue out ex

ecution.

Proceedings

in cases where

the rights of the

commonwealth may be involv

rules prescribed by law, the appellee shall be entitled to sue out execution for the same sum and interest that he would have been entitled to, in case the appellant had prosecuted his appeal, and the judgment or decree appealed from had been affirmed in the whole.

SEC. 3. And be it further enacted, That in all cases of judgments or decisions of the district courts, or general court, on mandamuses, where the rights, interests, or claims of the commonwealth may be involved or implicated, it shall be the duty of the attorneyed, duty of at- general to examine into the same, and if in his opinion, the said torney-general. rights, interests or claims are injured or impaired by the said judgments or decisions, to take an appeal therefrom to the court of appeals; which appeal, the said district courts, or general court, are hereby directed to grant, upon the application of the attorney-general, without requiring security from any person for the prosecution thereof. (i)

So much of every act or acts as comes within the purview of this act, shall be, and the same is hereby repealed.

1799.

IN FORCE FROM ITS PASSAGE.

AN ACT for enlarging the jurisdiction of the General Sessions held in Frankfort, for regulating proceedings in the Court of Appeals, in certain cases, and for other purposes: Approved December 21, 1799.-2 Litt. 310.

SEC. 4. Whenever a writ of error has been made a supersedeas, If judgment or decree after and the judgment or decree so superseded be affirmed in part or in being supersed whole, the defendant in error shall be entitled to the same per cent. ed, be affirmed, plaintiff enti- in damages, which is allowed by law in the case of an appeal.

tled to damages

how obtained.

SEC. 5. No writ of error shall be a supersedeas unless the court Supersedeas, of appeals, or some judge thereof in vacation, after inspecting a copy of the record, shall order the same to be made a supersedeas; and so much of the act passed on the nineteenth day of December, Certain part one thousand seven hundred and ninety-six, as directs a judge grantof former law repealed. ing a supersedeas, "to certify that there is sufficient error in the Errors to be record for reversing the judgment, in whole or in part," is hereby assigned in wri- repealed. Every person, on obtaining a supersedeas, shall assign in writing, the particular error or errors in the record (k) on which he means to rely, and which shall be filed with the clerk of the court of appeals, at the time the writ of supersedeas issues; and on the

ting, and no others to be alleged or examined by the

court.

(1) A mandamus to compel the registration of a survey purporting to be made on a Virginia land office warrant, involves the rights and interests of the Commonwealth so as to authorize an appeal to be taken by the Attorney General under the above statute.-Com'th v. Black, 1 Bibb, 531.

(k) Every assignment of error should make

out a particular case or point to which the defendant can answer; and errors which are properly assignable below on a writ of error coram vobis, and not assigned there, cannot be noticed on an appeal.-Lansdale v. Finley, Har. 151.

2. Assignment of errors will not be regarded in the court of appeals, unless they have been

trial thereof, no other errors shall be alleged by the party, or examined into by the court.

1800.

IN FORCE FROM ITS PASSAGE.

AN ACT concerning the Court of Appeals: Approved Dec. 20, 1800.-2 Litt. 412. SEC. 3. Be it further enacted, That whenever a writ of error shall be sued out, or wherever an appeal shall be granted, the record shall be returned to the court of appeals, on or before the third day of the first court, unless for good cause shown, the court shall grant a further day, which in appeals and writs of error (which shall have been made supersedeases,) shall not be beyond the third day of the second term. (1)

SEC. 4. Appeals and writs of error shall stand for trial at the court to which the record shall be returned; and in writs of error, the pleadings, when necessary, shall be had in court; but the court, for good cause shown, may grant a continuance in any cause before them, under such equitable restrictions as they shall deem right.

1801.

On writs of error or appeals when the reclodged.

ord is to be

When ap

peals and writs of error to stand

for trial.

IN FORCE FROM ITS PASSAGE.

AN ACT to amend the act entitled "an act establishing the Court of Appeals, and for other purposes:" Approved Dec. 19, 1801.-2 Litt. 443.

SEC. 3. No appeal shall be taken from the county court, on a judgment affirming or reversing the judgment of a justice of the

brought before the court below for adjudication. -Payne v. Mattox, 1 Bibb, 164.

3. A defendant who sues out a writ of error, will not be permitted to assign for error the incorrectness of the decree as to a defendant who did not join in the writ.-Oldham v. Rowan, 4 Bibb, 544.

4. If the writ of error relates exclusively to the original judgment, and the assignment of errors to the commissioner's report under the occupying claimant law, the errors assigned cannot be noticed, nor can the writ be amended to make it apply to the errors; it is only in cases where the writ is defective, that it can be amended. Smith v. Hornback, 3 Mar. 379.

5. Where the assignment of errors questions the right, and not the mode of relief, the court will only examine the right.-Breckenridge v. Todd, 3 Mon. 56.

Appeal or writ of error

from judgment

6. An assignment of error, that the court erred in overruling the motion for a new trial, brings before the court every question made in the grounds of the motion for a new trial, though made and decided before trial.-McAlexander v. Wright, 3 Mon. 191.

7. An assignment of error in general terms, "that the court below erred in dismissing the complainant's bill," will embrace an error in dismissing it absolutely, when it should have only been without prejudice.-Payne v. Richardson, 7 J.J. Mar. 240.

The court of appeals will give a liberal construction to assignments of error, so as to reach the justice of the case.-Ibid.

(1) A record made out and sworn to be correct by one not clerk, the clerk having died and no successor appointed when it was necessary to file the record in the court of appeals, will be ad

134

of county court peace, nor shall a writ of error be issued from the court of appeals to reverse the same. (m)

not to be sued

in certain case,

1802.

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IN FORCE FROM ITS PASSAGE.

AN ACT concerning Writs of Error in certain cases: Approved December 24, 1802.-3 Litt. 92.

Whereas, great inconveniences and expense arise to the citizens of this commonwealth, by the frequency of writs of error issuing from the court of appeals on replevin bonds, and bonds for the forthcoming of property: For remedy whereof,

SEC. 1. Be it enacted by the General Assembly, That no writ of error, with or without a supersedeas, shall issue to stay any judgment or execution on any such bond or bonds, for any error in such bonds, or in the sheriff or other officer taking the same, until the error thereof shall have been adjudged of by the court from which said execution first issued, or to which the return of such bonds were made.

1803.

Judge may

IN FORCE FROM ITS PASSAGE.

AN ACT to amend the act entitled, "An Act concerning the Court of Appeals :”
Approved November 24, 1803.-3 Litt. 100.

SEC. 2. And be it further enacted, That during such recess of the grant superse- court, any judge thereof may direct that a writ of error about to be deas during recess of court. sued out, shall operate as a supersedeas.

No appeal or writ of error to

be sued out, unless judgment,

decree, or order be final.

1804.

IN FORCE FROM ITS PASSAGE.

AN ACT concerning the Court of Appeals: Approved December 10, 1804.-3

Litt. 177.

SEC. 1. Be it enacted by the General Assembly, That no appeal shall be granted to the court of appeals, or writ of error sued out from the court of appeals, except in cases where a final decree hath been pronounced, judgment rendered, or order made. (n)

mitted to prevent a dismissal of the appeal. Clay v. Rodgers, 7 J. J. Mar. 340.

(m) A writ of error will not lie to the decision of a county court upon an appeal from a justice of the peace.-Moody v. Head, Pr. Dec. 395.

(n) No writ of error or appeal lies to an or

der punishing for a contempt.-Johnston v. Commonwealth, 1 Bibb, 598.

2. An order of the circuit court, merely setting aside a judgment and verdict, and rendering a judgment for costs, without making any other disposition of the case, is not such a final judgment as will authorize suing out a writ of error. -Robinson v. Scott, 3 Litt. 233.

IN FORCE THREE MONTHS AFTER ITS PASSAGE.

AN ACT to amend the Penal Laws: Approved December 19, 1804.-3 Litt. 241. [SEC. 6.]; and no appeal or writ of error shall be had in any case prosecuted under the act respecting riots, routs, and unlawful assemblies of the people, or under the act respecting the disturbance of religious societies.

Appeals or writs of error prohibited in riots, &c,

1812.

IN FORCE FROM ITS PASSAGE.

AN ACT concerning the bond to be executed to make a Writ of Error issuing from the Court of Appeals, a Supersedeas: Approved February 1, 1812.4 Litt. 367.

Supersedeas bond may be executed in the

clerk's office where decision

SEC. 1. Be it enacted by the General Assembly of the Commonwealth of Kentucky, That when any person intends to obtain from the Court of Appeals, or any judge thereof, an order that a writ of error about to be sued out by him shall operate as a supersedeas, it shall be lawful for such person to execute bond in the clerk's office was had. of the court where the decision intended to be superseded is had; which bond shall be taken by the clerk of the said court, with sufficient security and in sufficient penalty, and shall be in substance as follows: Know all men by these presents, that we, A. B. and C. D. are held and firmly bound unto E. F. in the sum of lawful money, to be paid to the said E. F. his executors, administrators or assigns, for which payment well and truly to be made, we bind ourselves and each of us, our and each of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, in the year and dated the

day of

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of Form of bond.

The

Condition.

condition of this obligation is such, that whereas a decree, judg-
ment or order, (as the case may be) was rendered at the
term of the

court, between A. B. plaintiff, and E. F. defendant, as follows: (here insert the decree, judgment or order) Now in the event of the said A. B. obtaining a writ of error with supersedeas staying proceedings thereon, and the affirmance of the same in part or entirely, if the said A. B. shall well and truly comply with the decree, judgment or order aforesaid, (as the case may be) as affirmed by the Court of Appeals, or in case the writ of er

3. A writ of error lies only to final decisions; and an order of the county court quashing the inquisition of ad quod damnum is not such a final decision.-Allison v. Taylor, 3 Mon. 7.

4. In cases of contempt, court of appeals has power to correct erroneous judgments and sen

tences, though it cannot retry questions of "contempt or no contempt."-Birkley v. Commonwealth, 2 J. J. Mar. 575.

5. No writ of error lies to a nisi or interlocutory decree.-Phillips, &c. v Alcorn, &c. 4 J. J. Mar. 39.

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