ing through his or her lands, by the county court, to prosecute an appeal, or writ of error, into the circuit court of the county-on the return of which into the circuit court, such court shall have full power and authority to try all matters of law and fact in controversy; and to either reverse, or affirm, the judgment of the county court, or to give a different judgment and to award costs, in the same manner and to the same extent that the court of appeals has; and it shall be the duty of the county court to obey and carry into effect the mandate or decree of the circuit so made.

SEC. 2. Be it further enacted, That in all cases where the county courts shall, by their order or judgment open a new road, or alter, or discontinue an old road, whereby the public interest may

3. The court will hear motions for the discharge of a supersedeas, or for additional security, when the security taken is an improper or insufficient person.-Lynch v. Bullet, &c. Har. 314.

4. If an application for a supersedeas be overruled, the transcript of the record must remain with the clerk of this court, unless the court refuse to decide on the merits of the errors assigned for want of jurisdiction.-Whitney v. Douds, Har. 373.

5. Upon a writ of error this court will give judgment on the whole record, and if it appear that the judgment of the court below ought not to have been for the plaintiff in error, he cannot maintain his suit.-Joice's Ex'rs v. Handley, 3 Bibb, 226. See also, Brents v. Barnett, 3 Bibb, 251.

6. The court of appeals will not reverse a decree in chancery on the ground of depositions having been improperly excluded, if they see that the final decree ought to have been against the party in whose favor they were taken, if they had been admitted.—Cravens, &c. v. Harrison, 3

Litt. 92.

7. Notwithstanding one of several plaintiffs in error may obtain a severance, and refuse to prosecute the writ of error, yet the court of appeals may reverse the decree as to him, or entirely, as if no severance had taken place.-Bowman and Smiths v. Castleman, 4 Litt. 303.

8. One judge declining to sit in the case and the other two not concurring, decree of the circuit court affirmed with costs.-Faris v. Shanks, 7 Mon. 133; Letcher v. Bank of Com'th 1 Dana 82.

9. If, pending the writ of error with supersedeas, the defendant in error make sufficient proof of the existence and loss of the process and sheriff's return, the lack of which was the only error, the judgment will be affirmed with dama

Appeal or

writ of error

may be taken to circuit court,

which is to try the law & fact.

Attorney for commonwealth

may prosecute appeals, &c. in certain road cases.

ges and costs.-Gentry, &c. v. Hutchcraft, 7 Mon. 245.

10. Pleas for the lack of bonds for costs must be filed in this court at the first term to which process is returned fully executed.

The act requiring such bonds for costs, applies to this court.-Hopkins v. Chambers, 7 Mon. 255, 256.

11. Mistake in an opinion of this court, ordering damages where none was recoverable, might probably be corrected at a subsequent term, as a clerical mistake.-Davis v. Ballard, 7 Mon. 604.

12. The act requiring non-resident plaintiffs to give security for costs applies to the court of appeals. Security for costs may be given at any time before trial, unless the omission be pleaded. in abatement.-Cabell v. Payne, 2 J. J. Mar.

134.

does not abate writ. If defendant die before 13. Defendant in error dying before writ issues, date of the writ, summons must issue against his representatives.-Hutchcraft's Executors v. Gentry, &c. 2 J. J. Mar. 499.

14. When part of the appellants compromise pending an appeal and pray a dismissal the court will only give costs upon a reversal to such as pursue the appeal, notwithstanding the reversal be as to all,-Nelson's Heirs v. Clay's Heirs, 7 J. J. Mar. 143.

15. It is too late to object that one of several against whom judgment was rendered before a justice of the peace, failed to unite in an appeal bond after the case has been tried in the circuit court and court of appeals and remanded.Brasfield v. Baugh, &c. 7 J. J. Mar. 330.

16. The death of the plaintiff in error prior to the emanation of the writ is fatal on a plea in abatement.-Lillard v. Fields, 7 J. J. Mar. 148.

ecutor.

be injured, or where they shall refuse to open any road, that the public road (good) may require; that it shall and may be lawful for the prosecuting attorney for the circuit court, to sue out a writ of error to the circuit court as before directed, and for that court in all things to hear the cases on law and fact, and do justice between the Provided, commonwealth and the party complaining: Provided however, that there is a prosno writ of error or appeal shall be so prosecuted, until one or more persons shall enter as prosecutors, who shall be liable for all costs that may accrue on such writ of error or appeal, and likewise to pay the defendant in error his costs, if the judgment of the county court shall be affirmed: Provided further, that either party in the circuit court may appeal from the judgment of the circuit court to the court of appeals, who shall try and determine the controversy, on the law and evidence apparent on the record alone.

Either party may appeal from the circuit

court to court

of appeals.

[For Limitations to Writs of Error see title LIMITATION.]

When the court may ex officio amend a writ of error, it will be considered to be done without any formal order.-Ibid.

17. The appellee may bring up the record and submit it as a delay case before the expiration of the time allowed the appellant to file the record, but he recovers no costs although successful.O'Hara v. Lex. & Ohio Rail Road Company, 1 Dana, 232.

Effect of Appeals and Writs of Error. 1. An appeal from a decision of an inferior court overruling a motion to set aside proceedings subsequent to the judgment, does not supersede the proceedings under the original judgment. -Hayden v. Herbert, Har. 143.

2. On reversing the decree of an inferior court, the decree pronounced by the court of appeals and remanded to the inferior court to be carried into effect, cannot afterwards be inquired into by the inferior court or court of appeals. If an appeal be taken from proceedings had thereon it only remains to be considered whether the decree of the court of appeals has been carried into effect according to its true intent and meaning. -Brown v. Crow's Heirs, Har. 443.

3. It is not competent for an inferior court to

do any act in contravention to the mandate from the court of appeals.-Holley v. Holley, 5 Litt. 291.

4. When a defendant to the original bill files a cross bill, making his co-defendants and others defendants, and the original bill and his cross bill are each dismissed, the appeal of the original complainant does not bring the decree dismissing the cross bill before the court.-Stevenson and wife v. Dunlap's and Bleight's Heirs, 7 Mon. 139.

5. Writ of error by two, to a decree against one of them in favor of defendant, does not reach a decree in favor of one of the plaintiffs against the other.-Thomas, &c. v. Kelsoe, 7 Mon. 523.

6. Granting an appeal does not ipso facto before the execution of bond suspend a judgment or decree, and it is not therefore error to issue an execution within the time given to execute an appeal bond.-Freeman and Ewell v. Patton, 1 J.J. Mar. 193.

7. An appeal terminates the action in the inferior court in the case until the appeal is disposed of.-Helm v. Boone, &c. 6 J. J. Mar. 353.

Dismissal of appeal does not bar the appellant from prosecuting a writ of error.--Ibid.

TITLE 10.

ARBITRATIONS AND AWARDS.

1797.

IN FORCE FROM ITS PASSAGE.

AN ACT concerning Guardians, Infants, Masters and Apprentices: Approved
March 1st, 1797.-1 Litt. 676.

When the claim of any infant or infants to land shall interfere with the claim or claims of any other person or persons, it shall and may be lawful for the guardian of such infant or infants, to settle such dispute with the proprietor or proprietors of the interfering claim or claims, by submitting the same to reference (a) agreeable to the arbitration laws which may be in force, and the award of the referees shall be entered up as the judgment of the court to whom the said award shall be returned, and shall be as binding on such infant or infants and the proprietor or proprietors of the interfering claim or claims, as if the same were determined by a decree of the court, according to the usual forms of law.

1798.

IN FORCE FROM THE FIRST OF MARCH 1798.

Guardians may tration lands of their wards.

submit to arbi

Award to be made the judgment of court,

and to bind the infants, &c.

A submission to arbitration to

AN ACT concerning Awards: Approved February 12, 1798.-2 Litt. 72. SEC. 1. It shall and may be lawful, for all persons (b) desirous to end any controversy or suit by arbitration to appoint any person or be made a rule

(a) The authority given by the act of 1797 to guardians to submit to arbitration the land disputes of their wards is not repealed by the last section of the act of 1798, which declares "that all former acts concerning awards, &c. are hereby repealed."-Galloway's Heirs v. Webb, Har. 318.

2. An award relative to an infant's real estate, which directs a conveyance by the guardian, is good at most this part is but matter of form. -Galloway's Heirs v. Webb, Har. 319.

An order of reference may be made by the court, on the application of the parties, to the persons composing the court.-Ibid.

of court.

3. A guardian cannot by his agreement set aside an award in favor of his wards under a submission made by him.-Irvine's Heirs v. Crockett, 4 Bibb, 437.

4. Unless it appear from the record that they were represented by their guardian in the submission, it will be error to render judgment on an award affecting the rights of infants.-Frost v. Smith's Heirs, 7 J. J. Mar. 129.

(b) A defendant in ejectment who has been admitted to defend for himself and co-defendants may submit the cause to arbitration, unless the record shows that the other defendants had

Arbitrators, persons as arbitrators, and (if no suit is depending) shall concisely how to be noti- state in writing (c) the nature of their controversy, to any court

Where they

refuse to act, what to be done

Power of arbitrators to

having jurisdiction thereof; and the said court shall thereupon issue their order, certified by their clerk and directed to the said arbitrators, stating the dispute to them referred, and in case any arbitrator or arbitrators so appointed, shall fail or refuse to act, the court may, on the application of either party, and their making satisfactory proof thereof, either discharge the said order of reference, or appoint such other referees as the parties shall nominate. The said arbitrators or either of them, are empowered to issue subpoenas summon wit(d) for witnesses, under the same regulations as clerks of quarter nesses, session courts are, to which all sheriffs and constables are directed to give obedience, and all persons summoned as witnesses by virtue of said subpoenas, who may fail to attend at the times and places in the said subpœnas expressed, or refusing to give evidence when they do attend, shall be subject to the same fines and penalties, as witnesses are in similar cases, in the courts of quarter sessions.

Penalty on witnesses failing to attend.

Arbitrators

SEC. 2. The arbitrators so chosen, before they enter on the investigation of any matters to them submitted, shall take an oath (e) to take oath. or affirmation, impartially to determine the controversy to them submitted, agreeably to law, evidence, and the equity of the case, to the best of their judgment, without favor or affection; which oath shall be administered to them by any judge or justice of the peace within this Commonwealth. The said arbitrators shall make up their award in writing, under their hands and seals, noting therein the time at which it was made; one fair copy of which, signed as aforesaid, shall immediately upon its being made, be delivered to each of

a statement in writing setting forth the matters of difference not in suit.-Frost v. Smith's Heirs, J. J. Mar. 128.

14. When parties agree by articles, in writing, to submit their controversies to arbitration by rule of court, and a rule is made, the arbitrators receive their authority from the rule, and not from the articles; and should decide in eject ment upon the whole case, though the demise in one count be in the name of lessors who did not sign the agreement.-Ibid, 7 J. J. Mar. 130.

15. Two suits were referred to arbitrators; by a subsequent order, embracing only one of the suits, one of the arbitrators was superseded; the substitute and his colleague returned an award on both suits: held that the award was invalid, as but one suit was referred to these arbitrators. An agreement of reference (under the statute) must state the dispute or suit referred; and the power of the arbitrators is restricted to the mat

ters included in the statement.

Extraneous evidence not admissible to show what the parties agreed to refer; it should appear by the record.-Grimes v. Grimes, 1Dana, 234.

VOL. I.

Award to be in writing under hand and seal

of arbitrators.

16. Several claims being referred by a general submission, an award for plaintiff for one or more, and silent as to the others, will be taken to be against him as to the latter.-Engleman's Exr's. v. Engleman, 1 Dana, 439.

(d) The refusal by the arbitrators to issue subpoenas for witnesses on application of either of the parties, will be a valid cause of objection to making the award the judgment of the court; but award need not state that subpoenas were issued. Shultv. Travis, Pr. Dec. 163.

(e) The award must show on its face that the arbitrators were sworn, as the law requires, to give them jurisdiction of the cause.-Price v. Smock, Oct. T. 1798, Mss; Shult v. Travis, Pr. Dec. 164; French v. Moseley, 1 Litt. 247; and this before they proceed to the consideration of the matters submitted to them, and parol proof of their having been sworn, is inadmissible.Blunt, &c. v. Sprowl, &c. Pr. Dec. 266-7.

2. On the rendition of an award, if it appear that the arbitrators were sworn, the law will presume it was done according to the statute.-Aills v. Voris, 1 Mar. 190.

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