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of such judgment, make and present to such justice an affidavit alleg
Amdavit to ing therein that the party recovering such judgment, had recovered therein at least five dollars more than was justly and honestly due such party. And no party in whose favor a judgment has been ren. dered by a justice of the peace upon any claim arising upon contract, express or implied, shall appeal therefrom to the circuit court, unless such party, his agent or attorney, shall within five days after the rendition of such judgment make and present to such justice an affidavit alleging therein that such judgment was not rendered for as much by at least eight dollars as was justly and honestly due such party.
Sec. 8. No party against whom a judgment has been rendered by a justice of the peace in any action other than those arising upon contract, express or implied shall appeal therefrom to the circuit court unless such party, his agent or attorney, shall, within five days after the rendition of such judgment make ond present 10 such justice an affidavit alleging therein that such judgment was at least eight dollars more than it ought to have been rendered for under the evidence in the case, according to the knowledge and belief of the person so ma. king such affidavit, and no party in whose favor a judgment has been rendered by a justice of the peace in any action other than those arising upon contract, express or implied, shall appeal therefrom to the circuit court, unless such party, his agent or attorney, shall within five days after the rendition of such judgment make and present to such justice an affidavit, alleging therein, that such judgment is not as much, by at least ten dollars as it ought to have been rendered for under the evidence in the case, according to the knowledge and belief of the person so making such affidavit : Provided, That either party conceiving himself injured and aggrieved may appeal from a judgment rendered by a justice of the peace in un action of replevin to the circuit court, by presenting such justice within five days after the Reple vin. rendition of such judgment, an affidavit made by himself, his agent, or attorney, in which it is alleged that such judgment is not in accor. dance with the legal and just rights of such party so appealing, as the person making such affidavit, verily believes, and otherwise complying with the requisition of this act as hereinafter provided.
Sec. 4. If any party shall appeal from a judgment rendered by a
justice of the peace as hereinbefore provided, such party, his agent or attorney, shall, within five days after the rendition of such judgment
enter into a recognizance with at least one responsible surety, in a sum Costs may, not less than double the amount of the judgment and costs' conditioned
to prosecute such appeal with due diligence to judgment, in the circuit court of the proper county, and to abide the order such court may make thereon, and to pay any such judgment as such court may render against the party so appealing, together with the costs and interests thereon. And the party so appealing, his agent, or attorney, shall, at the time of entering into such recognizance, pay to such justice the costs of the suit, and one dollar for making and filing his return 10 the circuit court : Provided, That such recognizance shall, in no case be in a less sum than lify dollars.
Sec. 5. No justice of the peace shall receive any recognizance on Justice shall receive re- appeal as hereinbefore provided, unless the person entering into the ceive recognizance, same as surety, justifies his responsibility on oath, and answers any
question touching his pecuniary circumstances, which such justice may deem proper to put : Provided, That such justification shall not be necessary where the opposite party, or his attorney admits the pecuniary responsibility of such surety to be sufficient, and it shall be the duty of the justice, at the time such recognizance is received to certify thereon whether the surety justified or his responsi
bility was admitted as aforesaid. Proceedings
Sec, 6. Upon an appeal being made according to the foregoing provisions all further proceedings on the judgment before the justice, shall be suspended, and if in the meantime execution shall have been issued, the justice shall give the appellant a certificate that an appeal has been duly made in the case.
Sec. 7. On such certificate being presented to the officer holding goods, &c. the execution, such officer shall forthwith release any goods or chat
tels levied on, or release the body of the appellant if taken, and if such appellant has been committed to prison the jailor shall upon such certificate being served upon him, forthwith release such appellant from prison.
Sec. 8. Within ten days after any appeal shall have been duly made, the justice shall make a return of the proceedings had in the
Officer to release
Return of justice.
case before him to the circuit court of the county in which such jus-
parties prosecuted or defended before him.
Second. The claim or demand of the plaintiff, and if his declaration was in writing, a correct copy thereof shall be set forth or attached to such return.
Third. The pleadings on the part of the defendant, including notice of set off, or any other notice given, if any, and if the same were in writing, a copy thereof set forth or attached to such return. Fourth. The replication, demurrer, and all other proceedings of
Requisitos. the parties touching the issue between them, if any, and if the same were in writing, copies thereof shall be set fourth or attached to such return.
Fifth. If the trial was by jury, the names of the jurors and their verdict.
Sixth. The judgment rendered, and the time of rendering the same; and
Seventh. The time when recognizance was entered into and the affidavit presented.
Sec. 9. Within ten days aster the appeal is duly made, the justice shall file in the office of the clerk of the circuit court of the county, file returns. his returns in writing, made as hereinbefore directed, together with all papers filed with him by either party, or in any way touching or relating to the cause, and the affidavit and recognizance delivered to him by the appellant.
Sec. 10. Upon the return of the justice being made and filed with the clerk, as hereinbefore provided, the circuit court shall be possess- jurisdiction
and powers, ed of the cause, and shall have full authority to inspect and examine into all the proceedings of the justice, from whose decision such appeal was taken, and particularly respecting the issuing of any process, or the affidavit upon which any process issued, the granting or denying any motion to set aside any process, or the service thereof, or the granting or denying any other motion, the overruling or sustaining any demurrer, plea in abatement, or other pleading on either side, the allowance or rejection of any claim or defence, the granting or denying any application of either party for leave to plead, or to
Fail tomake return.
amend any pleadings of either party, and respecting all other mat. ters and proceedings upon which, heretofore a writ of certiorari might have been brought to remove the same to the circuit court, for the correction thereof, and upon such inspection and examination, the said circuit court shall give such judgment, or make such order in the premises as law and justice and the rights of the parties may require:
Provided, That in order to entitle the appellant to the benefit of the Proviso.
provisions contained in this section, he shall take his appeal as here. inbefore provided, and shall also set forth in his affidavit, in addition to the ordinary matter as hereinbefore prescribed,specially the grounds of his objection to, or complaint of the proceedings before, and the decisions by the justice in the cause, to which such justice shall make special return, as to all such special matters, stated and set forth in such affidavit, in addition to the ordinary particulars which he is required to return, as hereinbefore designated.
Sec. 11. If the justice shall fail to make a return as hereinbefore provided, either party, upon filing an affidavit with the clerk of the circuit court, and stating therein that an appeal has been duly made, in the cause, and that, the justice neglects or refuses to make and file his return, may enter a rule in the common rule book kept by such clerk, either in term or vacation, that such justice be required to make and file such return immediately, after due service of notice of such rule, or show cause to such circuit court why an attachment
should not be issued against him: Provided, That in case such Proviso.
rule be entered in vacation, it shall be for such justice to make returns as aforesaid, or show cause as aforesaid, on the first day of the next term of the said court, and is such rule be entered in term, i: shall be for such justice to make return as aforesaid, or show cause as aforesaid forth with.
Sec, 12. The circuit court, upon evidence being given that an apAttachment gainst jus- peal has been duly made, may, by rule and attachment, compel a retice.
turn by the justice of his proceedings, and of all papers required to be returned by him, as hereinbesore provided, during the same term, or at a subsequent term of the court; and upon satisfactory evidence that a return of a justice, when made, is substantially erroneous or defective, the court may in like manner, compel him to amend or correct the same. And the court may punish the justice for any such
disobedience of its orders, by imprisonment until he submit, and may adjudge that he pay the costs of any such proceedings against him and any necessary order in such case shall be enforced as other orders of the court; and upon the return of the justice being filed and perfected, the court shall require the parties to proceed in the cause with all due diligence, but they shall not be compelled to proceed at any term, unless such return shall have been filed with the clerk at least ten days before the first day of such term.
Sec. 13. If the return of the justice be filed, either party, by ser- Notice of ving a notice of trial for the next term of the court, eight days before the first day of such term, may have the cause placed upon the calender for trial, the same as in other causes.
Sec, 14. No motion to dismiss an appeal shall be entertained by the court after the first term, at which the same might have been made,
dismissed. unless some reasonable and satisfactory excuse for not having made such motion at such first term, can be shown to the court, and no appeal shall be dismissed on the ground of any informality or other imperfections in the recognizance entered into by, or in behalf of the appellants, if the persons entering into the same consent to have the necessary amendments made therein, or if another sufficient recognizance, to be approved by the court, shall be duly filed. And in such case the court shall amend or receive such recognizance accordingly.
Sec. 15. If an appeal be dismissed for any cause, the court shall award costs to the appellee, and may enforce the payment thereof, by rendering a judgment against the appellant and his sureties for the same, and execution may issue thereon, as in other cases, and judgment for such costs shall, on motion of the appellee, be entered, as well against the surety in the recognizance, as against the appellant, and if the appeal be dismissed in consequence of the informality or insufficiency of the recognizance, then and in such case, the court may enforce the payment of such costs, by rule and attachment against the appellant. Sec. 16. If the appeal be not dismissed, the court shall proceed to Final hear
ing. the hearing of the cause, and if the issue joined before the justice was an issue of law, the court shall examine and render judgment thereon, according to the law of the case. And if such judgment be