Costs may

be recover

cd.

Justice shall

ceive recog

nizance.

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 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 to the circuit court: Provided, That such recognizance shall, in no case be in a less sum than fifty dollars.

Sec. 5. No justice of the peace shall receive any recognizance on receive re- appeal as hereinbefore provided, unless the person entering into the 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 responsibility was admitted as aforesaid.

Proceedings

Officer to release

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 chattels 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.

Return of justice.

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

case before him to the circuit court of the county in which such justice shall fully state :

First. The title of the cause and the character in which the 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 Requisites. 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.

Justice to

Sec. 9. Within ten days after 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.

C. Court

and powers.

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 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

Proviso.

Fail tomake return.

Proviso.

Attachment to issue a

tice.

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 provisions contained in this section, he shall take his appeal as hereinbefore 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 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 if such rule be entered in term, it shall be for such justice to make return as aforesaid, or show cause as aforesaid forthwith.

Sec. 12. The circuit court, upon evidence being given that an api peal has been duly made, may, by rule and attachment, compel a return by the justice of his proceedings, and of all papers required to be returned by him, as hereinbefore 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.

trial.

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, 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.

Appeal, not

dismissed.

Costs.

ing.

Sec. 16. If the appeal be not dismissed, the court shall proceed to Final hearthe 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

Issues of

fact tried by jury.

Costs shall be awarded.

against any pleading of either party, an amendment of such pleading may be allowed on such terms as the court may be deem just and equitable; and the court may also require the opposite party to answer such amended pleading, or to join issue thereon, as the case may require, summarily or otherwise. And if upon an appeal on an issue of law, the court should adjudge any pleading complained of to be sufficient, such court may, in like manner require the opposite par ty, summarily or otherwise, to answer such pleading, or to join issue thereon.

Sec. 17. If the issue joined before the justice was an issue of fact› the court shall proceed to have the same tried by jury, or referred to referees in the same manner as if such issue had been joined in a suit originally commenced in such circuit court, and such court shall have the same power over the verdict of the jury or the report of the referees, and shall render judgment thereon in the same manner as in other suits in such court.

Sec. 18. Costs in judgments rendered on appeals in circuit courts shall be awarded as follows:

First. If the party against whom judgment was rendered in the court below on contract [express or implied,] appeal therefrom, and such judgment shall not be reduced in the circuit court, five dollars or more, full costs shall be awarded against the appellant, if such judgment shall be reduced in the circuit court five dollars or more, then full costs shall be awarded against the appellee.

Second. If the party in whose favor judgment was rendered in the court below, on contract, express or implied, appeal therefrom, and such judgment shall not be increased in the circuit court eight dollars or more, full costs shall be awarded against the appellant; if such judgment shall be increased in the circuit court eight dollars or more, then full costs may be awarded against the appellee, or otherwise as such circuit court may deem right and just.

Third. If the party against whom judgment was rendered in the court below on any claim other than contract, express or implied, appeal therefrom, and such judgment shall not be reduced in the circuit court, eight dollars or more, full costs shall be awarded against the appellant; if such judgment shall be renduced in the circuit court eight dollars or more, then full costs shall be awarded against the appellee.