against ex ministrators, § 40. Whenever any execution shall have issued, or any decree Пb. Scc. 2. made by the orphans' court, and final settlement of the accounts of Remedy executors, administrators or guardians, and is returned by the sheriff ecutors, ad"no property found," generally, or as to a part thereof, execution and guar may and shall forth with issue against the securities of such executor, administrator or guardians. dians. Sec. 1. cuit courts commissions § 41. In all settlements hereafter to be made by executors, adminis- 1833-(27) trators or guardians with the orphan's court, in which the judge of said Judges of su court may have been employed as counsel, or may be otherwise in- premne or cirterested in such settlement, it shall be the duty of said judge, to give may issue immediate information of the fact to one of the judges of the supreme for settle. or circuit courts, who shall thereupon issue a commission, to three ment of espersons of the proper county, directing and empowering them to pro-judge of ceed to make said settlement under the rules and regulations now pre- county court scribed by law. tates, when is interested. Settlements to be record § 42. Such settlement when made as aforesaid, shall be duly . Sec. 2. recorded by the clerk of the county court, and shall have all the force and effect of settlements made by the judge of said orphans' court. ed. § 43. In case of the neglect for an unreasonable time, or the refusal Ib. Sec. 3. Where judge of said judge of the orphans' court, to give the notification required in of county the first section of this act, the judge of the supreme or circuit court court refuses shall on the application of the executor, administrator, or guardian, or tice. other person interested in said settlement, and on satisfactory proof of such neglect or refusal, on the part of the judge of the orphans' court, direct said commission in the same manner as on information of said judge. to give no § 44. The county and orphans' court respectively, shall have full 1830-(11) power and authority to issue writs of attachment, or other writs necessary to enforce their orders, judgments, and decrees. Sec. 3. County court may enforce its decree by attachment. JUDICIAL PROCEEDINGS-ERRORS AND APPEALS. Duty of the writs of er 1. WHEN any appeal shall be granted by any court, or any writ 1807–(19) of error be directed to the same, the clerk of such court shall immedi- Sec. 39. ately make up a full and perfect record of all the proceedings in such clerk on ap cause, and shall, on the application of either of the parties, give an at-larer tested copy of such record, with a taxation of all costs which have ror. accrued, to the appellant or plaintiff in error, if required; and shall endorse on such copy the day or days on which the same may have been demanded, and the day on which it shall be delivered, and sign his name as clerk thereto; and if by reason of the delay of any clerk, any transcript shall not be filed in time, or the record is so erroneously or incorrectly made up, that the superior or supreme court cannot proceed thereon; such clerk shall, in either of the said cases, upon trial and conviction, be adjudged guilty of a misbehavior in office, and shall forfeit and pay to the person entitled to such attested copy, the Penalty for sum of two hundred dollars, to be recovered by action of debt, in neglect. any court having cognizance thereof, and shall be further liable to an action on the case, for all damages which such person may sustain for want of such copy: Provided always, That if the judge or judges Appeal not of the superior or supreme court, should be of opinion that there ap-ed for mere pears to be sufficient matter of substance in the transcript of the re-informality cord and proceedings, on any appeal or writ of error, to enable them script. to proceed thereon, the same shall not be dismissed for want of form; anything herein contained to the contrary notwithstanding. to be dismiss in the tran Пb. Sec. 40. perior court for record, docket. § 2. The clerk of any superior court, upon receiving a transcript of Clerk of su- the record and proceedings in any suit, on which an appeal shall be shall receipt made, or writ of error allowed, shall give a receipt to the person deand place the livering the same, and shall immediately endorse thereon the day on cause on the which it shall be delivered; and if he receive it fifteen days before the commencement of the term of the next superior court of which he is clerk, he shall enter it upon the docket of causes for trial, and deliver to the parties such summonses for their witnesses as they may require :-But if such transcript be not delivered to such clerk before fifteen days previous to the next succeeding term, then the clerk shall Penalty for enter the cause on the reference docket of such court. And if the refusal or ne- clerk of any superior court shall refuse, neglect, or omit to do any of the duties which he is hereby required to perform, such clerk shall, upon trial and conviction, be deemed guilty of a misbehavior in office, and shall forfeit and pay to the appellant or plaintiff in error two hundred dollars, to be recovered by action of debt, in any court having cognizance thereof, and be further liable to an action on the case, for all the damages which such appellant or plaintiff in error may sustain by reason of such refusal, neglect, or omission. glect. Tb. Sec. 41. Execution may be stay. cases, in or. § 3. When in any county or circuit court, judgment upon a verdict in a civil action shall be entered, execution may, on the motion of ed in certain either party, at the discretion of the court, and on such conditions for der to obtain the security of the adverse party as they may judge proper, be stayed writ of error. thirty days from the time of entering judgment, to give time to the party making such motion, to apply for a writ of error. Tb. Sec. 42. cerning writs tions to deci judge to be §4. The supreme court may ordain and establish all necessary rules, respecting the granting, issuing, returning, and hearing of writs of error. § 5. If, in the trial of any cause, either the plaintiff or defendant shall think himself aggrieved by the direction or decision of any judge, of any of the courts in this territory, the party so considering himself Bill of excep aggrieved, may in person, or by his counsel, tender to the judge givsion of the ing such direction or decision, a bill of exceptions to his opinion, statallowed, and ing the points wherein he is supposed to err; and the said judge shall form part of be bound to sign and seal the same; and the said bill of exceptions so the record. signed and sealed, shall be made and considered a part of the record in the cause; and in case the said judge shall refuse to sign and seal the said bill of exceptions, if the facts therein are truly stated, he shall [a 1826-(39) be deemed guilty of a high misdemeanor in office: (1) aand in all cases Judge failing in which the judge of any inferior court may fail or refuse to certify to certify, su- any exception taken on the trial of any cause, it shall be lawful for may, receive the supreme court to receive such evidence of the exception as may satisfactory be satisfactory to it, and to try the said cause in the same manner as if the said exception had been certified by the judge who tried the said cause. (2) Sec. 3.] preme court evidence of the excep tion. 1820-(4) Sec. 3. Bond on granting writ of error. [b 1814-(4) Sec. 5.] § 6. No judgment of the circuit court in this state shall be suspended, unless the party applying for the writ of error, shall execute in the clerk's office a bond with sufficient security (to the adverse 1 The provisions of this section, as to the return of writs of error, have been modified, or rather repealed by later acts. See hereafter, § 13. See also, "Judiciary-County Court,"-§ 4. (1) To be valid, a bill of exceptions must be claimed before verdict, and sealed as well as certified by the Judge. Powers v. Wright, Min. Rep. 66.— Exceptions not certified by the presiding judge, nor noted in writing at the trial, cannot be considered as on the record. Tombeckbe Bank . Malone & Co., 1 Stewt. Rep. 269. (2) But the exceptions must be established by proof within the trial term, and on notice to the opposite party. Perkins v. Harper, 2 Stewt. Rep. 477. aAnd the said [a 1814-(12) party) to be approved by the clerk, (1) conditioned for prosecuting the Condition. writ of error to effect, and to pay and satisfy the judgment which shall be rendered in the said cause by the supreme court. Sec. 2.] clerk shall send an attested copy of the bond to the said supreme court, with the transcript of the record: band in case of dismission or [b 1815-(12)| Sec. 3.] discontinuance of the cause, the supreme court shall render judgment Judgment against the principal and security in the bond. against secu. rity on af 1622-(6) § 7. If any clerk of the circuit for county court, upon issuing any firmance. writ of error shall take security which shall be insufficient at the time Sec. 1. of taking the same, he shall be liable to an action of trespass on the [c 1833-(18) Sec. 1.] case, in favor of the party aggrieved: Provided, That nothing in this Clerk liable act contained shall be so construed as to subject any clerk to a reco- for takinglinvery in the action aforesaid, for taking as security for any writ of er-curity. ror, any person who was generally reputed sufficient for the sum for which he became bound as security, at the time he was taken as security. sufficient se See, 2. § 8. Whenever a writ of error shall be filed in the clerk's office, of 1816—(10) any of the superior courts of this territory, in any cause or matter Writ of error finally determined in the said courts, and bond and security be given and bond to according to law, it shall operate as a supersedeas. be a superse deas. Sec. 1. § 9. Whenever a writ of error shall have issued from the clerk's 1818—(3) office of any of the superior courts of this territory, it shall be the clerk to give duty of the clerk of the court from which it shall have issued, to give certificate of the defendant in error, or to his attorney, on application, a certificate writ of error. stating that a writ of error has issued. issuance of Sec. 16. cuit to su preme court. file tran § 10. Either party may appeal from any final judgment or decree 1819—(6) of any circuit court during the term at which the judgment or decree Appeals to was rendered, to the supreme court, upon entering into bond with se- lie from circurity to be approved of by the court, in double the amount of the debt or damages in such his, or their suit, for prosecuting the same with effect, or performing the judgment, sentence, or decree which the supreme court shall pass or make thereon, in case the appellant shall have the cause decided against him; (2) and the appellant Appellant to shall file a transcript of the record with the clerk of the supreme script of recourt, on or before the third day of the first term of said supreme cord by third court after the appeal was granted, and on failure thereof the appeal term, or shall be dismissed with costs and damages, upon the appellee's producing a certificate from the clerk of the circuit court of the amount of the judgment or decree, and that bond had been executed according to the order of the court granting the appeal: Provided, That for good Cause may cause shown, the appeal may be reinstated any time during the term, be upon payment of costs. 1 day of the cause dis missed. be reinstat Writs of er ror to lie to supreme § 11. Writs of error shall lie from the court of errors and appeals, b. Sec. 20. to the respective circuit courts throughout the state; and it shall be the duty of the judges, or any one of them, on application, either in from circuit vacation or term time, to grant such writ of error, and to take good and sufficient security from the party demanding the same,—that the said party shall prosecute his writ to effect, and answer all damages and costs, if he fails to make his plea good. 1 Now required to be issued by the clerks. See § 13. (1) Judgment may be superseded by the bond, with security, of any one of several parties to a judgment; and one may sue out a writ of error in the name of all. Webster v. Yancy et al., Min. Rep. 183. (2) If the penalty of the bond is blank (or variant from the statute) the appeal must be dismissed. Henry v. Gamble, Min. Rep. 6.-An appeal will not lie to the supreme court in a criminal case. Humphrey v. The State, ib. 64. court. Ib. Sec. 21. court to pass § 12. When any judgment, decision, or decree of the circuit court shall be reversed or affirmed in the court of errors and appeals, it shall be the duty of said court, to pass such judgment, decision, or decree ment as cir- as the circuit court should have passed, except where the damages to should have be assessed, or matter to be decreed, are uncertain; in which case the passed, or reand cause. said court shall remand the same for final hearing. cuit court 1820-(4) Sec. 1. to be issued record and to party ap plying for writ. [a 1816-(10) § 13. It shall be the duty of the clerks of the circuit courts in this Writ of error state respectively, on the application of the party against whom any and citation final judgment shall have been rendered, or on the application of the by clerk of attorney of the said party, to issue a writ of error returnable to the circuit court. first day of the next term of the supreme court, and also to issue a citation which shall be served upon the opposite party or his attorney, by the proper officer of the court, at least ten days previous to the commencement of the next term of the supreme court, which citation shall be returned to the office of the clerk from which it issued, whenTranscript of ever served, whether in vacation or term time, and shall, together citation to with a transcript of the record in the cause, be delivered to the party be delivered applying for the writ of error, or his, her, or their attorney, to be by him, her, or them returned to the first day of the next term of the supreme court; and in case the transcript of the record in the cause below, and the assignment of errors should not be delivered to the clerk of the supreme court, on or before the third day of the term to which the writ of error shall be returnable, it shall be lawful for the third day of supreme court, at that term, or at any term thereafter, on motion of the term, the defendant in error or his attorney, and on producing a copy of the dismissed on citation served upon the defendant, certified by the sheriff, or on producing a certificate from the clerk of the court from which the writ of error issued, showing the time at which it issued, and amount for which judgment was rendered, and at what term of the court below, [b 1818-(3) to affirm the judgment of the circuit court with costs of suit; bunless the plaintiff in error, or some other person, shall make affidavit that the transcript of the record could not be procured from the clerk of the court below: but the cause may be reinstated on the docket at any time during the term to which the writ shall be made returnable, upon showing sufficient cause to the said supreme court. Sec. 1.J If not filed on or before cause to be motion. Sec. 2, & 1816-(10) Sec. 1.] But may be reinstated. Ib. Sec. 2. preme court to certify judgment to clerk of infe rior court, with bill of costs. ferior court shall issue execution, § 14. When a final judgment shall be rendered by the supreme Clerk of su court in any cause, it shall be the duty of the clerk of the supreme court to certify the judgment of the said court to the clerk of the court from which the cause came, together with a bill of the costs accruing in the supreme court; and it shall be the duty of the clerk of the court below, immediately on the receipt of the said certificate, to issue exeClerk of in- cution, if judgment be rendered for the plaintiff in the original cause, for all the money, together with all the costs of the suit in the court below, and supreme court, which by the judgment of the supreme court may be due from the defendant to the plaintiff, or to issue such an execution as may be directed by the supreme court; but if judgment be rendered for the defendant in the original cause, then against the plaintiff in the original cause, for all the said costs of suit, or such other execution as may be directed by the supreme court, returnable and transmit to the next term of the court below. And it shall be the duty of the clerk of the court below, to transmit to the clerk of the supreme court, upon the return of the said execution satisfied, all the costs which may have accrued in the same cause in the supreme court.1 to the su preme court, its costs, when collectcd. 1 The supreme court is empowered to give judgment and award execution for its own costs. Sce § 22. court to de § 15. It shall be the duty of the supreme court to decide all the Ib. Sec. 4. causes which may be returned to the said court at the return term Supreme thereof, unless for good cause the same shall be continued; and in all cide at return cases decided in the supreme court, the successful party shall be enti- Tax fee. tled to the same fee which is now allowed in chancery causes in the circuit court. term. Novel ques § 16. It shall not hereafter be lawful for any circuit court to refer to Ib. Sec. 5. the supreme court any question of law, except such as may be novel tions in cri and difficult, and arise in a criminal case. minal cases only, to be § 17. A writ of error may issue to reverse any final judgment in the referred. circuit court, at any time within three years after the rendition of the Ib. Sec. 7. judgment, and not afterward. Writ of error § 18. It shall be lawful for any judge of the supreme court, who shall not have given an opinion in the case below, to sit in the trial of What judges the said cause in the supreme court. may sit in supreme court. Sec. 5. Damages, in § 19. In case the supreme court of errors and appeals shall affirm 1814—(4) entirely any judgment or decree brought before them, the plaintiff in error, if he be the defendant below, shall pay to the defendant in error, terest and ten per centum damages on the amount due with lawful interest from firmance. the time of rendering the original judgment or decree, besides the costs (a 1811-(13) Sec. 1.] of the original suit and writ of error. cost, on af Sec. 11. § 20. Whenever the judgment of a circuit court shall, on appeal or 1820——(4) writ of error to the supreme court, be affirmed, ten per cent. damages Damages 10 shall be allowed, and not more: Provided, That no damages shall be per cent., but allowed in any cause in the supreme court, unless the judgment of the lowed unless court below shall have been suspended. (1) not to be al judgment was suspend Sec. 1. preme court costs not collected. § 21. In causes wherein the judgments have been affirmed or re-ed. versed by the supreme court, and in which the costs incurred in that 1822-(16) court have not been collected, the clerk of the said supreme court may Clerk of su issue the proper writs of execution, in the names of the successful may issue exparties, against the parties respectively subjected to the payment of ecution for such costs, returnable to the succeeding term thereof. §22. When judgment of an inferior court in any cause shall be b. Sec. 2. May give affirmed or reversed by the supreme court, the said supreme court judgment may give judgment and award execution against the unsuccessful party execution for for the costs of such cause, incurred in the said supreme court: and costs. it shall be the duty of the sheriff or other officer to whom such writ vy, and make of execution shall be directed, to levy or execute, and make return return. thereof to the said supreme court, on or before the first day of the return term therein named, and render to the said clerk the moneys collected by him, according to the exigency of such writ. and award Sheriff to le Sheriff not be moved 23. If such sheriff or officer fail so to return such writ of execution, Ib. Sec. 3. or to pay the moneys by him made as aforesaid, the clerk of the su- returning expreme court may, in the name of the successful party in the cause, ecution may upon giving to such sheriff or officer, or to such sheriff and his secu- against, by rities, ten days' previous notice, and upon proof of such notice, move the clerk. for at the next term of the circuit court of the county in which such sheriff or officer resides, and obtain judgment and execution against such sheriff or officer, or such sheriff and his securities so notified, for the amount of the writ of execution not returned as aforesaid, or the deficit of the moneys made and not rendered. § 24. If any sheriff or coroner in this state shall fail or refuse to Ib. Sec. 4. return any execution issued from the supreme court as aforesaid, and (1) Ten per cent. damages allowed under this act on affirmance of judgment, whether the suit was founded on a liquidated or an unliquidated demand. Heart v. Judson, Min. Rep. 135. Sheriff or coroner failing to return execution, liable to the motion of the party ag. grieved. |