Imágenes de páginas



county court is interested.

§ 40. Whenever any execution shall have issued, or any decree 1b. Sce. 2. made by the orphans' court, and final settlement of the accounts of Remedy executors, administrators or guardians, and is returned by the sheriff ecitors, ad“no property found,” generally, or as to a part thereof, execution and gurar. may and shall forth with issue against the securities of such executor, administrator or guardians.

§ 41. In all settlements hereafter to be made by executors, adminis- 1893—(27) trators or guardians with the orphan's court, in which the judge of said Judges of sucourt may have been employed as counsel, or may be otherwise in-preme or cirterested in such settlement, it shall be the duty of said judge, to give may issue immediate infomation 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 or ceed to make said settlement under the rules and regulations now prescribed by law.

§ 42. Such settlement when made as aforesaid, shall be duly 1). Ser. 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. $43. In case of the neglect for an unreasonable time, or the refusal th. See. 3.

Where judge of said judge of the orphans' court, to give the notification required in 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.

§ 44. The county and orphans' court respectively, shall have full 1830–(11) power and authority to issue writs of attachment, or other writs ne- Sec. 3.

County court cessary to enforce their orders, judgments, and decrees.

Settlements to be record ed.

of county

may enforce its decree by attachment.


§ 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-Scc. 30. ately make up a full and perfect record of all the proceedings in such clrk on ap. cause, and shall, on the application of either of the parties, give an at-wals and 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 is 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 such attested

copy, sum of two hundred dollars, to be recovered by action of debt, in any

neglect. 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.

the Penalty for

Ib. Sec. 40.


1b. Sec. 41.

$ 2. The clerk of any superior court, upon receiving a transcript of Clerk of sl; 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 fisteen 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 glect.

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 hav. ing 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.

§ 3. When in any county or circuit court, judgment upon a verdict Execution may be stay.

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.

84. 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 1814-(4)

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 tions to dec? 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

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 1926—(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) 1820—(4) § 6. No judgment of the circuit court in this state shall be sus.

pended, unless the party applying for the writ of error, shall execute granting in the clerk's office a bond with sufficient security (bto the adverse [b 1814-(4)

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 v. 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.

Ib. Sec. 42. Supreine court may establish rules con cerning writs of error.

Sec. 6.

the record.

preme court

the excep


Sec. 3.
Bond on

writ of error.

Scc. 5.)

rity on at

be a supersedeas.

Sec. 1.

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. And the said (a 1814–12)

Seo. 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) discontinuance of the cause, the supreme court shall render judgment Judgment against the principal and security in the bond.

against secu $ 7. If any clerk of the circuit Cor county court, upon issuing any firmance writ of error shall take security which shall be insufficient at the time 1892,-(0) of taking the same, he shall be liable to an action of trespass on the sc 1833–(18) case, in favor of the party aggrieved: Provided, That nothing in this Clerk viable act contained shall be so construed as to subject any clerk to a reco- for taking invery 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.

$ 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.

§ 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.

§ 10. Either party may appeal from any final judgment or decree 1819-(0) 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 cir curity to be approved of by the court

, in double the amount of the preme court. 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 re. court, 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, ba. upon payment of costs.

§ 11. Writs of error shall lie from the court of errors and appeals, ph. Scc. 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 court. 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.

Sec. 16.

cause dig. missed.

be reinstat.

Writs of er ror to lie

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.

IB. Sec. 21. Supreme court to pass such judg. Dent as circuit court

plying for


the term, canse to be

$ 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

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 mand cause. said court shall remand the same for final hearing. 1420—(4) § 13. It shall be the duty of the clerks of the circuit courts in this Writ oferror state respectively, on the application of the party against whom any and ciation 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 wortivered 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 (a 1916—(10) below, and the assignment of errorsa should not be delivered to the Sec. 1.)

clerk of the supreme court, on or before the third day of the term to If not filed 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 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 pro

ducing 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 1816—(10)

the plaintiff in error, or some other person, shall make affidavit that Sec. 1.] the transcript of the record could not be procured from the clerk of But may be 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.

§ 14. When a final judgment shall be rendered by the supreme Clerk of 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 clerk ofinfe 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 judg. ment 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. Aud 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

have accrued in the same cause in the supreme court.2


Sec, 2, &


Ib. Sec. 2.

io certify

rior court, with bill of costs.

ferior court shall issue execution,

to the su preme court, its coste, when collect. ed.

which may

· The supreme court is empowered to give judgment and award execution for its own costs. Soe $ 22.

minal cases

Writ of error within three

may sit in su. preme court.

terest and cost, on af

$ 15. It shall be the duty of the supreme court to decide all the id. 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- Tar fee. tled to the same fee which is now allowed in chancery causes in the circuit court.

$ 16. It shall not hereafter be lawful for any circuit court to refer to Ib. Scc. 5. the supreme court any question of law, except such as may be novel tions incri: and difficult, and arise in a criminal case. $ 17. A writ of error may issue to reverse any final judgment in the referred.

only, to be circuit court, at any time within three years after the rendition of the lb. Sec. 7. judgment, and not afterward.

§ 18. It shall be lawful for any judge of the supreme court, who yo Sec 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.

§ 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 Damages, inerror, if he be the defendant below, shall pay to the defendant in error, ten per centum damages on the amount due awith lawsul 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.

$ 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)


was suspend § 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 premi.courte parties, 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 la Sce; affirmed or reversed by the supreme court, the said supreme court judgment may give judgment and award execution against the unsuccessful party 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 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. $ 23. If such sheriff or officer fail so to return such writ of execution, Ib. Sec. 3.

Sheriff not or to pay the moneys by him made as aforesaid, the clerk of the supreme 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 sich 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

ing to return (1) Ten per cent. damages allowed under this act on affirmance of judg- liable to the ment, whether the suit was founded on a liquidated or an unliquidated demand. motion of the

party ag. Heart v. Judson, Min. Rep. 135.


costs not collected.

and award execution for

Sheriff to levy, and make

returning ex

Sheriff or coroner fail.


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