1. The attestation, by a Justice, of the assignment of a judgment on his docket after the death of the assignor is a nullity.- Eagle v. Ross, 67 Ind. 110.

2. The assignee of a judgment may be a relator in a suit upon the bond of a Justice. Hooker v. State, 7 Blackf. 272.

1498. Revival of judgment. 120. Judgment in favor of any deceased person may be revived in favor of his personal representatives, on complaint and summons as in other cases.

1499. Appeal-How taken. 64. Any party may appeal from the judgment of any Justice to the Circuit Court of the county, within thirty days from the rendition thereof; and when there are two or more plaintiffs or defendants, one or more of such plaintiffs or defendants may appeal without joining the others in such appeal.

1. As to time for appeal, the day of entering judgment is excluded from the thirty days allowed.-Noble v. Murphy, 27 Ind. 502; Faure v. Express Co., 23 id. 48.

2. An appeal vacates the judgment. The appellate Court is not a Court of Errors, but tries the cause de novo.- - Britton v. Fox, 39 Ind. 369.

3. An appeal lies from the judgment of a Justice dismissing a cause upon default of the plaintiff. This is not a voluntary dismissal.— Lauferty v. Prickett, 50 Ind. 24. 4. When an appeal is taken by both parties, only one transcript is necessary; and only one case should be docketed for trial above. The dismissal of appeal by either party does not affect the cause as to the other.- Montmorency G. R. Co. v. Stockton, 43 Ind. 328.

5. The amount in controversy," under the Act of 1877 limiting appeals to the Supreme Court, is (where the defendant appeals) the amount of the judgment before the Justice, not the amount claimed by the plaintiff. Sprinkle v. Toney, 73 Ind. 592. 6. An appeal must be taken as to the whole case; it will not lie merely from proceedings in attachment therein.- State v. Miller, 63 Ind. 475.

1500. Appeal-bond. 65. The appellant shall, except in cases where the same is dispensed with by law, file with the Justice a bond with security to be approved by the Justice, payable to the appellee, in a sum sufficient to secure the claim of the appellee and interest and costs, conditioned that he will prosecute his appeal to effect, and pay the judgment that may be rendered against him in the Circuit Court.

1. An appeal-bond without a surety is insufficient.— Indianapolis, etc., R. R. Co. v. Beam, 63 Ind. 490.

2. The failure to prosecute the appeal successfully is a breach of the appeal-bond.— Reeves v. Andrews, 7 Ind. 207; Carmichael v. Holloway, 9 id. 519; Murphy v. Steele, 51 id. 81.

1501. Filing transcript. 66. On the filing of such bond, the Justice shall make out and certify a complete transcript of all the proceedings had before him; and transmit the same, together with such bond and all other papers in the cause, to the Clerk of the Circuit Court to which the appeal is taken, within twenty days thereafter; or, failing so to do, shall forfeit all his cost in the case. But no such appeal shall be dismissed for such failure of the Justice, nor for the insufficiency of the bond, if the appellant will file a sufficient bond, to the acceptance of the Circuit Court.

1. As to filing of transcript and the original papers on appeal, see Ingram v. Plaskett, 3 Blackf. 450; Mitchell v. Stephens, 23 Ind. 466; Hunter v. Thomas, 51 id. 44; Brown v. Street, 60 id. 8.

2. As to the certificate to the transcript, see Wiley v. Forsee, 6 Blackf. 246; Hayden v. Songer, 56 Ind. 42.

1502. Trial and practice. 67. Such cause shall stand for trial in the Circuit Court, whenever such transcript has been filed ten days before the first day of the term thereof, and be there tried under the same rules and

regulations prescribed for trials before Justices; and amendments of the pleadings may be made on such terms, as to costs and continuances, as the Court may order.

I. On the trial of the case on appeal, the same rule as to pleadings prevails as before the Justice.-Carter v. Edwards, 16 Ind. 238; Bernhamer v. Conrad, 45 id. 151; Hill v. Sleeper, 58 id. 221.

2. A good issue below is good above, on appeal.-- Monday v. Utter, 15 Ind. 447; Heller v. Crawford, 37 id. 279; Lane 7. Kenworthy, 43 id. 116.

3. Upon appeal, the case is tried de novo upon its merits, as if commenced in the Circuit Court.- Reeves v. Andrews, 7 Ind. 207; Coffey v. Collier, 12 id. 565; Keicher v. Tp. Co., 33 id. 333.

4. But the jurisdiction as to amount remains that of the Justice's Court.-- Pritchard v. Bartholomew, 45 Ind. 219: Hampton v. Warren, 51 id. 288.

5. In appeals final to the Supreme Court in such cases, only errors in the Circuit Court are reviewable.- Harrington v. Luddington, 23 Ind. 542; Indianapolis, etc., R. R. Co. v. McAhren, 12 id. 552.

1503. Appeal after thirty days. 68. Appeals may be authorized by the Circuit Court after the expiration of thirty days, when the party seeking the appeal has been prevented from taking the same by circumstances not under his control.

1. A party failing to take advantage of the provisions of this section can not injoin proceedings upon the judgment.-- Baragree v. Conkhete, 33 Ind. 192.

2. For construction of the section, see Welch v. State, 19 Ind. 450; Tucker v. Makepeace, 14 id. 186; Davis v. Luark, 34 id. 403; Brooks v. Harris, 42 id. 177; Sample v. Gilbert, 46 id. 444.

1504. Appeal dismissed. 69. When an appeal is dismissed by the Court, such fact shall be certified to the Justice by the Clerk, and such judgment stand on the Justice's docket as if no appeal had been taken.

1. The plaintiff has the right to dismiss his suit in the appellate Court, and such dismissal operates to avoid the proceedings below. Reeves v Andrews, 7 Ind. 207. 1505. Costs. 70. Costs shall follow judgment in the Circuit Court, on appeals, with the following exceptions:

First. If either party against whom judgment has been rendered appeal, and reduce the judgment against him five dollars or more, he shall recover his costs in the Circuit Court, when the appellant appeared before the Justice.

Second. If either party in whose favor judgment has been rendered appeal, and do not recover at least five dollars more than he recovered before the Justice, the appellee shall recover his costs in the Circuit Court. 1. Interest accruing in the delay upon appeal recovered in a judgment is a part of ., and will be considered in determining whether it has been reduced or not.-Turner v. Simpson, 12 Ind. 413; Widup v. Gibson, 53 id. 484.

2. If the defendant on appeal reduce the judgment five dollars, he recovers costs in the appellate Court. - Crockett v. Calvert, 8 Ind. 127; Brown v. Snavely, 24 id. 270; Brown v. Duke, 46 id. 343; Polk v. Nickers, 63 id. 439.

3. If, however, there was no appearance by the defendant below, costs follow judgment.- Millikin v. Osborne, 12 Ind. 480; Beall v. Rowland, 32 id. 368.

4. If a plaintiff, having recovered judgment below, appeal and fail to recover five dollars more than his judgment, the appellee recovers costs.- Carter v. Berkshire, 8 Blackf. 193.

5. If a party against whom judgment has been rendered for less than five dollars appeal, and obtain judgment in his favor, he recovers costs.- Brinnaman v. Grover, 16 Ind. 347.

1506. Execution-Issue. 76. Justices shall, unless otherwise directed, issue executions on all judgments when the party appeared, after

four days from the rendition thereof; and in cases of judgment by default, after the expiration of ten days from the rendition thereof: Provided, That in cases of judgment by confession, and in cases commenced by capias, and in cases when it shall be made to appear by affidavit that delay will endanger the collection of the judgment, execution shall be issued immediately after entering judgment.

1. If the plaintiff file an affidavit that delay will endanger the collection of the judg ment, execution may issue forthwith.- Conrad v. Wilson, 66 Ind. 437.

2. Insolvency of the defendant excuses the non-issuing of execution by a Justice in mitigation.-Noel v. State, 6 Blackf. 523. So does a request by plaintiff not to issue. Tingle v. Pullium, 4 Blackf. 442; Fravel v. Township, 34 Ind. 296.

3. Mistake in the amount of the execution is amendable,- Silner v. Butterfield, 2 Ind. 24; Hutchens v. Doe, 3 id. 528.

4. A term of years in real estate is leviable by execution from a Justice.-Barr v. Doe, 6 Blackf. 335.

1507. How directed - Form-Where served. 77. The execution shall be directed to any Constable of the county, and shall be substantially in the form hereinafter prescribed, and may be served throughout the county.

1508. Indorsement by Constable - Lien.

78. Such Constable shall indorse on such execution the day and hour when it came to his hands; and from that time it shall operate as a lien on the property of the judgment-debtor, liable to be seized on it; which lien shall be divested in favor of any other writ, in the hands of another officer, which shall be first levied on such property.

1509. When returnable. 79. Such execution shall be made returnable at the expiration of six months; but may be sooner returned, if satisfied or no property of the defendant can be found.

1510. Alias execution. 8o. Whenever an execution is returned by an officer having the same, that he has levied the same, and has the property unsold in his hands, or has a delivery-bond for the same, the Justice shall issue another execution; and shall append thereto a copy of such return, and such property may be sold on such alias execution in the same manner as on the first execution; and if such property be insufficient, other property may be levied on to satisfy such writ, either before or after such sale.

1511. Sales. 81. The sale of property under such execution, as to appraisement and the number of offers to sell, shall be governed by the laws regulating sales of personal property under execution, issued from the Circuit Court.

1512. Suretyship. 82. Whenever it shall appear from the docket, the Justice shall note on the execution, whether any of the defendants are sureties; and if so noted, it shall be the duty of the officer executing the same, first to levy on the goods of the principal; and if enough of such goods can be found to satisfy the execution, no levy shall be made on the goods of the surety.

1. If the entry upon the docket does not show who are sureties, the Justice, if the fact appear by the contract sued on, may note such suretyship on the execution.Phillips v. Cox, 61 Ind. 345.

1513. After three years, affidavit required. 119. Whenever any judgment has remained without the issue of execution thereon for the space of three whole years, no execution shall issue thereon, unless on affi

davit filed, showing that such judgment is unsatisfied, and how much is yet due thereon.

1514. Delivery-bond-Constable responsible. 88. The executiondefendant shall be entitled to the custody of goods levied upon by virtue of any execution issued by a Justice, by executing a delivery-bond, with surety, payable to the execution-plaintiff, under the rules and regulations prescribed for the execution of delivery-bonds to Sheriffs in similar cases; and the Constable taking the same shall be responsible for the sufficiency of the bond and the solvency of the sureties at the time of the execution thereof.

1. For actions upon delivery-bonds, sec Barber v. Summers, 5 Blackf. 339; Bell v. Tanguy, 46 Ind. 49; Hughes v. Jackson, 48 id. 296.

1515. Bond forfeited. 89. If the condition of such bond be broken, the execution-plaintiff may prosecute his remedy thereon, or may, by alias execution, cause the same or other property to be levied on, or, having failed in either remedy, may afterward resort to the other.

1516. No appeal from judgment on bond. 90. No appeal shall be allowed the defendant from a judgment before a Justice on a deliverybond, unless he show, by affidavit, that he has merits in such appeal.

1517. Bond forfeited - Defendant not entitled to property. 91. When the condition of a delivery-bond has been broken, and the same, or other property, afterward levied on by the same execution, or another execution on the same judgment, the defendant shall not be entitled to the custody of such property.

1518. Judgment on bond. 92. In suits on a delivery-bond, the amount due on the execution, if the property was worth so much (if not, the value of the property), and, in both cases, ten per cent. in addition, shall be the measure of damages.

1519. Sale of property. 93. If an execution-debtor, having executed a delivery-bond for any goods, shall sell the same or part thereof for not less than two-thirds the appraised value, and shall apply all the proceeds of such sale to payment of the judgment, if so much be necessary, the failure to deliver such property so sold shall not be a breach of the condition of such bond.

1520. Stay-Effect. 84. In all cases where a stay of execution is not prohibited by law, the judgment-defendant shall have stay of execution, by entering replevin-bail on the docket of the Justice, in substantially the following form:

I, A. B., hereby acknowledge myself replevin-bail, for the stay of execution on the above judgment, for days from the rendition thereof. Witness my hand, this day of 18-.

Test: E. P., Justice.

A. B.

And the Justice shall be responsible for the solvency of such bail at the time when taken, unless the plaintiff consent thereto; and such undertaking shall have the effect of a judgment confessed; and execution shall issue thereon, at the expiration of such stay, jointly against the defendant and such bail; and it shall be the duty of the Justice to issue execution thereon at the expiration of the stay, unless otherwise ordered by the plaintiff.

1. The form of entry of bail is not mandatory. The entry need not be attested by the Justice.- Miller v. McAllister, 59 Ind. 491.

2. Replevin-bail is a surety within the meaning of section 1512.— Elson v. O'Doud, to Ind. 300.

3. Judgments "without relief" carry costs in same manner.― Martindale v. Tibbetts, 16 Ind. 200.

1521. When not allowed. 85. No stay of execution or appraisement of property shall be allowed in the following cases:

First. On judgments against officers, executors, administrators, guardians, or commissioners appointed to sell land, for the violation of any duty connected with their office or trust.

Second. On any official bond, or bond given to secure the faithful discharge of the duties of any trust, as to the principal in such bond.

Third. On any judgment for money received in trust and not paid over on proper demand.

Fourth. Against any corporation, other than municipal.

Fifth. On any judgment on a forfeited delivery-bond.

1522. Limit of time. 87. If such judgment, exclusive of costs, do not exceed six dollars, such stay shall be for thirty days; if over six and under twelve dollars, sixty days; if over twelve and under twenty dollars, ninety days; if over twenty and under forty dollars, one hundred and twenty days; if over forty and under seventy-five dollars, one hundred and fifty days; if over seventy-five dollars, one hundred and eighty days. [1879 S., p. 150. In force May 31, 1879.]

1523. Additional bail. 1. Whenever any person who has obtained judgment before any Justice of the Peace shall become satisfied of the insufficiency of any replevin-bail upon said judgment, he may, upon filing his affidavit with such Justice of the Peace, that he has reason to believe that such replevin-bail is insufficient to secure the payment of said judgment, cause said Justice of the Peace to issue a summons returnable in not less than three nor more than ten days from the date thereof, requiring the judgment-debtor to appear and show cause why he should not be required to furnish other or additional replevin-bail; and if, upon the failure of the judgment-debtor to appear, or upon his appearance, the judgment-plaintiff show to the satisfaction of the Court that the replevin-bail already given is insufficient, and the defendant fail to furnish other or additional replevinbail, it shall be the duty of such Justice of the Peace to forthwith issue execution against the property of the judgment-debtor, the same as if no stay had been taken upon said judgment.

[2 R. S. 1852, p. 449. In force May 6, 1853.]

1524. How bail may compel execution. 94. Any replevin-bail desirous of being discharged from his liability may make affidavit that he is apprehensive of being made liable thereon, if execution be further delayed; and, on the filing of such affidavit, the Justice shall cause the defendant to be notified in writing, that unless he give other replevin-bail, execution will issue thereon; and if such defendant shall not, within three days after service of such notice, give other bail, execution shall issue in the same manner as if the stay had expired.

1525. New bail. 95. Such new bail shall be entered on the docket in form substantially as follows:

I, A. B., acknowledge myself replevin-bail, for the stay of execution on the above judg. ment, until the — day of —, 18—, instead of C. D., discharged.

Witness my hand, this day of

Test: E. F. Justice.

18