Chap. 171.—An ACT to Amend the Provisions of the Code in regard to
the Supreme Court of Appeals, so as to make them conform to the new
Constitution.

Approved June 23, 1870.

1. Be it enacted by the general assembly, That chapter one
hundred and fifty-nine of the Code, edition of eighteen hun-
dred and sixty, be repealed, and that chapters one hundred and
sixty and one hundred and eighty-two be amended and re-
enacted so as to read as follows:

“CHAPTER CLX.
“Or tae Court or APPEALS.

“4 1. The supreme court of appeals shall consist of the five
judges thereof now in commission, and as vacancies occur,
they shall be filled. The said judges shall appoint one of their
number president of the court.

Ҥ 2. in the absence of the president, the eldest judge in
commission present, shall be the presiding judge; but if no
one of the judges present be older in commission than the
rest, then the jadges present shall appoint any one of their
number to preside.

Ҥ 3. The supreme court of appeals, and the judges thereof,
shall respectively succeed to and have all the appellate juris-
diction which, under the laws in force at or since the adoption
of the constitution of eighteen hundred and fifty-one, could
have been exercised by the general court or the judges thereof.

Ҥ 4. The said supreme court, besides having jurisdiction of
all such matters as are now pending therein, shall have juris-
diction to issue writs of mandamus and prohibition to the
circuit and corporation courts, and to the hustings court and
the chancery court of the city of Richmond, and in all other
cases in which it may be necessary to prevent a failure of jus-
tice, in which a mandamus may issue according to the princi-
ples of the common law. The practice and proceedings upon
such writs shall be governed and regulated, in all cases, by the
principles and practice now prevailing in respect to writs of
mandamus and prohibition, respectively.

Ҥ5. The said supreme court shall have jurisdiction in
cases of habeas corpus, and of such appeals, writs of error,
and supersedeas, as may be legally docketed in or transferred
to the said court.

Ҥ 6. The said court shall bold a session annually, at W ythe-
ville, in the county of Wythe, and at Staunton, in the county
of Augusta, to commence at such time as the court may, from
time to time, direct, and to continue at least sixty days, if the
business be not sooner dispatched; and another in the city of
Richmond, to commence at such time, and to be divided into
such terms, a8 the court has directed, or may, from time to
time, direct, and to continue at least one hundred and sixty
days, unless the business be sooner dispatched.
Ҥ 7. The said court, at its session at Richmond, shall hear
and determine all appeals, writs of error, or supersedeas,

ending there when this act takes effect, or which may be

rought to the court of appeals, from or to decrees, judg-
ments, sentences or orders of any court held on the eastern
side of the Blue ridge, except the counties of Patrick and
Albemarle.

Ҥ 8. The court, at its session at Wytheville, in the county
of Wythe, shall hear and determine all appeals, writs of error,
or supersedeas, which may be brought to the court of appeals,
from or to decrees, judgments, sentences, or orders of courts,
from the following counties: Craig, Roanoke, Montgomery,
Floyd, Patrick, Carroll, Pulaski, Giles, Bland, Wythe, Gray-
son, Smyth, Tazewell, Washington, Russell, Buchanan, Wise,
Scott, and Lee.

Ҥ 9. The court, at its session at Staunton, in the county of
Augusta, shall hear and determine all appeals, writs of error
or supersedeas, which may be brought to the court of appeals,
from or to decrees, judgments, sentences, or orders of court,
from the residue of the counties west of the Blue Ridge, and
also from the county of Albemarle.

Ҥ 10. The sessiuns and terms of the supreme court of ap-
peals shall be according to the provisions of this act, and the
powers and duties of the court at each place of meeting shall
be according to the provisions of this act and the laws now in
force not inconsistent therewith. The court, at one place of
session, may also, if it see fit, appoint and take bond from the

clerks of the court at the other places, and the appellate juris-
diction of said court, in any criminal case, may be exercised at

any place of session, no matter where the court may have been
held which rendered the judgment in such case; and a crimi-
nal case pending in said court at one place, may at any time,
by its order, be transferred to another place, there to be heard
and determined.

Ҥ 11. By consent of the parties or their counsel, or for rea-
sons appearing to the court, any case pending in said court at
one place of session, may be transferred to another place of
session, there to be heard and determined, or if already heard,
there to be determined; and when a case has been heard at
one place of session, it may, without being transferred, be de-
termined at another. In such cases, the judgment, decree, or
order shall be entered on the order book at the place where it
is made, and shall be certified to the clerk at the place where
the case is pending, who shall enter the same on his order
book. Every such judgment, decree, or order, shall have the
same effect as if entered in court at the place where the case
is pending, and may be reheard and reviewed at the next term
of said court, subject to the rules applicable to rehearings in
other cases.

Ҥ 12. Writs of prohibition or mandamus from the court of
appeals to any court, shall issue and be tried at the place of
session of said court of appeals, at which writs of error to
such court are to be tried.
Ҥ 13. It at any time there shall be on the docket of the su-
preme court of appeals a case in which a majority of the judges
of said court are so situated as to make it improper for them
to sit on the hearing thereof, that fact shall be entered of re-
cord. The said court may thereupon have summoned, from
among the judges of the circuit court, 38 many as, with the
judges of the supreme court of appeals not so situated, will
make the number five, who shall, together, form and hold a
special court of appeals, to hear and determine such case, at
such time as a majority of them shall see fit; and it shall be
held at Richmond, Wytheville, or Staunton, as the case may be.

Ҥ 14. The clerk of the supreme court of appeals, at the
place at which a special court of appeals is ho den, shall, in
person or by deputy, attend such special court, with the re-
cords and papers in the case which it is to hear and determine,
and act as its clerk.

Ҥ 15. The decisions of such special court shall be certified
and carried into execution as if made by the supreme court of
appeals.

Ҥ 16. Each circuit judge sitting on said special court, shall
have ten dollars per day for every day’s attendance on such
court.

“$17. The supreme court of appeals, at each place of
session, and such special court, may appoint a tipstaff and a
crier, who shall perform such duties as the court may require,
and shall receive out of the treasury such reasonable compen-
sation as the court may allow, and be removable at its

leasure.

Ҥ 18. The law books belonging to the state library, or such
of them as the supreme court of appeals may, at any time,
direct, shall be put up in the court room or conference room,
and, together with the books already in such room, shall form
a library for the use of the court, and under its control, and
shall be subject to such privileges to other persons as may be
allowed by law, or by the rules established by the court. The
court shall appoint one of its officers to perform the duties of
librarian.

“CHAPTER CLXXXII.

‘Or APPEALS AND WRITS OF ERROR AND SUPERSEDEAS.

Ҥ 1. Any person who thinks himself aggrieved by an order
in a controversy concerning the probate of a will, or the ap-
pointment or qualification of a personal representative, guar-
dian, curator, or committee, or concerning a mill, roadway,
ferry, or landing, may, in a county or corporation court, during
the term at which such order is made, appeal therefrom of
right, on giving bond as hereinafter mentioned.

Ҥ 2. Any person who thinks himself aggrieved by an order
in a controversy concerning the probate of a will, or the ap-
pointment or qualification of a personal representative, guar-
dian, curator or committee, or concerning a mill, roadway,
ferry or landing; or any person who is a party to any case in
chancery wherein there is a decree or order dissolving an in-
junction, or requiring money to be paid, or the possession or
title of property to be changed, or adjudicating the principles
of a cause, or to any civil case wherein there is a final judg-
ment, decree, or order, may present a petition, if the case be
in chancery, for an appeal from the decree or order; and if
not in chancery, for a writ of error or supersedeas, to the judg-
ment or order, except as follows:

Ҥ 3. No petition shall be presented for an appeal from,
or writ of error or supersedeas to, any final judgment, decree,
or order, whether the commonwealth be a party or not, which
shall have been rendered more than two years before the peti-
tion is presented; nor to any judgment of a county or corpo-
ration court, which is rendered on an appeal from a judgment
of a justice; nor to a judgment, decree, or order of any other
court, when the controversy is for a matter less in value or
amount than five hundred dollars, exclusive of costs, unless
there be drawn in question a freehold or franchise, or the title
or bounds of land, or some matter not merely pecuniary.

‘“‘§ 4. At the instance of any person who desires to present
such petition, the court in which the judgment, decree, or or-
der is, may, during the term at which it is rendered or made,

or the judge rendering such judgment, order, or decree, may,
within sixty days after such term is ended, make an order sus-
pending the execution of such judgment, decree, or order for
a reasonable time, to be specified in such order, when such
person shall give bond betore the clerk of said court in such
penalty as the court or judge may require, with a condition
reciting such judgment, decree, or order, and the intention of
said person to present such petition, and providing for the
payment of all such damages as any person may sustain, by
reason of the said suspension, in case a supersedeas to such
judgment, decree, or order should not be allowed, and be ef-
fectual within the time so specified.

Ҥ5. With such petition, there shall be a transcript of the
record of so much of the case wherein the judgment, decree,
or order is, as will enable the court or judge to whom the peti-
tion is to be presented, properly to decide on such petition,
and enable the court, if the petition be granted, properly to
decide the questions that may arise before it. The person in-
tending to petition, shall notify the opposite party, or his coun-
sel, of his intention ; and so much of the record shall be copied
as any party may desire, except as follows:

“6, Unless the person so intending to petition direct other-
wise, there shall not, in a chancery case, be copied, of the pro-
cess, orders at rules, or returns, or evidence of service thereof,
any but such as are necessary to show that the cause was regu-
larly matured for hearing; nor of the commissions and notices
to take depositions, captions to such depositions, and certifi-
cates of their having been sworn to, any more than is neces-
sary to the decision of exceptions taken to the reading of the
depositions; but the name of each witness, and the day of
taking his deposition, shall be stated at the head thereof. If
more than one copy of the same paper be filed in the case, only
one copy of it shall be inserted. There shall not be copied
an account reported by a commissioner to which there is no
exception, nor any printed document, of which either party
will furnish to the clerk a copy, but such duplicate shall be at-
tached to what is copied; and when a case has before been in
the appellate court, there shall only be copied the proceedings
subsequent to the former appeal, writ of error, or supersedas.

Ҥ 7. The appellate court, or a judge thereof, may, when a
case has before been in such court, inspect the record upon the
former appeal, writ of error, or supersedeas; and such court
may, in any case, award a writ of certiorari to the clerk of the
court below, and have brought before it, when part of a record
is omitted, the whole or any part of such record.

“$8. A petition for an appeal, writ of error, or superse-
deas, shall assign errors; and it shall not be presented until
some counsel or attorney of the appellate court shall certify
that in his opinion it is proper that the decision should be re-
viewed by such court.

“$9. The petition may be presented to the court wherein
the case is to be docketed, if the appeal, writ of error, or
supersedeas, be allowed, or to a judge thereof; or if the judg-
ment, decree, or order, be of a county court, to any circuit
udge.

; “$10. The petition shall be rejected when it is for an ap-
peal from an interlocutory decree or order, in a case which
the court or judge to whom it is presented deems it most
proper should be proceeded in further in the court below be-
ore an appeal is allowed therein. Ina case wherein the court
or judge, to whom a petition is duly presented, shall deem the
judgment, decree, or order, plainly right, and reject it on that
ground, if the order of rejection so state, no other petition
shall afterwards be presented to the same purpose, except to
an appellate court, or a judge thereof, and founded upon the
rejection of the petition by the inferior court or judge.

Ҥ11. Any court or judge to whom a petition is duly pre-
sented, if of opinion that the decision complained of ought to
be reviewed, may allow an appeal, writ of error, or super-
sedeas, and in a case of appeal (as well as of a supersedeas)
may award a supersedeas to stay proceedings, either in whole
or in part.

Ҥ 12. Every appeal, writ of error, or supersedeas, shall,
when it is to or from a judgment, decree, or order of any
county court, be docketed in the circuit court which has juris-
diction over such county; and when it is to or from a judg-
ment, decree, or order of any other court, be docketed in the
court of appeals. The clerk of the court wherein it is docketed,
shall issue a summons against the parties interested, other than
the petitioners, that they may be heard, and also issue any
supersedeas which may be awarded.

“$13. Except where an appeal, writ of error, or. super-
sedeas, is proper to protect the estate of a decedent, convict,
or insane person, the same shall not take effect until bond 1s
given by the appellants or petitioners, or one of them, or some
other person, in a penalty to be fixed by the court or judge,
by or in which the appeal, writ of error, or supersedeas is al-
lowed or entered, with condition, if a supersedeas be awarded,
to perform and satisfy the judgment, decree, or order, or the

art thereof, proceedings on which are stayed, in case the said
judgment, decree, or order, or such part, be affirmed, or the
appeal, writ of error, or supersedeas, be dismissed; and also
to pay all damages, costs, and fees which may be awarded
against or incurred by the appellants or petitioners; and if
it be an appeal from an order or decree dissolving an injunc-
tion, or dismissing a bill of injunction, with a further condi-
tion to indemnify and save harmless, the surety in the injunc-
tion bond against all loss or damage in consequence of his surety-
ship; and with condition, when no supersedeas is awarded, to
pay such specific damages, and such costs and fees, as may be
awarded or incurred.

“4 14. Such bond shall be taken by the clerk of the appel-
late court before process is issued thereupon, except where the
court of appeals is the appellate court, the clerk whereof shall
endorse on the summons or supersedeas, that it is not to be
effectual until such bond be given before the clerk of the court
below, who shall take said bond and endorse on the same pro-
cess that it has been given, and the names of the sureties
therein.

Ҥ 15. On the motion of any surety in such bond, after rea-
sonable notice to or a rule against his principal, the appellate
court may order bond to be given in such time as it may pre-
scribe, with sufficient security to indemnify and save harm-
less, such surety against all loss or damages in consequence of
his suretyship; and if such order be not complied with, may
order the appeal, writ of error, or supersedeas, to be dis-
missed.

‘““§ 16. In a case where there is an appeal of right, the clerk
of the court from whose order such appeal is taken, shall de-
liver a copy of the record to the clerk of the circuit court as
soon as practicable, unless the appellant direct him not to de-
liver it; in which case, he shall deliver to the clerk of the cir-
cuit court a copy of the entry of the appeal, and a certificate
of such direction. On the production of such copy and
certificate, the circuit court shall enter a dismission of the
appeal.

“$17. No process shall issue upon any appeal, writ of error,
or supersedeas, allowed to or from a final judgment, decree, or
order, if, when the record is delivered to the clerk of the ap-
pellate court, there shall have elapsed two years since the date
of such final judgment, decree, or order; but the appeal, writ
of error, or supersedeas shall be dismissed whenever it appears
that two years have elapsed since the said date before the re-
cord is delivered to such clerk, or before such bond is given,
as is required to be given, before the appeal, writ of error,
or supersedeas takes effect: provided, however, that section
twenty-six of chapter one hundred and eighty-two of the Code
of eighteen hundred and sixty, instead of this section, shall re-
main in full force, and apply to cases in which the appeal, writ
of error, or supersedeas may be to any judgment or decree
rendered before the passage of this act.
Ҥ 18. After the dismission of an appeal, writ of error, or
supersedeas, no other appeal, writ of error, or supersedeas
shall be allowed to or from the same judgment, decree, or
order.

Ҥ 19. In every case docketed in the court of appeals, the
clerk of the court where the case is docketed, shall make a
table of contents to the whole record. Of the petition, so
much of the record as the counsel for any party interested or
the court may direct, and the table of contents, the clerk shall
cause twelve copies to be printed, unless a larger number be
ordered by the court, preserving in the margin of the printed
record the paging of the record from the court below which
shall be used in printing, and returned to the clerk’s office.
The clerk shall take care that the printing be properly done.
Of the copies printed, he shall deliver one to each judge, two
to the counsel on each side, retain one in his office, transmit
one to the clerk of the court below (in which the case was
originally decided), and deliver the other copy to the reporter.
The cost of the printing, after being allowed by the court,
shall be paid out of the treasury.

Ҥ 20. Annually before the court of appeals commences its
session at Richmond, Wytheville, and Staunton, respectively,
the clerk at each place shall make out a docket of the causes
then ready for hearing. Those at each place shall be num-
bered by figures, and shall be docketed in the order in
which the causes were matured, and be heard in the same
order.

Ҥ 21. The court may hear out of term cases concerning the
probate of a will, or the appointment or qualification of a per-
sonal representative, guardian, curator, or committee, or con-
cerning a mill, roadway, ferry, or landing, and any others which
it may see good cause for so hearing.

Ҥ 22, On an appeal from an order of a county or corpora-
tion court, In a controversy concerning the probate of a will,
or the appointment or qualification of a personal representa-
tive, guardian, curator, or committee, or concerning a mill,
roadway, ferry, or landing, witnesses may. be examined in the
circuit court; but in no case shall the court of appeals hear
parol testimony.

Ҥ 23. The appellate court shall affirm the judgment, decree,
or order, if there be no error therein, and reverse the same, in
whole or in part, if erroneous, and enter such judgment, de-
cree, or order as the court whose error is sought to be cor-
rected, ought to have entered; affirming in those cases where
the voices on both sides are equal: provided, however, that in
order to declare, in any case, any law null and void by reason
of its repugnance to the federal constitution or the constitution
of this state, it shall be necessary that a majority of the judges
elected to the supreme court of appeals shall concur.

Ҥ 24. When any judgment, dcures, or order is affirmed,
damages shall be awarded to the appellee; such damages, when
the judgment, decree, or order is for the payment of money,
shall be the interest to which the parties are legally entitled in
the cause (to be computed upon the whole amount of the re-
covery, including interest and costs,) from the time the appeal,
writ of error, or supersedeas took effect, until the afliirmance,
or if: the affirmance be by the court of appeals, until a copy of
its decision is entered in the order book of the court below;
which damages shall be in satisfaction of all interest during
that time. hen the judgment, decree, or order is not for
the payment of any money, except costs, the damages shall be
such specific sum as the appellate court may deem reasonable,
not being more than one hundred dollars, nor in the court of
appeals, less than thirty dollars.

Ҥ 25. When any judgment, decree, or order of a county
court is reversed or affirmed, the cause shall not be remanded
to said court for further proceedings, but shall be retained in
the circuit court, and there proceeded in, unless by consent of
the parties, or for good cause shown, the appellate court direct
otherwise.

Ҥ 26. When any term of the court of appeals is ended, or
sooner if the court so direct, the clerk thereof shall certify,
and, by mail or otherwise, transmit its decisions to the clerk
of the court below, except that it shall not be his duty to cer-
tify or transmit a copy of a decree or judgment of aflirmance,
unless the appellee or defendant in error shall hdve paid all
fees due from him in the case, or shall endorse on such copy
so much of the decree or judgment, for the benefit of the
clerk, as the unpaid fee shall amount to. If any clerk shall fail
to comply with this section for twenty days, except as afore-
said, he shall forfeit fifty dollars to any person aggrieved
thereby.

Ҥ 27. The decision of the supreme court of appeals in any
case now pending, on an appeal, writ of error, or supersedeas,
to or from the judgment of the hustings or circuit court of the
city of Richmond, as heretofore constituted, shall be transmit-
ted by the clerk of the supreme court under the limitations of
the preceding section of this act to the clerk of the hustings
court, or the clerk of the chancery court, or the clerk of the
circuit court of ltichmond, according as the said judgment was
rendered in a criminal, a chancery, or a common law case re-
spectively.

Ҥ 28. On all decisions so transmitted by mail, the clerk
shall pay the postage. His accounts for such postage, verified
by oath, may, from time to time, at intervals not exceeding
eighteen months, be certified by the court of appeals to
the auditor of public accounts for payment out of the trea-
sury.

Ҥ 29. The court from which any case may have come to
the court of appeals, shall enter the decision of the appellate
court as its own, and execution may issue thereon accordingly.
If such decision be received by the clerk of the court below
in vacation, he shall enter it of record in his order book, and
thereupon such execution may issue and such proceedings be
had in the case as would have been proper if the decision had
been entered in court.”
2. And be it further enacted, That all cases which were
pending in the district courts when the present constitution
took effect, are hereby transferred to the supreme court of ap-
peals, and the papers and records of said causes and copies of
the proceedings of said district courts therein, shall, without
unnecessary delay, be delivered by the clerks thereof, respec-
tively, to the clerk of the supreme court of appeals at Rich-
mond; which court shall audit and certify to the auditor of
public accounts, for payment out of the treasury, such inci-
dental expenses as may be incurred by the transfer of the cases
pending as aforesaid in the district courts; and the supreme
court shall also examine and certify, for payment, the unpaid
contingent expenses and allowances of the several district
courts.

3. Such of the said causes as the supreme court of appeals
may have jurisdiction to try, shall be tried by the said court
accordingly, either at Richmond, or at Wytheville, or at Staun-
ton, as the court may deem proper, the papers and records of
such of the said causes as may be deemed proper to be tried
at Wytheville or at Staunton, being first sent to the clerks of
the courts there, for that purpose, by order of the court at
Richmond.

4. The decisions of the supreme court of appeals in the said
causes shall, by the clerk thereof, be certified and transmitted
to the clerks of the circuit courts, respectively, from which the
said causes may have gone to the said district courts, and shall
be entered as the decisions of said circuit courts respectively,
and executions may issue thereupon accordingly.

5. And be it further enacted, That all cases which were
pending in the district courts when the present constitution
took effect, of which the supreme court of appeals may not
have jurisdiction, shall be transferred to and docketed in the
circuit courts of the counties or corporations whence the ap-
peals were originally taken, there to be heard and finally dis-
posed of as by an appellate court. When the judge of the
court to which any such case is transferred is the same

erson before whom the case was originally tried, then the
judge, either in term time or vacation, may remove such case
to any other circuit court, there to be heard and finally dis-
posed of as by an appellate court.

6. All papers pertaining to the cases mentioned in the pre-
ceding section, and all books and records which, when the
present constitution took effect, pertained to the said district
courts, or were in the custody of the clerks thereof, except
such as may, under the preceding sections of this act, properly
belong to and remain in the clerk’s office of the supreme court,
shall be delivered to and remain in the custody of the clerks
of the said circuit courts, who shall be charged with the same
duties with respect to said books, papers, and records, as if
they pertained to cases in the said circuit courts.

‘7. If any appeal, writ of error, or supersedeas be hereafter
obtained from or to any judgment, decree, or order of any of
the said district courts, in any case in which the supreme court
of appeals has jurisdiction, all the printed records of such case
which may be in the hands of the clerk to whose custody the
papers in the case belong as aforesaid, shall be sent by said
clerk to the clerk of the supreme court of appeals at Rich-
mond, and the case shall be proceeded in as is hereinbefore di-
rected in regard to causes transferred to the said court which
were pending in the said district courts when the present con-
stitution took effect. Process in the case shall be issued, di-
rected, executed, and returned, and have the same effect, and
any appeal or supersedeas bond required by law to be given
shall be executed in the same manner as if the said judgment,
decree, or order had been rendered by the circuit court from
which the cause may have gone to the district court. _

8. In all cases in which a writ of error, supersedeas, or ap-
peal has been obtained to or from a judgment or decree of a
district court of appeals, the bond required to be given by the
appellant may be given in the clerk's office of the court to or
from which the writ of error, supersedeas, or appeal in the
cause was obtained to the district court of appeals.

9. In all cases in which a writ of error, supersedeas, or ap-
peal has been obtained to or from a judgment or decree of a
district eourt of appeals, the judgment or decree of the supreme
court of appeals shall be certified to the court to or from which
the writ of error, supersedeas, or appeal was obtained to the
district court of appeals. ©

10. The supreme court of appeals may rehear and review any
case decided by said court, within the last fifteen days of the
preceding term: provided, that one of the judges who decided
the cause adversely to the applicant, shall certify, that in his
opinion, there is good cause for such rehearing.

11. All acts amendatory of the chapters hereby re-enacted,
and all parte of the chapters not herein contained, are hereby
repealed.

12. This act shall be in force from its passage.