Ex parte Haywood — 5 Cow. 19

Majority

p. 19

Ex parte Haywood.

Headnote

Under the act, sess. 47, ch. 238, s. 36, 38, an appeal lies in all cases, whether the judgment of the justice be upon an issue of law or fact

Haywood sued Miller before a Justice of Columbia; Miller pleaded the general issue, and a special plea. To the latter, there was a demurrer, upon which the justice gave judgment against Haywood, who appealed to the Columbia Common Pleas; but that Court quashed the appeal upon the authority of Peters v. Parsons, ( 18 John. Rep. 140 ;) and Breese v. Williams, (20 id. 280 .) And now,

D. B. Tallmadge,

moved [ex parte) for an alternative mandamus commanding that Court to set aside the rule by which they ordered the appeal to be quashed; and to proceed upon the appeal. He said the cases relied upon were under the act of 1818, (sess. 41, ch. 94, s. 17 and 18, p. 82,) which differed from the late act, sess. 47, ch. 238, s. 36, 37, 38, p. 294, 5, 6.) And

They said the cases cited went upon the construction of the 17th, 18th, and 19th sections of the act of 1818; but the provisions of the act of 1824 are materially different. The 38th section provides expressly, that all issues in law upon appeal shall be tried by the Court; and all issues of fact by a jury. The pleadings are in all cases to be the same as those before the Justice. There can be no mistake, therefore, as to the intention of the legislature, that an appeal is the remedy in all cases, whether the judgment be upon an issue of law or of fact. Let an alternative mandamus go.

Motion granted.