delivered the opinion of the Court.
Lobinsón commenced an action of unlawful detainer against Buchanan, before three Justices of the Peace of Rutherford County, to obtain possession of' a tract of land. While the case was pending before the Justices, and before they rendered a judgment, Buchanan filed his petition and obtained from a Circuit Judge, the writ of certiorari, by which the case was transferred to the Circuit Court. No motion was made in the Circuit Court to dismiss the petition, but the parties proceeded to trial on the merits, as if the cause had come into the Court upon appeal, or had' originated there by summons. Upon the trial, a judgment was rendered in favor of Robinson, and a writ of possession was ordered to issue. Thereupon Buchanan prayed an appeal in error to this Court, which was granted, upon his giving bond in double the value of two years rent, which bond was executed and the appeal granted. The record then proceeds, and defendant having appealed, and a writ of possession having been awarded said plaintiff, it is ordered, that he give bond and security in the sum of $2,400, for the rent of the land during litigation, conditioned to be paid if defendant prosecutes his appeal successfully. Upon the issuance of the writ of possession awarded to plaintiff, defendant applied by petition to one of the Judges of this Court, and obtained the writ of supersedeas, superseding the execution of the writ of possession. Plaintiff now makes his motion to discharge- the supersedeas, and allow, the writ of possession to be executed.
The action of the Circuit Judge, in ordering a writ
The other section authorizes the proceedings before the three Justices, to be removed to the Circuit Court by certiorari and supersedeas, giving bond and security sufficient to cover all costs and damages; if the defendant is the applicant, the bond given by him to be sufficient to cover the rent during the litigation, as well as costs and damages. It is observed, that the provisions of these two sections are confined to the proceedings to be had, while the causes are pending in the Circuit Court, upon appeal from judgments rendered by three Justices of the Peace, or upon the removal of such cause after judgment before three Justices of the Peace, by certiorari and supersedeas.
No provision is made as to the judgments to be rendered in the Circuit Court, either when the case
It is probable, that this inconsistency is the result of oversight in the draftsmen of the second section, or of the omission of words necessary to express the real intention of the Legislature. But as the law is written, when the defendant appeals from the Justices’ judgment, the plaintiff gives bond for the rents; but when the defendant takes the case up by certiorari, the defendant gives bond for the rents.
In the present case the defendant took the case to the Circuit Court by certiorari, before judgment by the Justices was rendered, and gave no bond for rents, but only the usual bond for costs and damages. No motion to dismiss the petition for want of jurisdiction was made, but the parties proceeded to trial, as upon
There is no such clear repugnance between §3363, which was the Act of 1849, and §3373a, which was the Act of 1870, as authorizes us to hold that the latter repeals the former. Upon the facts of this case, as disclosed in the record, we are of opinion, that when the appeal was granted to defendant by the Circuit Judge, upon his giving the proper bond, the Court had no power to order a writ of possession, upon plaintiff giving the bond prescribed in appeals from judgments before three Justices, and, therefore, that the supersedeas was properly granted. The motion to discharge the supersedeas is disallowed.