Where the title to real estate is put in issue, the justice cannot proceed, but the party putting the same in issue, is quasi the appellant, and the case is carried to the Court of Common Pleas, in the same manner, as if it had been tried, and judgment rendered thereon by the justice.' From judges of probate. An appeal lies from any order, sentence, decree, or denial of any Judge of Probate. This extends to decrees on subjects within the discretion of the judge, as well as on others; as if he refuse, on the petition of creditors, to extend the time for presenting claims against an insolvent estate.3 But no appeal lies from a decree authorizing an action on a probate bond, as a decree is unnecessary in such case; it is sufficient, if he assent. But if he refuse to deliver over the bond on application, this will be a denial, from which an appeal may be taken.* Appeals from the probate court are constantly made from interlocutory decrees, and from decisions with regard to particular portions of causes; as, for instance, from a decree that administration shall be granted," or that an administrator shall answer interrogatories. From Court of Common Pleas. An appeal lies from the judgment of the Court of Common Pleas, in any real or personal action, wherein any issue has been joined, in which the debt or damage demanded, exceeds the sum of one hundred dollars; and from 1 Stat. 1783. ch. 42. s. 2. 2 Stat. 1817. ch. 190. s. 7. 3 Walker v. Lyman, 6 Pick. Rep. 458. Vide Picquet, App't. 5 Pick. Rep. 65. Arms et al. v. Lyman, 5 Pick. Rep. 210. * Jones, App't. 8 Pick. Rep. 121. Stebbins v. Palmer, 4 Pick. Rep. 41. n. • Saxton v. Chamberlain, 6 Pick. Rep. 422. 7 Stat. 1820. ch. 79. s. 4. judgments upon any issue in law, or case stated by the parties, unless otherwise agreed by them, if not originally commenced before a justice of the peace.1 By Stat. 1785. ch. 48. in actions of account, the defendant may appeal from the judgment that he shall account; if he do not, but proceeds to account, and afterwards appeals from the final judgment, he shall not question the former judgment to account. By Stat. 1786. ch. 53. s. 3, 4, in all actions and petitions for partition, the defendant may appeal from the interlocutory judgment that partition be made; and if he do not, he shall not afterwards, on an appeal from the final judgment, upon the return of the commissioners, question the propriety of the interlocutory one. By Stat. 1784. ch. 28. s. 8. either party may appeal from a judgment upon abatement, or demurrer, without any further proceedings in the Court of Common Pleas. This does not embrace cases originally commenced before a justice of the peace.2 By Stat. 1797. ch. 63. s. 2. upon complaints by the owners of lands flowed by mill-dams, if the defendant shall by plea deny the complainant's allegations or title, or shall claim a right to flow without damages, or for an agreed compensation, either party may appeal from the judgment of the Court of Common Pleas, on any issue of fact or law resulting therefrom. By Stat. 1798. ch. 77. s. 2. appeals may be made from the judgment of the Court of Common Pleas, 1 Stat. 1820. ch. 79. s. 6. Belcher v. Ward et al. 5 Pick. Rep. 278. 2 Belcher v. Ward et al. 5 Pick. Rep. 278. on bills in equity, for the redemption of mortgaged premises. SECT. II. To WHAT COURTS APPEALS ARE MADE. From judgments of justices of the peace, and of the Court of Common Pleas, appeals are made to the next term of the Court of Common Pleas, and Supreme Judicial Court respectively. Where the Court of Common Pleas, at the term at which an appeal is claimed, continues in session subsequent to the sitting of the Supreme Court, or is adjourned to a day subsequent, the appeal may be entered at the term of the Supreme Court, which commences after the day on which the appeal is claimed and perfected. Appeals from the judge of probate, are required to be entered and proceeded upon, at the term of the Supreme Court, which shall be holden next after the expiration of thirty-four days, after the appeal is made,' reckoning the day on which the appeal is claimed, as one.2 SECT. III. REQUISITES TO AN APPEAL. The Stat. 1820. ch. 79. s. 4. contemplates several requisites to an appeal. 1 Stat. 1817. ch. 190. s. 7. 2 Wheeler et al. v. Bent, 4 Pick. Rep. 167. Note. For the modes of carrying cases from State courts to the courts of the United States, vide ante Book I. pages 7 and 10, — and Wetherbee v. Johnson et al. 14 Mass. Rep. 412. 1. It must be in an action real or personal; and it extends only to civil suits commenced by writ, and not to proceedings upon complaints authorized by particular statutes, where no appeal is expressly given.1 No appeal lies, therefore, from an order of the Court of Common Pleas, for assessing the relations of a pauper, for his support under the Stat. 1793. ch. 59. s. 3.2 Nor from an order discharging a servant or apprentice from his master, pursuant to Stat. 1793. ch. 59. s. 5.3 2. In appeals from the Court of Common Pleas, in personal actions, the ad damnum must exceed one hundred dollars. If the ad damnum exceed that sum, an appeal lies, although the claim set forth in the declaration be for a less sum. So, on the other hand, if the ad damnum be less, and the plaintiff recover a judgment for more, no appeal lies.* An action for trespass quare clausum fregit, or for any other cause, in which the defendant pleads title, whether originally commenced in the Court of Common Pleas, or before a justice of the peace, is a real action, within the meaning and provision of Stat. 1820. ch. 79. in which an appeal lies.5 3. There must have been an issue joined between the parties. If the action be dismissed on motion, or otherwise disposed of, the remedy is by exceptions. There must be an issue in technical form, or, at 6 1 Lowell v. Spring, 6 Mass. Rep. 398. 4 Chamberlain v. Cochran, 8 Pick. Rep. 522. 5 Blood v. Kemp, 4 Pick. Rep. 169. Davis v. Masson, 4 Pick. Rep. 2 least, the pleadings must be in such a form as to present a question of fact, to be tried by a jury, or a question of law to be decided by the court,' as upon demurrer. But in a trustee process, the declaration of the supposed trustee, that he has no goods, &c. and the examination by the plaintiff, constitutes an issue within the statute, and either party may appeal from the decision, although the defendant in the cause may not have appeared." 4. It is necessary that there should have been a judgment, and this, except in cases specially exempted by statute, viz. abatement, demurrer, partition, and account, must be a final judgment. No appeal lies, therefore, from interlocutory decrees, or proceedings; as, for instance, if the court should order a new indorser to be furnished, or grant an amendment, or refuse to dismiss the action, or to nonsuit the plaintiff.1 But any final disposition of the case, or sending the parties out of court, will be sufficient to sustain an appeal; as where the Court of Common Pleas arrests the judgment, and so renders none; or where an action is dismissed without costs, because the writ is lost from the files, or for want of an indorser. The provision of the statute is not confined to a technical judgment, in which an execution might 1 Purple v. Clark et al. 5 Pick. Rep. 206. Wood v. Ross, 11 Mass. Rep. 271, 275. 2 Greenleaf Rep. 310. 2 Stat. 1820. ch. 79. s. 4. Belcher v. Ward et al. 5 Pick. Rep. 278. * Richards v. Allen & Tr. 8 Pick. Rep. 405. 4 Lamphear v. Lamprey, 4 Mass. Rep. 107. * Bemis v. Faxon, 2 Mass. Rep. 141. * Gilbreth v. Brown et al. 15 Mass. Rep. 178. |