
    John Pringle vs. Wm. M. Lansdale.
    üpon an appeal from a magistrate to the court of common pleas, upon the determination of the appeal, execution must issue from that court, against the party cast in the appeal.
    And the clerk of the court must sign the execution.
    The execution is not to be issued bythe magistrate from whom the appeal ha3 been taken up.
    Tried before judge Gaillard, at Sumter District, March term, 1826.
    This was a rule upon the clerk to shew cause why he should not be attached for refusing to sign an execution upon an appeal from a magistrate’s decree. The clerk shewed for cause, that the execution should be awarded from the magistrate’s court, and that tbis court had no cognizance of the matter under the act of 1799.
    The presiding judge dismissed the rule, and this was an appeal from his decision, on the ground that the act of 1799 directs that, on an appeal from a magistrate, execution shall be awarded from this court.
    
      Moses, for the motion,
    cited the act of 1799 (2 Faust, 318J which orders the court to grant or award executions upon appeals from magistrates. The circuit court not only has appellate, but concurrent jurisdiction How otherwise can the clerk, &tc. obtaiu the costs of appeal? He could not send the case back and order the magistrate to issue execution for his costs. Every thing is brought up to the superior court, and how could the court send the matter back? To amend errors in a court of record a writ of false judgment lies. (3 Black. Com. 407. 2 Sellon Pr. 410. 2 Tidd. 1139. Jac. Law Die. tit. false judgment.) It is in the nature of an accedas ad curiam. (2 Sellon 410. 2 Tidd. 1139.) When the parties are once in court, the subsequent proceedings in false judgment are the same as in error. (lb.) So if proceedings are removed out of the county court or other court not of record, by writ of false judgment, and the plaiutiffis nonpros-sed, the execution shall issue out of the court above. . 2 Tidd. 91L) Executions are judicial writs issuing out of the court where the record is, upon which they are grounded; and therefore when a record is removed here from another court by writ oferror and the plain tiffis nonprossed, this court will award execution. (2 Tidd. 912. 3 T. R. 657.) Where a judgment against the plaintiff is reversed on a writ of error brought in the King’s bench, that court having the record before ther% inay in all cases, give such a judgment, as the court below should have given, and if necessary may award a writ of en-quiry to assess the damages- (2 Tidd. 1131. 1 Salic. 403. 1 Lord Ray, 9. Carth. 319.) The writ of execution being founded on the record must issue out of the court of King’s Bench where the record is (2 Tidd. 1136. Cowp. 843.) Although, on a writ of error from the common pleas, a trans-script only is removed into the K. B. yet the K. B. awards execution. (2 Sell. 387. Cowp. 843.)
   Nott, J.

This question .depends upon the construction to be given to the act of 1799. (2 Faust, 318,) allowing appeals from the judgments or decrees of magistrates.. The act after defining the jurisdiction of magistrates, pro» ceeds to declare, ‘‘that if either of the parties shall conceive him, her or themselves injured or aggrieved, by the judgment, decree or sentence of any justice of the peace or quorum, where the debt or demand is for any sum above six dollars, such person or persons may have an appeal to the first court which shall he held for the district where such judgment, sentence or decree is given or awarded, upon giving sufficient security to prosecute such appeal to effect, or on failure thereof to satisfy the costs and condemnation of the said court, and the said court shall hear and determine said appeal according to the justice of the case, and award execution against the person or persons cast therein.”

Caldwell Lenoir, for the motion.

Ilainesworth, contra.

The words of the act are indeed so plain that there is nothing left for construction. It expressly declares that the court shall hear and determine “ and award execution.” The same court that hears the appeal, which is the court of common pleas, must also award the execution.

The decision of the circuit court must therefore be reversed and the clerk is directed to sign the execution.  