#### Samuel C. Nations *v.*Mariah A. Lovejoy.

1. Justices of the Peace. *Appeals to drcidt eourrt. Appeal bonds. Code*1893, § 91. *Amendments. Wrong circuit court district.*

Where a bond for appeal from a justice’s court to the circuit court of a county having two judicial districts recites an appeal to the circuit court of the wrong district, the same may be amended, , under code 1893, £ 91, authorizing the amendment of such appeal bonds, by leave of the circuit court of the proper district.

3. Statutory Penalty. *Double Damages'. Repeals. Amendment.*

Upon amendment of a statute authorizing the recovery of double damages so as to.limit recovery to specified actual damages, the plaintiff in a pending suit for double damages can recover only the damages authorized by the amendment.

*4023. Same. *Code*1892, § 1068. *Laws*1900, *p.*140. *Untieing servants or tma/nts.*

The plaintiff in a suit brought under code 1892, § 1068, for enticing away his laborers or tenants, cannot recover the double damages demanded when, pending suit, his recovery has been by statute (Laws 1900, p. 140) limited to all advances made to the laborer or tenant, and such damages as he has sustained from the wrongful enticement.

4. Same. *Constitutional law. Constitution*1890, *see.*61.

Under the constitution 1890, sec. 61, requiring the section of the law amended to be inserted at length in the amendment, chapter 102, laws 1900 (Laws, p. 40), repealed the double damages feature of code 1892, § 1068, since that feature is omitted from the statute as re-enacted.

From the circuit court, first district, Yalobusha county.

Hon, Perrin H. Lowrey, Judge.

Mrs. Lovejoy, appellee, was plaintiff, and Nations, appellant, defendant in the court below. The plaintiff recovered a judgment for $75 and costs, from which the defendant appealed to the supreme court. The facts are stated in the opinion of the court. For a previous report of the case see *Nations*v. Lovejoy, 77 Miss., 36.

*Frank Johnston*and *Fart 'Brewer,*for appellant.

This case was taken by appeal originally to the circuit court of the second judicial district of Yalobusha county. The condition of the appeal bond was that the appellant should prosecute the appeal with effect, or pay and satisfy any judgment that should be rendered by the circuit court for the second judicial district of Yalobusha county. On the former appeal to the supreme court it was held that the circuit court for the second judicial district had no jurisdiction of the appeal, upon the ground that the defendant resided in the first judicial district of the county, and the case was remanded with directions to the circuit court to dismiss the appeal. The case was accordingly dismissed by the circuit *403court for tbe second district of tbe county at tbe December term, 1899. Tbe plaintiff then withdrew tbe papers from tbe circuit court for tbe second judicial district and placed them in tbe circuit court for tbe first judicial district, though they do not appear to bave been marked filed by tbe clerk of tbat court. Tbe circuit court for tbe first district bad no jurisdiction of tbe case. It could not bave acquired tbe jurisdiction by the transfer, or removal of tbe case from tbe circuit court for tbe second district. Tbat court did not attempt to transfer tbe case, and if it bad done so there is no statute to authorize such a proceeding. When that court dismissed the cases its authority was ended *ipso facto.*It bad no jurisdiction, and tbe only order tbat it could make was one dismissing tbe cases with costs.

Tbe bond in no possible view of tbe case could sustain an appeal to tbe circuit court for tbe first judicial district. The condition of tbe bond was to satisfy tbe judgment of tbe circuit court for the second judicial district of tbe county, and tbat court has rendered judgment dismissing tbe case. It is precisely tbe same as if tbe appeal bad been taken to tbe circuit court of another county. This court said in its opinion, on tbe former appeal, tbat the jurisdiction of tbe circuit courts in tbe two districts of tbe county is just as distinct as if tbe districts were two counties. Tbe appeal bond executed at tbe November term, 1900, of tbe circuit court for tbe first judicial district was a new bond in every respect, and was given long after tbe period allowed for appeals bad expired. Tbe cases stood in tbat court as if' no appeal bond bad been given; and tbe court could not possibly get jurisdiction by allowing an appeal bond to be executed at tbat time. In this class of appeals tbe bonds are to be given in tbe justice court and are to be approved by the justice of tbe peace, and there can be no appeal without a bond. This court has expressly held tbat tbe time prescribed for tbe appeal is a limitation on tbe jurisdiction of *404the circuit court iu appeals from courts of justices of the peace. *Kramer*v. *Holster,*55 Miss., 243.

The plaintiff was not entitled to double damages. Sec. 1068 of the code of 1892, which allowed the recovery of double damages, was repealed by the act of March 12, 1900. Laws 1900, 140. ■

I. *T.*Blount, for appellee.

Plaintiff in the justice court was entitled to an appeal. This is a constitutional right. Sec. *Ill,*Constitution 1890. Code 1892, § 82. The appeal was prayed and bond given within the statutory period. No injustice was done defendants. It will be depriving plaintiff of a substantial, constitutional right to hold that upon this mere technicality she shall be denied a hearing, or, rather, robbed of a twice-earned victory before a jury. There is nothing in the contention that the original appeal bond was condition to abide “the judgment of the second circuit court district of Yalobusha county.” This is mere verbiage. Would it have been contended that appeal would have been lost on this bond by appellants if by mistake the justice of the peace had sent these papers to the circuit court of Lafayette county ? Plaintiff did all she could do to file her appeal bond within the prescribed time. Prom that time on she had no control of the record, until a court of competent jurisdiction had decided the question and directed to which court the appeal should be taken. This court will observe that for more than thirty years these courts, first and second districts of Yalobusha county, have been created and this is the first time the -question has been presented. I insist, too, that this court note that there was no transfer of this case from the second circuit court district to the first circuit court district. This is a direct appeal of the case from the judgment of the justice of the peace to the circuit court, taken in due time, and delayed, not by the fault of the plaintiff, but by the *405mistaken views of the magistrate who sent np the appeal and the circuit judge who held jurisdiction of the ease.

The act of 1900 (Laws, p. 140) does not repeal code of 1892, § 1068.' *Andincj*v. Levy, 57 Miss., 57.

Terral, L,

delivered the opinion of the court.

Mrs. Lovejoy sued Nations before Fudge, a justice of the peace of district No. 2 of Yalobusha county, for breach of duty to her, under § 1068, code 1892, in the sum of $100. Justice district No. 2 was composed of territory belonging partly to the first and partly to the second circuit court district of said county, and Nations resided in that part of justice district No. 2, which lay in the first circuit court district. The justice gave judgment against Mrs. Lovejoy, and she appealed her case to the circuit court. The appeal bond recited that Mrs. Lovejoy should appear and prosecute her suit in the second judicial district instead of the first; and she appeared in the circuit court at the courthouse in the secojnd judicial circuit court district, and there obtained a judgment, which was reversed on appeal here, because the appeal should have be:en to the circuit court of the first judicial circuit court district of feaid county. 77 Miss., 36 (25 South., 494). Thereafter Mrs. Lovejoy filed her appeal papers in the circuit court of the first circuit court district of the count}', amended her bond to that effect, and there had judgment against Nations for $75. At the last trial, § 1068, code 1892, had been superseded by chap. 102, acts 1900. Nations excepted to the action of the court in permitting an amendment of the bond so as to make the appeal be to the first, instead of the second, judicial district of the county; and this is one of the errors assigned. Another assignment of error is the giving of several instructions, at the instance of the plaintiff below, authorizing the jury to find double damages.

1. We think the amendment of the appeal bond was properly allowed. Sec. 91 of the code of 1892 expressly provides that defective appeal bonds may be amended, or that a new appeal *406bond may be given, as tbe case may require. The appeal bond was considered good by the justice, who approved it, and by the circuit court of the second judicial district, which gave judgment upon it, but it was adjudged defective on appeal here. Now, Mrs. Lovejoy applied in due time for he! appeal, and gave tire bond required by the justice for'that purpose; and the mistake made, whether that of the justice of the peace or of Mrs. Lovejoy, it would seem, the statute fully covers. . The amendment accomplished only justice, and it comes within the letter and spirit of the statute.

2. The instructions for double damages are erroneous. The double damages aluthotrized by § 1068, code 1892,, are repealed by chap. 102, acts 1900. Sec. 61 of the constitution provides that the section of the law amended shall be inserted at length in the amendment, and chap. 102, acts 1900, obviously leaves out the double damages authorized by § 1068 of the code of 1892, repealed by it. The amount recovered might pass for single damages, except for the instructions directing the jury to find double damages.

If one-half the damages be remitted, the case will be affirmed, at appellee’s costs; if not, the judgment will be reversed and the case remanded.