APPEALS AND ERRORS. 257

trial until the second term, and if, when said case is called for trial, the
appellant is not ready to prosecute his appeal, the court, instead of hearing
said case de novo, shall affirm the judgment of the justice of the peace,
with costs against the appellant, and if there be cross appeals, the court
shall affirm the judgment of the magistrate, as against the defendant side
of the case below where the defendant appealed, and is not in court ready
for trial when said appeal is called for hearing; provided, the party appeal-
ing shall dismiss his appeal, and if he does not, the court shall proceed to
hear said cross appeals de novo.

An. Code, sec. 91. 1904, sec. 91. 1888, sec. 88. 1852, ch. 76, sec. 3. 1852, ch. 336.

97. If two summonses be return'ed non est, or one summons be returned
served, the court may hear and determine the case ex parte.

Where there is .only one return of " non-est," the court is without jurisdiction.
Mears v. Remare, 33 Md. 251.

Where the city court proceeds prior to the return of two non-ests, and its action
is reversed on appeal, the case will be remanded to the city court as if no trial had
occurred there. Mears v. Remare, 34 Md. 334.

An. Code, sec. 92. 1904, sec. 92. 1888, sec. 89. 1791, ch. 68, sec. 4. 1829, ch. 236.

1852, ch. 239, sec. 3.

98. No appeal from a judgment of a justice of the peace shall stay
execution, unless an appeal bond, in double the sum recovered, with
approved and sufficient security, be filed with the justice, with condition
that if the party appealing shall not prosecute his appeal at the next cir-
cuit court for the county, or the next term of the Baltimore city court,
with effect, and also pay an.d satisfy the party in whose behalf the judgment
of the justice shall be given, his executors, administrators or assigns, in
case the said judgment shall be affirmed, as well the debt, damages and costs
adjudged by the justice from whose judgment such appeal shall be made,
as also all costs and damages that shall be awarded by the court before whom
such appeal shall be heard, tried and determined, then the said bond to be
and remain in full force and virtue, otherwise to be of none effect.

An appeal bond is necessary to stay execution in a replevin suit. State v. Car-
rick, 70 Md. 591.

No recovery can be had on an appeal bond conditioned to prosecute an appeal
from the judgment of a court which has no existence; such a bond does not
operate to stay execution. Tucker v. State, 11 Md. 329.

For a case construing the act of 1829, ch. 236, see Brewer v. Smith, 3 Gill, 304.

Cited but not construed in Harris v. Regester, 70 Md. 116; O'Neale v. Long, 4
Cranch. 60.

See sec. 57, et seq., and notes to sec. 92.

An. Code, sec. 93. 1904, sec. 93. 1888, sec. 90. 1825, ch. 68, sec. 1.

99. When an appeal bond shall be filed with sufficient securities, the
said appeal shall operate as a supersedeas to any execution on said judgment,
notwithstanding a levy may have been made; provided the said appeal shall
be taken and the bond filed within sixty days after judgment, and the party
appellant first pays or tenders payment to the officer making such levy, of
all legal fees which shall have accrued on said levy.

It is no defense to a suit on the bond that it was executed more than sixty days
after judgment, entered. Object of the act of 1825, ch. 68. Brewer v. Smith, 3
Gill, 302.

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