340 ARTICLE 5

said case de novo, shall affirm the judgment of the justice of the peace,
with costs against the appellant, and rf 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, 1924, sec. 97. 1912, sec. 91. 1904, sec. 91. 1888, sec. 88. 1852, ch. 76, sec 3

1852, ch. 336

98. If two summonses be returned 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 la 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, 1924, sec 98 1912, sec 92 1904, sec 92. 1888, sec. 89. 1791, ch 68, sec 4
1829, ch 236 1852, ch 239, sec 3

99. No appeal from a judgment of a justice of the peace shall stay
execution, unless an appeal bond, in double the sum recovered, with ap-
proved 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 and 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 Carrick,
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 93

An Code, 1924, sec. 99 1912, sec. 93. 1904, sec. 93. 1888, sec. 90. 1825, ch. 68, sec. 1.

100. When an appeal bond shall be filed with sufficient securities, the
said appeal shall operate as a supersedeas to any execution on said judg-
ment, notwithstanding a levy may have been made; provided the said ap-
peal 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

An. Code, 1924, sec 100 1912, sec 94 1904, sec 94 1888, sec 91 1849, ch 78, sec 1

101. If the justice of the peace rendering any judgment appealed from,
goes out of office, by death or otherwise, before an appeal bond has been
executed by the party appealing, such appeal bond may be executed before