shall have twenty days, after personal notice of the judgment, to serve the notice of appeal provided for in this and the next section.

a. Before the amendment of 1852 this section was as follows, the amendment of 1851 being in italic :—

b. "The appellant shall, within twenty days after the judgment, make, or cause to be made, an affidavit, stating the substance of the testimony and proceeding before the court below, and the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the defendant did not appear, he shall have twenty days, after personal notice of the judgment, to make and serve the affidavit and notice of appeal provided for in this and the next section."

c. This section, before the amendment of 1851, was identical with section 303 of the code of 1848; and upon that section, in a case where the appellant's affidavit stated the proceedings and testimony in the court below, but did not specify any particular ground of appeal, the court dismissed the appeal, and said, "The appellant must put his finger on the point relied upon, or distinctly inform his adversary on what ground he alleges there is error in the judgment." Williams v. Cunningham, 2 Sand. 632; Thompson v. Hopper, 1 Code Rep., 103.

d. And where the appellant's affidavit set forth various objections, as having been taken at the trial and overruled, but did not state the grounds on which the party appealed, the court dismissed the appeal because of this omission. Sullivan v. McDonald, 2 Sand. 632, in note.

e. An objection to the regularity of the notice of appeal will not be considered on the argument of the appeal. The remedy for any irregularity in that respect is by motion upon proper notice to the appellant to dismiss the appeal. Nye v. Ayres, 1 Smith, 533; Partridge v. Thayer, 2 Sand., 228.

f. The cases of Mulford v. Decker, 1 Code Rep., 71; Davis v. Lounsbury, ib. 71, were decisions on this section, but have no application to the present wording of the section.

§ 354. [304.] (Amended 1849-1851-1852.) Existing suits. Copy of affidavit and notice of appeal to be served, and costs paid.

The notice of appeal must, within the same time, be served on the justice personally, if living and within the county, or on his clerk, if there be one, and on the respondent, personally, or by leaving it at his residence with some person of suitable age and discretion, or in case the respondent is not a resident of the county, in the same manner on the attorney or agent, if any, who is a resident of such city or county, who appeared for him on the trial; and the appellant must, at the time of the service of the notice of appeal on the justice, pay to him the costs of the action included in the judgment, together with two dollars costs of the return, which shall be restored to him in case the judgment is reversed, and be included in the judgment for costs, on reversal.

a. Where the notice of appeal was served on the respondent's attorney, on motion to dismiss the appeal on the ground that the motion, &c., were not served on the respondent, it appeared by the appellant's affidavit, that "he used great diligence to make the service on the respondent, that he called at the residence of the respondent, in the city of New York, and could not find her there, was referred to another house, where, it was said, she was gone to service, and on calling there was told they did not know where she was, and finally, that she could not be found," the court held this insufficient to show that the respondent was not a resident of the city of New York, and dismissed the appeal. Duffy v. Morgan, 2 Sand., 631.

b. And where, within twenty days after judgment for the plaintiff, in a justice's court, the defendant served an affidavit and bond, pursuant to the requirements of the revised statutes, and the plaintiff disregarded the defendant's proceedings, and issued execution, the court, on the defendant's motion to set aside the execution, held, that no appeal was pending, and as more than twenty days had elapsed since the rendition of the judgment, the defendant could have no relief. Purdy v. Harrison, 1 Code Rep., 54.

c. Where, on an appeal from a justice's judgment, the fee for the return was not paid at the time of the service of the notice of appeal, but was afterwards tendered and refused, and the justice refused to make any return, the appeal was dismissed; and Harris J., said, "If the fee for the return is not paid on the service of the notice of appeal, the justice is not bound to make a return; nor is it in the power of the appellate court, either to compel a return, or to hear the appeal in the absence of any return. Van Heusen v. Kirkpatrick, 1 Code Rep. N. S., 74.

d. An appeal from a justice's court is perfected by the service of notice of appeal on the justice, and on the respondent, or his attorney, if the respondent is a nonresident; and when notice of appeal had been served on the justice, and no notice had been served on the respondent, it was held, that no appeal had been perfected, and that the plaintiff should treat the service made as a nullity and issue execution on the judgment; and a motion to set aside the appeal was dismissed. Schermerhorn v. Golief, 1 Code Rep. N. S., 290.

e. This "section requires that certain things shall be done within the twenty days; and if they are not all done, there is no appeal." And where the notice of appeal was within the twenty days served on the justice, but not on the respondent until after the twenty days had expired, held, that there was no appeal; that the service of a written notice of appeal on the respondent within the time, is absolutely necessary to give the appellate court jurisdiction, and that a verbal notice of appeal is not sufficient. The People v. Eldridge, 7 Pr. R., 108.

355. [305.] (Amended 1849.) Existing suits. Security to stay execution.

If the appellant desire a stay of execution of the judgment, he shall give security as provided in the next section.

f. An appeal from the judgment of a justice of the peace, not followed up by the giving of the undertaking required by the code (ss. 355, 356, 357,) will not operate as a stay of any further proceedings which the plaintiff may elect to pursue in order to enforce the collection of the judgment. Conway v. Hitchins, 9 Barb., 378.

§ 356. [306.] (Amended 1848.) Existing suits. Form of undertaking.

The security shall be a written undertaking, executed by one or more sufficient sureties, approved by the county judge or by the court below, to the effect that if judgment be rendered against the appellant, and execution thereon be returned

unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied.

a. An action will not lie against a justice or county judge for an error in judgment in approving an invalid undertaking. Chickering v. Robinson, 3 Cushing's Rep., 543. See page 282, e. ante.

$357. [307.] (Amended 1849.) Existing suits. Execution, how stayed.

The delivery of the undertaking to the court below shall stay the issuing of execution; or if it have been issued the service of a copy of the undertaking, certified by the court below, upon the officer holding the execution, shall stay further proceedings thereon.

§ 358. [308.] (Amended 1849.) Existing suits. In case of death of justice, undertaking to be filed.

Where, by reason of the death of a justice of the peace, or his removal from the county, or any other cause, the undertaking on the appeal cannot be delivered to him, it shall be filed with the clerk of the appellate court, and notice thereof given to the respondent, or his attorney, or agent, as provided in section three hundred and fifty-four, it shall, thereupon, have the same effect as if delivered to the justice.

§ 359. [309.] (Amended 1849-1852.) Existing suits. Filing in lieu of service of notice of appeal.

When by reason of the death of a justice of the peace, or his absence from the county, or any other cause, the notice of appeal cannot be served as provided by section three hundred and fifty-three, it may be served by leaving the same with the clerk of the county.

§ 360. [311.] (Amended 1849-1852.] Existing suits. Re turn, when and how made and compelled.

The court below shall, thereupon, after ten days, and within thirty days after servíce of the notice of appeal, make a return to the appellate court of the testimony, proceedings, and judg ment, and file the same* in the appellate court; and may be compelled to do so by attachment. But no justice of the peace shall be bound to make a return unless the fee, prescribed by the last section of this chapter, be paid on service of the notice of appeal..

a. The amendment of 1852 was merely the striking out the words "with the affidavits," where the asterisk is placed.

b. If this fee be not paid on service of notice of appeal, the right of appeal is lost. Van Heusen v. Kirkpatrick, 4 Pr. R., 422; 1 Code Rep. N. S., 74.

c. In McCafferty v. Kelly, 2 Sand. 637, an appeal from marine court, on the cause being called for argument, it appeared that the return set forth only a portion of the testimony; it was held, that the return must contain all the testimony, as the court can look solely at the return; and as the return was defective, the parties must call for a further return, and a further return was ordered.

d. On an appeal from a justice's court, the return of the justice must state the whole of the proceedings in the court below. Belshaw v. Colie, 3 Code Rep., 184. But a judgment will not be reversed for a defect in the return. Klenck v. De Forest, ib., 185.

e. A justice of the peace in making a return to the common pleas [county court] upon an appeal, acts ministerially, and is responsible to the party injured for error in such return. Houghton v. Swarthout, 1 Denis 509.

f. An altered adoption of the appellant's affidavit is not a sufficient return. Denson v. Carnahan, 1 Smith, 144-147, note.

See rules regulating appeals to the common pleas, in Appendix.

§ 361. [312.] Existing suits. How made if justice be out of office.

When a justice of the peace, by whom a judgment appealed from was rendered, shall have gone out of office before a return is ordered, he shall nevertheless make a return in the same manner, and with the like effect, as if he were still in office.

§ 362. [313.] Existing suits. Further return may be ordered.

If the return be defective, the appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with its order, by attachment.

See note to section 360, and Rule 87 of Supreme Court Rules.

§ 363. [314.] Existing suits. If justice be dead, insane, or absent.

If a justice of the peace, whose judgment is appealed from, shall die, become insane, or remove from the State, the appellate court may examine witnesses on oath, to the facts and circumstances of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to another county within the State, the appellate court may compel him to make the return, as if he were still within the county where judgment was rendered.

g. A return to a certiorari made by a judge who was out of office, before the service of the certiorari upon him, is a nullity. Peck v. Foot, 4 Pr. R. 425.

a. Where a judge of the late common pleas was served with a certiorari, after his term of office had expired, under the amended constitution of 1846, to remove certain proceedings had before him (while in office), relating to "summary proceedings to recover the possession of lands," it was held that the return made by him, was a nullity. Ib.

b. A justice of the peace is authorized by statute (2 R. S., 271, s. 260,) to make a valid return to a certiorari served upon him after he has gone out of office, for the purpose of reviewing a judgment rendered by him. But there is no such provision of law in cases of special proceedings, made applicable to a judge. Ib.

§ 364. [315.] Existing suits. Hearing upon return. Dis missing appeal if not brought on.

If a return be made, the appeal may be brought to a hearing at a general term of the appellate court, upon a notice by either party of not less than eight days. It shall be placed upon the calendar, and continue thereon without further notice, until finally disposed of; but if neither party bring it to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same, by special order, for cause shown.

c. Under the code of 1848 the appeal given by this chapter in cases arising in the city of New York, was to the superior court of that city, and it was there held that the appellate court would not give a judgment of reversal if the respondent failed to appear, without first investigating the merits of the case; but where the respondent alone appeared, the judgment would be affirmed as of conrse. Bellamy v. Alexander, 1 Code Rep., 64; Geraghty v. Malone, ib., 94. It was afterwards decided that the judgment appealed from will be reversed by default if the respondent do not appear to argue the appeal. Whitney v. Bayard, 2 Sand., 634.

d. Where notice of hearing has been given by the appellant, the respondent may move for an affirmance of the judgment, ex parte, although he has given no notice of argument. Constant v. Ward, 1 California Rep., 333.

§ 365. [316.] (Amended 1849.) Existing suits. To be heard on original papers.

The appeal shall be heard on the original papers; and no copy thereof need be furnished for the use of the court.

§ 366. [317.] (Amended 1849-1851.) Existing suits. Judg ment on appeal.

Upon the hearing of the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving judgment, the court may affirm or reverse the judgment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact.* If the appeal is founded on an error in fact in the proceedings, not affecting the merits of the action, and not within the knowl