a. Where a judgment was affirmed in part and reversed in part, the respondent was allowed his costs in the court below, but was required to pay the costs of the appeal. Cole v. Swanston, 1 California Rep., 51.

$369. [322.] (Amended 1849.) Existing suits. Ordering

restitution.

If the judgment below, or any part thereof, be collected, and the judgment be afterwards reversed, the appellate court shall order the amount collected to be restored with interest from the time of collection. The order may be obtained upon proof of the facts made at or after the hearing, upon a previous notice of six days.

b. In affirming a judgment of a justice's court, the appellate court is compelled by statute to award costs to the respondent, and has no power to relieve him from the payment of those costs. Logue v. Gillick, 1 Smith, 398; and on reversing a judg ment the court has no discretion as to costs. The reversal must be with costs. Hahn v. Van Doren, 1 Smith, 411; Main v. Eagle, ib. 621.

c. Where a judgment of the court below has been paid before writ of error brought, but not satisfied of record, on reversal thereof the plaintiff in error cannot enter a suggestion and award of restitution of payment in his record of reversal, without leave of the court. It is otherwise where the judgment below is satisfied of record. There the evidence of payment comes up with the record, and restitution is a matter of course. Sheridan v. Mann, 5 Pr. R., 201; 3 Code Rep., 213.

d. The proper course where a party appealing is entitled to a restoration, is a motion in the appellate court for restoration, and on that motion being granted it becomes a part of the judgment in the appellate court, and the amount can be collected by execution with the costs. Kennedy v. O'Brien, in New York Common Pleas. June, 1851.

§ 370. [323.] Existing suits. Setting off costs and recovery. If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance. § 371. [324.] (Amended 1849-1851.) Existing suits. The costs on appeal.

The following fees and costs, and no other, except fees of officers and disbursements, shall be allowed on appeals: To the appellant, on reversal, fifteen dollars.

To the respondent, on affirmance, twelve dollars.
To a justice of the peace, for his return, two dollars.

If the judgment appealed from be reversed in part, and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars.

If the appeal be dismissed for want of prosecution, as provided by section 364, no costs shall be allowed to either party.

a. The amendment of 1851 to this section was the allowance of two dollars instead of one dollar to a justice of the peace for his return.

b. Where an appeal from a judgment rendered by a justice of the peace is heard by the supreme court, because of the incompetency of the county judge to hear the appeal, the successful party will recover the same costs as if the appeal had been decided by the county judge. He is not in such case entitled to tax the same amount of costs as on an appeal from a judgment of a county court. Taylor v. Seeley, 3 Code Rep., 84.

c. On bringing an appeal from a justice's court to the county court, the payment of the fee to the justice for making the return to the appeal, must be made at the time of the service of the notice of appeal. It is ground for dismissing the appeal, where the return is not made in consequence of the non-payment of such fee. And the justice cannot be compelled to make the return unless the fee be paid at the time notice of appeal is served. Van Heusen v. Kirkpatrick, 5 Pr. R, 422; 1 Code Rep. N. S., 74.

TITLE XII.

Of the miscellaneous proceedings in civil actions, and general

provisions.

CHAPTER. I. Submitting a controversy without action.

II.

Proceedings against joint debtors, heirs, legatees, devisees, and tenants holding under a judgment debtor.

III. Confession of judgment without action.

IV. Offers of the defendant to compromise the whole or a part of the action.
V. Admission or inspection of writings.

VI. Examination of parties.

SECTION 372.

CHAPTER I.

Submitting a controversy without action.

Controversy, how submitted without action. 373. Judgment on.

374. Judgment, how enforced or ppealed from.

§ 372. [325.] Controversy, how submitted without action. Parties to a question of difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought. But it must appear by affidavit that the controversy is real, and the proceeding in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.

$$ 373-375.] PROCEEDINGS AGAINST JOINT DEBTORS, ETC.

553

a. It is a general rule that courts will not entertain a fictitious case, to test a right to a particular thing. Port Gibson Bank v. Dickson, 4 Sme. and M., 689; Brewington v. Low, 1 Ind. R., 21.

b. No authority is contained in this section for the submission of actions; it relates solely to the submission of questions of difference without action; and where an action was commenced, and a case, containing the facts upon which the controversy depended, was agreed upon and submitted, it was held that if the action was not thereby discontinued, it must be when a submission is followed by a judgment. Van Sickle v. Van Sickle, 8 Pr. R., 265.

c. The plaintiff [or rather the nominal plaintiff] must furnish the necessary papers for argument, duly printed, as in cases of appeal. Supreme Court Rule, 29. $373. [326.] Judgment on.

Judgment shall be entered in the judgment-book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment shall constitute the judgment-roll.

$374. [327.] Judgment, how enforced or appealed from.

The judgment may be enforced in the same manner as if it had been rendered in an action, and shall be subject to appeal in like manner.

CHAPTER II.

Proceedings against joint debtors, heirs, devisees, legatees, and tenants holding under a judgment debtor.

SECTION 375. Parties not summoned in action on joint contract, may be summoned after judgment.

376. If judgment debtor die, his representatives may be summoned.
377.

Form of summons.

378. To be accompanied by affidavit of amount due.

379. Party summoned may answer and defend.

380. Subsequent pleadings and proceedings same as in an action.
381. Answer and reply to be verified as in an action.

§ 375. [328.] (Amended 1849.) Parties not summoned in action on joint contract, may be summoned after judgment.

When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceeding as provided in section 136, those who were not originally summoned to answer the complaint, may be summoned to

554 PROCEEDINGS AGAINST JOINT DEBTORS, ETC. [§§ 376-379. show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.

a. In a proceeding under this section does the cause of action or right to proceed arise upon judgment or the original demand? Oakley v. Aspinwall, 4 Coms., 513.

§ 376. [329.] (Amended 1849.) If judgment debtor die, his representatives may be summoned.

In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration upon the estate of the testator or intestate, be summoned to show cause why the judgment should not be enforced against the estate of the judgment debtor in their hands respectively; and the personal representatives of a deceased judgment-debtor may be so summoned, at any time within one year after their appointment.

§ 377. [330.] Form of summons.

The summons provided in the last two sections shall be subscribed by the judgment creditor, his representatives, or attorney; shall describe the judgment, and require the person summoned to show cause within twenty days after the service of the summons; and shall be served in like manner as the original summons.

§ 378. [331.] To be accompanied by affidavit of amount due.

The summons shall be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and shall specify the amount due thereon.

§ 379. [332.] (Amended 1849.) Party summoned may answer and defend.

Upon such summons, the party summoned may answer within the time specified therein, denying the judgment, or setting up any defence which may have arisen subsequently; and in addition thereto, if he be proceeded against according to section 375 he may make the same defence which he might