in lamining to the court below shall stay the issung of exefa bave been issued, the service of a copy of the marang, certified by the court below, upon the cEser bold og de execution, shall stay further proceedings thereoc.

15. (205.] In case of death of justice, undertaking to be -There, by reason of the death of a justice of the peale, or as removal from the county, or any other cause, the in lertaking on the appeal cannot be delivered to him, it stall 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. bave the same effect asif delivered to the justice.

1953. [309.] Counter affidavits allowed, and when and how erved.—When the affidavit and notice of appeal shall have been served, the respondent may supply or correct material omissions or misstatements therein, by an affidavit on his part, a copy of which shall be served on the justice, and also on the attorney, if any, who prosecutes the appeal, or if there be none, on the appellant, within ten days after receiving notice of the appeal.

360. [311] Return, when and how made and compelled.— The court below shall, thereupon, after ten days, and within y days after service of the notice of appeal, make a return e appellate court of the testimony, proceedings and judgand file the same, with the affidavits, in the appellate ad may be compelled to do so by attachment. But sice of the peace shall be bound to make a return, unless escribed by the last section of this chapter be paid ce of the notice of appeal.

ee aid on service of notice of appeal, the right of appeal is lost. Aqhartek, 5 Pr. R., 422.

A 2 Sandf. S. C. R., 637,) an appeal from the marine big called for argument, it appeared that the affidavits were de era set forth only the testimony in respect of which the davits; it was held, that the return must contain all the ook solely at the return, and as the return was defective, asher return, and a further return was ordered.

ve's court, the return of the justice must state the no court below. Belshaw v. Colie, 3 Code Rep., 184. worsed, for a defect in the return. Klenck v. DeForest,

Tu 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.] 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.

§ 363. [314.] 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 the judgment was rendered.

See Peck v. Foot, 4 Pr. R., 425.

§ 364. [315.] Hearing upon return.--Dismissing 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.

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 course. Bellamy v. Alexander, 1 Code Rep., 64. Geraghty v. Malone, 1 Code Rep., 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. S. C. R., 634.

365. [316.] 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.)-Judgment on appeal.-Upon the hearing of the appeal, the appellate court shall give judg

ment 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 knowledge of the justice, the court may determine the alleged error in fact on affidavits, and may in its discretion inquire into and determine the same upon examinations of the witnesess. If the defendant failed to appear before the justice, and it is shown by the affidavits served, or otherwise, that manifest injustice has been done, and the defendant satisfactorily excuses his default, the court may in its discretion, set aside or suspend the judgment, and order a new trial before the same or any other justice, at such time and place, and on such terms as the court may deem proper. The parties must appear before the justice according to the order of the court, and the same proceedings must thereupon be had in the action, as on the return of a summons personally served.

Before amendment the section ended where the asterisk is placed. The section before amendment was identical with section 317 of the code of 1848, upon which in a case where the summons claimed only $50, and the plaintiff in the absence of the defendant took judgment for $91, on appeal from such judgment it was alleged that only $50 was claimed by the inadvertence of the clerk of the court, and that the court under this section would rectify the error, the court said the difficulty is that we cannot know what are the merits of the case beyond the $50. The defendants had no opportunity to be heard in their defence as to the surplus beyond that sum. We can see there was no defence to the extent of $50, but beyond that we have no information. The appeal was allowed. Partridge v. Thayer, 2 Sand. S. C. R., 227.

Although the appellate court will not weigh the evidence below so as to reverse, if it merely preponderates against the judgment, yet a material defect of proof is fatal to the judgment. Carter v. Dallimore, 2 Sand. S. C. R., 222.

§ 367. [318.] Judgment roll.-To every judgment upon an appeal there shall be annexed the affidavits or return on which it was heard, which shall be filed with the clerk of the court, and shall constitute the judgment roll.

368. [321.] Costs, how awarded.-If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party.

§ 369. [322.] 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.

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 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.

370. [323.] 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.)-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.

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

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. Neeley, 3 C. R., 84.

On bringing an appeal from a justice's court, to the county judge, the payment of the fee of 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.

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.

Examination of witnesses.

Motions and orders.

VII.

VIII.

Submitting a controversy, without action.

SECTION 372. Controversy how submitted without action.
373. Judgment on, as in other cases, but without costs.

374. Judgment may be enforced, or appealed from, as in an action.

$372. [325.] Controversy, how submitted without action.— Parties to a question in 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.

See rule 32, of supreme court rules.

$373. [326.] Judgment on, as in other cases but without costs. -Judgment shall be entered in the judgment book, as in