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place to be designated therein ; the time to be not less than six days from the service of the summons.
$ 320. If a new trial be ordered, on an appeal from a judgment of a justice of the peace, it shall be before the same justice, or before any other justice in the same town or county, in the discretion of the appellate court.
$ 321. If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant, unless a new trial be ordered ; in which case, they shall be in the discretion of the appellate court. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party.
$ 322. 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 the hearing, upon a previous notice of six days.
§ 323. 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.
$ 324. The following fees and costs, and no other, shall be allowed on appeals:
To the appellant, on reversal, if upon affidavit, dollars; if upon a return,
dollars. To the respondent, on affirmance, if upon affidavit, dollars; if upon a return,
dollars. To a justice of the peace, for his return, one dollar.
The appellant shall, b: fore the first hearing of the appeal, pay into court, for the use of the county, dollars; or the appeal shall not be heard.
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
dollars. If the appeal be dismissed for want of prosecution, as provided by section 315, no costs shall be allowed to either party.
of the miscellaneous proceedings, in civil actions, and
CHAPTERI. SUBMITTING A CONTROVERSY, WITHOUT ACTION.
II. PROCEEDINGS AGAINST JOINT DEBTORS, HEJRS, LEGATEES
DEVISEFS, AND TENANTS HOLDING UNDER A JUDGMENT
OR A PART OF THE ACTION.
X. COMPUTATION OF TIME.
SUBMITTING A CONTROVERSY, WITHOUT ACTION.
SECTION 325. Parties may submit controversy without action.
326. Judgment on, same as in other cases, but without costs.
$325. 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.
This provision, it is believed, will be useful in many cases, where a question, as to a legal right, exists between fair and honorable men, there being no dispute about the facts. A final determination of such a case may be obtained in this way, not only quicker and cheaper, but in a manner more congenial to the feelings of the parties, than by an ordinary action at law; the latter being a process to bring an unwilling defendant to submit himself to the arbitrament of the laws.
$ 326 Judgment shall be entered in the judgment book, as in other cases, but without costs. the submission, and a copy of the judgment shall constitute the judgment roll.
$ 327. 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.
PROCEEDINGS AGAINST JOINT DEBTORS, HEIRS, DEVISEES,
LEGATEES AND TENANTS, HOLDING UNDER A JUDGMENT
SECTION 328. Parties not summoned in an action on Joint contract, may be sum
moned after juilgment.
In another part of the act, actions upon judgments between the same parties are forbidden.
When a right of acti in exists against several joint contractors, it is often convenient and sometimes necessary, to proceed. with the action and take judgment, though a part only of the defendants, could be found to be served with the summons or process for commencing the action. In such case, it may happen, that the plaintiff is unable to obtain satisfaction, out of any joint property of all the defendants, or the individual property of the party actually served, and it may be necessary to proceed against the other joint contractor, who, from temporary absence or other cause, was not served with process in the first instance, and yet has property sufficient to satisfy the judgment.
To give the plaintiff an a lequate remedy, and yet prevent the abuse alluded to, we allow a proceeding to be instituted on the first juilgment, to make it effectual against all the joint contractors; but in order to induce the plaintiff to use proper diligence, to include all the defendants in the first action, we allow him no costs on the subsequent proceeding, and also permit the defendants thus brought in, to set up any defence they might have made in the original action. As the law now