completes his record, and dockets his judgment for those costs, when entered, in the usual manner. The judgment-roll will consist of the remittitur, and order for judgment, with the usual postea. As to the authority of the clerk to tax the costs in these cases, see Union India Rubber Company vs. Babcock, supra.

On dismissal of an appeal with costs, after argument upon the merits, the court below is bound to suppose, that the usual costs of an appeal are intended, and not merely costs of a motion, unless the contrary is expressed in the order. Webb vs. Norton, 10 How., 117. Full costs follow that of an appeal from an order. White vs. Anthony, 23 N. Y., 164.

In Bogardus vs. Rosendale Manufacturing Company, 1 Duer, 592; 11 L. O., 125, it is held that, on reversal of the decision of the general term, and affirmance of a decree in equity at special term, "with costs,' those terms will only carry the costs of the court below, and not those of the appellate tribunal, unless expressly so stated. The words are to be read, as if the affirmance were "with costs of the court below."

Where the remittitur awarded costs, and also interest on the judg ment, by way of damages, it was held that the respondent could not claim double interest, once under the judgment, and once as damages, and that this formula, continued from the former practice of the Court of Errors, was in effect nugatory. See Hoard vs. Garner, 4 Sandf., 677.

When damages are given on an affirmance, under the clause introduced into subdivision 6 of section 307, on the amendment of 1858, the respondent will be entitled to tax and enter judgment for them, as part of his costs, in the same manner as with respect to an allowance on the trial, under sections 308 and 309.

Memorandum.-The following regulation in relation to a reargument, when ordered, was made by this court, at the January term, 1863:

Rule 28. All causes in which a reargument is ordered, may, at the election of either party, be placed on the calendar at the next term after such reargument is ordered, or the following term-the same to take its original place on the calendar.

CHAPTER V.

OF APPEALS FROM JUSTICES' COURTS.

§ 321. Statutory and Other Provisions.

APPEALS of this nature are regulated by chapter V., title XI., part II of the Code of Procedure, which runs as follows:

CHAPTER V.

Appeal to the Court of Common Pleas for the City and County of New York, or to a County Court, from an Inferior Court.

§ 351. (301.) All statutes, now in force, providing for the review of judgments in civil cases, rendered by courts of justices of the peace, by the Marine Court of the city of New York, by the justices' courts in the city of New York, by the Municipal Court of the city of Brooklyn, and by the justices' courts of cities, and regulating the practice in relation to such review, are repealed; and hereafter, the only mode of reviewing such judg ments shall be an appeal, as prescribed by this chapter.

Dates, as it stands, from 1849. The difference in 1848 was merely verbal, not substantial.

§ 352. (302.) When a judgment shall have been rendered by the general term of the Marine Court of the city of New York, or by a justice of a justices' court of that city, the appeal shall be to the Court of Common Pleas for the city and county of New York.

The appeal from the general term of the Marine Court, prescribed herein, shall be from an actual determination at such general term only, and shall be taken, within twenty days after judgment by such general term. In the city of Buffalo, the appeals from the courts of justices of said city shall be to the Superior Court of said city. When rendered by any of the other courts enumerated in section three hundred and fifty-one, the appeal shall be to the county court of the county where the judgment was rendered. On such appeal, when the amount of the claim or claims of either party, litigated in the court below, shall exceed fifty dollars, or when, in an action to recover the possession of personal property, the value of the property as assessed and the damages recovered shall exceed fifty dollars, exclusive of costs, a new trial shall be had in the county court, in the following cases: 1. When the judgment was rendered upon an issue of law joined between the parties.

2. When it was rendered upon an issue of fact, joined between the parties, whether the defendant was present at the trial or not.

Wholly remodelled, and the concluding provisions, as to a new trial in certain cases, added on the amendment of 1862. The clause as to appeals, in the city of Buffalo, was likewise added on that occasion.

That in relation to appeals from the general term of the Marine Court was first inserted, and the wording of the other provisions revised, in 1857. The section, these changes excepted, dates substantially from 1849. In 1848, the appeal in New York cases lay to the Superior Court. instead of to the Common Pleas.

§ 353. (303.) The appellant shall, within twenty days after judgment, serve a notice of appeal, stating 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 serve the notice of appeal provided for in this and the next section.

Dates, as it stands, from 1852.

In 1851, the appellant was required, within the same period, to make, or cause to be made, an affidavit, stating the substance of the testimony and proceedings before the court below, and the grounds upon which the appeal was founded, and to serve it, together with a notice of appeal; the concluding sentence standing as now, with verbal differences only.

In 1848 and 1849, this affidavit was required in all cases, the concluding portion of the section being omitted.

Since the amendment of 1862, this section must be read in connection with the following, forming part of section 371, as then remodelled: In the notice of appeal, the appellant shall state in what particular, or particulars, he claims the judgment should have been more favorable to him. § 354. (304.) 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 such county, or cannot, after due diligence, be found therein, in the same manner, on the attorney or agent, if any, who is a resident of such county, who appeared for the respondent on the trial; and if neither the respondent nor such agent or attorney can be found in the county, the notice may be served on the respondent, by leaving it with the clerk of the appellate court; and the appellant must, at the time of the service of the notice of appeal on the justice, or on his clerk, as herein provided (except in cases of appeals from the district courts in the city of New York, and the general term of the Marine Court of the city of New York), pay to such justice or clerk, the costs of the action, included in the judg ment, together with two dollars, costs of the return, which shall be included in the judgment for costs on reversal. In all cases of appeal from the general term of the Marine Court of the city of New York, and from the district courts of the city of New York, to the Court of Common Pleas for the city and county of New York, the appellant shall, at the time of the service of the notice of appeal, pay to the clerk of the Marine Court, or to the justice or clerk of the district court, two dollars, as costs of the return to such Court of Common Pleas, which costs, so paid, shall be included in the judg

ment for costs, in case the judgment of the court below shall be reversed; and the appellant shall also execute, on the appeal, a written undertaking on his part, with one or more sufficient sureties, to the effect that the appel lant will pay all costs, disbursements, and extra costs awarded against him in the court below, if such judgment shall be affirmed by the appellate court, on such appeal, together with all costs and damages which may be awarded against him thereon; such sureties to justify in double the amount specified in the undertaking; such undertaking, and the sufficiency of the sureties to be approved by the justice of the court below, or one of the judges of the Court of Common Pleas; or the appellant may deposit with the clerk of the Court of Common Pleas, the costs, disbursements, and extra costs included in the judgment in the court below, and the sum of fifteen dollars, to meet any costs that may be awarded against him in such appeal; and such appeal from the general term of the Marine Court and the District Court shall be ineffectual, unless, within the time specified for bringing the appeal, the appellant execute such undertaking or make such deposit; the undertaking, when executed and approved, to be filed with the clerk of the Court of Common Pleas; the amount so deposited shall be repaid by said clerk to the appellant, if he succeed on the appeal; and in case the judg ment be affirmed, the said clerk shall, after execution is issued, pay over the amount so deposited, to the respondent, which shall be credited on the execution issued on the judgment of affirmance, to the extent thereof, and the balance, if any, on the execution issued on the judgment appealed from. This section dates, as it stands, from the amendment of 1858.

On that occasion, the whole of the special provisions as to appeals from the general term of the Marine Court, and from the District Courts of the city of New York, were for the first time inserted.

In 1857, the section consisted of the previous portion only, in nearly the same words as it stands now, some slight verbal differences excepted.

In 1852, the provision stood as in 1857, except that the power of service, by leaving it with the county clerk, was omitted, and some slight verbal differences at the conclusion.

In 1851, directions were given for service of the affidavit then required, together with the notice of appeal, on the justice, and of the notice of appeal only, on the respondent, nor was there any power of serving the former on the justice's clerk. Otherwise, the section was substantially the same.

In 1849, a copy of the affidavit, and a notice, were to be served, both on the justice and on the respondent. There were some verbal differences, and the concluding portion, providing for the payment of the costs of the return, was wholly omitted.

In 1848, the phraseology was different, to some extent. It was also necessary to state, on the face of the notice, that the appeal would be heard at a time and place designated, either in or out of term, and the copy affidavit and notice were to be served at least ten days before the time of hearing.

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

Dates as it stands from 1849. In 1848 he was required to present the affidavit to a judge of the appellate court, or of the Supreme Court, who might, in his discretion, make an order that proceedings be stayed, upon security being given.

§ 356. (306.) 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.

Dates from 1849. In 1848, the undertaking might be approved by the judge making the order staying proceedings.

357. (307.) 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.

Dates from 1849. In 1848, the order was to be delivered, and a copy served with the un dertaking.

§ 358. (308.) 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 ap pellate court, and notice thereof given to the respondent, or his attorney or agent, as provided in section three hundred and fifty-four; it shall, there upon, have the same effect as if delivered to the justice.

Dates from 1849. In 1848, the order was to be filed with the undertaking, and there were other slight verbal differences in the section.

§ 359. (309.) 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.

Dates, as it stands, from 1852. In the previous year there was no such provision. Section 359, as it stood in 1849, provided that, after service on him, the respondent might correct material omissions or misstatements, by affidavit on his part, to be served on the justice and the adverse party, within ten days after receiving notice of appeal. In 1848, the section was to the same effect, except that the affidavit, in correction, need only be served on the adverse party, at least four days before the time for hearing.

§ 360. (311.) The court below shall thereupon, after ten days, and within thirty days after service of the notice of appeal, make a return to the appellate court, of the testimony, proceedings, and judgment, and file the same in the appellate court. The return may be compelled 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 the service of the notice of appeal.

Settled, as it stands, in 1862; but substantially the same since the amendment of 1852. In 1849, the affidavits then required, were to be filed with the return.

In 1848, the procedure was wholly different. Section 310 of that year, provided for a hearing of the appeal, upon the affidavits served by the parties, or if those affidavits were defective, it might then order the court below to make a return, within ten days after the service of the order and affidavits, or of copies. Section 311 of that year, provided for the making of such return, if ordered, substantially to the same effect as the present provision.

VOL. II.-53