The appellant's counsel reads the papers and opens the argument; the respondent's counsel replies, and the appellant's counsel closes the argument. Only one counsel on each side is allowed to argue.(1)

Either party having noticed the appeal for hearing, may, if the other party does not appear to argue, move for and take, on furnishing proof of the service of notice of the hearing, such order as he claims to be entitled to, either of affirmance or reversal of the order appealed from, as the case may be.(2)

Where a default is thus taken, it is the duty of counsel who moves to indorse his name upon the papers.(3) This is done usually upon the back of the notice of hearing.

Decision.] Upon the decision being pronounced by the court, the proper rule should be drawn up, and entered with the clerk. If the rule is special, it should be submitted to the opposite attorney or counsel, and, in case of disagreement, must be settled by the court.

Get a certified copy of the rule and serve it upon the opposite attor ney.

Costs.] The costs upon an appeal are in the discretion of the court. When awarded to either party they are the same as upon a motion, viz.: ten dollars.(4)

As a general rule, when the order appealed from is reversed, costs will be given to the prevailing party; and, when it is affirmed, the respondent will be entitled to costs. But when the order is modified merely, no costs will be given to either party. The same general rules, in respect to costs upon special motions, are applicable to the question of costs upon appeals from orders.(5)

Costs when payable.] The party who is required by the rule or order to pay costs or perform any condition, has twenty days for that pur pose after the order has been served upon him. And if costs are to be taxed, he has twenty days after they have been taxed to pay them,(6) and no proceeding can be instituted to enforce the order or process issued to collect the costs, until the twenty days have elapsed.(7)

Costs, how collectable.] If the costs are not paid within the time limited for that purpose, they may be collected by execution, issued to the

sheriff, reciting the appeal and order for costs, and commanding him to collect the amount out of the personal property of the person liable to pay the same.(1)

The same rules which are applicable to executions for costs of motions are equally so to the process to collect the costs granted upon an appeal from an order. (2) It can only be collected out of the personal property of the party, and is not a lien upon the real estate. Nor can the costs, on failure to collect out of the personal property, be afterwards included in the judgment for the purpose of making them a lien upon the real estate of the party.

The execution may be issued to the same counties, and is subject to the same rules, and is returnable within the same time, and in the same manner, as executions issued upon judgments.(3)

CHAPTER VII.

OF THE SERVICE OF NOTICES AND OTHER PAPERS IN A SUIT.

All notices must be in writing.(4) And, when the suit is prosecuted or defended by attorney, must be signed by the attorney on record. It should be entitled correctly in the name of the cause and court, and where there are two causes pending between the same parties, the notice should specify to which it refers. If, however, the notice fully apprizes the party of its object, so that he cannot be misled, it will be deemed sufficient.(5)

Service of papers.] Service of papers may be of three kinds: 1. on the party himself; 2. on his attorney; 3. by mail. In this order the subject will be considered.

Service on the party himself.] According to a former practice of this court, where a party who was not himself an attorney, appeared and prosecuted or defended in person, it was not incumbent on his adversary to serve any of the papers or notices in the cause upon him, other than such as were intended to lay the foundation of an attachment for a contempt; it being required that they should be affixed in the office

(1) Laws 1847, Chap. 390, sec. 3, and see ante, p. 196.

(2) As to which see ante, p. 196.

(4) Code, sec. 408.

(3) As to which see ante, pp. 82, 127.

(5) 11 Wend. Rep. 178.

of one of the clerks of the court. Such a service, in point of fact, and indeed in point of intention, gave no notice whatever, in most cases, to the party for whom it was designed, and in general the first intimation he had of any proceedings on the part of his adversary, was an execution upon a judgment against him. This course of practice having been deemed by the court to be contrary to the spirit of the common law and statutory rule, allowing a party, if he saw fit, to prosecute or defend in person, they provided by rule, that where a party other than an attorney of the court prosecuted or defended in person, the service of papers might be on such party personally (and for every purpose except a contempt, leaving them at his dwelling-house was regarded as personal service),(1) or by putting the same into the post office, directed to him at his place of residence; and no service of notices or papers in the ordinary proceedings in a cause, should be necessary to be made on a defendant who had not appeared therein, except where the defendant was returned imprisoned for want of bail, in which case a copy of the declaration and notice of rule to plead should be delivered to him, or to the sheriff or jailer in whose custody he should be, and where an exception was entered to bail, and no notice of retainer of an attorney to defend was given, notice of such exception should be delivered to the sheriff or one of his deputies.

The principles of the former rule of this court are fully recognized in the Code, and where a party prosecutes or defends in person, as he may in all cases do, the service of papers is to be made on him in the same manner as upon an attorney.

Service on attorney.] Where a party has an attorney in the action, the service of papers shall be made on the attorney instead of the party.(2) Hence, after notice of retainer the service must be on the attorney. And the only exception to this is, where the object is to bring the party into contempt, in which case the service must be upon the party personally.(3)

In order to make the service good, it is a general rule, that everything must be done, to bring it home to the party.(4) Upon the attorney himself, service may be made at any time, and in any place. And notices and papers may be served on an attorney, during his absence from his office, by leaving the same with his clerk in his office, or with a person having charge thereof; or, where no person is to be found in the office, by leaving the same between the hours of six in the morning and nine in the evening, in some suitable and conspicuous

(1) 3 Johns. Rep. 439; 2 Price, 4. (3) Code, sec. 418.

(2) Code, sec. 423.

(4) 1 Johns. Cas. 136.

place in such office; or, if the office be not open so as to admit of service therein, then by leaving the same at the attorney's residence, with some person of suitable age and discretion.(1) Service on a clerk while in the office, is sufficient under this rule, whether the attorney be there or not, (2) and such service has been held to be sufficient as late as ten o'clock at night,(3) but an affidavit of service on a clerk or some person belonging to the office, must not only state that he was at the time in the office, (4) but must also show a relation between the person served and the attorney.(5)

Service by mail.] When the person making the service, and the per. son on whom it is to be made, reside in different places, between which there is a regular communication by mail, the service must be made by mail.(6) In such cases the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid.

The entire legal postage must be paid.(7) An attorney is not bound to take a letter from the post office charged with postage, though he have reason to believe it contains law papers; and the effect of his omis sion is the default of his adversary.(8)

It seems that when mail service is resorted to, the paper must be deposited in the post office at the residence of the attorney making the service.(9) The "place of residence," however, is understood to mean the name of the post office where the party or attorney usually does business, and the attorney may decide where is his place of residence by his indorsement on the papers.(10)

Hence, it has been held, that a paper deposited by the agent of the attorney making the service, in a post office in a different town from that in which the attorney resides, is not a good service, except from the time it is actually received.(11)

When the paper is thus deposited in the post office at the residence of the party making the service, correctly addressed, and the postage

(1) Code, sec. 409, sub. 1.

(2) 1 Cowen, 215.

(3) 8 Johns. 360.

(4) 2 Johns. Cas. 117; S. C. Coleman, 135; 3 Caines, 88.

(5) 1 Johns. Cas.

(6) Code, sec. 410.

(7) 1 Hill Rep. 21; 1 How. Pr. Rep. 158.

(8) 19 Wend. Rep. 87; 10 Ibid, 634.

(9) Schenk v. McKie, 3 Code Rep. 54; 4 How. Pr. Rep. 246.

(10) Rowell v. McCormick; 5 How. Pr. Rep. 337; Sup. Ct. Rule 5.

(11) Schenk v. McKie, 3 Code Rep. 54; Peebles v. Rogers, 5 How. Pr. Rep. 208.

paid, the service is deemed complete, and the party to whom it is addressed takes the risk of the failure of the mail.(1)

So, the service by mail is good, although deposited in the post office on the last day for service, after the mail has closed, if otherwise made in conformity with the statute.(2)

A service by mail must be double the time required in cases of personal service.(3) The service is deemed to have been made on the day the paper is mailed.(4)

Time of service, how computed.] The Code provides that the time within which an act shall be done, shall be computed by excluding the first day and including the last.(5) If the last day be Sunday, the party has the whole of the next day.(6)

In giving a construction to this section, the court have held both ways in respect to notices of less than a week. Thus, in one case,(7) it is decided that a notice served on Saturday for Monday, is not two days, and that Sunday should be excluded in computing time, where the notice is less than a week. But in another case, (8) it was held otherwise. The court say, "We know of no rule or principle by which Sunday is to be excluded from the computation, where it is an intermediate day, and supposed the law on the subject was settled. The law is established here, that Sunday must be computed, when it is an intermediate day." And the same view is taken by Hand, Justice, in another case.(9)

Indeed, from the very explicit language of the Code, there would seem to be very little room for doubt, and Sunday can only be excluded in the computation of time, where it is the last day, when the party has the whole of the next day to perform in.

There are some cases where this construction of the statute would be doubtless highly injurious to the rights of parties; as, for instance, costs are to be adjusted upon two days' notice to the 'opposite party. Now the notice of adjustment may be served late on Saturday in Buf

(1) Lawler v. Saratoga Mut. Ins. Co., 2 Code Rep. 114; Crittenden v. Adams, 1 Code Rep. (N. S.) 21; Gibson v. Murdock, 1 Code Rep. 103; Radcliffe v. Van Benthuysen, 3 How. Pr. Rep. 67; Van Horn v. Montgomery, 5 Ib. 238; Jacobs v. Hooker, 1 Barb. Sup. Ct. Rep. 71; Rowell v. McCormick, 1 Code Rep. (N. S.) 73. (2) Noble v. Trotten, 3 Code Rep. 35; 4 How. Pr. Rep. 322; Radcliffe v. Van Benthuysen, 3 How. Pr. Rep. 67; Schenck v. McKie, 3 Code Rep. 24; 4 How. Pr. Rep. 246.