Error must appear in the case.

Parties who appeal from rulings below in regard to the evidence, must set forth, in distinct terms, the evidence rejected, so that the court may pass upon its admissibility. Bland v. O'Hagan, 64–471.

Upon an appeal from an order vacating a judgment, for want of service of the process by which the action was constituted, it is necessary that the record show how the judge found upon the question of such service; it must present the fact as found, and not the evidence only bearing on such fact. The decision of the judge upon such fact is conclusive; except a question be made, whether there were any evidence tending to establish it, or whether a given state of facts constituted service. Cardwell v. Cardwell, 64-621.

A judgment appealed from must be affirmed in this court, no error being assigned on the record, in cases where the statement as prepared by the appellant has been returned with objections, and the appellant had failed to apply to the judge below, to give the parties a day to settle the case, is prescribed by Sec. 301, C. C. P. In such case, upon proper affidavit, an order will be made to the judge to certify a statement, but if the judge returns to such order that no application to settle the case has been made, the appellant is without remedy. Kirkman v. Dixon, 66–406.

It is a rule of this and all other courts of error, that an exception will not be considered, which does not specifically and distinctly point out the error alleged, and show wherein the error is conceived to consist. Brumble v. Brown, 71-513.

Where, upon an appeal, no error is assigned, and there is no error apparent upon the record, the judgment of the court below will be affirmed. Swepson v. Summey, 74-551.

When a party prays for an instruction to which he is entitled, it is error to refuse it. The court, however, is not required to adopt the words of the instruction prayed for, but it is error to change its sense, or to so qualify it as to weaken its force. Brink v. Black, 77-59.

A motion to dismiss an appeal, because it does not appear that a case has been made and served as prescribed by the Code, will not be granted, when an opposing counsel states on oath, in the Supreme Court, that all the requirements of the Code were complied with in the court below. Kirk v. Barnhart, 74—653.

302.-Clerk to make copy of judgment roll and send to Clerk of Supreme Court.

The clerk on receiving a copy of the case settled, as required in the preceding section, shall make a copy of the judgment roll and of the case, and within twenty days, transmit the same, duly certified, to the Clerk of the Supreme Court.

When both parties appeal, there are two cases constituted in the Supreme Court, and two cases and transcripts must be made out and transmitted by the clerk. Morrison v. Cornelius, 63-346.

The immateriality of an error, on the trial below, must clearly appear, on the face of the record, in order to warrant the court in disregarding it. McLenan v. Chisholm, 64–323.

It is the right and duty of an appellant, subject to the provisions of the Code, to direct what part of the record shall be sent up; only so much should be sent up as will show that there was a case duly constituted in court, and the verdict, judgment, and such portions of the proceedings, evidences and instructions of the judge, as will enable the court to pass on the exceptions. Sudderth v. McCombs,

67-353.

When the record of a case, brought upon appeal to this court, is imperfect, the case will be remanded to the court below. Bradley v. Jones, 76-204.

When the statement of the case," or any part thereof, on an appeal to this court, conflicts with the record paper, the latter must prevail, because it imports absolute verity. The "statement of the case is not a part of the record proper. Farmer v. Willard,

75-401.

303.-On appeal, security must be given or deposit made, unless waived.

[Amended by Acts of 1871-72, Chapter 31, Section 1.]

To render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant, with good and sufficient surety in such sum, as may be ordered by the court, not in any case to exceed the sum of two hundred and fifty dollars, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, or such sum as may be ordered by the court, must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent.

The Supreme Court may allow an appellant to substitute a sufficient, for an insufficient, appeal bond, after a motion by the appellant to dismiss the appeal for such defect. Robeson v. Lewis,

64-734.

An undertaking on appeal, given under Sections 303 and 414, of C. C. P., though not so expressed, is, by implication, taken to be made with the appellee. Such undertaking secures the costs of the appellee, but not those of the appellant. Therefore, when there was judgment in the Supreme Court in favor of the appellant, his sureties are not liable on their undertaking for his costs, when such cost cannot be made out of the appellee, or their principal. Clerk's Office v. Huffsteller, 67-449.

An appeal, to the Supreme Court, takes the whole case to that court, whether an undertaking, under §§ 303 and 304, have been given or not; so that a proceeding for a new trial on the ground of newly discovered evidence cannot be instituted in the Superior Court pending the appeal. Bledsoe v. Nixon, 69-81.

In an appeal by a defendant to the Superior Court, from a judgment of a justice of the peace, it lies within the discretion of the pre

siding judge, to require the plaintiff to give security for the further prosecution of the suit or not. Smith . R. & D. R. R. Co., 72-62.

303.a-Appeal in forma pauperis.

[Section 1, Chapter 61, Acts of 1873-74.]

1. When any party to a civil action tried and determined in the Superior Court shall, at the time of trial, desire an appeal from the judgment rendered in said action to the Supreme Court, and shall be unable, by reason of his poverty, to give the security required by law for said appeal, it shall be the duty of the Judge of said Superior Court to make an order allowing said party to appeal from said judg ment to the Supreme Court as in other cases of appeal now allowed by law, without giving security therefor: Provided, however, That the party desiring to appeal from said judgment shall make affidavit that he is unable, by reason of his poverty, to give the security required by law for said appeal, and that said party is advised by counsel learned in the law, that there is error in matter of law in the decision of the Superior Court in said action: Provided, further, That said affidavit shall be accompanied by a written statement from a practicing attorney of said Superior Court, that he has examined the affiant's case, and that he is of opinion that the decision of the Superior Court, in said action, is contrary to law.

[Section 2, Chapter 61, Acts of 1873-74.]

2. This act (§ 303a) shall apply to all cases tried and determined at the last term (Fall, 1873), of the several Superior Courts of this State.

An appeal to this court, in a criminal action without bond, must be perfected as prescribed by the Act of 1869-'70, Chapter 196, during the term of the court. If not so perfected, it is a nullity, and cannot vacate or suspend the judgment of the court. Dixon, 71-204.

State v.

Administrators and all other parties to the record, prosecuting or defending, are permitted, under the Act of 1873-74, Chapter 60, Section 1, to appeal to the Supreme Court without giving security therefor. Mason v. Osgood, 71–212.

In criminal cases, a defendant cannot appeal without security, unless he makes an affidavit that he is advised by counsel that he has reasonable cause for appeal, and that his appeal is in good faith. The Superior Court has no right to allow such appeal merely for delay. State v. Morgan, 77-510.

The Clerk of the Supreme Court is not bound to render his services gratuitously to a party whom the judge of the court below has allowed to appeal without giving the bond required by law. Martin v. Chasteen, 75-96.

1303.6-In criminal actions.

[Acts of 1869-70, Chapter 196, Sections 1 and 2.]

1. In all cases of conviction in the Superior Court for this State for any criminal offence, the defendant or defendants so convicted, shall have the right to an appeal, without giving security for costs, upon filing an affidavit that he is wholly unable to give security for the costs, and he is advised by counsel that he has reasonable cause for an appeal prayed for, and that the application is in good faith.

2. It shall be the duty of the judge, on filing of the affidavit required in section one (§ 303a) of this act, to grant the appeal without the security for costs, and for any offence liable by the laws of this State, shall require the defendant to enter into bond or recognizance in a reasonable sum, to make his appearance at the first term of the Superior Court, to be held in the county after the adjournment of the Superior Court to which the appeal was prayed, and to further answer the charge preferred.

304.-On judgment for money, security to stay execution-new undertaking, on sureties in first becoming insolvent.

If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant, by at least two sureties, to the effect that, if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. Whenever it shall be made satisfactorily to appear to the courts that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding to give a bond or an undertaking,

with surety or sureties, he may, in lieu thereof, deposit with the officer or into court, as the case may require, money to the amount for which such bond or undertaking is to be given. The court in which such action or proceeding is pending may direct what disposition shall be made. of such money, pending the action or proceeding. In any case where, by this section, the money is to be deposited with an officer, a judge of the court, at special term, or at chambers, upon the application of either party, may, before such deposit is made, order it to be deposited in court instead of with such officer; and a deposit made, pursuant to such order, shall be of the same effect as if made with such officer.

Where the plaintiff in a suit for land, at the Spring Term of the Superior Court of a county, recovers judgment and the defendant appeals, but gives an undertaking for the costs only, and at the next ensuing term of the Supreme Court, in June, the judgment is affirmed, and then the plaintiff takes out a writ of possession from the Superior Court, which is executed, he will be entitled to the crops growing on the ground for that year. Cox v. Hamilton,

69-30.

The right of the appellee to issue execution in case of the undertaking being to secure the costs of the appeal only, is given, instead of the deposit of money to bide the event of the appeal. Bledsoe v. Nixon, 69-81.

¿ 305.—If judgment be to deliver document or personal property, it must be deposited, or security be given.

If the judgment appealed from, direct the assignment or delivery of documents or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, shall direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.

306.—If, to execute conveyance, it must be executed and deposited.

If the judgment appealed froin direct the execution of a conveyance or other instrument, the execution of the judg