execution must also command the constable, if sufficient personal property cannot be found to satisfy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain unti' he pays the judgment, or is discharged according to law. If the judgment was rendered in an action to recover a penalty or forfeiture given by a statute of the State, the justice must indorse upon the execution a reference to the statute, as prescribed in section 1897 of this act, with respect to a copy of the summons.

From 2 R. S. 249, § 101.

§ 3027. Renewal of execution.

After the return, wholly or partly unsatisfied, of an execution, issued by a justice of the peace, he may, from time to time, within five years after the judgment was rendered, issue a new execution or renew the former execution. An execution is renewed by a written indorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. If part of the execution has been satisfied, the indorsement must state the sum remaining due. Each indorsement renews the execution for sixty days from the date thereof. A justice whose term of office has expired may thus issue or renew an execution. From Id., §§ 145 and 147; and 2 R. S. 271, Part 3, ch. 2, tit. 4, § 258 (2 Edm. 259), ch. 341 of 1840; ch. 276 of 1846; ch. 512 of 1851 (4 Edm. 548), and Co. Proc. § 64, sub. 12.

See 1403, Consol. Act.

§ 3028. Property exempt from execution.

The same personal property is exempt from levy and sale, by virtue of an execution issued by a justice of the peace which is exempt from levy and sale, by virtue of an execution issued out of the supreme court, and in the like cases, and under the same circumstances, as prescribed in sections 1389. 1390, 1391, 1392, 1393, and 1394 of this act, and the other special provisions of law, relating to such an exemption.

From Id.. § 169, as amended by subsequent acts.

§ 3029. Indorsement of levy; notice of sale.

A constable, who takes personal property into his custody, by virtue of an execution, must indorse upon the execution the time of levying upon it. He must immediately post conspicuously, in at least three public places of the city or town, in which the property was taken, written or printed notices, signed by him, describing the property, and specifying the place, within the same city or town, where, and the time not less than six days after the posting, when, it will be exposed for sale.

From Id., § 148.

§ 3030. Mode of levy and sale.

The provisions of sections 1384, 1385. 1386, 1387, 1405. 1409, 1410, 1411, 1412, and 1428 of his act. substituting the constable for the sheriff, apply to and govern the levy upon and sale of personal property, by virtue of an execution issued by a justice of the peace; except where a different rule is prescribed in this act.

§ 3031. Return of execution.

The constable must return the execution to the justice and pay to him the amount of the judgment, with interest, or so much thereof as he has collected; returning the surplus, if any, to the person from whose property it was collected.

From Id.. § 149.

§ 3032. Execution against the person; imprisonment of judgment debtor.

For want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judgment debtor, and convey him to the jail of the county. The keeper of the jail must thereupon keep the judgment debtor in custody, in all respects as if the execution was issued out of the supreme court, until the judgment and the fees of the constable are paid; or until the judgment debtor is thence discharged, in due course of law; except that if the execution has an indorsement, showing that the judgment was rendered in an action for a penalty or forfeiture, given by a statute of the State, the sheriff shall not admit the judgment debtor to the liberties of the jail. from Id., § 151 and part of § 143.

§ 3033. When judgment debtor to be discharged.

If a person committed to jail by virtue of an execution issued by a justice of the peace, or out of the municipal court of Buffalo, or by virtue of an execution issued by a county clerk on a transcript of a judgment recovered before a justice of the peace, or in the said municipai court of Buffalo, has a family within the State, for which he provides, he must be discharged, after remaining in custody either with or without being admitted to the jail liberties thirty days; otherwise, he must be discharged after so remaining sixty days.

From Id., § 152.

Am'd by ch. 394 of 1883.

§ 3034. Affidavit; discharge.

In order to procure a discharge, as prescribed in the last section, the prisoner must make, and deliver to the sheriff or jailor, an affidavit, stating the facts which entitle him thereto, according to the provisions of that section. Upon receiving such an affidavit, the sheriff or jailor must forthwith discharge the prisoner from his custody. He must thereupon deliver the affidavit to the clerk of the county, who must file it.in his office, without fee.

From Id., §§ 153 and 154.

§ 3035. Penalty for not discharging.

A sheriff or jailor, who refuses to discharge a prisoner, upon receiving such an affidavit, forfeits twenty-five dollars for each day, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false imprisonment. From Id., § 155

§ 3036. Affidavit a defence to action for escape.

The receipt of such an affidavit is a defence, to an action brought against the sheriff or jailor, by reason of the prisoner's discharge. From Id., § 156.

§ 3037. Discharge not to affect judgment.

Notwithstanding the discharge of a judgment debtor, as prescribed in the last four sections, the judgment remains valid as against his property; and a new execution may be issued accordingly, as if he had not been imprisoned.

From Id., § 157.

§ 3038. Execution upon judgment in action for a chat-tel.

In an action for a chattel, the possession of which has not been delivered to the prevailing party, an execution for the delivery of the

possession thereof to him, as well as for any damages recovered by him, may be issued by the justice; unless the judgment has been docketed in the county clerk's office, as prescribed in title sixth of this chapter. It must be to the same effect, and executed in the same manner, as a like execution issued upon a judgment rendered in the supreme court; except that it must be directed generally to any constable of the county; and that the direction to satisfy a sum of money, out of the property of the judgment debtor, must be in the form prescribed in this title for a like direction, where an execution is issued by a justice of the peace, upon a judgment for a sum of money.

From ch. 131 of 1860, § 10 (5 Edm. 136), as amended by ch. 616 of 1865.

§ 3039. Action against constable for not returning execution.

If a constable fails to return an execution within five days after the return day thereof, the party, in whose favor it was issued, may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money; or if it was for the delivery of the possession of a chattel, the value of the chattel, as specified in the judgment, together with the damages and costs awarded thereby; and, in either case, with interest from the time when the judgment was rendered.

From 2 R. S., § 159.

§ 3040. Constable not to act under execution after return day.

A constable shall not levy upon or sell property, or arrest a defendant, or take possession of a chattel, by virtue of an execution, after the time limited therein for its return, unless the execution has been renewed; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed.

§ 3041. Action against constable for money collected. Where money, collected by a constable upon an execution, is not paid over by him according to law, any person entitled thereto may maintain an action in his own name, upon the instrument of security given by the constable and his sureties; and may recover therein the sum so collected, with interest from the time when it was collected.

From Id., § 163.

§ 3042. Duty of constable whose term of office has expired.

A constable, to whom an execution is delivered, whose term of office expires on or before the return day thereof, must proceed thereupon in the same manner, as if his term of office had not expired; and he and his sureties are liable for any neglect of duty, with respect to the execution; or for money collected thereunder, or for damages sustained by reason of any act done by the constable, touching the execution, in the same manner, and to the same extent, as if his term of office had not expired.

From Id., §§ 285 and 286.

§ 3043. Execution upon judgment docketed with county clerk.

Where a judgment, rendered by a justice of the peace, has been docketed with a county clerk, upon the filing either of a transcript from the justice's docket, or of a transcript from the clerk's docket of another county, the execution, to be issued thereupon by the county

clerk, must be in the same form, and executed in the same manner, as an execution issued upon a judgment of the county court; except as otherwise prescribed in section 1367 of this act; and except, also, that, where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor's real property, are not applicable thereto.

From Co. Proc. § 64, sub. 13.

See 88 1367, 3017.

See also § 1403, Consol. Act.

2. Appeal where a new trial is not had in the appellate court.
3. Appeal for a new trial in the appellate court.

ARTICLE FIRST.

Appeals Generally.

SEC. 3044. Justice's judgment reviewed by appeal.

3045. Who may appeal. To what court appeal to be taken.

3046. Appeal; when and how taken.

3047. Service of notice upon justice; payment of costs and fees.

3048. Service of notice upon respondent.

3049. Amendment when allowed.

3050. Undertaking to stay execution upon judgment.

3051. Proceedings; how stayed.

3052. Id.; when justice is dead, etc.

3053. Return.

3054. Id.; when justice has gone out of office.

3055. Further return; how compelled.

3056. Id.; when justice is dead, etc.

3057. Proceedings when error in fact is alleged.

3058. Restitution upon reversal.

3059. Setting off costs and recovery.

3060. Certain sums may be included in disbursements.

3061. Judgment-roll.

§ 3044. Justice's judgment reviewed by appeal.

The only mode of reviewing a judgment, rendered by a justice of the peace in a civil action, is by an appeal, as prescribed in this title.

From Co. Proc. § 351, last clause.

See §§ 1340, 1345.

§3045. Who may appeal; to what court appeal to be taken.

An appeal may be taken by any party aggrieved by the judgment. Except where the judgment is rendered by a justice of the peace of the city of Buffalo, the appeal must be taken to the county court of the county where the judgment was rendered.

From Co. Proc. § 325 and part of § 352.

Am'd by ch. 946 of 1895.

See § 1294.

§ 3046. Appeal; when and how taken.

An appeal must be taken, within twenty days after the entry of the judgment in the justice's docket; except that, where a defendant appeals from a judgment rendered in an action, wherein he did not appear and the summons was not personally served upon him, the appeal may be taken within twenty days after the personal service upon him on the part of the plaintiff, of written notice of the entry of the judgment;