applicable to the arrangement of the names of the parties, and not to the name or style of the court. All papers on an actual appeal must, therefore, be entitled in the appellate, and not in the lower jurisdiction.—Clickman v. Clickman, 1 Comst. 611; 3 How. 365; 1 C. R. 98.

On appeal from a judgment, any intermediate order involving the merits, and necessarily affecting the judgment, may be reviewed, under the power given for that purpose by sec. 329.

In the last place, the form of judgment which it is competent for an appellate court to pronounce, is thus expressly prescribed by sec. 330.

§ 330. Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.

The power of that court is, however, limited to the different points mentioned in the notice of appeal. Only such parts of the judgment as are appealed from, can be reviewed.-Kelsey v. Western, 2 Comst. 500. Of course a reasonable degree of care in the preparation of that notice, will effectually prevent any practical inconvenience from arising in relation to this rule.See the same subject hereafter considered.

CHAPTER II.

OF APPEALS FROM JUSTICES' COURTS.

It will not be necessary to detain the reader for any length of time, on the consideration of this class of appeals, the practice in the courts in question not entering within the scope of this work.

By sec. 351, the whole of the previous existing enactments on the subject of appeals of this nature are swept away, and the provisions of the Code substituted for them in all cases.

By sec. 352, the courts of review for that purpose are prescribed, being the county court of the county in which the judgment was rendered, in all cases out of the city of New York, and the court of common pleas, as regards the judgments of the marine and justices' courts in that city. Under the Code of 1848, the superior court had also cognizance of this latter description of cases, but, by the measure of 1849, that peculiar branch of jurisdiction was, as at present, exclusively attributed to the court of common pleas.

Under the Codes of 1849 and 1851, an affidavit, stating the substance of the testimony and proceedings before the court below, and the grounds upon which the appeal was founded, was necessary in these cases, in addition to the formal notice. This further burthen upon the appellant has now been swept away by the last amendment, under which, the notice to be given, the mode of its service, and the limitation as to the time within which an appeal of this nature must be taken, are thus prescribed by sections 353 and 354.

§ 353. 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.

§ 354. 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 the county, in the same manner on the attorney or agent, if any, who is resident of such city or county, who appeared for him on the trial; and the appellant must, at the time of the service of the notice of appeal on the justice, pay to him the costs of the action included in the judgment, together with two dollars costs of the return, which shall be restored to him in case the judgment is reversed, and be included in the judgment for costs, on reversal.

The provision at the close of sec. 353, under which, in cases where the summons has not been personally served, and judgment has afterwards been taken thereon by default, the time for appealing, only runs from the receipt by the defendant of personal notice of that judgment, was first inserted on the amendment of 1851.

The prevailing party in these cases will, of course, see to the due giving of this notice at the earliest possible period, with a view to preclude his adversary from reviewing the decision hereafter.

Previous to the last amendment it was essential that the grounds of appeal should appear clearly and distinctly upon the affidavit, as then required.-Thompson v. Hopper, 1 C. R.

103.

The appellant, it was held, must put his finger on the point relied on, and distinctly inform his adversary on what ground he alleges that there is error in the judgment.— Williams v. Cunningham, 2 Sandf. S. C. R. 632. See also Sullivan v. McDonald, in Note, 2 Sanf. S. C. R. 632.

It was also obligatory under those provisions, to state the whole of the proceedings and testimony-Brown v. Stearns, 2 C. R. 119; unless, however, the appellant exclusively relied on some point not arising out of the testimony at all.

In Partridge v. Thayer, 2 Sandf. S. C. R. 227, a substantial compliance with the above was, however, held to be sufficient, and that the respondent, if dissatisfied, should serve a counter affidavit under sec. 359.-Mulford v. Decker, 1 C. R. 71. The judgment appealed from was, though, obliged to be set out, or the defect was fatal.-Davis v. Lounsbury, 1 C. R. 71. Of course, the whole of this law is now swept away by the recent amendments, but a short citation of the above cases may be useful, with a view to proceedings now pending.

The form of the notice of appeal is not specially prescribed, and that used in the higher courts, (see Appendix,) may be employed. The notice, when prepared, must be engrossed in duplicate, a copy must then be served on the justice as above directed, and, at the same time, the costs of the proceedings in the court below, and likewise $2, his costs of his return, must be paid into his hands, according to the directions of the section as above cited.

Under the late practice, an omission to serve the notice of appeal as well as the affidavit, was held to be a fatal defect. In Purdy v. Harrison, 1 C. R. 54, and in Schermerhorn v. Goldy, 1 C. R. (N. S.) 290, the converse of that proposition was also maintained. The course to be now pursued for the future, is so clearly pointed out, that any further directions are needless.

The fee on the return under the Code of 1849, was $1

only. The payment of this fee is absolutely obligatory, as without it, a return cannot be procured, which omission will be fatal to the appeal, unless the justice chooses to waive his rights and make such return, without insisting on the payment.- Van Heusen v. Kirkpatrick, 5 How. 422. The provision as to the payment of the costs of the prior proceedings into his hands, was first inserted on the amendment of 1851, and will doubtless be held to be equally essential, as a condition precedent to the validity of the proceeding.

The event of the death or absence of the justice, and the the course to be pursued thereupon, are thus provided for by the last amendments:

§ 359. 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.

Service having been duly made on the justice as above, the duplicate notice of appeal must likewise be personally served upon, or left at the residence of the prevailing party, when resident within the county, or, if not, then upon his resident attorney or agent who appeared for him on the trial, as specially directed by sec. 354.

In Purdy v. Harbe a fatal defect,

This proceeding is imperative in all cases. rison, 1 C. R. 54, the want of it was held to and that the right to appeal in that case was accordingly lost, the court possessing no power to grant an amendment under sections 173 and 174. Due diligence must also be used. Thus, in Duffy v. Morgan, 2 Sandf. S. C. R. 631, the court held that evidence, to the effect that the respondent could not be found at her place of residence, and that it could not be ascertained where she was staying, was insufficient to show that she was not a resident of the city of New York, and the appeal was dismissed accordingly.

Although sufficient for the purposes of the appeal itself, the service of the notices as above, does not, per se, stay execution on the judgment below, or any ulterior proceedings founded on that execution.-Conway v. Hitchins, 9 Barb. S. C. R. 378. If this be desired, security must be given in the shape of a written undertaking, executed by one or more sufficient sureties, ap

proved by the county judge or by the court below, as provided by sections 355 and 356. For form see Appendix.

The sureties must, it would seem, be resident within the jurisdiction of the court.-See Herrick v. Taylor, 1 C. R. (N. S.) 382, note. The delivery of this undertaking to the court below stays the issuing of execution, or, if issued, the service of a certified copy on the officer holding the execution, stays all further proceedings thereon.-Sec. 357. In case of the death or absence of the justice, the security in question may, under sec. 358, be filed with the clerk of the appellate court, but notice must in that case be given to the respondent, as above prescribed with regard to the notice of appeal.

Under the previous modifications of the measure, express provisions were made in relation to the service of counter affidavits by the respondent, if dissatisfied with the appellant's statement of the case, at any time within ten days after receiving the notice of the appeal; but, if he omitted to do so within that period, he was then bound by the statement as it stood.Mulford v. Decker, 1 C. R. 71, above cited. In Truax v. Clute, 7 L. O. 163, it was decided, that a county judge has the power to extend the time for the respondent to make and serve such counter affidavits, but, of course, the whole of this practice is now rendered inapplicable.

The next step in an appeal of this nature, is the justice's return of the proceedings. The form and disposition of this indispensable document are thus prescribed by sec. 360:

§ 360. The court below shall, thereupon, after ten days and within thirty days after the 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, and may be compelled to do so by attachment. But no justice of the