the security to be given, in order to a stay of proceedings, is conferred by sec. 348, as hereafter noticed.

Where an undertaking is given with a view to stay proceedings as above, security must also be put in under sec. 334, or the appeal will not lie at all. The latter is required in every case. Both may be contained in the same instrument, (see sec. 340,) but both must be executed, if the appellant would stay proceedings on the judgment.-Wilson v. Allen, 3 How. 369; 2 C. R. 26; 7 L. O. 286; Langley v. Warner, 1 Comst. 606; 1 C. R. 111; 3 How. 363.

The amount due on the judgment appealed from, must be distinctly stated in an undertaking of this nature, in order to form a groundwork for the necessary affidavit of justification under sec. 341.-Harris v. Bennet, 3 C. R. 23.

If the judgment appealed from, direct the assignment or delivery of documents, or of personal property, execution will not be stayed unless, as provided by sec.336, the things required to be assigned and delivered are brought into court, or placed in the custody of such officer or receiver as the court shall appoint; or unless an undertaking be given in such amount as the court, or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court, when made.

If the judgment appealed from, direct the execution of a conveyance, or other instrument, a stay will not be effected until such instrument shall have been executed, and deposited with the clerk of the court with whom judgment is entered, to abide the judgment of the appellate court; sec. 337.

Where the sale or delivery of possession of real property is directed, execution will not be stayed, unless, under sec. 338, an undertaking be given to the effect that, during the possession of such property by the appellant, he will not commit, or suffer to be committed any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal, until the delivery of possession thereof pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the

sale, the undertaking shall also provide for the payment of such deficiency.

In The Firemen's Ins. Co. of Albany v. Bay, 3 How. 424, 2 C. R. 3, it was decided that, in cases of this description, the undertaking as above prescribed is not necessary, as regards the actual bringing of the appeal. If the undertaking contains all that is required by sec. 334, the appeal will be effectual, though proceedings may not be stayed.

The above different forms of proceeding having thus been prescribed, the stay obtainable by means of them is defined in the following terms by sec. 339:

§ 339. Whenever an appeal is perfected as provided by sections three hundred and thirty-five, three hundred and thirty-six, three hundred and thirty-seven, and three hundred and thirty-eight, it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matters included in the action, and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and thirtysix, and three hundred and thirty-eight, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hunhundred and thirty-six, three hundred and thirty-seven, and three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.

It will be seen that, under the last clause of this section, the security to be given may be dispensed with, or limited by the court in certain cases. This provision is new, and was inserted for the first time on the amendment of 1851. See, also, section 348, as to the special powers of the court, to limit or modify the amount of the security to be given upon an appeal from a single judge to the general term, as before noticed.

In Bulkely v. Keteltas, 3 Sandf. S. C. R. 740, 1 C. R. (N. S.) 119, it was held that, although the giving of security stays all proceedings on the part of the prevailing party to enforce a judgment, or even from obtaining a transcript from the clerk of the court, he is, nevertheless, not precluded from merely filing a transcript already obtained by him.

In cases not falling under any of the foregoing categories, the giving of the undertaking for costs under sec. 334, stays all proceedings in the court below-except only that, where the judgment directs the sale of perishable property, the court below may order that property to be sold, and the proceeds thereof to be deposited and invested, to abide the judgment of the appellate court; sec. 342. Where this is desirable, an application to the court must be made in a regular form upon notice, unless the consent of the adverse party be obtained. The surrogates court was held to be a "court below," within the meaning of this section, in Anon. 3 C. R. 69.

The nature and effect of the different undertakings, on which, as above stated, the appeal may be grounded, or proceedings in the courts below may be stayed, having thus been particularized; their form, and the disposal of them, are lastly provided for as follows, by sections 340 and 343:

§ 340. The undertakings prescribed by sections 334, 335, 336, and 338, may be in one instrument or several, at the option of the appellant; and a copy, including the names and residences of the sureties, must be served on the adverse party, with the notice of appeal, unless a deposit is made, as provided in section 334, and notice thereof given.

§ 343. The undertaking must be filed with the clerk, with whom the judgment or order appealed from was entered.

The undertaking is, however, in no case, to be of any effect, unless, as provided by sec. 341, it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein.

By bringing these different scattered provisions into one view, we at length arrive at the result of all that is necessary, in order to perfect an appeal from a judgment, when duly taken; the same forms being applicable to an appeal to the court of appeals upon an order, subsequently passed upon by the general

term.

In order to this end, the following requisites must be complied with, in all cases:

1. A notice of appeal must be duly served on the clerk of the court, and on the adverse party, or rather, under the authority of decisions before cited, on the adverse attorney.

2. An undertaking must be given, comprising, in all cases, the security required by sec. 334, unless a deposit be made, or

such security be waived, as prescribed by that section. The undertaking so given must also include the further requisites above pointed out, in those cases in which a stay of proceedings is sought, according as those requisites are applicable.

3. Affidavits of the sureties must be annexed to every undertaking given, of whatever nature.

4. Every undertaking given, must now, under Rule 76 of the supreme court, be duly proved, or acknowledged in like manner as a deed of real estate. See, also, Wilson v. Allen, 3 How. 369, &c., before cited; Beech v. Southworth, 6 Barb. S. C. R. 173, 1 C. R. 99, and Note at 1 C. R. 79, in relation to the same practice having been established, before the making of the rules in question.

5. The original undertaking and affidavits must be filed with the clerk of the court, as prescribed by sec. 343.

6. Copies of those documents, including the names and residences of the sureties, must be served on the adverse party; or, if a deposit have been made, notice must be given to him of that deposit. The court will impose costs for any disregard of this section.-Beech v. Southworth, 1 C. R. 99; 6 Barb. S. C. R. 173.

The ordinary practice is, to serve the notice of appeal, and to file and serve a copy of the undertaking, simultaneously; which is, clearly, the most convenient and advisable practice, where practicable, though, in strictness, not absolutely necessary, especially as regards the undertakings with a view to the stay of proceedings.

An undertaking given in the form of a penal bond, was held in Conklin v. Dutcher, 5 How. 386, to be good under the Code, no particular form being there prescribed, provided that undertaking substantially conform, to all the conditions above required.

In Thompson v. Blanchard, 4 How. 210, 2 Comst. 561, it was held by the Court of Appeals, that an appeal must be considered as" perfected," within the meaning of Rule 2 of the rules of that court; when the notice of appeal and the undertakings required as above, or such of them as may be applicable, have been given, though possibly that appeal may still fail, for want of subsequent justification by the sureties, if duly excepted to.

The provision in relation to justification of this nature, is contained in the latter portion of sec. 341, and runs as follows: "The respondents may, however, except to the sufficiency of the sureties within ten days after notice of the appeal; and, unless they, or other sureties, justify before a judge of the court below, or a county judge, as prescribed by sections 195 and

196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days."

The sections above referred to are primarily applicable to cases of arrest, and will be found considered in a subsequent chapter, under that head. They provided that the sureties shall attend at the time and place mentioned in the notice, and shall be examined upon oath, touching their sufficiency; the examination to be reduced to writing, and subscribed by such sureties, if required by the plaintiff; and they also prescribe the form of allowance by the judge.

The usual forms of a notice of exception to the sufficiency of sureties, and also of the notice of justification by them will be found in the Appendix.

A notice of exception to "the sufficiency of the undertaking," instead of "to the sufficiency of the sureties," has been decided to be insufficient, and improper; and a motion to dismss the appeal, on the ground that sureties so excepted to, had not justified, was denied with costs.-Young v. Colby, 2 C. R. 68.

Where notice of justification is served by mail, it must be for ten, not five days, although, under the provision that such justification must be made within ten days after notice of exception received, it may be impossible so to give it. In such a case, the notice must either be served personally, or an order must be obtained, extending the time.-Dresser v. Brooks, 5 How. 75. The notice being irregular in that case, the justification was held to amount to nothing, though such notice had been given, immediately on the receipt of the notice of exception. It had been given for seven days, all that remained of the ten allowed for that purpose. This decision amounts practically to a prohibition of service of such a notice by mail, except under peculiar and unlikely circumstances, unless a judge's order be previously obtained.

In Rich v Beekman, 2 C. R. 63, it seems to have been considered that, if the sureties justify in double the amount of the judgment appealed from, it will be sufficient for all purposes. Newton v. Harris, however, 8 Barb. S. C. R. 306, 1 C. R. (N. S.) 191, is authority to the contrary effect. Such justification will be sufficient for the purpose of the appeal alone, but it will not avail to stay proceedings, unless it be sufficiently