ceiving 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. 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 jailer, by reason of the prisoner's discharge. 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. Id., 157. § 3038. Execution upon judgment in action for a chattel.--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 con stable 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. Substitute for L. 1866, part of ch. 131. Connors v. Joyce, 3 Lans. 315. 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. Id., 2 159. § 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. Id., 2 161. § 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. Id., 163. Bortel v. Ostrander, 15 How. 572. § 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 there. under, 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. Id., 285 and 286; see L. 1872, ch. 788 (9 Edm. 481). * 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 other. * See ante, $ 3017, 1867. wise 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. Code of Proc., 64, subd. 13. Ginochio v. Figari, 2 Abb. 185; Leland s. Smith, 11 Abb. N. S. 231; 3 Daly, 309. TITLE VIIL ARTICLE 1. Appeals generally. 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. 3047. Service of notice upon justice; payment of costs and fee. 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. Code of Proc., part of 3 351. Schneider v. Armstrong, 1 Sheldon, 379; Striker v. Mott, 6 Wend. 465; Fitch v. Devlin, 15 Barb. 47; Hubbard v. Chapin, 26 How. 407; Nellis v. Turner, 4 Den. 553; Haulenbeck v. Gil lies, 7 Abb. 421; 2 Hilt. 239; Pearson v. Lovejoy, 53 Barb. 407; 35 How. 193; Brown v. Jones, 1 Hilt. 204; 3 Abb. 80; People ex rel. Robinson, How. 534; 29 Barb. 77; People ex rel. v. Rensselaer Co. Judge, 13 How. 398; Douglass v. Reilly, 6 Week. Dig. 148; People ex rel. Oliver, 66 Barb. 570: Collier v. Van Hoesen, 6 Week. Dig. 49. § 3045. [Amended, 1895.] 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 to the county court of the county where the judgment was rendered. In effect Jan. 1, 1896; L. 1895, ch. 946. Code of Proc., part of ?? 325 and 352; Mattison v. Jones, 9 How. 152; Jones v. Owen, 5 Hun, 339; Glassner v. Wheaton, 2 E. D. Smith, 352; Robbins . Codman, 4 id. 315; Slaman v. Buckley, 29 Barb. 289; Bissell v. Marshall, 6 Johns. 100: see Kohlbrenner v. Elsheimer, 19 Hun, 88. § 3046. [Amended, 1882.] 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 personal service upon him, on the part of the plaintiff, of written notice of the entry of the judgment; but not after the expiration of five years from the entry of the judgment. An appeal is taken by serving upon the justice by whom the judgment was rendered, and upon the respondent, a written notice of appeal, subscribed either by the appellant, or by his attorney in the appellate court. Code of Proc., part of 22 353 and 354. Thomas v. Thomas, 18 Hun. 481; Young v. Whitcombe, 46 Barb. 615; Fuchs v. Pohlman, 2 Daly, 210; Purdy v. Harrison, 6 N. Y. Leg. Obs. 393; 1 C. R. 54; Tullock v. Brad show, 7 N. Y. Leg. Obs. 318; Seymour v. Judd, 2 N. Y. 464; Elias v. Bab cock, 12 Abb. N. S. 288; Pearson v. Lovejoy, 53 Barb. 407; 35 How. 193; Miller v. Perine, 1 Hun, 620; People ex rel. Eldridge, 7 How. 108; Van Hensen v. Kirkpatrick, 5 id. 422; Southard v. Phillips, 7 Hun, 18; Gris wold . Van Deusen, 2 E. D. Smith, 178; Eldridge v. Underhill, 17 Hun, 241; Partridge . Thayer, 2 Sandf. 227; People ex rel. Monroe, 3 Wend. 426; Hall v. Sawyer, 47 Barb. 116; Andrews v. Long, 19 Hun, 303; reversed on other grounds, 9 Week. Dig. 513; Burrow v. Norton, 2 Hun, 550; 48 How. 132. § 3047. Service of notice upon justice; payment of costs and fee.-Service of the notice of appeal upon the justice, must be made by delivering it to him person ally, or to his clerk, appointed pursuant to law; but if the justice is dead, or if neither he nor his clerk can, after reasonable diligence, be found within the county, service of the notice upon the justice may be made by delivering it to the clerk of the appellate court. Unless the justice is dead, the appellant must, at the time of serving the notice, pay to the person to whom it is de livered the costs of the action, included in the judgment, and the sum of two dollars, as the fee of the justice for making the return. Code of Proc., part of 22 354 and 359. Earll v. Chapman, 3 E.D.S. 216; Griswold v. Van Deusen, 2 id. 178. §3048. Service of notice upon respondent. - Service of the notice of appeal upon the respondent may be made, by delivering it, in any part of the State, to the respondent personally, or in one of the following methods: 1. If the respondent is a resident of the county, by leaving it at his residence, with a person of suitable age and discretion. If he is not a resident of the county, and the person who appeared as his attorney upon the trial is a resident thereof, it may be served upon the attorney, either personally, or by leaving it at his resi dence, with a person of suitable age and discretion. 2. If service within the county cannot be made, with due diligence, upon the respondent personally, or in the method prescribed in the foregoing subdivision, the no tice of appeal may be served upon him, by delivering it to the clerk of the appellate court. Code of Proc., part of 2 354. Lake v. Kels, 11 Abb. N. S. 37. § 3049. Amendment, when allowed- Where the appellant, seasonably and in good faith, serves the no tice of appeal, upon either the justice or the respondent, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, the appellate court, upon proof by affidavit of the facts, may, in its discre tion, permit the omission to be supplied, or an amend ment to be made, upon such terms as justice requires. Code of Proc., 8 327. Burrows v. Norton, 2 Hun, 550; 48 How. 132; Scarborough v. Dady, 19 Alb. L. J. 164; Roberts v. Davids, 12 Hun, 394; Thomas v. Thomas, 18 id. 481; Eldridge v. Underhill, 17 id. 241. ment. § 3050. Undertaking to stay execution upon judg If the appellant desires a stay of execution, he must give a written undertaking, executed by one or more cureties, approved by the justice who rendered the judgment, or by a judge of the appellate court, to the effect that, if the appeal is dismissed; or if judg ment is rendered against the appellant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied; the sureties will pay the |