Majority
p. 69Ex parte Stephens. UTICA, Aug. 1826.
Headnote
Judgment was recovered against Stephens by Phillips, before a justice of Onondaga, and execution issued, upon which Stephens being imprisoned, paid the judgment to the plaintiff, and took his receipt. Being discharged, he attempted to appeal to the Onondaga C. P., and paid 75 cents to the justice; but did not pay him the costs of the suit, supposing that the payment to the plaintiff was the same thing. The justice making no return, the C. P. granted a rule that he return, or shew cause, &c. which they afterwards discharged, on the ground that the costs were not paid to the justice.To entit'C o. party o ap. peal from decision <>f ⅛ justice under the 50 doHa*" act, he pay, no ontr the 75 <:cuji for and ñiing the return ; but the costs to ike justice. Paying thé 75 cents to the justice, and the costs to the opposite party, will not satisfy the words of the act; which are to be taken strictly against the party seeking to' appeal.
A motion was now made for a mandamus commanding the C. P. to proceed, and compel a return.
G. Lawrence for the motion.
It was not opposed ; but
The act is very strictly construed. To entitle the party to appeal, he must follow up the requisites prescribed to him with great exactness. Such appears to have been the intention of the legislature; and with this accords the current of decision. The statute, (sess. 47, ch. 238, s. 36, p. 295,) is, that the party appealing shall pay to the justice the costs of the suit; and also the sum of 75 cents for making and filing the return. The words have not been complied with. The 75 cents, but not the costs, were paid to the justice. The motion must be denied.
Motion denied.