Majority
p. 282The People, on the relation of Solomon Lincoln, vs. The Saratoga Common Pleas.
Headnote
On appeal all the costs of the paid to the jushas ncfriihTto retain a portion asbelongingtoMotion for a mandamus. J. Williams recovered a judgment against Lincoln in a justice’s court, for $11,27 damages, and $1,85 costs. Williams appealed, and at the time of giv*nS notice of the appeal, paid the clerk of the justice, (in the absence of the justice,) $1,97, as the costs and the fees for ma]f¡ng. retuni) claiming to retain T7/„ as fees due plaintiff’s witnesses, which he alleged he had paid. A motion was made to the Saratoga common pleas to quash the appeal, on the ground that all the costs had not been paid, which was denied.
W. L. F. Warren, for relator, cited 6 Cowen, 61, id. 69.
J. Ellsworth, contra, cited 7 Cowen, 507, 8.
By the Court,
The statute is peremptory, that the party appealing shall pay to the justice the costs of the suit, and also the sum offor making and filing the return. (Statutes, vol. 6, 295, c.) To entitle himself to an appeal, a party must comply strictly with the terms of the statute: (6 Cowen, 61,69.)
Motion granted.[1]
* 7 Cowen, 507, is not at variance with this decision. All that is decided in that case is, that the party is not bound to pay more than the costs of the suit, viz. the excess of $5,