It was holden, in Amherst Academy v. Johnson,' that where an appeal was regularly made, but notice of the reasons was not seasonably served on the adverse party, the case was within this statute, and that the omission to serve them, through the negligence of the attorney, was not such a neglect of the party, as to deprive him of the benefit of the statute.

The same provisions are made, in the case of appeals from the Court of Common Pleas, and from justices, with regard to complaints for affirmation of judgment, which are through accident, not made in season; but none with regard to such complaints in probate These latter, however, might be considered to come within the equity of the statutes.

cases.

Effect of an appeal. From the moment when an appeal is properly claimed and allowed, the judgment appealed from becomes wholly inoperative, and no execution can issue upon it; nor can it be the foundation of an action of debt, or a bar to another action for the same cause, even if the appellant fail to enter or prosecute his appeal.2 If an appellant do not enter his appeal, the remedy of the appellee is, to complain of his neglect, and pray affirmation of the judgment appealed from.

The effect is the same, if the appeal, when duly claimed, be not allowed. The appeal is valid; and although the court below decide that it is not, and refuse to receive the recognizance of the party, and proceed to judgment and execution, yet the court above

will sustain the appeal, and take the proper measures to give it effect.'

But if an appeal be claimed in a case not authorized by law, it will be dismissed, and the judgment below remain in full force. The appeal, in such a case, is a mere nullity, even if it should be allowed; the case remains where it was, and all proceedings upon it, in the court above, are erroneous; and if in such cases, the appellant fail to produce the papers, and enter the appeal, the court above will not, on complaint of the appellee, affirm the decision appealed from, or allow costs. The recognizance of the appellant in the court below to prosecute, is void, and he cannot suffer by not fulfilling its condition.3

In actions at common law, an appeal necessarily removes the whole case. If one defendant be defaulted, and the other appeals, or if, in a trustee process, the principal be defaulted, and the trustee appeal, and vice versa, the party appealing carries the rest with him.

All such actions are in general tried on the appeal, without any reference to the proceedings in the court below. Thus the plaintiff may move for a new indorser, or the defendant, to have the action dismissed, or to plead double, or in abatement, although the same motions were overruled, in the court below; and a plea to the action, or further

1 Bemis v. Faxon, 2 Mass. Rep. 141. Lamphear v. Lamprey, 4 Mass. Rep. 107.

2 Commonwealth v. Messinger, 4 Mass. Rep. 462, 471.

3

Campbell v. Howard, 5 Mass. Rep. 376. Wetherbee v. Johnson et al. 14 Mass. Rep. 412. 2 New Hamp. Rep. 223.

proceedings of any kind will be no waiver of the objection, although no exceptions were taken in the court below.1

Where, however, one defendant is defaulted, in the court below, and the other, after a trial, appeals, it has not been considered, that the cause could be open for trial on appeal, as to both. And in some cases, an order, though erroneous, cannot be reversed, where it has been executed; thus, an order to furnish a new indorser, or to exhibit books or papers for the inspection of the adverse party, although objected to, cannot be annulled, if they have been complied with. And in partition and account, if the cause have proceeded to final judgment in the court below, on an appeal therefrom, the interlocutory decrees cannot be re-examined.

If the appellant omit to enter his appeal, it does not revive or restore the judgment appealed from, for that is, to all intents and purposes, vacated. Even a judgment in favor of a defendant, from which the plaintiff has appealed, can never be pleaded as a bar to a new action; and to obtain the benefit of the former proceedings, the appellee must present a complaint to the court appealed to, at the term when the appeal ought, in due course, to have been entered, praying that the former judgment be affirmed. Instead, however, of its being the affirmation of a former judgment, it is in fact a new judgment for the same thing.

In cases where the defendant appeals from a justice of the peace to the Court of Common Pleas, and fails to enter his appeal, the plaintiff has judg

1 Rathbone v. Rathbone, 4 Pick. Rep. 89.

ment for his demand, as ascertained by the former judgment, and for interest by way of damages.

In appeals from the Judge of probate, the decree is simply affirmed without damages. In some cases, the decree of affirmation is remitted to the Judge of probate, for further proceedings; in others, it remains and takes effect, as a judgment of the court appealed to.

1 Rathbone v. Rathbone, 4 Pick. Rep. 89.

57

CHAPTER XII.

EXCEPTIONS AND BILLS OF EXCEPTIONS.

By Stat. West, 2. c. 31. (13. Ed. I.) if the judge who tries the cause, mistake as to the law, the counsel of either side may require him to sign and seal a bill of exceptions, stating the point in which he is supposed to err.

2

In the English practice under this statute, the exceptions must be to the direction, or decision of the judge, upon some point of law, either in admitting or refusing evidence, or a challenge, or upon some point of law arising upon a fact not denied, in which either party is overruled by the court.' The bill of exceptions must be tendered at the trial, -and the substance of it reduced to writing, at the time the objection is made, though it need not then be reduced to form. If the exceptions be truly stated in the bill, the judge should then affix his seal to it; and if he refuse, a writ is given to compel him. The bill of exceptions being thus sealed, both parties are concluded by it, as to the truth of the matters it contains. When the bill of exceptions has been completed, and judgment given on the verdict, a writ of error is brought, to present the question to a court of error, as it cannot be determined by the court, in which the record is made up. Upon the return of the writ of error, the

1 Bull. N. P. 316.

2 Ibid.

3 Black. Comm. 372.