6. Either party may move for a new trial in said court on a case or exception, or otherwise, and such motion may be made before or after judgment has been entered, and the provisions of this act in relation to the proceedings on recovering the verdict of a jury, exceptions to the decisions of the court. making and settling case and exceptions, motions for new trials, and making up the judgment roll in the supreme court, are hereby made applicable to all appeals brought up for trial, as in this chapter provided.

367. To every judgment upon appeal there shall be annexed the return upon which it was heard, or a certified copy thereof, the notice of appeal, with any offer, verdict, decision of the court, exceptions, case and all orders and papers in any way involving the merits and necessarily affecting the judgment, which shall be filed with the clerk of the court, and shall constitute the judgment roll.

368. If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs, or such part as to the court shall seem just, may be awarded to either party.

339. If the judgment below, or any part thereof, be paid or collected, and the judgment be afterward reversed, the appellate court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days, and if the order shall be made before

judgment is entered, the amount may be included in the judgment.

2370. If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance.

? 371. Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations: In the notice of appeal, the appellant shall state in what particular or particulars he claims the judgment should have been more favorable to him. If he claims that the amount of judgment is less favorable to him than it should have been, he shall state what should have been its amount. Within fifteen days after the service of the notice of appeal, the respondent may serve upon the appellant and justice an offer, in writing, to allow the judgment to be corrected in any of the particulars mentioned in the notice of appeal. The appellant may thereupon, and within five days thereafter, file with the justice a written acceptance of such offer, who shall thereupon make a minute thereof in his docket, and correct such judgment accordingly, and the same so corrected shall stand as his judgment and be enforced accordingly; and any execution which has been issued upon the judgment appealed from shall be amended by the justice to correspond with the amended judgment; and no undertaking given to stay execution shall be enforced for more than the amount of the corrected judgment. If such offer be not made, and the judgment in the appellate court be more favorable to the appellant

than the judgment in the court below, or if such offer be made and not accepted, and the judgment in the appellate court be more favorable to the appellant than the offer of the respondent, the appellant shall recover costs; provided, however, that the appellant shall not recover costs unless the Judgment appealed from shall be reversed on such appeal, or be made more favorable to him, to the amount of at least ten dollars. If the offer be made and accepted by the appellant, the appellant shall recover all his disbursements on appeal, and all his costs in the court below. But the appellant shall not recover costs except as provided in this chapter. The respondent shall be entitled to recover costs where the appellant is not.

Whenever costs are awarded to the appellant, he shall be allowed to tax as part thereof the costs and fees paid to the justice on making the appeal, as disbursements, in addition to the costs in the appellate court; and when the judgment in the suit before the justice was against such appellant, he shall further be allowed to tax the costs incurred by him, which he would have been entitled to recover in case the judgment below had been rendered in his favor. If, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the court shall set off such costs against such debt or damages, and render judgment for the balance. The following fees and costs, and no other, except fees of officers, disbursements and witnesses' fees, shall be allowed on ap peal, to the party entitled to costs as herein pro vided, when the new trial is in the county court.

For proceedings before notice of trial, ten dollars; for all subsequent proceedings before trial, seven dollars; for trial of an issue of law, ten dollars; for every trial of an issue of fact, fifteen dollars; for argument of a motion for a new trial on a case or a bill of exceptions, ten dollars; in all cases, to either party, for every term not exceeding five, at which the appeal is necessarily on the calendar and is not tried or is not postponed by the court, seven dollars. In other appeals, the costs shall be as follows: To the appellant, on reversal, fifteen dollars; to the respondent, on the affirmance, twelve dollars. If the judgment appealed from be reversed in part and affirmed as to the residue, the amount of costs allowed to either party shall be such sum as the appellate court may award, not exceeding ten dollars. If the appeal be dismissed for want of prosecution, as provided by section 364, no costs shall be allowed to either party. In every appeal the justice of the peace before whom the judgment appealed from was rendered shall receive two dollars for his return. If the judgment be reversed for an error of fact in the proceedings, not affecting the merits, costs shall be in the discretion of the court. If in the notice of appeal, the appellant shall not state in what particular or particulars he claims the judgment should have been more favorable to him, he shall not be entitled to costs unless the judgment appealed from shall be wholly reversed

TITLE XII.

Of the Miscellaneous Proceedings in Civil Actions, and General Provisions.

CHAPTER I. Submitting a controversy, without ac

tion.

II. Proceedings against joint debtors, heirs, legatees, devisees, and tenants holding under a judgment debtor.

III. Confession of judgment without action. IV. Offers of the defendant to compromise the whole or a part of the action.

V. Admission or inspection of writings. VI. Examination of parties.

VII. Examination of witnesses.

VIII. Motions and orders.

IX. Entitling affidavits.

X. Computation of time.

XI. Notices, and filing and service of pa

pers.

XII. Duties of sheriffs and coroners.

XIII. Accountability of guardians.

XIV. Powers of referees.

XV. Miscellaneous provisions.

CHAPTER I.

Submitting a Controversy without Action.

372. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit, that the controversy is