¶1The motion to dismiss this appeal should be granted, for the reason that the notice does not contain the grounds upon which the appeal is founded. That notice now takes the place of the affidavit, which was formerly required to be served on the party, and it is expressly required by the 353d section of the Code.
¶2The motion should, however, have been made at the special term.
¶3On looking into the return, I find no judgment has been recorded by the clerk. The justice, however, returns that he rendered judgment of nonsuit in the cause. It is the act of the justice and not of the clerk which makes the judgment from which the appellant appeals, and it can hardly be supposed that the law was intended to throw upon an appellant the necessity of waiting for the actual docketing of the judgment before serving notice of appeal. He may desire to stay the issuing of execution by a bond, and for that purpose may serve his notice as soon as the justice renders the judgment. In order to perfect the appeal, however, it was necessary that the appellant should pay the costs of the action included in the judgment. .
¶4Appeal dismissed.