
    HOLSENBACK vs. MARTIN.
    When an appeal is dismissed on account of a defect in the affidavit upon which it is entered, it is the privilege of the plaintiff to'move to re-instate the case by amending the affidavit at any time within the term, it not appearing that any injury resulted by reason of granting such permission.
    Case, and appeal in Eorma Pauperis, from Fayette county. Tried before Judge Bull, at September Term, 1858.
    This was an action on the case by Henry Holsenback against William Martin, for criminal conversation with plaintiffs wife.
    Plaintiff confessed judgment reserving the right of appeal, and made affidavit that he was “ unable from his poverty to pay cost or give the security required by law,” the words “he. is advised and believes he has a good cause of appeal,” being omitted. The clerk wrote out the affidavit for plaintiff and entered the appeal.
    Upon the call of the ease for trial on the appeal, counsel for defendant moved to dismiss the same, on the ground of the defect or omission above stated, in plaintiff’s affidavit.
    There being no motion to amend, the court dismissed the appeal, and counsel for plaintiff excepted.
    Stone & Fitch, for plaintiff in error.
    M. M. Tidwell, contra.
    
   By the Court.

Lumpkin, J,,

delivering the opinion.

It is not denied by the plaintiff that the affidavit in this case was defective; nor by the defendant that it was amendable. The only question is, should the court have allowed the case to have been reinstated ? Our opinion is tbat the application for this purpose should have been granted. No notice was given of tbe defendant’s intention to move to dismiss tbe appeal. Tbe counsel for tbe plaintiff could not, therefore, foresee tbe necessity of having bis client present. He announced himself ready for trial when tbe case was called.

It does not appear tbat any body would have been injured by tbe reinstatement of tbe case. Tbe defendant could not be; and if the bail was, when an attempt is made to charge him, be will be allowed to show that he was ready to surrender bis principal in discharge of bis bond, but suffered him to go at lai’ge when tbe appeal was dismissed. Perhaps he would be entitled to this privilege ; on tbe other band, it might be said tbat be is presumed to know tbe law; and tbat it was bis duty to have retained the custody and control of his principal during tbe term, if it be tbe right of tbe plaintiff to move to reinstate at any time within tbe term. We do not decide this point. It may never occur.

Judgment reversed.  