
    FREAS v. JONES.
    On motion for Mandamus to Salem Common Pleas, in matter of Appeal.
    
      A. li. Ealtin
    
    moved for a mandamus to re-instate an appeal, which the Court below had dismissed, because the requisite affidavit (Har. Comp. 6 s 6) was indorsed upon the appeal bond.
    This case was before this Court at May Term, 1835, 3 Gh'een, 20, and a mandamus ordered to reinstate the appeal, which had been dismissed upon another ground.
    Upon the appeal being called for trial at.September Term 1827, it was again dismissed, because the affidavit of merits was-indorsed on the back of the appeal bond.
    The mandamus now applied for is that the appeal may be again re-instated. Since the* decision in 3 Oreen, 20, the rule has been modified, as applicable only to subsequently executed bonds, inasmuch as the practice had been common of so indorsing the affidavits. Upon the same principle, in 2 Oreen, 270, the Court declined rendering judgment on demurrer to the name and style of the action, &c., because such had been the practice. And in a subsequent case on motion for Mandamus to the Gloucester Pleas, which had dismissed an appeal for the same cause, this Court decided that inasmuch as the practice had been unsettled previous to the case of Freas and Jones, 3 Green, 20, no appeal should be dismissed because the affidavit of merits was indorsed on the appeal bond, if it.bore date before that time; but that in all cases of bonds bearing subsequent date, it should be dismissed under the decision in 3 Green, 20. See Robins v. Bonnel 1 Harr. R. 234.
    
      R. P. Thompson, contra.
    
    The only question is, whether the Common Pleas did right in dismissing the appeal for want of a bond, the affidavit vitiating the one filed; and the appellant not substituting another.
   IIornb lower, C. J.

In all fairness, this appeal ought not to have been dismissed. Since the first mandamus, this Court has decided, that in all anterior cases, the indorsing the affidavit on the back of the bond, would not be considered fatal; but the bar were informed that in subsequent cases, the affidavit will be good, but the bond is thereby vitiated, and a new one may be substituted. In the present case, the bond being dated in 1832, prior to the decision in 3 Green 20, strictly speaking, no new bond is necessary, but one may be substituted.

Ford J. and Ryebsoít J. concurred.

Mandamus ordered.  