
    Boiles v. Barnes.
    The transcript of a justice, on an appeal to the Circuit Court by the plaintiff, was as follows: “Given under my hand and seal;” to which were affixed the signature and seal of the justice. A good statement of demand and appeal-hond were sent up, but the transcript did not state that an appeal had been taken. Held, that on the motion of the plaintiff, the justice might be required to amend his transcript; but if no motion to that effect was made, the appeal, but not the action, might be dismissed on the defendant’s motion.
    
      Saturday, December 3.
    ERROR to the Delaware Circuit Court.
   Dewet, J.

On an appeal from the judgment of a justice of the peace to the Circuit Court, the paper which he filed as a statement of the proceedings in the cause before him, was authenticated in the following manner only: “Given my hand and seal;” to which were affixed the signature and seal of the justice. It was accompanied by a good cause of action, and an appeal-bond, but contained no statement that an appeal had been taken. In the Circuit Court, the defendant, who had been successful before the justice, moved to “ dismiss the suit for want of a sufficient transcript and appeal papers;” upon which the plaintiff immediately moved for “a rule against the justice to certify to the Court a full and correct transcript of the proceedings had in the cause before him.” This latter motion was overruled, the action dismissed, and judgment rendered for the defendant for costs.

C. B. Smith, for the plaintiff.

M. M. Ray, for the defendant.

The objections urged against the judgment of the Circuit Court are, that it is erroneous, because the Court refused the rule on the justice to perfect his transcript, and because the action was dismissed.

The motion, which had for its object the amendment of the transcript, though made subsequently to the other, from its character, was entitled to precedence; and as it is evident from the inspection of the record, that the justice had not sufficiently certified his proceedings, that motion ought to have been successful. The Court erred in overruling it.

. The Court also committed an error in dismissing the action against the will of the plaintiff. The record shows that the justice had before him a good cause of action, over which he had jurisdiction. The defects in the transcript, and in the manner of certifying it, do not affect the plaintiff’s right of action; but they are sufficient, had a motion been made for that purpose, to justify the Court in dismissing the appeal.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the filing of the transcript set aside, with costs. Cause remanded, &c.  