
    Bennett Downes, d. b. a., vs. Garrett S. Smith use of Nathan B. Danforth, p. b. r.
    New Castle County,
    November Term, 1895.
    Justice Of the Peace. Appeal.—After an appeal is taken from a Justice of the Peace and the transcript is not duly filed in the Superior Court on or before the first day of the term, a second appeal will be dismissed, though it is taken and security given within fifteen days from the entry of the judgment.
    This was an appeal from the record of John A. Kelly, one of the Justices of the Peace for New Castle County.
    
      Byrne, for the respondent,
    asked for a rule to show cause why the appeal should not be stricken from the record, basing his motion on an affidavit containing the following facts:
    That on the nineteenth day of November, A. D. 1895, judgment was given by John A. Kelly, one of the Justices of the Peace in and for New Castle County, in favor of Garrett S. Smith, use of Nathan B. Danforth—the defendant in the above appeal.
   That Bennett Downs on the same day prayed for an appeal, offering security deemed by the said Justice to be sufficient in the said appeal, and the said Justice made proper entries thereof, which were duly signed by the sureties. That the first day of the term of the Superior Court of the State of Delaware in and for New Castle County next after the appeal, was the twenty-fifth day of November A. D. 1895. That the said Bennett Downs did not enter or have entered the said appeal in the said Superior Court on or before the said twenty-fifth day of November, and did not on or before said date deliver a duly certified transcript ot the dockt entries of said Justice to the Prothonotary.. That on the third day of December, A. D. 1895, said Bennett Downs appeard before the Justice aforesaid and prayed other appeal, which appeal was after-wards entered in the Superior Court in and for New Castle County, and is the case above mentioned.

The answer admitted the facts alleged, and set forth that on the day of taking the first appeal, a transcript of the record of said judgment were demanded of the said Justice, John A. Kelly, and that he failed and neglected to deliver said transcripts on or before the first day of the said Superior Court next thereafter; and that on the third day of December, being within the fifteen days allowed him by statute for taking an appeal, he appeared and prayed that he be permitted to give security anew and take an appeal from said judgment which was granted by the Justice, and the appeal which is now asked to be dismissed was granted and duly docketed in the Superior Court.

Rule made absolute.  