
    Betsey Smith v. Noah Fisher.
    Where an appeal had been taken by the defendant from a justice’s judgment, ' and the defendant neglected to enter the appeal in the county court, and the plaintiif entered the action for an affirmance of the judgment, it was held no cause for dismissing the action, that the defendant, more than twelve days before the term to which the appeal was taken, tendered a confession of judgment, under the statute, before the justice who rendered the original judgment, and that the justice, being then out of office, refused to accept the same.
    This was an appeal, by the defendant, from the judgment of a justice of the peace, and the appellant neglected to enter the appeal, at the term to which it was taken. The plaintiff thereupon entered the action in court for an affirmance of the judgment, whereupon the defendant moved that the action be dismissed. Upon the hearing it appeared that the defendant, more than twelve days previous to the commencement of the present term, appeared before the justice who granted the appeal, and tendered a confession of judgment in favor of the plaintiff, for the amount of the original judgment, with interest and cost, according to the statute, and that said justice was not then in office, and declined to receive such confession for that reason. Upon these facts, the motion to dismiss was overruled and the judgment affirmed; to which decision the defendant excepted.
    After argument by T. P. Redjield, for defendant, and J. Cooper, for plaintiff,
   the opinion of the court was delivered by

Bennett, J.

It is not necessary to decide what would have been the effect of the tender of the judgment to the justice, if he had remained in office, and had refused to enter it up. It is quite clear, in this ease, that the tender of the confession can have no such effect as is claimed. The justice, when out of office, had no power to act in the matter; and, had he attempted to act, his proceedings would have had no force.

The judgment of the county court, in overruling the motion to dismiss, is affirmed.  