
    ADAMS, APPELLANT v. MATHIS APPELLEE.
    Motion for Mandamus.
    If the Court dismiss an Appeal, upon an affidavit being read, that the transcript had been altered or added to since the Appeal had been filed and entered, without affording to the other party an opportunity of showing by whom, when and by what authority such addition or alteration had been made, a Mandamus will be awarded.
    
      Moffatt in support of motion.
    
      Slack, contra.
   The Court, by

Hornblowek,- C. J.

When this appeal was called on for trial,- the counsel for the appellee, moved to dismiss it, upon the ground, that some addition to the transcript had been made, without the authority of the court, since it had been returned and filed. Whereupon Mr. Slack, of counsel for the appellee, insisted, and in open court made an affidavit, that the transcript, when returned and filed, had no certificate or seal thereto: that the last five lines, the seal and the name of the justice had been added to the transcript since the last term of the court, without the assent or permission of the court, as he, (the deponent,) was informed and believed. On reading this affidavit, the court dismissed the appeal. In doing so the court were clearly wrong. The affidavit of Mr. Slack, that the addition had been made without the assent or permission of the court, was founded only on his information and belief. This was no doubt sufficient to justify the court in arresting the trial, and instituting an inquiry into the fact, whether the record had been altered or mutilated by the hand of violence; but they ought not at once to have dismissed the appeal. The transcript was then, duly certified, under the hand and seal of the justice. No intendment or presumption ought to have been made against it. But upon the suggestion made to the court, that the record had been altered or added to, by the justice after it had been filed, and without an order of the court; a rule ought to have been taken on the justice to certify, whether the transcript was then in the same state in which it was when he returned it to the court, and if not, when and by what authority he made the addition to it. Or if necessary, a rule might have been made for leave to take affidavits: for the addition may have been made by leave of the court, and the rule for leave to do so have been inadvertently omitted to be entered in the minutes. The mandamus ought therefore to issue, and when the appeal is restored to the files of the court, an inquiry can be instituted for the purpose of ascertaining, when and by what authority the addition was made to the record; and if improperly done, the court can then act as law and justice may require.

Mandamus ordered.

Cited in Howell v. Van Ness, 2 Vr. 444.  