
    
      Samuel Kelsy v. Oliver G. Brown.
    1. To shew hot ice of an appeal from the judgment of a J. P. to the circuit Eourtj it was proved, that the-appellee, about nine days before the return term of the circuit court, said that “R. had served-on him a written notice of Brown’s appeal.’’ — It was also proved that R. had, about three weeks before the said term of the circuit court, absconded on account of debt (as was supposed) and had not since been heard of.
    2. Held sufficient evidence that legal notice in writing was giren ten days before court.
    To shew notice of Md31mentfofriatlje ih toThe circuit bburt, it fee’ thabout ^ine' days before tlu return term of the liadserv1 •fedohhimaa lén notice of brown’s; appeal.”
    three weeks be-of^the6 circuit™ bourt)6 absconded bn accountof debt (as was supposed) and had not since been heard of.
    APPEAL from the circuit court of Cooper cOuiity;
   Opinion of the court delivered by

a peace, judgment being there rendered in his favor, Brown ap-. pealed on a day subsequent to the trial, from- the judgment of the justice to the circuit court. That court, on Kelsy’s motion, dismissed the cause for want of notice of the appeal from the justice; and to reverse the judgment of the circuit court Brown now prosecutes his appeal in this court.

It appears from the evidence in the bill of exceptions a^out n*ne days before the beginning of the term'of the circuit court, to which term the appeal of Brown returned; a witness heard Kelsy say that aman by ^ie name °f Reed had served on him á written notice of Brown’s appeal; this witness also testified that about three weeks before the time Kelsy made the admission af°resaid, Reed had absented himself, arid as he was 'embarrassed in his circumstances, it was believed he had absconded, and that nothing had been since hear¿ 0f him. The statute requires that when the ap-is not taken on the day of trial the appellee shall be notified in writing, at least terl days before the sitting ^le next court, authorised to try the same. See 23 of the “act to establish justices’ courts, passed 21st 1825f ’

]\j0 COpy 0f the notice served on Kelsy seems to , 1 , , , , , , r, have been kept by the deiendant Brown.

Prudence requires that a party wishing to notify another of an appeal, as in this case, should cause two notices to be written, one for the person who is to servé the notice on the other party to the suit, and the other for the other party himself. The person serving the notice might then either appear in court on the day of trial and prove the service of notice shewing the written notice which hfc had kept, or might under the statute have made affidavit, on the back of the notice he kept, of the service thereof. But the appellant’s agent, who is admitted by the appel-lee to have notified him in writing about nine days before the commencement of the term, had absented himself three weeks before and had not been heard of, and was believed to have left the

suffic;entev-idence that legal writing frfore court,

It is the opinion of a majority of the court that the pellant had given proof enough to entitle him to the privilege of introducing secondary evidence of the service the notice. The appellant might theii have given' inferí- or evidence to prove the contents of written notice by any one who could prove it. But the appellee has admitted the service of written notice, and it is fair to presume that the notice was sufficient as he did not object to it for insufficiency.

The judgment of the circuit court is therefore reversed, and the cause is remanded and that court is required to allow the parties to proceed to trial.  