
    DYER, APPELLANT, v. LUDLUM, APPELLEE.
    On motion for mandamus to the Common Pleas of Bergen.
    An appeal properly demanded of a Justice of the Peace, on the first day of the term of Common Pleas, next after the rendering the judgment, is in time. So also, if the bond be left at the house of the Justice, on that day, in his absence, so that he do not receive it until his, return on the next day, it is his duty to send the appeal papers to the court, on the latter day.
    If in such case the Common Pleas dismiss the appeal, or refuse to order the Justice to return the papers, a mandamus will be issued by this court.
    Mr. Halsted in behalf of M. O. Dayton, attorney for the appellant, moved for a writ of mandamus, to the Common Pleas of Bergen, commanding them to restore the appeal in this ease, and proceed thereon according to law.
    The facts of the case, as they appear to the court, from the record of the Justice, and from the affidavit of M. O. Dayton, read on the hearing, appear to be these. Judgment was rendered on the 16th of May 1837, before the Justice. On the 13th of June following, which was the first day of the June term of the Court of Common Pleas, the defendant below, presented an appeal bond with a proper affidavit, to the son of the Justice, at his house, the Justice himself being from home, and demanded an appeal; that on the next day, the Justice having returned home, and being satisfied that the appeal had been demanded, and a sufficient bond and affidavit presented and left at his office in due time, granted the appeal, and made return of the same on that day to the court. That the bond, affidavit and transcript, were on the same day (the 14th of June, 1837,) handed to the clerk of the court, to be by him filed and entered. That the Justice after-wards, in that term, for some reason known to himself, withdrew ' the papers from the clerk, promising the appellant to return them in due season. That at the subsequent term, the Justice not having returned the papers to the clerk, the court refused to make any order on the Justice to return the papers, and dismissed the appeal.
   By the Court.

— The appeal was demanded in due time, and if no return had ever been made, the court below ought to have made a rule on the Justice to send up the papers. But in this case, the appeal had been granted, and the transcript with the bond and affidavit filed with the clerk. If the Justice afterwards withdrew them, as it” is sworn he did, the court instead of dismissing the appeal, ought to have made a rule on the Justice to restore the papers to the files of the court, and then to have proceeded in the cause according to law. As it appears by affidavit, that due notice of this motion has been given to the adverse party, let a rule be entered for mandamus as prayed for.

Mandamus ordered.

Cited in Rodenburg v. Rosebury, 4 Zab. 492.  