
    Whitehill against The Bank.
    The want of an affidavit by the appellant, in the case of a decree distributing the proceeds of a sheriff’s sale of land, is fatal to the appeal An affidavit by his attorney and agent will not do.
    APPEAL from the court of common pleas of Dauphin county.
    That court, on the 8th of September 1829, made a decree distributing the money raised by the sale of the real estate of Richard M. Crain, from which Whitehill appealed, and his attorney made the affidavit that the appeal was not taken for delay. This appeal was entered in this court to May term 1830, and now, the 9th of May 1832, Elder moved to quash the appeal.
    
      Elder, for the motion.
    The affidavit must be by the party. Such an affidavit is filed, but made long out of time; it is dated the 13th of January 1832, and filed the 30th of the same month, nearly two years after the appeal was in this court. An affidavit by counsel is insufficient. Purd. Dig. 268; 1 Penns. Rep. 421.
    An appeal does not lie when facts are in dispute. These are to be tried by jury.
    
      M’ Cormick and Douglass, attorney-general, contra.
    A new recognizance is allowed after an appeal is taken, and why not a new affidavit ? 13 Serg. & Rawle 104. The motion ought to have been made at the first court; it is now too late, nor is an affidavit necessary. Purd. Dig. 619 (Edit. 1824).
   Per Curiam.

The want of an affidavit by the appellant is fatal. Appeal quashed.  