
    [541] THE STATE against THE JUDGES OF BERGEN COMMON PLEAS.
    Appeal papers should be received by the common pleas, if filed during the term next after judgment of the justice. The act requiring them to be sent on or before the first day in the term, is only directory to the justice, not to the court.
    
    
      Mr. Van Arsdale
    
    moved for a peremptory mandamus [*] to the common pleas of Bergen, commanding them to receive an appeal from the judgment of Justice Beach, and to proceed to judgment thereon, on the following facts: George Brueton had obtained a judgment against John Harris, before Samuel Beach, Esquire, for seventy dolls., with costs. Harris appealed from the judgment of the justice to the common pleas, and delivered the appeal bond to the justice four or five weeks before court. The justice, either from the want of an opportunity or forgetfulness, as he'■himself states, did not send up tlie proceedings, &c., to the court on the first day of the term. The appellant, perceiving that the justice had not sent up the proceedings as was required of him by law, went to the house of the justice and procured from him the transcript, appeal bond, &c., and brought them into court during the term, but after the first day, when they were duly filed. The next following term the court dismissed the appeal, and assigned the following reason for so doing : That the transcript of the justice was not filed on the first day of the court next after the judgment was given by the justice below.
    A rule of this court having been obtained and served on the judges of the common pleas, calling on them to show cause why a mandamus should not issue against them, and no cause being shown, the facts were submitted without argument.
    
      
       But an appeal may not be granted after the first day in the next term.
    
   By the Court.

Under the circumstances of this case, the Court of Common Pleas ought to have proceeded to try the cause; the act requiring the justice to send the bond, transcript, &c., to the clerk of the Court of Common Pleas, on or before the first day of the next term, is only directory to the justice, and not conclusive on the court. The mandamus must therefore issue.

Rule absolute for a peremptory mandamus.

Cited in Miller v. Martin, 3 Halst. 201.  