
    David Parke vs. John Hunt.
    If the appellant neglects to file with the justice, at the time of demanding the appeal, the affidavit required by law, and after the appeal is returned, obtains leave to file a new appeal bond, he will not be permitted to supply the omission of the affidavit by adding it to the new bond; and the Common Pleas may dismiss the appeal because the affidavit was not tendered to the justice when the appeal was demanded.
    This was an- application to the court for a mandamus to be directed to the Court of Common Pleas of the county of *ITunterdon, to restore an appeal from a judgment of a justice which had been dismissed. The following state of the case was agreed on by the attorneys of the parties, viz :
    John Hunt obtained a judgment against David Parke, upon the verdict of a jury for the sum of fifty-seven dollars and seventy-two and a half cents debt, and five dollars thirty and a half cents costs. Parke appealed to the next term of the Court of Common Pleas; but did not at the time of demanding the appeal make and file with the justice the affidavit required by law, that the appeal was not for delay. The appeal bond also had some interlineations. Several. terms after the appeal papers had been returned, and before the term that the appeal was called for trial, the appellant applied for and obtained leave to file a new appeal bond (under the law authorizing the same) and tendered the new appeal bond to the justice, together with the affidavit required by law, that the appeal was not for delay. This new bond, together with the affidavit, was returned to the Court of Common Pleas, in February term, 1850. In May term, 1830, the appellee moved to dismiss the appeal, because the appellant did not at the time of demanding the appeal, tender also the affidavit required by law ; and the Court of Common Pleas dismissed the appeal. If the Supreme Court think that the Court of Common Pleas did wrong in dismissing the appeal, then a mandamus is to he awarded" to the Common Pleas to require them to restore the same. If they think that the Common Pleas did right, then the mandamus to be refused.
    W. Halsted, Attorney for Appellants.
    
    H. Saxton, Attorney for Appellee.
    
   The court refused the mandamus.  