¶1Take your rule.
¶2No cause having been shewn against the rule, Halsey, at this term, applied to the court for a peremptory mandamus.
¶3Vroorn now shewed cause against this motion. He admitted the facts to be as stated by the adverse counsel; but said, that the Court of Common Pleas did right in dismissing the appeal, for it was necessary that the party should file an affidavit with the justice, at the time of filing the bond, otherwise the latter was of no validity. It was the affidavit which completed the matter. Under the old law, *282it was always held, that it must appear upon the transcript, that an appeal was demanded; that was done by tendering the bond; this was the substantial matter which must appear upon the-transcript, and now it is as necessary that the affidavit should appear to,have been filed, as that the bond was tendered. It is very easy for the party to get an affidavit on the file, even though it was not properly taken. The construction of the Common Pleas was a sound one, that whatever was necessary to give the court jurisdiction must appear upon the transcript.
¶4Does the act which requires the -affidavit require it to be marked filed ?
¶5Vroom. PTo sir.
¶6The objection is, then, that it is neither marked filed, nor appears on the transcript, to have been filed.
¶7Halsey. The question is, what is evidence of the filing ? Putting it in the office, is the act of filing; but it is not the practice of the j ustice to mark the papers filed. This court would not introduce a practice which would create still more difficulty in making appeals than at present exists. The party has a right to appeal any time before the term, and if he does any act to make the appeal, and should omit the doing some act required to complete the appeal, he might do it afterwards. There was sufficient evidence to convince the Court of Common Pleas that an affidavit had been made and filed, and, therefore, a peremptory mandamus ought to issue.
¶8Curia advisare valt. At a subsequent' day in the term, the court said they were of opinion, that it ought to have appeared on the transcript of the justice, that the affidavit was filed with him at the time of filing the appeal bond. Therefore take nothing by your motion Mr. Halsey.