Blair v. Stewart , 18 N.J.L. 123 ( 1840 )

Opinion of the Court, by

Hobnblowee, C. J.

The Court of Common Pleas, as appears from the state of the case agreed upon between the parties, dismissed the appeal on the ground that the affidavit sent up with the papers, was insufficient, inasmuch as it did not appear to have been made in this cause. The affirmation, for such it is in fact, is not entitled in any cause, and is written on a separate piece of paper, and sets forth “that the said appeal accompanying this affidavit, is not intended for the purpose of. delay Ac.” The objection is, that it does not appear upon the face of it, to be an affidavit in the appeal between these parties. It is true, that the paper, read by itself, would not inform us, what appeal was referred to, or in what cause it had been made; but it comes before this court and we must presume, as the contrary is not asserted or shown, that it was sent up by the Justice to the court of Common Pleas, attached by a ligament to the 'appeal bond, the transcript and the other papers in the cause : and when read, in-such connection with those documents, it leaves us in no uncertainty, as to what appeal is meant, nor the cause in which such appeal is prosecuted. It appears by the certificate of the justice, that an appeal was demanded, a bond tendered and an affidavit filed with him agreeably to law; and if it is seriously asserted, that the affidavit now before us. is not the one mentioned by the justice, the facts may be shown by proper evidence. In the absence of such evidence we must not presume that the justice or any body else has made the annexation for the purpose of imposing on the court.

Let the mandamus issue.