Majority
p. 372Ex parte Kellogg.
Headnote
Though on appeal, pursuant to the stat-3g’ 37) the jushiTreturn til after the first of the common terthe^ppeaf" they ought not return3811 but proceed there-return comes in.ftícostí were paid to the justice, need not "be endor.sed on the appeal bond.
Kellogg sued Griffin before a Justice of the Peace oí t . ' , „ ■ , T .. Herkimer county, and on the 25th August, 1824, the Justice rendered judgment for the plaintiff, of $7,59, from which the defendant appealed, September Aih, pursuant to the act of April nth, 1824, (sess. 47, ch. 238, s. 36, 37) to the next Court of Common Pleas of Herkimer • but it was not endorsed upon the bond given on such appeal, that the costs of the Procee(I¡ngs in the Court below had been paid by the appellant; and the Justice, moreover, omitted to file the return, ^11 after the first day of the then next term of the Common Pleas; for which reasons a motion was made there to quash" the return, but denied ; and now,
R- -D. Noxon, moved for a mandamus commanding them to do this; but,
The statute is merely directory. True, if
the Justice does not return on or before the first day of the next term after the appeal, it is an omission of duty ; but the party is not to suffer by this. If filed at any time afterwards, he may proceed in his appeal. The statute does not require that the payment of costs should be endorsed upon the bond. If, in fact, paid, this is enough ; and the contrary is not pretended.
Motion denied,