Carman v. Smick

14 N.J.L. 117

• Court: Supreme Court of New Jersey
• Decided: September 15, 1833
• Status: Published

Opinion

Hornblower, C. J.

The only difficulty in this case is, as to the filing of the affidavit. This is not noticed in the justice’s docket; but by the papers sent up, it appears, an affidavit taken before the same' justice, is endorsed om the back of the appeal bond, and sAvofn to on the 2’2d October, the same day the bond Avas filed and the appeal demanded. The presumption is, that the affidavit Avas made and filed; Avith the .justice--at the time of the filing of the bond and demanding the appeal; and Ave may consider it, as filed in due time. To reject the affidavit, we must presume a fraud committed by the justice, in antedating the affidavit, or suffering it to be endorsed on the bond after it was filed, and the appeal demanded. This is inadmissible. The presumption is, that the justice did right. The Court of Common Pleas, therefore, had evidence enough before them, of the filing of the affidavit in due time, to sustain the appeal; and they erred in dismissing it.

Fokd, J. I think so too. It appears, the affidavit was endorsed on the bond; if it was improperly endorsed, the party alleging this, ought to prove it.

Cited in Stagg v. Austin, 3 Harr. 85.