On the fourth day of the term a rule was entered to show cause why thecertiorari should be dismissed.
Upon examination of the proceedings, it appeared thecertiorari had been returned the term before the last; but nosupersedeas was returned. An appearance had not been entered; nor did it appear that any notice had been served. *Page 56
At this term it was moved that the defendant be permitted to take exceptions, as not being such a case as came under the general rule, that the defendant must except the first term. It should appear that the defendant was apprised of the removal of the cause to this court, which does not, either from appearance or otherwise, — it is not too late to take the exception.
The plaintiff then offered his own affidavit to disprove the statement made in the petition.