dissenting. I concur in the dissenting opinion of my brother JacksoN. Without an affidavit the justice acquired no jurisdiction of the appeal. Until the affidavit was filed, the recognizance was mere waste paper in his hands. He must be possessed of both to give him authority to allow the appeal, and his assuming to allow the appeal gave no legal effect or vitality to the recognizance. The whole proceeding towards perfecting the appeal was coram non judice ; as much so as if the justice had allowed an appeal without a judgment.
The circuit court, by assuming to “ dismiss the appeal,” neither gained any jurisdiction over it, nor gave legal effect to the proceedings of the justice or to the recognizance taken as one step towards perfecting an appeal.
There was no appeal before the circuit court to be dismissed. There was a case on its docket not properly there, which should have been struck off. The judgment before the justice remained perfect, and the parties should have been left to then-remedies in that court.