The opinion of the court was delivered by

The court below dismissed the appeal because the justice had neglected to certify his transcript; of which action the appellant complains because the court refused to grant him a rule upon the justice to amend.

Affidavits taken on the part of the appellant show, that at the opening of the court on the 2d day of February last, the appellant’s counsel moved for a rule upon the justice to certify his transcript, which motion he was requested by the court to renew, when the appellee’s counsel should come into court, and to this he assented, upon condition, as he understood it, that his application should then be granted. The motion, when subsequently renewed, the same day in the presence of the adverse counsel, was denied, and the appeal dismissed. It sufficiently appears that the defect, upon *343which the dismissal rests, could have been cured without occasioning any delay, if the motion had been granted when first made, and that the appellant has been deprived of a trial of his cause without any fault of his own.

If the rule had been ordered when first applied for, and the justice’s return had not been procured before the appeal was peremptorily called, a different case would be presented.

The affidavits are competent to show a case of surprise, and their admissibility is not in conflict with Scott v. Beatty, 2 Zab. 256, or Paterson and Ramapo Railroad Company v. Ackerman, 4 Zab. 535. If the appellant had not understood that his application was to be granted at a later hour, he would have insisted upon having the rule when first asked for, and might have perfected his transcript in dne season.

The rule to show cause must be made absolute.

Mandamus awarded.