declared the opinion oí the court, that this was not a case which would excuse the magistrate, who had neglected to follow the plain directions of the act. That he could not shelter himself under his judicial character, from the consequences re-suiting from such gross neglect. That in performing the duties enjoined by the act, the magistrate acts in a two fold capacity. I. In a ministerial capacity, as it relates to the appraisement and trans. mission of the duplicate; for in regard to this he has only to follow the literal directions of the act. 2. In a judicial capacity, as respects other matters, where he must, from necessity, exercise his discretion.

New trial granted.