By the Court.

It appears from the record in this cause, that the defendant Miles took every step to entitle him to an appeal, with the single exception of filing an affidavit with the Justice, as is required by the Statute. An appeal was allowed by the Justice, and subsequently dismissed by the District Court. Thereupon the plaintiff brought his suit in the La Fayette Circuit, upon the recognizance filed by the defendant, with Bar-retto as surety, and that Court rendered judgment against him.

The appeal was properly dismissed in the first instance, hs the affidavit was absolutely required b-y the Statute; but the question now presented is, whether that dismissal rendered the recognizance void. We think not. One of the conditions of the recognizance, (of which a form is given in the Statute), is, that the appellant shall pay thé Amount of the judgment rendered against him before the Justice, including costs of appeal, with interest, in case his appeal shall be dismissed or discontinued.

It was not the fault of the appellee that no affidavit was filéd; nor can he be made 1o suffer for either the negligence of the appellant, or of the Justice. It was not for 'him to enquire into the reason for the dismissal of the appeal — he was satisfied that it was dismissed. He had been subjected to delay and expense because of the voluntary action of his antagonist; and it would be harsh in¿ deed to drive him back to his executiori upon the Justice^ judgment, and thus deprive him of all indemhity fetf Ihe delay and costs of the app'éal.

*96" We Regard his right to sue upon the Recognizance as perfect, from the time of the judgment of the District Court. It was a voluntary security for the payment of the judgment; and once given, could not be witdrawn by the party, nor invalidated by the judgment of the Supreme Court.

We think, therefore, that the judgment at the Circuit was wrong, and must be reversed.

Judgment reversed.