#### Jacob Vandyke, appellant, v. Edward M. Daley, appellee.

Appeal from Jersey.

Where a writ of certiorari, returnable to the next term, was awarded to the Court below, to send up a copy of an appeal bond, and the appellant showed, by affidavit, that a copy of such bond duly certified, was on the files of the Supreme Court, and moved to set aside the continuance of the cause, the Court overruled the motion, because no order for a continuance had been entered; but sustained a motion to supersede the writ of certiorari.

Clark H. Goodrich, for the appellee,

moved to set aside the continuance in this cause.

Breese, Justice :

The Courtis of opinion, that the appellee has misconceived the course proper to be taken to effect the object he has in view. The record does not show any continuance of the cause, any further than the awarding of a certiorari, returnable to the next term, can be understood so to operate.

The certiorari was awarded upon the affidavit of the appellant’s counsel, the appellee having no counsel in Court, setting forth that a copy of the appeal bond had not been sent up, and that the record was thereby diminished. At this term of the Court, the appellee shows, by affidavit, that such a bond was on file early in the term, and presents to the Court a certified copy thereof, as the statute requires. Had this fact been known, the certiorari would not have been awarded ; and as the object of it is now accomplished, the order granting the same would be superseded upon a motion to that effect.

The present motion is therefore disallowed.

J]lotion disallowed.

The counsel for the appellee now entered a motion to supersede the certiorari, which was granted.

Certiorari superseded.