Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring.
Motion to dismiss appeal.
In the case of Bryan v. Berry, July T., 1857, we decided that it must be shown, by the certificate of the clerk, that the undertaking on appeal was filed in due time. In this case there was nothing to show that the undertaking had been given.
*341Another objection urged is, that there was no proof of service of the notice of appeal. The object of the notice would be entirely defeated without service. The appellant should show due service of the notice. It is an affirmative matter, to be proven by him. The respondents could not be expected to prove a negative, that he never had notice.
Motion to dismiss sustained.