
    [Philadelphia,
    January, 1832.]
    Case of KREIDER'S ESTATE.
    APPEAL.
    Though raider the act of the 14th of April, 1828, supplementary to the act to compel assignees to settle their accounts, &c. it is necessary that an appeal to the Supreme Court should be filed at the next term after it is taken, yet if it be done during the actual session of the court, whether sitting by adjournment, or otherwise, it is in time.
    
      Conrad Kreider together with his wife, having on the 7 th ofNovember, 1823, executed a voluntary assignment of his real and personal estate to Owen Rice and Jefferson K. Herbman, for the benefit of his creditors, under certain conditions expressed in the deed, the assignees on the 29th of November, 1828, agreeably to the provisions of the act of the 24th 'of March, 1818, and its supplement, presented to the court of Common Pleas of Northampton county the accounts of their trust, and the court directed thirty days notice to be given by advertisements, that the accounts would be confirmed on the first day of the next term, unless cause should be shown to the contrary. On the 19th of January, 1829, the court appointed auditors “ to examine and re-settle the account, and make distribution of the balance, to and among the creditors,” &c. The auditors, on the 27th of April, 1829, filed their report, which was confirmed nisi. On the 30th of the same month, exceptions.to the report were filed, and a rule to show cause why it should not be set aside, granted, and on the 28th of the following August the exceptions were dismissed, and the report confirmed. On the 17th of November, 1829, an appeal to the Supreme Court was taken by certain creditors, and bail entered; and on the 15th of January, 1830, the appeal was filed in this court. Whether the appeal was filed within the period prescribed by-law, was the question to be determined by this court.
    
      Brooke and J. M. Porter for the appellees,
    moved to quash the appeal, on the ground that it had not been filed within the period prescribed by law. They contended that according to the true construction of the sixth section of the act of the 14th of April, 1828, and decisions upon similar statutes, it should have been filed in this court by the first day of the term next ensuing its entry in the Common Pleas, or at all events before the last return day of the term.
    
      December term, 1829, commenced on the 8th of December, and by law, the regular term continued only three weeks. The 27th of that month was the last return day of the term, and all writs issued after that day, were returnable to March term, 1830. The record was hot taken from the office of the prothonotary of the court of Common Pleas, until the 12th, and was filed in the office of the prothonotary of this court on the 15th of January, 1830. The appeal was taken and perfected below on the 17th of November, 1829, by making the affidavit and entering bail. The motion to quash was made on the first day of March term. It is true the appellants need not have entered their appeal until the 15th of January, 1830, but having taken it on the 17th of November, they were bound to file it in the Supreme Court, before, or at least during the next term. In the analagous case of an appeal from the judgment of a justice of the peace, the appeal must be entered on the docket before the first day of the next term of the court of Common Pleas. Beale v. Dougherty, 3 Binn. 432. It is important that the court should lay down a general rule for the government of future appeals, uninfluenced by the supposed hardship of this case. The appellants have certainly been guilty of neglect, by which the opposite party has been delayed.
    
      Scott, contra,
    said, that this was an important motion, and the first of the kind in Pennsylvania. The act of assembly upon which the proceeding is founded, gives the court of Common Pleas peculiar and important powers, as great as those of a court of chancery in similar cases. It is therefore important in establishing a rule on the subject, that it should be done with due reflection. .If the rule contended for on the opposite side be established, it will operate with great hardship on the appellants in this case. Both the counsel who were originally concerned, had been called to the exercise of important public duties, which was the reason why the appeal had not been entered earlier. It however was entered during the sitting of the court, though after the expiration of the regular term, and this was enough. If neglect is to be imputed to either party, it is to the appellees, who did'not make their motion to quash until March term, although they might have made it at any time between the 15th of January, when the appeal was filed and the 24th of that month, when the court adjourned. An appeal from the judgment of a justice of the peace is not an analogous case, for the act of assembly giving that appeal, expressly requires it to be filed in the office of the prothonotary, on or before the first day of the next term of the court of Common Pleas, and it was upon this legislative enactment that the case of Beale v. Dougherty was decided. The act giving the present appeal, contains no such provision.
   The opinion of the court was delivered by

Rogers, J.

The act of the 14th of April, 1828, allows an appeal, within one year after decree, sentence or judgment. The question is, whether this be an appeal within the period prescribed by law; and we are all of the opinion that it is. The decree was made the 28th of August, 1829. On the 17th of November following, the appeal was taken, and bail entered, and on the 15th of January, 1830, it was duly filed. I agree, that it is incumbent on the appellant, to file his appeal at the next term, but if done during the actual session of the court, whether sitting by adjournment or otherwise, it is all the law requires. Vanlear v. Vanlear, 1 Binn. 76, and Share v. Lytle, 16 Serg. & Rawle, 9, were decided, on the words of the act of the 20th of March, 1799, which expressly directs the filing of the appeal, on or before the next term. In this, the analogy fails. If the peculiar circumstances of the case require an earlier entry of the appeal, the object of the appellee may be obtained on motion.

Rule discharged.  