
    John Rau vs. Peter Bennis.
    
      Act of 1864, ch. 322—Right of the Appellee to have the Record transmitted to the Court of Appeals, if the Appellant neglects to have it done within the time prescribed by law—Cumulative remedy.
    
    The Act of 1864, ch. 322, providing that if the record is-prepared in time by the clerk and is not sent to the Court of Appeals within nine months after the appeal has been entered, by reason of the failure of the appellant to pay for such record, the Court from which the appeal was taken may, on motion, strike out the entry of appeal, and proceed to execute as if such appeal had never been entered, in no manner interferes with the right of the appellee to have the record sent up, if the appellant neglects to have it done within the time prescribed by law. The remedy thus provided by the Act of 1864 is cumulative.
    Appeal from the Circuit Court for Baltimore County.
    This suit was instituted by the appellee to recover on a promissory note or due-bill of the appellant. On the 5th of April, 1875, the defendant confessed a judgment in favor of the plaintiff, on terms to be filed, and agreed that the same should he extended on the following Thursday. On that day the judgment was extended for the plaintiff for $127.60. At the hearing of the case before the Court for the purpose of assessing the damages, the plaintiff offered in evidence the note or due-bill sued on and proved the signature of the defendant thereto, and offered other evidence tending to show that said note or due-bill had not been paid. The defendant then offered evidence tending to prove that he did not owe the plaintiff anything. The Court, (Yellott, J.,) on objection by the plaintiff, rejected the evidence of the defendant; and to this ruling the defendant excepted. On the 8th of April, 1875, the day on which the judgment was extended, the defendant appealed. The record was transcribed in June following, and remained in the office of the Clerk of the Circuit Court until January, 1877, when it was transmitted to this Court at the instance of the appellee, and upon his payment of the cost of the transcript, the appellant having neglected to pay the same.
    (Decided 27th June, 1878.)
    A motion was made by the appellee to dismiss the appeal.
    The cause was submitted to Bartol, O. J., Stewart, Brent, Alvey and Robinson, J.
    
      R. R. Boarman, for the appellant.
    
      John Grason and John T. Ensor, for the appellee.
   Robinson, J.,

delivered the opinion of the Court.

The Act of 1864, ch. 322, provides, it is true, that if the record is prepared in time by the clerk, and is not transmitted to this Court within nine months after the appeal is taken, by the failure of the appellant to pay for such record, the Court from which the appeal was taken may strike out the entry of appeal and proceed to execute as if no appeal had been taken.

But this act in no manner interferes with the right of the appellee to have the record sent up, if the appellant neglects to have it done within the time prescribed by law.

The remedy thus provided by the Act of 1864 is cumulative.

The appeal in this case must he dismissed with costs to the appellee.

Appeal dismissed.  