
    *Mills v. Black.
    [Tuesday, May 15th, 1798.]
    Appeals — Lapse of Two Terms — Rights of Appellee.— If the appellant let two terms of this Court elapse, after the appeal has been granted by the District Court, the appellee may bring up the record, and have the suit dismissed, with costs; hut, he cannot have the judgment affirmed.
    The appellant had let two terms of this Court elapse, after the appeal was prayed, without bringing up the record; and, at this term, Copland, on behalf of the appellee, (having proved notice of the motion,) moved to docket the appeal, which the Court ordered to be done. He then asked to be permitted to open the record, and having shewn there was no error, prayed an affirmance.
    Copland, and Wickham, for the appellee.
    Eor good cause shewn, an appeal may be docketed after the second term, R C. 89, 69; and it was the duty either of the Clerk, or of the appellant, to send up the record. If it be the fault of the Clerk why it is not done, then, that will be good cause for receiving the appeal at a future day. If it be the appellant’s own fault, then, indeed, it will not be a sufficient reason for docketing it, at his instance; but, if the appellee •consents, it majr still be docketed. Now, let it be, that upon such consent, the judgment on inspection should appear to be erroneous, the Court here would certainly reverse it; and the converse of the proposition must be equally true. If what we contend for be not allowable, it will tend to ■encourage delay,’ because the appellant will pay nothing for it.
    
      
       Appeals — Lapse of Two Terms — Rights of Appellee.— After two terms of the supreme court have elapsed since the appeal, and before the record is brought up, a judgment cannot be affirmed; but the appeal may be dismissed with costs. Nelson v. Matthews, 1 H. & M. 21, citing, as authority for this decision, the principal case.
      See generally, monographic note on “Appeals.”
    
   PENDEETON, President,

delivered the resolution of the Court as follows:

This was a judgment on á forthcoming bond, in Albemarle County Court, in June, 1795 ; the defendant appealed to the District Court, where the judgment was affirmed on the 20th April, 1796, and an appeal was prayed to this Court. In April, 1797, the record was not returned, and the 242 ^appellee was entitled to a dismission of the appeal, with costs; but no step is taken until the present term, when, upon notice to the appellant, the record is produced by the appellee, who moves that it may be opened, and, if no error, that the judgment may be affirmed, with damages ■and costs.

On a view of the act of Assembly, it appears, that the Eegislature fully contemplated this subject. They thought it proper to allow the appellant to the end of the second term of this Court to bring up the record, before any neglect was to be imputed to him; probably from the remote distances of the places where some of the District Courts are held from this City and our •office, to which the record is to be returned.

At the second term, the appellee had a remedy to get rid of the appeal, by bringing up the record, and praying an affirmance ; and, if he did not assert it then, the subsequent delay is to be imputed to himself. The remedy for the appellee after the •second term, is a dismission of the appeal, with costs, which has considerable beneficial effects; since, besides leaving him at liberty to pursue his judgment, it closes all future appellate jurisdiction over the cause.

Whether the Eegislature meant, that any •damages should be had in this case, or left them to be recovered on the appeal bond, is not for the Court to say on this occasion. It is sufficient to decide, that at present, the law does not authorise the Court to go further than a dismission, with costs,' which is to be the entry in this cause, and others in the same situation.

The case of Stephens v. White, which gave rise to our rule, was an application from the appellant, who wished to prosecute the appeal; and, on notice to the appellee, shewed an excuse, satisfactory to the Court, for the delay in transmitting the record; upon which, it was docketed, and heard, and he subjected himself to all the consequences.  