
    Miranda Sample vs. William Motter, Trustee of Henry Eckerd.
    The original papers in this case were taken out of the clerk’s office of the court below, by the counsel for the appellant, and by accident or inadver-, tence were not returned, so as to enable the clerk to make up and transmit the record to this court, within the time prescribed by law. Held :
    That under such circumstances the appellant and not the clerk is answerable for the consequences of the delay, and the appeal must be dismissed.
    Appeal fiom the Equity Side qf the Circuit Court of Carroll county,
    
      The record in this case shows that the last order passed in it, was on the 25th of January 1853, and that from this order as well as all the previous proceedings in the case, an appeal was prayed on the 30th of April 1853. The transcript of the record was not filed in this court until the 6th of May 1854. The appellee moved to dismiss the appeal, because the record was not transmitted to this court in time. Several other grounds of dismissal were also urged but they need not he stated, as the opinion takes no notice of them. In support of his motion several affidavits were filed by the appellee, the purport of which is stated in the opinion of this court. The appellant waived all exceptions to these affidavits, on account of their being taken ex-parte and without, notice, but sot as to their admissibility to affect the record.
    The motion was argued before Ls Grand, C. J., Eccleston, Mason and Tuck, J.
    
      William P. Maulsby in support of the motion
    insisted, that the delay was not occasioned by the neglect or omission of the clerk, as was apparent from the affidavits, and that therefore the case was not covered by the act of 1842, ch. 288, and the appeal must be dismissed. -
    
      James Raymond against the motion,
    insisted that the delay was not the fault of the party. The record shows that the appeal was taken in due time, and there is nothing in it to indicate default on the part of the party appellant. Hannon’s Exc’rs, vs. The State, use of Robey, 9 Gill, 443. 3 Md. Rep., 478, Glenn vs. Chesapeake Bank, et al. 11 G. & J., 456, Farmers Bank vs. Mackall.
    
   Mason, J.,

delivered the opinion of this court*

A motion is made in this case to dismiss the appeal, and among other reasons assigned in support of the motion, it is contended by the appellee, that “the transcript of the record was not transmitted to this court within the time required by law.”

It appears from the affidavits filed in support of the motion to dismiss, that the original papers in the cause having been taken out of the clerk’s office by the counsel for the appellant, were by accident or inadvertence not returned, so as to enable the clerk to make up and transmit the record to this court, within the time prescribed by law. Under such circumstances we think the appellant and not the clerk, should be held answerable for the consequences of the delay. We think therefore the appeal should be dismissed. Glenn vs. Chesapeake Bank and Alexander, 3 Md. Rep., 475.

Appeal dismissed.  