
    Proctor v. Maher.
    Where the plaintiff in error failed to file the transcript within the time prescribed by law, and the defendant in error filed ic for the purpose of moving for judgment without reference to the merits, but suffered the caso to be continued without m'aking tho motion, the act under which the defendant in error had filed the transcript, having been repealed and another enacted in its stead before tho noxt term : Held, That the judgment could not be affirmed under the act which had been repealed: Held, farther, That as the case presented every fact necessary to an affirmance under the new act, the judgment should be affirmed under that act.
    Error from Bowie. Transcript filed by defendant in error with a motion to affirm without reference to the merits.
    
      S. II. Morgan, for plaintiff in error.
    
      J. W.'Ellett, for defendant in error.
   Wheeler, J.

The writ of error was returnable to the December Term, 1840, of this court. The plaintiff in error having failed to file the record within thirty days from the commencement of the term, the appellee filed it for the purpose of obtaining an affirmance of judgment without reference to the merits, but omitted to move for judgment at that term, and the cause was continued. And now at tins term the appellee moves that the judgment be affirmed without reference to the merits, the appellant not having offered any excuse for his omission to prosecute his writ of error within the period allowed him by law.

At the last term the appellee was entitled to have his judgment affirmed absolutely. The provision of the law under which the ease was placed on the docket for that purpose has since been repealed, and the judgment cannot be affirmed under that provision. But the same act which contains the repealing clause also authorizes an affirmance without reference to the merits, and the present case presents every fact necessary to authorize such affirmance. We scejno reason, therefore, why the judgment may not be affirmed without reference to the merits, under the provisions of the present law; and it is accordingly so affirmed.

Judgment affirmed.  