
    McDonald and McAlister vs. Smith.
    An appeal was prayed and granted from the county to the circuit court. The appellant failed to file a transcript of the record fifteen days before the next ensuing term of the latter ceurt: Held, that the judgment of the county court must be affirmed.
    This was a petition filed in the county court of Giles, praying the court to appropriate an acre of land for the use of a grist mill, &c.' The court rendered a decree in favor of the plaintiff, from which the defendants prayed an appeal to the next circuit court, to be holden in the county of Giles, which was allowed by the court. A transcript of the record was not delivered to the clerk of the circuit court, until within fifteen days before the commencement of the term, to which the appeal was prayed, and more than thirty days had elapsed, between the ending of the term of the county court in which the decree was rendered, and the commencement of the next circuit court. The appellees produced the transcript of the record of the county court, and moved the circuit court to affirm the judgment of the county court.
    The circuit court sustained the motion, and affirmed the judgment, from which an appeal in error is prayed to this court.
    
      J. II. Rivers, for plaintiff in error.
    
      J. W. Combs, for defendants in error.
   Peck, J.

delivered the opinion of the court.

When an appeal is prayed and granted, from the county, to the circuit court, the act of 1794, ch. 1, sec. 66, makes it the duty of the appellant to carry up the cause at least fifteen days before the next ensuing term of the circuit court. The clerk, by the act, is bound to have the record ready; in default of which, a heavy penalty is imposed upon him. The provision which bakes it obliga-toiy on the appellant, is in these words: ‘‘And if the said transcript of the record is not filed within the time aforesaid, (fifteen days) or if the appellant shall fail to appear and prosecute his appeal, then the judgment, sentence or decree shall be affirmed.” This is a rule of positive law, and cannot be departed from. Cases of great hardship have occurred, in the practice under it, but in no form, (except where fraud has been practised to prevent carrying up the record, White vs. Shafer,) has the court felt authorised to help the delinquent. In all such cases, it must be taken that the appellant has abandoned the prosecution of his appeal. The circuit court could give no other judgment.

Judgment affirmed.  