
    Supreme Court of Errors and Appeals. Nashville.
    August Term. 1822.
    CRADDICK v. PRITCHETT.
    By a rule of this Court, the record must be filed fifteen days before the sitting of the Court, and, on failure, the appellee may file the record and move for a nonpros, or affirmance; in which ease the appellant cannot assign errors. [But by 1829, 103, 2, the Court was forbidden to dismiss a writ of error upon any rule of Court, or for want of assignment of errors. See, now, Code 3160, 3185; Heiskell’s Dig § 163.]
    If, for any cause not imputable to the plaintiff in error, nor under his control, the filing of the record in due time has been prevented, the Court will place him in the same situation as if such impediment had not been interposed.
    
      In case of a non pros, the Court cannot enter judgment against the principal and his sureties for twelve and a half per cent, as in case of affirmance. [See Smith v. Brunson, Peck 205; Kincaid v. Morris, 10 Y. 252. 1865, 2 Sess. 17, allows only six per cent on affirmance.]
   Peck and Haywood, judges.

If an appeal be taken thirty days before the next term of the Supreme Court, the plaintiff in error must bring up the record fifteen days before the term, or the defendant may bring it up at any time before the term, including the first day thereof. In both these cases the plaintiff in error may assign errors as late as the first day of the term, but not after. If the record be not brought up on or before the first day of the next term, then, at any subsequent day of that term, or in the next term, the defendant in error may bring it up; but the plaintiff cannot assign errors. The record is received for the benefit of the defendant only, who may file it and move for a non pros, or file it and move for an affirmance. The Court, in the latter event, will look into the record, and if it can see no error, will affirm the judgment. The plaintiff in error, having failed to assign errors, cannot now be permitted to point out any in argument. In case of .a non pros. the. Court cannot enter judgment for twelve and a half per cent against the principal and his securities. The Act of 1807, ch. 119, relates to appeals, not to appeals in the nature of writs of error to the Supreme Court. The appeal bond in the latter is not as comprehensive as the judgment directed by this Act, and affords no foundation for such judgment. The motion for affirmance may be made at the same time that one for a non pros, may; otherwise, the plaintiff in error -would suffer no inconvenience, for he would have the same time as if he had brought up the transcript in due time; whereas, if a motion for affirmance cannot be made instanter, he will lose all the time between the motion and the regular arrival at the cause on the docket. The former construction encourages, the latter discountenances, delay, and agrees with the spirit of the rule, the object of which is to cut off delay.

This record having been brought up on the first day of the term next succeeding the appeal, you may now move for the nonpros, or affirmance, at your election, in the latter case with twelve and a half per cent if founded on a note, agreement, or liquidated account. If for any cause not imputable to the plaintiff in error, nor under his control, the filing of the record in due time has been prevented, the Court, upon ascertainment of the fact, will place him in the same situation as if such impediment had not been interposed, and in which he would have stood had the record been filed in the time which the rule requires. Arid on motion for affirmance and allegation of such impediment, as before stated, the Court will give such reasonable time for the proof thereof as the circumstances alleged may seem to make proper before the judgment of affirmance shall be entered ; and upon sufficient proof of such impediment, the Court will in its discretion order the same to be removed by certiorari or other proper process, to be placed on the docket as it would have been but for such impediment, and to be entitled to the same privileges as if it had been regularly brought up in due time.  