#### PRICE *v.*ORANGE.

Appeal from justice — high flood — excuse—discretion of court.

Where an appeal is taken from a justice of the peace, the appellant must enter his appeal within the two first days of the next Court of Common Pleas, or he loses the appeal.

High flood, or inability to find the magistrate, do not in law excuse a party from complying with the statute.

But if the law allowed the Court of Common Picas a *discretion*to receive the appeal or not, a refusal could not be examined into and íeversed on error.

The provision for an appeal from the justice is analogous to that for appealing to the Supreme Court under the act of 1824.

Error to the Common Pleas. Orange recovered a judgment before a justice in trover against Price on the 16th November, 1831. Price gave notice of an appeal, and entered hail on the 20th. The next term of the Court of Common Pleas commenced the 21st of February, 1832, and continued till the 1st of April. On the 24th of March, the appellant presented to the court a transcript of the justice’s judgment, with an affidavit of the justice, that during the two first weeks of the term his office was ‘inundated, submersed, and full of water to the depth of seven or eight feet, which prevented his doing business' therein,’ also his own affidavit, that the action is unjust, and that he has got a good defence to it; that for several days before and after the beginning of the term, the justice’s office was under water, so that he could not occupy it, and that the appellant did not know where to find him. From the mid-*569die until about the last of February, 1832, the whole bottom part of the city was under water, a brewery of the applicant much exposed, and he was compelled, day and night, for more than two weeks, commencing a week before the beginning of the court, to use great exertions to preserve it. It could not be safely left before the second week of the court, or he would have filed the transcript at the beginning of the term. On these affidavits, the appellant moved the court to docket the appeal which was refused, and the parties then agreed to stay proceedings until the decision of this court could be had.

To reverse the order refusing the entry of the appeal, Price brings this writ.

*Van Malre,*for plaintiff In error, contended:

1. That by the constitution, parties had a right to a jury trial in all matters above $>20, and in practice, where there were merits, they did not contend before the justice, but appealed; therefore, the statute allowing the entry of appeals ought to be construed liberally.

2. That the Common Pleas in its discretion can allow an appeal to be entered after the second day of the term, if inevitable accident has prevented the entry in time, and this was proper case for such entry.

He cited 6 O. *R.*34, and an appeal from the city court to the Supreme Court in 1827, where *i*on motion and affidavits,’ this court allowed the appeal to be docketed after the second day of the term.

Fox, contra,

insisted that the matter rested in the discretion of the Common Pleas, which this court could not disturb.

Lane, J.

By the justice’s act (29 *O. L.*177) the justice when a case is appealed, is required to make out a transcript of the case, including the recognizance of bail on the appeal and give'it to the appellant on demand. The act requires the appellant to enter the appeal on or before the second day of the next term. If he fail, the appellee is authorized to enter it during the term, and have a judgment like that before the justice, or to have the appeal dismissed and remanded to the justice for execution. If neither party enter *within the time*limited, the law declares the appeal vacated, and requires the justice to proceed on the judgment before him.

The case in the *6th O. R.*34, decided that an appeal could not be entered after The next term following, but intimates that perhaps the party might be permitted to *enter during the term,*if prevented from entering the two first days by accident, because for some pur*570poses the term is but *one*day. This appeal was taken three months before the court, and no excuse whatever is offered for neglecting it till a week before the court. Under such circumstances, we think the application was solely to the *discretion*of the Common Pleas, which this Court cannot control.

The case in this Court in 1827, is not analogous. The act under which that appeal was entered (22 O. *L.*73,) authorized the court after the first day, even on the application of the appellee, to docket the appeal and try the cause.

Order affirmed with costs.