was understood to dissent from the judgment of the Court, and to place his dissent on the following grounds : That the statute did not direct the appeal should be peremptorily dismissed, but vested a discretion in the Court to relieve the appellant from that penalty, upon good cause shown. The Legislature evidently intended not only to put within the power of respondent, in cases where the appeal was frivolous and entered merely for delay, a summary and speedy remedy, instead of the old common law remedy of a scire facias guare executionem non, but to make the fact of such omission by the appellant to file the transcript of the record by the first day of term, presumptive evidence of the frivolousness of the appeal. Whatever therefore will remove or repel this presumption, is good cause upon which the Court can and ought to exercise the discretion vested, and relieve the party from the consequence of his laches. As in this case, where the transcript of the record is brought in by the appellant, before the appeal is actually dismissed, and he moves to docket it for trial, the presumption of frivolity, or the intent to create delay merely, is, pro hac vice, repelled, and his motion ought to prevail over the motion to dismiss.
lie further observed that, if the transcript of the record *402should be brought in by the appellant so late as to preclude a disposition of the case at the, term to which the appeal is returnable, or it should otherwise be made to appear that the respondent would be prejudiced, the Court, in the exercise of its sound and just discretion, could and ought to impose the penalty provided by the statute. The whole matter was lodged in the discretion of the Court; and it was always competent, while the rights of the adverse party were duly respected, to relieve the appellant from a mero technical point, in which the merits of the case were not involved, and thus dispense full and equal.justice.