delivered the opinion of the Court:
The Court is of opinion that this case was improperly dismissed. Although the appeal bond appears to have been taken by the clerk before the time for holding the Court was fixed by law, yet the Court itself must be considered in existence at that time, otherwise there • would have been no clerk by whom the appeal could be allowed. Until the legislature fixed the time for holding the Court, this authority was, by a prior law, vested in the judge, and whether he exercised the authority, by designating a time, is immaterial.
The existence of the Court, and the right to take an appeal to it, must be regarded as having commenced with the appointment of a clerk of the Court, by the judge thereof.
As respects the jurisdiction of the Court, for the want of which this case was dismissed, we are also inclined to think, that if the Court had jurisdiction at the time its process was issued, it ought to have entertained and tried the cause.
Judgment, therefore, is reversed, and the cause remanded to the Circuit Court for trial.
Judgment reversed.