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 im*305posed 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.