delivered the opinion of the court.

The only difference between this case and that of Ginn vs. Clack, just decided, is, that the appeal in this was on the 21st of September, 1838, while in that it was granted on the 25th of the same month. • The citations in both fixes the same day of appearance to the appellee. The circumstance of the appeal-in this case having been granted four days sooner than in the former, is unimportant, as the return day in b.oth were improperly fixed in the judge’s order, and . , . . , r ,r Ji v , ... m the citation of appeal. ■ For the reasons given in the case referred to, of Ginn vs. Clack, the appeal in this case must be dismissed. • ,

It is, therefore, ordered, adjudged and decreed, that the appeal be dismissed, with costs.