Anonymous

If it has been decided, though against my opinion, as it is only a matter of practice, and as uncertainty in such cases is a great evil, I had rather adopt the decision than leave the matter (463) in uncertainty.

The papers were brought up in time. Let the cause be placed upon the trial docket.

See Anonymous, ante, 402 *Page 369

In a case at Edenton last term it was decided that the day of filing and the first day of the term were both to be reckoned inclusive. The reasons of this decision then appeared and do now appear to be to be strong. These were, that heavy penalties were annexed to the not bringing a transcript up in time; affirmation of judgment with double costs by the act of 1777, 12 1/2 per cent interest by the act of 1785, and, therefore, the act ought to be so construed as to avoid the penalty, and not so as to multiply the chances of incurring it. Moreover, the right of appealing is favored in law, and ought not to be abridged by the construction we put upon the act.

I am of opinion the Legislature allowed fifteen days for the purpose of affording the appellee time to come to the office and see whether or not the papers were lodged there, and afterwards, to go to any part of the State and get his testimony and return. In other words, that it was intended to allow him fifteen traveling days after knowing the appeal papers were lodged; and that, therefore, there should be fifteen clear days, excluding the day of filing and the first day of the term. Suppose they had said the papers should have been filed one day before the term; if it could be filed on the first day of the term, the appellee would have no time to prepare; if filed on the day before, and that allowed to be one day, it might be filed on the last moment of that day, and the term commence on the next; so there would be no time allowed.