The opinion of the court was delivered by

Application is made for a mandamus to the Burlington Pleas, commanding them to reinstate an appeal by them dismissed.

The appeal was dismissed in pursuance of a printed rule of that court, by which it is provided “ that no appeal shall be deemed or taken to be in court until, on application of the appellant, or his attorney, a rule of the court is made for the entry of such appeal j which rule, when made, shall be entered in the minutes of the court, and may be applied for and made at any time during the term next succeeding the judgment appealed from; hut if not so applied for, and made and entered, the appeal shall be deemed and taken as not prosecuted by the appellant, without any further or other rule for that purpose by the court to be made.”

A motion in the court below to reinstate the appeal was denied, and the application here is for a mandamus to require it.

In Wells v. Stackhouse, 2 Harr. 355, a like motion was made, upon a like proceeding of the court of Common Pleas of Burlington, under the same rule. This court there held that the proceeding was under and in pursuance of a rule of practice not unlawful, and that it would not by mandamus compel the court below to do an act lying entirely within its discretion. In our opinion that case rales this, and the mandamus must be refused.