Newbern,

September Term, 1796.

#### GREGORY versus BRAY.

APPEAL. The transcript of the record was carried up thirteen days before the Superior Court. 2, 1777, 2, 84, 314.

The judgment was affirmed, on the second day of the term; unless cause be shewn to the contrary, on the argument day.

On which day the defendant’s affidavit was read, stating that the judgment had been obtained at the last session of Jones county court-that there were but thirty three days between the last day of that session and the first of this term—that defendant was sick a bed on the day on which the transcript was to be carried up-that he came down in a boat, being unable to ride—that he arrived time enough to file the transcript; but discovered on his landing that his pocket book which contained it, had been accidentally left behind—that he returned immediately home and came back on the next day with the transcript, but was informed it could not be received, it being then one day too late—that he came back on the next day, to advise with counsel and was directed to file the transcript, which he did-Whereupon he prayed that the cause might be placed on the trial docket.

Stone J.

If the Court had any discretion to exercise, this would be a proper case to use it: but the act is positive.

M’Coy, J.

-The act of assembly leaves the party in this case without a remedy. It is not in the power of the court to create one for him. It has been often adjudged so.

*40 Harris and Badger for the plaintiff. Martin for the defendant.

The judgment was affirmed absolutely.