¶1By the justice’s act (29 O. L. 177) the justice when a case is appealed, is required to make out a transcript of the case, including the recognizance of bail on the appeal, and give it to the *587appellant on demand. The act requires the appellant to enter the appeal on or before the second day of the next term. If he fail, the appellee is authorized to enter it during the term, and have a judgment like that before the justice, or to have the appeal dismissed and remanded to the justice for execution. If neither party enter within the time limited, the law declares the appeal vacated, and requires the justice to proceed on the judgment before him.
¶2The case in the 6 O. 34, decided that an appeal could not be entered after the next term following, but intimates that perhaps the party might be permitted to enter during the term,if prevented from entering the two first days by accident, because for some purposes the term is but one day. This appeal was taken three [570 months before the court, and no excuse whatever is offered for neglecting it till a week before the court. Under such circumstances, we think the application was solely to the discretion of the Common Pleas, which this court cannot control.
¶3The case in this court in 1827, is not analogous. The act under which that appeal was entered (22 O. L. 73), authorized the court after the first day, even on the application of the appellee, to docket the appeal and try the cause.
¶4Order affirmed, with costs.
¶5[Error does not lie to decision on submitted facts by court acting as jury; Bissell v. Couchaine, 15 O. S. 58, 63.]