
    *Garlington v. Clutton.
    [Saturday, April 27, 1799.]
    Abatement of Suit — Death of Parties. — Consent that the suit shall not abate by the death of parties, is obligatory, and operates like a release of errors.
    Same — Same.—Therefore, a plea stating the death of the defendant before verdict, though informally replied to, will not impede the judgment.
    Writ of Error. — Qutere. Whether a writ of error in fact will lie from a District Court to a judgment of a County Court? Vid. [Lee v. Turberville,] 2 Wash. 163.
    Clutton brought indebitatus assumpsit against William Garlington, in the County Court of Northumberland, for merchandize sold and delivered, and for services done and performed for the defendant, by the plaintiff, in the capacitj' of an overseer: Plea, non assumpsit, and issue. On the trial of the cause, the plaintiff filed a bill of exceptions to the Court’s opinion in admitting improper evidence to the jury. Verdict and judgment for the plaintiff. The defendant appealed to the District Court of Northumberland; where, at the April term, 1790, “by consent of the parties, by their attornies, it was ordered, that the suit should not abate by the death of either party; and, for reasons appearing to the Court, the cause was continued until the next term.” -At the subsequent term of the District Court, the judgment of the County Court was reversed; and the cause sent back to the County Court, for a new trial to be had therein. In November, 1792, there was a second verdict and judgment of the County Court for the plaintiff, for the sum of 331. 11s. 8d. To this latter judgment, Garlington obtained a writ of error from the District Court of Northumberland ; and in September, 1796, assigned errors in the following words: “William Garlington, appellant, against Jesse Clutton, appellee, on a writ of error, and the said William Garlington, by John Monroe, his attorney, comes and says, there is error in the rendition of the judgment in the record aforesaid contained, in this, to wit, that the said Jesse Clutton, before the verdict aforesaid given, to wit, on the fifteenth day of December, in the year 1790, at the county of Northumberland aforesaid, died; and so the judgment thereon is 521 erroneous. And he prays, that *the judgment aforesaid, for this error and others in the record and proceedings aforesaid being, may be reversed, annulled, and held entirely void; and that the said William may be restored to all things which he hath lost by reason of the judgment aforesaid.” Immediately after which, the record proceeded thus: “To which the plaintiff demurs and joinder, which demurrer is in the words following: “Garlington v. Clutton, in error, the defendant, by his counsel, says, that the judgment of the Court ought not to be reversed, by reason of any thing in the plaintiff’s bill of errors assigned; because he says, it was agreed, by the parties before the death of the said Clutton, that the suit should not abate by the death of either party, as appears by the record in this cause; and this he is ready to verify. Wherefore he prays judgment,” &c.
    “Whereupon, the matters of law, arising on the said demurrer, being argued, it seems to the Court here, that the law is for the defendant. Therefore, it is considered by the Court, that the judgment be affirmed, &c. ” in the usual form.
    Rrom this last judgment of the District Court, Garlington appealed to this Court.
    Marshall, for the appellant.
    There is a plea which states, that the defendant died before the verdict was rendered ; and, although there is a pleading thereto, on the part of the plaintiff, which speaks of a demurrer, yet it obviously is not a demurrer; but, a mere replication, setting forth new matter, which has not been put in issue; and, therefore, the judgment was premature. But, if it were put in issue, it may be questionable, whether such an agreement would preserve the suit, and prevent its abating. And, at all events, the agreement expired with the appeal. However, if the pleading on the part of the plaintiff was a demurrer, then it has admitted the truth of our plea; and, of course, there was clear error in fact.
    *Call, contra.
    Error in fact, cannot be corrected in a Superior Court; but it must be done by the ordinary process of a writ of error coram vobis. Therefore, the matter of the plea was offered in such an irregular mode, that no regard was due to it. Consequently, the plea itself being insufficient, was properly over-ruled, upon the demurrer. Eor, so the pleading on the part of the plaintiff must be taken; because the record states, that the plaintiff demurred, and that the defendant joined: which was a good issue in law; and the residue of the allegations, on the part of the plaintiff, was mere surplusage. The probability is, that the demurrer and joinder were entered in short memoranda, without being extended; and that it was left to the Clerk to do it in his order-book, afterwards; according to a very frequent practice in County Courts. But the agreement, being matter of record, was triable by the Court only, without the intervention of a jury. Eor, records are alwaj's to be tried by the Court, upon inspection ; and not by the jury. The opinion of the Court then, in this case, as no exception is stated, is as conclusive as the verdict of a jury. But, under another point of view, the judgment is clearly sustainable. Such an agreement, as that stated in the record, appears sometimes in the English books; and is frequently practised in this country. It is usual even in actions of tort. Now, the only way of giving effect to the .agreement, is, by refusing to let the party object the death. For, if he be permitted to allege it, or if process is required to revive it, either of them defeats the agreement: Because, you cannot obtain the process without suggesting the death; and that ipso facto abates the suit. If you shew the death of either party in an action of tort, the law says it shall abate the suit; and that the cause of action expires with the party. But, it is absurd to say, that it is necessary, in order to sustain the suit, to plead those matters to issue, which, if plead to issue, would abate it. There-523 fore, the only way to *get over the difficulty, is for the Court not to receive the party to allege the death. Of course, the whole matter which was offered being frivolous, and such as the Court was not bound to receive, they were at liberty to proceed to judgment, without any regard thereto; although the pleadings appeared inaccurate.
    Marshall, in reply.
    A writ of error in fact, will lie from a District Court to the judgment of a County Court. For, the act of Assembly gives them power to award writs of error generally, without distinguishing between those in fact and those in law. If an agreement, that the suit shall not abate, be effectual, it ought still to be put in issue, in order that it may receive a trial in the usual way; but, there is no issue either in law or fact joined in the present case. For, nothing is referred to the judgment, either of the Court or of the Country ; without one of which, there can be no issue; and, therefore, the Court ought not to have proceeded to judgment, until the issue had been completed.
   LYONS, Judge.

How would you try the matter of fact in a writ of error from a Superior Court? Is it not necessary, that there should be a jury to ascertain the fact? and, if so, can the appellate Court try it?

Marshall. That objection would apply to applications of that kind to this Court, but not to a District Court; who have power to make use of a jury.

Call. When the District Court exercises appellate jurisdiction, it resembles this Court throughout; and, therefore, if this Court cannot grant a writ of error in fact, no more can a District Court.

LYONS, Judge. Delivered the resolution of the Court, that the judgment was to be affirmed. That where the parties agree, that the suit shall not abate by the death of the plaintiff or defendant, the whole Court were of opinion that the agreement is binding on them; and, being en-524 tered *of record, operates like a release of errors. That, therefore, that point might, hereafter, be considered as settled. That its being called a demurrer, instead of a plea, was immaterial and not to be regarded, as the fact itself was shewn ; which was all that was necessary.

Judgment affirmed.  