
    
      John P. King vs. Margaret Clarke.
    
    If a party die pending an appeal, and the appeal is heard and dismissed, tlxe case should not again be docketed; but if docketed, the proper order should not be “ abated,” but the case should be stricken from the docket.
    
      jBefore Dunkin, Chancellor.
    
      Edgefield,
    
    
      June Term, 1840.
    This case was first before the Court of Appeals, in May, 1837. (See 2 Hill, 611.) At June Term, 1839, the case was again heard on the Circuit, upon the Commissioner’s Report and exceptions thereto; and Chancellor J. Johnston delivered a decree confirming the Commissioner’s report, and charging the defendant with about $5,000. From this decree there was another appeal, which was heard and dismissed at May Term, 1840. Pending this appeal, namely: — on the 17th November, 1839, the defendant died. At June Term, 1840, when the cause was called upon the docket, the solicitors for defendant moved that the case be marked ‘ abated,’ but Chancellor Dunkin refused this motion. After June Term, an execution fit,, fa., was issued by plaintiff, and the estate and property of the deceased defendant seized and sold. The solicitors for defendant moved the Court of Appeals to grant the motion refused by Chancellor Dunkin, and to set aside the subsequent proceedings in this case, on the ground :
    That the case abated by the death of defendant; and that no execution could issue after the lapse of a Term from the death of defendant.
   Caria, per Johnson, Chancellor.

The legal question propounded in the grounds of this appeal, is not, perhaps, entirely free from difficulty. The Court do not, however, feel themselves called on to decide it. It is conceded that the defendant is dead, and it follows, that no further proceedings can be had in the cause, unless her legal representative is a party. In addition to this, it is stated that her whole estate has been sold under the execution — the purchasers at the sale have, therefore, an interest in the proposition to set aside the proceedings, under which their rights, if they have any, were derived. They are not parties, and the Court could make no order which could bind them, and any judgment which the Court might give, would be nugatory. After the final decree, at June Term,, 1839, the cause was improperly retained on the Docket, and the proper course would have been, to strike it off. Appeal dismissed.

Wardlaw & Wardlaw, for the motion.

Griffin, contra.

DAVID JOHNSON.

We concur.

Wm. Harper, J. Johnston, B. F. Dunk-in,  