
    Ezekiel How versus Benjamin How.
    
      Practice. Where an appellant from the Probate Court enters his appeal, and afterwards becomes nonsuit, the adverse party must file a complaint for affirmation and costs.
    This was an appeal from a decree of the judge of probate for this county, and being entered at a former term of this Court, now stood upon the continued docket.
    The first day of the term the appellant became nonsuit; whereupon Lincoln, of counsel for the respondent, moved for the affirmation of the decree below, and for costs.
   By the Court. This cannot be granted upon motion. When an appellant fails in the prosecution of his appeal to effect, and the adverse party would have the benefit of the decree below, he must file his complaint, praying for affirmation and costs.

Afterwards, Lincoln filed a complaint, and the Court affirmed the decree of the judge of probate, awarded costs for the respondent, and ordered a transcript of the record to be sent to the judge of probate for his government.

Blake, for the appellant.  