
    
      Thomas Cordray vs. Wm. Barnes, adm'r. of John Law. John A. Cuthburt vs. Same.
    
    Where, pending- an appeal from an order of non-suit, the plaintiff dies, the defendant may, after the death of the plaintiff, obtain leave to enter up judgment of non-suit, and issue execution for his costs.
    
      Before Earle, J. at Beaufort, Fall Term, 1831.
    The report of his Honor, the presiding Judge, is as follows :
    “ John Law, the defendant’s intestate, in his life time instituted separate actions of slander against' the present plaintiffs, Cordray and Cuthburt. At April term, 1829, a non-suit was ordered by the presiding Judge, in each case; notice of appeal to reverse the decision of the circuit Judge, and to set aside the non-suits, was duly given, and pending the appeal, the plaintiff in the actions died. The original defendants in the actions have instituted this proceeding by scire facias, against the administrator of the original plaintiff, to enter up their judgments of non-suit, and to have their executions for costs. The administrator pleaded specially the facts above stated, and there was a general demurrer to the plea, and a joinder in demurrer.
    “After argument, I sustained the demurrer, and gave judgments for the plaintiffs on the scire facias, to have leave to enter up their judgments of non-suit, and to take out their executions for costs. I consider the question made here as settled by the case of-, decided last spring at Columbia. The question is, was the suit pending after a non-suit ordered on the circuit, in consequence of the notice of appeal; and the court in the case of —■—:---:-, has said that the appeal does not continue the cause, but that it is ended by the judgment of non-suit on the circuit. It is true, in that case, the appeal was abandoned by the plaintiff, after the non-suit on the circuit — and here it was not prosecuted, in consequence of the death of the plaintiff. But I conceive the principle is the same. The judgment is that of the circuit court, and it must be entered up, if confirmed by the Court of Appeals, as of the term when it was pronounced. It is true, if set aside, the case is restored ; but if not set aside, the judgment of the circuit court is final. There is no difference in the principle, between a non-suit and a verdict ; in either case, the party prevailing may enter up his judgment and lodge his execution, and both are valid until set aside for some error in law by the Court of Appeals ; and their validity does not depend on any accidental circumstance occurring afterwards.”
    The defendant appealed, on the ground that the death of either party to a suit pending an appeal is an abatement, and each party pays his costs.
   Curia, per

Johnson, J.

The Act of the Legislature, regulating appeals from the circuit court, authorizes the party prevailing therein, to enter up his judgment, and the execution, only, is suspended by the appeal — and that judgment has always been regarded as final, unless set aside or reversed. The case of the Ordinary vs. Trail, (2 Bail. 480) referred to in the report, is decisive of this.

O’Neall, J. concurred.  