Horatio Walker vs. Gideon King

Horatio Walker vs. Gideon King. Bennington, January, 1827. A case, in which judgment has been rendered in the county court, and which is ponding in the Supreme Court, on exceptions taken at the trial below, is not, on the suggestion of the death and representation of the. insolvency of the defendant, to be discontinued; but the exceptions are in the nature of a writ of error, and must bo finally disposed of in the Supreme Court. Stat. p. 343. THIS was an action of trover, in which a verdict and judgment had been entered for the plaintiff, and the cause removed to this Court, on exceptions taken at the trial. This term, the death of Gideon King was suggested upon the record j whereupon, Robinson, the attorney of record of the said King, informed the Court, that his estate had been represented insolvent, and,'as amicus curia, moved that the action be discontinued, agreeably to the proviso to the fifty-third section of the probate act. Bennett, for the plaintiff, said, that here being a judgment, final but for the exceptions, which could only be determined in this Court, the case was not within the provisions of the probate act. The Court said, the motion presented an important question, involving a construction of the statute. And the case was passed to be further considered.. On a subsequent day of the term, the question being again moved, Milo L. Bennett for the plaintiff. David Robinson, jr. contra. [MAJORITY — Per Curiam,] Per Curiam, we are all of opinion, that there having been a judgment below, and the case standing on exceptions, they are to be regarded as in the'nature of a writ of error, and the cause must be disposed of here.