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?
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 entered 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.