— Theaffidavits which have been read satisfactorily shew that Harwood, the defendant in error, who was the plaintiff in this court, died after the joinder in error and before the hearing of the cause at the special term in January last, when the judgment of affirmance was rendered..

The course to be pursued, in such circumstances is distinctly pointed out in the practical books and by Sergeant Williams, in his note to 2 Saund. 101, o. If, say they, the defendant in error dies after errors assigned, his executors may proceed until the judgment is affirmed, as if he were living, and then the judgment must be revived by scire facias.

The cases referred to by the counsel of Harwood, are not in point. They are not cases in error, and in each it was the death of .the defendant, against whom, not of the plaintiff, in whose favor the execution was issued.

The execution in this case was improvidently sued out. The *195teste being made in November term, if not in itself irregular as was insisted by the counsel of Murphy, cannot cure the defect. v .

Execution set aside.