#### THE STATE TO THE USE OF JOHN WILLIAMS, ADM’R, &c. vs. MIZELL’S ADM’R.

Where a verdict is rendered in the Court below in favor of the plaintiff, he cannot, in the Supreme Court, suffer a non-suit.

Appeal from the Superior Court of Law of Bertie County, at the Fall Term 1849, his Honor Judge Bailey presiding.

The action is debt on an administration bond, suggesting breaches, and upon issues joined there was a verdict for the plaintiff and the damages assessed to $1772 89. The relator, being dissatisfied with the amount of damages, moved for a new trial ; but it was refused and judgment entered for the penalty of the bond to be discharged by the payment of the damages and costs, and thereupon the relator appealed. No bill of exceptions accompanies the record ; nor is any error suggested in the judgment. But the counsel for the relator moved in this Court to be allowed to suffer a non-suit.

*280 Bragg, for the plaintiff.

A. Moore and W. TL N. Smith, for the defendant.

Ruffln, C. J.

The motion must, very clearly, be overruled. For, an appeal to this Court does not vacate the verdict, but it stands until it be adjudged here to be erroneous, and a venire de novo be ordered. While the verdict stands, of course there cannot be a non-suit. Hence, the judgment must stand affirmed, with costs against the plaintiff in this Court.

Per Curiam.

Judgment accordingly.