Clements v. . Hussey , 4 N.C. 414 ( 1816 )

The defendant pleaded to the merits of the cause, and after the suit had been continued several terms, he died. A scire facias was served on David Mock, administrator of the property of the defendant, returnable to April Term, 1816; and he pleaded in abatement that the defendant died 15 October, 1814, and that no process was served on him until 1 April, 1816. To which plea the plaintiff replied that at October Term, 1814, the death of the defendant was suggested. He prayed a scire facias against the representatives of the defendant, which was ordered, and that a scirefacias was made out accordingly; that an alias scire facias was issued from April Term, 1815, to October Term, 1815, and was delivered to the sheriff of Rowan, the said administrator being a resident in that county, and thatpluries scire facias was issued from October Term, 1815, to April Term, 1816, which was executed and duly returned. The defendant demurred to the replication, and the plaintiff joined in the demurrer. The plaintiff has omitted nothing necessary to prevent the abatement of his action. Process having regularly issued from term to term, after the death of defendant intestate, till the administrator was made party, although not actually served, prevents the abatement which the defendant seeks.

The demurrer was not allowed.

NOTE. — See Hamilton v. Jones, 5 N.C. 441.