¶1Objected by Mr. Moore, a capias ought not to have issued, but a summons; and the attachment is irregular, being founded on such a capias; and the suit is improperly brought. It ought to have been against Mrs. Umstead, also; for suppose she had died, it would have abated; if he had died, it would have abated also, as the case is circumstanced; but had it been brought against both, and he had died, it would have survived against her.
¶2The plaintiff being not ready, was nonsuited.
¶3Cited: Leake v. Gilchrist, 13 N.C. 84.