¶1 gtfre facias ought to have been issued against, the representatives of the plaintiff before suing out execution, and an opportunity afforded to them of making defence and pleading thereto. This execution has therefoi c been issued erroneously and must be set aside.
5 N.C. 113
Simmons v. Ratcliff.
Supreme Court of North Carolina
Decided June 5, 1806
Supreme Court of North Carolina · decided 1806-06-05
-From Halifax. The plaintiff instituted an action of trespass quare clau-sum fregit against the defendant and pending the suit he died. The suit was not revived by his representatives, and a fieri facias was issued against the property of the tiff for the costs. A motion was made to sot aside this execution, on tiie ground that no scire facias had issued a~ gainst the plaintiff’s representatives, to shew causo why the execution should not be issued.
Decided 1806-06-05