doubted, and gave no direct opinion — but Bakert for the plaintiff, ordered a sci.fa.
Alston v. Sumner's heirs, 3 N.C. 359, 2 Hayw. 359 (1805)
Oct. 1805
·
North Carolina Superior Court
3 N.C. 359, 2 Hayw. 359
Alston vs. Sumner's heirs.
■JUDGMENT had been given against the executors, and a acL ** fa. issued against the heirs, who pleaded assets in the hands oí the executors. And now upon a motion for the collateral ic-r,ue to be made up between the heirs and executors, Browne < fi-je,cted that the executors are not in court; for they were d:»-oharged ou the finding that they had no assets in the suit agah.pi the executors. — And a sci.Ja. must now issue to bring them in. Upon such finding, the judgment is eat hide nine die,
E contra it was argued by Haywood.,
That although suca was the judgment at die common law, it was not so since the act of Assembly of if 84, ch. 11 ; for that directs a Judgment to be entered for the sum due to the plaintiff, and to be paid either by the heirs or executors ; by the *01 mer if they have assets ar.d the executors none ; by the latter if they have assets. The ace *360directs an issue to made up upon the plea of the heir, that the executors have assets; which could not be but between panics in court. Again. — Such construction ought to be made .as will oust delays and nugatory process; why dismiss the executor when he may still be wanting? If a sci.fa. is to issue after such plea of the heir, then one term must be lost, whilst we wait for the execution to come in, and perhaps more; whereas if he is continued in court ready to meet the heir when he comes in, the issue can be made up immediately, and will be tried as soon, or sooner than the process to bring in the executors can! be returned. If the sci.fa. is to go against the executor, at the same time it issues against the heir, then you dismiss the executors, and at the same moment order process to bring them back, which is nugatory.