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.
Simmons v. Ratcliff, 5 N.C. 113, 1 Mur. 113 (1806)
June 1806
·
Supreme Court of North Carolina
5 N.C. 113, 1 Mur. 113
Simmons vs. Ratcliff
-From Halifax.
bn the a suit by the *114'éxü'cüüiT oug’.it noi to until a srh’e _ facia, lias issued to the representa-tivvs of the piamiifti
*113The 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 *114tiff 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. The case was sent to this court upon the question whether a scire facias ought not to (0 have been issued against the plaintiff’s representatives* fc ° 4 4 before suing out the execution. And