The rule may be made absolute upon payment of costs.
Tear v. White's administrator, 5 N.C. 412, 1 Mur. 412 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 412, 1 Mur. 412
Robert Tear v. John D. White’s administrator.
} From Bertie.
Judgment quando assets acciderint was rendered against an administrator for £1835 4s. 2d, to be discharged on the payment of £917 4s. Id. Plaintiff sued out a scire facias suggesting assets and reciting a judgment for £917 12s. Id; but not reciting it as a judgment quando, &c. Mil tiel record and no assets were pleaded to the sci. fa • The Court sustained the plea of nul tiel record, and gave judgment for the Defendant. Plaintilf moved to set this judgment aside, and for leave to amend his writ of sci. fa. The judgment was set aside, and leave given to amend on payment of costs.
This was a scire facias suggesting assets. Pleas, mil tiel record, no assets. The scire facias was returned to Bertie County Court, at November term, 1807, and recited a judgment for “ £917 12s. Id, with interest thereon from the 20th October, 1805, until paid, for debt.” The record offered in evidence, was of a judgment for <e £1835 4s. 2d, to he discharged on payment of £917 4s. Id, with interest, &c. when assets, &c.” The Plaintiff had a verdict upon the plea of “ ho assets,” and judgment was given for him upon the plea of “ nul tiel record.” The Defendant appealed to the Superior Court, and at October term, 1809, the Jury were charged with the trial of the issue of fact, and by consent of parties a juror was withdrawn, and the case continued. At the next term, the plea of “ nul tiel record” being submitted to the Court, the variance between the judgment recited in the scire facias, and that set forth in the record offered in evidence, was insisted on; and the Court adjudged that there was no such record as that recited in the sci. fa. Because, 1st. The sci. fa. recited a judgment for £917 12s. Id; the record produced was for a judgment of £l 835 4s. 2d. 2d. The sci. fa. recited an absolute judgment; the record produced was. of a judgment when assets.
*413The Plaintiff moved for, and obtained a rule upon the Defendant, to shew cause why the judgment upon the plea of “ nul tiel record” should not be set aside, and he have leave to amend his writ of scire facias. The rule •was sent to this Court $ and