The object of a scire facias, whit'!) the act ‘ . ... . ©f Assembly directs to be issued m cases like the present, is to enable the executor or administrator to she.w cause why he should not be made a party, and no peremptory order is made, that he shall be made a party, until an opportunity . is afforded, to shew cause, upon the return of the scirejaci-(is. The order made in this case was irregular and improper ; the rule must therefore be discharged.
Mallison v. Howard, 5 N.C. 44, 1 Mur. 44 (1805)
June 1805
·
Supreme Court of North Carolina
5 N.C. 44, 1 Mur. 44
Mallison vs. Howard
from Newbern.
suggestion Of a defen-«tent*»death ovighítí! lie m!^ebyPaar" Sare *vi-orde’r *45'uniess he ing served adm,r he appeared & shewed for cause, that whereupon the rule for mnkm<?mm discharged.3
*44The Heath o.f defendant being suggested, an order wa£ made « that Sally Howard, administratrix of George Howard deceased, be made defendant in this case, unless cause . shewn to the contrary at next term.” A copy of this order having been served on Sally Howard, she appeared and shewed eause, to wit, that the said order was irregular raid not conformable to the provisions of the statute in such ca-made and provided; that the representatives of the de-*45lend ant ffieorge Howard must be made a party by a facias, and therefore she prayed to be dismissed. Whereupon it was submitted to this court, “ whether the mode adopted was regular and proper ?” — If the court should be of opinion that the mode was irregular and improper, the rule be discharged; otherwise, to be made absolute.