Let this motion be allowed, and the Ji. fia. he set aside.
Wingate v. Executors of Gibson, 5 N.C. 492, 1 Mur. 492 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 492, 1 Mur. 492
Cornelius Wingate v. The executors of Gibson & others.
I v From Fayetteville. J
A. having recovered a judgment against B. sued out a fi. fa. and before the return of it he died. After his death, he having- no representative, another fi. fa. was sued out in his name. This fi. fa. set aside as having issued erroneously.
At April term, 1805, of Fayetteville Superior Court, Cornelius Wingate recovered a judgment for one thousand pounds, against John M’Alister and the executors of William Gibson. A fieri fiadas was sued out, returnable to October term, 1805, and Defendants having filed a bill in Equity for that purpose, obtained an injunction as to groo of the judgment. Another fieri fiadas was issued from October term, 1806, returnable to April term, 1807", upon which nothing was done. At April term, 1807, there was a suit pending in the same Court at the instance of the executors of William Gibson v. Cornelius Wingate, and at that term, the death of Win-gate was suggested in that suit. At October term, 1807, another fieri fiadas was sued out upon the judgment aforesaid, in the name of Cornelius Wingate, returnable to April term, 1808 ; and, at this term a motion was made to set this fi. fia. aside, for having issued irregularly, the sheriff having done nothing upon either of the fi. fia’s. issued in the life-time of Wingate; he having died, and his death being suggested of record before the issuing of the last Ji. fia. and he having no representar five before the Court. The motion being sent to this Court,