This is an action on the case in tort, to recover damages for the breach of a patent right. The defendant pleaded to the merits of the cause, and after the suit had been continued several terms, he died. A scire facias was served on *612David Mock, administrator of the property of the defendant, returnable to April term 1816; and he pleaded in abatement, that the defendant died on the 5th day of October 1814, and that no process was served on him until the 1st day of April 1816. To which plea the plaintiff replied, that at October term, 1814, the death of the defendant was suggested. He prayed a scire facias, against the representatives of the defendant, which was ordered, and that a scire facias was made out accordingly; that an alias scire facias was issued from April term 1815 to October term 1815, and, was delivered to the sheriff of Rowan, the said administrator being a resident in that county, and that pluries scire facias was issued from October term 1815, to April term 1816, which was executed and duly returned, the defendant demurred to the replication, and the plaintiff joined in demurrer.
Cameron, J.
delivered the opinion of the Court:
The plaintiff has omitted nothing necessary to prevent the abatement of his action. Process having regularly issued from term to term, after the death of defendant intestate, till the administrator was made party, although not actually served, prevents the abatement which the defendant seeks.
Demurrer allowed, plea overruled.