Let the demurrer be sustained.
Exum v. Heirs of Sheppard, 6 N.C. 86, 2 Mur. 86 (1811)
July 1811
·
Supreme Court of North Carolina
6 N.C. 86, 2 Mur. 86
William Exum v. The heirs of Benjamin Sheppard.
From Craven.
Judgment being given for an administrator, upon the plea of “ fully administered,” a scire faoias issued to the heir, to shew cause why judgment of execution should not be had .against the real estate descended. The heir pleaded “ nothing by descent,” and after-wards, pending the. suit, he pleaded, “ that since the last continuance, the lands had been sold to satisfy other executions.” The Plaintiff demurred: and the demurrer was sustained.
The Plaintiff recovered against James Glasgow and Martha Jones Sheppard, administrators of the estate of Benjamin Sheppard, deceased, in the County Court of Greene, in an action of covenant, £ for damages and £ costs of suit; but the plea of “ fully administered’* was found for the Defendants. The Plaintiff then sued out a writ of scire facias agaiiu,; the Defendants, suggesting that the. said Benjamin Sheppard died seised of a large real estate, which descended upon the Defendants, as heirs at Law, m<! praying for execution of the said damages and costs against the real estate to them descended. Upon the return of tins writ, the Defendants appeared and pleaded several pleas, amongst which were, “ no' such record, and nothing by descentand issues being joined upon said pleas, they were all found for the Plaintiff. The Defendants being dissatisfied with the verdict, appealed to the Superior Court for Newbern District. The transcript of the record was filed by the Defendants in due time, and the case stood upon the docket of the Superior Court, for trial upon the issues joined in the County Court, until January term, 1804, when the Defendant’s counsel, as of course, and without motion to the Court, pleaded, “that since the last continuance, the lands have been sold to satisfy other executions issued from this Courtto which plea the Plaintiff demurred, and the Defendants joined in demurrer. *87At July term, tl;o issues joined between ibe parties in the County Court, were tried and (bund for the Plaintiff: and the issue in Law joined between the parties, was sent to this Court. And '