Den v. Love, 61 N.C. 435, 1 Phil. 435 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 435, 1 Phil. 435

JOHN DEN v. JAMES R. LOVE.

The Ordinance of the 23d June 1866 which changed the jurisdiction of ' the courts, prevented an action from abating before or at Fall Term 1866 by the death of a defendant in 1864, after the Fall Term of that year.

(Doe v. Avery, ante, 238, cited and approved.)

Trespass, Q. C. F., before Mitchell, J., at Fall Term 1866 of the Superior Court of McDowell.

A motion having been made for notices to issue to the executors of the defendant, upon a suggestion that he was dead; on its appearing to the court that he had died in the Fall of 1864, after the Fall Term of the court, the motion was refused, and the suit adjudged to have abated.

From this judgment the plaintiff appealed.

No counsel for the appellant.

Merrimon, contra.

Reade, J.

Beforexthe Ordinance to change the jurisdiction of the Courts, &c., (23d June, 1866,) this suit would have abated by reason that two terms had elapsed after the defendant’s death without making his executor a party. But that ordinance provides that the time elapsed since 1st Sept. 1861, barring actions and suits, or presuming the satisfaction or abandonment of rights, shall not be counted. That ordinance prevented this suit from abating. We so held in Morris v. Avery, ante, 238. His Honor’s ruling in this case was before that decision.

There is error. Let this be certified, &c. ■

Per Curiam. There is error.