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Ray v. Simpson

Supreme Court of North Carolina
Jul 1, 1815
4 N.C. 227 (N.C. 1815)

Opinion

(July Term, 1815.)

When the defendant in an action of ejectment died between the spring and fall terms of the same year, and his death was suggested at the latter, a service on the guardian of the infant heirs on the first day of the ensuing term is sufficient under the act of 1799 (1 Rev. Stat., ch. 2, sec. 7).

THE defendant died between Spring Term, 1814, and Fall Term, 1814, at which last mentioned term his death was suggested of record.


On the first day of this present term (say, Spring, 1815), the plaintiff served on the guardian of the heirs at law of Simpson (he having died intestate) a copy of the declaration in ejectment, with notice to appear and defend the suit.

It is referred to the Supreme Court to decide whether such service prevents the abatement of the suit.


There can be no doubt of the sufficiency of this service, under the act of 1799, ch. 8, the words of which are that no action of ejectment shall abate by the death of the defendant, but the same may be revived by serving on the guardian within two terms after his decease a copy of the declaration, with notice to appear and defend the suit; and after such service the suit shall stand revived. This is in the case where the heirs are infants, as they are here. Now this service was made within the second term after the death of the defendant, and is consequently within time.

Cited: Love v. Scott, 26 N.C. 80.

(228)


Summaries of

Ray v. Simpson

Supreme Court of North Carolina
Jul 1, 1815
4 N.C. 227 (N.C. 1815)
Case details for

Ray v. Simpson

Case Details

Full title:RAY v. SIMPSON. — 2 L. R., 249

Court:Supreme Court of North Carolina

Date published: Jul 1, 1815

Citations

4 N.C. 227 (N.C. 1815)

Citing Cases

Love v. Scott

The action of ejectment was not of that character, and therefore it could not be revived on the death of the…