Opinion
June Term, 1806.
On the abatement of a suit by the death of the plaintiff, execution for the costs ought not to be issued until a scire facias has issued to the representatives of the plaintiff.
THE plaintiff instituted an action of trespass quare clausum fregit against the defendant, and pending the suit he died. The suit was not revived by his representatives, and a fieri facias was issued against the property of the plaintiff (114) for the costs. A motion was made to set aside this execution, on the ground that no scire facias had issued against the plaintiff's representatives to show cause why the execution should not be issued. The case was sent to this Court upon the question whether a scire facias ought not to have been issued against the plaintiff's representatives before suing out the execution.
From Halifax.
A scire facias ought to have been issued against the representatives of the plaintiff before suing out execution, and an opportunity afforded them of making defense and pleading thereto. This execution has therefore been issued erroneously, and must be set aside.