Opinion
July Term, 1810.
A, having recovered a judgment against B, sued out a fi. fa., and before the return of it he died. After his death, he having no representative, another fi. fa. was sued out in his name. This fi. fa. set aside as having issued erroneously.
AT April Term, 1805, of Fayetteville Superior Court, Cornelius Wingate recovered a judgment for £ 1,000 against John McAlister and the executors of William Gibson. A fieri facias was sued out, returnable to October Term, 1805, and defendants, having filed a bill in equity for that purpose, obtained an injunction as to $700 of the judgment. Another fieri facias was issued from October Term, 1806, returnable to April Term, 1807, upon which nothing was done. At April Term, 1807, there was a suit pending in the same court at the instance of the executors of William Gibson v. Cornelius Wingate, and at that term the death of Wingate was suggested in that suit. At October Term, 1807, another fieri facias was sued out upon the judgment aforesaid, in the name of Cornelius Wingate, returnable to April Term, 1808; and at this term a motion was made to set this fi. fa. aside for having issued irregularly, the sheriff having done nothing upon either of the fi. fa's issued in the lifetime of Wingate; he having died, and his death being suggested of record before the issuing of the last fi. fa. and he having no representative before the court. The motion was sent to this Court.
From Fayetteville.
Let this motion be allowed, and the fi. fa. be set aside.
Cited: Aycock v. Harrison, 65 N.C. 9.
(493)