Mason v. Ballew
| Decision Date | 31 August 1852 |
| Court | North Carolina Supreme Court |
| Parties | HENRY MASON v. WILLIAM BALLEW ADMINISTRATOR, OF W. BALLEW. |
OPINION TEXT STARTS HERE
A scieri facias, to recover a penalty imposed on a Sheriff for not returning process, cannot upon his death, be revived against his representatives.
Appeal from the Superior Court of Law of Catawba County, at the Fall Term, 1851, his Honor Judge MANLY presiding.Craig for the plaintiff .
Guion for the defendant .
The Sheriff of Caldwell County was amerced in the sum of $100, for not making due return of a writ of fieri facias, at the instance of the plaintiff against one Miller, and a scieri facias was served on him to show cause against it at the next Term, and was served on him. Before the return of the scieri facias, the Sheriff died, and then a scieri facias to revive that proceeding was issued against his executor, and, upon being thus brought in, the executor insisted, that the right of action did not survive, and that the plaintiff could not have judgment against him. The Court was of that opinion, and refused to make the judgment absolute, and awarded an execution for the amercement, and the plaintiff appealed.
The sum claimed in this proceeding is called, in the act, a penalty of $100, forfeited by not returning the process. Rev. stat. ch. 99, s. 18; and it is clear, that it does not come within the 10th section of the act to prevent abatement of suits, Rev. stat. 1, 2, nor any other provision, saving rights of action after the death of one of the parties.
Judgment affirmed.
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...abate. Such was the rule under common-law procedure and Rev. Code, c. 1, § 1, which prevailed prior to the adoption of the Code. Mason v. Ballew, 35 N. C. 483; Fite v. Lander, 52 N. C. 247. The plaintiff insists that by virtue of sections 1490, 1491, the right of action survives, and that, ......
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...Such was the rule under common-law procedure and Rev. Code, c. 1, § 1, which prevailed prior to the adoption of the Code. Mason v. Ballew, 35 N.C. 483; Fite v. Lander, 52 N.C. 247. The plaintiff insists that by virtue of sections 1490, 1491, the right of action survives, and that, notwithst......
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