Lea v. . Gauze

26 N.C. 9

• Court: Supreme Court of North Carolina
• Decided: December 5, 1843
• Status: Published

Opinion

Ruffin,. C‘. J.

Without having regard to the circumstance, that the letters of administration to Jones are general and not de bonis non, his motion must be denied as not having been made in due time. The act, Rev. St. c. 2, s. 6, allows a suit brought by an administrator to be revived by an administrator de bonis non, as it might be revived by an executor upon the death of his testator. Now, by the preceding sections of the act, taken from the acts of 1789 and 1799, according to their settled construction, the executor of a deceased plaintiff must apply to carry on the suit within two terms after the day of the’ testator’s death, except in the cases of contest's about a will or the administration — of which there is no suggestion here. Tay. Rep. 134. 2 Hay. 66, This is the third term since the death of the original plaintiff, and therefore the application is not in time to prevent the action from abating.

If the death of the plaintiff had occurred while the case was held under advisari here, we might enter the judgment mine pro tunc, as of a day previous to the death ; but in fact that event occurred before the case was constituted in this court, or, at least, before the first term, so that there is no day, of which a judgment could be entered in this court in the life of the party.

Per Curiam, Motion disallowed.