Mason v. . Ballew

35 N.C. 483

• Court: Supreme Court of North Carolina
• Decided: August 5, 1852
• Status: Published

Opinion

Ruffin, C. J.

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.

Per Curiam. Judgment affirmed.