Smoot v. . Wright

1 N.C. 536

• Court: Supreme Court of North Carolina
• Decided: July 5, 1802
• Status: Published

Opinion

A plea since the last continuance is to set forth matter which has happened pending the suit, and after having pleaded to the action at a former term; and though there are some pleas which an executor or administrator may plead after the last continuance, yet we know of no instance where this plea could be admitted; for, if it should be found for the defendant that he had fully administered since the last continuance, it ought not to bar the plaintiff of his recovery. In order to bar the plaintiff, it must be pleaded and shown that the defendant had fully administered before the commencement of the action, or at least before any process served on him. We are therefore of opinion that judgment should be entered for the plaintiffs on the demurrer.

NOTE. — See Woolford v. Simpson, 3 N.C. 132, and the cases referred to in the note.