ABATEMENT.

Y. Ke
216

1. The objection that a joint obligor is
not sued, must be made by plea in a-
batement at the proper time; it can-
not be made at the trial of the cause.
Such a plea cannot be made at all since
the act of 1789, ch. 57.
non's adm'rs.
2. If a plaintiff procures a copy of his
bill and a subpoena, and deliver them
to the Sheriff in time to be served on
the defendant ten days before the term
and the sheriff neglects to make the
service until ten days before the next
term after that, the plaintiff's bill shall
nct be dismissed by a plea in abate-
ment under the act of 1782 ch. 11, sec.
2. Anonymone,

256

3. Under the acts of 1777 ch. 2, sec. 10,
and 1793 ch. 19, sec. 1, it is held, that
a plea in abatement is not the proper
inode to take advantage of the Plain-
tiff's having brought his suit in the Su-
perior Court for less value than fifty
pounds. Sur. Parts. of McNaughton
& Co. v. Hunter,

454

3.

Objected by counsel that a summons,
and not a capias, is the proper pro-
cess to bring in an administrator, and
that an attachment founded upon such
capias is irregular. Moore v. Suttril's
Adm'r.

16
4. Former administrators removed and
another appointed, but not made a
party to this suit. The latter admin-
istrator will not be allowed to plead
any thing to this suit, and the former
administrators cannot plead the repeal
of their letiers after the first term
since the repeal. Bailey's Adm'rs. v.
Cochran's Adm'rs.
104

5.

6.

An account stated and signed by one
administrator is binding upon all, and
will bear interest from the time it was
signed. Id.
104
Where an executor declares as execu-
tor, then he makes profert of his let-
ters testamentary, and they are to be
objected to in pleading, upon oyer of
them, or by demurrer if any defect
appears in the declaration; and after
the first term, they need not be pro-
duced again. But when an executor
declares upon his own possession, the
fact of executorship forms part of his
title, and must be proved upon the
trial by the production of the letters
testamentary themselves, unless they
have been lost, when perhaps, other
proof of executorship will be admit
ted. Ex'rs. of -
v. Oldham, 165
7. When "no assets" are plead, the
Plaintiff shall have judgment for the
amount of the assets which he can
show in the hands of the administra-
tor, and judgment quando for the bal-
ance of his debt. McRae v. Adm'r. of
Moore,

182

8. When an executor omits to plead
"no assets," it is an admission of as-
sets which he can never afte wards
controvert; and in such case the pro-
per judgment is, that the principal

sum recovered, be levied de bonis tes-
tatoris in the hands of the excutor,
and the costs de bonis prop us and
upon the return of the Sheriff that
there are no goods of the deceased in
the hands of the executor, then a sei.
fa. issues to the executor to shew
cause why the execution for the prin
Cal should not be levied de bonis
propriis. Parker v. Stephens. 218
9. Administration granted when the next
of kin are out of the country should
be durante absentia, if otherwise, it is
Ritchie v. McAuslin, 220
10. The next of kin residing in another
Country may appoint a person to take
the administration here. Id 220
11. The court should not grant letters
to a person not designated in the act,
before the persons designated have
refused Id.
220

erroneous

12. the Superior Court will repeal the
letters when mproperly granted, and
mak & order for th County Court
to grant them to the proper person.
Quere, whether it should not have
been a mandamus. Id.
220
13. Suit commence against an execu
tor returnable to the Superior Court,
Ad suits afterwards commenced re-
tur able to the County Court which
sat first; to these later suits the exe
cutor put in such pleas as made the
assets responsible for their payment,
and to the suit in the Superior Court
he plead that he had no assets except
what was liable to the payment of the
other suits. The latter plea is not
good; he ought to have confessed
Judgment to the suits in the Coun y
Cour, and then plead those judgments
to the set in the Superior Court
Anonymous,
14. The plea of plene administra.it must
be true when it is put in, and not at
the time of trial Anonymous, 297
15. The administrator had faied to plead
plene administravit, or any other plea
shewing a want of assets, and the
Plaintiff had obtained judgment and
upoo execution issued, “nulla bona”
had been returned: held, tha the ad.
ministrator was bound to pay de bonis
propriis, and for that purpose a special
f. Ja. might iss-recting the return
of nulla bona, and omnding the
Sheriff to levs de bonis intestati if to
be found in the hands of the adminis-

-

295

411

Id.
411
19. Voluntary payments after the teste
of the writ are not allowable. They
are certainly not if made after plea.—
Id.
20. A payment made after the teste of
the writ is not good in support of the
plea of plene administravit. Quere by
HAYWOOD. Sur. Part. of MeNaughton
& Co. v. Blocker's Adm'r.
21. Judgments obtained against an ad-
ministrator after the teste of the writ,
and before the time of pleading, may
be plead at the proper time. Id. 417
22 Debts assumed by the administrator
before the teste of the writ, must be
allowed him to the amount of his as
sumptions. Id.

417

417

23. When two judgments are obtained
against an administrator, the first an
absolute one, but the second a quando
judgment, and assets afterwords comes
to his hands, Harwoon, Judge, said,
that the assets must be applied to the
first judgment; but STONE, Judge,
seemed clear that they should go to
the satisfaction of the second. Anony
mous,

461

24. When an administrator does not dis-
tinguish in his inventory the good
from the bad debts, all will be pre-
sumed to be good, until he can show
that he brought suits for them and the
debtors were unable to pay. Anone.

AGCOUNT.
1. The action of account will not lie for
a legatee against an executor, or the
executor of such executor. Anony-
mone,
226

this country, the 101st section before
referred to, is repealed as to him, by
several acts of the State Legislature;
and if he was not a citizen but Brit-
ish subject, then by the 4th article of
the treaty of Peace, he is considered
as an ali-n friend, and entitled to sue
in our courts. Cruden's ex'rs. v. Neale
338

Black-

259

3. An account taken by the Master, in
the absence of one of the parties an
without his having had notice of the
time when it would be taken, shall be
set aside. Smith et al. v. Estis, 348
4. When a report is regularly taken but
the items of the account are improper
ly allowed or disallowed by the Mas-
tér, exceptions filed to the report are
proper: but if the report is irregular-
ly taken, then the objection goes to
the whole report, and may be made
and supported by affidavits on motion.
Id.

348
Vide Administrators & Executors, 5. Li-
mitations Statute of, 5. Payment plea
of.

ACTS OF THE ASSEMBLY.
Vide Evidence, 12, 14.

ALIMONY.

1. In a bill by a wife for alimony, it is
most proper that the husband be held
to bail at first; but if that has not been
done, upon proper affidavits by the
wife, the husband's property may be
sequestered until he gives security for
the performance of the decree. Anon-
ymous,
347
In a bill for alimony, the court will not
order a sequestrat on upon the ground
that the defendant is wasting his pro
perty. Spiller v. Spiller,

2.

AMENDMENT.

482

1. Plea in abatement that defendant is
sued as executor instead of adminis
trat : motion to amend under the act
of 1790 was refused. Nothing can be
amended under that act but what the
other party might have specially set
down as the cause of demurrer. Cow-
per v. Edwards adm'r of Webb, 19
2. A declaration in ejectment served on
a tenant in possession, cannot be a-
mended so as to comprise more lands
than those already described. Carter
v. Branch,

135
3. It is a practice among the bar to cor-
rect any mistake which the clerk may
'make in issuing writs. Adams v. Spear

215

21

1. Motion in arrest overruled and appeal:
the case stands, not upon the reasons
in arrest, but an issue to the country.
Snowden v. Humphries,
2. The neglect of bringing up an appeal
under the act of 1777, c. 2, s. 84, in
proper time, is not relievable by cer-
tiorari, although occasioned by the
neglect of the clerk; and the appel
Jee may move for the affirmance of the
judgment with double costs, either at
the first, or any other term, after the
appeal. Brickell v. Bass,
137
3. An appellee may move for an affirm-
ance of the judgment with double
costs, either at the first or any other
term, after the appeal, per MACAY,
Judge. But HAYWOOD, Judge, denied
the propriety of it, and a rule upon
the appellant to shew cause at the
next term, was ordered. Anony
mous,

171
4. An appeal from the County to the
Superior Court nullifies the judgment
of the County Court. Durison v.
Mull,
364

5. The appellant applied in time to the
clerk for the papers, but could not
procure them. The papers were,
however, brought up after the fif
teenth day before the term, and a mo-
tion was made to have them filed-
Upon the motion's being opposed by
the appellee, it was refused upon the
ground that the party had his remedy
against the clerk. It seems if there
had been no remedy against the clerk
the papers might have been filed.-
Robertson v. Stone,
402
6. The fifteen days before the term, in
which appeals must be filed in the
Superior Court, must be clear of the
day of filing the papers, and of the
first day of the term; at all events of
the first day of the term. Anony-
402
7. When in appeal from the County
Court, and a new trial had in the Su-
perior Court, a verdict for as great a
sum was obtained in the Superior

тоиз,

Court as had been rendered in the
County Court, HAYWOOD, Judge,
thought judgment might be entered
up instanter against the appellant and
his securities, under the act of 1785,
c. 2, s. 2. But STONE, Judge, was of
opinion that in such case the act did
not apply. Yarborough v. Giles, 453
8. The fifteen days before the term, in
which appeals must be filed in the
Superior Court, are inclusive of the
day on which the appeal is filed, and
also of the first day of the term.—
Anonymous,
462

Vide Buil, 1.

APPEARANCE.

A motion to dismiss a cause brought up
by a certiorari, was made upon the
ground, that the notice which had
been ordered at the last term to be gi
ven to the defendant, had not been gi
ven; but it appearing that the defen-
dant had entered an appearance by the
initials of his attorney's name being
placed on the docket, the motion was
refused. Anonymous,
405

ARBITRAMENT AND AWARD.
1. Award made and returned into court:
exceptions to it were filed in writing.
the answer to the exceptions was also
filed in writing: both supported by
affidavits. Judgment was given upon
hearing them. This is the usual prac
tice in such cases. Cain v. Pullam 173
2. An entry, "referred to A, B and C,"
means a general reference of the cause
and not merely to audit and state the
accounts Cleary v. Coor and Hawks,
225

3. The award of arbitrators ought not to
be set aside, unless in cases, where
their decision is plainly and grossly
against law; not where the point de
cided might be doubtful. Id. 225
4. In an appeal from the court below up-
on exceptions filed to the award of ar.
bitrators, a new trial is not to be had
in the Superior Court, but it will ex
amine into the errors of law in the
court below. Burton v. Sheppard, 399
5. A decree will be entered on an a.
ward, at the term at which it is re-
turned, if no exceptions be made to
the award at that time. Southerland
v. Mallett,

461