Opinion · Nclaw North Carolina

SMOOT v. WRIGHT, 1 N.C. 536 (1802)

1 N.C. 536

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1802-01-01
Topic
general

SMOOT v. WRIGHT, 1 N.C. 536 (1802) SMOOT THOMPSON v. WRIGHT'S ADM'RS. — Conf., 374.Court of Conference (Spring Term, 1802.) An executor cannot plead that he has fully administered since the last continuance; as every plea of fully administered must have reference to the commencement of the action, or at least to the time of process served. The defendant pleaded that he had fully administered since the last continuance, to which there was a demurrer and joinder. (537) By the Court: 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.

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SMOOTv. WRIGHT,1 N.C. 536(1802)
SMOOT THOMPSON v. WRIGHT'S ADM'RS. — Conf., 374.
Court of Conference
(Spring Term, 1802.)
An executor cannot plead that he has fully administered since the last continuance; as every plea of fully administered must have reference to the commencement of the action, or at least to the time of process served.
The defendant pleaded that he had fully administered since the last continuance, to which there was a demurrer and joinder.
(537) By the Court:
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. — SeeWoolford v. Simpson,3 N.C. 132, and the cases referred to in the note.Page 439