3 N.C. 378 | Cir. Ct. N.C. | 1805
This cause was instituted formerly in Wilmington Superior Court. The act of 1715 was pleaded, and thereupon a case was made and stated for the Court of Conference, who decided that the said act of 1715, ch. 48, sec. 9, was in force. Plaintiff's counsel then replied to the plea; and after the replication the whole bill was dismissed on their motion, that is to say, on the motion of plaintiff's counsel. The suit was then instituted in this Court, and defendant's counsel have pleaded the former dismission in bar. We are opinion that was not a dismission upon the merits, considered of and decided by the Court, and, therefore, that the plea in a bar is not good. There is also another plea in bar, namely, the act of 1789, ch. 23, sec. 4, by which it appears that this suit was not commenced within three years from the qualification of the executors, though there was an administrator of Grubb in England. Now, as there was no administrator in this country, there was no person in being who could demand the debt, and of course no creditor to be barred. The words of the act are: "The creditors of any person deceased, if they reside without the limits of this State, shall within three years from the qualification of the executor or administrator exhibit and make demand, etc.; and if any creditor shall hereafter fail to demand and bring suit for the recovery, etc., he shall forever (379) be debarred," etc. The plaintiff, therefore, is not within the body of the act. We need not consider whether an exception shall be allowed of which is not expressly mentioned in the act.
NOTE. — Upon the first point, see Springs v. Wilson,
Cited: Lee v. Gause,