Kincaid v. Blake
Court of Appeals of North Carolina
Tried before Mr. Justice James, at Fairfield, Fall Term, 1827. Tins was an action of covenant, commenced by writ of foreign attachment. The plaintiff filed his declaration on the 22d of April, 1825, and regularly published a rule to plead within a year and a day; the defendant failed to appear, and the case was docketed for trial.
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Tried before Mr. Justice James, at Fairfield, Fall Term, 1827. Tins was an action of covenant, commenced by writ of foreign attachment. The plaintiff filed his declaration on the 22d of April, 1825, and regularly published a rule to plead within a year and a day; the defendant failed to appear, and the case was docketed for trial. When called for trial, evidence was produced of the death of the defendant, who was supposed to have been drowned some time in the month of November, 1826. His Honor, the presiding Judge, ruled that the action had abated, and struck the case from the docket. The…
1Opinion of the Court
Johnson J. delivered
the opinion of the Court.
When this case was argued, the principal matter of contest between the counsel, seemed to be as to the fact whether the defendant’s death occurred before or after the expiration of the rule to plead. The counsel for the defendant has since, by reference to documents, satisfied himself that it was after; and, in conceding that point, -was understood to admit that the rule was against him- The Court, at least, is of that opinion. The rule to plead having expired, the plaintiff was inti tied to enter up interlocutory judgment; and the authorities all…
2Cases cited1 opinion
- Farman v. Board of CommissionersIndiana Superior Court · 1873