On the first day of this present term (say, Spring, 1815), the plaintiff served on the guardian of the heirs at law of Simpson (he having died intestate) a copy of the declaration in ejectment, with notice to appear and defend the suit.
It is referred to the Supreme Court to decide whether such service prevents the abatement of the suit. There can be no doubt of the sufficiency of this service, under the act of 1799, ch. 8, the words of which are that no action of ejectment shall abate by the death of the defendant, but the same may be revived by serving on the guardian within two terms after his decease a copy of the declaration, with notice to appear and defend the suit; and after such service the suit shall stand revived. This is in the case where the heirs are infants, as they are here. Now this service was made within the second term after the death of the defendant, and is consequently within time.
Cited: Love v. Scott, 26 N.C. 80.
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