#### Alston vs. Sumner's heirs.

AFTER much argument} the court delivered its opinion as. follows;—

This is a sci.fa, taken out against the heirs of Sumner, after a plea of fully administered, found in the original action of the administrator. The heir, at the last term, pleaded assets in the bands of the administrator, and a sci.fa. therefore, issued to bring in the administrator. I am of opinion the administrator is continued in the court till the heir comes in, and that no such sci.fa, was necessary ; but the plaintiff, at the last term, should have applied to the court to direct an issue to be made up between the administrator and heirs; which, when made up, would have stood for trial at this term. The executor is not compelled to try the issue at the same term it is made up; for he, Hice others, should have time to procure the attendance of his witnesses. As such collateral issue was not made up ,at the last term between the heir and administrator, let it be now made up, and the cause stand over till the next term for trial.

The issue was made up accordingly,