Opinion
August Term, 1849.
When an administrator or executor, after the delay of nine months allowed by act of Assembly, Rev. St., ch. 46, sec. 25, pleads to an action the want of assets, he has a right to give in evidence a judgment confessed, prior to the time when the plea is pleaded, without regard to the priority of the time in bringing the suits.
APPEAL from the Superior Court of Law of RUTHERFORD, at Fall Term, 1848, Manly, J., presiding.
The question on the trial in this case was upon the defendant's plea of plene administravit. The facts were agreed to be these: The defendants administered 11 December, 1843, and on the same day the plaintiff served a warrant on them in debt on a bond for $83.51, and the justice, at the instance of the defendants, postponed the trial to 11 September, 1844. Upon the trial before the magistrate the defendants insisted on their want of assets, and, thereupon, the suggestion was endorsed on the warrant, and, after a judgment for the debt, interests and costs, the justice returned the warrant to the next County Court, held on the fifth Monday after the fourth Monday of September, 1844, and the defendants pleaded in court fully administered, and judgments confessed on specialties, and no assets ultra. The defendants in fact received assets to the value of $3,852.44; but, including the expenses of the administration, disbursed the sum of $4,129.29 in discharge of judgments on bonds rendered by confession prior to September, 1844, in suits brought after 11 December, 1843. Therefore, the court instructed (130) the jury to find for the defendants on the plea of plene administravit; and from the judgment the plaintiff appealed.
Gaither and Guion for plaintiff.
Bynum and Baxter for defendants.
It was agreed for the plaintiff that the administrators' confession of judgments, in suits brought after that of the plaintiff, is in effect the same thing as making voluntary payments to one creditor after suit brought by another, and therefore that it ought not to be allowed. But it is perfectly settled that the executor has the right to make that preference before he pleads. Anonymous, 2 N.C. 295; Grier v. Comb, 1 N.C. 91. The reason why the executor should be enabled to do so is well explained by Lord Ellenborough in Tollput v. Wells, 1 Maul. and Selw., 395, and both the rule and reason were approved by this Court in Hall v. Gulley, 26 N.C. 345. It might, perhaps, have been doubted whether the court ought to give leave to an executor to delay pleading, in order to give him time to appropriate the assets, so that he could plead safely; or whether the leave thus given should have the effect of working prejudice to a creditor first suing. But the practice on that point seems to be settled in England, and, at all events, in this State it is expressly provided by the act of 1828 that an executor may have nine months to plead, and that, then, he may have any plea, relative to the assets, which could be pleaded had the suit been instituted at that time. Rev. St., ch. 46, sec. 25. Therefore, it is clear that the plea in this case does not, under the statute, relate to the commencement of the suit, or any other point of time prior to that at which the executor is bound to plead, after the expiration of the nine months. In this case the defendants had at the time of plea paid more on the debts of the intestate and the necessary expenses than the whole amount of assets; and therefore the directions to (131) the jury were right.
PER CURIAM. Judgment accordingly.
Cited: Terry v. Vest, 33 N.C. 66.