Opinion
(Spring Riding, 1801.)
Where an administrator was sued to the same term on a simple contract, and on a debt due by specialty, and to the simple contract pleaded plene administravit, and afterwards confessed judgment to the speciality creditor, he was permitted at a subsequent term to add, in the suit on simple contract, a plea of judgment confessed and no assets ultra.
WOOLFORD, immediately after the death of the intestate, sued his administrator upon a simple contract debt; a specialty creditor also sued, and both writs were returned to the same term. The administrator pleaded to Woolford's action, plene administravit, and afterwards, at a subsequent term, confessed judgment to the specialty creditor for £ 1,000, and at a subsequent term he moved for leave to add (133) the plea of the judgment and no assets ultra. This was opposed in the county court, and leave was given by the court, and thereupon an appeal taken to this Court.
Haywood argued that the plea ought not to be allowed.
Baker e contra. The reason of the equity cases is because the executor would not defend himself when he might. The court in such a case as the present would say to him, "Why did you not move for leave to amend the pleadings?"
The plea was properly received. I ground my opinion upon several cases in Wilson's Reports which establish the rule that pleadings may be amended to attain the justice of the case.
NOTE. — See contra Cutlar v. Cutlar, post, 155; Churchill v. Howard, post, 335; Grier v. Comb, 1 N.C. 91. But see Teasdale v. Branton, post, 281.