Noth. — The plea of the repeal of the letters would come as a plea puis darrein continuance, anti therefore not allowable, except plead at the proper time. See Chit. Plead. 636. Whether the act of one administrator is binding upon the others, see Mangum’s adm'rs. v. Sims, 1 Car. Law Rep. 547.—Gordon v. Finlay, 3 Hawks, 239.—Toller on Ex'rs. 403.
Samuel Bailey's Adm'rs v. Robt. Cochran's Adm'r, 2 N.C. 120, 1 Hayw. 120 (1794)
Sept. 1794
·
North Carolina Superior Court
2 N.C. 120, 1 Hayw. 120
SALISBURY,
SEPTEMBER TERM, 1794.
Samuel Bailey’s Adm’rs. v. Robt. Cochran’s Adm’r.
Former administrators removed, and another appointed, but not made ; a party to this suit. The latter administrator will not be allowed to plead any thing to this suit $ and the former administrators cannot plead the repeal of their letters, after the first term since their repeal. An account settled and signed by one adminístralo]' is binding upon all, and will bear interest from the time it was signed.
In this case it was moved on the part of the Defendant, that he might be at liberty to plead puis darrein con.-*121tínuance ; that a judgment had been obtained at the last term of this Court against the administrators of Cock-ran, for a sum which was more than sufficient to exhaust all the assets. It was objected on (he part of the Plaintiff, that this suit was brought against two persons, who at that time were the administrators, but who long since had been removed by the County Court of Cumberland, and. the present administrator appointed in their stead, but,.th(at this suit was never against the latter adminis-tvtfm*; and that this matter which is now sought to be pleaded, had never been pleaded by the former administrators ; and that as the present administrator was not any party to this suit, he could not plead the plea moved for. Et per curiam — This latter administrator cannot plead any thing to (ha suit: and as to the former administrators, they cannot now plead the repeal of their letters of administration, they should have done so at the. first term after the repeal ,• but. several terms of this Court have intervened since the repeal, and they now-come too late.
The Plaintiff produced an account stated and signed by one of the former administrators, and insisted that by act 1786, ch. 4, see. 3, he was entitled to interest on the balance of the'account from the time of its being signed j and to this, upon argument, the Court assented, saying the act of one shall bind both. And the Plaintiff had a verdict accordingly.