White v. Arrington's Ex'ors, 25 N.C. 166, 3 Ired. 166 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 166, 3 Ired. 166

THOMAS WHITE vs. RICHARD ARRINGTON’S EX’ORS.

December 1842.

Under oar act, (Rey. Stat. c. 46, s. 23,) allowing executors and administrators «ine months before they are required to plead, they can no more avail themselves, under the plea of plene administravit, of a voluntary payment of'a debt after notice of a writ sued out, than they could before the passage of that act.

Appeal from the Superior Court of Law of Nash county, at Spring Term, 1842, his Honor Judge Settle presiding. ■

The following facts were admitted by the parties as constituting a case agreed for the opinion of the court. The writ of the plaintiff was issued on the 14th of February, 1839, and executed on the 7th of March, returnable to the May Term of Nash County Court. At the return term the defendants craved the benefit of the act allowing time to executors and administrators to plead, and were allowed until the November Term of the said court following, at which term the defendants entered theii pleas, admitting the voluntary payment of debts of equal dignity with the plaintiff’s, after the service of the writ, but before the November Term to which they had been allowed time to plead. It was admitted by the plaintiff, that if the voluntary payments thus made by the defendants, after the service of his writ and before plea pleaded, were good in law, then the defendants had fully administered, and judgment should be entered in their favor accordingly. So it was admitted by defendants, that if their payments after notice of the plaintiff’s debt but before plea pleaded should be deemed in law as not good, then they had assets, and judgment was to be entered for the plaintiff for the sum of $115 08, the principal of the note declared on, together with the interest thereon, irom the 15th of May, 1838, and costs.,

His Honor, being of opinion that the payments made by the defendants after the service of the plaintiff’s writ, and with notice of his debt, were not good in law, gave judgment for the plaintiff. From this judgment the defendants appealed to the Supreme Court.

Saunders for the plaintiff.

B. F. Moore for the defendants.

Daniel, J.

It is admitted by the defendants’ counsel, that, at common law, an exeeutor, after he is sued and has notice of the writ, cannot be allowed, under the plea of pie-ne administravit, to give in evidence a voluntary payment, without suit, of a debt of equal or inferior dignity to that sued ou; Williams Ex. 679, 1213, 1214. By the statute, (Rev. Stat. c. 46, s. 23,) “no executor or administrator shall be compelled to plead to any original suit brought against him in any court, until the expiiation of nine calendar months from and after his taking upon himself the office of executor or administrator.” At the first term, after the time given him by the act has expired, be most plead, or the plaintiff may take judgment by default against him. The act was only intended to give to executors and administrators an opportunity to learn the amount and nature of the debts, and also the amount of the assets, so as to enable them to act and plead understanding^. The act does not alter the rules of the common law, in any other particular thui, we are aware of. The judgment must be affirmed.

Per Curiam. Judgment affirmed.