Bryan v. . Miller , 32 N.C. 129 ( 1849 )

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.