The question upon the case agreed depends simply upon the operation of the act of 1829, on the plea ofplene administravit. It enacts that the claim of a surety who pays the debt shall have the same priority against the assets in the hands of the principal's executor as belonged to the demand of the creditor, which was thus discharged. Rev. St., ch. 113, sec. 4. The whole effect of that is to keep up the dignity of the debt, though paid, for the benefit of the surety, as it was in the hands of the original creditor. Chaffin v. Hanes, 15 N.C. 103. This debt was due by note, and it never attained a higher dignity against the principal or his administrator. Until the administrator was sued he could apply the assets to any other note or bond. After the suit brought and discontinued, he had the like liberty; for the case was then the same as if no suit had been brought. When sued on other specialties, the administrator could not defend the actions by pleading the former suit on this note, for it no longer bound the assets, and the pleas in the subsequent suits must state the assets truly at the time of the pleas. Clearly, then, as the administrator could not resist the recoveries of the other bond creditors, he would (57) not have been liable to Harper for the assets applied to their discharge, had he brought a second suit on the note after those recoveries. The same rule is applied by the statute to the debt in the hands of the surety for whose benefit the dignity of the debt, acquired in the hands of the creditor, is retained, but is raised no higher. Upon these grounds I concur with my brother Nash, that the defendant was entitled, upon the case agreed, to judgment on his plea of fully administered.
For the reasons given by him, I am also of opinion it was erroneous, without a prayer to that effect, to give judgment in such a form as to compel the plaintiff to go against the lands descended; and that, to that extent, the judgment must be reversed, so as to let in the plaintiff to take that judgment or one quando, at his election. And to enable him to proceed on either of those judgments the more conveniently, the case must be remitted to the Superior Court, so that the judgment may be entered there, in order that the scire facias on it may issue from that court instead of this.
PEARSON, J. I concur in this opinion.
PER CURIAM. Remitted to the court below. *Page 50
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