The error assigned was "that the judgment aforesaid, in form aforesaid, was given for the said Jesse Battle against the said John Rorke, but by the judgment aforesaid the said Jesse Battle does not recover his costs and charges, etc."
His Honor, Judge Paxton, on the Spring Circuit of 1826, reversed the judgment and awarded restitution. Whereupon the defendant in error appealed. This case depends upon the construction of the act of 1777, concerning costs, and the principles of pleading as applicable to the particular defense relied upon by the administrator. The act provides that in all cases whatsoever the party in whose favor judgment shall be given shall be entitled *Page 137 to full costs, unless where it is or may be otherwise (232) directed by statute. Was judgment given in favor of the defendant in the original action? No rule of pleading is better settled at common law than if the plaintiff joins issue upon the plea of plene administravit, and it be found against him, the judgment is that he take nothing by his bill. In such case the defendant goes without day, and the plaintiff is concluded from all further proceeding against him. It is only where he confesses the plea to be true, that the plaintiff is entitled to a judgment quando. Cro. Car., 373; Comyn's Pleader, 2 D. 9. It has also been lately decided, in Hogg v.Graham, 4 Taunton, 134, that if upon the pleas of non assumpsit and plene administravit the plaintiff joined issue and omitted to pray judgment of assets quando, the first issue being found for the plaintiff and the second for the defendant, the defendant is entitled to the postea and general costs.
An exception to the rule of praying judgment quando is made by our act of 1794 in those cases where the administrator sells upon a credit and the money has not been received at the time of trial. There it shall be liable to the satisfaction of judgments previously obtained, and entered up as judgments when assets should come to the hands of the executor or administrator. It is necessary, however, in that case, to bring the administrator in again upon a scire facias. As to the question of costs, it was decided in Wellborn v. Gordon, 5 N.C. 502, to which the practice has since conformed. I think the judgment should be affirmed.
PER CURIAM. Judgment affirmed.
Approved: Terry v. Vest, 33 N.C. 65; Lewis v. Johnston, 66 N.C. 38.
Distinguished: Lewis v. Johnston, 69 N.C. 392.
(233)