Under our act (Rev. Stat., c. 46, s. 23), allowing executors and administrators nine 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 this act.
DANIEL, J.
It is admitted by the defendants' counsel that, at common law, an executor, after he is sued and has notice of the writ, cannot be allowed, under the plea of plene administravit, to give in evidence a voluntary payment, without suit, of a debt of equal or inferior dignity to that sued on; Williams Ex., 679, 1213, 1214. By the statute (Rev. Stat., ch. 46, sec. 23), "no executor or administrator shall be compelled to plead to any original suit brought against him in any Court, until the expiration 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 had expired, he must 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 understandingly. The act does not alter the rules of the common law, in any other particular that we are aware of.
PER CURIAM. Affirmed.
Cited: Hall v. Gully, 26 N.C. 347.
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