From Halifax.
1. Where the plaintiff fixes the defendant with assets for a part of his claim, he recovers that amount of assets and all costs, and is entitled to judgment quando for the residue.
2. If judgment quando is not entered up at the trial term, it may be afterwards, nunc pro tunc, if the third persons be not injured by it.
The plaintiff, according to a previous notice, moved (443) at Spring Term, 1827, for judgment quando, to be entered nunc pro tunc. This was opposed by the defendant, but was allowed by his Honor, Judge Ruffin; whereupon the defendant appealed.
TAYLOR, C. J.
The principles of pleading at common law do not authorize a judgment quando against an administrator where issue is taken on the plea of plene administravit and it is found in his favor. The defendant is then out of court, and the plaintiff is forever concluded. The rule established in Mary Shipley's case, 8 Rep., 134 b., that upon such a plea the plaintiff may immediately take judgment of asset quando continues to be the law at this day; and the form of replication to such a plea shows that the plaintiff must admit the truth of it to entitle him to such a judgment. 2 Chitty, 613. If he takes issue upon the plea he is bound to prove that the executor has some assets in his hands, and, having done so, he is then entitled to a like judgment for the residue of the debt which there are not present assets to pay. It is on this ground that the plaintiff was entitled in this case to a judgment quando, and as it was omitted at the term of trial, and it does not appear that there are any third persons likely to be injured by the amendment, it is reasonable and just that it now be made. The case of Mara v. Quin, 6 Term, 1, furnishes an example of a judgment being amended so as to attach upon the assets received between the time of suing out the writ and the judgment.
PER CURIAM. Judgment affirmed.
Approved: Brady v. Beason, 28 N.C. 425.