Battle v. . Rorke

Supreme Court of North Carolina

Battle v. . Rorke

12 N.C. 228

DecidedJuly 5, 1827

StatusPublished

This text of 12 N.C. 228 (Battle v. . Rorke) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Battle v. . Rorke, 12 N.C. 228 (N.C. 1827).

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Opinion

Tayeor, C(lief-Justice.

This case depends upon the construction of the act of 1777, concerning costs, and the principles of pleading as applicable to the particular defence relied upon by the administrator. The act provides, that in ail cases whatsoever, the party in whose favor judgment shall be given, shall be entitled to full costs, uuless where it is or may be otherwise directed by *232 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, Jn 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, thpt the Plaintiff is entitled to a judgment quan-do. (Cro. Cur. 373. Comyn’s Pleader 2 D. 9.) It has also been lately decided, in the case of Hogg v. Graham, cited from 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 exceptionto 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 recen ed 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, (1 Mur. 502) to which the practice has since conformed.-1-think the judgment should be affirmed.

Per curiam. Judgment affirmed.

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Tayeor, C(lief-Justice.

This case depends upon the construction of the act of 1777, concerning costs, and the principles of pleading as applicable to the particular defence relied upon by the administrator. The act provides, that in ail cases whatsoever, the party in whose favor judgment shall be given, shall be entitled to full costs, uuless where it is or may be otherwise directed by *232 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, Jn 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, thpt the Plaintiff is entitled to a judgment quan-do. (Cro. Cur. 373. Comyn’s Pleader 2 D. 9.) It has also been lately decided, in the case of Hogg v. Graham, cited from 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 exceptionto 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 recen ed 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, (1 Mur. 502) to which the practice has since conformed.-1-think the judgment should be affirmed.

Per curiam. Judgment affirmed.

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Bluebook (online)

12 N.C. 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/battle-v-rorke-nc-1827.

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