
    
      Gregory v. Hooker's administrator.
    
    This is an action on the case, on an open and unliquidated account. The writ issued 28th of May, 1810. At August term following, the defendant, by his attorney, entered the following pleas: “ Gen. issue, set off, stat. lim. fully administered, no assets, judgments and bonds, &c. no assets ultra, property sold under act of assembly, money not yet due." The plaintiff in order to shew assets in the hands of defendant, introduced an account of sales returned by the administrator into the county court, which sales were made on the 1st day of May, 1810, under an order of the county court, to the amount of £ 182
    Money received by administrator in possession of deceased 32 10
    She also proved that, after plea pleaded, the administrator sold property of the deceased, on the 1st of September following, to the amount of 377 6
    That the deceased being a Physician and in partnership with Dr. Haywood of Tarborough, was, at the time of his death, entitled to one-third part of the bonds, notes and accounts of said firm. That Dr. Haywood was surviving partner, who placed these notes and accounts in the hands of Trustees for collection, and that the defendant agreed to receive one-third of these notes and accounts in discharge of his claim as administrator against said Haywood, in the month of February preceding the issuing of this writ, and by him received on the 31st of May, 1810, but received no part of the money arising from said collection, until November thereafter, to the amount of 375 £ 966 16
    And the witness thought these notes and accounts good, except as to fifty dollars. It further appeared that the money arising from the first sale, was not received by administrator until after plea pleaded, as well as the amount of the money arising from the notes and accounts aforesaid.
    
      The defendant, to shew his disbursements or application of assets, proved that three several writs sued out in June, 1810, on bonds due from the intestate, were prosecuted to judgments, subject to such assets as should come to his hands after the date of said judgments, to the amount of £ 531 15
    That the intestate was, by a division made by commissioners of his father’s estate, indebted to the amount of 71 17 which, from a receipt, he paid in March preceding the plaintiff’s action.
    Two judgments, before a justice of the peace, on notes, of hand 38 14 6
    Judgment on a signed account 12
    Account for funeral expences 5
    Fees paid clerk for taking-out administration 1
    Allowance for commissioners 41 12 6
    Retainer for his own account for making a shirt 12 6
    Sawyer’s bond paid 71 17 7
    £ 774 91
    On the above statement of facts, it is submitted to the Supreme Court to decide, whether the above sum of £ 182, arising from the first sale, was or was not assets subject to the plaintiff’s demand, the money arising from said sale not having been received until November after the plea pleaded?
    Whether the agreement of the defendant to receive a third part of the notes, bonds and accounts of the firm of Haywood and Hooker, in discharge of his claim against said firm, in February preceding the plaintiff’s writ, although no part of the money arising therefrom was received until November thereafter, was or was not assets subject to the plaintiff’s demand?
    
    
      If the £182 should not be considered assets liable to the plaintiff’s demand, ought they not to be considered as the assets out of which the debt of £71 17s. and the remainder of the vouchers claimed by defendant ought to be paid, and thereby leave the balance of the assets liable to the demand of the plaintiff?
    The jury found a verdict for the plaintiff for the sum of £ 81 8s. 5d. that the defendant had assets, under the charge and direction of the presiding Judge. Motion for new trial.
    
      Baker, for the plaintiff
    The verdict has been properly found, because the plaintiff obtained the first lien upon the produce of the sales, which ought to be applied to the payment of this debt. The act 1794, Cap. 14, makes it the duty of the administrator to recover and receive the money on such sales, when the time of payment is past, or otherwise he is chargeable for it; and the monies when received shall be liable to the satisfaction of judgments previously obtained.
    The money received from the partnership debts is also liable to the plaintiff’s demand; because the agreement to receive it in discharge of the surviving partner, was made in February preceding the issuing of this writ. It is very clearly laid down, that executors may make monies assets in their hands, without having received them, by making releases, or acquittances, or acknowledgments of satisfaction. This amounts to a receipt and charges the executor 1 Wentw. 70. 2 Wentw. 147. Comyns. Dig. Tit. Adm.
    
    
      Browne, for this defendant.
    The money arising from the sale was not received until after the plea pleaded, and cannot, therefore, upon these pleadings, be made chargeable as assets in the defendant’s hands. 1 Saunders 336. 2 Saunders 216. The general doctrine is not denied, that an administrator may charge himself, without having received the money; but that is where he has a legal right to receive it. The remedy upon these partnership debts survived to Haywood, 
      from whom the defendant might claim his intestate’s proportion of the balance. The defendant acquired only an equitable right to receive the money by the transfer from Haywood The subject then should be considered in the manner that it would be in a court of equity, where it is held, that an executor shall not be held charged with the money by altering the security. 1 Cases in Chanc. 74.
   Taylor, C. J.

delivered the judgment of the court.

The sale was made by the administrator before the commencement of the action, but the proceeds of it were not received by him until after plea pleaded; and the question is, whether such proceeds are liable, as assets, to the plaintiff's demand? If the plea of plene administravit were drawn out at length, it would state “ that he has no goods or chattels which were of the said intestate at the time of his death, in his hands to be administered, nor had at the time of suing out the writ of the plaintiff, nor ever since.”—When issue is taken on this plea, one question presented is, whether the defendant had assets at the time of pleading? To establish which the plaintiff may go into proof of assets received by the defendant after the issuing of the writ, and between that period and the time of entering the plea. But no proof can be given of assets received after the latter period, because they cannot be received in this action. If the plaintiff cannot prove that the defendant had assets at the time of the commencement of the suit, or that assets have come to his hands since then, and before the plea, he may pray a judgment quando acciderint; and in a scire facias on such judgment, the plaintiff may recover such assets coming to the defendant’s hands after the plea, as are not already bound by outstanding judgments. This principle applies to every question which the court are called upon to decide in this case; for none of the several sums claimed were received until after the plea. The bare agreement to receive the bonds and notes from the surviving partner cannot charge the administrator, for he had no right to sue for them, and the probable effect of such agreement was not to waste or diminish the fund out of which the creditors were to receive payment, but to call it sooner into activity. There must be a new trial.  