
    SPEER ET UX v. VAN HOUTEN ET AL. EXEC. &c.
    In Debt on Rond. Question of Costs.
    If Executors plead the general issue and also plene administravit and plene ad» ministravit preter &c. the plaintiff will be entitled to costs, upon a judgmen' of assets quando acciderint, if the general issue is found in his favor.
    Argued and decided orally, at February Term, 1842.
    Upon the coming in of the postea in this case, E. B. P>. Ogden for the plaintiffs,
    moved for judgment with costs.
    
    
      J. Speer and A. S. Pennington for the defendants
    submitted the question without argument.
   Opinion of the Court, delivered by

Hornblower, C. J.

This was an action on a bond given by the defendants’ testator : the defendants plead, first, non est factum ; second, plene administravit; and third, plene administravit preter &c. Issues were joined on the first two pleas, and on the trial, the general issue was found for the plaintiffs; and the issue on the plea of plene administravit, was found for the defendant. The-plaintiff now moves for the judgment of assets, quando acciderint, on the third plea, and for costs. Upon the case thus stated, I do not see how the defendants can object to the payment of costs: by their first plea they denied the plaintiffs’ right of action, and made it necessary for them to go down for trial. The court could not have given the plaintiffs’ judgment of assets quando aeciderint, while the plea of non est factum was on the record and the issue upon it, undetermined. The case of Hindsley v. Russell, Exec. of Barff, 12 East, 232, although not authority here, is in point, and settled upon correct principles. Judgment ought therefore to be entered for the plaintiffs, with costs.

Judgment with costs.

Cited in Haines v. Price, Spencer 482.  