
    William G. Woolfolk, administrator and executor, plaintiff in error, vs. Joseph Kyle, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Executors and Administrators — Judgment.—A judgment against an executor or administrator, where there is no plea, that the sum recovered “be levied of the goods and chattels, lands and tenements of the testator or intestate,” is sufficient, under section 3515, Revised Code, without adding the words “in the hands of, etc., to be administered.” These last words are not required by said section.
    2. Same — Affidavit of Illegality.' — When the maker and indorser of a promissory note are dead, and the administrator of the maker is also executor of the indorser, and suit is brought on the note against him in both capacities, though the judgment does not specify the relation of maker and indorser, it is good against him, at least, so far as he is the representative of the maker, and if levy be made accordingly, he cannot arrest it on that ground by affidavit of illegality.
    Illegality. Judgment. Indorser. Before Judge Johnson. Muscogee Superior Court. May Term, 1872.
    Kyle brought complaint against William G. Woolfolk as administrator upon the estate of Joseph W. Woolfolk, deceased, and as executor of John Woolfolk, deceased, upon a promissory note made by Joseph W. Woolfolk on January 1st, *1861, for $2,047 92, payable twelve months after date to
    
      J: Kyle & Company, or bearer, and indorsed by John Woolfolk. The jury returned a verdict for the plaintiff for the full amount of the note, with interest and costs. Judgment was entered as follows:
    “Whereupon, it is considered by the Court that the plaintiff do recover of the defendant, W. G. Woolfolk, the sum of $2,047 92, principal debt, and the further sum of $776 47, interest, and the further sum of $14 70, costs of suit in this behalf laid out and expended, the whole to be levied of the goods and chattels, lands and tenements of Joseph W. Woolfolk, deceased, and John Woolfolk, deceased.”
    Execution was issued in accordance with the judgment, and levied upon certain lands as the property of Joseph W. Wool-folk, deceased. To which proceeding William G. Woolfolk, as administrator and executor, interposed an affidavit of illegality, upon the ground that no valid judgment had been rendered in the case, and that the execution issued upon said pretended judgment was null and void.
    When the issue'thus formed was called for trial, counsel for defendant moved that the judgment be quashed, on the grounds stated in the affidavit of illegality. The motion was overruled and the execution ordered to proceed. Whereupon defendant excepted.
    BeandEord & Crawford, for plaintiff in error.
    Peabody & Brannon, for defendant.
    
      
      Executor — Failure to Defend Suit — Judgment—Defense.—“The executor having failed to defend when sued in his representative capacity, the judgment in that case was properly entered up against him de bonis testatoris (Code, § 3573), and was conclusive that he then had in his hands assets of the deceased to be administered. It was therefore too late for him to plead or prove as a defense in the present case, a want of assets existing at the time when the original suit was brought.” Phipps v. Alford, 95 Ga. 217, 22 S. E. Rep. 152, citing principal case; Ency. Dig. Ga. Rep., vol. 5, p. 818.
    
   Trippe, Judge.

Whilst it would have been more in accordance with the usual form to have added to the judgment the words, “in the hands of, etc., to be administered,” yet those words are not required by section 3515 of the Code. It says, that in such a case as this “the judgment must be de bonis testatoris.” The law presumes the assets to be in the hands of the representative, when no plea is filed and judgment is rendered *against him. It is only in cases where a plea of plene administravit is filed and sustained, that it is necessary to specify in the verdict and judgment that the debt shall be levied of the goods and chattels, etc., quando acciderint. In the first case, by the verdict and judgment, the assets are in the hands of the administrator by presumption of law; in the latter, the verdict and judgment show that there are no assets in his hands.

Section 3514 of the Code, requiring the relation of the parties under the contract sued on, where there are sureties or indorsers, to be designated in the judgment, was intended for the benefit of the surety or indorser. If such surety or indorser discharge the judgment, he could have the control of it for his reimbursement out of the maker or principal, without delay in procuring an order of Court. A compliance or noncompliance with this, cannot benefit or injure the principal. In this case, the levy is made on the property of the principal. It can make no difference with him whether the indorser is designated as such or not. Had this been a case of a levy on the property of the indorser, and the point been made by him, it would have presented a different question.

Judgment affirmed.  