
    Pope, admr. of Pope, ads. Delavan and others.
    An administrator is not liable to costs, de bonis propriis, though a pleaofthegeneral issue is found against him, if it was accompanied with a plea of pleno administravit, and that is admitted by the plaintiff
    Motion to vacate judgment, de bonis propriis, for costs against defendant, and to set aside execution. The defendant plead to a declaration in assumpsit for goods sold and delivered to the intestate, the general issue, and plene administravit. The plaintiff confessed the latter plea, and prayed judgment, quando acciderint; went to trial on the general issue, obtained a verdict, and entered judgment for the damages and costs, to be levied of the goods and chattels of the intestate, in the hands of the administrator, if he had sufficient for that purpose, and if not, then the costs of the suit of the proper goods and chattels of the administrator. A motion was made to vacate the latter part of the judgment, and to set aside the execution issued thereon.
    
      8. Stevens, for defendant.
    
      W. Esleeck, for plaintiffs.
   By the Court,

Sutherland, J.

Where an executor or administrator pleads only the general issue, and it is found against him, he is liable to' costs, because the plea is an admission of assets. But when he couples with it the plea of plene administravit, the latter plea repels the admission. In this case, the plaintiff, by taking judgment, quando acciderint, admitted that the defendant had no goods of the intestate; it would, therefore, be unjust to charge him with costs, to be levied of his proper goods. ■

Motion granted, with costs.  