
    James M’Dowall v. Richard Branham, Sophonisba E. M. Branham, his Wife, surviving Adm’x. of Edward Wingate.
    A took a judgment of assets, guando acciderint, against an administratrix; and after said judgment, certain property which was claimed by the administratrix in her own right, which was not mentioned in the appraisement of the intestate’s estate, nor stated in the account of the administratrix rendered to the Ordinary, was declared by the Constitutional Court liable to the intestate’s ‘ -* debts. A then commenced an action of debt on his judgment: — Held, that the property, decided by the Constitutional Court to be liable to the payment of the intestate’s effects, having been in the possession of the adminis-tratrix before the judgment of assets guando acciderint, could not be considered as assets, came to the hands of the administratrix since the former judgment, and, therefore, not liable to the plaintiff’s judgment.
    This was an action of debt on judgment of assets, guando acciderint, against Sophonisba E. M. Wingate, now Branham, and Joseph Wingate, administrator and administratrix of Edward Wingate, deceased, taken and signed upon the 26th April, 1810, upon a note given by Edward Wingate, deceased, after his intermarriage with Sophonisba E. M. Wingate, dated the 27th of February, 1807. The negroes, Hannah, Bob, Bam, John, Rachel, Paul, and Nancy, (children of Hannah,) Mahata and Jack, came by or belonged to Sophonisba E. M. Wingate, and were in the possession of Edward Wingate, deceased, from the time of his intermarriage with Sophonisba E. M. until his death, and remained in the possession of Sophonisba E. M., from the death of her husband, Edward Wingate, until her intermarriage with Richard Branham, and have been ever since, and are now, in the possession of the defendants. But said negroes were included in a man'iage contract between Edward Wingate and Sophonisba E. M. made before their intermarriage, and dated the 27th April, 18U5, and were neither mentioned in the appraisement of Edward Wingate’s estate, nor stated in the accounts his administrators rendered to the Ordinary, as they were claimed by Sophonisba E. M. as her separate estate, by virtue of said marriage contract.
    On the 2d of December, 1814, the Constitutional Court, in the case of Boat-wright and Gaze v. The Administrators of Edward Wingate,
      
       declared said marriage contract void as to the creditors of Edward Wingate, deceased, and liable to the payment of his debts.
    It was contended, upon the trial, on the part of the plaintiff, that said ne-41l-,-groes were to be considered as ^assets come to the hands of the administrators of Edward Wingate, deceased, and liable to the payment of said debts, at and from the time of said decision. But the presiding Judge (Mr. Justice Gantt,) charged to the contrary, and in conformity with said charge, the jury found a verdict for defendants.
    The plaintiff moved the Constitutional Court for a new trial, upon the ground: That the presiding judge misdirected the jury, whose verdict was contrary to law and the above-mentioned evidence, inasmuch as said negroes were assets come to the hands of Edward Wingate’s administrators, and liable to the payment of said debts, at and from the period of said decision, notwithstanding judgment of assets, guando acciderint, had been taken.
    
      
       2 Tread. 521; 3 Brev. 423.
    
   The opinion of the Court was delivered by

G-antt, J.

The facts in this case are admitted by the counsel, and the law of the case, in my opinion, is very clear and conclusive, that the negroes in question are not liable to the plaintiff’s demand. Much reliance has been placed upon the decision of the Constitutional Court, in the case of Boatwright and Glaze v. The Administrators of Edward Wingate, but it can have no possible bearing on the present action. This action is founded on a judgment heretofore rendered, and any recovery in it must be according to the terms of that judgment; now the terms of it are, that the plaintiff was to have satisfaction for his debt, out of assets of the intestate, which should come to the hands of the administrators after that judgment, and it is admitted, in the case stated, that those ne-groes were in the hands of the administrators when the judgment was given. Why did not M’Dowall, the plaintiff, contest the truth of the plea, knowing, as he must have done, that those negroes were in the hands of the administrators ? This was the course pursued by Boat-wright and Glaze; they took issue on the plea of plene administravit, and the property embraced *by the marriage contract alluded to, was held liable to the debts of the intestate. If the verdict of the L jury had been against them on the issue, and no appeal had been taken, they then would, in point of law, have been precisely in the situation of M’Dowall, the plaintiff, respecting the property in the marriage contract. The plaintiff in this action, by taking his judgment of future assets, has admitted the facts, that the property contained in the marriage contract was not liable for his debts ; and what a party admits in pleading is as conclusive of the fact admitted as if it had been established by the verdict of a jury. The decision in Taylor v. Holman, (Buller’s N. P. 169,) is a direct authority for the present case. The defendant there had put in the plea of plene administravit. The plaintiff, in that case, like M’Dowall in this, had taken judgment of assets, guando acciderint. The plaintiff then, as M’Dowell here, brought an action on that judgment, suggesting a devastavit. Lord Mansfield would not allow the plaintiff to give any evidence of effects come to the defendant’s hands before the judgment, saying, that the plaintiff had admitted, that the defendant had fully administered to that time. In the case of Mara v. Quinn, (6 Dunford & East, 1,) Lord Chief Justice Kenyon says, “ when an executor pleads plene administravit, the creditor has an opportunity of denying the truth of that allegation, or, if it be true, he may admit it; if he deny it, the inquiry is then to be gone into, on the trial of such an issue; if he admit it, he takes judgment, and prays that his debt may be levied of such assets as may afterwards come to the hands of the executor to be administered. But the season when the creditor must ascertain whether or not, there be any assets in the executor’s hands, is when the issue of plene administravit is tried, that question is settled by the judgment given on such pleaand he further says, “ that such should be the rule of law, for if it were permitted to a creditor to litigate a second time, that which has been once settled between the parties, either by a verdict *or ad- r*c>Tfi mission, the executor would be harassed and involved in infinite *- ‘ expense and litigation.” Mr. Justice Lawrence, in delivering his opinion in the same case, cited the case of Noel v. Nelson, 1 Ventr. 94, and the case of Dorchester v. Webb, Cro. Car. 373, in which it was considered, that the admission of the truth of the plea of plene administravit operated as a bar to the creditor claiming any other assets than those that the executor should receive afterwards.

This principle of law therefore appears to have been firmly established, and founded in correct reason and sound sense. A judgment is the sentence of tlie law pronounced by the Court, upon the matter contained in the record. Every judgment by confession is an admission, both of the fact and the law arising thereon, and it is not competent for a capricious plaintiif, in a second action, to gainsay or deny what he has admitted in a former to be true. Perhaps at the time of taking his judgment he reflected, that the property in question belonged to the administratrix before marriage, and by contract was to have been settled upon her ; that the contracting parties, from ignorance of the law, had, by mistake, recorded the deed of settlement in an improper office, whereby the purpose for which it was made, had been frustrated, and disdaining to take an illiberal advantage against an unfortunate woman, whose support depended upon her being able to retain this little pittance, the generosity of his nature induced him to waive an advantage, which, in strictness of law, he might have taken, but which justice and right seemed to forbid. I wish he had adhered to this correct dictate of a feeling heart. His present attempt to make this property liable for the payment of his debt, is in opposition to an established principle of law, and which I am happy to believe, in this case, goes in support of what is strictly just and equitable. Is is the opinion of the Court, that a new trial should be refused.

Gregg, for the motion. Stark, contra.

Johnson, Richardson and Huger, JJ., concurred.

*Coloook, J.

I concur in the general doctrine of the law, but J I do not think the case embraced in the law.

See 1 MoC. 270.  