
    
      Gregory v. Hooker's Adm'r.
    
    THE following pleas were entered at August session of Halifax County Court, 1810, viz. “Fully administered, no assets, judgments, bonds, &c. no assets ultra, property sold under act of Assembly and the money not yet due.” At April term of the Superior Court, the defendant moved for leave to add, as a plea, “Since the sale continuance, the sale of the residue of the property, under the act of Assembly,” founded on an affidavit, which stated in substance, that he administered at February sessions, and in the following sessions, having notice of debts due from the estate, sold some of it according to the act of Assembly; and that afterwards having notice of more debts, he did, before November sessions, sell the residue of the property, of which his Counsel was informed, and was also requested to plead every thing necessary for his defence as an administrator. That at the preceding May sessions, the writ was served on him, and at August following, his Counsel entered the pleas then necessary for his defence, but omitted to plead at the following November sessions, the sale of the residue.
   Hall J.

delivered the opinion of the Court:

It may be a hard case on the defendant, if he shall have the plaintiff’s debt to pay out of his own pocket; but I think that the truth of the plea of plene administravit, in point of time, must be tested when process is served, or when pleaded; that, after that time, the defendant is not at liberty to dispose of the property, under the acts of Assembly alluded to in the affidavit, although it was proper to do so before. Those acts of Assembly did not intend to deprive a creditor of the lien, which the commencement of an action might give him, on the goods of the deceased. He can only sell before that lien attaches. I therefore think the plea ought not to be entered, as prayed for.  