#### WILLIAM W. TERRY vs. JOHN P. VEST, ADM’R, &c.

An administrator is protected by judgments, rendered against him within the nine months allowed him to plead, though in suits after that in which he pleads them.

An administrator, who establishes his plea of fully administered is entitled, of course, under our Statute, to his costs; and the plaintiff, though he take a judgment quando, cannot have a judgment against the surety in the administrator’s appeal bond, the case having been tried upon appeal.

The cases of Bryan y. Miller, 10 Ired. 120, Welborn v. Gordon, 1 Murph. 502and Battley. Rorlee, 1 Dev. 228, cited and approved.

Appeal from the Superior Court of Law of Forsyth County, at the Spring Term 1850, His Honor, Judge Bat» tle, presiding.

The defendant administered on the estate of the intestate at December term 1848 of the County Court; and on the second of January 1849 the present warrant was brought in debt on a bond of the intestate for @81 13 and returned before a justice of the peace. The defendant appeared before the magistrate and alleged his want of assets to pay any part of the debt, and prayed that the trial should be postponed to some day after the expiration of nine months from the administration taken. But the magistrate refused the postponement, and gave an immediate and absolute judgment for the debt, interest, and costs; and the defendant thereupon appealed to the County Court. Upon the filing of the appeal the defendant moved to quash the judgment on the ground of the magistrate’s refusal to postpone the trial. The Court refused the motion, but allowed the defendant time until September term 1849 to plead in respect of the assets. At that *66term he accordingly pleaded plane administravib, no assets, and prior judgment. After a decision in the County Court, the plaintiff appealed, and on the trial in the Superior Court the defendant offered to prove, that he had applied all the assets to the satisfaction oí judgments obtained against him prior to September 1849 in suits brought after January of that year. The plaintiff objected to the evidence, but the Court received it, and the jury found, that the defendant bad fully administered. Thereupon the piaintiffsigned a judgment quando, for the debt; and he also moved for judgment therefor against the surety for •the appeal from the judgment of the magistrate. But the Court refused the latter motion, and gave judgment against the plaintiff for the defendant’s costs ; and there» «pon the plaintiffappeaJed.

■Morehead, for the plaintiff.

Iredell, for the defendant.

Ruífin. C.J.

The course of the justice of the peace -was directly in opposition to the aot of 182S, and therefore erroneous. The postponement of the trial of a warrant, brought before the expiration of nine months from the -administration, is not in the discretion of the magistrate, 'but it is made peremptorily his duty ; that is, if required 'by the administrator, for whose benefit the act was passed. But it is not material now to consider that matter, since the administrator had in the County Court the benefit of the delay in pleading until the end of the nine months, and the question is as to the effect of his plea, As to that point the recent ease of Bryan v. Miller, 10 Ired. 129 is decisive, as it establishes as the necessary construction of the statute, that the administrator is protected by judgments rendered against him within the nine months, though in suits after that in which he pleads them.

*67As the administrator established bis plea ofplene ad-:ministravit, be was, of course, entitled under the act of 1777 to bis costs. Welbom v. Gordon 1 Murph. 502. That rule is not altered by the statute, which allows a plaintiff, contrary to the common law, to sign judgment quando after issue joined on plene admmistrami ant? found against the plaintiff;, as was expressly held in Battle v. Rorke 1 Dev. 228.

It follows necessarily from those positions, that the plaintiff could not have judgment against the surety for the appeal, for, it is impossible there should fee judgment against the surety, when in the same record the judgment is for the principal. If the original judgment had been against the intestate and he had appealed and died, and the cause been revived against the administrator, then the surety would have heen liable for the debt formed' and. the costs; for, supposing that the administrator could therein put the question of assets in issue and it were found for him, such finding would not cover the whole obligation of the surety, who undertook for the ability of the debtor to pay the debt, if any should fee adjudged. But when the administrator appeals, the- very question may be, and generally is, whether he hath assets; and ii that be found for him, it entitles him to judgment, that the plaintiff take nothing by his writ 5 and that covers the entire undertaking of the surety for his principal, the administrator.

It is considered, therefore, that the decisions were right on each point, and the judgment is affirmed.

Pee Cueiaus, Judgment affirmed-