#### WILLIAM J. McKAY vs. DAVID F. FLOWERS.

Notes taken by an executor for tlie sale of slaves, sold to pay debts, are not assets until they are due and collected.

As, where an executor, under an order of Court, sold slaves on a credit of six months, and having been sued by a creditor, took time to plead under the Act, and at the time of plea pleaded, the said notes were not due or any part thereof received: — Held that the plea of no assets ” was by these facts sustained.

This was an action of debt upon the bond of the defendant’s testator, tried before Dick, Judge, at Brunswick, on the last Spring Circuit, and the issues were submitted to the jury upon the pleas of “ no assets — fully administered, generally and specially — debts of higher dignity — former judgments — no assets ultra.” The defendant had, under an order of the County Court, sold the slaves of his testator, and upon the plaintiff’s bringing this suit, had taken time, under the Act of Assembly, to plead. At the time of putting in his pleas, the notes for the sale of the said slaves were not due, nor any part of them received by him ; and the principal question was, whether these notes were assets in his hands. His Honor was of opinion that none of the pleas were sustained by the facts ; and there having been a verdict and judgment for the plaintiff, the defendant appealed. The facts of the case are fully stated in the opinion delivered by this Court.

*212 Troy, for the defendant, argued

1. That an. Executor is not chargeable with choses in action, until he has received the money or been guilty of laches, (2 Williams on Exrs. 1022-3, Jenkins et ux. v. Plume, 1 Salk. 207, Norden v. Levit, 2 Lev. 189, Ram. on Assets 503.)

2. If executor sells personal property on a credit, and takes bonds according to our statute, and is sued and pleads plane ad-ministravit and no assets — after the sale, and before the bonds are due, he is not guilty of a devastavit, and the plaintiff cannot recover. (Rev. Stat. ch. 46, sec. 11, Ch'egory v. Hooker'’s Adm., 2 Car. L. Repos. 116, Eurev. Eure, 3 Dev. 206.)

Strange, with whom was D. Reid, contra, argued

1. The time was too long before the sale of slaves ; testator died before or early in October,-1848, and the defendant then, as executor, sold the perishable property in October. The County Court of Brunswick sat on the 1st Monday in December, when he might have obtained an order for sale of slaves; and had he done so, the sale notes would have been due before defendant pleaded ; but he chose to wait till March, 1849.

2. Besides, the Act of Assembly gives him nine months in which to plead, and if from any accident he finds that insufficient, the Court will grant him longer time.

3. The Judge was right in holding that none of the defendant’s pleas were sustained ; for the only plea to which the evidence applied, was the plea of plene administravit. Now that plea denies that the defendant has any assets, or ever had since the death of his intestate, which has not been administered. (2 Saunders Plead. & Evi.’lO, 511.)

4. But the Act of Assembly, (Rev. Stat. ch. 46, sec. 11,) authorizes the sale and exempts him from liability thereupon, until the time at which the notes become due, when the fund on scire facias shall be bound for judgments previously rendered. But this must be shown by plea, (Gregory v. Hooker’s Adm., N. C. Law Rep. 116); otherwise how is the Court to know that the sale has been made 1 and how can the plaintiff know whether he ought to take issue, or admit the defendant’s plea, and take his judgment quando9

*213Pearson, J.

In September, 1848, the testator died, leaving the defendant his executor. In October, 1848, the defendant sold perishable property to the amount of six hundred dollars (before he qualified.) He proved the will and qualified in December, 1848, and sold land to the amount of six hundred dollars in January, 1849, under a power given by the will. In March, 1849, he obtained" an order of the County Court to sell the slaves, and made a sale of the slaves on the 31st of that month, upon a credit of six months. The plaintiff commenced his action in May, 1849. The defendant took time to plead under the statute, and in September, 1849, he pleaded “ fully administered generally and specially — no assets — former judgments — debts of higher dignity — and no assets ultra-.” — and the question was, whether the issue upon his pleas should be found against him, because of the notes which he held for the proceeds of sale of the slaves, which were not due at the time of the plea pleaded; and whether the plaintiff was entitled to more than a judgment guando. His Honor was of opinion u that whatever might have been the consequence, if the defendant had pleaded specially the sale of the slaves on credit under the Act of Assembly, that none of his pleas were sustained by th e facte. ’ ’

There is error — Rev. Statutes, ch. 46, sec. 11 — “where the estate of a deceased person shall be so far indebted that the debts cannot be discharged by the money on hand, or by the sale of the perishable commodities,” the executor is to obtain an order of the County Court and sell the slaves on a credit of six months, taking bond and security ; and the money, “ when received shall be. liable for the satisfaction of judgments previously obtained, and entered up as judgments when assets should come to hand.” The executor is required to sell on a credit, and the right of a creditor to charge him with the value of the slaves, as assets in hand, is excluded by the provision that the amount of the sale notes, when received, shall be liable to judgments guando, previously entered.

How far a question would be varied, if an executor was guilty of laches in not selling the slaves in a reasonable time, is a matter not now before us; for in this case there was no laches — the executor obtained the order of sale at the first Court after he quali*214fied, and sold as soon thereafter as he couldnnake advertisement.

We can see no necessity for a “ special plea,” because the statute evidently intends that the sale notes shall not be considered assets until they are collected, unless the executor or administrator is guilty of laches in not collecting ; and the issue is tendered by the plea of “ no assets in hand, or debts of higher dignity, and no assets ultra” whereupon the- plaintiff may .join issue, or may take a judgment when assets come to hand — which he ought to have done in this case.

Per Curiam. Judgment reversed, and venire de novo awarded.