The plaintiff brought this action on the 27th day of November, 1879, before a justice of the peace in the county of Stanly, upon a note under seal for $15, dated the 18th day of September, 1860, and due twelve months next thereafter, executed by one A. J. Duncan, in his life-time, to J. J. Hasty. It appears that said Duncan died in 1863, and in July of that year the defendant duly qualified as administrator upon his estate. There was judgment before the justice of the peace for the plaintiff, and the defendant appealed to the superior court. The defendant pleaded payment; that he had fully administered the assets that came, and ought to have come into his hands as administrator; no assets; that the note had not been duly presented for payment within the time prescribed by law, and that more than seven years had elapsed next after the death of his intestate and before the date of the bringing of this action.
The jury found upon issues submitted to them, that the intestate of the defendant did execute the bond sued upon as alleged; *Page 417 that it had not been paid; that defendant did not give notice for creditors to present their claims to him according to law; and that more than seven years had elapsed next after the date of the death of the intestate of the defendant and the bringing of this action.
Thereupon, the plaintiff moved for judgment in his favor. The court refused to grant this motion, upon the ground that there had been no evidence offered upon the plea of "fully administered and no assets."
The plaintiff then prayed the court that an issue upon that plea be submitted to another jury. This motion the court declined to grant. The plaintiff then prayed that the court make a proper order referring it to the clerk of the court to inquire, state an account, and make report of the condition of the assets that came and ought to have come into the hands of the defendant, and what disposition he had made of the same. This motion was likewise refused.
The defendant prayed judgment of the court, that he go without day, and for costs, upon the ground that it appeared that more than seven years had elapsed next after the death of the intestate of defendant and the bringing of this action. The court, being of opinion that the defendant had not shown on his part a full and sufficient compliance with the statute, declined to grant this motion.
The court then gave judgment in favor of the plaintiff for the debt, and in favor of the defendant for costs. Whereupon, both the plaintiff and defendant appealed. Plaintiff's Appeal — The estate in the hands of the defendant was and is subject to the statutes touching the administration of estates of intestate *Page 418 deceased persons, prevailing before the first day of July, 1869, except as to the courts having jurisdiction of such matters. THE CODE, § 1433. The plaintiff was entitled to have his rights ascertained and settled in respect to the assets in the hands of the defendant subject to be applied to the payment of his debt, or otherwise, under these statutes, and according to the course of procedure and practice under them, changed only in respect to the courts having jurisdiction of them and the forms of procedure therein.
The court held properly, that the statute of limitations pleaded and relied upon by the defendant could not avail him. (See opinion on defendants appeal in this case).
Then it seems to us manifest that the court, having given judgment in favor of the plaintiff for his debt, ought to have disposed of the plea of "fully administered and no assets." In the case settled by the judge upon appeal for this court, it is said * * * "the plaintiff asked for judgment, which was refused, upon the ground that there had been no evidence upon the plea of "fully administered and no assets." It is further said, however, that "the plaintiff then asked that an issue be made upon that point and submitted to another jury, which was refused. He then asked that a reference be made to the clerk or other person to report the condition of the assets, c. This was likewise refused." No reason is assigned for such refusal. The issue as to "fully administered and no assets" was raised by the pleadings, and the plaintiff was entitled to have it tried, at the term when the court gave judgment for the debt, by reference or otherwise; or, at all events, to have his motion allowed, and then continued to a subsequent term to be tried. Heilig v. Foard, 64 N.C. 710; Ray v. Patton,86 N.C. 386.
The court erred in refusing to dispose of the plea of "fully administered and no assets," as prayed for by the plaintiff, either by submitting one or more proper issues to a jury, or by a reference to take an account. For this error the case must be remanded, with directions that the court proceed to try the issue *Page 419 raised by the pleadings in respect to assets, according to law. It is accordingly so ordered. Let this be certified.
PER CURIAM. Cause remanded.
IN SAME CASE UPON DEFENDANT'S APPEAL:
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