Osterhout v. Hardenbergh

Per Curiam. There appears to have been some diversity in the decisions, whether the plaintiff, under these circumstances, is entitled to judgment for assets, quando acciderint, and, also, whether upon such a state of pleadings, he is entitled to costs. We are of opinion, that the plaintiff is entitled to judgment for assets, quando, &c. It has been conclusively ascertained by verdict, that the testator was indebted to the plaintiff to the amount found by the jury; and, notwithstanding that it is also found, that the defendant has fully administered, he may, in the course of administration, acquire assets in future. The verdict is conclusive, that the defendant has not present assets, but it is not conclusive that he may not hereafter have assets ; and the indebtedness of the testator having been established, the plaintiff will be entitled to have his debt satisfied, should the defendant hereafter acquire assets. In Hindsley v. Russell, Executor, (12 East, 231.) under an analogous state of facts, the Court of King’s Bench said, that the plaintiff was, at all events, entitled to judgment of assets, quando, &c. With respect to the other part of the motion, that the plaintiff pave judgment for his costs, there is more difficulty. In the case of Hindsley v. Russell, the Court decided, that the plaintiff was entitled to the general costs of the trial; but whether de bonis testatoris, et si non, de bonis propriis, or de bonis testatoris only, the case is silent. The pleas here are not false pleas; such pleas are those that will be a perpetual bar to the plaintiff, and which the defendant, of his own knowledge, knows to be false ; and, as was well observed by the counsel in the case of Hindsley v. Russell, the plea of non issumpsit did not impose upon the plaintiff any additional burden; for, on the plea of plena admirvistravit, the plaintiff would be obliged to prove the amount of his debt. This issue, then, has been found substantially for the defendant, 268 and he ought not to be subjected to costs out of his own pggjjg^ when be is in no default. The plaintiff must have judgment for his debt, quando, &c. and costs de bonis testatoris only, and the defendant must have judgment for the costs of his defence against the plaintiff.