#### THOMAS J. SANDRIDGE *vs.*JOSEPH SPURGEN, Adm’r. &c.

The Act of Assembly, Rev. St. c. 46, s. 23, allowing to executors and aclndnis-trators nine months from the time they qualify, to plead to any original suit brought against them, does not apply to suits in Equity.

An act of Assembly prescribing rules of practice does not apply to Courts of Equity, unless those courts are named in the act, or the proceedings therein be within the mischief for which the act was meant as a remedy.

In Equity an executor is chargeable with assets, only upon his admission of them, or upon the report of the Master that he has them.

The filing of a bill, or even a decree to account, does not bind the assets, so as to prevent an executor from paying other creditors in equal degree, unless it be a bill in behalf of all creditors and a decree thereon for an account.

The cases of *Mitchell*v *Robards,*2 Dev. Eq. 478, and *Allison*v *Davidson,*1 Dev. & Bat. Eq. 46, cited and approved.

This was an appeal from an interlocutory order of the Court of Equity for Randolph county, at the Fall Term, 1842, his Honor Judge Settle presiding.

The bill was filed in-September, 1842, returnable to the Fall Term, 1842 of Randolph Court of ‘Equity, for the foreclosure of a mortgage of a negro slave, and the process on the bill had been duly served on the defendant as administrator of George Hoover, dec’d. who had given the mortgage. At the return Term, viz. the Fall Term, 1842, the following entries were made on the minutes of the court: “The defendant alleges that letters of administration with the will annexed were granted to him on the estate of his testator, at August Term, 1842, of Randolph County Court, and that he is not bound to plead or answer until nine calendar months from that time. The plaintiff’s counsel contends that the defendant is bound to plead, answer or demur at this Term, and moves for judgment *pro confesso.*His *270Honor, after hearing the counsel both for the plaintiff and the defendant, doth adjudge that the defendant is not bound to plead, answer or demur to the plaintiff’s bill, until after the expiration of nine calendar months from and after his taking upon himself the office of administrator. From this judgment the plaintiff prayed for and obtained an appeal to the Supreme Court, giving bond, &c.”

*jSwaim*for the plaintiff.

It is contended on the part of the plaintiff, that the act of 1828, (Rev. St. ch. 46, sec. 23,) allowing to executors and administrators *nine months*to plead in, does not apply, and was not intended by the Legislature to apply, to proceedings in Equity; but is exclusively confined to the courts of *law.*The term, *Courts of Equity,*is no where used in the .act; nor is the word *answer,*■or auy other expression that necessarily applies to proceedings in Equity. True, where general words in a statute are intended as positive rules to govern the rights of the citizen in his enjoyment, control and transfer of private property, Courts of Equity, no less than those of Law, are positively bound by them •, as in the case of requiring contracts for sale ©f land,&c. to be in writing, according to the act of 1819, which act is understood to be no less imperative on Courts •of Equity than on those of Law. It is well settled, that *Equity follows the Law,*as in our statutes of limitation *;*and in fact in all other cases wherein there necessarily subsists a corresponding analogy between them and cases at law. Without at least a general conformity in the principles and rules of adjudication in Equity to those of Law, there might be great uncertainty in the administration of justice, as like cases would go into different *forums,*for the purpose of avoiding the most wholesome and salutary general rules prescribed by the Legislature. But the rules of practice and steps of procedure in the two courts are so very different, and in fact absolutely independent of each other, that there is, in many, if not in most instances, scarcely a characteristic analogy between them.' Hence, a statute that purports to regulate the proceedings in court, generally, *271whether the term, “Court of Law, Court of Justice, or any *Court,”*as in the present case, is, it is believd, uniformly understood to apply exclusively to Courts of Law, and not extended to Courts of Equity at all, unless they are expressly included in the words of the statute. These not being ordinary courts of common law, (which is the meaning of the term *Court,*in its common acceptation,) but *extraordinary*tribunals of justice, administering relief in their own peculiar way, and according to their own rules, necessarily separate and distinct from those which prevail according to the course of the common law.

In the act of 1828, consisting of some eight or ten sections, of which the one under notice is the fourth, Courts ol Equity are not once named or apparently alluded to. Indeed, no word is any where to be found in the act that *necessarily*or even *ordinarily*connects itself-with the idea of a Court of Equity. Nothing is there said about bills, answers or decrees, or any other process or pleading in Equity; but the subject matter is warrants, suits, pleas, judgments, *sci.fas.,*executions, &c. all strictly *law*terms and law proceedings, and all exclusively *confined*to law proceedings, except the word “ plead,” which, in its largest and most general sense, is common to both courts ; but, as here used, in connection with “ original suit,” without reference to *answers or decrees,*or any other terms familiar to Courts of Equity, we must understand it as applied to the appropriate subject matter alone ; which is aptly set forth in the title of the act: “ An act to amend the law with respect to the collection of debts from the estates of deceased persons.” What law *1*The acts of 1784, (Rev. Code, ch. 236,) 1789, (ch. 311,) 1791, (ch. 352,) 1897, (ch. 716.) These acts taken together, form the law proposed to be amended by that act of 1828, as it is evident from their subject matter and phraseology, as well as their respective titles. The first act, (that of 1784,) is entitled “an act for the collection of debts from the estates of deceased persons,” an'd all the others a-mendatory, expressly referring to it, using the term *suits, suits at law, original stdts,*&c. promiscuously, without seeming to intend any distinction.

*272That a bill for foreclosure is ■ something very different from a procedure to collect a debt from the estate of a deceased person, is evident, since the decision of this court in the case °f *Fleming et al.*v *Sitton,*(1 Dev. & Bat. Eq. R. 21.) The court there observe, “ the debt is never recovered in the Court of Equity on a bill for foreclosure. Debt or no debt, is purely a legal question, and the parties must try it at law. The Court of Equity acts only upon the equitable security, not upon the debt. It makes the pledge absolute, but it cannot decree the independent payment of the money due, over and beyond the value of the pledge.”

The provisions of the several acts of Assembly above mentioned are nearly all retained and re-enacted in the Revised Statutes, forming the body of chapters 46 and 63 ; in one of which, (that of 1807, Rev. St. ch. 63, sec. 6,) *it is*expressly provided that the rights of creditors in Equity, or the rules of decision in Equity, are not changed or in any way affected. But whatever doubts might once have been entertained on this subject, the construction here contended for seems clearly supported by the case of *Jeffreys*v *Yarborough,*1 Dev. Eq. 506. It was there decided, that a *sci. fa.*in Equity against the heirs would not lie, under these acts of Assembly, on a decree against the administrator, stating that lie, (the administrator,) had no assets. And the reason there given is, that in such cases, the remedy in Equity is only auxiliary to the courts of law, to be resorted to, not only in proper and legitimate cases of Equity jurisdiction, but by that mode of proceeding, and that only, which is known to the Courts of Equity. The process and pleadings must be by bill, answer, &c. such proceedings as are wholly unknown to, and forever and invariably kept entirely separate and distinct from the proceedings adapted to, or enacted for the courts of common law.

Although the word *pleadings*in its most general and comprehensive sense, means, as above mentioned, the whole of the altercations that take place between plaintiff and defendant after the return of process and before final judgment at law, or decree in Eqity; and comprehends as well the declaration, the craving of oyer, the imparlance, the dilatory *273pleas in abatement, the demurer, and -the answer, the plea and demurer in Equity, as the plea to the action (property speaking,) and replication, &c. at law. Yet, the words of the act are: i! No executor or admistrator shall be bound or compelled to plead to- any original suit brought against him in any Court,” &c. So that, even in an original suit at law, the Legislature may have intended to extend this indulgence only to pleading to the action, or pleading in chief as it is often called, in contradistinction to pleading in abatement, demurring in matter of law, &c. (3 Bl. Com. 293.)' Much less can it extend or be applied to pleading in Courts of Equity. -

The reason for allowing to executors and administrators *nine months*to enter their pleas *at law,*especially so far as the question of assets is concerned, is at once apparent.' — • They may often want time to look into the condition of the estate, and ascertain with some degree of certainty the amount of indebtedness, so as to be enabled to plead understandingly, so- far as the law puts it in their power to do so. As soon as he is compelled to plead, he does so at his peril; for he is bound by the plea as soon as entered, whether it be voluntary or done under compulsion. Judgments at law, against an administrator or executor, are direct, positive, and conclusive in their nature; and1 the proceedings to obtain them are less under the discretionary power and control of the Court, than proceedings in Equity. The very first statute that we find establishing Courts of Equity on their present plan, and regulating their proceedings, provides expressly for this discretionary power in regulating the pleadings: (Rev. St. ch. 62, sec. 4;) “ Such time shall be allowed in this as well as in all other cases for the pleadings on both sides, and such day appointed for the hearing, as the court shall direct.” When an original suit for theM'ocovery of a debt, is brought at law against an executor or administrator, he is properly allowed *nine months*to plead in. For, by such judgment as may be rendered against him, he is absolutely concluded and that forever. And the rights of the heir or devisee are more or less affected by it. Not so of a decree in Equity. In allusion to the important difference between *274judgments at law, and decrees in Equity, as to their binding effect and unalterable nature, this court, in the case of *Jeffreys*v *Yarborough,*above referred to, emphatically said: “ It is another rule of this court,” (Equity) “that no suitor shall be concluded by one hearing ; but that by petition or bill of review, every material point of the decree may be reconsidered and solemnly decided twice.”

Then if the act of 1828, under which the defendant in this case claims *nine months*indulgence, does not protect him, and, from the foregoing considerations, we humbly conceive it does not, the case stands as it would under the common law practice of the court, regulated by the act of 1782, conferring Equity jurisdiction on the Superior Courts.— Hence, when an administrator is brought into this court, whether by original bill for the discovery and ascertainment of a debt due, or supposed to be due from his intestate, or by bill for foreclosure, as in the present case, if he shows himself worthy of the favor and countenance of the court, by promptly yielding obedience to its process, and meeting the plaintiff’s case with the best answer he can in the present stage of his administration, the court will then, in the regular exercise of a sound judicial discretion, take care to protect his rights and the interest of the estate, by staying the proceedings, or by granting him longer time to plead or come in with a more perfect answer ; or by extending to him such other indulgence as he may have *shown, from the answer filed,*that his peculiar situation requires at the hands of the court. But the present defendant, Spurgen, has not shown himself entitled to any indulgence, or the least favor from the court. He, in disregard of its process, folds his arms, makes no answer, files no plea or demurrer. Ought he not at least to inform the plaintiff and the court whether the estate is notoriously insolvent, or whether he has his .pockets full of assets not needed for paying debts, and ready to be distributed to the next of kin, or kept for the purpose of speculation for his owm personal benefit during these *nine months ?*It wasdoubless easy for him to have made such answer as was in his power, at least said something as to the value of the slave and the prospect of redeeming him j and *275shown also to the court whether the condition of the estate required further time for pleading. Nothing of which, has he condescended to do.

It is therefore submitted on the part of the.plaintiff, whether this court will now decree, a foreclosure, either with or without a sale of the property — or set the case down for hearing *exparte,*at the next term of Randolph Court of Equity j and that the plaintiff recover his'costs.

*Mendenhall*for the defendant.

Ruffin, C. J.

On the 7th of March, 1842, George Hoover executed to the plaintiff a mortgage of a slave, to secure the payment of the sum of $500, and died' in May following ; having made a will, which was proved at August Term, 1842, of Randolph County Court, at which time administration with the will annexed was granted to the defendant. The plaintiff then filed this bill-to foreclose the mortgage, or to have the money raised by a sale of the slave. At September Term, 1842, of the Court of Equity, for Randolph County, the defendant not having-put in a plea, answer or demurrer, the plaintiff moved ' the' court, that he might take the-bills *pro confesso,*and set the cause for hearing thereon. But the defendant opposed the motion, on the ground that he was not bound to answer or plead until nine months after taking administration ; and the court, being of that opinion, refused the motion, and the plaintiff appealed-by leave of the court.

The point, on which this appeal was taken, arises on the act of 1828, c. 8 — Rev. St. c. 46, s. 23. By the fourth section it is enacted, that *“*no executor or administrator shall be bound or compelled to plead to .any original suit, brought agaiast him in-any court, until the expiration of nine calendar months from and after his taking upon himself the office of executor or administrator.” It was held by his Honor, that this enactment embraced the present suit in the Court of Equity. But in that construction we do not concur. The language of the act, in itself, is appropriate to proceedings in *276a court of law; and it cannot embrace proceedings in Courts p¡qnjty_ unless tbosecourts had been named in the act, or the proceedings therein be within the mischief, for which act was meant as a remedy.. Statutes, which confer rights or regulate contracts, must be observed by all courts. But those, which regulate matters of practice or the course of proceeding, have never been considered as applying to Courts of Equity, unless mentioned. The reason is, that those courts have a peculiar jurisdiction and a settled course of proceeding, subject to be modified, in the discretion of the Chancellor, according to the justice of each case; and it cannot be supposed, that, the legislature intended to abrogate that discretion and alter the course of the court, without plain words to, that effect and directly applicable to the Court of Equity. 'For the legislature knows full well, that, although Equity professes to follow the Law in respect to rights, it does not profess to follow the law in its remedies and course of proceeding; but quite the contrary. And, therefore, when a statute undertakes to regulate the practice of courts, it cannot embrace the Courts ofEquity without plain words oran equally plain implication. This act has no such language. Nor .is there any such mischief in Equity, as that which existed at law, and rendered this aet necessary there. At jaw, assets are admitted unless they are denied by plea; and the plea must truly state the condition of the assets at the commencement of the suit or at the time of *the*plea.— And there can be no doubt, but the purpose of the legislature, in extending the time for pleading, was to give an executor the opportunity of learning the degree of the testator’s indebtedness, and ascertaining the assets by a sale and other means, before he was called on to conclude himself by pleading. But in Equity, an executor is not chargeable with assets upon the silence of his answer as to them, but only upon an admission of them, or upon the report of the Master that he actually has them. *Mitchell*v *Rolards, 2*Dev. Eq. 478. And the filing of the bill, or even a decree to account, does not bind the assets, so as to prevent the executor from paying other creditors in equal degree, unless it be a bill on behalf of all creditors, and a decree thereon for an account. *277*Allison*v Davidson, 1 Dev. & Bat. Eq. 46. . There could be no prejudice to the estate, therefore, or to'the defendant, by requiring him to proceed immediately in the cau.se; nor any motive for not answering but the mere arbitrary purpose of delaying the plaintiff. No question of assets could, indeed, be made in this particular cause : for on a bill to foreclose there is no decree for the debt against the general assets, but only that the pledge become absolute, or that at the instance of one of the parties, it be sold and the proceeds applied in satisfaction. Whether regard'be had to the words of the act or to the necessity which caused it, we think it equally clear that it cannot be construed to change the course of the Court of Equity ; and the defendant should have been required, according to the act of 1782, (Rev. St. c. 32, s. 4,) “ *to put in fits answer or plea, agreeably to the practice in*chancery, *or demur,”*unless, upon reasonable cause shewn, further time had been allowed.

This opinion will be certified accordingly. The defendant must pay the costs in this court. " ~ -

Pee Curiam. Ordered accordingly.