This is an action of debt, brought on a judgment quando aaciderint, obtained by the plaintiff against the defendant in this court, in the term of September, eighteen hundred and forty-five, and to the declaration defendant files three pleas: 1st, nil debet, on which issue is joined to the country; 2d, plene administravit; and 3d, plene administravit prceter ; and to the last two pleas the plaintiff files a general demurrer.

As the defendant’s counsel, in arguing this case, took exceptions to the declaration, we will consider them as first in order: The declaration is in the usual form in actions on judgment against administrators, suggesting a devastavit (3 Chit. PI. 254); but this, it is said, is a case where the original judgment was by default or on relicta, and thereby assets sufficient is admitted ; granted, yet in the case of Noel et al. v. Nelson, 2 Saund. Rep. 219, which was on a judgment quando aaciderint, the same form is used, except that it is alleged that defendant retained the goods, instead of that he wasted them, which difference is immaterial, as is also the averment itself. The material allegation is, that goods sufficient to satisfy the plaintiff’s demand had come to the hands of the defendant after the judgment was obtained ; and this is sufficiently set forth, it not being necessary for the plaintiff to anticipate the defence by showing or averring that he was entitled to them. If he allege and prove sufficient assets after judgment, then the defendant can only exonerate himself from payment, either by plea or defence, that owing to prior claims or the insolvency or distribution of the estate, plaintiff is entitled to no part, or to only a distributive share of the assets proved. I think the declaration sufficient.

*283As to the pleas. Under the English system of administering estates, when there are various grades of debts and priorities, and debts of a higher nature have exhausted all, or all but a small portion of the assets, plene administravit or plene administravit prceter are the ordinary pleas filed in actions brought by creditors whose debts are of an inferior grade. But under our statute respecting the estates of persons who die insolvent, and our general system of administration, which admit of no priorities except such as were liens on the estaie prior to the decease and “the funeral expenses and physician’s bill during the last illness, a doubt bad arisen whether such pleas could be pleaded; the opinion of the bar was not uniform and the practice had been variant, but the question came fairly before the court in Haines v. Price, executor of Price, Spencer 480, (also Howell’s administrators v. Potts’ administrators, Spencer 4) whether the plea of plene administravit could be pleaded, or whether, in ease of insolvency and settlement and distribution under the statute, the matter must be specially pleaded? The court in that case decided, unanimously, that although the plea of plene administravit might not have the same force and effect under our law as it had in England, and that its operation is more special, yet that it was a good plea in this state, even in an action brought on a bond given by defendant’s testator, and that a settlement and distribution under the insolvent estate act might be given in evidence under an issue taken thereon.

The present action, however, is on a judgment, and counsel insist that there can be no full administration without the payment of that judgment, therefore .the plea is not applicable. But the validity of this objection depends on the nature of the judgment; if it be a general one against the administrator de bonis si et si non, as if by default, or on plea of payment, or any other plea except the want of assets, and it is found against him, he, by such judgment, admits assets sufficient to satisfy the claim. 3 T. P. 685; 1 Saund. Pep. 219; 1 Salk. 310; 1 Ld. Ray. 690; 1 Ath. 292; 3 East 2; Spenc. 4 and 569. And if the party omit to plead in bar, and judgment be against him, he cannot afterwards set up the omitted matter *284in debt or seire facias brought on that judgment (2 Strange 732); but if defendant plead plene administravit in the original suit, plaintiff may immediately take judgment quando, [Noel v. Nelson, 2 Saund. Rep. 226) and the mere praying for such judgment is an admission at that time there is no assets. lb. 219, note 2. The court is not informed what were the pleas in the original action in this case; but that is of no importance, for the plaintiff has taken his judgment quando, and thereby admitted no assets at that time, and he now brings his action on that judgment merely for "assets subsequently acquired. In such an action it is competent to plead any matter which he might have done originally, or which he has not been debarred from pleading. There is no bar or admission in the judgment against him, but there is against the plaintiff, of no assets at the time. The defendant may put his defence upon the general issue of nil debet or not guilty, (1 Saund. Rep. 219 (6); 2 Ld. Ray. 1502; 1 T. R. 462) or plene administravit, or simply that he has no goods; 2 Saund. R. 220, note 3. But it is said, that if the judgment was obtained before the decree of insolvency, then under thé statute (Elmer 169, Spene. 2 and 577) the party does not take a mere distributive share, and therefore .the plea of plene administravit cannot affect that case. If so, then it does not determine the plea bad, but merely that the case does not come within it., or the evidence does not support it. The whole defence arising under the insolvent estate-act, it has been decided may be raised under this plea, whether from that it shall appear that plaintiff is entitled to have satisfied the whole, or portion, or no part of his debt.

Although there would seem to be a discrepancy between the time fixed by the averment of no goods, and that set forth in the plea, yet taking the whole plea together, that all the goods that had ever come to hand had been fully administered, and that he had no goods at the time alleged or since, it covers the whole ground; and though this plene administravit clause might be omitted as immaterial (2 Saund. 220, note), yet it has been inserted, and it completes the plea, and of course will not be stricken out or considered as omitted for the mere. *285purpose of destroying the plea. The judgment on the third plea must, of course, be taken for the amount of assets admitted as coming to the plaintiff; and quando as to the part still uncollected or undistributed.

The declaration charges, that since the judgment defendant has received goods sufficient to pay the same, and wasted them; and the plea, as before stated, answers that defendant has administered all that ever came to his hands, and that he had no goods at the commencement of the suit, nor has he received any since. This, though not directly denying the plaintiff’s allegation as to waste, meets the whole case, at least inferentially: had he traversed the eloignment (Gould Pl. 7, § 32) the plaintiff might have replied and taken issue. But if this be important and defective, advantage can only be taken of it by special demurrer, under 4 Anne 16; R. S. 990, § 13; 1 Bac. Ab. 151, Amendment and Jeofails B ; 5 lb. 383, Pleas and Pleading, IP. 3. But such a traverse has been held bad (11 Vin. Ab. 312), for the having wasted the goods is but inducement, and the substance is, whether or no the executor had assets at the time alleged. In 2 Saund. 214, the judgment was quando as here, and the declaration set forth that afterwards this defendant received goods sufficient to pay the demand, which he retained; but the plea was plane administravit, in the precise form of the one in the present case. The plaintiff may take issue on the pleas, and if he prove that defendant has received more goods than is admitted by the third plea, it will be for the defendant to set up the statute of distribution, or any other defence, which he may under the pleas and issues. The demurrer must be overruled, with costs.

Ogden, Justice, concurred.

Demurrer overruled.