directions of stat. 4 & 5 W. and M. c. 20; by judgments in other courts of record; by decrees in courts of equityt (21); according to their respective priorities. 5. Recognisances at common law; statutes merchant and staple"; and recognisances in the nature of statute staple, pursuant to stat. 23. H.

t Searle v. Lane, 2 Vern. 88. Bishop u 4 Rep. 59. b. 60. a. 1 Rol. Abr. v, Godfrey, Prec. in Chanc. 179. 925. 4 Rep. 28. b. Finch's ed.

testate, executors or administrators could not plead, that they had exhausted the assets in payment of debts of an inferior nature with. out notice of the judgment. To obviate the mischiefs to which personal representatives were liable, from the difficulty of finding such judgments, the stat. 4 and 5 W. and M. c. 20. s. 2. directs," that the proper officers of the courts of Common Pleas, King's Bench, and Exchequer, shall make a doggett of all judgments entered in the respective courts." The mode in which the doggett is to be made is detailed in the second section; and by s. 3. "judgments not doggetted as the second section directs shall not have any preference against executors and administrators in the administration of their testator's or intestate's estates." The construction which has been put on this section is, that the judgments not doggetted are thereby placed on a level with simple contract debts. Hickey v. Hayter, 6 T. R. 384. Hence, to an action on a simple contract debt of tes. tator or intestate, the personal representative cannot plead an outstanding judgment recovered against testator or intestate, in C. B., B. R., or Exchequer, if it has not been doggetted as the statute directs. Steel v. Rorke, 1 Bos. and Pul. 307. cited in Hall v. Tapper, 3 B. and Ad. 655. If a judgment be satisfied, or only kept on foot to injure other creditors, or if there be any defeasance of the judgment then in force, then the judgment will not avail to keep off other creditors from their debts. Went. Off. Exor. c. 12. Between one judgment and another, precedency or priority of time is not material, but he who first sueth the executor must be preferred, and before execution sued, it is at the election of the executor to pay whom he will first. Went. Off. Exor. c. 12.

(21) It is now become the established doctrine, that a decree of the Court of Chancery is equal to a judgment in a court of law *: and where an executrix of A., who was greatly indebted to divers persons, in debts of different natures, being sued in Chancery by some of them, appeared and answered immediately, admitting their demands, (some of the plaintiffs being her own daughters,) and others of the creditors sued the executrix at law, where the decree not being pleadable, they obtained judgments; yet the decree of the Court of Chancery, being for a just debt, and having a real priority in point of time, (not by fiction and relation to the first day of term,) * 3 P. Wms. 401. n. (P.)

8. c. 6. (22). 6. Arrears of rent due at the death of the testator or intestate, either on a parol lease (23) or lease by deed (24); debts by specialty, as bonds (25); damages upon co

was preferred in the order of payment to the judgments; and the executrix protected and indemnified in paying obedience to such decree, and all proceedings against her at law stayed by injunction. Morice v. The Bank of England. Decreed first at the Rolls by Sir Joseph Jekyll. Aug. 1735, which decree was affirmed by Lord Talbot, C. Nov. 1736, and Lord Talbot's decree was afterwards affirmed in parliament †, May 24, 1737. See also Shafto v. Powell, 3 Lev. 355.

(22) This must be understood of recognisances and statutes forfeited, where the recognisances are for keeping the peace, good behaviour, &c. and the statutes are for performing covenants, &c. A recognisance not enrolled was considered in Bothomley v. Fairfax, 1 P. Wms. 334. as a bond (the sealing and acknowledging of the recognisance supplying the want of delivery), and to be paid as a specialty debt.

(23) Arrears of rent on a parol lease, which is determined, are in equal degree with a bond debt; because the contract remains in the realty, though the term be determined. Newport v. Godfrey, 3 Lev. 267. and 2 Ventr. 184. See an exposition of this case by Holt, C. J. in Cage v. Acton, Ld. Raym. 516.

(24) A debt due for rent reserved upon a demise by deed, or by parol, is in equal degree with a bond debt. Gage v. Acton, Carth. 511. 1 Salk. 236. cited by Denman, C. J. and Littledale, J. in Davis v. Gyde, 2 Ad. & Ell. 626. and ante, p. 682.

(25) A bond with a penalty conditioned for the payment of a less sum of money on a day, not arrived at the death of testator, may be pleaded by his executor as a specialty debt §, as well as a forfeited bond; but there is this distinction between them, that in the case of a bond forfeited, the penalty is the legal debt, and assets may be covered to that amount; but in the case of a bond not forfeited, as the executor by discharging it may save the penalty, the assets can be covered only to the amount of the sum mentioned in the condition¶. Where there are several debts by specialty, all due and payable at the death of the testator, if suit is not commenced by any of the creditors, and notice thereof given to the executor, he may give the preference to whom he pleases: and if he be a creditor himself, he may pay himself first. Went. Off. Exor. c. 12. Any voluntary bond is good against an executor or administrator, unless some creditor be thereby deprived of his debt. Indeed, if the bond be

* Ca. Temp. Talb. 217.

† 4 Bro. P. C. 287. ed. fo. 2 Bro. P. C. 465. Tomlins' ed.

Brown v. Holyoak, Barn. 290.
Lemun v. Fooke, 3 Lev. 57.
Bank of England v. Morice, Str. 1028.

venants broken (26), &c. 7. Debts by simple contract, as bills of exchange (27), promissory notes, &c. 8. Legacies, &c. An executor should not be too precipitate in paying legacies, for in a case where it appeared that an executor after discharging some debts, made over the residue of the assets to the residuary legatee within six months after the date of the probate, it was holden, that he could not plead such payment in discharge of his testator's liability on a covenant to repair a house, although the testator did not occupy the house, nor was any notice given to the executor of the state of the house.

VI. Admission of Assets (28).

WHILE an executor is passive, he is chargeable only in respect of the assets; but if he promises to pay a debt of the x Davis v. Blackwell, 9 Bingh. 5.

merely voluntary, a real debt, though by simple contract only, shall have the preference; but if there be not any debt, then a bond, however voluntary, must be paid by an executor. Voluntary bonds given to be paid after death, take place of legacies, but not of debts by simple contract. Per Ld. Chr. Harcourt, Powell v. Wood, MSS. cases in chancery, p. 84. Lincoln's-Inn Library, Bookcase A.

(26) Covenants running with the land are binding on the executors, although not expressly named. See Went. Off. of Exors. p. 178. ed. 1763.

(27) See Yeomans v. Bradshaw, Carth. 373. A breach of trust is considered but as a simple contract debt, and can only fall upon the personal estate of a trustee. Vernon v. Vawdry, 2 Atk. 119.

(28) All sperate debts, mentioned in the inventory, shall be deemed assets in the executor's hands; but the executor may discharge himself by shewing a demand and refusal of them. Shelley's case, per Holt, C. J. Salk. 296. In the inventory, which the defendant had exhibited in the ecclesiastical court, were inserted several debts due and outstanding, which defendant charged herself with when received or recovered: Lord Hardwicke, C. J. put the defendant on proof, that she could not recover those debts; for she ought in her inventory to have set forth which debts were sperate and which desperate. The defendant proved by a witness, who went to demand several of them, that he could not recover them; and accordingly they were allowed as desperate. Smith v. Davis, Middlesex Sittings after M. T. 10 G. 2. MSS. recognised in Young v. Caudrey, 8 Taunt. 734.

testator at a future day, he thereby makes it his own debt, and it shall be satisfied by his own goods. A judgment against an executor by default is an admission of assets to satisfy the demand; and if a fi. fa. be sued out on such judgment, and,the sheriff cannot find goods of the testator sufficient to answer the demand, the sheriff may return a devastavit. The preceding case has been considered as a leading case on this subject: hence, where A. having executed a bond for the payment of a sum of money at her deatha; and the defendant having brought an action on the bond against the plaintiff as the executor of A. who pleaded non est factum, which was found against him, and judgment thereon: on a bill filed by the plaintiff to have the bond and judgment set aside, Lord Hardwicke, C. being of opinion, that the bond was good, it became a question, whether the plaintiff was not entitled to relief, on the ground that there was a deficiency of assets. Lord Hardwicke decided, that the plea of non est factum, and verdict thereon, amounted to an admission of assets; and that the case was the same with the preceding case of a judgment by default. So where in debt in the detinet against defendant (as executor of A. administratrix of B.) upon a judgment by default, obtained by plaintiff against A. as administratrix, suggesting that goods of the intestate had come to the hands of A. as administratrix, which she had wasted; defendant pleaded, 1. Non detinet, on which issue was joined; 2dly. that defendant had fully administered the goods of A. Replication, that the defendant had goods of A. sufficient to satisfy, &c. and issue. The jury on the last issue found assets of A. in the hands of defendant. the other issue the plaintiff produced the judgment by default against A., on which he relied as evidence of assets admitted by A., and a devastavit by A. Lee, C. J. (delivering the opinion of the court) said, that he could not do it better than in the words of Holt, C. J. in Rock v. Leighton. Having read that case from Holt's notes, he observed, that it appeared from that case, that if an executor will not take advantage by pleading, but suffers judgment to go by default, such judgment is an admission of assets, and is as strong against an executor, as if assets were found by verdict on a plene administravit; and, notwithstanding the objection, which had been raised on the ground of the statutes 30 Car. 2. c. 7.

y Per Yelverton, J. in Goring v. Goring, Yelv. 11.

z Rock v. Leighton, from Holt's MSS. 3 T. R. 690. Salk. 310. S. C. but not accurately reported.

On

a Ramsden v. Jackson, 1 Atk. 292.
b Skelton v. Hawling, 1 Wils. 258. and
MSS. See also 1 Saund. 219. d. where
this case is correctly stated by Serjt.
Williams, who examined the roll.

(29) and by 4 & 5 W. & M. c. 24. s. 12. he was clear, that the action in the case then before the court was well brought. On the authority of the preceding cases of Rock v. Leighton, Ramsden v. Jackson, and Skelton v. Hawling, it was holden, that where an executor (to an action of debt on bond) had pleaded payment, which was found against him, and judgment accordingly, it operated as an admission of assets; and a writ of fi. fa. having been sued out on the judgment, to which the sheriff had returned a devastavit, and an action having been brought against the executor on the judgment suggesting a devastavit; it was holden, that the production. of the record of the judgment, the writ of fi. fa., and the sheriff's return, was sufficient evidence to support the action. If an executor pay interest on a bond due from his testator, it will not conclude him from alleging want of assets to pay the principal, but it relieves the creditor from the necessity of proving assets, and throws the onus on the other side. Where defendant binds himself as administratore, to abide by an award touching matters in dispute between his intestate and another, and the arbitrator awards, that defendant as administrator shall pay a certain sum, it operates as an admission of assets between those parties, and defendant cannot plead plene administravit to an action of debt on the bond; because the giving such bond is an undertaking to pay whatever the arbitrator may award. And in such case, if an attachment be moved for against the administrator, for the

c Erving v. Peters, 3 T. R. 685.

d Cleverly v. Brett, B. R. 11 G. 3. cited in Pearson v. Henry, 5 T. R. 8. See 2 Ves. 85.

e Barry v. Rush, 1 T. R. 691.

f Worthington v. Barlow, 7 T. R. 453.

66

(29) By stat. 30. Ca. 2. c. 7. s. 2, (made perpetual and enlarged by 4 & 5 W. & M. c. 24. s. 12.) The executors and administrators of executors of their own wrong, or administrators who have wasted and converted the assets of the deceased to their own use, shall be chargeable in the same manner as their testator or intestate would have been if living." A doubt having arisen upon the preceding clause, whether it extended to the executors and administrators of any executor or administrator of right, who, from want of privity, were not before answerable for the debts due from the first testator or intestate, although such executor or administrator of right had been guilty of a devastavit or conversion, it was enacted by stat 4 & 5 W. and M. c. 24. s 12, "that the executor and administrator of such executor or administrator of right, who should waste or convert to his own use the estate of his testator or intestate, should be chargeable in the same manner as his testator or intestate would have been."