courts of equity (m) (22); according to their respective priorities. 5. Recognizances at common law; statutes merchant and staple (n); and recognizances in the nature of statute staple, pursuant to stat. 23 Hen. VIII. c. 6 (23). 6. Arrears of rent due at the death of (m) Searle v. Lane, 2 Vern. 88; Bishop v. Godfrey, Prec. in Chanc. 179, Finch's ed.; 1 & 2 Vict. c. 110, s. 18. (n) 4 Rep. 59, b., 60, a.; 1 Rol. Abr. 925; 4 Rep. 28, b. directed in regard to judgments, together with the date of the year and day of the month when such memorandum or minute was left; for which the officer is entitled to the sum of 5s. And by sect. 4, all judgments of any of the superior courts, decrees or orders in any court of equity, rules of a court of common law, and orders in bankruptcy, or lunacy, which have been registered under the 1 & 2 Vict. c. 110, or shall hereafter be so registered, shall be void after five years from entry, unless a like memorandum is left with the senior Master who shall re-enter, and so, toties quoties, at the expiration of every five years. See also stat. 3 & 4 Vict. c. 82. 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. (22) 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,) 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, Ch.t, Nov. 1736, and Lord Talbot's decree was afterwards affirmed in parliament, May 24, 1737. See also Shafto v. Powell, 3 Lev. 355. (23) This must be understood of recognizances and statutes forfeited, where the recognizances are for keeping the peace, good behaviour, &c. and the statutes are for performing covenants, &c. A recognizance not * 3 P. Wms. 401, n. (P). + Ca. Temp. Talb. 217. 4 Bro. P. C. 287, ed. fo.; 2 Bro. P. C. 465, Tomlin's ed. the testator or intestate, either on a parol lease (24) or lease by deed (25); debts by specialty, as bonds (26); damages upon covenants broken (27), &c. 7. Debts by simple contract, as bills of enrolled was considered in Bothomly v. Fairfax, 1 P. Wms. 334, as a bond, (the sealing and acknowledging of the recognizance supplying the want of delivery,) and to be paid as a specialty debt. A recognizance, in its proper sense, is nothing more than a debt of record to the crown, defeasible in a particular event. Rex v. Dover, Mayor, &c., 1 Cr. M. & R. 726; 5 Tyrw. 279. (24) 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. (25) 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. 672. (26) 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 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. Ch. Harcourt, Powell v. Wood, MS. Cases in Chancery, p. 84, Lincoln's-Inn Library, Bookcase A. A voluntary bond is postponed in equity to debts by simple contract. Cases Temp. Hardwicke, by West, p. 240. (27) Covenants running with the land are binding on the executors, although not expressly named. See Went. Off. of Exors. p. 178, edit. 1763. * Brown v. Holyoak, Barn. 290. + Lemun v. Fooke, 3 Lev. 57. Bank of England v. Morice, Str. 1028. exchange (28), promissory notes, &c. 8. Legacies, &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 (0), 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 (29). WHILE an executor is passive, he is chargeable only in respect of the assets; but if he promises to pay a debt of the testator at a future day, he thereby makes it his own debt, and it shall be satisfied by his own goods (p). A judgment against an executor by default (q), 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 death (r); and the defendant having brought an action on the (0) Davis v. Blackwell, 9 Bingh. 5. (p) Per Yelverton, J., in Goring v. Goring, Yelv. 11. (g) Rock v. Leighton, from Holt's MSS. 3 T. R. 690; Salk. 310, S. C., but not accurately reported. (r) Ramsden v. Jackson, 1 Atk. 292; 1 West, Cas. Temp. Hardwicke, 237, S. C. the per (28) See Yeomans v. Bradshaw, Carth. 373. A breach of trust is considered but as a simple contract debt, and can only fall upon sonal estate of a trustee. Vernon v. Vawdry, 2 Atk. 119. (29) All sperate debts, mentioned in the inventory, shall be deemed assets in the executor's hands; but the executor may discharge himself by showing the 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 Geo. II., MSS., recognized in Young v. Cawdrey, 8 Taunt. 734. 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, Ch., 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 (s), (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. On 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 statute 30 Car. II. c. 7 (30), and by 4 & 5 Will. & Ma. c. 24, (8) 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. (30) By stat. 30 Car. II. c. 7, s. 2, (made perpetual and enlarged by 4 & 5 Will. & Ma. 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 Will. & Ma. 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." 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 (t), 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 (u), 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 administrator (x), 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 (y), for the non-payment of the money awarded, he cannot defend himself against it, by suggesting a deficiency of assets; for a submission to arbitration by a personal representative is considered as a reference, not only of the cause of action, but also of the question, whether or not he has assets. And when the arbitrator awards that the personal representative do pay the amount of the plaintiff's demand, it is equivalent to determining as between those parties, that the personal representative had assets to pay the debt. But mere submission to arbitration is not of itself an admission of assets (z); for in a case where the arbitrator only ascertained the amount of the demand, without ordering the administrator to pay it, it was holden, that the administrator might plead plene administravit. By stat. 3 & 4 Will. IV. c. 104, [29 Aug. 1833,] entitled, “An Act to render Freehold and Copyhold Estates Assets for the Payment of Simple Contract Debts," after reciting that it is expedient that the payment of all debts should be secured more effectually than is done by the laws now in force; it is enacted, "That from and after the passing of this act, when any person shall die, seised of or entitled to any estate or interest in lands, tenements, or heredi (t) Erving v. Peters, 3 T. R. 685. (u) Cleverly v. Brett, B. R. 11 Geo. III., cited in Pearson v. Henry, 5 T. R. 8. See 2 Ves. 85. (x) Barry v. Rush, 1 T. R. 691. 453. (z) Pearson v. Henry, 5 T. R. 6. |