
    Nimmo’s Executor v. The Commonwealth.
    Monday, 8th May, 1809.
    [4 Am. Dec. 488.]
    1. Executors — Liability—Payment of Debts. — An executor must, at his peril, taire notice of a judgment against his testator, in what Court soever it may have been rendered; and if he exhaust the assets by paying debts of inferior dignity, must satisfy such judgment de bonis propriis.
    
      2. Statute of Limitations — NuiSum Tempus Occurrit Regi. — The English maxim, that “nullum tempus occurrit regí,” has been adopted in Virginia, in relation to the Commonwealth; on which principle it has been held, that the acts of limitations do not extend to the Commonwealth, in civil suits, not founded on any penal act expressly limiting the commencement of the action.
    3. Same — Same-No length of time can bar the Commonwealth from execution on a judgment in its favour, nor even render it necessarj' to sue out a scire facias to entitle it to such execution.
    4. Executors and Administrators — Allowances to.— Executors and administrators ought to be allowed, in their accounts, all reasonable charges and disbursements for the benefit of the estate they represent; and a reasonable recompense for their personal trouble, in preference to the claim of any creditor of the decedent. The Commonwealth's taxes on the property of the decedent, the expense of recovering a runaway negro whose value is credited to the estate, money paid for the hire of a slave (hired by the executor or administrator) to make a crop on the land of the decedent, under the care of the executor or administrator, the proceeds of such crop being credited to the estate, are reasonable charges and disbursements.
    g. Equitable Assets — Proceeds of Land Sold. — The proceeds of the sale of land, directed by the will of the testator tobe sold for the payment of his debts, are equitable assets, and should be distributed among all the creditors pari passu: nor are such assets proper subjects for the cognisance of a Court of Law.
    6. Executors and Administrators — Ex Parte Settlement of Account — Evidence.—It seems, that charges appearing to be just and legal, in an ex parte settlement of an administration account, by commissioners appointed by the Court which granted the administration, and passed by such Court, (the commissioners having reported, that vouchers were produced to justify such charges,) are to be received, prima facie, as evidence in favour of the executor or administrator; and that the burthen of proof lies on the party who would impugn them.
    At a General Court holden on the 26th day of'April, 1786, the Commonwealth obtained a judgment against William Nimmo, Sheriff of Princess Anne County, for 2081. 10s. 4d. for the balance of the one per cent, tax on land, collected by him for the year 1784, and 311. 5s. 6 l-2d. for damages thereon, according to law, amounting in the *whole to 2391. 15s. 10 l-2d. with interest thereon from the 10th day of Nov. 1784, until pa3rment, and costs. On the 12th day of July, 1799, a scire facias issued upon the said judgment against James Nimmo, his surviving executor, who appeared and pleaded 1 ‘payment by the testator and fully administered;” to which the Attorney-General replied generally. On the trial of these issues, which took place June 13th, 1804, the Jury found against the plea of payment; and also that the defendant had goods and chattels of his testator unadministered to the amount of 2631. Is. 8d. a bill of exceptions to certain opinions of the Court having been signed and sealed, stating that the defendant to support his pleas gave in evidence an account of his administration, settled by commissioners appointed by Princess Anne Court, and admitted to record, May 5th, 1800, shewing a balance in his hands of 271. Is. 1 l-4d. (the items on the debit side of which account consisted of funeral charges, taxes paid the sheriff, “cash paid D. Brown, for his trouble, &c. about negro Sanchq, 131. cash paid William Plume for leather, 11. 17s. 0 3-4d. do. paid A. Walke for negro hire, 121. 8s.” sundry payments of debts to bond and simple contract creditors; and 151. 4s. 9d. for the executor’s commission; on the credit side the estate was credited “by cash of Maj. William Tishburn, of Charleston, by the hands of Mr. James Douglass for negro Sancho who went off with the British, 831. 18s. by amount of a balance of account against Col. William Robinson, 51. 16s. by the amount of sales of one hundred and twenty-six acres of land left by the will to be sold, at 30s. per acre, 1891.” and by sundry sales of personal property specified; the credits amounting altogether to 3041. 16s.) “whereupon the Attorney-General gave in evidence an inventory of the estate of the said William Nimmo, signed by the defendant himself; (corresponding exactly with the credit side of the above-mentioned account;) and the following memorandum annexed thereto; “Memorandum, the other personal estate of the above-named William Nimmo, including his slaves, was *sold in his life-time under a vendi-tioni exponas issued from the office of the General Court, at the instance of the Commonwealth, and a return thereof made by the Sheriff of Princess Anne,” “James Nimmo, executor of William Nimmo;” “and moved the Court to instruct the Jury that no discount or credit ought to be allowed the defendant for any item in his aforesaid account of administration, except for the funeral expenses and ; alleging it appeared from the said inventory that the defendant had notice of the judgment in the said scire facias mentioned before the malting of the disbursements in the said account mentioned; and alleging also that the Commonwealth was not bound by the statute limiting the emanation of writs of scire facias; whereupon the Court did instruct the Jury that the defendant was not, in this action, by law, entitled to any credit or discount for the items excepted to as aforesaid by the Atto.rney-General; to which opinion the defendant excepted,” &c.
    The judgment was that the Commonwealth might have execution against the defendant for the amount of the former judgment, “to be levied as to the said 2631. Is. 8d. of the goods and chattels of the testator in the hands of the defendant to be administered, if so much thereof be had, but if not, then the costs to be levied of his own proper goods and chattels.”
    To this judgment the defendant obtained a supersedeas from a Judge of the Court of Appeals; assigning in his petition, the following errors; viz.
    1. “That the Commonwealth is bound by the statute of limitations; that the scire facias is therefore barred; and that it was the duty of the General Court to declare it to be untenable; the notice alleged not being proved; or, if proved, not preventing the operation of the said statute.”
    2. “That the taxes paid to the sheriff of Princess Anne for the property of the estate were properly paid; because, Otherwise the Sheriff might have seized and sold the property itself.” 3. “That the sum of 1891. arising from the sale of the land directed by the will to be sold, was only equitable assets; and, as such, distributable pari passu among all the creditors of the testator, and therefore not to be appropriated to the Commonwealth alone.”
    4. “That, if the land were even legal assets, the bond debts were entitled to a share, since the original judgment against William Nimmo, was prior to the act of Assembly specially subjecting lands to the judgments of the Commonwealth; and, upon the principle adjudged in the case of Eppes v. Randolph, by the Court of Appeals, the lien by elegit has been lost from neglect.”
    5. “That, by the decision of the Court, the very commissions of the executor are rejected, after having been allowed by the Court of the County of Princess Anne.”
    6. “That the debit for cash paid to D. Brown, ‘about negro Sancho,’ whether it related to the pursuit of him, cure of him, or anjr other necessary purpose concerning him, was justly chargeable to the estate, in preference to the demand of the Commonwealth ; because that debit was incurred for the safety of the property itself.”
    7. “That the money paid to William Plume was for a necessary expense of the estate; and,
    8. “That the negro hire of 121. 8s. was also a current expense of the executor, while in the management of the estate; it being a clear principle, that a creditor cannot claim more than the surplus of an estate after defraying ordinary expenses.”
    The petitioner “moreover conceived it just, that, after his accounts had been approved by the usual tribunal for more than four years, and his vouchers surrendered, and perhaps destroyed, every item therein which can, under any circumstances, be supposed admissible in preference to the Commonwealth, ought to be presumed to be so, and have a preference accordinglj'.” *Randolph, for the plaintiff .in error, said, that the Court ought not to have given a general opinion that the credits were not to be allowed; because that was a matter of fact depending on the weight of testimony, of which “the Jury, and not the Court, are exclusively and uncontrollably the judges.” In support of t he first point in the petition, he urged the hardship of the doctrine, that a dormant judgment may be kept up without notice to an executor, and that, if he exhausts the assets in paying debts by specialty, he shall be compelled to satisfy the judgment out of his own pocket; and contended that this scire facias was barred by the statute of limitations; relying on the terms of the act,  as sufficiently general to extend to judgments on behalf of the Commonwealth, and to judgments then in existence, as well as to those of subsequent date. If the 47th section of the same act prevents it from extending to any right which had accrued prior to its commencement, we must inquire, whether prior thereto the Commonwealth had a right of exemption from all time. The act of 1778, c. 2, s. 4, did not retain this privilege as to judgments afterwards obtained in the name of the Commonwealth, but only as to judgments then existing in the name of the King. Neither reason nor the words of the law are in favour of any other interpretation. The clause in the fourth section applies only to the executions described in the preceding sections, as much as if the words “in cases aforesaid” had been inserted; and because it was so considered, it has not been transplanted into any succeeding revisal. The word “but” (with which that clause commences) is antithetical, and confirms this construction.
    A broader error was never seen than was committed by the General Court in this case. They refused the executor a credit for money paid for taxes 1 What a solecism is it that the Commonwealth’s claim for taxes is not good against Commonwealth’s claim by judgment? Taxes are a debt of the first dignity. Those very taxes were *paid for support of the plantation, the profits whereof have been charged to the executor. A negro too has been charged against him; yet the expense of apprehending that negro is disallowed. The produce of the estate is charged, yet necessary disbursements for raising that produce are disallowed I In short, no credit is given the executor but for funeral expenses !
    xVnother point is important. The act subjecting lands to satisfy the Commonwealth’s judgments was not in force when this judgment was rendered,  No lien was therefore given to the Commonwealth in preference to other creditors. Of course the sum of 1891. received for land sold, being equitable assets, ought to be divided among all the creditors pari passu.
    The Attorney-General, for the Commonwealth. The first point I will consider is that of the act of limitations. As to the general principle, it was settled in Kemp v. The Commonwealth. The expression in the act of 1778 is general, that ‘ ‘no time shall bar the commonwealth of execution,” not of such executions as had been mentioned. The sixth section of the act of 1792 evidently shews that the fifth section was intended to apply exclusively to individuals, and not to the Commonwealth, which can neither be a feme covert, non compos mentis, nor come within any other exception therein mentioned. That act moreover does not apply to any judgment of a prior date. In the cases of Turner v. Turner, and Elliott v. Eyell, it was decided that an act of Assembly had not a retrospective effect.
    With respect to the question of notice, there is no authority that judgments must be revived by scire facias before the executor is bound to take notice of them. It is true that the judgment creditor who first sues out his scire facias is to be preferred : but this does not contravene the general rule, that an executor is bound to take notice of judgments as against debts of inferior dignity, 
    
    *But we need not rely on constructive notices; for in this case, actual notice appears from the facts disclosed. The executor ought to have traced the subject, and ascertained whether there was not a balance due to the Commonwealth, since he knew his testator was a delinquent Sheriff, and that part of his property had been sold by a venditioni exponas.
    Again; Debts due to the Crown are of the highest dignit3r; and it was clearly the intention of our Constitution to retain to the Commonwealth alt such prerogatives of the King as were necessary to the public interests. The reason of such prerogatives applies to all governments, and as well to the state of things after as before the revolution. As to taxes, I admit the Commonwealth ought not to be satisfied twice: but whether the party might not recover back these taxes is another question. If they were due in the life-time of the testator, they were due by open account. Whether such was the case, or not, does not appear; nor whether the expense of apprehending the negro Sancho was incurred before the death of the testator or not; and, indeed, there is no evidence that any of the items were such as the executor had a right to pay.
    It is extremely doubtful whether the proceeds of the sale of land were equitable assets. They seem rather to be considered as legal assets. According to 2 Fonb. 397,  “legal assets, though you cannot come at them without the assistance of equity, shall be applied in a course of administration.” Nothing appears in this case to make the executor a trustee. He seems to have considered himself as taking the property qua executor, and not as trustee; for he charges himself with it, as executor, and as legal assets.
    The Court in this case did not give an instruction as to the weight of evidence. The Jury, I admit, are to judge of facts; but when facts are ascertained, the Court determines the law. All the Court has done here is to instruct the Jury as to the law in case they should find a certain state of facts to exist.
    *Randolph, in reply.
    Independently of the act of limitations, the scire facias was improperly issued; for, after ten years, it could not issue without special leave of the Court. In the case of Kemp v. The Commonwealth, a number of points were made in the argument; but a general opinion was given by the Court without assigning any reason. The true ground of the decision was, that there was a trust in that case. Is there any trust in this?
    The rule, that general expressions are to be considered relatively to the subject matter, should be applied in construing the act of 1778, so as to limit the word ‘ ‘execution” to the executions there spoken of. The argument, that the Commonwealth is not a feme covert, &c. proves nothing; for shewing that the Commonwealth cannot come within the exceptions of the act does not shew that the general terms of the act do not apply to it.
    According to the doctrine now contended for, thirteen years after an executor has settled up his accounts, he may be again called to settle every item. The court precluded us from giving any evidence about any item, by instructing the Jury not to take notice of them at all.
    Lord Thurlow, in Brown’s Ch. Rep. ridicules the distinction between taking qua executor, and as trustee. According to all the modern authorities, the proceeds of lands devised to be sold for the payment of debts generally, are in every instance, equitable assets.
    Take out of the 3041. 16s. the amount of the sale of land, and the expense of reclaiming the negro who ran away, together with the taxes, and other money expended for the benefit of the estate, and the balance is very small.
    JUDGE TUCKER. If a man hires a negro for a year, and dies before the end of the year, do you contend that the debt for hire is preferable to a judgment?
    ^Randolph. Ido not; but here the hire was part of the expenses of the crop.
    
      
      Statute of Limitations — Nullum Tempus Occurrit Regí. — The principal case has been cited repeatedly in support of the well-settled rule that the statute of limitations does not extend to the commonwealth and bar her rights, unless she is expressly named in the statute. Saunders v. Com., 10 Gratt. 496; Levasser v. Washburn. 11 Gratt. 573; Commonwealth v. Baldwin, 1 Watts (Pa.) 55; Calwell v. Prindle, 19 W. Va. 653; Witten v. St. Clair, 27 W. Va. 769; Hoge v. Brookover, 28 W. Va. 310. See foot-notes' to Kemp v. Com., 1 Hen. & M. 85; Birch v. Alexander, 1 Wash. 84, and monographic note on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. 591.
    
    
      
      Executors and Administrators — Counsel Fees. — An executor or administrator may lawfully pay reasonable counsel fees out of the assets, as part of the expense of administration. Crim v. England, 46 W. Va. 480, 33 S. E. 35. Rep. 311, citing Schonler, Ex’rs, § 544; Lindsay v. Howerton, 2 Hen. & M. 9; Nimmo v. Com., 4 Hen. de M. 57.
      And if not paid by him, they may be decreed to be paid out of assets found in his hands unexpended. Crim v. England, 46 W. Va. 480, 33 S. E. Rep. 310. See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Equitable Assets. — Where a testator by his will charges his real estate with his debts, the real estate so charged will be equitable assets. See the principal case cited and approved in Black v. Scott, 3 Fed. Cas. 514; McCandlish v. Keen, 13 Gratt. 635.
      The principal case is cited in Jones v. Hobson, 2 Rand. 501, as authority for the proposition that a creditor cannot claim against, an executor the proceeds of land in a court of law.*
    
    
      
       Executors and Administrators — Ex Parte Settle-’ ment of Account — Evidence —The principal case is cited in Peale v. Hickle, 9 Gratt. 445, to the point that an ex parte settlement made by an administrator of his account as such with the court by which he was appointed, is prima facie evidence of its correctness, till the contrary is shown See foot-note to Newton v. Poole, 12 Leigh 112, and monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
      Lien of Judgment — Elegit.—The lien on lands created by a judgment is given by the statute which authorizes an elegit, and the lien depends upon the right to sue out an elegit. Bank v. Winston, 2 Fed. Cas. 743, citing Eppes v. Randolph, 2 Call 125; Nimmo v. Com., 4 Hen. <fb 3f. 57. See foot-note to Eppes v. Randolph, 2 Call 125, and monographic note on “Judgments” appended to Smith v. Charl-ton. 7 Gratt. 425.
      Same — Judgment in Favor of State. — And in support of the proposition that a judgment in favor of the commonwealth binds all the lands of the public debtor, see the principal case cited in Leake v. Ferguson, 2 Gratt. 436.
    
    
      
       1 WaRb. 90. Ross v. Gill.
    
    
      
       Rev. Code, vol. 1, c. 7G, s. 5, p. 108.
    
    
      
       Ibid. 113.
    
    
      
       Cb. Rev. p. 81.
    
    
      
       See Rev. Code. vol. I, p. 135, 136. Acts of 1789, c. 40.
    
    
      
       1 Hen. & Munf. 85.
    
    
      
       Rev. Code, vol. 1, p. 108.
    
    
      
       1 wash. 139.
    
    
      
       3 Call, 268.
    
    
      
       Toller, 207.
    
    
      
      
         Toller 210, 211.
    
    
      
       Toller, 201.
    
    
      
       Book 4, c. 2, s. 1.
    
    
      
      
         Note by the Reporters.
      See on this subj ect. Toller, 329. 330,1 Bro. Ch. Rep. Appendix, 6; Hargrave v. Tindal, 2 Bro. Ch. Rep. Si; Batson v. Lindegreene, 2 Fonb. 3d ed. 397 and 398, note (d).
    
   Tuesday, Maj' 16. The Judges delivered their opinions.

JUDGE TUCKER.

This was a superse-deas to a judgment of the General Court, on a scire facias issued on behalf of the Commonwealth, July, 1799, against the executor of Nimmo, formerly Sheriff of Princess Anne County, to revive a judgment against his testator in April, 1786. It appears from an exhibit, made part of the bill of exceptions, that the personal estate of the testator, (except a very few articles of household furniture, and one slave who had run away with the British army during the revolutionary war,) including his slaves, was sold in the testator’s life-time, under a venditioni exponas, issued from the General Court, at the in-' stance of the Commonwealth, and a return thereof made.

The first error, suggested in the petition for a supersedeas to this judgment, is, that the Commonwealth is bound by the statute of limitation ; and therefore the scire facias was forever barred, after ten years.

Whether the acts of limitations extend to the Commonwealth, or not, was fully argued and considered in the case of Kemp v. The Commonwealth, in which the plea of the act of limitations was the sole defence relied on. And this Court, consisting at that time of three Judges, Judge Lyons, Judge Carrington and myself, two of whom are not present, unanimously agreed that they did not, in civil suits, not founded upon any penal act.

But a collateral question growing out of these circumstances has arisen, and been discussed at the bar, namely, whether an executor is bound at his peril to take notice of all judgments obtained against his testator in his life-time, or not? That such is the law of England cannot be doubted, provided the judgment be docketed according, to the statute of 4 and 5 W. and M. c. 20, as we are told by *Judge Blackstone. (2 Comm. 511.) It would seem from this, that the rule is in some respects a statutory one; it must however be acknowledged that it was also a rule of the common law; to that effect is Cro. Eliz. 793, and Godolphin, in his Orphan’s Legacy, 170, is so likewise; though in 2 And. 159, the Court thought that an executor ought not to be charged .with a judgment of which he had no notice. But it is not every common law rule, founded upon the judicial system of that country, that can be deemed, in strictness, applicable to the circumstances and situation of this. In England there are only four Superior Courts of Record, all held at the same place, and their records accessible to every one who chooses to consult them. A regular train of attorneys, and officers belonging to these courts, and well versed in every thing that relates to them, are capable in a few hours of furnishing that information respecting matters of record, which might defy a life of researches in this. In this country we have now two hundred Courts of Record; the records transferred from one place to another in various instances; and the very names of some Counties in which Courts have formerly been held sunk in oblivion. There was once a County in Virginia called Rap-pahannock County, and another called Yohogania: there are no such Counties at this day. Can it be supposed, that under such circumstances, (even if the rule of the common law in England be such as above supposed,) an executor must at his peril take notice of all judgments against his testator in his life-time, in what Court, or part of the state soever, the same may have been entered? I conceive not; for, if such a principle be established as law, no man will ever be an executor.

But, while I reject the application of the rule to all judgments, I think it reasonably and justly applies to some. An executor may well be presumed capable of informing himself of judgments obtained against his testator in the County or District Court within whose jurisdiction he resided, and to whose process he was daily amenable.

So, as to judgments in the General Court, which has jurisdiction *over the whole Commonwealth in respect to public agents and defaulters. If a testator has been a public collector of taxes, this, of itself, is a sufficient warning to an executor, to inquire whether any judgment hath been obtained against him as a delinquent. And, if there be, it will be difficult to excuse his neglect in making the inquiry. But, in the present case, the judgment was nearly of five years standing before the testator’s death. His whole visible personal property, except a few trifling articles of household furniture, valued at 261. only, had been taken and sold upon an execution, issued in behalf of the Commonwealth. The executor might have concluded the debt satisfied, under such circumstances; especially if the agents of the Commonwealth had taken no steps to recover the balance, by an execution against the body of the testator, or had not given the executor actual notice that a balance still remained due. The great lapse of time (on which I lay great stress) between the judgment in April, 1786, and the testator’s death, in January, 1791, united with the circumstances just noticed, and the liability of a Sheriffs securities to make good any deficiency, prompt me to say, that unless notice of that judgment were proved to have been given to the executor, he ought not to be charged as for a devastavit in paying other just debts of his testator, merely on account of the notice which the law implies in such cases. For the reason of the law seems to be this: “that the judgments of all courts, upon matters or persons within their jurisdiction, are conclusive, so long as they are in force; and the parties are bound to yield obedience to them; and that obligation to perform follows the assets in the hands of the executor or administrator. ” Now, although a judgment may be enforced, either by a capias ad satisfaciendum, fieri facias, or elegit, within the year, yet after that period the judgment creditor cannot enforce his judgment, even against the testator himself, if living, without notice by sire facias. And it seems strange that an executor should thereafter be bound at his peril, to take notice of that of which his ^testator must receive notice, before he could be charged upon the judgment formerly obtained against him. If dormant judgments will not bind a purchaser without notice, wherefore should they bind an executor without notice?

Another error suggested is, that the sum of 1891. arising from the sale of the land directed by the testator’s will to be sold, was only equitable assets; and as such, distributable pari passu among all the creditors. The rule certainly is, that in administering legal assets the Court follows the law; but as to equitable assets it proceeds by the rule of equality, 4 Bro. Ch. 171, Lowthian v. Hassel. And in that case the Court refused to compel a creditor, who had by diligence obtained payment of one bond out of five, to bring the money received for that bond, into contribution. I am also of opinion, that the judgment having run out of date, ceased to be a lien upon the land, until revived by scire facias, according to the decision of Eppes v. Randolph, The act making Sheriff's lands liable to the Commonwealth’s judgments, did not pass until eighteen months after the judgment in this case, With respect to this 1891. I conceive the General Court ought totally to disregard it, as not being legal assets; leaving it to the Commonwealth to pursue its remedy for a due proportion thereof, as the Attorney-General may be advised.

We come now to that instruction of the Court to the Jury, directing that no discount, or credit, ought to be allowed the defendant for any item in his administration account, except for the funeral expenses. Such certainly is the rule laid down by Lord Ch. J. Holt, 1 Salk. 296. Our law is however more liberal; executors are to be allowed “all reasonable charges and disbursements, which they shall lay out and expend in the funeral of the deceased, and other their administration;” such, for example, as may be incurred in consequence of the provision contained in the 46th section of the act concerning wills, which in certain cases give him the charge and care of the whole estate, real and ^personal, for a certain period; and the same rule will hold, where a testator directs his estate to be kept together for a longer period. Our law also allows a compensation in nature of commissions to be made to executors, which I think the practice in England does not. On this point, therefore, I have no doubt that the instruction of the Court was not altogether correct. I am therefore of opinion, that the judgment be reversed, and the cause sent back, with directions pursuant to the preceding opinion.

JUDGE ROANE.

This was a scire facias issued on behalf of the Commonwealth, from the office of the General Court, on the 12th of July, 1799, against James Nimmo, surviving executor of William Nimmo, deceased. Its object was t©> enable the Commonwealth to have the effect of a judgment obtained against William Nimmo, the testator, in the General Court-on the 26th of April, 1786, for 2081. 10s. 4d. the balance of the one per cent, tax, collected by the defendant in the County of Princess Anne, for the year 1784, and 311.. 5s. 6 l-2d. damages; amounting in the whole to 2391. 15s. 10 l-2d. with interest and costs, as in the said writ of scire facias is. more particularly mentioned.

The appellant, (the executor,) having-appeared, pleaded, 1st. Payment by the-testator; and, 2d. Fully administered; on both which pleas issue was joined. The-Jury on the trial found against the defendant, on the first plea; and, on the second, found, that the defendant, at the time of issuing-the scire facias, had divers goods and chattels, which were of the testator at the-time of his death, in his hands to be administered, to the value of 2631. Is. 8d. parcel of the debt, damages and interest, aforesaid wherewith he might have satisfied the same pro tanto; and judgment was given against him for the same, in the form usual in such cases. This finding of the Jury was under the influence of an opinion of the Court, stated in the bill of exceptions, and to be presently more-particularly noticed.

The first inquiry which presents itself, is respecting the nature and character of this writ of scire facias; whether *it is a scire facias, to revive the judgment because of the lapse of ten years, or even of a year and a day since its rendition; or because of the death of the defendant, and the devolution of his interests upon his executor, who was no party to the original judgment. I rather think it is in this last view only that this scire facias is to be considered.

I will assign my reasons for this opinion. It is laid down in 6 Bac. Abr. 112,, that one who is no party to the record or-judgment, as heir, or executor, &c. though it be within the year, shall have no writ of execution to enable himself to the suit, and so of the tenant or defendant; for the alteration of the person altereth the process. On this ground, then, of the death of the defendant, this writ of scire facias shall be taken to have issued, especially if, in truth, one was not necessary on any other ground. This brings us to that inquiry, and more particularly to the question whether the Commonwealth was barred of her execution by the lapse of time in the case before us. That inquiry again presents itself in a twofold point of view ; 1st. Whether a scire facias be necessary, after the lapse of a year and a day, in the case of a judgment of the Commonwealth; and, 2d. If so, whether the right to sue out a scire facias is barred by the lapse of ten years under the act of 1792.

As to the first branch of this inquiry, it is held in 1 Salk. 603, that, in case of the King, there need not be any scire facias after the year and day: and it would seem that the declaration in the act of October, 1778, c. 2, “that no time shall bar the Commonwealth of execution,” has adopted this principle in relation to judgments of the Commonwealth. That act speaking of judgments in favour of the King, which did not require a scire facias after the year as aforesaid, it is reasonable to consider it as placing the Commonwealth in the same situation; as exempting the Commonwealth as well as the King from the necessity of suing out a scire facias. In opposition to this principle it is said, that the maxim “nullum tempus occurrit regi,” which gives this rule in England, arises from the royal ^prerogative, and is odious and inapplicable to the nature of our government. In answer to this objection it would seem that, while our Constitution inhibits to the “Governor the exercise of any power or prerogative, by virtue of any law, statute, or custom of England,” it does not interdict such preferences and pre-eminences as may be given to the Commonwealth by the acts of our own Legislature. In this latter class, the aforesaid act of 1778 causes the present case to fall; and that circumstance supersedes the necessity of considering how far, on general principles, the maxim “nullum tempus occurrit regi” applies to this country. Whenever that point must, of necessity, be decided; it will be important to consider how far the decision in Kemp v. The Commonwealth, and, also, what is said by the Court in the case of Birch v. Alexander, have seemed to give a countenance to its application. I will merely say, at present, that within my observation, the Commonwealth is not in general, and from the nature of the case cannot be, on an equal footing with private suitors, in respect of diligence, attention, &c. (however vigilant and faithful its officers may be), and that, therefore, the reason of this pre-eminence may be in some measure as applicable to the present government as to the former.

I leave that general question, however, for future decision. It is not necesary to be decided in this case; for here the Legislature has spoken explicitly on the subject in the aforesaid act of 1778. That act has never been repealed; it is founded, perhaps on good reason; is supported by the analogy, as to this point, of the doctrine in England as aforesaid; and therefore, neither the general limitation as to writs of scire facias provided by the act of 1792, nor the common law limitation of a year and a day, does, I think, embrace the judgment in question. The Common-wealth, therefore,'had a right to sue out the scire facias in this case, the lapse of time notwithstanding; and was entitled to recover, in satisfaction of its judgment, all such of the testator’s assets as were not otherwise legally administered in favour of other creditors.”

Having thus cleared the way for the consideration of the particular instruction of the Court, under which the verdict of the Jury was found, and which verdict can only stand in the event of that instruction being correct, let us examine the rectitude thereof.

The defendant, at the trial, having given in evidence, in support of his second plea, an account of his administration which had passed the Auditors of Princess Anne Court, on the Sth of May, 1800, who reported that vouchers were produced to them to sustain the charges in the account, leaving a balance of 271. Is. 1 l-4d. in the hands of the executor; the Attorney-General, on the part of the Commonwealth, gave in evidence to the Jury an inventory signed by the executor, (the items of which exactly correspond with those of the credit side of the account exhibited by the defendant,) with a memorandum thereon that “the other personal estate of William Nimmo, including his slaves, was sold in his lifetime under a venditioni exponas, issuéd from the office of the General Court, at the instance of the Commonwealth, and a return thereof made by the Sheriff of Princess Anne;” and moved the Court to instruct the Jury that no credit should be allowed the defendant for any item in his aforesaid account, except for funeral expenses; alleging that it appeared, from the memorandum aforesaid, that he had notice of the judgment aforesaid, before making the disbursements in the said account mentioned.

The Court did accordingly instruct *the Jury to the effect desired by the Attorney-General; to which instruction the defendant excepted.

I am of opinion that this instruction was eminently erroneous in all those particulars (and for the reasons so luminously) stated in the last seven errors assigned in the petition for the supersedeas. I beg leave to refer to those reasons particularly; and to adopt them as the ground of my opinion on this part of the case. They had great weight with me at the time of awarding the supersedeas, and I understand are now all assented to by the unanimous opinion of the Court. Still, as those exceptions do not go to the whole of the items contained in the account; and, as the Commonwealth is not barred from recovering in this case on the merits, she is entitled to a judgment for the residue of the account; unless she be precluded on the ground stated by the Judge who has preceded me; that is, on the ground that the executor was not bound to take notice of the judgment on which the scire facias is founded. Between the rendition of the judgment against the testator and his death, less than five years had elapsed, and that Judge seems to suppose that the executor had a right to presume, from such lapse of time, and because no express notice is shewn to have been given him of the existence of the judgment, that it was paid, and that consequently he was authorised to apply the assets to the pa3Tment of debts of inferior dignity.

I am not prepared to say that the memorandum before mentioned amounts, on account of its indefiniteness, to proof of express notice of this particular judgment; but this I am prepared to say, that this judgment, being rendered in the General Court, having at the time general jurisdiction throughout the Commonwealth, against a public collector; a Court having the peculiar jurisdiction in the fiscal concerns of the Commonwealth, and five years not having elapsed since its rendition; ought to have been taken notice of by the executor, at his peril, in the administration of the cases of the testator. X should suppose *it would be readily admitted on all hands, that, within the year and day, the executor must have taken notice of it; but if, m respect of debts due to the Commonwealth, this limitation does not exist to bar the execution as aforesaid, this case cannot be differed from one in which that lapse of time had not occurred.

It is a universal rule that judgments and debts of record are to be preferred, in the administration, to simple contract debts, and that executors ought, at their peril, to take notice of them. In Lettleton v Hibbins, which was scire facias v. executors, upon a judgment against the testator in debet; “they pleaded that, before they had any conusance of this judgment, they had fully administered all the assets in paying debts upon obligations ; and thereupon it was demurred and on argument adjudged that it was not any plea: for that they at their peril ought to take conusance of debts upon record, and ought first of all (unless for debts due to the Queen wherein she hath a prerogative) to satisfy them, and although the recovery was in another County than where the testator and executors inhabited, it is not material.” In Ordway v. Godfrey, to a scire facias v. an administratrix to have execution of a judgment against her intestate, the plea was (in general) that she had no goods to be administered at the time of suing the writ, or afterwards; on demurrer, this was held to be no plea; for that “a judgment cannot be answered without another judgment, and it may be she had administered all the goods in paying debts upon specialties, which is not any administration to bar the plaintiff;” and “that she should have pleaded specially how she had administered.” This decision seems full up to our case; not only as to the point of the bar, but also as to the generality of the plea, which in that case was held to be insufficient. It is true that, in a note in 3 Bac. Abr. 80, referring to this case, (which had now perhaps become the general doctrine,) it is said, that the executor may, to the scire facias, plead generally that 'x'he hath fully administered, without shewing that he did so in paying debts of as high a nature; but yet that that must be “proved upon the evidence, else the trial will fall out against the executor.”

In Herbert’s case, it is said by the Master of the Rolls, inter alia, “that executors shall be presumed to take notice of all judgments, even in the inferior Courts of Haw, and therefore are not to pay bonds before such judgments, at their peril.”

And, in a verjr late case, this doctrine is fully admitted; with this exception, indeed, that the judgment, in order to have the preference, must be docketed according to the English statute of 4 and 5 Wm. & Mary, c. 20, That decision, which was in favour of the administratrix, turned solely on the necessity of complying with the requisites of the statute in relation to docketing the judgments, which, otherwise, were thereby deprived of their preference: in other respects it entirely affirmed and admitted the doctrines I have been stating; and, therefore, (as we have no such statute in this country,) the decision is full up to the point before us. The superadding the requisite of docketing judgments in England, by the Legislature, in order to enable executors the more easily to find them out and know of their existence, shews that the hardship oi the case, in relation to the judgments of the County Courts, (to be presently more particularly noticed,) is improperly addressed to this tribunal.

Testing our case by these decisions, it is incontestible, that the executor should have taken notice of the judgment mentioned in the scire facias, at his peril; and that he should have shewn in his plea, or at least, proved on the trial, that he had applied the assets to the payment of debts of as high a dignity, or else there would be no bar; neither of which has he done.

Thus stands the case as upon the English authorities. I will now refer to an opinion delivered in this Court, laying down the law on this subject with great preci-sion and "propriety. It is that of Judge Fleming in the case of Mayo v. Bentley, It applies exactly to the question now before us in all its parts, and overrules all the objections which have been taken on the ground of notice. This Court was divided on the main point in that case of Mayo v. Bentley; but there was no division whatever upon any principle or topic embraced by so much of that opinion as I shall now quote. I yield to the doctrine it contains my most decisive approbation.

In that case Judge Fleming said, “In the general division of debts (after funeral and testamentary charges are paid) there are three sorts; 1st. Debts by record; 2d. Debts by specialty; and, 3d. Debts by simple contract. Passing by the cases in the English books respecting debts due to the Crown, and those by recognisance and statutes, let us consider such debts only, as are due from citizen to citizen, and apply to the case now under consideration. Debts by judgment, then, being first in order, are to be first paid ; and being debts of record, an executor or administrator is bound to take notice of them at his peril, however distant the record may be from his residence : and in the present case there was a judgment for 2701. .against Wm. Ronald in the County Court of Accomac; and, had the administrator exhausted the assets in paying debts of inferior dignity, he must have answered it (that judgment) out of his own estate.” I shall leave this opinion to speak for itself: it is so apposite and emphatical that I can add nothing to it.

In the case of Hopkirk v. Pendleton, decided in the Federal Circuit Court of this State at the last term, and of which a gentleman of the bar has obligingly favoured me with-a note, the facts were these: In the year 1772, Spears, Bowman & Co. (of whom Hopkirk is surviving partner) recovered a judgment against Gunn, in the County Court of Henrico; soon after which Gunn died, leaving Pendleton and others his executors, of whom Pendleton qualified and proceeded to administer the assets. In 1803, *Hopkirk brought debt on the said judgment; Pendleton pleaded fully administered, on which there was an issue. The Jury found a special verdict, in which they state the judgment of 1772; that the same had not been paid; and that Pendleton had fully administered the assets by paying debts due by specialties and simple contracts, and referred the law to the Court, as to the right of the plaintiffs to priority. Chief Justice Marshall decided that the defendant was bound at his peril to take notice of the judgment, and having paid debt of inferior dignity, they were no bar to the plaintiff’s recovery. I shall make no comment on the application and appositeness of this decision to the case before us.

I have already remarked that the judgment in question was one of the General Court; a Court having at the time a jurisdiction (and especially in relation to fiscal concerns) coextensive with the limits of the Commonwealth. This case then steers clear of objections, as to this point of notice, in relation to judgments of merely local Courts. I am sensible that great hardships may exist in obliging an executor to notice the judgments of the numerous and local Courts of our country : but these hardships did not prevail with respect to the lien upon lands created by a judgment, although the objection was taken with great ability in the case of Eppes v. Randolph, In that case alien was supposed,, though not decided, to be created by the judgment of any County Court in the Commonwealth ; (due requisites in other respects-being observed;) and that in relation to land, which is not thé proper and natural fund for the payment of debts. It therefore goes beyond the case at bar, which only relates to personal property, the natural subject of administration. Neither did that argument of hardship prevail in either of the cases of Mayo v. Bentley, or Hopkirk v. Pendleton, in both of which it equally existed; and yet the general doctrine was adhered to. It is certainly not very necessary (as the judgment • before us is a judgment of the General Court, and therefore *not different, as to the' point of notice, from the judgments of the Courts of Westminster Hall in England), to consider the question in relation to the judgments of the County or other local Courts. But, I may be permitted to ask, (inasmuch as almost all our Courts have now become local in their jurisdiction,) if the objection now taken were to prevail, what would become of the rule of law, established time immemorial, giving judgment debts a preference? Would not such a construction repeal that rule? and is this a power proper for the Courts of Justice to exercise? It is true that a new tier of Courts has been lately created by the Eegislature, making the number of these local tribunals perhaps amount to 200; but the principle is not changed thereby, but merely the degree of the hardship. I shall therefore adhere to the doctrine existing, time out of mind, in this country, giving to the judgments of the County Courts the same effect, in relation to the rights of creditors, as to those of the General Court: I should therefore have no hesitation to give to the judgments of all the Courts of Record in ' the Commonwealth, the same effect as was ascribed by Judge Fleming to the judgment of the County Court of Accomac, and by Chief Justice Marshall to that of the County of Henrico, in the opinions and judgments I have mentioned.

The result of my opinion is, that the judgment before us ought to be reversed; the instruction of the Court being erroneous; that, in directing the instruction proper to be given on the future trial, we should affirm the right of the executor to a credit for all the items comprehended in the last seven errors assigned for the super-sedeas; that, with respect to the 1871. for the land sold, stated in the account, the Commonwealth is entitled to no part thereof, except by application to a Court of Equity, and then only, (as it now appears to us,) pari passu with other creditors; and that, as to all the moneys paid by the executor, as stated in his account, to satisfy debts of dignity inferior to the judgment in question, he paid them in his own wrong; and -'that pro tanto the Commonwealth ought to be permitted to take out its execution.

JUDGE FEEMING.

The three principal points in this case are, 1st. Whether the Commonwealth was barred from issuing a scire facias to renew the judgment in question, after a lapse of ten years? and if not, 2d. Whether actual notice of the judgment, to the executor, was necessary, or in other words, whether he was not, at his peril, bound to take notice of it, and to govern himself accordingly? And a third question is, whether the General Court erred in instructing the Jury, ‘ ‘that the defendant was not by law entitled to any credit or discount, for any item in his administration account, except for the funeral expenses.”

On the first point, little need be said. The English maxim of nullum tempus oc-currit regi, seems to have been recognised and enforced fry our Legislature, soon after the revolution; as by the act of October, 1778, c. 2, s. 4, it is declared, that “no time shall bar the Commonwealth of execution.” And the rule seems to have been well settled in the case of Kemp v. The Commonwealth, in October, 1806.

With respect to the second point, it seems to be settled that executors ought at their peril to take conusance of debts upon record ; and first of all to satisfy them; and although the recovery be in another County than where the testators and executors inhabit, it is not material. And on this point, the opinion of this Court was unanimous (as well as my memory serves me) in the case of Mayo v. Bentley, administrator of Wm. Ronald. And if an executor or administrator is bound to take notice of a judgment on record, though in a distant country, a fortiori is he bound to notice a judgment of the General Court, having jurisdiction over the whole State, and where judgments against public debtors are most commonly rendered. As to the third point, I have no doubt but the General Court erred in the instruction given to the Jury, at the *trial: for in the act concerning wills, the distribution of in-testates’ estates, &c. section 52, it is enacted, that executors and adminstrators shall be allowed in their accounts, all reasonable charges and disbursements, which they shall lay out and expend in the funeral of the deceased, and other their administration, and may be allowed such recompense for their personal trouble, as the Court, in passing their account, shall judge reasonable.

There are several articles of this description, in the executor’s account passed by the County Court of Princess Anne, and particularly stated in the petition for a su-persedeas, for which the appellant ought to have had credit, but were rejected by the Jury, in consequence of the erroneous instruction of the Court.

I am also of opinion that the sum of 1891. stated in the executor’s account to have arisen from the sale of 126 acres of land, left by the will of the testator to be sold for the payment of his debts, was not legal, but equitable assets only, and as such distributable pari passu among all the creditors; and therefore ought not to be appropriated to the Commonwealth alone.

X am of opinion, upon the whole, that the judgment ought to be reversed.

By the whole Court, (absent JUDGE LYONS,) the judgment of the General Court reversed.

The judgment of this Court was, that the judgment of the General Court “is erroneous in this, that the said Court instructed the Jury that the defendant, now plaintiff, was not entitled to any credit or discount for any of the items in his account of administration, stated in the bill of exceptions, except for the funeral expenses; therefore it is considered, that the said judgment be reversed and annulled. And this Court is further of opinion, that the plaintiff ought to have been allowed all reasonable charges and disbursements laid out and expended by him in the administration of the estate of his testator, as stated in his account audited and passed by the County Court of Princess Anne, and set out at large in the bill of exceptions ; but that the several sums paid to Haynes Brent, Prudence Thetaball, James Simpson, Mary Selden, Latima Holstead, Gresham Nimmo, and Elizabeth Hunter, being paid in discharge of debts of dignity inferior to that of the judgment mentioned in the said writ of scire facias, were paid by the said executor, so far as the same were paid out of the legal assets of the testator, in his own wrong, and therefore that he ought not to have any credit therefor. This court is also of opinion, that the sum of one hundred and eighty-nine pounds, the amount of the sales of one hundred and twenty-six acres of land, stated in the account aforesaid, as left by the will to be sold, not being legal, but mere equitable assets, and as such distributable pari passu among all the creditors of the testator, ought not wholly to enure to the benefit of the Commonwealth, by virtue of the judgment in question, and, being equitable assets only, as appears to this Court, is not a proper subject for the cognisance of a Court of Law; whereupon, It is ordered, that the Jury’s verdict be set aside, and that a new trial be had in the cause; upon which an instruction is to be given to the Jury in conformity to the principles declared by’ this opinion of the Court, which is ordered to be certified to the said General Court.” 
      
      1 Hen. & Munf. 85.
     
      
       Per Lawrence, J., 6T. R. 388, Hickey v. Hayter.
     
      
       Vide Acts of 1785, c. 69.
     
      
       See Ld. Ch. TAlbot, Forest. 222.
     
      
      b) 2 Call, 187, Eppes. &c. v. Randolph.
     
      
      c) 3 Call. 180.
     
      
       1787, c. 40.
     
      
       Constitution of Virginia, art. 9.
     
      
      0d) 1 Hen. & Munf. 85.
     
      
       1 Wash. 34.
     
      
       Rev. Code, vol. 1, p. 108.
     
      
       Note by Judge Roane.
      Since this opinion was delivered, I have been, informed by Mr. John Brown, Clerk of this Court, that he has never known a scire facias to issue, on the mere ground of the lapse of time, either under the royal or present government, in the case of executions in favour of the King or Commonwealth; but that the practice was to issue executions without such process, unless it was rendered necessary by the change of parties.
     
      
      ía) Cro. miz. 793.
     
      
       Ibid. 575.
     
      
       3 P. Wma. 1X7.
     
      
      vd) Hickey v. Hayter, 6 T. R. 384, anno 1795.
     
      
       Call's MS.
     
      
       3 Call, 135.
     
      
       1 Hen. & Munf. 85.
     
      
       Cro. Klix. 793, Littleton v. Hit)"bins.
     