
    M’Teer against the Executors of Ferguson.
    
      August 30, 1790.
    Where a legatee accepts'of a bond from the executor for the amount of his legacy, St extinguishes the legacy, and creates a new debt ; and, if given before 1787, it comes under the instalment law. Notwithstanding, the amount in the hands of executor, if no such bond had been accepted,might have been money had and received in his hands for legatee’s use»
    THIS was an action of debt on bond. The bond was entered into in the life-time of testator, previous to the 1st of January, 1787, and came under the instalment act, which makes all debts previous to that day payable by five equal an» nual instalments.
    
      Read offered evidence to shew that this bond was given for a legacy due to the plaintiff, which was in the hands of testator, as executor of the estate from which it is payable. That it therefore came under the denomination of money had and received by the testator to the plaintiff’s use, which was one of the exceptions in that act, and insisted that this debt was not liable to be paid by instalments.
    Pinckney, for defendants,
    cited Butter, 182. “ That a bond “ given to a legatee extinguishes the legacy.” From whence he argued, that the bond created a new debt, in which not the estate, but the executor, in his private capacity, was the debtor; and that from this change of the nature of the debt, all relation with the legacy was determined.
   Waties, J.

charged the jury, that this bond clearly created Strew debt, which the legatee thought proper to accept of, in lieu of the bequest mentioned in testator’s will, and as it was previous to the 1st of January, 1787, it came under the instalment act, and was no otherwise recoverable than as that act directs; and the jury found accordingly.  