
    GENERAL COURT,
    MAY TERM, 1793.
    John Lee Webster against Hammond and Stevenson, Executors of John Stevenson.
    IN this case a suit was brought in the county court of Baltimore by the appellant, upon a single bill, dated the 2d of August, 1783, for 141/. 15s. current money, which bill was endorsed ; that the testator, on the 4th October, 1784, paid 94/. Os. 6d. current money, and also a payment made 29th January, 1785, of 21/. 11s. current money. The writ issued on the 3d of February, 1791. The defendants pleaded payment by the testator; they also pleaded a bond executed by the testator with one Benjamin Howard, to Ann Tasker, dated the 25th of July, 1769, conditioned for the payment of 900/. sterling, to be made by the said Howard to the said Tasker, and which debt, with interest, remained due and unpaid, &c. } that a judgment had been obtained upon the said bond in the general court, by Dulany, executor of the said Tasker„ against the defendants, as executors of the testator Ste~ venson, de bonis testatoris; that the sum of 2,035/. current money, debt, and 822lbs. tobacco, costs, are still due and owing upon the -said judgment; that they have fully administered, &c. except goods arid chattels to the value of 981/. 16s. 3d. current money; and that they had not, on the day of issuing the writ aforesaid, or since, had any goods, &c. except to the said value of, &c. which are liable to the payment arid satisfaction of the said sum due upon the judgment, &e. with an averment that they had no notice of the debt of the plaintiff in this cause before the writ issued, See. Replication, non-payment to first plea, and issue joined, and to the other plea, replication “ that the sum of 1,070/. current money, hath been paid to the said Dulany, in part of the said judgment, and in satisfaction of the samé, by the defendants, and that the said defendants, on the day of the impetration ofthe writ of the plaintiff, had divers goods and chattels, which were of the said J. S. at the time of his death, in their hands to be administered; over and above goods and chattels sufficient to satisfy the said sums of money then and now due and payable on the said writing obligatory and judgment aforesaid, wherewith the said defendants could have satisfied the said plaintiff his debt and damages aforesaid, to wit, at Baltimore county aforesaid : and this he prays may b.e inquired of by the country; and the said defendants, in like manner,” &c.
    Verdict upon the first issue for the plaintiff, and that the sum of 54/. 17s. 3d. current money, is due upon the writing obligatory.
    Verdict upon the other issue, “ that the sum of 1,070/. current money, hath not been paid to the said Dulany in part, &c. and that the defendants had not goods and chattels, &c. over and above .goods and chattels sufficient to satisfy the said sums of money then';” &c. Judgment entered at March term, 1792, upon the said verdict for the plaintiff, of assets in futuro.
    
    At the trial of the cause the plaintiff, by his counsel, . r . . , . offered in evidence to the jury, to maintain the issue last above joined on his part to be maintained, that the said defendants, as executors as aforesaid, had, in the course of their said administration, paid away debts of simple contract to the amount of the debt and damages in this behalf claimed, after the said executors had notice of the said bill obligatory in this cause declared upon, and the debt thereon to be due and owing to the plaintiff, by the said plaintiff showing the said bill to the said W. H. one of the said executors and defendants ; whereupon the court directed the jury, that inasmuch as there was no suit brought on the said bill before the said payment so as aforesaid made of the said simple contract debts, that there was not sufficient evidence of notice to charge the said executors by reason of the payments of the said simple contract debts, with the said debt and damages in this behalf claimed: to which opinion the plaintiff, by his counsel, excepted, &c.
   The plaintiff appealed to the general court, and

Chase, Ch. J.

delivered the following opinion of the court:

Before I consider the question I would make a few general remarks.

Every executor or administrator is obliged by his duty, oath and law, to administer the goods and chattels of the testator or intestate, which come to his hands, according to law.

The law, before the act of 1785, c. 80. established the order in which debts due from the testator or intestate to private persons, should be paid.

1. Debts of record (and decrees in chancery, 2 Vern. 89.) of which the executor or administrator was obliged to take notice at his peril; for if he paid previously any other debts, he thereby became guilty of a devastavit, and liable to pay such debts of record and decrees de bonis propriis. The person who first sueth execution' must be first preferred. Before execution, the executor or administrator may prefer which he pleases. If two or more issued scire facias, the executor or administrator may confess assets to which of them he pleases, and plead generally plene administramt to the other scire facias. Swinb. 402.

2. Debts by specialty, or for rent, or on foreign bills of exchange, or inland bills or negotiable notes, &c. since 1766, of which the creditor ought to give timely notice to the executor or administrator. By timely notice, I understand information before he has given judgments in actions of debts of an inferior nature. An executor or administrator may prefer any of these creditors he pleases, in the same manner as creditors of record.

3. Debts on simple contract, of which the creditor ought to give notice. 1 Went. 133. 2 Went. 73. 110. Law of Test. 430. Godolph. 215—225. 1 Com. Dig. 245. 2 Bl. Com. 511. Swinb.

From this legal order of paying debts the executor or administrator cannot depart. If he pays a debt on simple contract, after notice of a debt by specialty or decree, or on bills of exchange made in certain cases, equal to specialties by act of assembly, or for rent, and there should be a deficiency of assets, he is answerable to the amount of such improper and illegal payment out of his own proper goods. Bull. 141. 178. Fitzg. 76.

The law gives an executor or administrator certain privileges which he cannot be deprived of even in equity, unless by fraud. He may pay or retain in his hands to pay his own debts, in preference and prejudice of debts of equal degree. 10 Mod. 496. 11 Vin. Abr. 296.

If debts are of the same degree, (and the time of payment arrived,) the executor or administrator may pay which he pleases first, unless action is commenced, and in this case he may give a preference by confessing assets, in any subsequent suit, and he may plead such judgment to the action first commenced, and he may delay the first suit for this purpose. Swinb. 459. 1 Lev. 200. 10 Mod. 496. 1 P. Wms. 295, 5 Com. Dig. 203. 11 Vin. Abr. tit. Executors, 270. Swinb. 398.

If an action is brought against executor or administrator, and he has paid debts of a superior degree, or such debts are outstanding and unsatisfied, he must plaed such debts iu bar of the action, and cannot give it in evidence on plene administravit. 3 Lev. 114.

Commencement of suit (which may be immediately on death of testator, 2 Atk. 301.) will sometimes entitle to a priority of payment, (2. e. restrain the election of executor or administrator,) as in the case of debts of equal degree, and action is brought by one of the creditors, the executor or administrator cannot pay the debt on which suit is not brought, but he is bound to discharge the debt in suit. Law of Test. 427. Cro. Eliz. 41. Swinb. 458.

The court of Baltimore county was of opinion, that an executor is justified in paying simple contract debts after notice of a debt by specialty, unless such notice was by-action commenced. Cases cited, 1 Mod. 174, 175. So argued Chappel, in Fitzg. 77. and Lev. 113. 3 Mod. 115. Comb. 35. 2 Show. 492. Vaughan, 89. Esp. 293. 2 Bl. Com. 512. Dyer, 32. a. 2 Lev. 60. Special Pleader, 279. 2 Bac. Abr. 435. 1 Durn. & East, 690.

The opinion, therefore, of the court below is erroneous, because contrary to law, uniform practice, and greatly detrimental to administration of estates.

Notice may be in writing, or verbal. Went. 145. Law of Test. 428. Vaugh. 94. S. C. 11 Vin. Abr. tit. Executors, 296, pl. 8. Andr. 340. Fitzg. 76, 1 Barnad. B. R. 186. 2 Cro. 535. 1 Com. Dig. 245. 1 Durn. & East, 690.

Hollingsworth, for the appellant.

D. M'Mechen, for the appellees.

The plea is always plene administravit before notice. Clk. Asst. 167. 2 Bro. 100.

If notice by suit, the plea must be plene administravit before writ issued.

Such decision would compel all specialty creditors t<j sue.

Let the judgment be reversed.

Procedendo awarded to the county court.  