
    The Executors of Harbison against The Administrators of Giles.
    Notes of hand are not, by the 45th see» tion of the county court act, put upon a footing with, bonds, and to he paid .hi average u ill» them, hut must, under the executor’s law, (in case of a deficiency of assets,) he paid according to the course of the common lan'.
    UPON plene administravit pleaded in this ease, the question was, whether a note of hand given in June, 1786, was become a specialty by virtue of the 45th section of the county court act, and was to be put on a footing with bonds, and paid in average with them, under the executor’s and administrator’s law, in case of deficiency of assets f
    
    
      Parker, for the plaintiff,
    urged, that this clause of the county court law had altered the common law, and made that which was only a simple contract, a specialty. That the house of assembly had a creative power, and, in this instance, had exercised it, by giving existence to a new kind of specialty unknown to the common law ; and, of course, had given the same kind of efficacy to a writing, without sealing and delivery, which belonged to one with all these legal solemnities ; and had, by this means, put notes and bonds upon the same footing. That the county court law having thus put them upon an equality, the executors’ law, passed in 1789, found them so. That the 26th clause of this act, classed bonds and other obligations together, as of equal degree, and expressly directed that in case of a deficiency of assets, no preference should be given to debts of equal degree. Besides, the word obligation in the executor’s law, was of the same import as the term specialty, mentioned in the county court law; and that notes, being thus made spe~ eialties, should, according to the legal construction of the 
      executor’s law, be considered as obligations, and, of course^. ■ paid in áverage and proportion with bonds-. \
    
      Ford, for the defendant,
    contended, that to give such a construction to the clause in question, was an absurdity and a solecism in terms ; for specialties in law were instruments under hand and seal, executed and delivered with legal solemnities, in direct contradistinction to loose notes and memorandums in writing, which were inferior in degree and efficacy to them. This clause in the county court act, was never intended, he said, to alter the common law, with regard to the legal import and efficacy of these solemn deeds, but only to regulate the practice of the county courts, and to blend a number of actions together into one, in order to prevent confusion which might arise in those courts, by inexperienced practitioners, unacquainted with the nice distinctions of actions ; for it expressly, declares “ that all u judgments, bonds, bills, promissory notes, &c.- shall com w stitute specialties-, and that all suits brought on them in w those courts, shall be by action of debt only,” which shews that they only meant to consolidate the action of assumpsit, covenant, and debt, into one common mass.- This must have been the obvious meaning of the clause, if it meant any thing. Besides, the common law was never altered by-construction, but always by some express and positive act. It was a maxim of the common law that a statute made in the affirmation, without a negative express or implied, cannot alter the common law. 2 Fist. 200. 4 Bac. 641. That the common law had wisely given a preference to solemn deeds under hand and seal, on account of the care and circumspection used in the making and delivery, and that nothing in this clause positively or expressly destroyed' this preference given by the common law. It still remained, although notes were constituted a kind of specialty for bringing the action of debt in the county court, and there only. He further contended, that wherever a new remedy was given by a statute in a particular case, (as the present,) this should not be construed to alter the common law in any other than the particular case. 11 Rep. 59. Hob, 
      298. 4 Bac. 647. That by this clause a new remedy was given, to wit, the action of debt, for the old action of as-sumpsit in the county courts. But the giving this new remedy, did not alter the priority or precedence which bonds had in point of payment to notes, &c. In this respect, notes stood precisely on the same footing they did before the passing of the law; that at all events, this clause in the act was a very doubtful one, and it was difficult to collect from it, whether it was intended to alter the common law as to the efficacy of bonds and notes, or only to regulate the practice in the county courts ; and that this being the case, it was a rule of law that all obscure statutes ought to be construed according to the rules of the common law; Win. 86. 4 Bac. 647. Giving it therefore this construction, bonds must have a preference in point of payment. If, however, a doubt could arise on the construction of the clause in the county court law, the executors’ lav/ put it beyond doubt; for it expressly directs the order in which debts should be paid, viz. judgments, mortgages, executions, rent, then bonds and other obligations, and lastly, open accounts, &c. not a word about this new created specialty mentioned in the county court law : on the contrary, it recognises the course of the common law, with regard to payment in case of a deficiency of assets. Bonds and other obligations are classed together as of equal degree. The term obligation is well known &% common law to be an instrument under seal, in contradistinction to bills, notes, &c. which are only promises in law, and inferior in their nature to deeds under seal. Then it is a maxim in law, that where a statute makes use of a term known at common law, it shall be taken in the same sense as it is taken at the common law. 6 Mod. 143. ¿¡Bac. 647. The word obligation therefore, cannot legally be construed to mean a note of hand or bill, not under seal, when it is known in law to be a deed under seal.
   The Court

(present, Rutledge, Ch. J. Waties, J. and Bay, J.)

were clearly of opinion with the defendants on eve-try ground. That the note in question ought to be subject to the rules of the common law, and could not legally be paid in average and proportion with bonds or deeds under seal.' That a contrary adjudication would be altering the common law by construction, when there were no express words in the clause making such alteration. That the clause in the county court act, seemed calculated rather to regulate the practice in those courts, than to change the legal efficacy of deeds under seal, or placing notes or memorandums in writing, without seal, upon a footing with them. That at all events, as the clause alluded to was involved in obscurity, and contained in itself a glaring contradiction in legal terms, they thought it was the duty of the court to resort back to the common law, and make that the rule of their decision in the present case; and the more especially, as the executor’s law recognised the principles of the common law in the payment of debts, and in no part justified the construction contended for by the plaintiffs.  