
    
      Littlejohn v. Underhill's Executor.
    
    This is an action of debt upon an obligation given by the testator in his lifetime. The defendant pleaded ‘payment and set off, prior judgments, judgments confessed, no assets, no assets ultra, retainer, plene administravit in all its forms; on which pleas issue was joined. The jury now find a verdict for the plaintiff, on all the issues, subject to the opinion of the Court on the following case.
    The plaintiff’s writ was executed on the defendant on the 2d January 1815, returnable to Chowan County Court on the second Monday of March ensuing. The defendant sold all the property of his testator on the 17th January 1815, at six months’ credit. At March Term, to wit, on the 17th of March 1815, the defendant entered the foregoing pleas. The defendant, on the trial, introduced satisfactory evidence under the plea of ‘retainer,’ and for the payment of the funeral charges and his own commissions, with the disbursement of all the assets with which he was charged, except the sum of $ 704 60; and as to that sum, he offered the following evidence. First, as to $ 100 of it,—that among his testator’s negroes was one by the name of Sarah, so old and infirm as to be incapable of labour ; and that he had set her up to be provided for during the remainder of her life, to the lowest bidder ; that the sum of $ 100 was the lowest bid ; and that accordingly he had paid that sum for this purpose. And as to $ 604 60 he offered in evidence a number of judgments on warrants brought on specialties before a justice, which were taken between the 21st of January and the 17th of March 1815, and were paid by him previous to the issues being joined in the suit, and which judgments were of the following tenor, to wit, “judgment in favour of the plaintiff for the sum of . Thomas Brownrigg the executor, present, pleads ‘ plene administravit in all its forms, no assets, judgments, bonds, notes, retainer, and no assets ultra, suits on bonds and notes.” The pleas are admitted, and signed by the justice.
    In some of these warrants the magistrate had given judgment for thirty pounds, the amount of the specialty, together with interest according to specialty, previously accrued thereon ; and the whole judgment thus exceeding thirty pounds. The amount of the excess of interest, which upon the warrants collectively, is $ 28 40, has been paid by the executor. It is submitted to the Court to determine if the preceding questions are decided in favour of the defendant, whether these judgments should be allowed the defendant, as proper vouchers for the whole amount, or for any part? And it is agreed, upon this statement of the case, to be submitted to the Court to decide whether the defendant was justified in paying the above mentioned sum of money for such purposes, in preference to the plaintiff’s demand. And judgment is to be entered up according to the opinion of the Court, for such sum as they shall direct.
    
      Browne, for the plaintiff.
    The plaintiff's writ was executed January 2d., 1815. All the estate was sold January 17th, 1815.
    All the estate being in his hands when the writ was executed, was assets to satisfy the plaintiff’s claim.—1 Law Rep. 99. lb. March 1715, 120.
    Unless he can show that he retains it for the purpose of satisfying a prior claim of a third person, or an equal one of his own; or that, before pleading, he paid on compulsion, or voluntarily before notice.—1 Off. Ex. 145.
    The utmost that has ever been allowed, is for the administrator to confess assets to an equal claim, and then plead that confession.—Doug. [452]. Waters v. Miel's Adminitrators.
    These assets had not been confessed to the judgments offered in evidence, nor had they any lien on these assets for they were, quando acciderent.
    
    The act of 1803, c. 1, gives to justices of the peace jurisdiction of "all demands of thirty pounds and under, for a balance due on any specialty contract,” &c.
    
      Here, it appears, that some of the judgment were given in cases where there was above thirty pounds due on the specialty; which was assuming a jurisdiction not given by the act of Assembly, and the judgment was absolutely void, and of no more force than if given by any other individual. Com. Dig. Courts P. 15.
    Therefore, being no judgment, the payment cannot be justified as the payment of a judgment; and as the payment of a specialty it cannot be justified; for the bringing of our suit had so attached the assets as to prevent the defendant from disposing of them unless by confessing them to a suit. 1 Off Ex. 145. Doug. [452]. Waters v. Meil's Admin.
    As to the $ 100. If it is said that he was bound to support the negro, I answer that he was bound as administrator. And as administrator, he was bound to pay our debt. To pay simple contract debts; but that would be no answer to a specialty creditor, who had given notice. To pay legacies; but that would not defeat a creditor who had paid in time. To pay the rent of leased premises; but if he had no assets and did not enter, he would be excused.
    Besides, the duty of maintenance was only to become due from time to time. And even among equal claims the administrator is bound to pay that which is due, in preference.—1 Off. Ex'or. 143.
    The rent due at testator’s death is a debt. That which becomes due afterwards is not.—Ib. 146, 7.
    
      Nash, for the defendant.
    There can be no difference between one judgment absolute, and one rendered quando, with respect to the question now before the Court. For if we were not protected by the letter, we must pay both plaintiffs without having assets to do so, and without mispleading. We do not set up a voluntary payment against the plaintiff’s writ, but judgments which we had no power to resist. As to the judgments, the magistrate had jurisdiction. The warrants show this.—And even if the judgments might be reversed for error, they are nevertheless a bar as long as they remain in force. The true inquiry is, not whether judgments so obtained are erroneous, but whether they are fraudulent;—and of this there is ho suggestion.—1 Stra. 410.
    With respect to the support of the negro, we think it sanctioned by the act of 1798, c. 13.
   Per Curiam.

'The principal question in this case depends upon, whether the judgments obtained after* The service of the writ and.- befdjte plea, be of such a nature, as hold the executor responsible for the assets he had when served with the writ? and if these judgments had been, that the plaintiff then have execution, and not quando, it seems admitted they would, provided they are not void in law. As to the nature of the judgments, according to the circumstances of this case, we think that can make no difference ; because it was true, when they were rendered, that the effects previously sold on the six months’ credit, were not assets;—the act of Assembly having only made the executor accountable for them, in a reasonable time after the proceeds were due. Whenever, therefore, they should come, or might be obtained, they then would be assets, and the executor accountable to the judgment creditors for them. If, therefore, he was accountable to them, it is clear he ought not to be accountable to the plaintiff; for it has been properly admitted, that the priority of suit only ties the hands of the executor against a voluntary payment.

Then, as to the exception which has been taken to the judgments because they exceed thirty pounds. And we think, as the warrants did not exceed thirty pounds, that the Justice, therefore, had jurisdiction, and his judgment therefore, was not void, but only voidable.

The only remaining question is as to the $ 100 paid for the support of the disabled slave? and that we think must depend upon the nature of the transaction. If with a fraudulent design, upon being so found, would be unavailing. But if fair and honest, that it is good. For we consider this as a kind of charge upon the estate in favour of the community, which in case of a deficiency of assets, is entitled to a preference against the claims of individuals.—Wherefore, we are all of opinion there should be judgment for the defendant.  