
    
      Charlotte Huger vs. Executors of John Dawson.
    Where judgments of different dates are recovered against an exec* utor, who has not pleaded plene administravit, and under the execu* tions issued thereon, the sheriff sells real property of the testator, he must apply the proceeds to the judgments in the order of their dates, without regard to the grade of their respective causes of action ; and. it seems that the same rule applies, as to the payment of executions, where the sale is of personal property.
    The Act of 1789, prescribing the order in which debts are tobe paid, is merely directory to the executor, and intended for his protection. If he permits judgments to go against him without pleading plene administravit, he admits assets, and the sheriff, when he levies money under the executions issued thereon, must be governed in ap* plvingit by the legal priority of the judgments and executions.
    
      Before Evans, J. at Charleston, February, 1832.
    This was a rule on the sheriff to shew cause why the proceeds of a sale made by him, of a house and lot of the testator’s, should not be applied to plaintiff’s judgment on bond, under which they had been sold. The sheriff shewed for cause, that there was an older judgment against the defendants, on a note of their testator, held by the State Bank ; and besides, that the State Bank had now depending a suit against the executors of testator, on a bond, in the penalty of $3,000, conditioned for the performance of covenants — claimed as due by the deceased, and expected tó be tried this term. The sheriff also shewed, that the execution on the judgment, founded on the note, had been lodged prior to that issued on the judgment on the bond ; and that the executors in neither case had pleaded plene administravit, or plene administravit prmter, so that they had admitted assets. The plaintiff’s attorney moved that the sheriff be ordered to pay the whole amount of the proceeds of the sale to the bond judgment, in exclusion of the note judgment; and without regarding the alleged outstanding bond debt, not. established, but resting simply in unliquidated damages.
    
      Per Curiam. “ There can be no doubt that, in marshall-ing the assets, the plaintiff’s debt would take precedence of a simple contract debt, and I think there is little doubt that a bond, to secure the performance of covenants, would stand on the same footing as a bond to secure the payment of money. The sheriff is bound to take notice of the judgments and executions which are in his office, and to pay the money raised by sales of property, to the oldest lien. The oldest lien was the judgment of the State Bank on a note, and if he had paid the money on this case, I should not have attached him, because he was not bound to look beyond the judgments and executions. To give the plaintiff the preference which she claimed, it was necessary to look beyond the judgment, to the nature of the debt. She did not claim the money as a judgment credit- or, but as a bond creditor. I could see no reason why I should order the money to be paid to one bond creditor in preference to another, and therefore declined making any order about the distribution of the fund, until after the trial of the case of the State Bank against the executors of Dawson, on the bond for the performance of covenants, which was confidently expected to be tried during the term.”
    
      On the last day of the term, the case of the State Bank on the bond having been continued, the plaintiff renewed her motion, which was again refused; and she appealed.
    Grimke, for the motion.
    
      Cross, contra.
   Curia, per

Johnson, J.

On looking into the question which arises out of this case, 1 am unable to perceive any doubt or difficulty. The Act of 1789, P. L. 494, prescribing the older in which debts are to be paid, is merely directory to the executor, and intended for his security and protection in the event of the insolvency of the estate. He may, if he thinks proper, first pay debts of an inferior grade, as simple contract debts, in preference to judgments, bonds or mortgages, which, according to the Act, are entitled to precedence ; and the only consequence is that, in the event of a deficiency of assets, he is liable, personally, to the extent of the assets, for the preferred debts. If he neglect to plead plene administravit, he is liable, although, in point of fact, he may have fully administered the estate — it is an admission of assets ; for, without having ascertained that fact, the court cannot know that there are not assets enough to pay all the debts.

Let us test the rule in reference to the facts of this case. The plaintiff has obtained judgment against the defendants for a bond debt of their testator, and the amount has been levied on his estate and is in court. But the State Bank comes in, and alleges that they are also a bond creditor, and entitled to be paid pari passu with the plaintiff. Now there is no proceeding by which the plaintiff can put in issue, at law, the factum of the bond to the Bank, or the quantum of assets. The executors alone are capable of making up their issues with the Bank. It follows, then, that the plaintiff is entitled to be paid out of the fund in court, in exclusion of the bond debt claimed to be due by the Bank ; and, for the same reason, the Bank is entitled to be paid the amount of its prior judgment in preference to the plaintiff’s. If an improvident and insolvent executor should take upon himself to administer assets in an order different from that prescribed, with a view fraudulently to give postponed creditors a preference over those which are preferred, I am not prepared to say that a court of Chancery would not, upon a proper case made, take upon itself to control the administration : it is obvious, however, that a court of law has no power over the subject.

O’Neall, J. concurred.'  