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1798.

STEEL

RORIR.

amble (a), was to remedy the difficulty which they lay under in discovering such judgments. The Legilature, therefore, after directing the form in which the docket and entry shall be made, enacts that executors and administrators shall not be bound to take notice of any judgments unless docketted and entered accordingly. But in this case the only question is, whether the adminiftratrix having received actual notice of the judgments, is not bound to give them a priority. Lord Kenyon, in Hickey v. Hayter, says, that if the Defendant had had notice of the judgment debt, perhaps she would have been warranted in paying it before the bond debts. The words of the statute only say that such judgments shall not have any preference against executors and administrators; but if they receive actual notice, furely they may be at liberty to set it up. At any rate as this is the first time that the question has arisen, and the Defendant, in her plea has stated more outstanding specialty debts than the assets will pay, the Court will allow her to amend by striking out the judgments which are not docketted.

EYRE Ch. J. I think on principle that the rejoinder is bad; but I have no objection to allowing the Defendant to amend. The statute declares that judgments not docketted shall have no preference against heirs, executors, and administrators. Why are executors and administrators allowed to plead outstanding judgments ? because they have a preference, and it is for that reason that they are allowed to plead them, in order to prevent a devaftavit. But it is said that an executor is at liberty to set up judgments not docketted. Certainly he may pay them, and when he has paid them, they are like other simple contract debts, which when paid may be given in evidence under the title of plenè administravit. But if the law has allowed executors and administrators to plead debts of a superior nature to debts of an inferior nature, only because they are bound to pay them; when the law has said that certain debts shall not be debts of a superior nature, unless certain ceremonies are observed, they will no longer stand in that class, and there is no reason why they should be set up against a demand on fimple contract. The case is too clear to admit of a question,

(c) Whereas great mischiefs happen and cord in Their Majefties courts at Wefminster come as well 10 persons in their life-times, against the perions Defendants, by reason of but more often to their heirs, executors, and the difficulty there is in finding out fuch administrators, and also to purchasers and judgments, Gr. mortgagees, by judgments entered upon re

X 3

BULLER

1798.

STEZL

RORKE.

BULLER J. My Brother Heywood stated the substance of $ plea of outstanding debts very accurately: it is this, " I the De“ fendant am bound to pay other debts before I pay you the Plaintiff;” and the only question is, whether he be bound to pay or not? But no man ever heard of a plea in an action on fimple contract, ftating that the testator owed so much more on fimple contract, and therefore the Defendant meant to give a preference to others before he paid the Plaintiff. If then the Defendant was not bound to prefer, the rejoinder is bad. My Brother Shepherd seems to consider the statute in a more limited way than the words will bear. The object of the Legislature was more general. The preamble states that mischiet's happen as well to perfons in their lifetimes, but more often to their heirs, executors, and administrators, and also to purchasers and mortgagees, This case is clear on the words of the statute, and the decision in the King's Bench is direcly in point. Mr. J. Grose and Mr. J. Lawrence were there of opinion that the fituation of judgments not docketted was reduced to that of simple contract debts, and I agree with Lord Kenyon that no notice is fufficient but that which the statute has required.

Heath J. I am of the fame opinion. The object of the statute was not only to protect executors and adminiftrators, but also creditors: for there cannot be a greater instrument of fraud than a judgment not docketted. If a party means to act honestly he should follow the directions of the act. Rooke J. I am of the fame opinion. Leave given to strike out such part of the plea as relates to

the judgment in question, and to state what is really due on the bonds, but not on the penalties.

June 211t. .

TINGREY, Widow, v. BROWN. The adminiftra- DEBT for double the yearly value of lands held over contrary trix of an execu

to 4 G. 2. c. 28. The first count of the declaration stated a tortannot fue for the double demise by one Judith Tingrey (who was poslessed for a long term value of lands held over after

of years) to the Defendant, of the premises in question, for twentynotice to quit one years; that she died, having by her will made Francis Tingrey underne demiler, her sole executor, who proved the will, and took execution upon Contrary to G. 2.6. 28. without taking out administration de bonis mon; even though the tenant has attorned to her.

himself,

1798.

TINGREY

Brown.

himself, “ by reason whereof he the faid Francis then and there, ** became entitled to the faid demised premises, subject to the said " lease;" that he died inteftate, and that the Plaintiff took out adminiftration of his effects, “ by virtue whereof she became, and

was, and is entitled to the said remainder of the said demised “ premises for the said term, which is yet unexpired, and so de"mised to the Defendant as is aforesaid; of all which premises * the Defendant afterwards (to wit) on, fc. at, &c. had notice, " and then and there attorned to and became the tenant to the “ Plaintiff for the residue of the said term.” It then stated that after the expiration of the Defendant's term, and notice in writing to quit, he continued to keep possession, whereby, S.c.

To this count there was a general demurrer and joinder.

Williams Serjt. was to have argued in support of the demurrer, but Le Blanc Serjt. being called upon by the Court to begin on the part of the Plaintiff, contended that as this was not a debt due to the teftator, it was not necessary for the Plaintiff to clothe herself with the character of administratrix de bonis non. That it did not appear but that all the debts had been fatisfied by Francis Tingrey, in which case this lease would have passed to his personal representative the plaintiff. He observed alfo that the Defendant admitted by the demurrer that he had attorned to the Plaintiff, and therefore as this statute fays that the landlord shall bring the action, that landlord must be the person to whom the tenant has attorned.

EYRE Ch. J. Is not every thing unadminiftered which has not been reduced into the actual poffeffion of the executor, and converted by him? Most certainly in any case in which the Plaintiff means to make title, she must take out administration de bonis non. It is not incumbent on those who refift, to fhew that there are debts of the teftator unsatisfied, but the plaintiff muft shew that there are no debts, and that the executor possessed himself absolutely in his own right. Per Curiam,

Judgment for the Defendant.

KNOWLYS and Another v. READING.

June 27th. Tue Defendant was arrested by original in the King's Bench; If a Defendant

but before declaration was removed by habeas corpus to the be arrefted by Fleet, and a declaration in the Common Pleas was delivered. and removed by

babeas corpus to C.B., he may put in and justify bail in either court.

After

х4

1798.

KNOWLYS

READING.

After which the plaintiff's attorney received a notice of bail being put in, and of their intention to justify on the 26th in the King's Bench; but on the 25th he received another notice of bail being put in in this court, and of an intended justification here on this day.

Runnington Serjt. now opposed the justification, and urged that the bail ought to be put in in the King's Bench, as there was no writ in this court; and contended that if they were received here and an action were brought on the bail-bond, the Defendant could not plead comperuit ad diem.

But the Court were of opinion, that as the Plaintiff was at liberty to declare in either court, if bail were offered here they ought to be received.

Bail allowed.

TRINITY TERM, 38 Geo.3.

11 East, 592.

IT
T IS ORDERED, that upon all Writs of Distringas returnable

on the last day of Term the Plaintiff shall be at liberty, at the rising of the Court, to move to increase issues on the alias or pluries Distringas, to be issued thereupon on the following day, in case no appearance shall have then been entered. And also that in like Cafes where a Distringas shall be returnable on the last day of Term and Issues thereupon levied, the plaintiff thall be at liberty, at the rising of the Court, to move for leave to fell such Issues to pay the Cofts of such Distringas or Distringas's

. And it is further Ordered, that where a Rule to bring in the Body shall expire on the last day of Term, the Plaintiff shall also be at liberty, at the rising of the Court on that day, to move for an Attachment for not bringing into Court the Body of the Defendant, and that such Attachment may be accordingly iffued on the following day, provided Bail shall not then be perfected, or the Defendant rendered in discharge thereof.

Jas. EYRE. F. BULLER. J. HEATH. G. ROOKE

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In the Thirty-ninth Year of the Reign of GEORGE III.

from is

Nov.gth.
DRISCOL v. BOVIL.

i Nero Rep.

184. ante 200. THIS was an action on a policy of insurance on three-fourths Infurance on a of the ship Timandra, from Lisbon to Madeira, from Madeira voyage from 4.

to B., from B. to to Saffi, and from Saffi to Lisbon ; being the insurance on the C.and from C.to round voyage mentioned in the case of Driscol v. Palmore, ante, A. The voyage P. 201.

performed, but At the trial before Eyre Ch. J. at the Guildhall fittings after thatfrom BotoC. Trinity term, the fame facts appeared in evidence as in Driscol v. ably prevented, Pasmore, with the addition of a letter written by the Plaintiff on the ship returne

to A.; from the 18th of August from Lisbon, (after his return from Madeira whence the capto that place,) to his broker in London ; which contained the fol- tain writes to his

broker in Lonlowing passage: “ Should the merchant here, who chartered the don, requeiting vefsel, infift on her proceeding to Saffi to fulfil the charter, I him to obtain the

opinion of the “ want to know if it is agreeable to the underwriters that the underwriters as “ veffel may proceed to complete her voyage, as by recent ac- directly to C. it counts the risk is not so great. I expect your immediate an- the charterer

should infift upon

it; and is anTwered by him that he thinks the policy at an end. At the inftance of the charterer the captain does proceed to C., and on his return from thence to A. the ship is captured. Held that the voyage insured was never abandoned.

66 fwer

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