amble (a), was to remedy the difficulty which they lay under in discovering fuch judgments. The Legislature, therefore, after directing the form in which the docket and entry shall be made, enacts that executors and adminiftrators fhall not be bound to take notice of any judgments unlefs docketted and entered accordingly. But in this cafe the only queftion 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, fays, that if the Defendant had had notice of the judgment debt, perhaps fhe would have been warranted in paying it before the bond debts. The words of the statute only fay that fuch judgments fhall not have any preference against executors and administrators; but if they receive actual notice, furely they may be at liberty to fet it up. At any rate as this is the first time that the question has arisen, and the Defendant, in her plea has ftated more outstanding specialty debts than the affets 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 ftatute declares that judgments not docketted shall have no preference against heirs, executors, and adminiftrators. Why are executors and adminiftrators allowed to plead outstanding judgments? because they have a preference, and it is for that reafon that they are allowed to plead them, in order to prevent a devaftavit. But it is faid that an executor is at liberty to fet up judgments not docketted. Certainly he may pay them, and when he has paid them, they are like other fimple 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 fuperior nature to debts of an inferior nature, only because they are bound to pay them; when the law has faid that certain debts shall not be debts of a fuperior nature, unless certain ceremonies are obferved, they will no longer ftand in that clafs, and there is no reason why they should be fet up against a demand on fimple contract. The cafe is too clear to admit of a question. (a) Whereas great mifchiefs happen and come as well to perfons in their life-times, but more often to their heirs, executors, and adminiftrators, and alfo to purchafers and mortgagees, by judgments entered upon re cord in Their Majefties courts at Westminster x 3 BULLER 1798. STEEL V RORKE. 1798. STEZL V. RORKE. BULLER J. My Brother Heywood ftated the fubftance of & plea of outstanding debts very accurately: it is this, "I the Defendant am bound to pay other debts before I pay you the Plaintiff;" and the only queftion 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 teftator owed fo 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 feems to confider the ftatute in a more limited way than the words will bear. The object of the Legislature was more general. The preamble ftates that mifchiefs happen as well to perfons in their lifetimes, but more often to their heirs, executors, and adminiftrators, and alfo to purchasers and mortgagces, This cafe is clear on the words of the ftatute, and the decifion in the King's Bench is directly in point. Mr. J. Grofe and Mr. J. Lawrence were there of opinion that the fituation of judgments not docketted was reduced to that of fimple contract debts, and I agree with Lord Kenyon that no notice is fufficient but that which the ftatute has required. HEATH J. I am of the fame opinion. The object of the ftatute was not only to protect executors and adminiftrators, but also creditors: for there cannot be a greater inftrument of fraud than a judgment not docketted. If a party means to act honeftly he should follow the directions of the act. ROOKE J. I am of the fame opinion. Leave given to ftrike out fuch part of the plea as relates to the judgment in queftion, and to ftate what is really due on the bonds, but not on the penalties. June 21. The adminiftra- DEB trix of an executor tannot fue for the double value of lands held over after notice to quit TINGREY, Widow, v. BROWN. EBT for double the yearly value of lands held over contrary to 4 G. 2. c. 28. The first count of the declaration ftated a demife by one Judith Tingrey (who was poffeffed for a long term of years) to the Defendant, of the premifes in queftion, for twentyone years; that she died, having by her will made Francis Tingrey under a demile her fole executor, who proved the will, and took execution upon from the teftator, Contrary to G. 2. c. 28. without taking out administration de bonis non; even though the tenant has attorned to her. himfelf himfelf, "by reafon whereof he the faid Francis then and there *became entitled to the faid demifed premises, fubject to the faid "leafe;" 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 faid remainder of the faid demifed "premises for the faid term, which is yet unexpired, and fo de"mifed to the Defendant as is aforefaid; of all which premifes "the Defendant afterwards (to wit) on, &c. at, &c. had notice, "and then and there attorned to and became the tenant to the "Plaintiff for the refidue of the faid term." It then ftated that after the expiration of the Defendant's term, and notice in writing to quit, he continued to keep poffeffion, whereby, &c. To this count there was a general demurrer and joinder. Williams Serjt. was to have argued in fupport 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 neceffary for the Plaintiff to clothe herfelf with the character of adminiftratrix de bonis non. That it did not appear but that all the debts had been fatisfied by Francis Tingrey, in which cafe this leafe would have paffed to his perfonal reprefentative the Plaintiff. He obferved alfo that the Defendant admitted by the demurrer that he had attorned to the Plaintiff, and therefore as this ftatute fays that the landlord fhall bring the action, that landlord muft be the perfon 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? Moft certainly in any cafe in which the Plaintiff means to make title, she must take out adminiftration de bonis non. It is not incumbent on those who refift, to fhew that there are debts of the teftator unfatisfied, but the Plaintiff muft fhew that there are no debts, and that the executor poffeffed himself abfolutely in his own right. Per Curiam, TH Judgment for the Defendant. KNOWLYS and Another v. READING. 1798. TINGREY BROWN. June 27th. HE Defendant was arrefted by original in the King's Bench; If a Defendant but before declaration was removed by habeas corpus to the be arrested by Fleet, and a declaration in the Common Pleas was delivered. and removed by babeas corpus to X 4 procefs of K.B. C.B., he may put in and justify bail in either court. 1798. KNOWLYS ย. READING. After which the Plaintiff's attorney received a notice of bail being put in, and of their intention to juftify 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 juftification here on this day. Runnington Serjt. now opposed the juftification, 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. 11 Eaft, 592. Bail allowed. IT TRINITY TERM, 38 Geo. 3. IS ORDERED, that upon all Writs of Diftringas returnable on the laft day of Term the Plaintiff shall be at liberty, at the rifing of the Court, to move to increase iffues on the alias or pluries Diftringas, to be iffued thereupon on the following day, in cafe no appearance fhall have then been entered. And alfo that in like Cafes where a Diftringas fhall be returnable on the laft day of Term and Iffues thereupon levied, the Plaintiff fhall be at liberty, at the rifing of the Court, to move for leave to fell fuch Iffues to pay the Cofts of fuch Diftringas or Diftringas's. And it is further Ordered, that where a Rule to bring in the Body fhall expire on the laft day of Term, the Plaintiff shall alfo be at liberty, at the rifing of the Court on that day, to move for an Attachment for not bringing into Court the Body of the Defendant, and that fuch Attachment may be accordingly iffued on the following day, provided Bail fhall not then be perfected, or the Defendant rendered in discharge thereof. JAS. EYRE. F. BULLER. J. HEATH. G. ROOKE CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Michaelmas Term, In the Thirty-ninth Year of the Reign of GEORGE III. 1 1798. DRISCOL V. BOVIL. THIS p. 201. At the trial before Eyre Ch. J. at the Guildhall fittings after Trinity term, the fame facts appeared in evidence as in Drifcol v. Paffmore, with the addition of a letter written by the Plaintiff on the 18th of August from Lisbon, (after his return from Madeira to that place,) to his broker in London; which contained the following paffage: "Should the merchant here, who chartered the "veffel, infift on her proceeding to Saffi to fulfil the charter, I "want to know if it is agreeable to the underwriters that the "veffel may proceed to complete her voyage, as by recent ac"counts the risk is not fo great. I expect your immediate an him to obtain the opinion of the underwriters as to his proceeding directly to G. if the charterer fhould infift upon it; and is an fwered 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 hip is captured. Held that the voyage infured was ne ver abandoned. "fwer |