Opinion
(December Term, 1833.)
A judgment quando does not alter the dignity of a debt, nor fix the defendant with assets, and as to a sci. fa. upon it, he may show that he has paid subsequent assets to debts of higher dignity, it follows that payment of a judgment quando upon a simple contract debt, after notice of an outstanding bond, does not protect the executor against the latter.
DEBT upon a bond of the defendant's intestate.
Kinney for the defendant.
Mordecai for the plaintiff.
PLEA — plene administravit. On the trial before Daniel, J., at CHOWAN, on the Fall circuit of 1829, the only question was, whether the defendant could protect the assets in his hands from the claim of a specialty creditor, by the payment of a prior judgment quando upon a simple contract debt, after notice of the specialty.
By the direction of his Honor, a verdict was returned for the plaintiff, and the defendant appealed.
Payment of an open account after notice of a specialty is a devastavit. The question is therefore, whether payment (45) of a judgment quando on an open account, after such notice, be different. Such a judgment does not fix the executor with assets: and if they be subsequently received, the executor is not chargeable in debt suggesting a devastavit of those assets, but they must first be ascertained on a sci. fa. on the judgment quando, suggesting that they have come to hand. Consequently on such a sci. fa., the executor is not absolutely liable on proof simply of assets received; but he may still show their application to other debts in a course of administration. (Parker v. Atfield, 1 Salk., 312, Ld. Raym., 679.) If such be the case, notice of a bond before suit on the judgment quando on open account, or payment of it, must make the assets applicable to the bond; because they have not been applied, nor conclusively declared by law to be applicable to the open account. A specialty creditor is preferred in law to one by simple contract; but he loses that preference if the latter receives payment, or gets a judgment attaching on the assets. Why? Not for any reason arising out of the merits of the respective creditors; but for the protection of the executor, who ought not to be liable to one creditor, after honestly paying another in ignorance of the superior claims of the former. But that cannot be affirmed as to him, in whose power it still is, to pay the preferable creditor, and protect himself by plea in the suit of the other. Such is the case when the executor gets notice of a bond after a judgment quando upon open account, because upon the sci. fa. suggesting assets, he can plead the outstanding bond. We think therefore, the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Henderson v. Burton, 38 N.C. 264; Gaither v. Sain, 91 N.C. 307.
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