plead that judgment to an action brought on another obligation. And if there be two obligations, and the two several creditors bring feveral actions against the executor, he that first obtains judgment must be first satisfied'. DEBTS upon judgments, recognizances, mortgages, bonds, and other like specialties, fhall carry interest: fo interest hath alfo been allowed upon demands due by covenant, although it was objected that they were not liquidated, and only found in damages. Intereft of an annuity being decreed by the lord chancellor from the very day it became due, Mr. Peere Williams adds a query as to this, and fays, it seems the arrears should carry intereft only from the first day of payment next after the arrears of the annuity became due; if payable half-yearly, then from the next half-year day; if quarterly, then from the next quarter-day; and fo has been the common rule in these cases".- -Where a man prays fatisfaction for a fimple contract debt, merely out of perfonal affets, a court of equity will of courfe direct the debt to be paid with interest, to be computed from one year after the teftator's death. ་ DEBTS by fimple contract, which are the laft fpecies of debts to be paid, are fuch where the contract upon the obligation arifes, is neither ascertained by matter of record, nor yet by deed or special inftrument, but by mere oral evidence, the most fimple of any; or by notes unfealed, which are capable of more eafy proof, and therefore are only better than a verbal promife; and this laft fpecies of debts may be branched out into a variety of obligations through the numerous contracts for money, which are not only expreffed by the parties, but virtually implied in law". Debts by fimple contract, though postponed to all others, an executor, or adminiftrator, is bound to pay as far as he hath affets". Yet if no fuit is commenced against him, he may pay one creditor in equal degree his whole debt, though he has nothing left for the reft: for without a fuit commenced, the executor has no legal notice of the debt'. And no action shall be brought whereby to charge an executor or adminiftrator, upon any fpecial promife, to answer damages out of his own eftate; unless the agreement upon which such action fhall be brought, or fome memorandum or note thereof fhall be in writing, 2 New Abr. 434. Swinb. 457,458. on debts in a fubfequent chap. p. 203. 14 Vin. Abr. tit. Intereít. Black. Com. 2. V. 466. 511. 92 New Abr. 434. Black. Com. 2. 1 P. Will. 541. • Barnard. 229. See more of intereft V. 512. and figned by the party to be charged therewith, or fome other person thereunto by him lawfully authorized'. As to the intereft a man hath in an apprentice, which we lately mentioned to be a perfonal chattel that goes to the executort. It was held by Holt, chief juftice, that by the cuftom of London, the executor of the master should put the apprentice to another master of the fame trade; and that in other places it would be very hard to conftrue the death of the master to be a discharge of the covenants; though he admitted that the covenant for instruction had been confidered as cancelled, but that he ftill continued an apprentice with the excecutor as to maintenance". And where a master re ceived with an apprentice 250l. and died within two years, the apprentice during that time having been employed only in inferior affairs: it was decreed, after debts on fpecialties were paid, that the executors should repay 250l. as a debt due on fimple contract, deducting after the rate of 20l. a year for the maintenance of the apprentice, during the time he lived with his mafter.. -In an action of debt on bond, conditioned for Matthias Anderfon's performance of the covenants in an indenture of apprenticeship, whereby he was bound to the plaintiff's teftator, who was a mariner: the defendant pleaded that Anderson served faithfully to the death of the teftator: the plaintiff replied, that fince the death of the teftator, Anderson had abfented from her fervice: to which there was a demurrer. And after argument at bar, the chief justice delivered the refolution of the court, viz. That they were all of opinion, the defendant fhould have judgment; and the executrix could maintain no such action. The binding was to the man, to learn his art, and ferve him, without any mention of executors. And as the words are confined, fo is the nature of the contract; for it is fiduciary, and the lad is bound from a perfonal knowledge of the integrity and ability of the mafter".In a late cafe wherein it being contended, that the contract between a master and his apprentice is merely perfonal and dies with the mafter; it was faid by lord Mansfield, that though an apprentice is not ftrictly affignable, nor transmiflible, yet, if he continue, with the confent of all parties and his own, it is a continuation of the apprenticeship*. t Stat. 29 Car. II. c. 3. fect. 4. " 1 Salk. 66. Cafe of Soam against Bowden and Eyles, in the court of Chancery, M. 30 Geb. II, Ch. Ca. Finch, 396. Cafe of Baxter against Burfield, T. 12 Geo 11. Str. 1115. The King against the inhabitants of Stockland, King's-Bench, H. 19 Geo. III, Doug. Rep. 70. 2 Edit. In respect to legal and equitable affets; if a man poffeffed of a term for years, mortgages it, and dies, leaving debts, fome by bond, and fome by fimple contract, the equity of redemption is equitable affets, and fhall be liable to all the debts equally. A leafe for years, or a bond, or grant of an an nuity taken in a trustee's name, being personal affets, shall be applied in course of administration; that is, as has been fhewn. The diftinction feems to be this: where there are legal affets, that is, affets which are liable at law without the help of equity, there the executor may apply them, according to the courfe of law, which allows and requires a preference. to be made as hath been mentioned; but where there are only equitable affets, that is, affets which are not liable, without the help of a court of equity, in such case, the court will direct the application thereof, according to that course which feems moft equitable and juft, that is, to pay every creditor his share in proportion. So where the affets are partly legal, and partly equitable, although equity cannot take away the legal preference on legal affets; yet where one creditor has been partly paid out of fuch legal affets, when fatisfaction comes to be made out of equitable affets, the court will poftpone him till there is an equality, in fatisfaction to all the other creditors out of the equitable affets, proportionable to fo much as the legal creditor has been fatisfied out of the legal affets". BUT now to return to the fubject of paying debts with legal affets in fuch manner as the law requires. If one that hath a debt due to him from the deceafed upon a fimple contract or the like, fue the executor or adminiftrator for it, and there be debts due to others upon bonds and specialties, unfatisfied; in this cafe, the executor or adminiftrator may not Y 3 P. Will. 341. 2 2 Vern. 764 3 P. Will. 342. a 4 Burn's Ecclef. Law, 297. To determine the difference between legal and equitable affets where land hath been devifed for payment of debts, a diftinction has been made where the fame perfons that were truflees to fell the land were executors, and where they were not, The generality of the old cafes determine that money arifing by fale of land devised to, or fubject to the power of executors, to fell for payment of debts and legacies, fhould be legal affets in their hands (although they could not be charged with the value of the Jands before fale). Yet fome of the old cafes, confidering the devifee in the double character of traftee and execu tor, preferred the former, and confequently made the affets equitable; and the modern cafes incline strongly to this conftruction; yet it feems that where an eftate de,cends to the heir charged with the payment of debts, it will be legal affets. 2 P. Will. 416. Note 2. 4 edit. 4 Burn's Ecclef. Law, 297. pay this debt, nor may he fuffer the plaintiff to recover in his action; for if he doth, and he hath not affets befides to fatisfy the debts due upon bonds and specialties, he must satisfy fo much out of his own eftate, as he hath fo paid, or fuffered to be recovered from him; for in the case of an action brought, he is to plead and to fet forth thefe debts upon fpecialties, and to fay that he hath no more than what is sufficient to fatisfy them; and thereby he fhall bar the plaintiff in his action. In like manner it is, if one that hath a debt due to him from the deceafed upon an obligation, fue the executor or administrator thereupon, and there be debts due to others upon judgments, ftatutes, or recognizances, and the executor or administrator fuffer the plaintiff to recover the debt due upon the obligation, for want of pleading the judgments, &c. in this case he must pay fo much out of his own eftate, towards the fatisfaction of the faid debts due upon judgments, &c. as he hath paid of the debt due upon the obligation. But here it must be obferved, that no judgment or ftatute that is discharged, or is left and fuffered to lie by agreement to bar others of their debts, fhall be any bar to others that fue for their due debts upon obligations, &c. ; and therefore if any executor or adminiftrator fhall plead fuch judgments, &c. in bar of any other debt fued for by any other creditor, the creditor may, by fpecial pleading, fet forth this matter of covin, and avoid the plea and bar of the executor or adminiftrator c. In an action of debt against an executor, if the defendant plead fully administered, and any assets be found in his hands, although there be not to the value of the debt; yet the plaintiff fhall have judgment for his whole debt of the goods of the teftator. But if it be found, that he had nothing in his hands; the judgment fhall be, that the plaintiff fhall take nothing by the writ, and fhall not have judgment of the debt: for he hath waved this advantage by taking of the iffue, and judgment is to be given upon the verdict.- Where a teftator is much indebted, and the executor is defirous to be rid of the affets, his fafest way is, to file a bill in chancery against the creditors, to the end they may, if they think fit, contest each other's debts, and difpute who ought to be preferred in payment. SECTION THE SIXTH. OF ACCOUNTING BEFORE THE ORDINARY. Y the statute of the 22 & 23 Car. II. c. 10. the ordinaries BY fhall and may proceed and call administrators to account, for and touching the goods of any perfon dying inteftate, and upon hearing and due confideration thereof, order and make just and equal diftribution of what remains clear (after all debts, funerals, and just expences, of every fort, are allowed and deducted); and the fame diftributions decree and fettle, and compel fuch administrators to observe and pay the fame, by the due course of his majesty's ecclefiaftical laws faving to every one, fuppofing himself or themfelves aggrieved, their right of appeal, as has been always in fuch cafes ufed. But by the ftatute of the 1 Jac. II. c. 17. fect. 6. it is provided, as was before mentioned %, that no administrator shall be cited according to the said act of the 22 & 23 Car. II. c. 10. to render an account of the perfonal eftate of his inteftate (otherwife than by an inventory or inventories thereof), unless it be at the instance or profecution of fome perfon in behalf of a minor, or having a demand out of fuch perfonal estate as a creditor or next of kin, nor be compellable to account before any the ordinaries or judges, by the faid act impowered and appointed to take the fame, otherwife than as is aforefaid; any thing in the said act to the contrary notwithstanding.-The account must be paffed before the fame judge, or his furrogate or fucceffor, that grants the administration. If any perfon having intereft fhall call the administrator to exhibit a true, full, and perfect inventory of the goods of the deceased which have come to his hands, and to give an account of his administration thereof; he who is called in fuch cafe, is bound perfonally to exhibit such inventory and account, and (if the adverse party demand it) to take a corporal oath of the truth thereofh. And as proofs made upon the account, at the inftance of fome one or more perfons having. k Oughton's Ordo Jud. 345. $ Page 15. intereft, |