Evans v. . Norris

An executor or administrator is bound to pay those debts that are already due, in preference to those not yet payable. Off. of Exrs., 142, 143.

The defendant next proved several payments made after the date of the leading process in this suit, and several after the plea filed.

An executor or administrator can only retain to satisfy his own demand when it is of equal dignity with that of the creditors to whose disadvantage it is retained. As the executor cannot sue himself, he is allowed to pay himself by retainer. The law in his favor presumes that had he not been executor, he would have used equal diligence with any other creditor to procure payment, and places him, with respect to paying himself, in the same situation as if he had used the most expeditious diligence; but he cannot retain to satisfy himself whilst there are debts of a superior dignity to his. By the act of 1786 notes are put upon the same footing with bonds, and are made superior to any simple contract debt, where the debt is not liquidated and settled and signed by the party to be charged. Of course, the debt due in the present case to the administrator cannot be satisfied by retainer in preference to the debt of the plaintiff, which is by note of hand. As to the voluntary payments made since the teste of the writ, and before the plea pleaded, in *Page 328 strictness they are not allowable; though, indeed, it seems to be a hardship that payments made before notice of the writs, and with no design to prejudice the plaintiff, should not be allowed. As to the payments made after the plea pleaded, they are clearly not allowable.

NOTE BY REPORTER. — That part of the Court's opinion relative to the payments made after the teste and before the plea seems not to be correct; the law as laid down in the Off. of Exrs. 145, 146, is that the executor may pay another creditor after suit commenced before he have notice, and may then plead that he was not summoned till such a day, before which he had fully administered.

The account against the plaintiff cannot be admitted to prove the plea of payment. The defendant should have pleaded the general issue, with a notice of set-off; then the plaintiff would have been made acquainted with the particular items, and might have prepared himself with evidence to contest them. If we allow an account to be proved without being pleaded in bar, or notice of set-off given to the plaintiff, he must necessarily be unprepared to contest it, however erroneous it may be. If such accounts by rules of the common law were adducible by the common law to prove the plea of payment, it was unnecessary to have made the acts for setting off mutual debts and accounts against each other. The account was rejected. The defendant then proved the intestate had purchased a house of him, and agreed to give £ 300 for it, to be paid by three yearly installments, one of which payments was due before the institution of this action, and that he had retained £ 100 of the intestate's estate in his hands to satisfy it.

Mr. Hay urged that a retainer could not be given in evidence unless it had been pleaded.

Mr. Taylor, e contra, insisted that a retainer may be given in evidence under the plea of plene administravit, and cited Esp., 249.

A retainer may be either pleaded or given in evidence under the plea of plene administravit. 3 Burr., 1380. Had the administrator paid a debt of £ 100 to a third person, he might certainly have given it in evidence under the plea of plene administravit; and payment of himself is in the same situation. There is nothing to differ the two cases. The evidence was given as to the other £ 200 not (412) yet due.

Mr. Taylor argued that the same was a debt due in presenti at the death of the intestate, and that the administrator immediately upon the death of the intestate was entitled to pay himself in preference to another creditor. *Page 327