seised thereof: and plaintiff, after the death of B. Clay, to wit on 24th February, 1852, was presented to the rectory, and lawfully instituted and inducted into the same, so being void by the death of B. Clay, and thereby then became and still is rector of the rectory, and next successor of B. Clay: averment that, at the time of the death of B. Clay, the said messuage and the said outhouses &c., and the said chancel, and the walls and fences of and belonging to the said gardens and glebe land, were respectively out of repair and greatly dilapidated &c., for want of due repairing by B. Clay in his lifetime, and were so left by B. Clay out of repair &c., at the time of his death; and that the sums of money necessary to be expended for necessary repairing of the premises amounted to a large &c., to wit 2947. 16s.; of all which defendant, so being executor &c., after the death of B. Clay, and the presentation, institution and induction of plaintiff, and before the commencement of the suit, had notice, and was requested to pay the said sum to plaintiff: Nevertheless defendant, so being executor &c., contriving &c., although defendant, as executor as aforesaid, before and at the time of the commencement of this suit, had sufficient of the goods and chattels of B. Clay in his hands to be administered to pay the said sum of 2947. 16s., has not yet paid &c. Plea. That B. Clay in his lifetime, to wit on 1st March 1825, by his certain writing obligatory &c.; stating a bond executed by B. Clay in the penal sum of 600l., "conditioned for the payment of a just debt," to wit 3007., with interest, at a time now elapsed, which was in full force at the time of his death, and on which 2597. 13s. was due at the time of the commencement of the suit: and that B. Clay, in his lifetime, and at the time of his death, 1852. BRYAN V. CLAY. 1852. BRYAN V. CLAY. "was justly and truly indebted to divers persons respectively, to wit" &c. (naming forty one persons), " in divers large sums of money, respectively amounting in the whole (to wit) to the sum of 5002; and which said last mentioned sum of money was at the time of the commencement of this suit wholly unpaid and unsatisfied. And the defendant saith that, after the commencement of this suit, to wit" &c., " and before the pleading hereof, to wit on the 1st day of May A. D. 1852, he the defendant paid and satisfied the said debt so due upon the said writing obligatory, and also the said several other debts so due and owing as aforesaid: and that the said several payments, so made by the defendant to pay and satisfy the said several debts, amounted to a large sum, to wit the sum of 7591. 13s. And the defendant further saith that he had, at the time of the commencement of this suit, fully administered all and singular the goods and chattels which were of the said B. Clay deceased at the time of his death, which have ever come to his hands to be administered, except goods and chattels of small value, to wit of the value of 6047.; and that he, the defendant, had not, at the time of the commencement of this suit, nor has had at any time since, nor hath, any goods or chattels which were of the said B. Clay at the time of his death in his hands to be administered, except the said goods and chattels of the value aforesaid, which were not sufficient to satisfy the said debt which was so due in the said writing obligatory as aforesaid, and the said several other debts which were so due and owing as aforesaid, and which have been so paid by the defendant as aforesaid." Special demurrer, assigning for cause the points raised on the argument. Joinder in demurrer. T. K. Kingdon, for the plaintiff. The defendant does not account for the assets in his hands, unless he is entitled to insist on the payments made since the commencement of the action. Now these payments are made in respect partly of a bond and partly of debts which are not shewn to be higher than simple contract debts. As to the bond, the payment is not now impeached: but, the bond alone not exhausting the assets, the question is raised, whether an executor is entitled, after an action has been brought for dilapidations, to exhaust the assets by payment of simple contract debts. Now the rule is that, although, among debts of equal degree, the executor may, before any action is commenced, select which he pleases for payment, yet, after an action has commenced for one of the debts, he cannot pay another to the prejudice of that on which the action is brought. If, indeed, another action be commenced afterwards for a second debt of equal degree, the executor may, by confessing judgment for this last debt, give it priority, and then plead the judgment in answer to the first action (a), as accounting pro tanto for the assets: that, however, has not been done here. So that finally the question is, whether the claim for dilapidations is of as high an order as a simple contract debt. For the defendant reliance will probably be placed on the following passage in 2 Williams on Executors, 881 (4th ed.), Part II. B. II. c. 2. s. 3.: "It seems that damages for dilapidations, payable by the executors or adminstrators of the late incumbent of a benefice to his successor, are to be postponed, in order of payment, to the debts of the deceased of every description." For this the author cites Degge's (a) 2 Williams Ex. 887, 8 (4th edit.). Pt. III. B. 1. c. 2. s. 5. 1852. BRYAN V. CLAY. 1852. BRYAN CLAY. Parson's Counsellor, p. 91, Part I. ch. 8.; where it is said: (a) See Watt's Bibliotheca Britannica, vol. 1. pp. 293 y., 421 z., tits. Degge, Godolphin. be satisfied out of the spoils of the church, and the church herself be denied the common right of restitution. For whatever substance any incumbent gets from the church, and dies possessed of, is greater, in proportion to his neglect of repairs; and that part that grows from such neglect, is no better than a theft from the church; whose rights and privileges were, anciently, the first care of the law. But we are told by Sir Simon Degge, That the common law prefers the payment of debts before damage for dilapidations;' and that being the course of the common law, we must be content." [Coleridge J. The more reluctant the adoption of Degge's doctrine is, the stronger is the inference as to Gibson's opinion.] In Ayliffe's Parergon, 217, the passage already cited from Godolphin is copied literally, and nothing is added. So that all rests upon the authority of Degge. [Coleridge J. Degge is supposed to be the ultimate authority for the maintenance of the action at all, at common law (a).] The authorities for the action are referred to in Jones v. Hill (b), the case which, in 2 W. & M. (1690), established that this action would lie. [Coleridge J. In that case the four Judges were divided in opinion: afterwards, two of them being dead, the surviving two gave judgment for the plaintiff.] Mr Justice Williams, it has been seen, uses doubtful language: and the passage does not appear in the first or second edition of his work. [Lord Campbell C. J. The later editions represent his mature judgment.] (a) Parson's Counsellor, p. 94. Part 1. ch. 8. In Herne's Pleader, p. 136. tit. Action on the Case, is a precedent of a declaration against an executor, Easter 12 & 13 H. 8.; and, in the margin, there is a reference to a similar entry of Trin. 18 H. 7., and also, apparently, to entries referred to in Jones v. Hill, 3 Lev. 268. (b) 3 Lev. 268. S. C. Curth, 224. 1852. BRYAN V. CLAY. |