Opinion
(June Term, 1847.)
1. In the administration of assets, judgments by justices of the peace are to be paid before bonds and notes. But as they are not matters of record, of which the executor or administrator is bound to take notice, actual notice of them must be given by the creditor.
2. The dormancy of a judgment does not at all affect its dignity in the administration of assets.
APPEAL from WASHINGTON Spring Term, 1847; Caldwell, J.
Debt on an administrator's bond by a creditor of the intestate, suggesting a devastavit. The relator obtained a judgment before (232) a justice of peace against the intestate, Abram Chesson, in his lifetime, and gave notice of it to Thomas W. Chesson, the administrator of Abram, and demanded payment from him. At that time and at the death of the intestate the judgment was dormant. The administrator then had assets sufficient to discharge the judgment, but he afterwards applied them to the payment of bond debts of the intestate. The only question at the trial on the issue of conditions performed was whether the judgment ought to have been paid before the bonds or not. His Honor held that the judgment was entitled to the preference, and from a judgment against them the defendants appealed.
Heath for plaintiff.
No counsel for defendant.
We are not aware that the point in this case has been directly before the Court before. But we believe that it has been understood by the whole profession hitherto that justices' judgments were to be paid before notes and bonds. The members of the Court have always so considered, and upon inquiry of the Bar, we are informed that there has been no impression to the contrary, as far as the gentlemen attending this Court are informed. It is true that they cannot be allowed the dignity of debts of record, of which an executor must take notice at his peril, because the executor cannot know where to go in search of them. Therefore it is necessary that the creditor should give notice of them. But when notice of a justice's judgment is given, its priority arises over specialties; because the one debt has been judicially ascertained according to the law of the country, and the other rests entirely in pais. There is every reason for preferring it before specialities, that there is for the preference given to a debt of record, except that the latter (233) is in such a state as to be in itself notice of its existence to the executor. Both creditors have been diligent in prosecuting their demands to judgment before the only tribunals having jurisdiction, and therefore each is entitled to the like favor; and each debt is established beyond controversy. Then, by giving actual notice, the creditor by a judgment out of court supplies all that is wanting to put his demand on the footing of a judgment in court, as respects its relative dignity with that of bonds. It is true that a justice's judgment does not absolutely prove itself, but to some purposes requires evidence that it is genuine. Yet to others it may be acted on without such evidence, as when one justice issues an execution on a judgment given by another.
The dormancy of a judgment does not at all affect its dignity in the administration of assets, for, in every case, no proceedings can be taken on a judgment until the executor has been made a party by scire facias or a judgment has been taken on it in an action against the executor.
Upon the whole, the Court concurs fully with his Honor.
PER CURIAM. Affirmed.
Cited: Rogers v. Kimsey, 101 N.C. 565.
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