R. & I. Moon v. Pasteur's Adm'r

*R. & I. Moon v. Pasteur’s Adm’r. November, 1832. Debts of Decedent — Priorities. —A debt due by recognizance of special bail, is of higher dignity th an a debt due by specialty, and shall have preference accordingly, in the administration of the assets of a decedent. In an action of debt brought by R. & I. Moon against Ware, in the circuit court of Fluvanna, Pasteur entered into recognizance of special bail for the defendant Ware; and judgment having been recovered against Ware, a scire facias was sued out against Pasteur, the bail, upon the recognizance. The scire facias was executed on Pasteur, but he died soon afterwards, and the proceeding was revived by scire facias against Shores his administrator. Shores the administrator pleaded in bar, that he had duly administered all the assets of his intestate Pasteur’s estate, except an amount of assets sufficient to pay a specialty debt due from his intestate to himself, which amount, therefore, he retained to satisfy his own debt. To this plea there was a general demurrer. The circuit court held that the plea was a good bar to the scire facias, and gave judgment for the defendant. The plaintiffs, R. & I. Moon, appealed to this court. Johnson, for the appellant. Forbes, for the appellee. See monographic note on “Debts of Decedents” appended to Shores v. Wares, 1 Rob. 1. [MAJORITY — TUCKKR, P.] TUCKKR, P. In the payment of the debts of a decedent, recognizances are always regarded as of higher dignUy than specialties. 3 Bac. Abr. Fx’ors & Adm’ors, L. 2, p. 81; Off. of Fx’or, 138; 2 Wms. on Fx’ors, 562. In this case, the recognizance of bail being the solemn acknowledgment of obligation in a court of record, and the bail having been irrevocably fixed for the debt by the return of the scire facias executed before his death, and his failure to surrender his principal, the ohligation upon him was complete 'x’and final. Against a debt of this dignity, it was not competent to the administrator of the bail, to retain a debt due by specialty to himself. Judgment reversed — the demurrer sustained- — and judgment entered lor the appellants against the appellee de bonis testatoris.