Hickey against Hayter Adminstratrix
| Jurisdiction | England & Wales |
| Year | 1795 |
| Date | 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 608
IN THE COURT OF KING'S BENCH.
1 B. & P. 307.
[384] hickey against hayter Administratrix. Monday, June 22nd, 1795. A debt on a judgment against a testator or intestate, not docketed according to the directions of the stat. 4 and 5 W. and M. c. 20, is put by that Act on a level with simple contract debts. On a plea of plene administravit, to debt on a judgment against the intestate not docketed, the defendant may give in evidence payment of bond and other specialty debts, which exhausted all the assets. [IB. & P. 307.] This was an action of debt on a judgment recovered against the intestate in his life-time, to which the defendant pleaded plenfe administravit. At the trial before Lord Kenyon at the sittings after the last term the plaintiff gave in evidence an inventory of the intestate's effects signed by the defendant, in which it appeared that she had received assets to the amount of 3741. In order to discharge herself she proved payment of bond and other specialty debts amounting to 6181. The plaintiff contended that the payment of these debts before the plaintiff's, which arose on a judgment regularly entered up against the intestate, was a devastavit in the defendant. This was answered on the part of the defendant by saying that as the judgment was not docketed in pursuance of the stat. 4 and 5 W, and M. c. 20, it was not entitled to any preference over any other debts. A verdict however was taken for the plaintiff with liberty to the defendant to move to set it aside and to enter a nonsuit if this Court should be of opinion with her on the construction of the Act of Parliament. And a rule having been obtained for that purpose it was now opposed by Erskine. First, the stat. 4 and 5 W. and M. e. 20, is confined to judgments as affecting lands and tenements only; the third section merely providing that " no judgment not docketed shall affect any lands or tenements as to purchasers or mortgagees." And the other words that follow " or have any preference against heirs, executors or administrators" mean the heirs, executors or administrators of such purchasers or mortgagees; for it goes on to say, "In their administration of their ancestors testators, or intestates estates," without adding or effects. But secondly, even if the meaning of the statute were as the defendant contends it is, she cannot avail herself of it on these pleadings. The great object of pleading is to reduce the whole case to a single point, in order that the adverse party may not be surprised, but may be prepared with evidence at the trial on that point. But the plea of plenfe administravit gave no notice to the plaintiff of the defence which was set up; to enable her to give this matter in evidence the defendant should have pleaded that the- 6T.B.385. HICKEY V. HAYTER 609 [385] judgment on wiich the action is brought was not docketed,-and that the defendant not being apprised of any such judgment had paid other debts of an inferior nature. Vaughan in support of the rule. Before the stat. 4 and 5 W. and M. c. 20, executors and administrators were bound to take notice of judgments recovered against their testators or intestates; and it was no plea to an action against an executor on such a judgment that he had no notice of the judgment, and paid debts of an inferior nature. Littleton v. HMins, Cro. El. 793. Executors were also bound to take the same notice of a decree in equity that they were of a judgment at common law. Shafto v. Powel, 3 Lev. 355. And'it was to remedy this mischief, the hardship on executors who were affected by judgments of which they had no notice, that the Stat. 4 and 5 W. and M. was passed. Being a remedial law, it ought to be construed liberally. Heydon's case, 3 Co. 7. And both the preamble and the...
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