INTRODUCTION xciii

against him." Plaintiff in replication pleaded that the action should not be
barred by anything pleaded since defendant at the time of the issuance of the
original writ had goods and chattels of Tracey's in his hands for administration
to the value of the debt sued for and this he prayed might be inquired into by
the court. In rejoinder Cecil pleaded that defendant "hath wholey administred"
and put himself upon the court, as did plaintiff. The court, after having heard
the witnesses on both sides adjudged that plaintiff recover the amount sued for
out of the goods and chattels of Tracey at his death in the hands of defendant to
be administered, "if he hath so much thereof in his hands to be administred." S7

Several cases involved the principle that an executor or administrator should
first pay or satisfy debts of a higher nature or quality. In a case in the November
1698 court, Tench v. Edmundson's Administrator, defendant entered a special
plea in bar that "there is Severall Debts Due by Speaciallytyes and other obliga-
tions of a higher Nature then the Defendant in his Declaration] mentioned which
by Law ought to be Paid before the Said Defendant" which he was ready to averr
and prayed judgment. Whereupon plaintiff in replication alleged that there were
no debts of a higher nature and craved judgment. The court thereupon gave
judgment for plaintiff to be levied upon the goods and chattels of decedent which
should come into the hands of defendant as administrator.38

In October 1699 the court heard four actions against the executors of Jonathan
Willson for debts allegedly owed by decedent. In each case defendant pleaded
that the decedent at the time of his death had several unsatisfied judgments out-
standing against him (two in the Provincial Court and one in Charles County
Court) which being debts of a higher nature than those of the plaintiff ought to
be first paid and satisfied, the judgments referred to being produced in court.
In addition, it was pleaded that the executors did not have assets in their hands
belonging to the decedent's estate sufficient to pay the debt sued for and this they
were ready to aver. Therefore, they demanded judgment if the plaintiff ought to
have his action. Plaintiff's attorneys in each case pleaded, in part by way of de-
murrer and in part by way of replication, that plaintiff ought not to be barred by
the aforesaid plea, since supposing it to be true as alleged, there was a considerable
list of debts due to the decedent's estate from several persons which would be assets
in the hands of the executors when received in excess of the debts of a higher nature
alleged in defendant's plea. Therefore, plaintiff in each case prayed judgment
against the executors to be paid out of such debts when received by the executors.
Defendant in each case then reiterated his earlier plea and put himself upon the
court as did the plaintiffs. In each case it was adjudged that plaintiff recover the
amount sued for out of the goods and chattels of which decedent died possessed
which came into the hands of his administrators. 39

It was provided by statute that no person living or trading within the province
should sue at law in any court of the province for any debt due or owing him by
account upon book or otherwise, not under the hand and seal of the debtor, unless
the creditors first demanded the same of the debtor at his habitation or by note
left at such habitation in the absence of the debtor. In the event any creditor sued
contrary to such provision, he was to lose his costs of suit and to be liable to the
debtor for all such damages as accrued by such vexatious and unjust suit. In Meri-
ton v. Groome, an action of trespass on the case at the September 1697 court, de-

37. Infra 567-69.

38. Infra 396-98. For implied recognition of the principle of priority of debts of a higher nature
or quality see 19 MA 209.

39. Infra 556-59, 561-65.