#### Philander Woodworth, Plaintiff in Error, v. Enoch Paine’s Administrators, Defendant’s in Error.

ERROR TO RANDOLPH.

Notwithstanding the act of 1823, regulating' the distribution of an intestate’s estate, a judgment obtained before that time against the intestate in his life time, is entitled to preference in the payment of his debts out of his personal assets, even if the estate is insolvent.

A statute enumerating things or persons of an inferior dignity, shall not be construed to extend to those of a. superior dignity.

The plaintiff in error obtained a judgment in the Randolph circuit court, against Paine in his life time, in 1822; and after his death, sued out a scire facias to revive it against his administrators. The plea to the sci. fa. was in the following words: “ The said defendants come and defend the wrong and injury, when, where, &e.; and for plea say that the plaintiff (actio non) because they say that the whole amount of assets which have come to their hands to be administered is one thousand fifty-six dollars ninety-nine cents; that the burial expenses and the expenses of the last illness of the said Paine, deceased, the allowance made by the judge of probate to the widow, and the expenses of administration amount together to the sum of three hundred eighty-two dollars forty-four three-fourth cents, leaving for distribution among the several creditors, the sum of six hundred seventy-four dollars fifty-five cents. These defendants aver that the amount of claims and demands against the estate of said Paine, deceased, entitled to a distributive share of the said assets, is three thousand six hundred fifty-three dollars thirty-seven and a half cents, and that the actual amount paid upon the said claims and demands by these defendants, exclusive of the sum of three hundred eighty-two dollars forty-four and three-fourth cents aforesaid, is eight hundred eighty-three dollars sixty-two and a half cents. That the amount of the claim and demand of the plaintiff aforesaid, is about nine hundred eighty-eight dollars in state paper, and three hundred twenty-nine dollars in specie, or thereabouts, and these defendants aver that they have paid to the said plaintiff, on account thereof, the sum of one hundred fifty-five dollars sixty-eight cents, and that the said plaintiff hath obtained a judgment against these defendants in their individual character, for the sum of two hundred and fifty dollars, a part of which has been made of the sale of the property of these defendants by execution, and a part whereof is not paid, to wit, the sum of-dollars, for which *375last mentioned sum of-dollars, the plaintiff now has execution levied; wherefore, these defendants say that the said plaintiff has received his distributive share of the assets aforesaid, and this they are ready to verify, wherefore, they pray judgment, &c. This plea was demurred to, and the demurrer was overruled by the circuit court, and a writ of error prosecuted to reverse that judgment.

Opinion of the Court by

Chief Justice Wilson.

Wood-worth, the plaintiff in this case, sued out a scire facias against Greenup and Conway, administrators of Enoch Paine, deceased, to revive a judgment obtained against Paine in 1822, for the sum of one thousand fifty-six dollars sixty-one cents.

To this sci. fa. the defendants pleaded, among other things, outstanding claims against the estate of their intestate, exclusive of the judgment of the plaintiff, greatly exceeding the amount of assets that remained in their hands, but neither the nature of those claims, whether judgments, specialties or parol, nor the time of the death of Paine, are set forth. To this plea there was a demurrer, which was overruled by the court. ’ For the defendants it is contended that the statute of 1823,* relative to deceased persons’ estates, placed all demands against the estates of such persons (except funeral expenses) upon the same footing, as well judgments as debts by specialty and parol, and that each claim was entitled to a- distributive share of the assets according to its amount, without regard to the nature of the claim.

The statute of 1823 referred to, is clearly prospective in its operation, and was so decided in the case of Betts and Smith, administrators of Jones v. Bond.† If the position of the defendants was true as regards judgments against persons dying since the passage of that act, it was incumbent upon them to have shown the death of their intestate subsequent to that time. According to the construction of the statute for which they contend, this is a material fact which should have been affirmatively stated. The plea in this respect is bad ; it leaves the time of the decease of Paine uncertain, and the rule is that a plea which has two intendments, shall be taken most strongly against the party pleading it. Chitty Pl., 521.

The imperfections of the defendant’s plea are sufficient to reverse the judgment of the court below, but as this case has to be remanded for further proceedings, it becomes necessary to inquire whether the act of 1823 was intended to apply to judgments rendered previous to its passage. After enumera*376ting several descriptions of claims that shall he entitled to a preference in the distribution of an intestate’s estate where the same is insufficient to pay all the debts, it provides “ that executors, &c., shall then pay the balance on the legal demands, in equal proportions, according to their amount, without regard to the nature of said demand, not giving preference to any debts on account of the instrument of writing on which the same may be found.” Judgments, it will be perceived, are not mentioned in the statute, and it is a rule of law that an enumeration of things or persons of an inferior dignity, shall not extend to a superior. A judgment is a demand, but it is not a demand evidenced by an instrument of writing as contemplated by the statute. It is a debt of record created by operation of law, in which the original demand, whether evidenced by oral testimony or specialty, is merged. At common law, debts were to be paid by executors, &c., according to their dignity. Our statute was intended to establish a more equitable rule, and, without taking from the judgment creditor the fruits of his diligence, required other debts to be paid pro rata, regardless of the kind of testimony by which they were to be established. 1 Bl. Com., 88. 3 Burr. Rep., 1548. 3 Bl. Com., 389. 2 Bl. Com., 465.

According to the law in force, at the time the judgment upon which this sci. fa. issued was obtained, a judgment bound the real estate of a defendant from its rendition, and the personal from the delivery of an execution into the hands of an officer. No sale or transfer made by a defendant of his property, after that time, could divest the plaintiff of the lien which the law gave him on tlié property, for the purpose of satisfying his debt. Without inquiring into the power of the legislature to divest a party of a right thus acquired, it is sufficient for the present case, that they have not attempted it by naming judgments, or using any other terms that will necessarily include them ; and a previous right or remedy can not be taken away without a positive enactment; it is never done by implication. 19 Vin., 514. Dane’s Abr., Chap. 196.

The same legislature that enacted the statute relative to the distribution of intestates’ estates, a few days after its passage, reenacted the law of 1821, which made judgments bind the property of a defendant. If then the defendant’s construction of the first law be right, the second one, as regards judgments against persons subsequently dying, is a nullity, even though an execution had been issued and levied, previous to his death. This certainly can not be true. If, however, either, statute conflicts with, and repeals part of the other, it is the defendant’s position which is taken away by the reenact*377ment of the law of 1821. If the view I have taken of this subject be correct, then both statutes may have an operation without violating legal principles, or doing injustice to any, and two laws of the same session, and in part on the same subject, each evidently intended by the legislature to have full operation, will be reconciled and preserved. Eor these reasons, the judgment of the court below must be reversed with costs, and the cause remanded, with leave given the defendants to plead over. (1)

Breese and Baker, for plaintiff in error.

Hall, for defendants in error.

Judgment reversed.

*

Laws of 1823, p. 127.

†

Ante, p. 287.

(1)

Statutes which treat of things or persons,of an inferior rank, can not, by any general words, be extended to those of a superior. Hall et al. v. Byrne et al., 1 Scam., 140.

Now we have the following statute on this subject: “The word ‘person’ or ‘persons/ as well as all words referring to, or importing persons, shall be deemed to extend to and include bodies politic and corporate, as well as individuals.” Scates’ Comp., 722, sec. 29.

Corporations are included in the word “person” in the attachment law. Mineral Point R. R. v. Keep, 22 Ill., 9.