#### *Executrix of P. J. McIntosh*vs. *Adm’r of P. J. Wright.*

Where a judgment is recovered against principal and surety, and the surety pays the debt, he is entitled to the security of the judgment as against his principal.

An interlocutory judgment is not such a judgment as is contemplated by the Act of 1789, prescribing the order in which the debts of a testator or intestate shall be paid.

*Before*DeSaussure, Ch., *at Sumter.*

DeSaussure, Ch. It is a general rule, that in equity' a surety is entitled to the benefit of all the creditor has against the principal; and when a bond is given by principal and security, and a mortgage is given, the security, if he pays the bond, has a right to stand in the place of the mortgagee. *Copis*vs. *Middleton,*Tur. & R. 224-9, 231.. Sureties are entitled to the *386benefit’of every security which the creditor has against the principal. *Mayhew*vs. *Cricket, %*Swanst. 185; see.also 1 Atk. 135; 1 Eq. Cas. Abr. 93; 2 Cox, 86, *Praed*vs. *Gardiner.*Our courts have adopted and acted upon this principle of sub-rogation or substitution, and protected the security wherever it could be done with propriety. The next question is, whether the surety is entitled to the benefit of the security arising from the judgment obtained by the creditor Cox, against Wright as well as McIntosh, whatever may be the extent or validity of that judgment; and of this I have no doubt. In *Hill vs. Kelly,*

1 Ridgeway’s Irish T. Rep. 265, it was decided, that where A. & B. joined in executing a bond and warrant of attorney to C., who entered judgment thereon and issued execution against A.,, who was merely a security, and he filed a bill to have the judgment assigned to him on payment of the debt, he was entitled to a decree. In *Parsons*vs. *Briddock,*2 Vern. 608, it was decided, that the surety, who had paid the debt under suit, was entitled to the benefit of the judgment against the principal, and even against his bail. These, and indeed many other decided cases, have settled the doctrine in favor of the surety.

In this case, however, it is contended for the defendant, the administrator of Wright, the principal debtor, that the judgment, of which the representative of the surety claims the benefit, was not a final judgment, but interlocutory ; and that is not such a judgment as will let in a surety as a judgment creditor. Our statute of the 13th March, 1789, directs that the debt of a testator or intestate, should be paid in the order it prescribes.. (5 Stat. 111.) After funeral expenses, etc., it goes on to enumerate debts due to the public; next, judgments, mortgages and executions, the oldest first; next, rents, etc. In the case we are considering, there is a judgment entered up, at the suit of John Cox *vs.*P. J. Wright and Peter McIntosh, on a note of hand for $250 with interest. There was an order for judgment on 10th August, 1824. The amount of damages is assessed by the clerk at $>250, with interest from 21st January, 1823. Judgment entered up on the 10th May, 1826. It is said, by the *387counsel for defendant, that this judgment was irregular, for, though the order for judgment was made on the 10th August, 1824, it was not entered up till May, 1826, when Wright, as it is alleged, was dead. This is a very awkward state of things. Here is a judgment of the court of law, acquiesced in for a number of years; no steps have ever been taken in the court of law to set it aside; no allegation of fraud. It is not for this Court to open it on the ground of irregularity. I am bound to treat it as it appears, a judgment of the Court. It is entered up as a final judgment, after the assessment of damages by the Clerk of the Court. But, it is said, notwithstanding all this, it .must be considered merely as an interlocutory judgment. I cannot., however, change its character: it must be taken for what it purports to be. It seems to me, therefore, that the- surety is entitled to the benefit of it as a judgment according to the decided cases. It is, therefore, ordered and decreed, that the defendant, the administrator of Wright, do pay the complainant the amount of the debt, out of the funds of the estate, if the same be sufficient, according to the order prescribed, by the statute of 1789, considering this as a judgment *debt;*and the costs of suit. It must be referred to the Commissioner to examine the order in which the judgment stands, according to the statute.

The defendant appealed.

The opinion of the Court was delivered by

Harper, J.

The only question made, and which it is necessary to consider in this case, is, whether a’n interlocutory judgment is a judgment within the meaning of the Act of Assembly of 1789, prescribing the order in which executors shall pay debts. We concur in the view of the law taken by the Chancellor as to the right of a surety, who has paid off a debt, to have the benefit of any security which the creditor had against his principal. But there was no final judgment, of Cox against the defendant’s intestate, at the time of the death of the latter. By the executor’s Act, the debts are to be paid in the order of priority as they existed at the time of the testator’s or intestate’s *388death. Unless the interlocutory judgment, therefore, is to rank as a judgment within the meaning of the Act, Cox had not the security of a judgment against Wright’s estate, and complainant cannot be subrogated to that security. In giving construction to this Act, we must have reference to the law as it stood before. Before the Act, executors and administrators were bound to pay off judgments, the oldest first, in preference to bonds or simple contract debts. A judgment obtained against the executor himself, gained a preference over specialty and simple contract •debts, and was ranked as a judgment. In this respect the statute has made an alteration: in other respects it seems to have enacted the common law. Before the Statute 29, Ch. 2, it is commonly said, that, by a fiction of- law, all judgments were supposed to be judgments of the first day of the term at which they were obtained. This appears from the recital of the statute itself — “ Whereas, it hath been found mischievous that judgments in the King’s Courts at Westminster, do many times relate to the first day of the term, whereof they are entered, or to the day of return of the. original or filing the bail, and bind the defendant’s lands from that time, although, in truth, they were acknowledged, or suffered or signed in the vacation-time after the said term,” etc. In saying that a judgment has relation to the first day of the term of which they are entered, final judgment must, of course, be intended. This cannot relate to interlocutory judgments. It was never supposed, I believe, that lands were bound from the term as of which an interlocutory judgment was entered. The statute has relation only to lands, and after the passing of it, I suppose executors and administrators were still bound to regard judgments as of the first day of the term whereof they were entered, until the Statute 4 and 5 W. and M. c. 20. By that statute, which has not been adopted in this State, and which by the English Court has been construed to extend to executors and administrators as well as to lands, (see *Hickey*vs. *Hayter,*6 T. R. 384,) judgments were required to be signed and docketed as directed by the statute of frauds ; and if this were not done, they ranked only as simple contract *389debts. Before the Act of 1746, (7 Stat. 193,) which we have taken from the Stat. 8 and 9 W. 3, c. 11, it is plain that an executor could not have regarded an interlocutory judgment as a judgment entitled to priority over specialties and simple contracts. By the death of the testator or intestate after interlocutory and before final judgmént, the suit was at an end, and the creditor had nothing but his cause of action. That Act providing that when a defendant dies after interlocutory and before final judgment, the plaintiff may bring a *stive facias*against his executor or administrator, and. being silent as to the rank which the judgment shall have in the course of administration, it must have been postponed to any final judgment which had been obtained against the testator or intestate himself, if such had been obtained as of a term previous to the judgment on the *scire facias.*Then the Act of 1789, providing for the payment of judgments, mortgages and executions, the oldest first, must relate only to such as were before regarded as judgments against the testator or intestate, and makes no alteration as to the mode of determining the seniority. No such question can have arisen in England since the Stat. 3 and 4, W. and M., requiring judgments to be docketed ; nor do I suppose that any such could have arisen before. Judgments, whether against the testator or executor, had priority according to date ; and, if the views which I have taken be correct, according to the date of the final judgment, this being the first day of the term of which the judgment was entered. If judgment were confessed by the testator and entered up after his death, this, I suppose, would relate to the previous term. Some light might be thrown on the subject by *Metcalfe’s*case, 11 Co. 38. The question was, whether a writ of error lay on the judgment *quod computet*in an action of account. It was determined on the words of the writ of error, that the *judgment*spoken of must mean the final judgment. “ When a thing (whereof there are divers degrees and qualities) is indefinitely mentioned in a writ, count, or other record, the principal thing and the most worthy shall be intended,” and this was the final judgment. It is added, that it must mean not *390only the principal judgment, but the entire judgment, when the whole matter is determined. That is, the judgment by which' the defendant is charged with the account which is the effect of his suit, and the other award is but accessary to it, as in trespass and in writ of inquiry of damages, etc., *“*which are but ■awards of the Court, and are but interlocutory and not definitive.” Such is the rule with respeet to decrees of the Court of Equity. Decrees in Equity rank as judgments ; but a decree *quód computet*is not, for this purpose, regarded as a decree. The decree of the Chancellor must, therefore, be reversed.

Johnson and O’Neall, JJ., concurred.

*Decree reversed.*