By the Court.
Lumpkin, J.delivering the opinion.
What status, if any, has a dormant judgment in the payment of the debts of the decedent by the executor or administrator ?
The Act of 1792 declares that “The debts due by any testator or intestate, shall be paid in the order following, viz: Funeral and other expenses of last sickness, charges of probate and will, or of letters of administration ; next, debts due to the public; next, judgments, mortgages, and executions, the eldest first; next, rent; then bonds or other obligations'; and lastly, debts due on open accounts,” (Cobb 287.)
It is unnecessary, so far as the present point is concerned, to refer to subsequent legislation modifying, to some extent, the order in which debts are to be paid, as prescribed by the Act of 1792.
Is a dormant judgment a debt against the estate of the intestate? In Lockwood vs. Barefield 7 Ga. Rep., p. 793, this Court say: “The judgment when dormant under the statute, is not extinct, but impotent; the scire facias does not create a new judgment, it awakens a sleeping judgment, and gives it all the attributes which it had when first rendered. In this view of it, the Act of 1823 does not extinguish the judgment, except as to its lien and capability of enforcement It does not destroy it as the evidence of a debt."
In Carter and wife vs. Coleby, 8 Ga. Rep., p. 351. this *509Court again say: “The Act of 1823 was intended for the benefit and protection of bona fide creditors and innocent purchasers, and that this object is effected by extinguishing the lien of the judgment as such and incapacitating it for enforcement For all other purposes it remains unimpaired. It is the evidence of a debt, and an action can be sustained upon it' It is the highest evidence, record evidence, that the plaintiffs have a just demand against the guardian.”
Finally, upon this point, in Wilcher, adm’r &c., vs. Hamilton 15 Ga. Rep, p. 435, this Court said: — (Judge Benning delivering the opinion.) “In reviving a judgment, is interest to be counted on it for the time during which it has been dormant ? It is. This is to be inferred from the last clause of the proviso, ‘but the lien of such revived judgment on the property of the defendants thereto, shall operate only from the time of such revival,’ as the mention of onethingis the exclusion of others. The inference is, tfrat the judgment, when revived, is to be as if it had never died, in all respects, except one, viz, lien. It is therefore to bear interest as if it had been left continuously alive. Besides, this is the dictate of natural justice, if indeed it is not the express command of positive law. The judgment of revivor is but evidence that a debt (a liquidated demand,) has never been paid, although appearances may be to the contrary. And the law makes liquidated demands bear interest during the whole period, through which they pass unpaid.”
Thus it will be perceived that this Court has uniformly held, that it is the lien only, and not the debt which is extinguished by the operation of the dormant judgment Act.
A dormant judgment then, being a debt against the estate, (a liquidated demand bearing interest) the next enquiry is, to what class in point of dignity, that is, as it respects priority of payment, does it belong ? It must belong to one of three. It must either be a judgment; a liquidated demand and included under the words in the statute, “ other obligations,” which means all liquidated demands not otherwise mention*510ed, (see Davis and others. vs. Smith and others 5 Ga. Rep., p. 274,) or it is a debt due on open account.
It is not a judgment proper, for the Act of 1792 (Cobb. 287) had reference, obviously, to operative judgments, having a lien on the property of the testator or intestate at the time of his death. Hence the provision, that the oldest of these should be paid first. A dormant judgment has no lien, until revived, anda judgment of revival, subsequent to .the death of the debtor, would not advance the dignity of the debt. The status of the debt is fixed at the death. No one will contend tliat a dormant judgment, though older in date, would take precedence of a junior judgment which was subsisting at the death.
Secondly, it does not fall under the head of open accounts, which are the lowest grade of debts to be paid, “ Lastly, open accounts.” The amount due upon the judgment, is certain and ascertained. It is a debt of record. The plea of nil debet would not lie to a scire facias to revive the judgment, nor to an action of debt upon the judgment, no more than it would on any other domestic judgment, or to a suit on a judgment of South Carolina or any other State of the Union: accord, and satisfaction, release, &c., or something occurring subsequent to the rendition of the judgment, could alone be pleaded.
We are shut in, therefore, to the conclusion, that it is to rank with bonds and other obligations; and that is the footing upon which dormant and undocketed judgments stand in England, in the administration of assets.
But while it is conceded that it may become a debt, by revival, yet it is insisted that under the dormant judgment Act of 1823 (Cobb 498) it counts for nothing, until that is done, and that consequently it must be postponed to even open accounts. I respectfully submit, that if it be a debt at all, it is the duty of the Courts to arrange it under one of the existing classifications, and that - they have no right to add another not provided for by the statute. It must take- its *511place under some one of the several classes already designated. Moreover, admitting the premises, the conclusion does not necessarily nor legitimately follow.' There are frequently outstanding claims against an estate, which the representative dare not pay until they are adjusted, and yet, when ascertained, sweep away the whole of the assets from the rest of the creditors. The deceased may have been a debtor upon an official bond to the public, or a defaulting trustee, and although the extent of his liability is unknown and can only be determined by a judgment or decree, still, the representative must retain the assets at his peril, to satisfy the amount which may be recovered.
I see nothing, either, in the fact that the dormant judgment Act is of a later date than the Act of 1792, which has any bearing upon the question.
It would be well, I think, in all cases, for executors and administrators, instead of paying dormant judgments voluntarily, to require them to be renewed, or to give the creditors, legatees and distributees an opportunity, by bill or otherwise, to contest their validity; still we hold that they would be guilty of a devastavit, not to provide for their pro-rata payment according to the condition and circumstances of the estate.
Judgment reversed.
McDonald, J. concurred.