case Hawkins against day payment by executor of simple contract debt before  breach of condition of bind be good and no devastavit in case of deficiency of  asset but payment of legacy be not Jan at Lincoln inn hall before Lord  Hardwicke chancellor lib Reg a foe a S c dick on exception to the master  report the case be Benjamin lane be appoint clerk to the plaintiff who be  copartner in a sugar house he enter into article and together with John lane  and William French as his surety become bind in a bind of pound penalty for  observe the covenant c in those article Benjamin lane have convert to his own  use several sum of the partnership money abscond and go abroad and a  commission of bankruptcy issue against he but be do not conform William French  be dead and John lane be a bankrupt bill be bring inter alian for a  satisfaction against the assignee of Benjamin lane and the assignee of John  lane and against day act executor of William French who be require to admit  asset or set out a account of the personal estate of French the executor of  French in his answer insist he be a stranger to the bind and the oblige never  inform he of it and that he have pay away Frenchs asset in discharge of his  simple contract debt that if he have be inform of the bind he shall have make  a provision out of Frenchs asset if by law be may as a guard against the say  bind in case of any future breach in the condition thereof and not have  exhaust they in pay simple contract debt a account be decree of the  partnership estate and transaction and of what be due from Benjamin lane  ambler and if his effect under the commission shall not be sufficient to  satisfy they then the effect of John lane and the asset of William French be  to be answerable the latter in a course of administration the master report a  large sum due from Benjamin lane and deficiency of his estate and that  plaintiff be to be consider creditor on the asset of French and effect of John  lane the surety and as the executor of French do not admit asset he have take  a account which he state and also that his executor have pay pound S d in  discharge of legacy and simple contract debt which not be of equal degree with  the debt to plaintiff he have not allow the same to which exception be take by  the defendant inter alian because the master have disallow payment of pound S  on account of their be debt of a inferior degree to plaintiff demand though  most of the payment be make good fide by day the executor many year before  breach of the security bind which be therefore good payment after argument at  bar Lord Hardwicke c the question be saint whether payment of asset in this  case before there be any breach of the condition which be for performance of  covenant ought to be allow as a good administration of the effect d whether  payment of the simple contract debt and the legacy be good against the demand  on this bind they be pay by day the executor before he have notice of the bind  query if good at law as to the saint of opinion such payment be good because  the condition may never be break and consequent there may be no debt this case  only extend to debt not to legacy the rule of this court to grant prohibition  in case legatee sue in ambler the spiritual court and refuse to give security  be out of use now but this court will decree a legatee to refund I think all  payment ambler er p of simple contract debt make before breach of the  condition in a bind be good but not of legacy and question the payment of debt  by simple contract by a executor before he have notice of a debt by specialty  be a good payment in point of law and so it be hold by all the judge in Davis  v monkhouse in fitzg report and also in lev by three judge against levinz  objection if a executor have no notice of a specialty debt and a action be  bring against he by a simple contract creditor if then a judgement be recover  against he that such judgement be good against the specialty creditor but a  voluntary judgement will not be so I think that be a unsound opinion and  distinction for that will make it necessary in every case of a simple contract  to have a judgement in a action at law before the executor can safe pay those  debt the governor and company of the Newliver v brown John be another case as  to this point objection that two of the executor have notice but that be not  sufficient to affect day with notice because they conceal it from he first I  think if the other two executor have be stranger to the debt notice to one  will not have be notice to both executor be not affect by each other act see  Amb suppose the two executor have be stranger to the transaction as the three  be notice to they may affect the three because it may be presume they acquaint  he with it but give no opinion on that upon the whole the payment to simple  contract creditor before notice of specialty be good in this case there be a  gross neglect in the partner not to call on the clerk to account regular  exception allow see a full note of this case in the appendix to this edition e  lib Reg see the order on hear the exception in this case and the master report  at length from lib Reg in mere p the exception be allow as to all the sum in  the schedule which contain the sum mention in the text to amount to pound S  except as to the two legacy of pound and pound and except as to certain other  item the particular of which there appear see the observation of sir W grant  on this case in simmons v bolland mere in which case where a testator have  enter into a covenant for payment of rend and repair but there be no exist  breach of the covenant on rend in arrear the executor be direct to pay over  the residue to the legatee upon due indemnity from he to be settle by the  master