When an executor or administrator has pleaded in chief to an action; having assets, both where the suit is commenced and the plea is pleaded, he cannot afterwards voluntarily pay them away; nor ought he to suffer other creditors to obtain judgments that will deprive him of them.
He can prefer one creditor to another, only before an action is commenced by either; or, when actions are commenced, by giving a judgment to one before he pleads to the other’s suit. After that period, he has no discretion, because the law prefers that creditor who first obtains a plea, provided he afterwards recovers judgment.
The allowance of this motion, would be in effect, to establish a contrary doctrine;—namely, that though an executor had assets at the commencement of the action, and also when he pleaded, yet at any distance of time afterwards he might prefer other creditors, by giving them judgments, though, possibly, their debts were not due, when he pleaded to the first action.
Motion denied.