Whore. (here are m" eral demands of equal ¿í;pfv¡t'->. and a deficiency ttf as«eis to pay all ti»»* c: editors, before any sail brought the executor may pay to H<o amount of the assets, which of them he pleases: huf if suit be brought, he can no longer ni-ike a voluntary payment — the commencement of the suit, and his leaving notice thereof, restrains him from making any voluntary payment ; but still it is not priority of suit that entitle» to priority of payment, but the first obtaining of judgment — conseqii'-tnly the pleading a former suit, as die executor has done here, is no good plea in bar of the Plaintiff. It should have Hern a plea of a former judgment, and that would have been good. The p<-per con-se for an executor to fake, when there isa deficiency of -- sets and h=- is seed by g-* vocal creditors of equal de-gr.í- is- to rnoiess jndgot"tst to as many of their demands as ■ UÍ cover bis assets, and plead these judgments in har of Hr • other creditors. Where there are two or more subs of equal dignity commenced against him by several ■creditors, and he hath not assets enough to pay any one of them he must picad to some one of them the amount of Pis assets, making an appropriation of them to that demand, and plead that matter in bar to the other suits. The Plaintiff had judgment,
Anonymous, 2 N.C. 341, 1 Hayw. 341 (1796)
Anonymous.
Suit commenced against an executor returnable to the Superior 6oueí, and suit afterwards commenced reiurnable to the Count Court, which sa', first: to these latter suits the executor nut n such pleas as made the assets responsible for their payment, and to the suit in the Superior Court he ph-adtd that he had no assets . xcept what was fiable to the payme' * of thf other suits. The latter oh a is not go. d; tie ought t.i have confessed judgment to the suit- in the C uiftty Court, and then plead those judgments to the suit in the Superior Court.
This was an action against an executor, who pleaded that he had fully administered all the assess of the testator, except so much which w=s liable to for mer judgments and suits. This action was commenced prior to some others, which were the suits alluded to in the plea; hut this action was returnable to the Superior Court, and the others to the County Court which was held In fore the Superior Court: and to these, suits iri the County Court, the pleadings were such as admitted assets of the testator sufficient; to satisfy them. In support of this plea, it Was argued for the executor, that although before any suit commenced, an executor, in case of deficiency of assets, may p, y which of two creditors of equal dignity he may think proper ; yet where one of them hat it commenced suit, he cannot pay the other t« his prejudice ; and therefore he who first commences his action, is first entitled to payment. The executor in the present ease, could not with any safely plead otherwise, than he hath done — he hath pleaded the truth of his case to the suits he was first hound to plead to — he bath admitted assets, and made an appropriation of them to the creditors in these suits; and to this suit which he was afterwards bound to plead to. he hath pleaded in substance that appropriation. There was no other course for him to take. This method of pleading is sanctioned by the rase of Waters and Ogden, and another administrator of Meil, reported in Doug.453,454. There the executor had assets,but to a certain amount, not adequate to the payment of the demand of either creditor; but he confessed what assets he had to the demand of one creditor, and to the other demand of the other creditor he pleaded the other suit, and the confession of the «skets he had to that demand — and it was held well. In the present c. se, the executor had not assets to satisfy all the creditor s ; but he pleaded to the suits in the County Court, so as to admit and appro*342priate fo these demands all the assets he had. and,he pleaded that appropriation to Ibis suit. It would be excessively hard should he he compelled to satisfy this demand also, which must be out of his own pocket if satisfied at all.
E contra
it was argued that amongst creditors of equal degree, it is not. the first suit that entities to priority of payment; but the first obtaining of judgment. Off. Ex. 138, 144. inhere there .«rr several demands of equal dignity, and the creditors all sue, and the executor hath assets but for part, if he pleaded *o eacli of these demands that hehath assets but fo a certain amount.each of them may have judgment to that amount : or if he ¡dead to each plene adminislravit, at the trial a verdict most be against him unos eacli demand to the amount of the assets ; because at the time of the pica pleaded.’ each plea was untrue, and the jury in each cause, must upon such evidence say that it was not a tine plea at the time when pleaded,; and so the* verdict in each cause mtisl befo: the Plaintiff. If he plead to some of these suits the amount of the assets, and to the others that he hath made an appropriation of his assets. that will not be good pleading; because after suits í ..mnnneed, he has no1, a right to pay whom he pleases firs;, hut only such-of ¡hem as could first get judgmen'. In such ras.-- where there is a deficiency of assets to pay all, the proper method lo be observed by an executor is, to confess judgment to sume of the creditor.-, to the amount of his assets, and plead the judgments to the other suits. Wood's Inst. 332, Nels. Ab. 787. God 219, 223, 324. 1 P. Wil. 295. As to the case cited from Douglas, that is not applicable to this— there, the assets w re not sufliri. nt to satisfy the demand of either Piaimiff, and for that reason the. Plaintiff to whose suit the apprnpi iatinn was made, would not enter judgment so that it could be pleaded to the other suit; and the executor had no means to compel him fo enter it —but iu the case now before the court,, the assets in the hands of the executor, w<->-e to a much larger amount than the several demands sued for in the County Court ; ami had the executors confe'-sed judgment severally to the amount of earl: demand, the court would have compelled the Plaintiffs in these soi s, t<> have enteied their rest s etive judgments, so that they might be pleaded Jo this suit.