Let it be granted, as settled in the case of Ransom v. McClees, 64 N. C. Rep. 17, that when it is admitted by the plaintiff, or when it otherwise clearly appears, that 4he .assets are fully sufficient to discharge all the debts of the testator, or all of the same dignity, the defendant would •be entitled to his counter claim or set off; still in the principal case, the defendant would not be entitled to the relief «demanded, for the reason that it would take from the executor the right to prefer claims of equal dignity, and confer that right upon the creditor. Brandon v. Allison, 66 N. C. Rep. 532. And for the further reason, that it would involve a full account of the administration of the estate, as far as the same had progressed, before it could be determined whether the defendant was entitled to any part of his counter claim, and if any, what part thereof; and so on through the whole administration, in every case where such counter claim was relied on, the same account would be required. In the case of Henderson v. Burton, 3 Ired. Eq. 259, it is said that quando judgments were to be paid according to their priority. That was a case of a creditor’s bill filed after the rendition of the quando judgments, where no further steps could be taken against the executors, and where all those *99creditors in the guando judgment were enjoined from further proceedings on their guando judgments.
The Court in that case, instead of the rule that equality was equity, and paying all pro rata, adopted the principle that the most vigilant was to he preferred, and therefore decided that the guando judgments were to be paid according to priority. But this decision does not cover the case of guando judgment creditors where they must proceed to fix the executor with assets before they can have execution for their debts; and we hold upon the very principle upon which that case was decided, that the creditor that first proceeds upon his guando judgment and fixes the administrator with assets, must be first paid without any regard to the priority of judgments. As our whole system in this regard has. been changed, this opinion can affect only such cases as are yet to be decided under the law where administration had. been granted previous to the first day of July, A. D. 1869.
Judgment affirmed.