#### Grice & Co. vs. Combs' administrators and Pons’ executors.

TTAMíLTQN, for Combs’ administrators, moved for leave to plead certain judgments obtained against the administrators since the pleadings in this action, which were no payment, plena administravit, no assets, no assets ultra and judgments. ■

Per curiam,

after'very lengthy arguments on three several days by Mr. Hamilton, Haywood, Justice only in court. — -When an executor has pleaded in chief to an action, and has assets, hath when the action is commenced and the plea pleaded, be cannot aftenvards either voluntarily pay them away to other credit* ors or suffer other creditors to obtain judgments that will talte them away ; he is onlv permitted to give a preference to one creditor over another where no action is commenced by either, or where an action is commenced by giving judgment to one before he pleads to the other; after that period is past he has no discretion j. the law therefore favoring the creditor who first ohtains a plea, provided he afterwards obtains judgment.*— Were this motion allowed, it would establish a contrary, doe-trine, 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 whose debts were not even due at the time of the plea, by giving them judgment, and saying to the prior creditor, I have preferred o» ther creditors to you by giving them judgments and applying the assets I had when you sued me to the satisfaction of their demands, . The motion denied.