Where there are several demands of equal dignity, and a deficiency of assets to pay all the creditors, before any suit brought the executor may pay, to the amount of the assets, which of them he pleases; but if suit be brought, he can no longer make a voluntary payment; the commencement of the suit, and his having notice thereof, restrains him from making any voluntary payment; but still it is not priority of suit that entitles to priority of payment, but the first obtaining of judgment. Consequently the pleading a former suit, as the executor has done here, is no good plea in bar of the plaintiff. It should have been a plea of a former judgment, and that would have been good. The proper course for an executor to take, when there is a deficiency of assets and he is sued by several creditors of equal degree, is to confess judgment to as many of their demands as will cover his assets, and plead these judgments in bar of the other creditors. Where there are two or more suits of equal dignity commenced against him by several creditors, and he hath not assets enough to pay any one of them, he must plead to some one of them the amount of his assets, making an appropriation of them to that demand, and plead that matter in bar to the other suits.
The plaintiff had judgment.
Cited: Bryan v. Miller, 32 N.C. 130; Wadsworth v. Davis, 63 N.C. 252.