Savanna Cotnrr or Pam;/jlvaniu. 261 though an Exeeutor, or Adminiltrator, cannot pay a debt of rjgti. the fame degree, after a£`tion brought and notice given of fuch ~/vs: aétion, unlcfs there is judgment for the debt which he pays ; yet that he may pay fuch debt after judgment ; and he is intitled . to give it a preference by imparlances, and pleading dilatory pleas to the lirll aéiion, and, in the meantime, confelling judg- . ment for the feeond demand": But Baller, _71_qIic:, fays, “ that all legal means may be ufed to obtain a preference" ; and as priority of fuit is a legal means, entitled to countenance more than any right of favoritifm on the part of executors, the only quefiion is, whether the Court will, under the circumltances of the prefent cafe, reflrain the exercife of that right, which muft depend upon the favor of the Court, in granting imparlances, and allowing dilatory pleas. Maylari, for the defendants, having averred, -that no fyftem of favoritifm would be purfued; but that, ncverthelefs, the exe- cutors felt an equitable obligation to difcharge, in preference, debts due from the tellator for loans of friendlhip, and clerks, or fervants, wages ;* proceeded to fhew, by numerous quota· » tions, that the right of an executor to give a preference to any creditor, of the fame degree, was politive and unqualified. Wcniw. 142. 3. 4. 5. 1 1 Vin. Abi-. a6gpI. 4. 1 Sid. at. Vuugb. gg. Lev. on HGH:. 56. Doug. 436. Illarg. Att. wd: mecum. 196. He analyfed the authorities cited for the plaintiff, and infiited, that fome of them were contradictory, each to the other; that fome of them were ubiter dié?a; and that fome were decided in actions, whofe forms and principles were not applicable to the prcfent cafe: yet, that taken in the grofs, a candid expolition would reconcile them to the doétrine, that wherever there was no covin or fraud, an executor may give a preference to a ere- ditor of the fame degree. It is true, that they prove, liltewife, the difcretionary power of the Court, to allow, or refufe, im- parlances, according to the weight of the reafons alligned: but, - taking into view the deranged {tate of the teIlator's affairs, at the time when the motion for pleading was made, there certainly could not be a more proper occafwn, than the one now depend· ing, for granting every pofliblc indulgence to the executors. _ At that time no affets were afcertained; and if the executors could not plead fatisfaétorily then, the court will not compel them to plead matter, which has linee occurred ; for, if the rule is made abfolute, it mulls bein relation to the llzate of things, at the period when the motion was made. But fo far from precipitating the executors into a premature plea, they are entitled, by a liberal and fair conil:ru&ion of
- ilhgvlan oflired to lign an agreemc? that l`uch preferences alone
tlmuld be given ; and the propolition, t ough not adopted, feemed tm be upprovewl both by Court aud Bar. ·
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