
    *Ezekiel Mayhew, Adm’r of Thos. White, v. Sarah Flake.
    Wliere an administrator commences an action for a demand due his intestate, the defendant may idead a discount.
    Tried before Mr; Justice Colcock, at Kershaw, Spring Term, 1821.
    This was an action to recover a note of hand, for $-, and the sum of three hundred dollars due by defendant to plaintiff’s intestate, for overseer’s wages.
    The defendant pleaded a discount for certain articles furnished, which was rejected, because, by permitting a defendant to plead in discount to any action by an administrator, a preference might be obtained by one creditor over another, and debts of an inferior grade might be paid before those of a superior, contrary to the provisions of the Act of 1789, commonly called the executor’s law. A verdict was found for the plaintiff, from which the defendant appealed, on the ground that the discount should have been admitted.
    
      Livy and M‘ Willie, for the motion. Garter, contra.
    
      
       5 Stat. 111, § 26,
    
   The opinion of the Court was delivered by

Colcock, J.

The Act of IT89, I have always thought, controlled the Discount Act in this particular. It is no difficult matter for the representative of an estate, to give a preference to one creditor, if this be allowed, for, suppose that creditor sued by the administrator, and upon filing his discount, he obtain a verdict for a large amount, and enforce it, the whole estate may be taken from the other creditors. But it is conceived, that there are ample remedies for this and every other inconvenience, which may arise by pursuing the authority of the discount Act; and my brethren are unanimously of opinion, that the discount in this case should have been allowed. They think the representative should reply plene administravit to the discount, when it exceeds the debt as to the surplus, and that the Court will grant him time to make out his accounts, and marshal the assets of the estate; and that a creditor, who *aqqi would attempt to enforce his ^judgment, might be restrained by J the Court of Equity, and thus the inconveniences apprehended be provided against. The motion is granted.

Johnson, Huger, Gantt and Bjohardson, JJ., concurred.

Hott, J.

I concur in this opinion, except as to allowing the administrator in such case to plead plene administravit, respecting which I give no opinion.

Next case. Harp. 109, 423 ; 3 MoC. 248, 250. 
      
       Act 1759, 4 Stat. 76.
     