212.

In Martin v. Martin, Lord Hardwicke said, "If several 1 Vesey, Sen. creditors proceed in this court for satisfaction by different bills, the court will not stop the suit of one, because of the priority which may be gained; although this creates an entanglement upon the estate." He mentions a case in which there were five distinct bills against an executor, which Lord King refused to hear together, because he would not deprive a creditor of the right to get a priority in his decree if he could.

If the decree for an account on one bill would have been a decree for all the creditors, no priority could have been obtained.

4 B. P. C.

In Morrice v. The Bank of England, the two decrees ob- 465.
tained were by a few creditors in each bill, for their separate
demands, and the decrees were final; in one case, upon an ad-
mission of just debts by the answer, and in the other upon a
report and final decree for payment; and these decrees took
preference over subsequent judgments.

In Smith v. Eyles, the rule upon a single creditor's bill is
clearly stated.
"The plaintiff was a creditor, either by sim-
ple contract or specialty, (it does not distinctly appear which,)
and having filed a bill, obtained a decree for an account.
fore the report, the executors confessed a judgment. The
Master reported this judgment to be of a prior nature to the
plaintiff's demand. An exception was taken.

Be

Lord Hardwicke said,-It is allowed that if a decree is obtained against a testator, or his executor, quod computet, it can by no means be put upon an equality with a judgment confessed after such decree. These decrees have been truly compared to interlocutory judgments.

In equity upon a decree quod computet, it does not pass in rem judicatam, till the final decree. Exception overruled."

2 Atk. 384. 1742. See

also Shirley v. Ferrers, cited 10 Ve

sey, 34.

"The decree in such a case does no more than direct an Per Dicken' Register, account of what is due to the plaintiff, not a general account of Bedford v. debts; that the executors pay such demand out of the assets Leigh, in course of administration; and in case they do not admit assets, an account of the personal estate."

Dickens, 707.

Mr. Dickens stated, that a decree upon a bill by a single creditor, not on behalf of himself and the others, never goes to real assets ;. in which position Mr. Ambler and Mr. Mad. See the readock concurred; and in the principal case, Lord Thurlow rule explain. dismissed the bill so far as it prayed satisfaction out of the real ed, Post. estate descended.

son of this

“In an anonymous "case, Lord Hardwicke declared, that 3 Atk. 571. where a bond creditor brings a bill against an executor for an account of assets, and satisfaction, it is no objection for want of parties to say, he has not brought other bond creditors, or

2 Cox's cases, 44.

10 Vesey, 34.

creditors of a superior nature before the court, for any one bond creditor may bring his bill, as the court decrees only an account; and directs the executor to pay in a course of administration; and then the executor before the Master may set forth, as he is conversant of the state and condition of his testator, what debts are prior to the plaintiff's which he is obliged to pay, as having a legal preference."

So in the case of the Attorney General v. Cornthwaite.

"An information at the relation of certain trustees of a charity, against the executors of a late treasurer, for payment of balances due from him.

By the decree a reference was ordered to take an account of the monies come to the testator's hands; and what should be due on that account was to be paid in a course of administration; and if assets were not admitted, an account was to be taken of the personal estate of the testator. On the report coming in, the Lord Chancellor expressed a doubt, whether the report of the amount of a particular debt, and of the personal estate was a sufficient ground for a personal decree for the payment of the debt, without a general account of the testator's debts.

But it was said, and agreed on both sides at the bar, that where a single creditor brings a bill, there is no general ac count of debts directed, but the course is to direct an account of the personal estate, and of that particular debt; which is ordered to be paid in a course of administration. And all debts of a higher or equal nature may be paid by the executor, and must be allowed him in discharge.

The Lord Chancellor however directed the Master to state, whether the balance found due would, by reason of any specialty or other debts, be the balance coming from the executors, to be applied in a course of administration."

The object of this direction was merely to have the amount and priority of all superior debts stated, upon the report; so that the decree might be for the actual sum, which by a course of administration, the executors would hold applicable to that demand. I consider it as recognizing entirely the principle stated by the counsel on both sides, and only to provide for the statement of unpaid superior debts in discharge, as well as those which had been paid.

Another important and late case upon this subject is Perry v. Philips." The plaintiffs claimed under a general devise and bequest.

ed.

By the decree an account of the personal estate was direct

Exceptions were taken to the report, disallowing certain payments made by the executrix, which appear to have been of judgment debts.

Lord Chancellor held that a mere decree for an account of the demand of the plaintiff, and of the personal estate come to the hands of the defendants, with a mere direction for payment out of the result of that account, was not a decree to prevent the exccutors paying a judgment. There must be a report, and a final decree upon it. Upon these grounds therefore, these judgments were well paid as against the original deThe exceptions were allowed."

crec.

The judgments must have been after the decree, or there could have been no question.

The Chancellor in Thompson v. Browne, appears to have 1 Vesey, 213, come to his conclusion upon this point, upon the authority of

the cases of Martin v. Martin, Douglass v. Clay, and Brooks v. Reynolds.

In the former Lord Hardwicke states, and it is cited by the Chancellor, that the constant course of the Court was, on a decree for sale in satisfaction of a Bond creditor, not only where it is on behalf of himself and others, but even where the bill is for satisfaction of his own particular debt, to direct an account of all the bond debts of the testator, with liberty to come for a satisfaction, without which no decrce for a sale could be. He then states the mischiefs and inconveniences, if this was not done, as another bond creditor proceeding at law, might issue a Levari, and the effect of a sale under a decrce of the court, could not be had. But Lord Hardwicke clearly recognizes the creditor's right to proceed against the executor and the personal estate for a separate satisfaction, because in a previous part of the case he states, "that if several creditors proceed in this court for satisfaction by different bills, the court will not stop the suit of one, because of the priority which may be gained, although this creates an entanglement and difficulty upon the cstate."

And the case of Bedford v. Leigh, before cited, corresponds with Lord Hardwicke's doctrine. The single creditor, on Dickens, 707. his separate bill, can only be relieved out of the personal assets; he cannot procure a decree against real assets for his sole benefit. And Lord Hardwicke's decision in the anonymous case, 3 Atkins, 571. clearly shews that this is the distinction.

393.

The case of Douglass v. Clay, which the chancellor cites as Dickens. establishing the same rule in the case of personal assets, as Lord Hardwicke declares as to real, was a case expressly of

1 Br. C. C.

183.

4 Vesey, 638.

? Ch. Casės,

200.

creditors filing a bill on behalf of themselves and others. It is reported in Dickens.

"The defendant Clay and other creditors filed the bill against the present plaintiff, an executor, on behalf, &c. The usual decree was made for an account. Then the defendant Clay, neglecting to go in before the Master, commenced an action at law, and the bill was filed for an injunction, which Lord Camden granted.

"Brooks v. Reynolds, was the case of a devise to trustees of freehold and personal estates upon certain trusts, after pay ment of the testator's debts.

The trustees filed their bill for directions and indemnity, and a decree was made for an account of the personal estate, debts, &c. the personal estate to be applied in a course of administration, and if a deficiency, the creditors might apply to the court.

A bond creditor having sued at law, this bill was filed to enjoin him. It was contended that there was no instance of this except upon a creditor's bill. But Lord Thurlow held the principle to be, that the creditors here could come in before the Master, (an account of debts was directed) and that the court had taken the whole fund into its own hands to distribute.”

Rush v. Higgs, was a case of the same character, and the injunction was refused, because there was no decree. The Chancellor asked, if there was any instance of a creditor being stopped at law, unless there was a decree under which he might come in ?

The rule therefore is, that in these bills, whether by credi tors on behalf of all, or by trustees and executors for directions, the court being called upon to take the whole distribution of the assets, and able to do it, the creditors will be stopped from proceeding at law, after a decree for an account. But in a bill by a single creditor, the court is not called upon to distribute the fund, but only to give him a decree for his separate demand, payable in the course of administration.

The numerous cases on this branch of jurisdiction may be divided into two classes according to the nature of the bill, whether a single or a general bill, and each class examined with a view to two points. First, as to the authority of the executor to grant preferences; and Second, as to the interference of the court in restraining a creditor from proceeding adversely at law.

And first upon a bill by a single creditor for himself alone. In Parker v. Dee, 1674, it was held by the Master of the

1 Vernon, 457.

Rolls, that neither voluntary payments, nor judgments confessed, of debts of an equal degree with the complainants, were to be allowed an executor after bill filed. And the same was the doctrine in Surrey v. Smally, 1687. But in Bright V. 1 Vernon, Woodward, 1685, Searle v. Lane, 1688, and Goodfellow v. 369. Burchett, 1698, the distinction, as at law, is taken; viz. that 88. Ibid. 298. the bill prevents the alienation of assets by payment of debts of equal degree without suit; but that judgment may be confessed upon such debts, and a preference thus obtained.

2 Vernon,

Chan. 188.

Then came Darston v. The Earl of Orford, 1701, in the Prec. in House of Lords, and Mason v. Williams, destroying this dis- and 3 P. tinction, and allowing a voluntary payment as well as a con- Wms. 401. n. fessed judgment to the executor, whether before or after the () Salkeld, decree quod computet.

507.

The case of Waring v. Dancers, 1715, does not touch the 1 P. Wms.

question as to the payment without confession. It decides only 295. that the judgment confessed it to have a preference.

401.

In Robinson v. Tonge, 1735, there is no decision. It is 3P. Wms. stated by the reporter in a memorandum, that it was insisted, that the administrator could not pay a bond, after a bill filed by another bond creditor, without giving judgment, which the court seemed without difficulty to allow. Whether this is sufficient to restore the former rule, against the decision of the House of Lords in Darston v. Orford is a question of at least some doubt. Mr. Raithby, editor of Vernon's Reports, treats

it as doing so.

Smith v. Eyles, was a judgment confessed after a decree for 2 Atk. 384. account, and allowed. Shirley v. Ferrers, cited in Perry v. 10 Vesey, 34. Phelips, was a judgment subsequent also to such a decree, whether confessed or not, does not appear; and the latter case must have been one of the same circumstances, because the argument there was, that the decree was equal to a judgment; that it was final or sufficiently so.

2d. The interference of the court to restrain a creditor proceeding at law depends upon the same rules as the allowance or rejection of preferences by the executor. Of course, the court will never interpose in this manner before that stage of the suit, in which it will disallow a preference, because it will regard more favorably an adverse proceeding against an executor, than his voluntary payments. Therefore upon such a bill, an injunction will not be granted until there is a final decree for the demand.

Morrice v. The Bank of England, was a case of an injunction granted at that period of the cause and see the statement of the Lord Chancellor in Perry v. Phelips.

10 Vesey, 34.