case catherine morris widow and executrix of humphrey morris decease plaintiff  GIOVERNOR and company OF the bank OF England and other creditor defendant see  Dollond v Johnson Sm g a executrix of a who be great indebt to diverse person  in debt of different nature be sue in this court by some of they appear and  answer immediate and confess their bill some of the plaintiff here be her own  daughter other creditor sue the executrix at law where she can plead the  decree and obtain judgement the decree here be for just debt be not per fraud  and the creditor plaintiff at law shall be enjoin and the executrix protect in  her obedience to the decree the plaintiff at law to come in afterward in due  course of administration the whole be legal asset the judgement of all court  at law have proper jurisdiction whether by grant or prescription be equal bind  the decree in this court be of equal force with judgement at law and the real  priority in point of time and not by relation to the first day of a term must  give the preference in point of payment the state of the case as far as be  material be as follow Mr brown in the lifetime of the testator the husband of  the plaintiff videlicet in October make his will and thereby give to Mr morris  pound in trust for his daughter case tempt Talbot to be pay to they and the  survivor of they at twentyone or marriage which shall first happen share and  share alike together with such interest as shall be make of the same he give  several other legacy to other mask end subject to his debt and funeral expense  he give all the residue of his real and personal estate to Mr morris his heir  executor c and make he sole executor Mr morris be a great trader contract many  debt and die November have make his will and the plaintiff his executrix his  affair be much embarrass and he stand indebt to several person by specialty  and otherwise in large sum of money and particular to the bank of England for  pound by simple contract soon after his decease and before any action commence  against the plaintiff by any of the creditor the defendant whether Judith and  Elizabeth the daughter of Mr morris with some other few creditor December  exhibit their bill against the plaintiff as executrix of her say husband set  forth the several sum that Mr morris be indebt to they respective and with  which he be entrust for their benefit which remain unpay together with a great  arrear of interest and thereby pray a decree for the payment thereof mrs  morris the now plaintiff immediate put in her answer confess the bill and on  the that of January the cause be hear upon bill and answer only and the now  defendant mrs morris daughter obtain a decree that the plaintiff shall out of  the asset of her say husband pay the say several sum of money so demand in a  course of administration the plaintiff in obedience to that decree on the that  of February follow pay out of her husband asset to two of the daughter pound  in satisfaction of part of their demand under the decree on the that of  December some few other creditor for small sum of money file their bill for  the payment of several quantity of SouthSea stock and annuity and eastindia  stock that be transfer to Mr morris in trust for they pray that the several  case tempt Talbot stock as remain in mrs morris name may be transfer to proper  trustee and as to so much as Mr morris have dispose of to his own proper use  the now plaintiff may be decree out of her husband asset to make good the same  mrs morris confess this bill and on the d of February a like decree with the  former be make that the plaintiff shall pay what be certify by the master to  case tempt Talbot er p be due after a account be take out of the asset in a  course of administration all the defendant have notice of these decree from  the plaintiff or her agent so soon as they be make and also notice that the  asset of the say Mr morris come to the defendant hand be not sufficient to  discharge their respective debt upon specialty and that the sum of money  decree as aforesaid except the say pound beforementioned to be pay be yet  unpay and the other part of the decree whole perform while all this be do  several other creditor bring their action for their respective debt against  the plaintiff as executrix of her husband and particular the bank of England  for pound to which the defendant plead a special plene to manage and will have  plead several other bind have she then be inform of the same and also the two  decree have she be able by the rule of law so to have do they be obtain before  any plea plead after this the now plaintiff file her hill set forth all the  abovementioned particular and that by the rule of law she can not plead the  say decree to their several action or retain asset in her hand sufficient to  satisfy they or any way protect herself from the execution on the several  judgement obtain against her and therefore she pray that what shall appear to  be due to any one of the defendant may be respective pay out of the asset of  the decease so far as they will extend in due course of administration regard  be have to the nature and superiority of their debt and that the plaintiff may  be protect and indemnified in pay a due obedience to the decree of this court  and that the defendant may be restrain from proceed at law case tempt Talbot  the bank and other judgement creditor insist that the decree be fraudulent and  obtain by collusion between the now plaintiff and the other party to those  suit to give a undue preference to the party concern therein and they insist  far that as their debt be due upon judgement they be to be pay before the  decree creditor sir Joseph Jekyll master of the roll direct the decree  creditor to be first pay as be prior in time so Joseph v mott Prec in Chanc  and after they be satisfy then the surplus of the asset if any shall be apply  to the payment of the several judgement accord to their priority and the other  creditor to be pay in a course of administration Lord chancellor the rule of  this court with regard to equitable asset be to put all the creditor on a  equal foot so where the asset be partly legal for the rule by which the court  be govern in the marshal of asset vide master v master p will Clifton v burt  ibidem Bligh v earl of Darnley p will Sagitary v hide vern Wilson v Fielding  vern Lutkins v leigh ante haslewood v pope p will Galton v Hancock atk Martin  v Martin Ves Arnold v chapman ibidem lacam v martins Ves Lanoy v duke of Athol  atk and partly equitable and though equity can take away for the difference  between legal and equitable asset vide Freemoult v dedie p will Deg v Deg p  will Cutterback v smith Prec in Ch canc Bickham v freeman ibidem alleny Heber  strange plunket v Penson atk prowse v Abington atk Hargrave v Tindal bro  Charles Rep cite silk v prince bro Charles Rep cite Newton v Bennett bro Chan  Rep Batson v Lindegreen bro Charles refi the legal preference on legal asset  yet if one creditor have be partly pay out of such legal asset when  satisfaction come to be make out of equitable asset the court will postpone he  till there be a equality in satisfaction to all the other creditor out of the  equitable asset proportionable to so much as the legal creditor have be  satisfy out of the legal asset this be a matter that have be so often  determine that it will be unnecessary to cite authority and it be find on this  that by natural justice and conscience all debt be equal and the debtor  himself be equal bind to satisfy they all indeed this court in the  distribution of legal asset follow the rule of law which allow of preference  to creditor who have make use of legal diligence in get in their debt this  court and the court of law in that particular instance have a concurrent  jurisdiction and bill be at this day bring against executor not mere for a  discovery of the asset but also for such discovery and a satisfaction of the  debt though the more ancient way may be to bring a bill for a case tempt  Talbot discovery only and the reason of such bill be that the creditor can  have better aid in this court than he can at law for he may have the oath of  the executor for the discovery of asset but as this court have only a  concurrent jurisdiction upon legal asset with court at law and as such  preference be allow by law there will be great confusion in the administration  of legal asset if this court do not in general follow the same rule here and  therefore it be upon that reason that court of equity have depart from that  rule which they have set to themselves and borrow from principle of natural  justice in the present case the asset be a l legal and the first question will  be whether any of those creditor who stand on a equal foot at the death of Mr  morris have gain a preference by what have happen since second what will be  the consequence of that with regard to the executrix and whether she will be  entitle to any and what relief in this court in this present case some be  simple contract creditor other be creditor by judgement other by decree and  the general question at the bar have be whether decree creditor be equal to  judgement creditor or not in the consider of this point some gentle case tempt  Talbot er p man have go into the antiquity of the jurisdiction of the several  court of equity and law but question of that kind unless they necessary tend  to give a determination to the matter in dispute be great to be avoid and that  the present case do not depend on the antiquity of this court or the extent of  its jurisdiction or whether it be a superior or a inferior jurisdiction appear  for that judgement at law against the testator in court commence by grant be  equal to judgement in court by prescription and that the judgement of court of  general jurisdiction as in Westminster hall and of court of record of the  narrow jurisdiction be all equal which be a demonstration that in  consideration of law it be not the antiquity of the court nor the extent of  its jurisdiction or its be a superior or inferior court that make any  difference with regard to the rank or order in which judgement creditor be to  stand and consequent it be case tempt Talbot plain immaterial to enter into  those matter but the law seem to be find in this that the judgement of all  court upon matter or person within their jurisdiction be conclusive so long as  they be in force and the party be bind to yield obedience to they and that  obligation to perform they follow the asset in the hand of the executor or  administrator and if these matter be apply to court of equity I see no reason  why a decree of equity ought not to be equal to a judgement at law for as  judgement at law may be execute by a capias ad to give satisfaction to take  the person so similar to that be attachment for not perform decree finch pale  yellow Chanc and although before the statute of queen whether a action of  escape will not lie against the gaoler for let the prisoner under such  attachment escape yet no argument can be draw from thence to show the  imbecility of decree for though the act of parliament give a new remedy yet it  affirm the jurisdiction of the court with regard to the power of take up  person for not perform decree judgement at law may be execute upon the good by  become facias decree in this court by sequestration in this respect the  process of this court be more effectual than by become facias at law for there  may be a sequestration against the good although the party be in custody upon  the attachment whereas at law if a capias ad to give satisfaction be execute  there can no become facias issue vide Martin v Therridge p will also hide v  petit Chanc Cas of the rise and progress of sequestration indeed judgement at  law bind land so that the party by elegit may have execution of a moiety by  virtue of the statute which ordinary decree do not yet there have be case  where even decree have be hold to bind land and where decree be to hold and  enjoy over and such be the case of Lord Carteret and Paschal Geo before Lord  king Lord chancellor where the interest under such decree be take to be  similar to a estate by elegit which show this court have consider decree and  judgement and their several execution as similar to each other and as a to  know facias may be bring at law to revive a judgement so it may to revive a  decree of this court and in that respect they agree and in this also that the  original case tempt Talbot demand be go both by a decree and a judgement for  transit in remember judge and therefore I can see no reason why they shall not  stand on the same foot yet I be at the same time well apprise that the uniform  judgement of court of law have be otherwise for it be clear that a decree of  this court if a action be bring against a executor on a bind be not pleadable  nor can Le give in evidence against it why I do not say but that it have  obtain be certain and the consequence be that real the decree of this court be  consider as nothing but the opinion of this court which with regard to its own  decree have be different from that of court of law vern Searles and lane lev  and if in consideration of this court decree be equal to judgement a way be  point out in vern for the party to defend himself against action at law if  this court have any jurisdiction decree here must have the same ken upon asset  as a judgement at law and the case of Joseph and mott prece in Chanc be in  point that a decree prior in time must be prefer to a subsequent judgement and  if it be otherwise the consequence will be that this court must give up its  jurisdiction Darstort and the earl of Orford Addis and winter Jones and  Bradshaw may in the case of Darston v the earl of Orford a and b be both  creditor by specialty of I S who die and leave a executor against who a bring  a bill in equity for a discovery of asset and to be pay his debt and pen such  suit the executor voluntary and without suit pay b s debt upon a account  decree on a s bill against the executor the latter crave a allowance of this  payment and it be decree by the Lord keeper wright that the executor shall not  have a allowance thereof see that before payment make a bill in equity be  bring by a of which the executor have notice and a bill in equity be  equivalent to a action at law pen which action a executor can make a voluntary  payment of any debt from this decree a appeal be afterward bring in the house  of lord where the decree be reverse and the reason on which the lord principal  ground their decree of reversal be for that as the debt be of equal degree and  since a decree of the court of chancery can be plead at law to a action bring  against a executor upon another of equal nature therefore such executor may  justify the payment of another debt of equal nature even pen a bill in equity  Prec in Chanc p will note where a executor have pay asset in pursuance of a  decree of this court and on plene to manage at law he be not permit to give  such payment in evidence but this court decree it shall be allow he which show  it have always support its jurisdiction though its decree will not be allow at  law upon this part of the case then I think that decree and judgement stand  upon a equal foot and that such as be first obtain against a executor ought to  be first pay out of the asset case tempt Talbot er p the next thing that arise  for the consideration of the court be as to the priority of the decree  creditor and the judgement creditor and as to this matter there be no doubt  but the decree be prior in point of time yet if the judgement be allow to have  relation to the first day of that term in which they be enter then they will  be case tempt Talbot before the decree but this court must certain attend to  the truth of the fact and though the general rule of the law be that judgement  relate to the first day of the term yet that be not quite so absolute and  conclusive to court of law themselves but it may be examine into side   light  vide Prec in Chanc anon Robinson v tongue p will then why may not a court of  equity have the same privilege of examine into the exact time when a judgement  be enter upon or give in order to prevent its jurisdiction from be defeat and  if it shall be otherwise the consequence will be that a decree which be good  when it be pronounce will by matter ex post facto be overturn and those asset  will be take away which be once bind by it another considerable objection have  be take relate to the nature of this demand which be that the decree have be  obtain per fraud accord to the legal language and as such matter may have be  reply in case the decree shall have be plead at law therefore the other  creditor ought in justice to be let into the same examination here and it be  certain if they be fraudulent nobody ought to have the benefit of they as to  what be say that these decree be res inter elsewhere acta and so ought not to  hurt the other creditor that have no weight with I for the same may be say of  all judgement at law and though these decree be obtain in a manner by  confession for I take they to be so as mrs morris put in her answer in a short  time and thereby confess the demand of the plaintiff and also as she appear  gratis at the hear of the cause thereby forward the plaintiff more than they  can otherwise be by the rule of the court yet court of law hold it to be no  objection if a judgement be plead that be obtain by confession though there be  favour show by the executor nor upon a replication of per fraud be it any  evidence of fraud if there be a real and just debt as to bill of conformity  indeed the case of Buccle and Atleo vern be a case where they have be allow  but they have since be discountenance and the reason be because this court be  satisfy that they have no right case tempt Talbot to take away the preference  that one creditor gain over another by his legal diligence beside that such  bill may be make use of by executor to keep people out of their money long  than they will otherwise be but in this case the executrix can be say to give  preference but want to have it determine who have gain a preference accord to  the rule of law and equity mrs morris come here for protection and if this  court do not protect her she will be liable to a double satisfaction first to  pay the asset to the decree creditor and afterward to the judgement creditor  and it be certain proper for the executrix to come for protection to this  court when she find herself trouble for yield obedience to the decree of it  but then it be say on the other hand that she have bring herself into this  distress and therefore ought not to be relieve yet with regard to the law it  must be own that what she have do be strict right for a executor may confess a  judgement to one creditor and plead it in bar to the demand of other vide wear  v Dawson p will and the original foundation of such liberty be give to a  executor may be to prevent the trouble of two demand when he have asset only  to satisfy one and then by parity of reason a executor may suffer decree to be  against he as it be by confession and as the court have never control a  executor in such liberty or in retain if he insist on it so what mrs morris  have do be neither contrary to the rule of law or equity and though it will  have be much clear have these decree be obtain in a more adversary manner yet  as they be for just debt they must be pay accord to their priority it have be  say at the bar that the judgement creditor have both law and equity and the  decree creditor equity only and therefore that the court ought not to take  away the benefit of the law from the judgement creditor but that have always  be where equity be of the same nature for where one equity have be of a  superior nature that superior equity have be prefer as in the case of tailor  and Wheeler salk where the question case tempt Talbot be whether a assignee of  a commission of bankruptcy or a mortgagee under a defective conveyance shall  be prefer and it be hold that the mortgage shall his equity be special a lie  upon the land so in the present case at the time of Mr morris death the equity  of all the creditor be equal but when the decree be obtain they bind the asset  case tempt Talbot er p in the hand of mrs morris and be prior to the judgement  ought to be first satisfy as the proceed at law now stand there be judgement  de good not common with others against the executrix unless this court enjoin  their proceed they will be pay out of her pocket therefore they must be enjoin  as by the master of the roll his decree but as they be tie up at law they must  have a direction to the master to take a account of the eff ects which be  first to be apply in discharge of the decree creditor and the residue to the  several judgement creditor accord to their priority and so on in a course of  administration upon the whole the decree of the master of the roll be confirm  this decree be afterward on the that of April upon a appeal to the house of  lord affirm and Edward bro PC bro Charles Rep Lord Hardwicke afterward in  smith v style atk recognize and admit this case to have full establish the  doctrine videlicet that a decree of the court of chancery be equal to a  judgement at law and consequent that which be first obtain will be first pay  in what other case decree of this court bind and gain a preference vide Martin  v Martin Ves Douglas v clay bro Charles Rep cite brook v Adam bro Charles Rep  with a alteration only by deduct for the daughter maintenance after their  attain the age of twentyone year and the additional direction on behalf of the  judgement creditor