case the bank OF England appellant Katherine morris widow and other respondent  that may Mews dig way see Cas t Talb Dollond v Johnson Sm g the decree of a  court of equity be equal to a judgement at law and where a executor in  obedience to a decree pay away asset to some creditor after which other  creditor obtain judgement against he to which the decree be not pleadable the  court will protect he in pay obedience to the decree forester wms note viner  vol p can Burgundy morris the respondent husband for many year before his  death carry on a very extensive trade as a merchant to the coast of Africa and  all the British plantation in America and also to holland Russian and the  eastindies and other place on the that of November the say Burgundy morris die  have make his will and appoint the respondent Katherine morris his widow sole  executrix thereof who soon after his death prove the same Mr morris at his  death leave effect of great value in Jamaica and other part of the west Indies  and place abroad to which he trade and many ship on the sea bind for Africa  and the west brown Indies with rich cargo and also a real and very  considerable personal estate particular pound bank stock but notwithstanding  this large estate he leave so many debt due to creditor in England beside such  as be due to his creditor abroad that all his estate and effect in England and  those which there be any hope of recover from abroad prove deficient to  satisfy his debt for Mr morris as afterward appear be at his death indebt in  pound upon speciality in England and in upward of pound on simple contract and  among his simple contract debt there be due from he on the that of December to  the respondent Ann Judith and Elizabeth his three daughter by his first wife  be trust money of they in his hand for principal and interest pound S d There  be also due to the respondent sir Thomas lee child for principal and interest  to the same time pound S d To the respondent Ann sand for principal and  interest pound S d And to the respondent John Claxton and his wife and son for  principal and interest pound S amount together to pound S d the principal of  all which sum be trust money of the say several respondent in his hand Mr  morris be likewise indebt to the respondent Ann Colemore on account of trust  stock and money of she with which he have be entrust in pound eastindia stock  pound S d SouthSea stock pound S SouthSea annuity stock pound S d pay he in  cash and in pound S d dividend receive by he and unaccounted for at his  decease the appellant the bank of England also claim a debt due to they by  simple contract of pound and upward Mr morris be further indebt by simple  contract to the appellant James Henckell in pound S to mary glover and Henry  Voght in pound to William snelgrave for principal and interest pound to James  pierce for principal and interest pound to Jeremiah pierce for principal and  interest pound S to John Dagg pound S to Joseph grove pound S d amount  together to pound S d to the appellant Theodosia Crowley and Joseph Gascoigne  nightingale by simple contract in pound S d to the appellant Benjamin weal  Laurence victorin and several other in several sum of money amount together to  pound S d to the other respondent in several considerable sum of money and  also to several other who be no party to any suit hitherto commence either in  law or equity Mr morris be thus indebt and his creditor upon his death find  how brown er p great his debt exceed his effect they all of they as it be  natural for they to do consider of the most effectual and expeditious mean to  secure themselves and accord bill in equity and action at law to a great  number be bring against the respondent Katherine morris the testator executrix  the first of those suit be a bill file on the that of December by the  respondent Ann Judith and Elizabeth morris the testator say three daughter by  his first wife sir Thomas lee brown and his child Thomas William and Ann lee  John Claxton Esq and Sarah his wife and brown Claxton Esq and Ann sand widow  against the respondent Katherine as executrix of her say late husband set  forth among other thing that John brown merchant by his will date the that of  October give to the say Burgundy morris pound in trust for his five daughter  of who the say Ann Judith and Elizabeth be the only survivor to be pay in  manner in the bill state and pound in trust for the Claxtons as therein  mention and pound in trust for the lees as therein mention and give to the say  Ann sand pound and after some other legacy make Mr morris residuary legatee  and sole executor of his say will the bill then state what have be pay off in  part and what remain due to the several party and that no part of the trust  money due to his daughter have be pay but that Mr morris have duly pay the  interest of the other remain trust money as it become due to the time of his  death and have in their say bill specify the particular sum which be due to  each of they respective from the testator at his death for principal and  interest and from thence to the time of fill their say bill amount in the  whole to the say sum of pound S d they pray a decree for payment of the same  to this bill the respondent Katherine put in her answer and state what appear  upon inspection of her husband account and paper and set forth a copy of such  of they as be require and further disclose the uncertainty of her testator  asset and the true account of his debt by specialty and simple contract then  come to her knowledge and say she can not admit asset to answer the plaintiff  demand but be Willing to administer her testator estate in a due course of  administration as far as his asset will extend and submit the whole to the  judgement of the court on the that of January this cause be hear before his  honour the master of the roll upon bill and answer only when it be among other  thing decree that the respondent Katherine shall out of the asset of her say  husband pay the say several sum demand by the plaintiff bill in a course of  administration and for that purpose that she shall account for the personal  estate of her late husband which have or shall come to her hand and that  subsequent interest shall be carry on for the several principal sum mention in  the decree from the time of fill the bill till the say account shall be take  and for the take whereof all proper direction be give this decree be afterward  enrol and the respondent Katherine serve with a writ of execution of it and  have then get in more effect of the testator than be sufficient to pay off the  specialty she do in obedience to and in part performance of the say decree pay  out of her husband asset pound to the say Ann and Judith morris who be then of  age in satisfaction of part of what be so decree to be due to they brown on  the that of December the respondent Ann Colemore wife of Thomas Colemore by  her next friend exhibit her bill against the respondent Katherine as executrix  of her late husband set forth among other thing that several quantity of  SouthSea stock SouthSea annuity and eastindia stock be transfer and several  sum of money pay to the say Burgundy morris in trust for her separate use and  upon such trust as therein mention exclusive of her say husband and that a  great part thereof remain due videlicet pound S d SouthSea stock pound S  SouthSea annuity pound eastindia stock pound S d due for dividend thereof  together with what other dividend be due thereon and pound S d be money pay to  the say Burgundy morris as in the say bill specify with interest and therefore  pray that the say several stock or so much thereof as remain in the name of  the say Burgundy morris in the book respective belong to the say company may  be transfer to trustee with the dividend thereof brown er p upon the several  trust in the bill specify and as to so much as the say Burgundy morris have  dispose of to his own proper use that the respondent Katherine may be decree  out of his asset to make good the same with the dividend thereof and may also  pay the say sum of pound S d to trustee to be appoint in manner in the bill  mention and may pay to the say Ann Colemore the say pound S d and all dividend  of the say stock and all interest on the say pound S d then or thereafter to  become due to her to this bill likewise the respondent Katherine put in her  answer agreeable to the truth of the case and submit the whole to the  direction of the court on the d of February this cause of Colemores be hear  before his honour the master of the roll on bill and answer when a account be  decree to be take of what be due to the say Ann Colemore for the dividend of  the stock and for the interest of the say pound S d which the respondent  Katherine be to pay her out of the asset of the say Burgundy morris in a due  course of administration and the respondent Katherine be in like manner out of  the say asset to purchase pound S d SouthSea stock and pound S SouthSea  annuity and lie out pound S d in the purchase of SouthSea annuity and transfer  the same to trustee to be approve of by the master for the benefit of the  plaintiff Ann Colemore upon the trust therein specify and the master be to  examine and certify whether the say pound eastindia stock remain in the say  Burgundy Morices name unaltered at his death and all further direction touch  the same be reserve till the master shall have make his report and the  respondent Katherine be likewise in that cause decree to account for the  personal estate of her say late husband come to her hand and several other  direction be give touch the same the master in pursuance of this last decree  make his report date the that of February and thereby certify that the brown  say pound eastindia stock remain in the say Burgundy Morices name unaltered at  his decease and that the half year dividend due thereon at Christmas then last  be pound be unreceived and that he have take a account of what be due to the  say Ann Colemore for the dividend of the several stock mention in the decree  at midsummer and since then become due and also for the interest of the say  pound S d which dividend and interest amount in the whole to pound S d on the  that of the same month this cause come on again to be hear upon the master  report when the court decree the respondent Katherine to transfer the say  pound eastindia stock to trustee for the say Ann Colemore to be approve of by  the master and that the respondent Katherine shall pay her the say pound S d  and also the say half year dividend out of the testator asset in a course of  administration the master by a subsequent report of the that of February  approve of the respondent Stephen ram and Isaac milner to be trustee for the  say Ann Colemore and the decree order and report in Colemores cause be duly  enrol the respondent Katherine in obedience thereto on the that of April  transfer the say pound eastindia stock to the say ram and milner and pay the  say Ann Colemore the dividend due at Michaelmas then last and also the say  pound S d on the that of December the appellant the governor and company of  the bank of England sue out a special latitat from the court of king bench  against the respondent Katherine returnable the that of January then next be  the first day of Hilary term for recovery of their demand out of Mr Morices  asset which be serve upon mrs morris on the that of the same December and on  the that of January follow William snelgrave James pierce and John Dagg three  other of the appellant and Jeremiah pierce since decease and represent by the  appellant James pierce and who be all simple contract creditor several sue out  capiass by original in the court of king bench each of they test the that of  November and returnable the first return of Hilary term then next against the  respondent Katherine for satisfaction of their debt all which writ be serve  upon her attorney on the that of the same January who agree to accept the same  as good service upon the respondent Katherine and undertake to appear  thereto On the that of the same month of January the appellant James Henckell  sue brown er p out a common capias in the court of common plea against the  respondent Katherine test the same that of November and returnable the first  return of the then next Hilary term for recovery of his debt which be serve  upon her on the same day and in Hilary term Joseph grove since decease and  represent by the appellant Elizabeth grove and the appellant glover and Voght  and the other appellant Crowley and nightingale sue out their writ against the  respondent Katherine returnable at some of the return in that term brown which  be never formal serve upon her but on be acquaint therewith she order her  attorney to file common bail in the same term the appellant veal victorin  Hayford John and bearcroft Berdoe greaves Hardwell Rutland Godfrey north John  fall the elder and John fall the young with several other creditor file their  bill in chancery against the respondent Katherine for satisfaction of their  demand out of her testator asset and to subject his real estate to the payment  of his debt accord to the direction of his will so that by the first term  after her husband death she have suit commence against her in law and equity  to the amount of pound mrs morris appear to all these action and also to  several other action which have be bring against her by other of the creditor  upon the return of the several writ and declaration have be deliver and rule  to plead give she be under very great difficulty how to plead to these action  so as to prevent any hazard of be charge out of her own estate the decree  obtain against her not be pleadable at law she be therefore advice as the most  safe way to plead to all the several action by way of special plene to manage  that there be such and such specialty and that she have not in her hand at the  time of the several action bring asset beyond pound and immediate to file her  bill in chancery state the whole circumstance of her case and pray the  direction indemnity and protection of that court this plea run to a very great  length be above sheet of paper and it be necessary to put in the same plea to  every one of the action it be impossible for the respondent Katherine to get  these plead ready prepare and ingross in order to be deliver within the time  limit by the common rule of the court which be but four day after the  declaration deliver and therefore on the that of January she move the court of  common plea in the action wherein the appellant Henckell be plaintiff for  enlarge the time to plead upon a affidavit state the number of action and that  her testator affair be on his death find involve in the great disorder and  confusion insomuch that she have not be able to settle or reduce the same to  any certainty either as to his debt or the nature and kind thereof or what the  amount of his effect will be and that there have already appear debt to great  more than pound which his asset then come to her hand will fall short of and  upon this motion the court give her a week time to plead and in the several  other action wherein the appellant snelgrave James pierce and John Dagg and  the say Jeremiah pierce be plaintiff the respondent Katherine have the like  time give her to plead as in Henckells action but she be to plead issuably and  accept notice of trial in that term and in two other of the action wherein the  governor and company of the bank of England and Thomas gross be plaintiff the  respondent likewise have time to plead on the brown same term but in these two  lastmentioned action she be by consent not to confess judgement in that or any  other court for any demand of the same or the like kind with the plaintiff in  those action on the that of February the respondent Katherine plead to all the  say several action bind and specialty owe by heir testator to the amount of  pound and that she have only pound asset to pay and upon this plea the  plaintiff in the say action except the bank take judgement out of asset when  they shall come to her hand and all the appellant who take such judgement sign  their interlocutory judgement as of Hilary term except Crowley and nightingale  who do not sign their judgement till Trinity term and white and Massey who do  not sign their judgement till Hillary term the appellant Henckell on the that  of February take judgement of asset when to fall upon which be then sign and  enter up and the that of the same brown er p month a writ of inquiry of damage  be execute upon which the jury find pound S damage and cost and on the that  judgement be give for the appellant Henckell for pound for damage and cost  which judgement be sign and enter the same day all the other appellant except  the bank take the like judgement out of the asset de going to be and mrs  morris at their request and after Henckells have execute his say writ of  inquiry videlicet on the that of February to save the estate the expense of  execute writ of inquiry and on a agreement that matter shall stand in all  respect the same as if a writ of inquiry have be execute and that the say  other appellant shall be in the same condition as Henckell confess damage to  the say other appellant but none of the appellant except Henckell sign their  judgement of asset when to fall upon till after the that of April except  glover and Voght and they do not sign they till the that of march the bank  refuse to take judgement of asset when to fall upon reply to mrs Morices plea  and go to trial and by that mean their judgement be last of all be of Hilary  term the cause in chancery wherein weal and other be plaintiff be hear oh the  that of July when Mr Morices real estate be declare to be well subject to his  debt by his will and it be refer to the master to take a account of the demand  of the plaintiff in that cause and a account be decree of the testator  personal asset and of the rend and profit of his real estate and in case of a  deficiency his real estate be direct to be sell for payment of his debt and  the respondent Katherine be order to administer the asset in a course of  administration and all usual direction be give for take the say account on the  that of February the respondent Katherine exhibit her bill in the court of  chancery against the several creditor by decree and judgement state the  several matter brown already mention and pray that all proceed at law against  her may be stay by injunction and for a discovery of the reality of the say  creditor demand and that a account of her testator asset may be take under the  direction of the court and that the same may be administer as far as they will  extend in a due course of administration regard be have to the nature and  superiority of the creditor demand and that she may be protect and indemnified  in pay a due obedience to the say decree and likewise pray that the bank may  admit her to transfer and dispose of the say pound bank stock of her testator  which stand in his name and which they have refuse to let her transfer and for  general relief and on the that of may the respondent Katherine file her bill  of revivor and supplemental bill in order to revive the say suit against the  representative of the party who have die after fill her original bill and by  way of supplement state the second decree upon the master report in Colemores  cause and the subsequent report in pursuance of that decree and the obedience  she have pay thereto as before state and also the subsequent proceed on the  say action at law which have be have since the fill her original bill to this  bill the several defendant put in their respective answer and all the  appellant by their answer think proper to insist that the say two decree be  fraudulent and obtain by collusion and therefore the appellant the judgement  creditor insist they ought not to be restrain from proceed at law for recovery  of their respective demand against the respondent Katherine and that she have  bring these difficulty upon herself and that there be no foundation for a  court of equity to interpose to the prejudice of those who have obtain  judgement at law and be equal fair and honest creditor with those to who as  they allege the respondent Katherine have contrive to give a undue preference  and they also insist that their judgement ought to be prefer to the say two  decree and be first satisfy out of the testator asset in regard a decree in a  court of equity be not equal to a judgement at law The appellant Benjamin weal  and his coappellants insist on a distribution of the testator asset equal  among all the creditor who be of equal degree at the testator death as far as  the same will go the bank by their answer further insist to retain the pound  bankstock that stand in the name of the say Burgundy morris at his death  towards satisfaction of their debt And the respondent the creditor under the  two first decree insist brown er p that they be fair obtain and deny all fraud  and collusion and that the several demand thereby establish be just and that  the say decree be prior to any other decree or judgement obtain against the  respondent Katherine except a judgement obtain by one Mr Maynard in the  justice of which all party acquiesce their demand under those decree ought to  be pay prior to any of the appellant demand brown the respondent Katherine  pursuant to several order make in her cause pay into the bank the sum due to  the several creditor who have obtain judgement against her amount to pound S d  whereupon the injunction which have be before grant be continue till the hear  of the cause but the plaintiff in those action be to be at liberty to proceed  on their judgement so far as to make the respondent Katherine personal liable  in point of law but not to take out execution without leave of the court of  chancery and accord all the judgement creditor get devastavits return against  the respondent Katherine she not be able to justify herself at law under the  say several decree witness have be examine and publication pass in the  respondent Katherine cause the same come on to be hear before his honour the  master of the roll on the saint of August who after a hear of six day decree  that the judgement creditor and the rest of the creditor of the say Burgundy  morris shall be enjoin from proceed at law against the respondent Katherine  for so much of his asset as be recover by the decree of the that of January  and the d and that of February and the defendant the bank of England be also  order to permit the respondent Katherine to transfer the pound bank stock  stand in the name of the say Burgundy morris which be to be consider as his  asset and several direction be give for carry this decree into execution but  all the present appellant appeal from this decree to the Lord chancellor  Talbot and the cause come on to be hear on such appeal his lordship on the  that of November after a most deliberate hear of seven day continuance order  and decree that it shall be refer to the master to take a account of what be  due to the several creditor of the say Burgundy morris by decree and judgement  on their say decree and judgement and also of what be due to the other  creditor of the say Burgundy morris who have not obtain decree or judgement  but in take the account of what be due to the respondent Ann and Judith morris  under the decree of the that of January the master be to inquire what be  reasonable to be allow to their father the say Burgundy morris for their  maintenance from the time they respective attain the age of till the time of  his death and to deduct the same out of what shall be find due to they and the  master be also to take a account of the personal estate of the say Burgundy  morris which have come to the hand of the respondent Katherine or any other  for her use and the same together with what shall be receive by her or any  other person for her use be decree to be apply in the first place to pay what  shall be find due to the several plaintiff under the say decree of the that of  January and then to pay what shall be find due to the plaintiff under the  decree of the d and that of February accord to those decree and his lordship  declare that the pound eastindia stock mention in the say decree of the d and  that of brown February and the dividend receive for the same since the death  of the say Burgundy morris ought not to be consider as any part of his asset  he be only a trustee thereof and it be further order that after payment of  what shall be find due on the say decree the residue of the say testator asset  shall be apply in payment of the several judgement and of what be due on the  decree in the cause wherein the say weal and other be plaintiff accord to  their respective priorities and if any thing shall remain then in payment of  the other creditor of the say Burgundy morris in a course of administration  and the defendant the bank of England be decree to permit the respondent  Katherine to transfer the pound bank stock stand in their book in her testator  name which be to be consider as his asset and the dividend thereof due and to  grow due be to be lie out in SouthSea annuity in the name of the  accomptantgeneral subject to further order and it be order that the money  which have be pay into the bank by the say respondent shall be lie out in  SouthSea annuity in the name of the accomptantgeneral brown er p subject to  further order and the several defendant who have obtain judgement at law or  who have not as yet obtain any judgement or decree be enjoin from proceed at  law against the respondent Katherine for recovery of the debt to they  respective due from the say Burgundy morris and all party be at liberty to  apply to the court for further direction and be to be pay their cost to be tax  by the master out of the testator personal estate from this decree four  several appeal be bring the first by the governor and company of the bank of  England who insist I strange I Pauncfort that their demand be before and at  the death of Burgundy morris legal demand and recoverable by the ordinary  proceed in the court of law that they accord pursue such legal method and  obtain a verdict and judgement against the respondent Katherine for pound S d  and not have by any act of they forfeit or abuse their legal remedy they ought  not to be restrain by a court of equity from take out execution on the say  judgement when it manifest appear that the decree of the that of January and d  of February be obtain by the assistance of and in collusion with the  respondent Katherine who immediate come into a court of equity in order to be  protect for so do that by this decree of the that of November the appellant be  not only restrain from go on at law but must also wait for satisfaction until  all the several account thereby direct be full settle which in the present  case there be very little prospect will ever be do nor be there any prospect  of there be any thing remain for the judgement creditor after the decree  creditor be satisfy their principal and interest and shall it once be  establish as a rule in a court of equity which it be apprehend be never till  now attempt that a voluntary decree submit to by a executor in favour of some  of the creditor of the testator shall be a sufficient ground to draw all the  other creditor into brown equity and prevent their go to law the plain and  natural consequence will be that such other creditor can never be sure of  obtain satisfaction for their demand in a legal way but will be in danger of  be involve in tedious and expensive suit as the appellant have be in the  present case and for this reason bill file by executor to have the asset bring  into and distribute by a court of equity have be discountenance though not do  with a design to favour any of the creditor or prefer they to the other that  the decree of the that of January and d of February be submit to by the  respondent Katherine with a apparent intent to apply all the asset in satisfy  the plaintiff in those suit to the entire exclusion of the rest of the  testator creditor but it be conceive that a court of equity ought not to give  any assistance or protection to the respondent Katherine contrary to that know  maxim that equality be equity much lead do she merit such assistance have by  her answer in those suit admit more money to be due than real be so and have  put in a false plea to the appellant action at law and also submit to the  decree of the d of February after she have consent not to acknowledge any  judgement in the court of king bench or any other court for a demand of the  like kind with the appellant as the demand of the decree creditor be be all  upon simple contract that decree in equity especial those obtain only upon the  admission of executor and without any manner of proof ought not to be esteem  equal to judgement obtain at law and much less when such decree be obtain for  great sum than be real due as in the present case and particular as to the  demand of the respondent Ann Judith and Elizabeth morris which by the decree  of the that of January be ascertain at pound S d which far exceed the money  real due to they and still less be the plaintiff in that decree entitle to  interest at pound per cent for the principal sum admit by the respondent  Katherine to be due to they as it must swallow up all the testator asset that  suppose but not admit there be any foundation for a executrix who find  judgement and decree against her testator in his lifetime to come into a court  of equity for direction in the application of his asset yet a executrix not  leave under that difficulty but who have voluntary bring it upon herself be  not equal the object of relief in a court of equity that the judgement obtain  by the appellant ought to have be decree to have be pay not only before any of  the demand of the respondent under the say voluntary decree but even before  such of the respondent as have obtain judge brown er p mean against the  respondent Katherine because the appellant judgement upon the falsification of  her plea attach upon all the asset receive by her before the that of February  whereas the judgement of asset in going to be take against her by the other  respondent can only affect the asset which she receive after that time that  the pound brown Bankstock for which Burgundy morris have credit in the  appellant book at the time of his death and the dividend due thereon be the  only security which the appellant have for their demand amount to pound S d  and therefore it seem contrary to equity to take from they that security till  their demand be satisfy as to the objection that the respondent Katherine can  not at law plead the two decree obtain against her and that therefore it be  high reasonable she shall be protect in a court of equity in pay obedience to  such decree which she can not if she be oblige at law to ratify the demand of  the appellant and the other judgement creditor it be answer that those two  decree be obtain with her privity and consent that she put in her answer to  both the bill without be serve with any subpoena to appear and that she  consent to the hear of both those cause without be serve with a subpoena to  hear judgement and if she afterward meet with any difficulty in the disposal  of her husband asset they be bring upon her by her own voluntary act only and  the creditor at law ought not to suffer on her account and as to another  objection that executor at law have a right to prefer one creditor before  another by give judgement to one creditor and plead that judgement at law  against another creditor and that there be the same reason that a executor may  submit to a decree in equity and thereby prefer a creditor as that a executor  may give the like preference by confess a judgement it may be answer that  although confess judgement have be allow at law yet it never be countenance in  a court of equity and the reason why a executor have that liberty at law be in  order to defend himself against other action which may be bring against he  where the asset be not sufficient to pay all the creditor and therefore if a  executor be sue by two creditor on simple contract each for pound and have  only pound asset it be absolute necessary for he to confess judgement to one  in order to plead that judgement against the other because at law he can plead  a action bring against he for a debt on simple contract to another action for  a debt of a equal nature and for this reason only it be that the law allow of  a executor confess a judgement but in the present case the respondent  Katherine submit to the two decree with a view only to prefer they and not by  way of defence to the action bring against her at law because it be well know  that those decree can not be plead at law and upon that head of equity her  present bill be frame beside if a executor be entitle to prefer a creditor by  submit to a decree in his favour the same rule ought to be observe as to  decree obtain upon the executor admission of more money than be real due as be  observe at law upon confess a judgement for a false debt at law if judgement  be confess and afterward plead to a action bring at the suit of another  creditor and upon a replication per fraud that the judgement be confess for  more brown money though ever so small than be real due the executor for his  false plea must satisfy the whole of such creditor demand whether he have  asset or not and in this case the plea of the executrix have be abundant  falsify by the verdict obtain by the appellant that the appellant have always  be Willing to waive any advantage they may have by their verdict in order to a  equal distribution of the asset between all the simple contract creditor  whether by judgement decree or otherwise and be still Willing to come into any  measure for share the common calamity but they conceive it to be very hard  that the relation of Mr morris shall by the assistance of the executrix divide  the whole asset and receive their full principal with interest at pound per  cent which will still be run on during the whole progress of the account  direct by the decree it be evident for the advantage of the decree creditor to  obstruct and delay as much as possible the take of such account they be in the  mean time to receive so high a interest as pound per cent for their whole  demand the three other appeal be bring by different set of judgement creditor  and in support of the second appeal it be contend I Verney W Murray that brown  er p all the asset of the testator be legal asset in the distribution of which  the law have never consider decree as equal to judgement that the appellant  have obtain a priority at law and want no assistance from a court of equity it  seem contrary to the fundamental principle of such a court to take the benefit  of the law from those who have in no respect act against conscience who have  at least as much equity to be pay as the other creditor can pretend to and  have beside the law on their side and there be no precedent to be find where  such creditor have be enjoin from proceed on their judgement in favour of  other who have obtain decree though the case must very frequent have happen  that such a precedent if establish will put a end to the jurisdiction of the  commonlaw over legal asset which be a very large branch of property and draw  the whole distribution of they into court of equity which will be so far from  promote justice and convenience that it will expose the creditor of every  testator or intestate to great vexation in recover their debt and give every  executor or administrator new mean of partiality and fraud for the whole  account of asset must be take inequity no person can be aid till that be do  and the demand of all the creditor adjust the whole cost of the litigation  must come out of the estate by which the asset will be considerable lessen and  where there be many creditor the executor in conjunction with any one of they  may avoid pay the rest or come to any distribution for several year which it  will always be his interest to do that bill bring by executor or administrator  to bring in all the creditor to accept of a equal distribution even before  they have commence any suit have always be reject and yet in the present case  the bill be bring to protect the executrix in a preference she have give brown  to some of the creditor and to support a unequal distribution of the asset  which be productive of much great hardship and liable to much great fraud than  bill to establish a equality if a creditor by judgement obtain part of his  satisfaction out of legal asset court of equity will not permit he to have any  part of the equitable asset without put all the creditor upon a equal foot but  in this case the creditor at law be restrain from take any part of the legal  asset till the creditor who sue in equity be pay the whole which be invert the  rule of equality and take away the benefit of the law from the appellant in  order to give all the asset to the respondent that as there be no precedent of  the like kind this be a very unfavourable case to make the first precedent in  for the executrix in this case lie under no difficulty but what she have  voluntary bring herself into it be apparent that all the proceed in equity be  by consent and in concert between her and the respondent who sue her there and  that a scheme be contrive between they to give this preference and to  disappoint the appellant and the other creditor of their just debt and that  without her consent it will have be impossible to have obtain decree against  her which can have put her under any difficulty that while she be carry on  this partial and collusive scheme to exhaust all the asset in favour of a few  she delay the appellant in their proceed and obtain time to plead which will  not have be grant if this partial contrivance have be know and if ever equity  interpose in case of this nature it ought to be where a executrix act fair and  impartial and desire to do equal justice to all and not in a case contrive on  purpose to prefer some favourite creditor and strip the rest of their whole  demand but it be object that a executor may at law prefer which creditor he  please by confess a judgement to one and plead into the demand of the other  and therefore why may not the same preference be give in equity?This be allow  at law mere for the safety of the executor that he may defend himself from be  make liable to more judgement than he have asset to answer but there be no  instance where this legal privilege have be encourage or aid in equity at law  there be some necessity for it because the executrix can plead judgement only  and not any suit which be commence in which judgement be not obtain which may  be insist upon in equity but mrs morris purposely avoid it in this case though  she put in her answer after the appellant action be commence and by permit the  legal privilege of make a preference to be make use of in court of equity more  frequent opportunity will be give to make unfair and unequal brown er p  distribution of asset at time too when the same end can not be attain at law  and in case where there can be no necessity for it which will be add great to  the hardship of creditor who be already too much at the mercy of executor if  at law a executor confess a judgement for more than be due though for ever so  small a sum it be brown a devastavit and he can protect himself or cover the  asset of his testator by a judgement so confess in the present case the  executrix have manifest submit to a decree for more than be due for she ought  to have crave a allowance for the maintenance of the respondent Ann and Judith  morris after they attain twentyone and if she have insist upon this allowance  which the court declare ought in justice to have be make it must have be refer  to a master to take a account of what shall be deduct for such maintenance in  which case the respondent Ann and Judith can not have have a final decree  prior in point of time to the judgement obtain by these appellant and  therefore this priority be entire owe to the executrixs fraudulent submit to  pay more than be due to they if then this be to be compare to the case of  preference at law that rule of law ought strict to prevail and the decree be  for more than be just due ought not to stand in the appellant way but ought to  be consider as take place only from the time it be rectify by the Lord  chancellor but further it be apprehend that the executrix have in many other  particular submit to pay more than be due for in the case of so deficient a  estate she ought to have insist upon a allowance for the maintenance of the  respondent Ann Judith and Elizabeth morris from the death of Mr brown under  who will they claim the sum decree to they who die in and she ought not to  have submit to pay any interest for their legacy under his will especial not  at the rate of pound per cent from his death to the time of pronounce the  decree there be no proof that her testator make interest of the money at that  rate and it be certain that after his death she do not make such interest  neither ought any interest to have be allow subsequent to the decree and much  less at the rate of pound per cent for by these mean the party who have obtain  decree be gainer by a common calamity and during this long litigation have get  high interest for their money than they can have make any where else the  allowance of interest be discretionary in a court of equity and it be scarce  ever allow in the case of a deficient estate and if the executrix have  disclose her testator affair and that she can not safe pay the money decree  without bring all the creditor before the court it be apprehend the court will  not have decree any subsequent interest and especial as the only argument by  which the decree creditor claim to be first pay be by compare decree to  judgement and insist that both ought to be put exact upon the same foot and  yet judgement carry no interest from the time they be sign though obtain for  debt Payable with interest and while the other creditor lose above pound by  which many of they be almost undo it seem very inequitable that a few shall  not only receive their whole demand but likewise be allow interest at the rate  of pound per cent during a litigation of extraordinary length and occasion  brown by a scheme concert with the executrix to prefer they in a way hitherto  unattempted on behalf of the three set of appellant it be argue I Floyer h  bank that the administration of asset by executor be a know part of the  commonlaw and that there be no instance where court of equity have interpose  to subvert that course and method of pay creditor which the commonlaw have  establish but it be conceive that the present decree complain of do subvert  the legal method and course of administration and countenance executor by  collusive proceed in equity to give a preference to some favourite creditor  and to subject other seek remedy in that short and easy method which the law  prescribe to great and expensive delay and difficulty without any act or  default of their own that there be apprehend to be no precedent where a court  of equity have interpose by decree to enjoin a fair and honest creditor from  proceed at law against a executor to recover his just debt the law which make  executor liable have in all case where the wisdom of the law have think it  just provide for their defence unless where by their own wilful default or  negligence they forfeit that defence and protection which the law afford they  that if the respondent mrs morris be under any brown er p difficulty in her  administration of the testator asset it do not arise so much from any defect  in the law as from her own hasty and precipitate proceed in the cause in the  court of chancery which plain appear to have be calculate to give a undue  preference to some of her husband relation and friend that inconvenience or  difficulty attend executor in the administration of asset be no reason for the  interposition of court of equity which though of high yet be of limit  authority and there be many instance where it have be think proper for the  legislature to interpose and several other yet remain which a court of equity  never do relieve against that the decree of the that of January to which a  preference be give by the decree complain of appear even by that decree to be  wrong and be conceive to be so in particular of great consequence than what be  take notice of by the present decree and therefore it ought not to have have  any aid from the court or to have be carry into execution by a new decree till  it have be set right by rehear or appeal accord to the know practice of the  court and as the present decree have reduce or vary the right of the party  which have be precise settle by the former decree it be apprehend that two  inconsistent decree be now subsist touch those demand that in the case of  equitable asset court of equity always decree a equal distribution among the  creditor without regard to priority and it be conceive that to decree a  priority upon legal asset and in favour of those who have original no lie in  law upon those asset as in the present case be not only to innovate upon the  law but contrary to the know and allow maxim in court of equity that equality  be equity brown and in support of the four appeal it be say c clarke W monk  that at the testator death all the creditor stand in the same degree as to  their several demand upon his estate not one of they have at that time any  priority of claim upon the asset which he leave and as it be agree on all hand  that his debt be near pound more than his effect will answer it seem high  reasonable that the loss shall fall equal on all the creditor in proportion to  their debt and not that a few shall receive their whole demand and the rest  lose the whole which accord to the present decree will be the case that the  ancient practice of court of equity be agreeable to what be now desire and  bill of conformity as they be call be allow of to compel creditor in case of  this kind to conform all to one rule and receive a rateable or proportionable  satisfaction for their several debt where the asset will not extend to make  full satisfaction that in the present unfortunate case some of the appellant  on the d of January and before any decree or judgement be obtain by any of the  party file a bill in the court of chancery on behalf of themselves and the  rest of the creditor of morris pray that they may all be pay in proportion out  of the asset and that no one creditor or set of creditor may be prefer before  the rest but a demurrer be allow to that bill as improper the practice of  court of equity not have of late year encourage such bill the reason for this  alteration in practice be give by Lord Talbot in his argument on this case  vide forester Rep p that mrs morris the executrix by her bill in this cause  seek to protect herself by the decree of a court of equity in what she have do  contrary to all rule of equity but this bill ought not to have be retain upon  any other foundation than in order to oblige her to conform to those rule for  a executrix who see and know that the fund for the payment of the testator  debt will be very deficient and therefore give a preference to some creditor  to receive their whole demand by which mean other must lose all their debt  seem to have no right to ask the aid of a court of equity to protect her in  such manifest partiality it be therefore pray by all the appellant that the  decree of the that of November may be reverse and that all the testator  creditor may be pay in proportion to all this reason it be answer d rider I  brown n fazakerley on behalf of the respondent Katherine morris that a decree  of a court of equity have always be consider as equal to a judgement and if  prior in point of time be preferable in the course of payment and as the  executrix be bind to obey the decree though at the same time she can not plead  it at law in justification of her obedience brown er p it be but justice that  the court of equity shall protect her and support the authority of its own  decree that the demand establish by the decree be original of equal degree and  of equal justice with any of the appellant demand but the decree brown  creditor have by their diligence and priority of suit raise the nature of  their demand to a superior degree the executrix be bind by the course of  administration to give they a preference and if a trust creditor who remedy  lie only in equity shall not have the same advantage of his diligence of suit  and the priority of his decree as a legal creditor will have from a prior  judgement or if the executor shall not be equal protect in the payment of a  prior decree as of a prior judgement either the equity creditor or the  executor or both must be inevitable ruin in all case of a deficiency of asset  but it be object that the decree which give the priority be obtain by  collusion and undue preference and that therefore the executrix have no right  in equity to be protect under those decree and the instance of collusion and  undue preference insist on by the appellant be that the demand in those bill  be fictitious that the executrix answer the bill without the compulsion of  process that the cause be hear upon bill and answer and that the hear be  expeditious bring on by consent in answer to this objection and the particular  on which it be find the executrix insist saint that the reality and justice of  the demand be establish beyond all doubt and contradiction nor do the  appellant examine a single witness to disprove or draw any suspicion on they  dly that it be far from be any misbehaviour in a executor to answer the demand  of a honest suitor either at law or in equity without the compulsion of  process and that the interval of time between fill the bill and the answer be  no less than about five week show that there be room enough to have serve the  process of the court in all its form dly as to the hear of the cause upon bill  and answer it be impossible for the executrix to avoid it for the plaintiff  have particular charge in their bill all the circumstance of their demand and  all the fact which be necessary to entitle they to a decree and have  interrogate the executrix in the strict manner to her knowledge information  and belief thereof she can not without the gild of perjury avoid disclose the  whole truth of her knowledge information and belief and if from the fact she  be so bind to disclose the court think there be sufficient ground for a decree  there be no foundation for call it a collusive one beside the respondent have  so strict a regard to truth that the appellant have not be able to falsify her  answer in the most minute circumstance and as the law even allow a executor  voluntary to confess a judgement without the least imputation of fraud where  the debt be real and just so this case be much more favourable where the  answer to the demand be solemnly put in upon oath and the justice of it  support by incontestable proof thly that the circumstance of hear the cause by  consent have no manner of influence upon the merit nor be the executrix oblige  by the rule of law or equity to stand out the whole length of the process  against suitor especial the first of all the suitor or to brown delay they to  the last moment in order only that the appellant themselves may gain that very  preference which they complain of in the respondent and the rather as the  executrix have in every instance consistent with her safety avoid delay and  litigation for her plead at law though fourteen in number and each plea  contain sheet be put in within a three part of the time that be take to put in  her two answer and the damage be confess to save the trouble and expense of  writ of inquiry nor be there a single instance of a affect delay on her part  throughout the whole proceed as to the other ground of objection that equality  be the favourite rule of a court of equity and that the executrix ought never  to be protect in incline more to one set of creditor than another it be answer  that this be a objection rather to the law than the justice of the decree for  it be not in the power either of a court of law or equity to make a equality  among creditor who have claim upon legal asset which be a fund for the payment  of demand in such order and degree as the law have prescribe and a preference  must of necessity be make among creditor where the asset be not sufficient to  pay all of they their full demand brown er p that if the executrix have not in  this case transgress the rule of law and equity concern the administration of  asset it be hope she shall not be punish out of her own estate she be under a  absolute necessity of give a preference to some of the creditor in exclusion  of other and the hardship now complain of must from the nature and necessity  of the thing either fall upon the present appellant or on other creditor under  circumstance at least equal favourable and as to the pound bank stock stand in  the testator name at the time of his death it be apprehend there be no manner  of foundation for the bank to retain the same towards satisfaction of their  demand for the respondent the Morices and the lees who be creditor under the  decree of the that of January it be contend W Hamilton t clarke that they have  exhibit their bill against the executrix for the recovery of their respective  demand before any action or suit have be commence by the appellant and that  they have obtain a decree before any of the appellant have obtain any decree  or judgement and therefore though the demand of the appellant and respondent  be original of a equal nature yet the respondent by such their legal diligence  have acquire a priority and ought to be first satisfy for wherever the effect  of a testator be as in the present case they confess be not only asset in a  court of equity but liable even at law to the payment of debt in direct the  administration of such asset those creditor have always be order to be first  satisfy who obtain the first decree or judgement it be however object I that  the decree of the that of January though antecedent to any other judgement or  decree be obtain by the collusion of the executrix in appear voluntary not  only to answer the bill but afterward to hear brown judgement in that cause  two that this decree be obtain collusively because it be find only upon the  admission of the executrix without any other proof of the reality and justice  of the respondent demand as to the first of these objection it be observable  that the bill be file on the that of December and the answer be not put in  till the d of January follow and the executrix appear voluntary to hear  judgement be what she may just do for a executor have a right both at law and  in equity to give expedition to the suit of one creditor and delay to that of  another and as to the other objection it be answer that the admission of a  executrix in a court of equity be a strong proof of the reality and justice of  a plaintiff demand and a better foundation for a decree than her confession at  law can be for a judgement the one be verify by oath and the other want that  attestation and yet such a judgement obtain at law will indisputable have be a  good one unless it can have be prove fraudulent and collusive for some other  reason than mere because it be find upon the confession of the executrix but  this decree be not find upon the bare admission of the executrix she have  particular state in her answer the evidence on which she ground such admission  by which the justice of the respondent demand appear and submit the whole to  the judgement of the court upon that evidence and though these demand be  original decree in that manner yet the appellant by call the justice of they  in question in the present cause have lie the respondent under the necessity  of prove it beyond contradiction and their demand have accord be pronounce to  be just by no less than three decree by the original decree of the that of  January by the decree in the present cause which be make by his honour the  master of the roll after a hear of six day and at last upon a appeal from that  decree by the decree which be pronounce by the Lord chancellor after a hear of  seven day continuance it be therefore hope that this last decree will be  affirm and the several appeal dismiss with cost and on behalf of the  respondent W Hamilton t clarke Colemore etcetera who claim under the decree of  the d of February it be say that their bill in equity against the executrix be  file before any action be bring against her at law and that the decree be  obtain before any other of the creditor have get judgement at law and  therefore the demand under that decree ought to be satisfy before any  subsequent judgement it be a universal rule in the administration of legal  asset that the creditor who obtain the first decree or first judgement ought  to be first pay brown er p after hear counsel on these appeal for six  successive day it be order and adjudge that the decree complain of shall be  affirm with this variation videlicet that in take the account of what be  respective due to the respondent who be plaintiff in the cause wherein the  decree of the court of chancery of the that day of January be brown make  subsequent interest at the rate of per cent from the time of fill the bill  shall not be allow but that the master of the say court of chancery to who the  account in this cause stand refer do inquire and certify what interest or  dividend the asset of the say Burgundy morris or any part thereof have produce  since the fill of the say bill in that cause and that after the say master  shall have make his report the say court do give proper direction for allow  and pay to the say respondent the plaintiff in that cause such proportion of  the interest and dividend as the principal demand of those respondent remain  unsatisfy bear to the whole fund of the asset remain in the hand or possession  of the say Katherine morris or in the say court of chancery and it be further  order that this direction shall not delay the payment of the say principal  demand together with the interest due for the same before the fill of the bill  in the say cause but the say respondent be at liberty to apply to the court of  chancery for the payment thereof respective as that court shall think just  jour vol p