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all the assets of the testator were legal assets, in the distribution of which, the law has never considered decrees as equal to judgments. That the appellants having obtained a priority at law, and wanting no assistance from a Court of Equity, it seemed contrary to the fundamental principles of such a court, to take the benefit of the law from those, who had in no respect acted against conscience; who had at least as much equity to be paid, as the other creditors could pretend to, and had, besides, the law on their side and there was no precedent to be found, where such creditors have been injoined from proceeding on their judgments, in favour of others who had obtained decrees, though the case must very frequently have happened. That such a precedent, if established, would put an end to the jurisdiction of the common law over legal assets, which was a very large branch of property, and draw the whole distribution of them into Courts of Equity, which would be so far from promoting justice and convenience, that it would expose the creditors of every testator or intestate, to great vexation in recovering their debts, and give every executor or administrator new means of partiality and fraud. For the whole account of assets must be taken in equity;—no person can be paid till that is done, and the demands of all the creditors adjusted; the whole costs of the litigation must come out of the estate, by which the assets will be considerably lessened; and where there are many creditors, the executor, in conjunction with any one of them, may avoid paying the rest, or coming to any distribution for several years, which it will always be his interest to do. That bills brought by executors or administrators, to bring in all the creditors to accept of an equal distribution, even before they have commenced any suit, have always been rejected; and yet, in the present case, the bill was brought to protect the executrix, in a preference she had given [478] to some of the creditors, and to support an unequal distribution of the assets; which was productive of much greater hardship, and liable to much greater frauds, than bills to establish an equality. If a creditor by judgment obtains part of his satisfaction out of legal assets, Courts of Equity will not permit him to have any part of the equitable assets, without putting all the creditors upon an equal foot; but in this case, the creditor at law is restrained from taking any part of the legal assets, till the creditor, who sues in equity, is paid the whole; which is inverting the rule of equality, and taking away the benefit of the law from the appellants, in order to give all the assets to the respondents. That as there was no precedent of the like kind, this was a very unfavourable case to make the first precedent in; for the executrix, in this case, lay under no difficulties, but what she had voluntarily brought herself into; it being apparent, that all the proceedings in equity were by consent, and in concert between her and the respondents, who sued her there; and that a scheme was contrived between them to give this preference, and to disappoint the appellants and the other creditors of their just debts; and that without her consent, it would have been impossible to have obtained decrees against her, which could have put her under any difficulty. That while she was carrying on this partial and collusive scheme, to exhaust all the assets in favour of a few, she delayed the appellants in their proceedings, and obtained time to plead, which would not have been granted, if this partial contrivance had been known; and if ever equity interposed in cases of this nature, it ought to be, where an executrix acts fairly and impartially, and desires to do equal justice to all; and not in a case contrived on purpose to prefer some favourite creditors, and strip the rest of their whole demands.

But it is objected, that an executor may, at law, prefer which creditor he pleases, by confessing a judgment to one, and pleading it to the demand of the other; and therefore, why may not the same preference be given in equity?—This is allowed at law, merely for the safety of the executor, that he may defend himself from being made liable to more judgments than he has assets to answer; but there is no instance where this legal privilege has been encouraged or aided in equity. At law there is some necessity for it, because the executrix can plead judgments only, and not any suits which are commenced in which judgments are not obtained, which may be insisted upon in equity; but Mrs. Morice purposely avoided it in this case, though she put in her answers after the appellants actions were commenced and by permitting the legal privilege of making a preference, to be made use of in Courts of Equity, more frequent opportunities would be given to make unfair and unequal