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distributions of assets; at times too, when the same end could not be attained at law, and in cases, where there could be no necessity for it; which would be adding greatly to the hardship of creditors, who are already too much at the mercy of executors. If at law an executor confesses a judgment for more than is due, though for ever so small a sum, it is [479] a devastavit; and he cannot protect himself, or cover the assets of his testator by a judgment so confessed. In the present case, the executrix had manifestly submitted to a decree for more than was due; for she ought to have craved an allowance for the maintenance of the respondents Ann and Judith Morice, after they attained twenty-one; and if she had insisted upon this allowance, which the court declared ought, in justice, to have been made, it must have been referred to a Master to take an account of what should be deducted for such maintenance; in which case, the respondents Ann and Judith could not have had a final decree, prior, in point of time, to the judgments obtained by these appellants; and therefore this priority was entirely owing to the executrix's fraudulently submitting to pay more than was due to them. If then this is to be compared to the case of preference at law, that rule of law ought strictly to prevail; and the decree being for more than was justly due, ought not to stand in the appellants way, but ought to be considered as taking place only, from the time it was rectified by the Lord Chancellor.

But further; it was apprehended, that the executrix had, in many other particulars, submitted to pay more than was due; for, in the case of so deficient an estate, she ought to have insisted upon an allowance for the maintenance of the respondents Ann, Judith, and Elizabeth Morice, from the death of Mr. Brown, under whose will they claimed the sums decreed to them, who died in 1720; and she ought not to have submitted to pay any interest for their legacies under his will, especially, not at the rate of £5 per cent. from his death, to the time of pronouncing the decree; there being no proof that her testator made interest of the money at that rate, and it being certain, that after his death she did not make such interest. Neither ought any interest to have been allowed subsequent to the decrees, and much less at the rate of £5 per cent., for by these means, the parties who had obtained decrees, were gainers by a common calamity; and during this long litigation, had got higher interest for their money, than they could have made any where else. The allowance of interest is discretionary in a Court of Equity, and it is scarce ever allowed in the case of a deficient estate; and if the executrix had disclosed her testator's affairs, and that she could not safely pay the money decreed, without bringing all the creditors before the court, it was apprehended, the court would not have decreed any subsequent interest; and especially, as the only argument by which the decree creditors claimed to be first paid, was by comparing decrees to judgments, and insisting that both ought to be put exactly upon the same footing; and yet judgments carry no interest from the times they are signed, though obtained for debts payable with interest. And while the other creditors lost above £100,000 by which many of them were almost undone; it seemed very inequitable, that a few should not only receive their whole demands, but likewise be allowed interest at the rate of £5 per cent. during a litigation of extraordinary length, and occasioned [480] by a scheme concerted with the executrix, to prefer them in a way hitherto unattempted.

On behalf of the third set of appellants it was argued (J. Floyer, H. Bankes), that the administration of assets by executors, is a known part of the common law; and that there was no instance where Courts of Equity have interposed to subvert that course and method of paying creditors which the common law has established. But it was conceived, that the present decree complained of did subvert the legal method and course of administration, and countenanced executors, by collusive proceedings in equity, to give a preference to some favourite creditors, and to subject others, seeking remedy in that short and easy method which the law prescribes, to great and expensive delays and difficulties, without any act or default of their own. That there was apprehended to be no precedent where a Court of Equity has interposed by decree, to injoin a fair and honest creditor from proceeding at law against an executor, to recover his just debt: the law which makes executors liable, having in all cases where the wisdom of the law has thought it just, provided for their defence; unless where by their own wilful default or negligence, they forfeit that defence and protection which the law affords them. That if the respondent Mrs. Morice was under any