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That if the executrix had not in this case transgressed the rules of law and equity concerning the administration of assets, it was hoped, she should not be punished out of her own estate, she being under an absolute necessity of giving a preference to some of the creditors, in exclusion of others; and the hardships now complained of. must, from the nature and necessity of the thing, either fall upon the present appellants, or on other creditors under circumstances at least equally favourable. And as to the £3000 bank stock, standing in the testator's name at the time of his death, it was apprehended, there was no manner of foundation for the Bank to retain the same towards satisfaction of their demands.

For the respondents the Morices and the Lees, who were creditors under the decree of the 25th of January 1781, it was contended (W. Hamilton, T. Clarke), that they had exhibited their bill against the executrix for the recovery of their respective demands, before any action or suit had been commenced by the appellants; and that they had obtained a decree, before any of the appellants had obtained any decree or judgment; and therefore, though the demands of the appellants and respondents were originally of an equal nature yet the respondents, by such their legal diligence, had acquired a priority, and ought to be first satisfied; for wherever the effects of a testator are (as in the present case they confessedly were) not only assets in a Court of Equity, but liable even at law to the payment of debts, in directing the administration of such assets, those creditors have always been ordered to be first satisfied, who obtained the first decree or judgment.

It is however objected, I. That the decree of the 25th of January 1731, though antecedent to any other judgment or decree, was obtained by the collusion of the executrix, in appearing voluntarily not only to answer the hill, but afterwards to hear [484] judgment in that cause. II. That this decree was obtained collusively, because it was founded only upon the admission of the executrix, without any other proof of the reality and justice of the respondents demands.

As to the first of these objections, it is observable, that the bill was filed on the 15th of December 1731, and the answer was not put in till the 22d of January following; and the executrix appearing voluntarily to hear judgment, was what she might justly do; for an executor has 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 was answered, that the admission of an executrix in a Court of Equity, is a stronger proof of the reality and justice of a plaintiff's demand, and a better foundation for a decree, than her confession at law can be for a judgment; the one being verified by oath, and the other wanting that attestation: and yet such a judgment obtained at law would indisputably have been a good one, unless it could have been proved fraudulent and collusive for some other reason, than merely because it was founded upon the confession of the executrix. But this decree was not founded upon the hare admission of the executrix, she having particularly stated in her answer, the evidence on which she grounded such admission, by which the justice of the respondents demands appeared, and submitted the whole to the judgment of the court upon that evidence. And though these demands were originally decreed in that manner, yet the appellants, by calling the justice of them in question in the present cause, had laid the respondents under the necessity of proving it beyond contradiction; and their demands had accordingly been pronounced to be just, by no less than three decrees; by the original decree of the 25th of January 1731; by the decree in the present cause, which was made by his Honour the Master of the Rolls, after a hearing of six days; and at last, upon an appeal from that decree, by the decree which was pronounced by the Lord Chancellor, after a hearing of seven days continuance. It was therefore hoped, that this last decree would be affirmed, and the several appeals dismissed with costs.

And on behalf of the respondents (W. Hamilton, T. Clarke), Colemore, etc. who claimed under the decree of the 2d of February 1731, it was said, that their bill in equity against the executrix, was filed before any action was brought against her at law, and that the decree was obtained before any other of the creditors had got judgment at law; and therefore the demand under that decree ought to be satisfied before any subsequent judgments, it being a universal rule in the administration of legal assets, that the creditor, who obtains the first decree, or first judgment, ought to be first paid.