Page:Harvard Law Review Volume 5.djvu/136

120 HARVARD LAW REVIEW. over others by obtaining a judgment at law against the executor; and, unless some means could be found of preventing that, no creditor would find it worth his while to file a bill in equity on behalf of himself and all the other creditors for the administra- tion of the estate, and every insolvent estate of a deceased debtor would be exhausted in a ruinous struggle among the creditors for priority, or at best every executor whose testator's estate was insolvent would be forced to give a preference to those creditors whom he most favored by either paying them in full (so long as he had assets for the purpose), or by confessing judgments in their favor. In short, it was in vain for equity to prevent any one creditor from gaining a priority over the others in equity, unless he could also be prevented from doing the same thing at law. Could a creditor be so prevented? Clearly, only in one way, namely, by an injunction. Could, then, any principle be found upon which an injunction could be granted against a creditor who was seeking to recover his debt by an action at law? An injunc- tion was granted in such a case for the first time in Morrice v. The Bank of England ; * but it was upon a ground so special and so narrow that the decision left the jurisdiction of equity over the estates of deceased persons about where it found it. An execu- trix was there sued at law by many creditors of her testator after certain other creditors (whose debts were due only in equity) had obtained decrees against her in equity, in suits prosecuted for their own exclusive benefit; and, on a bill filed by her, an injunc- tion was granted against the prosecution of the actions at law; but it was only upon the ground that the executrix was there placed between two fires. On the one hand no judgments which could be recovered against the executrix would protect her against the decrees, because the latter were made first, and equity could not possibly permit its decrees to be disobeyed because of what some other court had done since those decrees were made. 2 1 Cas. t. Talbot, 217, 3 Swanst. 573, 2 Bro. P. C. (Toml. ed.) 465. 2 Morrice v. Bank of England was decided successively in the plaintiff's favor by Sir Joseph Jekyll, M. R. (before whom it was argued for six days), by Lord Chancellor Talbot (before whom it was argued for seven days), and by the House of Lords (before which it was argued for six days) ; and it may, therefore, be thought presumptuous to criticise the decision. The writer has, however, found himself wholly unable to support it. The difficulty is, that the facts do not bring the case within the reasons given for the decision, — a difficulty which does not appear to have been at all adverted to, either by counsel or by courts. The decrees did not bind the executrix personally, and were not intended to do so. A personal decree against an executor must be based either upon