Page:Harvard Law Review Volume 5.djvu/137

121 EQUITY JURISDICTION. 121 On the other hand, the decrees would be no protection to the executrix at law, because, in the judgment of a court of law, a decree in equity is nothing. In short, equity must insist upon obedience to its decrees ; and, therefore, as the executrix could not render such obedience without incurring liability at law, equity must protect her against such liability. The decision, however, did not warrant an injunction until a creditor had obtained a per- sonal decree against the executor in equity, and, therefore, not until a creditor had accomplished in equity the very purpose which it was the object of an injunction to prevent a creditor's accomplishing at law; and that is the reason why the decision exerted so little influence over the administration of assets in equity. It was not, however, the fault of the court that the decision in Morrice v. The Bank of England was placed upon so narrow a ground; for it has never been claimed that a suit in equity by a creditor, prosecuted for the plaintiff's exclusive benefit, could furnish any broader ground for an injunction. It is otherwise, however, of a suit in equity which is so framed that it will result in an admission of assets by him, or upon an accounting which shows the amount of assets in his hands; but in Morrice v. Bank of England the executrix had neither admitted assets nor accounted. In her answer she had expressly declined to admit assets ; and, though an account of the personal estate was directed by the decree, it had not yet been taken. If, therefore, the decrees had been so framed as to bind the executrix personally, they would not have been final (and, therefore, would not have bound her personally) until the account was taken, as it would not be known till then for what amount the executrix would be bound. The decrees were not, however, so framed. On the con- trary, they simply directed the executrix to pay the plaintiff's claims out of the assets in her hands, and in a due course of administration. Although, therefore, the decrees were final, they did not bind the executrix personally. In truth, they had no other effect than to establish the plaintiffs claims and fix their amount. The plaintiffs seem to have sup- posed that any final decree would give them a priority, thus confounding judgments and decrees against executors with judgments and decrees against living debtors. The latter, of course, always bind the defendant personally ; and, therefore, all that is neces- sary to give them full and complete effect is that they be final. Smith v. Haskins Stiles Eyles, 2 Atk. 385. But, as to judgments and decrees against executors, the question is not whether they are final (though they must indeed be final), but whether they require the executor to pay absolutely or only out of assets. The case of Abbis v. Winter, 3 Swanst. 578, note, seems to show that the reason why a judgment or decree against an executor gives priority to the creditor who obtains it was not very well understood at the time when Morrice v. Bank of England was decided. In Smith v. Birch, 3 Beav. 10, the decree was neither binding on the executor personally, nor final. See also Ashley v. Pocock, 3 Atk. 208; Gaunt v. Taylor, 3 M. & Gr. 886; Dollondz>. Johnson, 2 Sm. & Giff. 301 ; Jennings v. Rigby, ^ Beav. 198; Williams p. Williams, L. R. 15 Eq. 270; Hanson v. Stubbs, 8 Ch. D. 154.