Page:Harvard Law Review Volume 5.djvu/139

123 EQUITY JURISDICTION. 123 first injunction that was granted expressly upon the ground above explained was that granted by Lord Thurlow, in 1782, in the case of Brooks v. Reynolds ; 1 and though it is doubtful whether that was a case in which the estate could properly be administered, yet a decree for the administration of the estate had in fact been made, and the correctness of that decree could not of course be questioned in a collateral proceeding. The decision in Brooks v. Reynolds was not, however, sufficient to settle the question ; for in the subsequent case of Kenyon v. Worthington, 2 in which the question arose nakedly and upon its merits, an application to Lord Thurlow for an injunction was resisted by counsel of the greatest eminence. The resistance, however, was unsuccessful, and the injunction was granted. This was in 1786; and from that time the question was regarded as settled. 3 The practice thus established involved from the beginning one danger (already adverted to in another connection), namely, that executors would sometimes make it a means of delaying creditors, and of keeping the assets in their own hands. This danger was, however, effectively guarded against by making it a condition of granting an injunction, that the executor make an affidavit as to the state of the assets, and pay into court whatever money was then in his hands. 4 There was also a serious objection, in point of procedure, to the practice established by Lord Thurlow, namely, that it was expen- sive and cumbersome ; for it made it necessary for every executor 1 1 Bro. C. C. 183, Dick. 603. That was a bill by an executrix to restrain a cred- itor of her testator from suing her at law. An administration decree had been made against the executrix, upon a bill filed by trustees under the testator's will. Possibly the decree was right, as the trustees were residuary legatees ; and Lord Eldon (in Perry v. Phelips, 10 Ves. 34, 39) speaks of the bill as having been filed by residuary legatees. Still, the trustees filed the bill professedly to obtain the directions and indemnity of the court in executing the trust, and all the cestui que trusts under the will, as well as the executrix and the testator's heir at law, were made defendants ; and, therefore, the bill seems to have been in the nature of a bill of interpleader. Dickens says (doubtless by mistake) the bill was filed by a creditor on behalf of himself and the other creditors. It may be further observed that the plaintiff's object in seeking an injunction con- fessedly was, not to prevent the defendant from obtaining a preference over other cred- itors (for the estate was admitted to be solvent), but to protect against creditors a large amount of property specifically bequeathed to the plaintiff herself. 2 Dick. 668. 8 Paxton v. Douglas, 8 Ves. 520; Perry v. Phelips, 10 Ves. 34; Curre v. Bowyer, 3 Madd. 456; Clarke v. Earl of Ormonde, Jac. 108, 123-5. 4 Cleverley v. Cleverley, cited 8 Ves. 521 ; Paxton v. Douglas, 8 Ves. 520; Gilpin v. Lady Southampton, 18 Ves. 469; Clarke v. Earl of Ormonde, Jac. 108, 125.