Page:Harvard Law Review Volume 5.djvu/143

127 EQUITY JURISDICTION. 12 7 the nature of a bill of interpleader, and clearly no creditor of the testator can properly be a party to it. Such a bill, indeed, as- sumes that all the debts are paid ; and it is very doubtful if it does not assume that all legacies about which no question is raised are also paid. A notion seems to have once prevailed that an executor whose testator died insolvent might maintain a bill against the creditors of the latter, for the express purpose of procuring the estate to be divided among all the creditors pro rata, with such preferences only as existed by law at the time of the testator's death, and in Buccle v. Atleo 1 a demurrer to a bill of that description was overruled. Such a bill would be primarily a bill to restrain the testator's creditors from suing the executor at law; but as a conse- quence of that would be that the creditors would be deprived of their legal remedy, equity must provide them with another rem- edy; and, therefore, the decree, after directing an injunction to issue, would refer the cause to a Master to take an account of the estate and of the debts, with a direction to the Master to advertise for creditors to come in before him and prove their debts. 2 There would be but one objection to such a decree, but that would be conclusive, namely, that equity would be depriving creditors of their legal rights for no other reason than that it disapproved of their having such rights. Accordingly, the notion that such a bill would lie has long been exploded. 3 1 2 Vern. 37. 2 Such a decree was made in Morrice v. Bank of England, supra, p. 120 ; and, there- fore, in that case theestate was administered in a suit in which the executrix was plaintiff. Whenever equity restrains the owner of a legal claim from enforcing his claim at law, it must itself take cognizance of and enforce the claim. When, indeed, an administration decree has been made against an executor, and he thereupon files a bill to restrain a creditor from suing him at law, the court has no occasion to do more upon the latter bill than decree an injunction ; but that is because there is already a decree under which the creditor can come in. 8 See Backwell's Case, 1 Vern. 152; Morrice v. Bank of England, Cas. t. Talbot, 217, 224-5, 3 Swanst. 573, 583, per Lord Chancellor Talbot. In the latter case it appears from 2 Bro. P. C. (Toml. ed.) 465, 481, that a bill had been filed by some of the creditors of Morrice, on behalf of themselves and the other creditors, .o con^€.2i pro rata division of the estate among all the creditors; but the bill was demurred to, and the demurrer was allowed. The difficulty in the plaintiffs' way was that they were in no condition to obtain an injunction. According to the practice afterwards established, the plaintiffs would have filed a bill simply for the administration of the estate; but whether such a bill would have done them any good or not, ought to have depended upon whether they could obtain an administration decree before those creditors whom the executrix wished to prefer could, with the assistance of the executrix, obtain a personal decree against the latter;