upon an objection that in debt upon a bond at law an executor could not defend himself by pleading he had no assets ultra what would amount to satisfy the decree, Lord Guildford answered he might defend himself by a bill in this Court, which would take care to protect him therein. See Jones v. Bradshaw, 3 Reports in Chancery, 2; S. C. 2 Freeman, 153; Nelson, 74; a decree of Lord Clarendon's.

If the defence at law, having been such as to entitle the creditor ultimately to execution de bonis propriis, and the executor at the same time had no view to the protection which would be afforded by a decree of the Court, it should seem that no injunction will be granted-at least to restrain the creditor from proceeding against the executor personally. Terrewest v. Featherby, 2 Merivale, 480; Brook v. Skinner, ibid. in the note. In the first case the pleas were non est factum and plenè administravit; and issue was joined upon both pleas, and the cause had been tried and a verdict entered for the creditor prior to the decree. In the last case the executor had pleaded plenè administravit ultrà and the injunction was resisted upon the ground that the creditor could falsify that plea. In Lee v. Park, 1 Keen, 714, the executors at first pleaded non est factum, but being advised that they had no defence to the action, they withdrew that plea and suffered judgment to go by default. It has been already stated that such a judgment entitles the creditor in the first instance to execution as to the debt de bonis testatoris, and as to the costs de bonis testatoris et si non de bonis propriis of the executor, and that the creditor afterwards may easily obtain judgment both as to debt and costs de bonis propriis of the executor. On the 5th December, 1835, a fieri facias was issued de bonis testatoris both as to debt and costs, but the writ remained unexecuted, there being no goods of the testator. The bill, which was one by legatees, had been filed so long ago as July, 1832. The answer gave no satisfactory account of the state of the assets. The decree was made on the 30th January, 1836. The motion for the injunction did not come on before the month of December in that year. No affidavit had been filed for the purpose of explaining the answer, nor did it appear that any steps had been taken to bring into Court the balance in the hands of the defendants. The Master of the Rolls said, that in that particular case, having regard on the one hand to the nature of the suit in equity, the time when the bill was filed, the statement as to the assets in the answer, the time when the decree was obtained, and the absence of any explanation of the state of the assets; and having re

gard, on the other hand, to the time when the action was brought and the judgment obtained, the rights which the bond creditors had obtained of having satisfaction out of the assets of the testator, if the sheriff found them, or if not, upon the sheriff's return, to bring an action which would entitle them to satisfaction out of the goods of the executors; considering also that, if there should be a deficiency of assets, the claimants thereon would, if they suffered, suffer because they used less diligence than the plaintiffs at law; but would not suffer at all if the exe cutors were held to have a right to stand against the assets only in the situation in which the creditors would have stood upon a just administration-he thought that the motion ought to be refused with costs.

In these three last cases the Court refused to interfere at all. But there are cases in which, although the Court may decline to restrain the creditor from availing himself of the benefit of his judgment against the executor personally, yet it will grant its injunction for the protection of the assets.

Price v. Evans, 4

Some cases in which the injunction has restrained execution against the assets only, leaving the creditor at liberty to proceed against the re

Simons, 514, was the case of an action by a bond creditor against coheirs; the plea was riens per descent, and a verdict had been found for the creditor. There was an affidavit that the decree presentative was pronounced before the trial of the action. The form of the personally. judgment does not appear: but the issue upon the plea of riens per descent having been found against the heirs, the creditor was entitled to a general judgment, in the same manner as if the action had been brought against the heirs for their own debt. The creditor seems, however, to have availed himself of the option which he possessed, of taking a special judgment, and which judgment must have been that he should recover his debt, damages, and costs, to be levied of the lands descended (a). The counsel, however, for the creditor, urged that the injunction ought not to be granted, because the heirs having pleaded falsely, were personally liable to the creditor at law and the Vice-Chancellor said, if the coheirs are liable at law, they must remain so; but that he saw no objection to his making an order protecting the assets. Considering that the creditor had taken a special and not a general judgment, the above injunction, it is apprehended, was all that the heirs could want. In Kent v. Pickering, 5 Simons, 569, however, the order restraining the creditors only from proceeding against the assets of the testator, it appears from a report of the cause in a subsequent stage, that one of the executors

(a) See Archbold's King's Bench Practice, vol. ii. p. 671.

was compelled to pay the debts and costs out of his own pocket. See Kent v. Pickering, 2 Keen, 1. There is an error in the dates as there given instead of the 21st December, as the time of filing the bill, we must read the 21st November, 1832. The answer is stated to have been put in on the 27th of the same month, and the decree to have been made on the same day. The judgments were obtained on the 1st December, 1832. In this case of Kent v. Pickering it does not appear that the institution of the equity suit was in the application for the injunction ascribed to a design of restraining the creditors' proceedings at law.

The case of Drewry v. Thacker, 3 Swanston, 529, contains many dicta of Lord Eldon upon the question under what circumstances the Court will restrain the legal proceedings of a creditor, who has obtained a right of execution against a personal representative. There, actions being brought against an administratrix upon two bonds, she pleaded non est factum; and the causes coming on for trial after Hilary Term, 1818, she, ore tenus, pleaded puis darrein continuance three judgments recovered against her as administratrix, and that she had fully administered præter 10. In Easter Term the plaintiff's at law replied that the administratrix had in her hands at the commencement of the action assets unadministered beyond what she had admitted, and more than sufficient to satisfy the three judgments: issue was thereupon joined, and notice of trial was given for Trinity Term. But before the trial, written agreements were come to, that the pleas should be withdrawn, and that judgments should be taken for payment of the debts by instalments. On the 13th November, 1818, the bill was filed, and the decree was pronounced on the 19th; and on the 24th of the same month an order was made by Sir Thomas Plomer for an injunction, grounded on an affidavit of the administratrix, stating only that the creditors at law threatened to issue execution, and her belief that she had not assets adequate to pay them, but omitting all mention of the circumstances attending the actions at law. The other facts are not material for the present purpose. Lord Eldon made remarks to the following effect:-that if the personal representative has pleaded falsely or admitted assets when he had them not, that it becomes necessary to consider many cases in which the Court has held that it could not stop the legal proceedings of creditors; that the question is, whether the conduct of an executor or administrator never can be such that the Court will decline to stay

proceedings at law. Was there any instance in the history of the Court, where, after a judgment at law de bonis testatoris et si non de bonis propriis of an executor, and execution issued, on a decree subsequently obtained for administration of the assets, the proceedings at law have been restrained? that at law the personal representative is liable to the deficiency returned by the sheriff; that the Court is always careful not to exclude creditors proceeding at law from the benefit of that due diligence by which they have established a right to be satisfied, either out of the assets of the deceased, or de bonis propriis of the representative, a right which in some cases the conduct of the representative will confer on them, and in others their own activity.

the Court's inthe creditor has obtained judg ment prior to the decree.

terference where

In all the foregoing cases, except Drewry v. Thacker and Egan Question as to v. Baldwin, in which the injunction was granted, and Lee v. Park, in which it was refused, there was no judgment at the time the decree was pronounced. That the Court will not in general restrain proceedings where the creditor has obtained a judgment prior to the decree, seems to follow from the rule that it will grant no injunction before decree. In Martin v. Martin, 1 Vesey, sen. 211, Lord Hardwicke observes, that if the creditor at law first obtains judgment, he must be first satisfied, as he will then gain a preference in course of administration both in law and equity; but if the decree is first obtained, the Court will then restrain; that previously there was no ground to grant an injunc tion, as the judgment at law might be obtained before the decree, and thereby gain a preference; that it would be very mischievous should the Court suffer another bond creditor, who has not obtained judgment, after a decree to proceed against the estate. In Largan v. Bowen, 1 Schoales & Lefroy, 296, Lord Redesdale, after adverting to the case of Rush v. Higgs, 4 Vesey, 638, proceeds to say, that there the creditor brought an action at law against the executor; that if he could prosecute that action with effect, and become a judgment creditor before the decree, he would have a priority against the personal assets, which priority the Court would not allow him to obtain after the decree; that courts of equity will not restrain proceedings of creditors at law against executors to obtain payment of debts, merely on a bill filed by other creditors to carry the trusts of the will into execution, until there is a decree; but from the moment of the decree, the Court proceeds on the ground that the decree is a judgment in favour of all the creditors, and that all ought to be paid accord

ing to their priorities as they then stand; and that the Court cannot execute its own decree if it permits courts of law to alter the course of payment. Lord Eldon, however, in Clarke v. Lord Ormonde, Jacob, 108, 124, says if the creditor has got a judgment before the decree, though he may come in and prove as such, he must not take out execution. Upon referring to the subsequent passages, it will, it is apprehended, be found that this dictum applies only to execution against the goods of the testator. See further the remarks of the Master of the Rolls in Lee v. Park, 1 Keen, 714, 724.

Different deci

sions as to the creditor's costs

at law, and of the application to restrain him.

The following are the decisions respecting the creditor's costs at law, and of the application for the injunction. In Goate v. Fryer, 3 Brown, C. C. 23; S. C. 2 Cox, 201, the creditor discontinuing his action, was to be at liberty to prove the costs of it as a debt under the decree. In Dyer v. Kearsley, 2 Merivale, 482, in the note, the plaintiff at law had his costs of the action up to the time when he had notice of the decree, to be paid out of the assets of the testator. In Curre v. Bowyer, 3 Maddock, 456, as well as upon several other occasions, Sir John Leach is reported to have said, that if a creditor proceed at law against an executor, after notice of a decree against the latter to account, the Court would consider it so far in the nature of a contempt, that upon a motion for an injunction to restrain further proceedings at law, the creditor would be refused the costs of the further proceedings at law, and the costs of the application. In Drewry v. Thacker, 3 Swanston, 529, 538, Sir Thomas Plomer directed that the administratrix should pay to the creditors their costs at law respectively up to the time they had notice of the decree. In Clarke v. Lord Ormonde, Jacob, 108, 124, Lord Eldon, after observing it was well settled that creditors are entitled to their costs only up to the time of their having notice of the decree, said, if the executors have assets, they must pay the creditors their costs, if not, the plaintiffs (in the creditors' suit, and who applied for the injunction) must pay them. In Lord v. Wormleighton, Jacob, 148, the executor was directed to pay to the creditor his costs at law, including the costs of the trial, although the creditor's solicitor had notice of the decree before the trial took place. There the executor having pleaded non assumpsit and a set-off, and there being a verdict against him on both those issues, he had become liable to the costs de bonis propriis. In