M'Kay v. Green

The Chancellor.- The plaintiff endorsed the note of the intestate, upon his personal credit, and there was'no . promise^ at the time, of any real security,- nor any thing in the transaction to imply one. The notion that the plaintiff had an equitable lien upon the land,- because the note he endorsed was applied in part payment of the purchase money, is entirely without foundation. Nor is the bill framed for an account of assets, or so as to entitle the plaintiff to proceed, in this court, as a creditor. The personal estate is the-first and primary fund for the payment of debts,- and the plaintiff ought to have resorted, at law, to that fund. He can only come here for an account and discovery of assets,-and on the ground of a trust in the executor or administrator to pay debts.- (3 Atk. 572. 1 Sch. & Lef. 262.) The bill was not intended for that purpose, but only to enforce a sale of the land, by reason of the supposed- lien. I doubt whether a creditor ought to come into this court in an ordinary case, and without some' special cause, to collect his debt from an executor or administrator. It would seem not to be enough to state that he is a simple contract creditor, for this would invite all suits against executors in this court. The, ordinary and proper, as well as the cheaper and easier remedy, is at law. The resort here is only in special cases.- In Gilpin v. [59] Southampton, (18 Ves. 469.) Lord Eldon said, that ever since he had known the court, suits had been allowed against executors, or, rather by executors in the name of a creditor, against themselves. The reason was, that as executors had vast powers of preference at law, the court had not disapproved of their ctimihg, in the shape of a’fi application by a creditor, in order to give a judgment to all the creditors, and to secure a distribution of the assets, without preference to any. When once the decree was made, it was impossible to permit a creditor to go on at law. But as considerable inconvenience arose from this practice, Lord Eldon introduced the rule, that where the answer did not state what the assets were, the executor should be called upon to state them by affidavit, before the injunction issued. I am not sufficiently informed, or prepared, to assume the entiré and exclusive jurisdiction of suits against executors and administrators, merely for the purpose of enforcing a rateable distribution of assets. It is, indeed, the dictum of Sir James Mansfield, (1 Campb. N. P. 148.) that the creditors of a deceased insolvent may always be compelled, through the medium of a court of equity, to take an equal distribution of the assets. He said it was only necessary for a friendly bill to be filed against the executor or administrator to account, after which the chancellor would in-join any of the creditors from proceeding at law. This opinion came from a judge of very high authority, and who had great experience in chancery practice; but he admitted, that the lawyers in the court of K. B. were not aware of this rule. Without having formed any decided opinion, one way or the other, on this subject, it is sufficient to observe, in this case, that the bill was not intended, or adapted for any such general purpose, and it must be dis- . missed. Sill dismissed^