UNITED STATES SUPREME COURT DECISIONS ON-LINE

Many actions were brought, returnable to January Term 1794, against the defendants, as Executors of Cay, the surviving partner of Clow and Cay, whose affairs were exceedingly deranged; and, on the 11th of January 1794 ( declarations having been previously filed in all the actions) rules were obtained, 'that the defendants plead as of this day, or shew cause to the contrary, &c.' The declarations were filed, and the rules obtained, under a suspicion (affirmed upon oath) that judgments would be confessed by the Executors, to other creditors, in preprejudice of the several plaintiffs in these actions, which, it was agreed, should all be governed by the decision upon an argument in any one of them.

For the plaintiff, if it was contended by Thomas, that granting an imparlance (particularly where the suit was by original, setting forth the cause of action, and that, in the present instance, is done by filing the declarations) was discretionary, and matter of favour, with the Court; and a variety of cases were cited, in which the imparlance was refused, or granted only upon terms that would prevent an injury to the plaintiff. Skin. 2. pl. 2. 2 Show. 310. pl. 321. 2 Wils. 381. 1 Salk. 186. Ibid. 80. Gilb. H. C. P. 42. 2 Vern. 62. A rule to enlarge the term for pleading, has, indeed, been expressly refused, unless Executors would agree not to plead judgments confessed subsequent to the expiration of the term. 1 Bulst. 122. 8 Mod. 308: But the principle on which Executors are allowed to retain debts due to themselves, is, that they cannot sue; and not being able to sue, so as to obtain a preference in that way, the law gives it them in another. By a parity of reasoning, he who first sues, ought to be first paid. 3 Bl. Com. 18. 19. Shep. T. 479. Esp. 252. Doug. 436. Cro. E. 41. It is true, that counsel, argumentatively, state, in Doug. 436, 'that although

Page 2 U.S. 260, 261

an Executor, or Administrator, cannot pay a debt of the same degree, after action brought and notice given of such action, unless there is judgment for the debt which he pays; yet that he may pay such debt after judgment; and he is intitled to give it a preference by imparlances, and pleading dilatory pleas to the first action, and, in the meantine, confessing judgment for the second demand': But Buller, Justice, says, 'that all legal means may be used to obtain a preference'; and as priority of suit is a legal means, entitled to countenance more than any right of favoritism on the part of executors, the only question is, whether the Court will, under the circumstances of the present case, restrain the exercise of that right, which must depend upon the favor of the Court, in granting imparlances, and allowing dilatory pleas.

Moylan, for the defendants, having averred, that no system of favoritism would be pursued; but that, nevertheless, the executors felt an equitable obligation to discharge, in preference, debts due from the testator for loans of friendship, and clerks, or servants, wages;* proceeded to shew, by numerous quotations, that the right of an executor to give a preference to any creditor, of the same degree, was positive and unqualified. Wentw. 142. 3.4.5. 11 Vin. Abr. 269 pl.4. 1 Sid. 21. Vaugh. 95. Lov. on Wills. 56. Doug. 436. Morg. Att. vade mecum. 196. He analysed the authorities cited for the plaintiff, and insisted, that some of them were contradictory, each to the other; that some of them were obiter dicta; and that some were decided in actions, whose forms and principles were not applicable to the present case: yet, that taken in the gross, a candid exposition would reconcile them to the doctrine, that wherever there was no covin or fraud, an executor may give a preference to a creditor of the same degree. It is true, that they prove, likewise, the discretionary power of the Court, to allow, or refuse, imparlances, according to the weight of the reasons assigned: but, taking into view the deranged state of the testator's affairs, at the time when the motion for pleading was made, there certainly could not be a more proper occasion, than the one now depending, for granting every possible indulgence to the executors. At that time no assets were ascertained; and if the executors could not plead satisfactorily then, the court will not compel them to plead matter, which has since occurred; for, if the rule is made absolute, it must be in relation to the state of things, at the period when the motion was made.

But so far from precipitating the executors into a premature plea, they are entitled, by a liberal and fair construction of the [2 U.S. 260, 262]

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