#### The Ex’x. & Ex’or of Sol. Hill *v.*J. Rogers & A. W. Thompson.

The law allows a debtor to prefer one creditor to another. This may be done by confessing a judgment in favor of one creditor while a suit is pending against the debtor in favor of another creditor; and although it may operate to the prejudice of the latter, that is no ground of relief in equity.

*Before HARPER, Chancellor, at York., June Term,*1836.

This case came up on a motion to reverse the chancellor’s decree, dismissing the complainants bill. The decree of his honor, which presents all the facts of the case, is as follows:

*“*In 1826, the plaintiffs brought an action of trover at law against Andrew Hill, for the conversion of sundry slaves, and after various verdicts and new trials, a verdict was finally obtained on the last day of March term, 1831, for #3050. Judgment was entered on the same day, and execution lodged on the following Monday. *8During the term and before the rendering of the verdict mentioned, the said Andrew' Hill confessed a judgment to the defendants for the sum of $500, on a note dated 6th February, 1831, judgment was entered and execution lodged on the last day of the term.— The sherifflevied on the slaves for which the recovery was had and sold them under the plaintiff’s execution, and as it is understood, paid over the money to the plaintiff’s, who have given bond to indemnify him. The defendants have brought an action at law against the sheriff for the amount of their judgment, as being first entitled to the proceeds of the sale in consequence of their executions having been first lodged. The plaintiffs seek to restrain proceedings in that action, and to be declared entitled to the proceeds of the sale. It appears that Andrew Hill has no other property out of which creditors may enforce payment.

Some charges are made by the bill with a view to impeach the consideration of the defendants’ note and judgment; as being merely for professional services in the same case, and being exorbitant and unfair, and the judgment is charged to have been confessed to defeat the plaintiffs remedy by their execution. But nothing was shown to impeach the *bonafides*of the note. The several items of demand of which it was made up, are set forth in the answer. They seem to be fair and reasonable, and did not seem to be questioned at the hearing. That the judgment was confessed with a view to give the defendants a preference, I suppose. But the law allows a debtor to prefer one creditor to another, and I know of nothing to forbid his doing so by confessing a judgment to one while there is a suit depending against him by the other.— The principal ground of complaint seems to be this — assuming the law to be, that the verdict in trover of itself vests the property in the defendant, so as to make it liable to his creditors generally, and thus defeat the plaintiff if defendant is insolvent, and there are older executions against him — it operates great hardship and injustice, against which equity ought to relieve. But if the law be so, I know of no principle by which Equity is authorized to dispense with the law on account of its supposed hardship. The business of reforming the law, must be left to another department of the government.

*9But it was argued on the part of the plaintiffs, that the recovery merely, without satisfaction of the judgment, does not vest the property in the defendant, and that this gives them a title to the proceeds of the property. But I cannot see that this constitutes a ground for equitable interference. If the law gives them this preference, the question will arise and must be determined in the action which has been brought at law. So, if, according to a just construction of the act of 1827, altering the law in relation to the action of trover, the specific chattel sued for is in every instance of a verdict in trover, rendered liable to satisfy the plaintiffs’judgment to the exclusion of other creditors, and this is applicable to the present case, this certainly is a matter for the Court of Law. And there can be no appearance of hardship when it is recollected that the action for money had and received is an equitable action, in which any defence may be made, going to show that *ex equo et bono,*the plaintiff is not entitled to recover the money. These questions were debated at the hearing ; but it would be improper that I should give an opinion, extra-judicially, on matters not involved in the cause, thereby anticipating the judgment of the Court of Law, to which they properly appertain. The bill must therefore be dismissed; but as costs were waived, it will be without costs, and it is ordered and decreed accordingly.”

The complainants appealed and moved to reverse the Chancellor’s decree on the ground:

That from the case made by the pleadings and proof, the complainants are entitled to relief.

Curia, per Harper, Ch.

There is an apparent hardship in the complainants case, which might incline the court to regret its inability to relieve. But it is apparent that if relief should be granted, it would be not on the score of any fraud or misconduct of the parties, but on account of the hardship and injustice of the law, which we are bound to follow. The defendants have gained no advantage but what the law permits them to gain. It was argued indeed, that the defendants were in a situation of advantage as attorneys of the defendant in the suit- at law: they knew when judgment was about to be entered against their client, and may be *10supposed to have had an influence over his mind. Equity watches with jealousy, the transactions between an attorney and his client; but it is not the client who is now complaining. They knew when judgment was about to be obtained against him; but it was no more unconscientious in them to secure a preference for a bona fide debt, than if any third person, knowing the same thing, had gained a similar preference. To decide otherwise, would be to deny the right, so well established, of a debtor’s preferring one creditor to another.

The decree is affirmed.

Johnson, Dunkin and Johnston, Chancellors, concurred.