WILLIAMSON v. WILSON.—1 BLAND. 403

giving of an undue and improper preference, under such circum-
stances, is denounced by the express provisions of our insolvent
laws, as a fraud. And in all cases, where a Court of Chancery can
be called on, and does interpose for the purpose of administering
the assets of an insolvent debtor, it is governed by the rule of
equality; because equality is equity. The assets, if insufficient to
pay all, are always distributed proportionably. But, although
this is the duty of an insolvent debtor: and is what a Court of
Chancery will do for him in all cases, where his effects can be sub-
jected to its control; yet if a creditor can fairly and legally obtain
full payment from his insolvent debtor, equity will not deprive
him of his legal advantage and compel him to refund.

These parties admit themselves to be insolvent debtors. The
plaintiff charges his co-partners, the defendants, with a design to
waste the joint property, and to apply it to their own use. The
defendants deny these allegations, and charge the plaintiff with a
design to misapply the funds, and to give to some of the creditors
an undue preference. Taking the charges of the plaintiff and of
the defendants, or of either party to be true, or allow, that each or
either party was about to waste the property, or has his favorite
creditors to whom it is his design to give an undue preference; and
it is clear, that oue or the other or both of them have formed a
fixed resolution to violate one of the great principles of equity,
which it is the peculiar province of this Court to prevent. None
of the creditors of these insolvent debtors, so far as it appears,
have, as yet, obtained any legal advantage. It is proper there-
fore, that this Court should now lay its hands upon joint property
of this partnership, and let all its creditors come in pari passu, and
according as their respective priorities, if any, should appear.
Both parties profess to have had this equitable distribution in con-
templation; both acknowledge themselves to be in that insolvent
condition, in which the making of such an equitable distribution has
devolved upon them as a duty. And yet each charges the other with
having made an effort, and formed a fixed design to disregard this
duty. Neither of them seems to have the least confidence in the
other. Under all these circumstances, I consider this as a case,
in which it is peculiarly fit and proper, that a receiver should have
been appointed before answer, and should now be continued,
* as a means of winding up the affairs of this partnership in 427
safety, and with justice and equality to all concerned. Peacock v.
Peacock, 16 Ves. 49.

It follows as a necessary consequence of appointing a receiver
before answer, that the selection of the person to be appointed
must be made by the Chancellor on the ex parte recommendation
of the party applying for the appointment. In England, the selec-
tion of a suitable person is, most commonly, referred to a master,
by whom both parties may be heard; but here, that duty must be