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THE CAPE SABLE COMPANY'S CASE. 655
It is a general rule, that all liens and incumbrances which are
not in themselves vicious or defective must be satisfied according to
their respective priorities, (e) Two of these parties, Oliver and
Carroll, rely on their judgments as giving them liens which entitle
them to be satisfied in preference to all other creditors of The Cape
Sable Company. These plaintiffs and some of the other creditors,
however, not only deny the legality of their liens, but the very ex-
istence of their claims; and as between Oliver and Carroll them-
selves, each claims a priority over the other. It will, therefore be
necessary to enquire whether they are in truth to be considered as
judgment creditors and from what date.
Upon the principles of equity by which this court has been so
long governed in relation to the distribution of the estate of an in-
solvent living person among his creditors; and in regard to the
application of the estates of deceased persons to the payment of
their debts; upon the ground that creditors have by the misfortunes
or death of such debtors been confined to a single fund from which
alone they can obtain satisfaction; I can see no reason why this
court may not, upon the same principles, where a corporation is
admitted or shewn by proof to be in a condition of absolute insol-
vency, and especially if such insolvency must inevitably eventuate
in its total dissolution, take cognizance of the matter, call in its
creditors, and apply its effects in satisfaction of their claims, ac-
cording to the course of proceeding in a creditor's suit, (f) And
this case having heretofore, by the admissions of the parties, been
submitted as a creditor's suit, I shall therefore continue so to con-
sider and treat it.
The decree of the 5th of April, 1828, is founded not only on the
admitted fact, that these debts were then due from the company to
Oliver and Carroll; but also upon the concession, that The Cape
Sable Company was then in a condition of absolute insolvency.
That decree, and the agreement upon which it was passed, there
being then no other creditors but Oliver and Carroll before the
court, necessarily involved these facts and admissions; because the
court could not, otherwise, have treated the case as a creditor's suit,
and have ordered a sale to pay debts, none of which were then ad-
mitted or established; nor could the court have ordered notice to be,
given to the other creditors to bring in their claims upon any other
(e) Rankin v. Scott, 12 Wheat. 177. —(f) Hammond v. Hammond, 2 Bland, 316;
Shepherd v. Towgood, 11 Cond. Chan. Rep. 206.
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