GAINES v. crtrr OF NEW ORLEANS 21
ent, none can erist after he has become insolvent. Yet the creditor
would have no legal claim on the legatees, and could maintain no
action at law against them. The right of the executor, however,
may in a court of equity be asserted by the creditor, and as tl1e lega-
tees would be ultimately responsible for his debt, equity will make
them immediately responsible.
'1'he principle here to be invoked, and which is controlling, is that
equity will not allow a party ultimately liable, for his own advantage,
to keep the owner out of possession, and an intermediate and insolv-
ent party in possession, who is, in turn, responsible to the lawful
owner, and thereby to enrich himself out of the property of that
owner, thus possessed, and escape liability to him for want of a mode
of action.
This principle 'is laid down `In broader terms by Lord Justice Tun-
NER in the case of the Emperor of Austria V. Day d? Kossuth, 3 De G.,
F. & J. (64 Eng. Ch.) 217, thus:
“ The highest authority upon the jurisdiction of this court, in enumerating
the cases to which the jurisdiction of this court extends, mentions cases of
this class where the principles of law by which the ordinary courts are guided
give no right, but upon principles of universal justice the judicial power is
necessary and the positive law is silent."
The conclusion, therefore, is unavoidable that this suit is properly
brought as a suit in equity:
(1) Because, as a bill for discovery of the participation of the de-
fendant in, and her advantage from, the provoking and maintaining
r . a litigation which, commenced in bad faith, has, upon various pre-
texts, been made to keep the complainant out of the enjoyment of a
large inheritance for 47 years; and,
(2) Because, whether the bill of complaint be viewed as an inci-
dent to a litigation which has lasted in a court of equity for half a
century, calling for an account for rents and profits for that whole
period, as to a vast number of separate lots, and calling for a dis-
tinct and detailed statement of account for each lot, under a system
of law by which, on the one hand, the annual profits or value for use,
and on the other hand the yearly disbursements for amelioralions
and taxes, must be ascertained and stated, and where it is made to
appear that this exhaustive complexity is altogether due to the.l1in-
dtances which have been interposed bythe defendant; or whether
the bill of complaint be viewed as leveled at a defendant who, under
~ an obligation to indemnify a possessor in case of eviction, and for
the purpose of retaining an enormous price unjustly obtained, and
avoiding a liability for fruits which must be rendered to the real
owner upon her recovery of possession, has, directy as well as
through that possessor, by all manner of legal artinces, in bad faith,
kept that owner out of possession of her own, that possessor having
no means wherewith to respond to the owner when evicted and ad-
judged to deliver up the property with its fruits,—whether the bill of