
    Ex parte The United States in the case of The Creditors of Shubrick v. The Executor of Shubrick.
    In this case the creditors claimed by bill the assets in the executor’s hands, who set up that the United States lhad a claim against them for large advances, under a contract between the United States and the testator. A notice was published for creditors to file their claims by the sitting of the next Court. Instructions from the Secretary of the Navy with the documents were forwarded to the District Attorney, and arrived during the sitting of the Court; but the Secretary had before given notice to the ex'ecutor of the. demand of the United States. Chancellor Thompson refused to extend the time. From which the United States appealed on these points:
    
      Where a suit is brought against an executor, and all the creditors are advertized to come in by a day given, though a party come after the day he will be let in, while the fund yet remains in the power of the Court, upon his paying the expenses inci :dent to any delay thereby.
    
      1826.
    
      Charleston.
    
    
      First. That their claim was set forth in the executor’s answer.
    
      Second. That it was made to the executor in time.
    
      Third. That at any time before a fund is distributed, the practice of the Court is to allow creditors to come in.
    
      Gadsden, U. S. Att. for the appellants.
    The Court will at any time, before the final disposition of the funds, sutler a creditor to come in and prove his demands on terms. 4 Johns. 643. 647. 11 Ves. 602. 1 Madd. Rep. 529. It is a matter within the discretion of the Court; and as the object would have been to do justice, and as no delay would have supervened, the complainants ought to have been let in. Besides, the answer of the defendant set forth this claim; and all the parties had notice of it, although it was not proved in form.
   CüRia, per

Cohcock, J.

The point submitted in this case admits of no doubt. The fund, it is admitted, is yet in the hands of the officer of the Court, and no final decree as to the rights of the parties has been made. No inconvenience or injustice then will be done to others by admitting the claim of the United States for proof. And to exclude it, merely because the day appointed for rendering the accounts had passed before it was delivered, would be rigorous and unjust. It appears to have been the usual course pursued, and if any expense be incurred by the applicant, he shall pay so much for his laches, but not excluded from his demand. In Lashley v. Hogg, 11 Ves. 602, the Chancellor said he could not dismiss the bill after a decree, except on a rehearing or appeal. But the object, as to the disposi-jjon 0f the funds, might be obtained by consent upon further directions; and though the time had elapsed,yet the Court will let in creditors at any time, while the fund ^ in Court. And in the case of Angell v. Haddon, 1 Madd. Rep. 529, a creditor was let in though the money was apportioned among the creditors, and transferred to the accountant general, on his paying the costs incurred by his delay. The decree of the Chancellor is therefore reversed.

Decree reversed.  