T 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 PRACTICAL TREATISE 
 
 ASSETS, 
 
 DEBTS AND INCUMBRANCES. 
 
 BY JAMES RAM, 
 
 OK THE INNER TEMPLE, M. A., BARRISTER AT LAW. 
 
 LONDON: 
 
 A. MAXWELL, LAW BOOKSELLER TO HIS MAJESTY, 
 STEVENS, AND SONS, BELL-YARD, LINCOLN'S INN; 
 
 AND R. MILLIKEN AND SON, GRAFTON STREET, DUBLIN. 
 MDCCCXXXII,
 
 DRADBUnY AM) KVAKS, pniVTER? 
 22, BOUVF.RIK STREKT. 
 
 T
 
 1^ 
 
 U. 
 
 PREFACE. 
 
 If, because by far the greatest part of the Law of England 
 lies scattered in the Reports of Cases, that during several 
 centuries have come before the Courts, and a desire to 
 possess the knowledge of so much only of this law, as 
 may be strictly necessary for professional practice, would 
 be attended with extreme difficulty, if the only path to 
 it lay through the volumes of Reports themselves, the 
 least successful attempt to collect together any part of 
 these materials, and embody them in a separate treatise, 
 may fairly claim both gentle criticism, and, perhaps, some 
 gratitude ; on the other hand, it is necessary to admit 
 that these favours ought not to be won, except by apply- 
 ^ ing to the subject treated of, as much research, thought, 
 ^ and labour, as the author is capable of bestowmg on it. 
 
 756G55'
 
 IV 
 
 PREFACE. 
 
 The task of a law writer can very rarely be light, if he 
 undertakes personally to read the cases reported, and to 
 state the effect of them. To ascertain the decision in a 
 single case very frequently requires much patient thought 
 and investigation ; and it will readily, therefore, be 
 apprehended, that to gather the law that results from 
 a series of cases, beginning perhaps at a distant period, 
 and most usually determined in different Courts, and by 
 judges of unequal eminence, is sometimes impracticable, 
 and is constantly exposed to the danger of error. The 
 authority of a case often depends on the Court in which, 
 or the learning of the judge by whom, it was decided. 
 A case at Nisi Prius carries less weight, than one decided 
 by assembled judges at Westminster («) ; and it is certain 
 that, generally speaking, a judgment by a Court in West- 
 minster Hall yields in importance to a decision in the 
 House of Lords (b). The authority of a case may, more- 
 over, be strengthened by the circumstance, that it was 
 determined by a *' strong" Court (c), by a Court com- 
 posed of judges of great reputation (d), or by, or with 
 
 the concurrence, of a single judge distinguished for his 
 
 («) 2 D. & E. 74 ; 7 D. & E. 334 ; 
 6 Taunt. Wfy; 2 Biiig. UU; 15 Ves. 
 262. 
 
 (ft) 6 Ves. 547 ; 3 Swanst. 152. 
 
 (r) 5 Taunt. 671. 
 
 ((/) 7 Price, 347 ; 6 Bing. 22.
 
 TREFACE. V 
 
 learning (e) ; and be weakened by the circumstance, 
 that the Court were equally divided (y), or were not 
 unanimous (^). Besides the trouble of fixing the value 
 of cases, in searching for the present law, farther diffi- 
 culties commonly occur. One authority, or one series 
 of authorities, is contradicted by another j a modern case 
 and one determined some years- ago (A), or even two 
 recent cases (z), are found to be much, if not directly, at 
 variance ; and, more perplexing still, cases, that for years 
 have uniformly flowed in a particular direction, are not 
 unfrequently met by an opposing stream, strong enough 
 to stem the older current, and to make it doubtful what 
 course they will hereafter take (j). The value of a case 
 is clear, and it remains uncontradicted ; and yet to know 
 the effect of it, it is constantly needful to inquire, if it 
 determines a general question, or if it is decided merely on 
 its own particular circumstances. The importance of this 
 
 (e) An eminence of this kind has 
 been attained (among otlier judges) 
 by Sir M. Hale (4 D. c*^ E. 31 1 ; 5 D. 
 eSc E. 55(5)-, Sir J. Holt (6 D. & E. 
 423; 7 U. & E. 743); Lord Hard- 
 wicke (7 D. & E. 416 ; 7 Price, 277); 
 Lord Mansfield (2 D. &. E. 73; 6D. 
 & E. 423 ; 7 D. & E. 222 ; 8 D. & 
 E. 23 ; 2 Bing. 309) ; Lord Thurlow 
 (5 Ves. 538) ; Lord Alvanley (15 East, 
 198 ; 3 M. & S. 53(i ; 4 Bing. 242) ; 
 and Sir V. Gibbs (3 Bing. 391, 643 ; 
 
 5 Bing. 547; 1 B. "v: C. 251.) 
 
 (/) 3D. &E. 631 ; 14 East, 621. 
 
 (.'/) 5 D. & E. 257; Coop. 267. 
 
 (//) ] Ves. Jan. 495 ; Eaton v.Ja(/nes, 
 Doug. 438 (ed. 1783), and Williams 
 V. Bosaiiqiui, 1 Brod. & B. 238. 
 
 (/) Gibson v. Dickie, 3 M. Sl S. 
 4()3, and Binnington v. Wallis, 4 
 Barn. & Aid. 650 ; Attree v. Scutt, 6 
 East, 476, and Garland v. Jehjjll, 2 
 Bing. 273. 
 
 (j) 3 Bing. 647; 4 Bing. 241.
 
 yi PREFACE. 
 
 inquiry is demonstrated by the fact, that, in a multitude 
 of instances, the Court anxiously guards against miscon- 
 struction, by expressly stating in terms, that it decides 
 on the particular circumstances only, and leaves the 
 general question untouched {k). Wlien it is required to 
 state the grounds of a decision, especial care appears to 
 be necessary, accurately to collect them from the facts of 
 the case, or the language of the judgment. " Read not 
 to contradict and confute, nor to believe and take for 
 granted, but to weigh and consider," is advice, that seems 
 peculiarly to apply to a writer on English Law. 
 
 Enough, perhaps, has been said to make it apparent, 
 that the least successful Law-Treatise may fairly claim 
 for itself gentle criticism. The duties of the writer are 
 manifested by the circumstance, that common experience 
 testifies that, in actual practice, it is often essential to act 
 on the instant, and frequently a treatise must be, and 
 consequently is, depended on, as containing a faithful 
 statement of the law. 
 
 The chief objects of the present volume are, to be an 
 assistance to persons providing by will for the payment 
 of debts, and mortgages and other incumbrances, and 
 legacies; and, in plain language and practical for^n, to 
 
 (/.) 8 Taunt. 55, 56; 12 Ves. 182; Jacob, 38.
 
 PREFACE. 
 
 Vll 
 
 convey iiset'iil information to creditors, who have tleniands 
 against the estate of a person deceased, and to unfold to 
 executors, administrators, and trustees, the duties which 
 their office imposes on them, and the responsibilities they 
 incur by accepting it. 
 
 In a great number of instances, the Author has men- 
 tioned in the notes, the occasion, on which a case there 
 referred to, has been cited on the bench. For often 
 a judge's notice of a case may augment or lessen the 
 value of it as authority, and regulate its importance on 
 future questions. That notice may be materially useful, 
 amongst other examples, — when it explains the judg- 
 ment delivered in the case cited, and which, according 
 to the report of it, is not very intelligible (/) : when 
 the case is noticed by the same judge, by whom it 
 was decided, and, on citing it, he expresses his adhe- 
 rence to it (m), or explains the ground or principle of 
 his decision (m), or the meaning of his judgment, which 
 has been misunderstood (o) : when the judge who cites 
 the case was counsel in the cause, and states the nature 
 of it ( jj) : when the judge has his own note of the 
 
 (Z) 15 Ves. 394. 
 
 (m) 7 D. !k E. 437 ; 2 Eden, 180; 
 1 Turu. & R. 240. 
 
 {») 2 Ves. (joo ; A mil. 301 ; 1 
 Turn. & R. 240. 
 
 (<>) 7 Ves. 95 ; 1 Turn. & R. 238, 
 239, 244. 
 
 (/>) 1 Alk. 525 ; I Sell. & Lef. 
 294, 295 ; M'Clel. 525.
 
 Vlll 
 
 PREFACE. 
 
 case, and cites it from that note (</) : when such judi- 
 cial notice of a case discloses the end of it (r) : when 
 it testifies the authority of the case cited, and expresses 
 an opinion that it ought to be followed («) : when it 
 is expressive of approbation of a case, the soundness 
 of which has been attacked (^) : when it contains an 
 opinion that the case cited is not law(w), or a state- 
 ment that it has not been approved of (i?). 
 
 77, Chancery Lane, 
 
 •27th August, 1832. 
 
 (q) 1 Sell. & Lef. 294. 
 (r) 2 Ld. Raym. 1148, 1150; 4 
 Madd. 278, 279. 
 
 (s) 6 Ves. 565 ; 8 Ves. 287. 
 
 (0 4 Ves. 323; 1 Sim. 192, 193. 
 
 («) 3 Ves. 14, 16. 
 
 (y) 2 Barn. &c Adolph. 577.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 OF CERTAIN KINDS OF DEBTS. 
 
 Section I.— 1. Debts of Record.-^. Debts brj Specialty.— 
 
 3. Debts by Simple Contract . , l 
 
 II' — D(^'bt secured by Mortgage . . 5 
 
 ^^^•~ Debt contracted by a Breach of Trust . .12 
 
 CHAPTER 11. 
 
 CROWN DEBTS. 
 
 Section I. — 
 
 ^^•~0f certain Enactments in the Statutes, 33 Henry 
 
 VIII, c. 39, and 13 Elizabeth, c. 4 . .15 
 lll.~Of Lien, and Sale by the Debtor . .19 
 
 l\. —Of Lien, and Debtor's Mortgage by Deposit of 
 
 Title Deeds . • . 24 
 
 Y.—Ofan Extent; in Chief and in Aid . 25 
 
 ^I* — Of a Sale under an Extent . . 28 
 
 \ll.—Of certain Titles preferred to the Lien of the 
 
 13 
 
 Crown . . qi 
 
 WW.— Of particular instances of Fraud against the 
 
 Croum . . ^ nn 
 
 IX.— Of the Debts of a Croivn Debtor deceased . 33
 
 CON! KN IS, 
 
 CHAPTER III. 
 
 OF A DEVISE OF REAL ESTATE, IN TRUST FOR THE PAYMENT 
 OF DEBTS, OR DEBTS AND LEGACIES. 
 
 I'AGE. 
 
 Section I. — Chattel Estate created hy the Will . . 37 
 
 II. — Copyholds devised . . . . 38 
 
 III. — Trust to raise Money out of Rents and Profits . 39 
 
 IV. — Residtiny Trust for the Testator's Heir at Law ib. 
 
 V. — Exemption of the Testator'' s Personal Estate . 40 
 
 VI. — Responsibility of a Purchaser from the Trustees 48 
 
 VII. — Reviving Simple Contract Debts barred by the 
 
 Statute of Limitations, 21 James /. c. 16 . 50 
 
 VIII. — Miscellaneous Points of the General Sidject . 53 
 
 CHAPTER IV. 
 
 OF A CHARGE OF DEBTS, OR DEBTS AND LEGACIES, ON REAL 
 
 ESTATE. 
 
 Section I. — The Trust created by a Charge . . 56 
 
 II. — Wills in ichich Real Estate has been held to be 
 charged with the payment of Debts, or Debts 
 and Legacies . . . . 57 
 
 III. — Wills in lohich Real Estate has been held not to 
 be charged with the payment of Debts, or 
 Debts and Legacies . . .64 
 
 IV. — Copyholds cliarged . . . . 65 
 
 V. — Exemption of the Testator's Personal Estate . 67 
 VI. — Responsibility of a Purchaser . . . 68 
 
 VII. — Miscellaneous Points of the General Subject . ib.
 
 VONTFNTS. XI 
 
 CHAPTER V. 
 
 OF A POWER TO RAISE MONEY FOR THE PAYMENT OF DEBTS, 
 DEBTS AND LEGACIES, OR LEGACIES ONLY. 
 
 pact:. 
 
 Section I. — Of the Party to sell under the Poxcer . . 70 
 U. -Of the Statute 21 Hemy Fill. c. 4 . .76 
 
 III. — Of the Party to sell, ichcn no Person is hy the 
 
 Will named for this purpose . . 78 
 
 IV. — Of the Time for Sale, 7chen the Property em- 
 powered to be sold is devised for Life, or is 
 a Reversion expectant on an Estate for Life 79 
 V. — Of Descent to the Testator's Heir at Laio until 
 
 Sale . . . .82 
 
 VI. — Miscellaneous Points of the General Subject . 8'3 
 
 CHAPTER VI. 
 
 OF LEGACIES PAYABLE OUT OF REAL ESTATE. 
 
 Section I. — Of Leyacies payable out of Peal Estate, in aid 
 
 of the Personal Estate . . 88 
 
 II. — Of Legacies payable out of Real Estate, in 
 
 exoneration of the Personal Estate . . 89 
 III. — Of Legacies payable out of certain Real and Per- 
 sonal Estates, in exoneration of the general 
 Personal Estate . . .93 
 
 IV. — Of Legacies held to be payable out of the Per- 
 sonal Estate only . . . 94 
 V. — Of a Devise on Condition to pay Legacies . 97 
 1 . TTie general nature of a. Devise that if a Condition, 
 
 and of a. Conditional limitation . • ii«
 
 Xll CONTENTS. 
 
 PAGE. 
 
 2. A Condition in pay a Legacy, and the remedies 
 
 of the Legatee for it . . . 102 
 
 3. A Condition to pay a Legacy, when the Devise is 
 
 to the Testator s Heir at Law . .103 
 
 4. A Condition to pay a Legacy, when the Will gives 
 
 to the Legatee a right of entry on non-payment 
 
 of it . . . . . 107 
 
 5. The Equitable Relief afforded to the Devisee^ if 
 
 the Condition is hroken . . .108 
 
 VI. — Of Chavf/ing by a Codicil^ not executed accord- 
 ing to the Statute of Frauds . . .109 
 VII. — Of withdrawing one of two Funds charged with 
 
 Legacies . . . .112 
 
 VIII. — OfMevoking by a Codicil, not executed according 
 to the Statute, Legacies charged by the Will 
 on Real Estate . . . .113 
 
 IX. — Of Substituting and Adding Legacies by a Codicil 114 
 X. — Of Legacies charged on Land devised for Life, 
 icith Remainders over ; or charged on a Re- 
 mainder, or Reversion in Fee, expectant on an 
 Estate for Life . . .116 
 
 XL — Purchase of Estate charged . . .117 
 
 XII. — Of Legal and Equitable Charges . .119 
 
 XIII. — Of the Failure of Real Estate charged ivith 
 
 Legacies . . . .121 
 
 1. When the Testators Personalty is charged on 
 
 failure of that Real Fund . . . ib. 
 
 2. When the Real Estate alone is charged . 124 
 XIV. — Of the sinking of a Legacy into the Inheritance, 
 
 on the death of the Legatee before the time of 
 Payment . . . .125 
 
 XV. — Miscellaneous Points of the General Subject . 129
 
 to NT E NTS. Xlll 
 
 CHAPTER VII. 
 
 OF AN ANNUITY DEVISED, AND BY THE WILL CHARGED ON 
 REAL ESTATE. 
 
 PAriK. 
 
 Section I. — Liability of Testator's Personal Estate to pay 
 the Annuity ; and on a Revocation of the 
 Will hy a Codicil . . .132 
 
 II. — Liahility of Annuitant to pay Land-Tax . L34 
 
 III. — Remedy to obtain Payment of the Annuity . 1.35 
 IV. — Remedy to obtain Payment of an Annuity^ 
 
 charged on an Incorporeal Hereditament . 136 
 
 V. — Interest on Arrears of an Annuity . .138 
 
 VI. — 8ale of the Estate charged . . .139 
 
 VII. — Charge on Renewable Leaseholds . .140 
 
 VIII. — Apportionment . . . . ib. 
 
 IX. — Miscellaneous Points of the General Subject . 141 
 
 CHAPTER Vin. 
 
 OF PROPERTY BY OR IN THE COURTS OF LAW AND OF EQUITY 
 HELD TO BE ASSETS. 
 
 Section I. — Of Property by or in a Court of Law held to be 
 
 Assets . . . .143 
 
 II. — Of Property by or in a Court of Equity held to 
 
 be Assets . . . . 148 
 
 CHAPTER IX. 
 
 OF PERSONAL AND REAL ASSETS. 
 
 Section I. — Of Personal Assets . . . . 151 
 
 IL— Of Real Assets . . . . 152
 
 XIV CONTENTS. 
 
 CHAPTER X. 
 
 OF paraphernalia; of a wife's personal chattels, made 
 
 BY MARRIAGE THE PROPERTY OF HER HUSBAND; AND OF 
 PERSONAL CHATTELS WHICH ARE THE SEPARATE PROPERTY 
 OF A WIFE. 
 
 PAGE, 
 
 Section I. — Of Paraphernalia . . . . 158 
 
 II. — Of a Wfes Personal Chattels, made hy Marriage 
 
 the Property of her Husband . .163 
 
 III. — Of Personal Chattels, rchich are the separate 
 
 property of a Wife . . .164 
 
 CHAPTER XI. 
 
 of A RENT-CHARGE OF A WIFE; OF HER TERMS OF YEARS; 
 AND OF HER CHOSES IN ACTION. 
 
 Section I. — Of a Rent-charge of a Wife 
 
 II. — Of the Terms of Years of a Wife 
 
 1. Of a Legal Estate in possession . 
 
 2. Of an Equitable Estate in possession . 
 
 3. Of a Possibility under an Executory Devise 
 
 168 
 170 
 
 ib. 
 172 
 
 ib. 
 
 III. — Of Choses in Action of a Wife . .174 
 
 CHAPTER Xn. 
 
 OF CERTAIN PROPERTY HELD TO BE PERSONAL ESTATE OF A 
 PERSON DECEASED; AND OF RENT, EMBLEMENTS, AND 
 MORTGAGE-MONEY. 
 
 Section I. — Of certain Property held to he Personal Estate 
 
 of a person deceased . . .182 
 
 IL— Of Rent . . . . 185 
 
 III. — Of Emblements . . . 186 
 
 IW .—Of Mortgage-Money . . . 192
 
 CONTENTS. XV 
 
 CHAPTER XIII. 
 
 OF HEIR-LOOMS AND CERTAIN OTHER CHATTELS. 
 
 PAGE. 
 
 Section I. — Of Heir- Looms ■ . . .193 
 
 II. — Of certain other Chattels . . . 198 
 
 CHAPTER XIV. 
 
 OF CONVERSION, BY WILL, OF REAL ESTATE INTO PERSONAL, 
 AND OF PERSONAL INTO REAL ESTATE. 
 
 Sect. I. — Of Conversion of Realinto Personal Estate . 201 
 
 1. Conversion for a limited purpose only . . ib. 
 
 2. Conversion for all the purposes of the Will ; the 
 
 Testator creating a Trust to sell Heal Estate, 
 and meaning to dispose of the whole produce of 
 the Sale, but to dispose of it as property distinct 
 from his general Personal Estate . . 203 
 
 3. Conversion for all the purposes of the Will; the 
 
 Testator creating a Trust to sell Real Estate, 
 and meaning to dispose of the whole produce of 
 the Sale, and to dispose of it, as, for the pur- 
 poses of his Will, a part of his general Personal 
 Estate .... 204 
 
 4. Conversion out and out . . . 20.5 
 
 5. Of the Quality, real or personal, of the Interest, 
 
 that, under a Trust for Sale, results to the Tes- 
 tator s Heir at Law . . . 20G 
 II. — Of Conversion of Personal into Real Estate . 211 
 
 CHAPTER XV. 
 
 OF STATUTES 3 & 4 WILLIAM AND MARY, C. 14; 47 GEORGE III., 
 ST. 2, C. 74; AND II GEORGE IV. AND I WILLIAM IV., C. 47. 
 
 Sect. I.— Statute 3 8f 4 William and Mary, c. 14: . 214 
 
 IL— Statute 47 Georf/e III., st. 2, c. 74 . . 225 
 
 III. -Statute 11 George IV. and 1 William IV., c. 47 . 228 
 
 b
 
 XVI CONTENTS. 
 
 CHAPTER XVI. 
 
 PACF. 
 
 OF ASSETS, WHICH CONSIST OF PROPERTY OUT OF ENGLAND *235 
 
 CHAPTER XVII. 
 
 OF PROPERTY, WHICH IS NOT ASSETS . . 239 
 
 CHAPTER XVIII. 
 
 OF PROBATE OF A WILL; OF LETTERS OF ADMINISTRATION; 
 AND OF AN INVENTORY. 
 
 Section 1. — Of Probate of a Will ; of Letters of Adminis- 
 j tration . . . . 243 
 
 II. — Of an Inventory . . . 255 
 
 CHAPTER XIX. 
 
 OF FUNERAL AND TESTAMENTARY EXPENSES . . 257 
 
 — ^^ — -f' 
 
 CHAPTER XX. 
 
 OF RETAINER BY EXECUTOR, HEIR, AND DEVISEE. 
 
 Section I. — Of Retainer hy Executor . . 263 
 
 II. — Of Retainer hy Heir or Devisee . . 272 
 
 CHAPTER XXI. 
 
 of the order in which THE DEBTS OF A PERSON 
 DECEASED ARE PAYABLE OUT OF HIS LEGAL 
 ASSETS ..... 274
 
 CONTENTS. XVU 
 
 CHAPTER XXII. 
 
 of the power of an executor to exercise a 
 
 preference between creditors. 
 
 page- 
 Section I. — Of the Power of an Executor, where certain 
 Creditors are of equal degree, and he is not sued 
 by either, to pay one in preference to another 285 
 II. — Of the Power of an Executor, where Creditors 
 are of equal degree, and he is sued at Laio or 
 in Equity, to pay one iii preference to another 286 
 III. — Of the Power of an Executor to confess Judg- 
 ment to one Creditor, and plead it to Action 
 brought by another Creditor . . 288 
 
 CHAPTER XXHI. 
 
 OF PRIORITY between TWO CREDITORS, BY ONE OR 
 BOTH OF WHOM THE EXECUTOR IS SUED AT LAW 
 OR IN EQUITY . . . . . 290 
 
 CHAPTER XXIV. 
 
 OF PRIORITY BETWEEN TWO CREDITORS, BY ONE OF 
 WHOM THE EXECUTOR IS SUED AT LAW, AND BY 
 THE OTHER IN EQUITY. 
 
 Section I. — Of the Equality of a Judgment at Law, and a 
 
 Decree in Equity . . • 292 
 
 II. — Of an Injunction by Equity, to restrain a Cre- 
 ditor's Action at Law . . . 293 
 III. — Of Cases tvherein a Creditor's Action at Laio is 
 
 unimpeded and favoured in Equity . 298
 
 XVlll CONTENTS. 
 
 CHAPTER XXV. 
 
 OF THE COSTS OF AN ACTION BROUGHT BY A CRE- 
 DITOR AGAINST THE EXECUTOR; AND OF THE 
 executor's liability, in CERTAIN CASES, TO 
 PAY OUT OF HIS OWN PROPERTY, SOMETIMES 
 THE COSTS, AND SOMETIMES BOTH DEBT AND 
 COSTS ..... 301 
 
 CHAPTER XXVI. 
 
 OF A lessor's ACTION FOR RENT, AND ON COVENANTS, 
 UNDER A LEASE FOR YEARS. 
 
 Sect. I. — Of a Lessor's Action for Rent., due after the 
 
 Lessee has assigned the Term . . 306 
 
 II. — Of a Lessor's Action for Rent, due before the 
 
 Lessees Executor has assigned the Term . 307 
 
 III. — Of a Lessor' s Action on Covenants, broken before 
 
 the Lessee's Executor has assigned the Term . 31 1 
 IV. — Of a Lessor's Action for Rent, due after the 
 
 Lessee's Executor lias assigned the Term . 314 
 
 V. — Of a Lessor's Action on Covenants, broken after 
 the Lessee, or his Executor, has assigned the 
 Term . . . .315 
 
 CHAPTER XXVII. 
 
 OF equitable ASSETS . . . . 317
 
 CONTENTS. XIX 
 
 CHAPTER XXVIII. 
 
 OF MARSHALLING ASSJETS. 
 
 PAGE. 
 
 Section I. — Of the General Principles of Marshalling two 
 
 Funds . . . . 329 
 
 II. Of Marshalling for Creditors . . 331 
 
 1. For Simple Contract Creditor's, where Creditors 
 
 hy Specialty have taken the Personal Assets . ib. 
 
 2. For Specialty or Simple Contract Creditors ; or, 
 
 as the Case may be, for both of them . . 335 
 
 3. For Creditors, where the Funds to be Marshalled 
 
 consist of Legal and Equitable Assets . 337 
 
 III. — Of Marshalling for Legatees . . . 340 
 
 1. When Legacies are bequeathed out of Personalty 
 
 only, and Real Estate is beneficially devised or 
 descends . . . . . 341 
 
 2. When bequeathed out of Personalty only, and a 
 
 debt, secured by Mortgage of Peal Estate, is paid 
 out of the Personal Assets . . 342 
 
 3. When bequeathed out of Personalty only, and the 
 
 Purchase-money of Real Estate, bought by the 
 Testator, is paid out of his Personal Assets . ib. 
 
 4. IVhen bequeathed out of Personalty only, and the 
 
 Will devises Real Estate in Trust for, or charges 
 Real Estate with, the payment of debts, including 
 debts by simple contract . . . 343 
 
 5. When some are bequeathed out of Personalty only, 
 
 and others are charged on, as an auxiliary fund. 
 Real Estate . . . . 344 
 
 G. When, by the death of the Legatee before the time 
 of payment, the Legacy is sunk into Real Estate, 
 charged, as an auxiliary fund, with the payment 
 of it . . . . .345 
 
 7. When a Legacy bequeathed to Charitable Uses is 
 
 void under the Statute 9 George II. c. 36 . 346 
 
 IV. — Of Marshalling for a JVidoit, in respect of her 
 
 Paraphernalia . . . . 353
 
 XX CONTENTS. 
 
 CHAPTER XXIX. 
 
 OF EXONERATION OF REAL ESTATE. 
 
 PAGE. 
 
 Section I. — Of Exoneration of Land Mortgaged . . 356 
 
 1. Of Exoneration out of the Assets of the original 
 
 Mortgagor . . . . 357 
 
 2. Of Exoneration out of the Assets of the Heir at 
 
 Law, or Devisee, of the original Mortgagor . 360 
 
 3. Of Exoneration out of the Assets of a Purchaser 
 
 of the Mortgaged Land . . . 362 
 
 4. Of Exoneration out of the Assets of one, whose 
 
 Covenant to pay the Mortgage-money is a Surety 
 only for the Land . . • . 363 
 
 5. Of Exoneration out of the Assets of a Hushand, 
 
 who has tnortgaged his Wifes Estate . . ih. 
 
 6. Of the Title of a Devisee of Mortgaged Land to 
 
 Exoneration out of Freehold Land descended, or 
 Land devised, hi Trust for, or charged with, the 
 payment of debts . . . 366 
 
 7. Of the Title of a Devisee of Mortgaged Land to 
 
 contribution f'om other Land devised . . ib. 
 
 8. Of the Title of an Heir at Law of Mortgaged 
 
 Land to Exoneration out of Real Estate, charged 
 
 hy the Ancestors Will with the payment of debts 367 
 
 9. Miscellaneous Points of the general subject of Ex- 
 
 oneration of Mortgaged Land . . ib. 
 
 II. — Of Exoneration of Land Charged; lohere the 
 principle, on which Mortgaged Land is cx- 
 07ierafed, is inapplicable . . . 368 
 
 III. — Of Exoneration of Land Devised, charged 7cith 
 debts, or legacies, ivhere the Devisee gives a 
 Bond, or Promissory Note, to pay a debt or 
 legacy charged . . . 372 
 
 IV. — Of Exo7ieration of Land descended; lohere a 
 
 Bond debt is paid hy the Heir . . 373
 
 CONTENTS. xxi 
 
 CHAPTER XXX. 
 
 PAGE. 
 
 OF THE ORDER IN WHICH ASSETS ARE, BY A COURT 
 
 OF EQUITY, TAKEN TO PAY DEBTS . . 374 
 
 CHAPTER XXXI. 
 
 OF TACKING TO A MORTGAGE. 
 
 Section I. — Of the Principle of Tacking . . 388 
 
 II. — Of the Tacking of Costs or Expenses . . 389 
 
 III.— Of the Tacking of a Bond Debt . . 390 
 
 IV. — Of the Tacking of a Simple Contract Debt . 393 
 
 V. — Of the Extension of the Principle to compel, 
 
 1. A Redemption of a different Mortgage of different 
 
 Land . . . . . 394 
 
 2. A Redemption of the whole of one Mortgage . 395 
 
 CHAPTER XXXII. 
 
 OF THE PRIORITY OF SUCCESSIVE INCUMBRANCERS OF 
 THE SAME LAND. 
 
 Section I. — Of the Rule, Qui prior est tempore potior est 
 
 jure . . . .397 
 
 II. — Of the Principle, on which the Exceptions to 
 
 that Rule are grounded . . . 398 
 
 III. — Of several of the Exceptions themselves . 406 
 
 IV. — Of certain Cases, in which an Incumbrancer, 
 although he has the Laio on his side, may not 
 have an equal Equity . . .418
 
 XXll CONTENTS. 
 
 PAGE, 
 
 V. — Of other Cases, hi. which an Incumbrancer, 
 although he has the Law on his side, mag not 
 have any Equity . . . 420 
 
 VI. — Of two Cases, where a Mortgagee of the Legal 
 Estate may not come ivithin the Principle of 
 Tacking, and tvhere, in consequence, a subse- 
 quent Incumbrance acquired by him may not 
 be entitled to Priority before an intervening 
 Incumbrance . . . 423 
 
 CHAPTER XXXIII. 
 
 OF A mortgagee's WILL, DISPOSING OF THE MORTGAGED 
 PROPERTY, OR MONEY SECURED BY IT. 
 
 Section I. — Of Disposing of the Land contained in a Mort- 
 gage in Fee . . . . 424 
 II. — Of Disposing of the Money secured by the like 
 
 Mortgage . . .430 
 
 III. — Of a Mortgage for Year's . . . ib. 
 
 IV. — Of the Interest of Mortgage- Money . 431 
 
 V. — Of a Mortgage, of which the Equity of Redemp- 
 tion is foreclosed . . . 432 
 
 CHAPTER XXXIV. 
 
 of the statute of limitations, 21 JAMES I., c. 16. 
 
 Section I. — Certain Enactments of the Statute . . 433 
 
 II. — Of the Time from which the Statute runs . 434 
 
 III, — Of an Executor's commenciivg a new Action 
 
 under Section IV. of the Statute . . 437
 
 CONTENTS. XXlll 
 
 I'AUl.. 
 
 IV. — Of an Acknowledgment oj\ and Promise to jutt/ 
 a Debt ; and of the Statute, 9 George IV. 
 c. 14, called Lord Tenterdens Act . 438 
 
 V. — Of the Poiocr of an, Execidor to revive a Debt 
 
 barred by the Statute . . . 447 
 
 VI. — Of the Poiver of an Executor to waive the pro- 
 tection of the Statute . . . 449 
 VII. — Of the Effect of the Statute in certain Cases of 
 
 Trust .... 453 
 
 VIII. — Of Cases, where the Statute has become a Bar 
 
 pending a Suit in Equity . . . 455 
 
 CHAPTER XXXV. 
 
 OF THE SATISFACTION OF A DEBT BY A LEGACY . 460 
 
 CHAPTER XXXVI. 
 
 OF AN ' EXTINGUISHMENT, OR RELEASE, OF A DEBT 
 
 BY A TESTAMENTARY ACT. . . . 469 
 
 CHAPTER XXXVII. 
 
 OF AN executor's ALIENATION OF ASSETS. 
 
 Section I. — Of the General Power of an Executor before 
 
 Probate . . . . 473 
 
 II. — Of an Executor's Power, at Law and in Equity, 
 
 over Assets .... 475 
 III. — Of taking Assets in Execution for the Private 
 
 Debt of the Executor . . . 482
 
 XXIV CONTENTS. 
 
 PACC. 
 
 IV. — Of followhirj Assets ; and of the interference of 
 
 Tlquitij against an Executor's disposal of them 484 
 
 1 . When Assets are aliened hy ike Executor . . ib. 
 
 2. When Money is hy the Executor laid out in a Ptir- 
 
 chase of Land or other property . . 492 
 
 CHAPTER XXXVIII. 
 
 OF THE PERSONAL LIABILITIES OF AN EXECUTOR. 
 
 Section I. — A general Vieic of the Subject of this Chapter . 494 
 II. — Of an irregidar Preference of a Creditor . 501 
 
 III. — Of accepting Security in place of Payment of a 
 
 Debt . . . . . 503 
 
 IV. — Of an Execiitofs Promise to pay a Debt . 504 
 
 V. — Of an Executoj^s Liability for Lnterest . 512 
 
 VI. — Of accounting for Profits made of the Testator'' s 
 
 Estate . . . .516 
 
 VII. — Of Losses in case of Loan or Investment . 517 
 
 VIII. — Of parting zvith Property to a Co-Executor . 520 
 IX. — Of an Executor'' s Liability for Property placed 
 
 2oith Bankers . . . . 525 
 
 X. — Of an Executor'' s continuing the Trade of his 
 
 Testator . . . .527 
 
 1. When this continuance of the Trade is not directed 
 
 by the Will of the Testator . . ib. 
 
 2. When it is so directed . . . 532 
 XI. — Of an Executor's Liability, where he is obliged 
 
 to refund Money received, and afterwards 
 paid aivay hy him . . . 534 
 
 XII. — Of Submission to Arbitration . . . 535 
 
 XIII. — Of an Executor s Liability in certain instances of 
 
 Trusts . . . .538
 
 CONTliNTS. XXV 
 
 PACE 
 
 XIV. — Of an Executor^ s concurring in certain Acts . 539 
 
 1. IVJien the Act is the Signing of a Receipt . 540 
 
 2. When, by the Act concurred in, money comes into 
 
 the hands of one of several Executors or Trustees 542 
 
 3. When this Act, hy which an Executor or Trustee 
 ^ obtains possession of Money, is the Selling out of 
 
 Stock ..... 544 
 XV. — Of Admissioji and Evidence of Assets . . 547 
 XVI. — Of paying Legacies before Debts . . 550 
 
 XVII. — Of instances laliere an Executor^ s Liahility is not 
 
 incurred .... 556 
 XVIII. — Of a Clause of Indemnity in a Will . . 557 
 
 CHAPTER XXXIX. 
 
 OF INTEREST ON DEBTS. 
 
 Section I. — Of allovnng Interest in a Court of Law . . 560 
 IL — Of alloioing Interest in a Court of Equity . 571 
 
 CHAPTER XL. 
 
 OF DEBTS PAYABLE OUT OF A SEPARATE ESTATE, 
 
 THE ASSETS OF A MARRIED WOMAN . . 577 
 
 NAMES OF CASFS . . . . 583 
 
 INDEX . . . . . . 611
 
 CORRECTIONS. 
 
 Page 7, n. (p). — By a late Act, 1 William IV. c. 47, s. 10, the parol is now not 
 allowed to demur, in cases of action or suit by or against an 
 infant. See p. 233. 
 
 158. — In line 18, omit the word namely, and place it before the word convenient 
 in line 20. 
 
 214. — In line 5, for 74 read 14.
 
 A 
 TREATISE 
 
 THE LAW OF ASSETS^ 
 
 &c. 
 
 CHAPTER I. 
 
 OF CERTAIN KINDS OF DEBTS. 
 
 Section I. — 1. Debts of Record. — 2. Debts by Specialty. - 
 3. Debts by Simple Contract. 
 
 II. — Debt secured by Mortgage. 
 
 III. — Debt contracted by a Breach of Trust. 
 
 SECTION I. 
 
 1. Debts of Record. — 2. Debts by Specialty. — 3. Debts by 
 Simple Contract. 
 
 1. Of debts, some are called debts of record, some by special 
 contract or specialty, and others debts by simple contract (a). 
 
 When a debt is by action at law recovered by judo^ment of 
 a Court of Record, or is acknowledged by a common law re- 
 cognizance, recorded by enrolment in a Court of Record, such 
 
 {a) 2 Bl. Com. 464, 465„ 
 B
 
 2 DEBTS BY SPECIALTY. [CH. I. 
 
 judgment debt and debt by recognizance are each of them a 
 debt of record (/>). 
 
 2. A creditor whose debt is secured by an instrument under 
 hand and seal, as by a bond or other deed, or by an instrument 
 under hand and seal only, and which is not a deed, because it is 
 not delivered as a deed (c), is a creditor by special contract, and 
 the money so secured is therefore a specialty debt (d). Several 
 instances occur in which a creditor, whose debt was secured by 
 deed, or an instrument under hand and seal, has been held to 
 be a specialty creditor (e). A covenant is a species of contract. 
 But a contract entered into by a person cannot be a covenant, 
 on which an action of covenant will lie against him, unless he 
 contracts by deed executed by him {J") ; except in particular 
 
 (6) 4 Co. 60, Hob. 195, 196, Vaugh. 
 102, 103, 2 Bl. Com. 465, 511 ; Bothomly 
 V. Lord Fairfax, 1 P. W. 334, 2 Vern. 
 750. See Fothergill v. Kendrick, 2 Vern. 
 234. On the meaning of the word Record, 
 and the expression ' Court of Record,' see 
 Glanvil, lib. 9, c. 9, 10, 11, Co. Litt. 
 117 b., 251b., 260 a., 3 Inst. 71,SpeIm. 
 Gloss. Recordum ; also Dougl. Rep. 5; 
 and Glynn v. Thorpe, 1 Barn. & Aid. 
 153 ; and Rex v. Bingham, 3 Y. & J. 
 101. A matter of record, as a fine, and 
 a deed recorded, are distinguishable. 
 Co. Litt. 251 b. ; see also 283 a. The en- 
 rolment of Recognizances is governed by 
 the statute law ; 23 H. VIII. c. 6 ; 29 C. II. 
 c. 3, s. 18; and 8 G. I. c, 25. But the 
 enrolment of deeds is, it is observable, of 
 great antiquity in this country, and was 
 probably not introduced by the legislature. 
 It is recommended by Britton, p. 101, ed. 
 1640, and Fleta, lib. 3, c. 14, p. 200, ed. 
 1685, as a means to preserve evidence of 
 the contents of the deed. On the subject 
 of admitting a copy of an enrolled deed 
 to be evidence, see Smartle v. Williams, 
 
 3 Lev. 387; Holcrofi v. Smith, 2 Freem. 
 259, 260 ; and 1 Phil, on Evid. 6th ed. 
 442. 
 
 (c) Co. Litt. 35 b. ; Brown v. Vawser, 
 
 4 East, 584 ; Clement v. Gunhonse, 5 
 
 Espin. Rep. 83 ; Shep. Touch. 57, 60, 
 where it is said, " Note, that albeit a 
 writing, that is not sealed and delivered, 
 may not be used nor pleaded as a deed, 
 yet it may serve and be used as an evidence 
 and proof of the agreement contained 
 therein. And whatsoever may be done 
 by word, without any writing, may much 
 more and better be done by writing 
 [though] unsealed ; or sealed, though it 
 be not delivered." When it is said that 
 a deed is " executed," the ordinary mean- 
 ing of the expression is, that it is sealed 
 and delivered. Cecil v. Butcher, 2 J. & 
 W. 571. See on the delivery of a deed. 
 Doe V. Knight, 5 B. & C. 671 ; and on 
 sealing and delivering, Ex parte Hodgkin- 
 son, 19 Ves. 296. 
 
 (d) 2 Bl. Com. 465 ; Plumer v. Mar. 
 chant, 3 Burr. 1380 ; Gifford v. Manley, 
 Cas. T. Talb. 109. 
 
 (e) Marriott v. Thompson, Willes, 186, 
 1 89 ; Primrose v. Bromley, 1 Atk, 89 ; 
 Musson V. May, 3 Ves. & B. 194 ; Tanner 
 v.Byne, 1 Sim. 160 ; Mavor \. Davenport, 
 2 Sim. 227. 
 
 (/) Fitzh. N. B. 145, 146, and ed. 
 1730, 340, 341, 343 ; Metcalfe v. Bycroft, 
 6 M. & S. 75 ; Burnett v. Lynch, 5 B. 
 & C. 589, 602, 609.
 
 S. II.] DEBTS BY SPECIALTY. 3 
 
 cases (g). It seems, however, that, in some instances, by means of 
 a deed, and the agreement of a person to it, an action of debt will 
 lie against this person, although he never executed the deed (A). 
 And where such deed and agreement will support an action of 
 debt, the creditor appears to be a creditor by specialty (i). The 
 word covenant, when unexplained, commonly signifies a contract 
 entered into by deed (/<). A creditor, whose debt is secured by a 
 covenant, is a creditor by specialty (/). " If a covenant is broken, 
 though the damages are unliquidated, the covenantee is a specialty 
 creditor (m)." A covenant to settle particular land, of which the 
 covenantor is seised, creates in equity a specific lien on it {n). 
 Also a covenant generally to settle land may in equity create a 
 specific lien on land, of which the covenantor is then seised (o) ; 
 or, if he is not then seised of any land, on land which he may 
 afterwards purchase (p). A covenant generally to settle land, 
 and which does not bind any land specifically, makes the cove- 
 nantee a specialty creditor {q). And a contract, which, by the 
 word covenant or agreement, is by deed made to lay out a sum of 
 money in land to be settled, creates also a specialty debt (r). A 
 creditor, whose debt was secured by covenant, has been held to 
 be a specialty creditor, where the covenant was by a lessor, for 
 the lessee's quiet enjoyment during the term [s) ; by the grantor 
 
 (g) Fitzh. N. B. 146, and ed. 1730, 
 343 ; Wade v. Bemhoe, 1 Leon. 2 ; Lord 
 Ewre V. Strickland, Cro. Jac. 240 ; Brett 
 V. Cumberland, Cro. Jac. 399, 521, 1 
 Rol. Abr. 517 ; Wooton v. Hele, 1 Mod. 
 291, 292. 
 
 (h) 38 Edw. III. 8 ; Co. Litt. 231 a; 
 Bro. Abr. tit. Dette, 80 ; Fitzh. Abr. tit. 
 Dette, 117. 
 
 (0 See 2 Bl. Com. 465 ; 3 Bl. Com. 
 155. 
 
 (fc) Fitzh. N. B. 145; 1 Rol. Abr. 
 517 ; 3 Swanst. 647, 648 ; 2 Bl. Com. 
 304 ; 3 Bl. Com. 156, 158. 
 
 (/) Benson v. Benson, 1 P. W. 131 ; 
 
 Earl of Bath v. Earl of Bradford, 2 Ves. 
 
 689 ; Plumer v. Marchant, 3 Burr. 1380. 
 
 .. (to) , Musson V. May, 3 Ves. & B. 
 
 194,197. 
 
 (n) Freemoult x.^Dedire, 1 P. W. 429 ; 
 Finch V. Earl of Winchilsea, ib. 211 , 
 See Bayly v. Ekins, 2 Dick. 632. 
 
 (o) Roundell v. Breary, 2 Vern. 482, 
 cited 3 Atk. 327. 
 
 (p) Tooke V. Hastings, 2 Vern. 97, 
 cited 3 Atk. 329 ; Wilcocks v. Wilcocks, 2 
 Vern. 558 ; Deacon v. Smith, 3 Atk. 323 ; 
 Sowden v. Sowden, 1 Bro. C. C. 582, 1 
 Cox, 165. 
 
 {q) Freemoult V. Dedire, 1 P. W. 429 ; 
 Deacon v. Smith, 3 Atk. 323, 327 ; Cheve- 
 ley V. Stone, 2 Dick. 782. 
 
 (r) Benson v. Benson, 1 P. W. 129. 
 See likewise 3 Atk. 327, 3 Swanst. 647, 
 648, and 19 Ves. 638. 
 
 (s) Earl of Bath v. EarL of Bradford, 
 2 Ves. 587. 
 
 B 'J
 
 4 DKBTS BY SIMPLE CONTRACT. [( H. I. 
 
 of an annuity, that he was seised in fee of the premises charged 
 with it (t) ; and by the grantor in a marriage settlement, that the 
 premises settled were free from incumbrances (w). 
 
 He who contracts a debt by a special contract thereby binds 
 not only himself, but his executors also, although the latter are 
 for such purpose not named in it. But, unless so named, his heir 
 is not bound by it (v). It appears that a specialty debt may be 
 created by an instrument under hand and seal, although it is not 
 a deed {to). And if in such instrument neither the heir nor the 
 executor of the debtor is named, the executor will, and the heir 
 will not, be bound by it (x). 
 
 3. A creditor whose debt is secured by a promise made ver- 
 bally only, and expressed or implied, or by either of the nego- 
 tiable instruments, a bill of exchange or promissory note, or by 
 writing unsealed, is a creditor by simple contract (t/). 
 
 A court of law has, amongst other instances {z), held to be a 
 debt by simple contract, a debt recovered by judgment of the 
 Supreme Court of Jamaica {a). 
 
 Amongst debts held by a Court of Equity to be by simple 
 contract {b), that court has determined to be a debt of this nature, 
 the balance of an open and mutual account, whereof all the par- 
 ticulars were on simple contract (c) : also money that was reco- 
 
 (0 Giles V. Roe, 2 Dick. 570. 
 
 (m) Parker v. Harvey, 11 Vin. Abr. 
 292 ; 2 Eq. Cas. Abr. 460. 
 
 (v) Co. Litt. 209 a., 209 b. ; 1 P. W. 
 721 ; Cros&eing v. Honor, 1 Vern. 180 ; 
 Lloyd V. Thursby, 9 Mod. 463. 
 
 (w) Gifford V. Manley, Cas. T. Talb. 
 109; Brown v, Vawser, 4 East, 584. 
 
 (.t) Gifford V. Manley, Cas. T. Talb. 
 109. 
 
 (y) 2 Bl. Com. 465, 466, 511 ; Wil- 
 liams V. Lticas, 2 Cox, 160, 1 P. W. 5th 
 ed. 430, n. It may here be mentioned, that 
 if a person frame an instrument in a way, 
 so that it may be taken to be either a 
 promissory note or a bill of exchange, the 
 holder is at liberty to treat it either as tiie 
 one or the other. Edis v. Bury, 9Dowl. 
 & Ryl. 492. 
 
 (z) Want v.Swayne, W^illes, 185. 
 
 (a) Walker v. Witter, Dougl. 1,5; 
 Atkinson v. Lord Braybrooke, 4 Campb. 
 380, 1 Stark. 219. 
 
 (6) Hooper v. Eyies, 2 Vern. 3rd ed. 
 480, and n. (2) ; Anon. 11 Vin. Abr. 271, 
 pi. 11; Lord Townshend v. Windham, 2 
 Ves. 1, 4, 7 ; Goodman v. Purcell, 2 
 Anstr. 548 ; Stewart v. Noble, 1 Vern. &. 
 Scriv. 536 ; A lexander v. Holland, 2 Ken- 
 yon, pt. ii. 4. 
 
 (c) Borret v. Goodere, 1 Dick. 428 ; 
 where Lord Camden said, " Indeed, if the 
 account had consisted of particulars, some 
 whereof had been specialty, and some 
 simple contract, yet the balance found 
 due would be a simple contract debt." 
 See also on a balance debt. Ex parte. 
 Hooper, 1 Rler. 7, 9.
 
 S. IJ.] DEBT SECURED BY MORTGAGE. 6 
 
 vered by a judgment or sentence in France {d). And the same 
 court has held, — that where a legacy was bequeathed, and the 
 executor committed a devastavit, such devastavit made the legatee 
 a simple contract creditor of the executor (c) : that where in a 
 marriage settlement a sum of money was made subject to the 
 disposition of the wife, and the husband thereby covenanted that 
 he would not obstruct such disposition, and after the marriage the 
 money was given up by the trustee, and came into the hands of 
 the husband, who died, the wife was not, by means of the cove- 
 nant, or otherwise, a specialty creditor of the husband {f) : and 
 that where, to secure a sum of money, principal and surety jointly 
 enter into a bond, and there is no mortgage to the creditor, or 
 counter bond to the surety, or other assurance which can make 
 the surety a specialty creditor of the principal, and the money on 
 the bond is due in the life time of the principal, the surety is, 
 after the death of the principal, a creditor by simple contract 
 only against his assets, if after the money was due he paid off 
 the bond in the life time of the principal, or after his death {g) ; 
 and that in a case where the plaintiff had joined as surety with 
 the testator in a joint and several bond, and, after the death of 
 the testator, had paid the amount of the bond to the obligee, 
 taking an assignment of the bond ; the plaintiff was not a spe- 
 cialty creditor of the testator (A). 
 
 SECTION 11. 
 
 DEBT SECURED BY MORTGAGE. 
 
 When money is secured by a mortgage of land, as freehold, 
 copyhold, or leasehold, the premises mortgaged are a pledge for 
 a debt (i) ; and a debt exists, although there is no other security. 
 
 ( d) Dupleix v. De Roven, 2 Vern. 540. 
 
 (e) Charlton v. Low, 3 P. W. 328; 
 Pollexfen v. Moore, 3 Atk. 272. See also 
 BathurU's case, 2 Ventr. 40. 
 
 (/■) Lench v. Lench, 10 Ves. 511, 515, 
 521. 
 
 (g-) Copis V. Middleton, 1 Turn. & R. 
 224, cited 4 Russ. 278. 
 
 (/i) Jones V. Davids, 4 Russ. 277. 
 
 (i) 2 P. W. 438 : 1 Atk. 487 ; 2 Atk. 
 435, 437, 445 ; 3 Ves. 131 ; 7 Ves. 336, 
 340 ; Dan. Rep. 336.
 
 DEBT SECURED BY MORTGAGE. 
 
 [CH. I. 
 
 as a bond or covenant, for payment of the money (j). If, be- 
 sides the mortgage, the mortgagor enters into a contract under 
 seal, as a bond or covenant to pay the money, the debt is one 
 by special contract or specialty {k). If there is no such farther 
 security, the debt is by simple contract only (/). 
 
 The debt appears to be of the latter kind, when money is 
 secured by an equitable mortgage, made by a written but un- 
 sealed agreement to mortgage (m) ; or by a deposit of title deeds, 
 accompanied or not accompanied by such an agreement {n). 
 
 That an unwritten agreement to mortgage, accompanied by a 
 deposit of title deeds with the creditor or his agent, may in equity 
 constitute a mortgage, was, after the Statute of Frauds, first decided 
 in Russell v. Russell, where Lord Thurlow affirmed a decision by 
 the Lords Commissioners, Lord Loughborough and Mr. Justice 
 Ashhurst (o). The deposit lets in parol (p) evidence of the intent 
 
 (j) 2 Salk. 449 ; 1 P. W. 294, 295 ; 
 2 P. W. 455 ; 3 P. W^. 360 ; Free. Ch. 
 61 ; Jacob Rep. 239 ; Lloyd v. Thursby, 
 9 Mod. 463. 
 
 (/c) Galton v. Hancock, 2 Atk. 424, 435, 
 436 ; Duke of Ancaster v. Mayer, 1 Bro. 
 C. C. 465 ; Aldrich v. Cooper, 8 Ves, 
 394 , Gifford v. Manley, Cas. T. Talb. 
 109. 
 
 (^) Thomas v. Terreif, 1 Eq. Cas. Abr. 
 139 J Gilb. Eq. Rep. 110; Lloyd v. 
 Thursby, 9 Mod. 463, and stated from 
 M.S. 2 Cruise Dig. 2nd ed. 163 ; War- 
 ing V. Ward, 7 Ves. 332, 336.— 1 Bro. 
 C. C. 464 ; 8 Ves. 394 ; Jacob Rep. 239. 
 
 (m) That this agreement is a mortgage 
 in equity, see Shepherd v. Kent, Prec. Ch. 
 190, Sir Simeon Stuart's case, or Stewart 
 V. Tichborne, cited 3 Ves. 576, 582, 2 
 Sch. &Lef. 381, 383; Ex parte Wills, 
 2 Cox, 233 ; and Ex parte Hodgson, 1 
 Glyn & J. 12, 
 
 (n) On an unsealed written agreement 
 to mortgage, accompanied by a deposit 
 of title deeds, see Ex parte Wetherelt, 11 
 Ves. 398 ; Ex p. Coomhe, 1 1 Ves. 369 ; 
 Ex p. Kensington, 2 Ves. & B. 79 ; Ex p. 
 Coombe, in re Beavan, 4 Madd. 249 ; and 
 
 Exp. Alexander, 1 Glyn & J. 409. 
 
 (o) Russell V. Russell, 1 Bro. C. C. 
 269; cited 9 Ves. 117, 19 Ves. 479, 
 and 2 Sch. & Lef. 383. See Brander v. 
 Boles OT Robs, Prec. Ch.375 ; Gilb. Eq. 
 Rep. 35. See likewise Fitzjames v. Fitz- 
 jam.es, Cas. T. Finch, 10, where, before the 
 Statute of Frauds, a deed was deposited 
 for securing a debt, and the creditor was 
 allowed to retain it until payment. And 
 see farther Brizick v. Manners, 9 Mod. 
 284, cited 12 Ves. 199. 
 
 (p) It may here be remarked, that al- 
 though the word "parol,'' popularly or 
 generally speaking, means verbal or un- 
 written, yet it is sometimes used in the 
 sense of written. " All contracts are, by 
 the laws of England, distinguished into 
 agreements by specialty, and agreements 
 by parol ; nor is there any such third 
 class as contracts in writing. If they be 
 merely written, and not specialties, they 
 are parol." {Rami v. Hughes, 7 Durn. & 
 E. 350, n.). A lease for years written, but 
 not under seal, is a parol lease (Ibid). 
 A lease unwritten, and made verbally 
 only, is a parol lease (Statute of Frauds, 
 29 C. II. c. 3, s. 1, 2 ; 2 Bl. Com. 297).
 
 S. II.] DEBT SECURED BY MORTGAGE. 7 
 
 with which the deposit was made (q). And if this evidence proves 
 an agreement to create by the deposit a present lien on the land, 
 and to execute hereafter a legal mortgage, a Court of Equity will 
 fulfil this intention, and holds that the agreement and deposit do 
 in equity bind, or are a lien on, the land now, and constitute a 
 present equitable mortgage (/•). This doctrine plainly thwarts 
 the object of the third section of the Statute of Frauds; by which 
 section it is enacted, " That no leases, estates, or interests, either 
 of freehold or terms of years, or any uncertain interest, not being 
 copyhold or customary interest, of, in, to, or out of, any mes- 
 suages, manors, lands, tenements, or hereditaments, shall at any 
 
 UnwriUen or verbal evidence, delivered 
 in words spoken by a witness, is called 
 parol evidence (3 Bl. Com. 369 ; 12 Ves. 
 197). To protect certain assurances of 
 land from the fraud and perjury to which 
 they are exposed, when they are made 
 without writing, and they let in verbal or 
 parol evidence to explain them, was the 
 object of the third section of the Statute 
 of Frauds (12 Ves. 197 ; 19 Ves. 211 ; 
 I Rose, 300). Verbal evidence offered 
 in explanation of a will is parol evidence 
 (Lord Falkland v. Beitie, 2 Vern. 337, 
 339 ; Ulrich v. Litchfield, 2 Atk. 373). 
 But written evidence offered for tiie same 
 purpose, and consisting of documents, 
 sealed or unsealed, as deeds, letters, 
 entries, rentals, or papers of any kind, 
 although it may be "in a sense parol" 
 (Bruce v. Denison, 6 Ves. 397), and be 
 sometimes so called (4 M. & S. 556), 
 seems to be most properly denominated, 
 not parol, but extrinsic or collateral evi- 
 dence (Doe V. Brown, 11 East, 441 ; 
 Doe V. Lyford, 4 M. & S. 550). As 
 evidence, which is parol, in the sense of 
 verbal, and is offered to explain an instru- 
 ment, is certainly extrinsic evidence, so 
 this latter comprehensive expression is 
 sometimes used to denote it (Colpoys v. 
 Co^/joj/s, Jacob, 451). " Pleadings," says 
 Sir W. Blackstone, " are the mutual al- 
 tercations between the plaintiff and de- 
 fendant ; which at present are set down 
 
 and delivered into the proper office in 
 writing, though formerly they were usually 
 put in by their counsel, ore lenu^, or viva, 
 voce, in court, and then minuted down by 
 the chief clerks, or prothouotaries ; whence 
 in our old law French, the pleadings are 
 frequently denominated the parol " (3 Bl. 
 Com. 293; 3 Reeves' Hist. 95, 427. 
 See also the statute 36 Edw. III. c. 15, 
 which changed the language of pleading 
 from French to English). At this day 
 pleadings, although now in writing, re- 
 tain, in one instance at least, the name 
 of the parol. For when in an action or 
 suit the plaintiff or defendant is an infant, 
 in many cases " either party may suggest 
 the nonage of the infant, and pray that 
 the proceedings may be deferred till his 
 full age ; or (in the legal phrase) that 
 the infant may have his age, and that the 
 parol may demur, that is, that the plead- 
 ings may be staid ; and then they shall 
 not proceed till his full age, unless it be 
 apparent that he cannot be prejudiced 
 thereby " (3 Bl. Com. 300 ; 2 Inst. 257, 
 291 ; Finch L. 79, 80, ed. 1759, 245, 
 246 ; Markal's case, 6 Co. 3 ; Flasket 
 y.Beehy, 4 East, 485, 1 Smith. 264; 
 Lechmere v. Brasier, 2 J. & ^V. 287). 
 
 (q) 1 Cox, 212 ; 12 Ves. 197 ; 2 Sch. 
 & Lef. 383. 
 
 (r) 1 Cox, 212 ; 19 Ves. 211 ; 1 
 Buck, 526.
 
 8 DEBT SECURED BY MOUTGACxE. [CII. I. 
 
 time after the four and twentieth day of June, 1677, be assigned, 
 granted, or surrendered, unless it be by deed or note in writing, 
 signed by the party so assigning, granting, or surrendering the 
 same, or their agents thereunto lawfully authorised by writing, 
 or by act and operation of law" (5). Lord Thurlow's decision 
 in Russell v. Russell was confirmed by himself, by the like deter- 
 mination in other cases {t) ; and these authorities have been fol- 
 lowed, although with much reluctance, by other judges, in a 
 great number of instances (m) ; many of them in bankruptcy (w), 
 on the mortgagee's petition for payment out of the estate so 
 pledged to him by the bankrupt {w), and where the deposit was 
 of a lease, which contained a clause against assignment without 
 license [x). And the doctrine of Russell v. Russell, although in 
 effect it repeals the Statute of Frauds, is now too firmly established 
 to be shaken by the Courts (y). It has even been "followed in a 
 Court of Law. In Richards v. Borretf, Lord Kenyon observed : — 
 It had been held in Equity, that depositing all, or even part of, the 
 deeds respecting real property, implied an intention of charging 
 the real estates, and gave the party a lien upon them ; and that as 
 this was an equitable action, he would hold the same doctrine [z). 
 
 (s) Stat. 29 C. II. c. 3, s. 3; 1 Cox, 
 212; 9 Ves. 117; 11 Ves. 403; 12 
 Ves. 197; 14 Ves. 607 ; 19 Ves. 211 ; 
 1 Rose, 300. See also the fourth section 
 of the same statute. 
 
 (t) Featherstone v. Fenwick, and Hur- 
 ford V. Carpenter, 1 Bro. C. C. 270, n. 
 
 (u) Plumb V. Fiuitt, 2 Anstr. 438; 
 Birch V. ELlames, ibid. 427 ; Lucas v. 
 Commerford, 3 Bro. C. C. 166, 1 Ves. 
 jun. 235, cited 6 Price, 460, 461 ; 
 Hiern v. Mill, 13 Ves. 114 ; Hawkins v. 
 Ramsbottom, 1 Price, 138 ; Casberd v.Att. 
 Gen. 6 Price, 411, Dan. 238 ; Wiseman v. 
 Westland, 1 Y. & J, 117. See also Hun- 
 key V. Vernon, 2 Cox, 12, and Williams 
 V. Mediicott, 6 Price, 495. 
 
 (v) Ex parte Haigh, 1 1 Ves. 403 ; 
 Ex p. Price, 1 Buck, 221, 3 Madd. 132 ; 
 Exp. Wise, 1 Mont. & M. 65. See Doe 
 V. Roe, 5 Espin. 105. 
 
 ('()) Ex parte Mountfort, 14 Ves. 606 ; 
 Exp. Whitbread, 19 Ves. 209, 1 Rose, 
 299 ; Ex p. Coombe, 4 Madd. 249 ; Ex p. 
 Meux, 1 Glyn& J. 116. 
 
 (r) Ex parte Baglehole, 1 Rose, 432; 
 Exp. Sherman, I Buck, 462; Exp. Abdy, 
 2 Christ. B. L. 2nd ed. 120. See also 
 Doe V. Bevan, 3 M. & S. 353. In Doe 
 V. Hogg, 1 Carr. & P. 160, a deposit of a 
 lease, as security for money borrowed, was 
 held not to create a forfeiture, under the 
 terms of the proviso for re-entry contained 
 in the lease. 
 
 (j/) 1 Cox, 212; 9 Ves, 117; 12 Ves. 
 198; 19 Ves. 212, 479; 1 Mer. 9; 2 
 Ves. & B. 83. 
 
 (s) 3 Espin. Rep. 102. See also Wood 
 V. Grimwood, 10 B. & C. 679, and 
 Sumpter v. Cooper, 2 Barn. 6c Adolph. 
 223.
 
 S. II.] DEBT SECURED BY MORTGAGE. 9 
 
 In Doe V. Hawke^ where a lease for years was devised by a con- 
 ditional limitation, the estate of the devisee was held to be deter- 
 mined by certain acts done by him, and one of these acts was a 
 deposit of the lease, by way of security for money borrowed (a). 
 
 The mere deposit of title deeds, at the time when a debt is 
 contracted or money advanced, is itself evidence of an agreement 
 to pledge the land for security of the money ; and, unless rebutted 
 by other evidence {h), is alone sufficient to establish a present 
 equitable mortgage (c). And with greater reason a present 
 mortgage is effected, if the evidence offered to explain the de- 
 posit proves an express agreement to mortgage (f?). It is, per- 
 haps, not decided that a mere deposit of deeds, unaided by parol 
 evidence, will constitute a mortgage to secure a debt antecedently 
 due {e). But it is clear that parol evidence of the agreement, 
 entered into when the deposit takes place, may make that agree- 
 ment and deposit an equitable mortgage to secure such a debt {f) ; 
 or such a debt, or money advanced when the deposit takes place, 
 and also future advances of money [g) ; or, as the case may be, 
 future advances only [h). 
 
 In Ex parte Langston, a mortgage effected by an unwritten 
 agreement and deposit of title deeds, and made to secure an ante- 
 cedent debt, was allowed to cover money advanced after the 
 deposit; on parol evidence that it was advanced on the faith of 
 this extension of the existing mortgage (z). This decision has 
 been followed in other cases (j). And it is certain that the land 
 
 (a) 2 East, 481. 
 
 (6) 11 Ves.401, 14 Ves. 607 ; Lucas v. 
 Dorrien, 7 Taunt. 278, 1 J. B. Moore, 29. 
 
 (c) 11 Ves. 401, 403 ; 12 Ves. 198 ; 
 17 Ves. 230, 231 ; 19 Ves. 258 ; 2 Ves. 
 & B. 83; 1 Turn. & R. 279; 1 Glyn 
 & J. 242 ; 3 Y. & J. 161 ; Feather- 
 stone V. Fenwick, and HurJ'ord v. Carpen- 
 ter, 1 Bro. C. C. 270, n., cited 14 Ves. 
 607 ; Ex parte Bruce, 1 Rose, 374. 
 
 (d) Ex parte Bruce, 1 Rose, 374. 
 
 (e) See 12 Ves. 198 ; 14 Ves. 607. 
 (/) Edge V. Worthington, 1 Cox, 211 ; 
 
 Ex parte Haigh, 11 Ves. 403 j Ex ;>. 
 
 Langston, 17 Ves. 227, 1 Rose, 26; Ex p. 
 Whitbread, 19 Ves 209, 1 Rose, 299 ; 
 Hockley v. Bantuck, 1 Russ. 141, 144. 
 
 (g) Ex parte Haigh, 1 1 Ves. 403 ; 
 Ex p. Mountfort, 14 Ves. 606 ; Ex p. 
 Warner, 19 Ves. 202, 1 Rose, 286; 
 Ex p. Whitbread, 19 Ves. 210, 1 Rose, 
 299 ; Exp. LInifd, 1 Glyn & J. 389. 
 
 (/i) Ex parte Mountfort, 14 Ves. 606. 
 
 (i) 17 Ves. 227, 1 Rose, 26, cited 
 19 Ves. 479, and 1 Mer. 9. 
 
 {j) Ex parte Whitbread, 19 Ves. 209, 
 1 Rose, 299; Ex p. Lloyd, 1 Glyn & J. 
 389.-2 Ves. & B. 83, 84.
 
 10 DEBT SECURED BY MORTGAGE. [CH. I. 
 
 will be a pledge for the subsequent advance also, if wlien this 
 loan takes place the deeds are re-delivered to the debtor, and by 
 him are then again put into the hands of the creditor, on a verbal 
 agreement to include this money also in the mortgage (A). It is 
 likewise clear that when, after the mortgage, the firm of the 
 creditors is altered, the benefit of the existing mortgage may be 
 extended to the new firm, on parol evidence that, after the 
 change of the partners, it was agreed the mortgage should be 
 a security to the new house {!). 
 
 From a dislike of the doctrine of equitable mortgage, by an 
 unwritten agreement and a deposit of title deeds, the Courts 
 eagerly seize on any circumstance, which may enable them to 
 take a particular case out of the effect of it (m). And, accordingly, 
 several cases are found, in which the circumstances have been 
 held not to create such a mortgage (71). In one of them the 
 deposit was made with the wife of the debtor ( 0) : in another, all 
 the title deeds, except the immediate conveyance in fee to the 
 debtor, were sent to the creditor, to enable him to have a mort- 
 gage prepared ; and it was not the intention of the creditor that 
 he should have a mortgage, till an actual one was executed to 
 him ; and, in the same case, the conveyance in fee to the debtor 
 was deposited with another creditor, as a security, with a promise 
 to send him the other title deeds, but he was not to have an 
 equitable mortgage, till he got possession of the whole of the 
 deeds (p) : and in a third case, where the creditor claimed to 
 be mortgagee for money due previously to the deposit, it was 
 proved the deposit was made, not to secure money before or at 
 the time advanced, but for the purpose of obtaining future 
 credit {q). 
 
 (k) 19 Ves. 210, 479 ; 2 Ves. & B. 84. 
 
 (/) Ex parte Kensington, 2 Ves. & B. 
 79, 84 ; Exp. Lloyd, 1 Glyn & J. 389. 
 
 (in) Ex parte Hooper, 1 Mer. 9, 10 ; 19 
 Ves. 480 ; Bozon v. Williams, 3 Y. & 
 J. 150, 161. 
 
 ()i) Ex parte Finden, 11 Ves. 404 n. ; 
 Exp. Coombe, 17 Ves. 369 ; Exp. Whit- 
 bread, 19 Ves. 209, 1 Rose, 299 ; Ex p. 
 Coombe, in re Beuvan, 4 Matld. 249. 
 
 (o) Ex parte Coming, 9 Ves. 115. 
 
 (p) Ei parte Pearse, 1 Buck, 525. See 
 also on a deposit of part only of title deeds, 
 Exp. Wetherell, II Ves. 398, and Wise- 
 man v. West land, 1 Y. & J. 117. See 
 likewise Fitzjames v. Fitzjames, Cas. T. 
 Finch, 10, — a case before the Statute of 
 Frauds. 
 
 (q) Mountford v. Scott, 1 Turn. & II. 
 274, 3 Mndd. 34.
 
 S. II.] DEBT SECURED BY MORTGAGE. 11 
 
 In Ex parte Bulteel, Lord Thurlow seems to have drawn a distinc- 
 tion between a deposit of title deeds, accompanied by an agree- 
 ment to bind the land now, and an agreement to mortgage, accom- 
 panied by a deposit made for the purpose to enable the creditor 
 to have tiie legal mortgage prepared. The latter agreement and 
 deposit lie appears to have held did not amount to a present 
 pledge of the land, but only to an agreement to pledge the land 
 hereafter, namely, from the time when the legal mortgage should 
 be executed, and therefore did not constitute a present equitable 
 mortgage (r). The same distinction was taken, and the like 
 decision made, by Sir W. Grant in Norris v. Wilkinson [s). On 
 the other hand, an agreement to mortgage, and a deposit of title 
 deeds for the purpose to enable the creditor to have the mortgage 
 prepared, have been held to be a present equitable mortgage, 
 by Sir L. Kenyon in Edge v. Worthington [t), and by Lord 
 Eldon in Ex parte Bruce [u). It is observable that it does not 
 appear that Edge v. JVorthington was cited before Lord Thurlow, 
 or that Sir W. Grant, or Lord Eldon, was aware of the decisions 
 before made on the same point. In the absence of any farther 
 case, the law to be extracted from the conflicting opinions men- 
 tioned, would perhaps rest on this question ; — when on a deposit 
 of title deeds there is proof of a verbal agreement to mortgage, do 
 this agreement and deposit create a present lien on the land, in a 
 case where the time from which the land shall be bound is not 
 expressly mentioned ? There is, however, an additional authority, 
 wherein, of the four cases named, Ex parte Bulteel alone appears 
 not to have been noticed. This authority is Hockley v. Bantock, 
 where Lord Gifibrd decided that the agreement to mortgage, 
 accompanied by a delivery of the title deeds to the creditor's 
 agents, in order that a mortgage deed might be prepared, consti- 
 tuted a present equitable mortgage (f ) ; a decision which adds 
 great weight to the cases before Sir L. Kenyon and Lord Eldon, 
 and has probably settled the law on the subject. 
 
 (r) 12 Cox, 243. 
 
 (s) 12 Ves. 192, cited 6 Price, 459. 
 See also Brander v. Boles, Prec. Ch. 375, 
 Gilb. Eq. Rep. 35, and the King v. Ben- 
 son, cited 6 Price, 467 — 473, and Dan. 
 
 Rep. 250. 
 
 (t) 1 Cox, 211. 
 (w) 1 Rose, 374. 
 (v) I Russ. 141, 144.
 
 12 DEBT CONTRACTED BY A BREACH OF TRUST. [CII. I. 
 
 A deposit by a copyholder of the copies of the Court Rolls, 
 coupled with evidence of a verbal agreement to create a lien on 
 the land, is not distinguishable from the like deposit in the case of 
 freeholds, and is therefore in equity a mortgage (w). 
 
 SECTION III. 
 
 DEBT CONTRACTED BY A BREACH OF TRUST. 
 
 A BREACH of trust may make the trustee a debtor to his cestui 
 que trust. And the debt will in some cases be one by specialty. It 
 may be a specialty debt, if the breach of trust consists of the non- 
 fulfilment of a contract entered into by the trustee under his hand 
 and seal, or by deed (a:). But, except in some cases of a special 
 contract, a breach of trust, generally speaking, creates a debt by 
 simple contract only (?/). 
 
 (w) £.T parte Warner, 1 Rose, 286 ; 
 19 Ves. 202 ; Winter v. Lord Anson, 3 
 Russ. 493. See Eden's Bank. L. 2nd ed. 
 291, n ; where, on citing Exp. Warner, 
 the author adds, " Sed qu. I have been 
 informed by the Deputy-Secretary of Bank- 
 rupts, that the contrary has been de- 
 cided by the Vice- Chancellor, in Ex parte 
 Corrie, re Green, 12th August, 1825." 
 
 (j:) Gifford V, Manley, Cas. T. Talb. 
 109. See, nevertheless, Baily v. Ekins, 
 2 Dick. 632. 
 
 (i/) Gifford V. Manlei), Cas. T. Talb. 
 110; Cox V. Bateman, 2 Ves. 19 j 
 
 Vernon v. Vawdry, 2 Atk. 119, Barn. 
 Ch. Rep. 280, 304 ; Baily v. Ekins, 2 
 Dick. 632 ; Kearnan v. Fitz-Simon, 3 
 Ridgevif, P. C. 1 , 18. See also Barttett v. 
 Hodgson, 1 Durn. & E, 42, and Lord 
 Townshend v. Windharn, 2 Ves. 4, 7. 
 And on the liability of the assets of trus- 
 tees to make good a breach of trust by 
 them, see farther Scurfield v. Howes, 3 
 Bro. C. C. 90 ; Long v. Stewart, 5 Ves. 
 800, n. ; Lord Montford v. Lord Cadogan, 
 17 Ves. 485, 19 Ves. 635, 2 ]\T6r. 3 ; 
 Walker v. Symonds, 3 Swanst. 1 ; and 
 Adair \. Shaw, 1 Sch. & Lef. 272.
 
 CH. II.] 
 
 13 
 
 CHAPTER II. 
 
 CROWN DEBTS. 
 
 SECTION I. 
 
 A PREROGATIVE of the Crown entitles the king to a particular 
 process for the recovery of his debts ; and in many instances to 
 be paid in preference to a subject, vi^ho is a creditor of the same 
 debtor, and who, if the like circumstances lay between subject and 
 subject, would not be liable to the same postponement. A reason 
 assigned for this prerogative is, that Thesaurus Regis est pads vin- 
 culum et hellorum nervi (z) ; a reason that in modern times is 
 better expressed by the comprehensive term, public good (a)» 
 The prerogative mentioned offers a wide field for research into, 
 and investigation of, much law that originated, and became estab- 
 lished, in this country at a distant period; and which modified 
 and illustrated by successive acts of the legislature, and numerous 
 decisions and opinions delivered in the courts of justice, is come 
 down to the present time, and now constitutes a very material 
 part of the law of the land. In this place, however, where the 
 right of the Crown to be paid, and often to be first paid, out 
 of the assets of a person deceased, is the single object that claims 
 direct attention, it is proper to leave unattempted a minute exa- 
 mination of the general subject; and if any departure from the 
 main object of inquiry may here be allowed, to confine that 
 digression to the more prominent parts of the law of crown debts. 
 
 A prerogative of the king in the case of debts due to him may 
 undoubtedly claim a foundation in the common law (b). By this 
 law, before the reign of Henry HI., the king was entitled to 
 
 (s)3Co. 12 b.; 11 Co. 91b. ; Co.Litt. 
 131b.; Godb. 293; Parker Rep. 99. 
 (a) 4 Durn. & E. 410. 
 
 (b) 3 Co. 12 b. ; Parker Rep. 99 ; 3 Bl. 
 Com. 419.
 
 14 CROWN DEBTS. [CH. II. 
 
 execution of the body, and goods, and possession of land, of his 
 debtor (c) ; a remedy which, so far as relates to the possession of 
 land, was not enjoyed by a subject until it was granted to him by 
 the Statute Westminster 11, 13 Edward I. c. 18, which first pro- 
 vided for him the writ of elegit {d). 
 
 Every one, who holds in his hands money that belongs to the 
 crown, is a crown debtor, and subject to the process of the 
 crown {e). 
 
 So soon as by inquisition a person is found indebted to the 
 crown by simple contract, such debt becomes a debt of record {f). 
 
 A person, who gives to the crown a bond on condition, is not a 
 bond debtor of the crown before breach of the condition {g). 
 
 The farther consideration of the law of crown debts may here 
 be prosecuted under the following heads : — 
 
 Sect. II. — O/* certain Enactments in the Statutes 33 Henri/ 
 VIII. c. 39, and 13 Elizabeth, c. 4. 
 III. — Of Lien, and Sale hy the Debtor. 
 IV. — Of Lien, and Debtor^ s Mortgage hy deposit of Title 
 
 Deeds. 
 V. — Of an Extent ; in chief and in aid. 
 VI. — Of a Sale under an Extent. 
 
 VII. — Of certain Titles preferred to the lien of the Crown. 
 VIII. — Of particular instances of Fraud against the 
 Croion, 
 IX. — Of the Debts of a Crown Debtor deceased. 
 
 The reader, who may desire to pursue some additional branches 
 of this law, will find in the late Reports several cases concerning, 
 amongst other matters [h), the affidavit on which to ground an 
 
 (c) 2 Inst. 19; 3 Co. 12 b.; 7 Co. 
 21 b.; 2 Rol. Abr. 158, H. 4 ; Godb. 
 290 ; Com. 437 ; 2 Barn. & Aid. 610, 
 612 ; 3 Bl. Com. 419. 
 
 ((/) 2 Inst. 394 ; 3 Co. 12, 13b. ; 3 Bl. 
 Com. 418. 
 
 (e) Parker Rep. 98 ; 6 Price, 476 ; 
 9 Price, 656 ; Dan. Rep. 256 ; 1 Tyrwh. 
 Rep. 384; 1 Cr. & Jcrv. 408. 
 
 (/) Parker Rep. 98 ; 2 Price, 15 ; 
 6 Price, 474 ; Dan. Rep. 255. 
 
 {g) The King v, Tarkton, 9 Price, 647, 
 1 M'Clel. & Y. 250, n. See The King v. 
 Marsh, M'Clel. Rep. 688. 
 
 (ft) The King V. Williams, M'Clel. 
 67 ; The King V. Wi7ikles, 1 M'Clel. & Y. 
 33; The King v. Marsh, ib. 250; The 
 King V. Cuming, ib. 266 ; The King v.
 
 S. II.] CROWN DEBTS. 15 
 
 extent (i) ; the right of a stranger to attend the inquisition on an 
 extent, and, for the purpose of saving his property from seizure, 
 to assert his claim to it, and support it by evidence (j) ; the right 
 of the crown, on an extent in chief, or in aid, to seize goods, by a 
 subject taken in execution under a writ oiJi.fa. {k); the Statute 
 of Limitation, '21 James I. c. 16 (/) ; partnership property [m) ; 
 wharfinger's lien (») ; principal and surety (o) ; sheriff's pound- 
 age {p) ; landlord's claim for rent against his tenant's property 
 seized {q). 
 
 SECTION II. 
 
 OF CERTAIN ENACTMENTS IN STATUTES 33 HENRY VIII. C. 39, 
 AND 13 ELIZABETH, C. 4. 
 
 An important statute relating to crown debts is the 33 Henry 
 VIII. c, 39 (r). It is enacted, 
 
 By section 50, That obligations to the king shall be of the same 
 
 Slee, ib. 361 ; The King v. Soulby, 1 Y. 
 & J. 249 ; The King v. Bums, ib. 579 ; 
 The King v. Tregoning, 2 Y. & J. 132 ; 
 Attorney General v. Gibbs, 3 Y. & J. 
 333 ; The King v. Jones, 1 Cr. & Jerv. 
 140 ; The King v. Wrangham, 1 Tyrwh. 
 383, 1 Cr.'& Jerv. 408. 
 
 (i) The King v. Mainwaring, 1 Price, 
 202 ; ex parte Hippesleii, 2 Price, 379 ; 
 The King (in aid of Horn) v. Rippnn, ib, 
 398 ; The King (in aid of Stuckey^ v. 
 Gibbs, 7 Price, 633 ; The King (in aid of 
 Lechmere') v. Dineley, 9 Price, 311; The 
 King (in aid of Hill) v. Hornblower, 11 
 Price, 29 ; The King v. Bell, ib. 772 ; 
 The Kingv. Estate of G.Hassell, 13 Price, 
 279, M'Clel. 105 ; The King v. Marsh, 
 13 Price, 826, M'Clel. 688. 
 
 (j) The King v. Bicktey, 3 Price, 454. 
 
 (A.) The King v. Sloper, 6 Price, 114 ; 
 The King (in aid of Pattison) v. Sloper, 
 ib. 144 ; The King v. Giles, 8 Price, 293 ; 
 Swain V. Morland, Gow N. P. Rep. 39, 
 1 Brod. & B. 370, 3 J. B. Moore, 740 ; 
 Giles V. Grover, 1 Y. & J. 232. 
 
 (/) The King v. Morrall, 6 Price, 24, 
 cited 4 B. & C. 151. 
 
 (?n) The King v. Sanderson, Wightw. 
 50 ; The King v. Rock, 2 Price, 198. 
 
 (n) The King v. Humphery, 1 M'Clel. 
 & Y. 173. 
 
 (()) The King V. Estate of G. Hassell, 
 M'Clel. 105 ; Attorney General v. Atkin- 
 son, 1 Y. & J. 207. 
 
 (p) The King V. Villers, Wightw. 95 ; 
 The King v. Bowles, ib. 116; Stevens v^ 
 Rothwell, 3 Brod. & B. 143. 
 
 (q) The King v. De Caux, 2 Price, 17 ; 
 Ex parte Taunton, in The Kingv. Hodder, 
 4 Price, 313 ; The King (in aid ofMytton) 
 V. Hill, 6 Price, 19. 
 
 (r) See generally on the interpretation 
 of this act, Cecil's case, 7 Co. 18 b. ; Lord 
 Anderson s case, 7 Co. 21 ; Foskew's case, 
 2 Leon. 90 ; Trallop's case. Lane, 51 ; 
 Anon. Jenk. Cent. c. 5, ca. 89 ; Attorney 
 General v. Andrew, Hardr. 23 ; Attorney 
 General v. Stonehouse, ib. 229 ; Savile 
 and the Queen.~Mother, ib, 502 ; Anon. 
 Savile, 10, Ca. 25; Anon.ib. 12, Ca. 33 ; 
 The King v, Lanibe, M'Clel. Rep. 402 
 13 Price, 649; The King v. Bell, and The 
 King V. Shackle, 11 Price, 772, 783.
 
 16 OF CERTAIN ENACTMENTS IN [CH. II. 
 
 nature, force, and effect, as the writings obligatory, taken and 
 knowledged according to the Statute of the Staple at Westmin- 
 ster, hath [have] been taken, used, and executed, against any lay 
 person. 
 
 By section 74, That if any suit be commenced, or any process 
 be awarded for the king, for the recovery of any of the king's 
 debts, that then the same suit and process shall be preferred 
 before the suit of any person. And that the king shall have first 
 execution against any defendant before any other person; so 
 always that the king's suit be commenced, or process awarded for 
 the debt at the suit of the king, before judgment given for the 
 said other person. 
 
 By section 75, That all manors, lands, tenements, and here- 
 ditaments, in the seisin of any person, to whom the same manors, 
 &c., shall descend, revert, or remain in fee simple, or in fee tail, 
 general or special, by, from, or after the death of any his ancestor 
 as heir, or by gift of his ancestor, whose heir he is, which said 
 ancestor shall be indebted to the king by judgment, recognizance, 
 obligation, or other specialty, the debt whereof shall not be paid ; 
 that then the same manors, &c., shall be and stand charged and 
 chargeable to and for the payment of the same debt. 
 
 By section 76, That the king shall not be barred to demand 
 and receive his debts against any of his subjects, as heir to any 
 person indebted to the king, albeit this word heir be not in such 
 recognizance, obligation, or specialty; or that any such person 
 or persons shall allege that he or they have not any manors, 
 &c., to them descended, but only such manors, &c., as be en- 
 tailed or given to them by any their ancestors to whom they be 
 heirs. 
 
 By section 77, That the king may at his pleasure demand and 
 recover his debts of and against any executor or executors, ad- 
 ministrator or administrators, of any such person indebted in 
 manner above said, if the same executor or executors, adminis- 
 trator or administrators, shall have assets in his or their hands, in 
 deed or in law. 
 
 By section 80, That if any manors, &c., shall be charged or 
 chargeable with the debt of the king, and shall be in the seisin of
 
 S. II.] 33 H. VIII. C. 39, AND 13 ELIZ. c. 4. 17 
 
 divers and sundry persons, other than the obligor or obligors, 
 that then all and singular the said manors, &c., and every parcel 
 of them, shall be wholly and entirely, and in no wise severally, 
 liable and chargeable to and with the payment of the said debt. 
 
 The chief effects of giving to a bond the force of a statute 
 staple seem to be, to make the debt a debt of record, and to em- 
 power the Crown to seize the whole, and not, as in the case of an 
 elegit., a moiety only of the debtor's land {s). 
 
 On a Crown debt due by a tenant in tail, it was, in Lord 
 Anderson^ s case, resolved : — 
 
 1. That before the statute 33 Henry VIII., if tenant in tail 
 of land became indebted to the king by judgment, recognizance, 
 obligation, or otherwise, and died, the king should not extend the 
 land in the seisin of the issue in tail. 
 
 2. That if tenant in tail becomes indebted to the king by the 
 receipt of the king's money, or otherwise, unless it be by judg- 
 ment, recognizance, obligation, or other specialty, and dies, the 
 land in the seisin of the issue in tail, by force of the said Act 
 33 Henry VIII., shall not be extended for such debt of the king; 
 for the statute extends only to the said four cases, and all other 
 debts remain at common law. 
 
 3. That if tenant in tail becomes indebted to the king by one 
 of the four ways mentioned in the said Act, and dies, and, before 
 any process or extent, the issue in tail bondjide aliens the land in 
 tail, that now this land shall not be extended by force of the said 
 Act 33 Henry VIII.; for, as it appears by the words, it makes 
 the land, in the possession or seisin of the heir in tail, only liable 
 against the issue in tail, and not the alienee {t). 
 
 Another material statute, relating to Crown debts, is the 13 
 Elizabeth, c. 4 (m). This, amongst other clauses, names certain 
 
 (s) Stat. 13 Edw. I. stat. 3, c. 1 ; 
 Stat. 27 Edw. III. Stat. 2, c. 9 ; 2 Bl. 
 Com. 160, 161, 465; Shep. Touch. 353. 
 Of execution under a statute staple, see 
 8 Price Rep. 316, and Shep. Touch. 356. 
 
 (t) 7 Co. 21. 
 
 (it) See generally on the construction 
 of this statute, Sir Christopher Hutton's 
 
 case, stated 10 Co, 55 b. ; case of the 
 Queen, Coxhead, and Bishop of Sartim, 
 Mo. 126 ; Anon. Jenk. Cent. c. 5, ca. 
 89 ; Attorneii General v. Alston, 2 Mod. 
 247; IS'icholU v. How, 2 Tern. 389; 
 Willie V. Fort, 4 Taunt. 334; Ccusberd v. 
 Ward and Attm-ney General, 6 Price, 411,' 
 Dan. 238,
 
 18 OF CERTAIN ENACTMENTS IN ST. 33 H. VIII., &C. [cH. II. 
 
 accountants of the Crown, and renders their land liable to their 
 debts, although they are not bound to the Crown in any obliga- 
 tion. " For the better security," it states, " of the Queen's 
 Majesty, her heirs and successors, against such as shall have the 
 receipt and charge of money and treasure of her Highness, her 
 heirs and successors; Be it enacted, that all lands, tenements, 
 profits, commodities, and hereditaments, which any — treasurer or 
 receiver in or belonging to any of the Queen's Majesty's Courts 
 of the Exchequer, wards and liveries, or duchy of Lancaster, 
 treasurer of the chamber, cofferer of the household to the Queen's 
 Majesty, her heirs or successors, treasurer for the wars, treasurer 
 of any fort, town, or castle, where any garrison is or shall be kept, 
 treasurer of the Admiralty or navy, treasurer, under-treasurer, 
 or other person accomptable to the Queen's Majesty, her heirs 
 or successors, for any office or charge of or within the Mint ; 
 treasurer or receiver of any sums of money imprest {v), or other- 
 wise, for the use of the Queen's Majesty, her heirs or successors; 
 or for provisions of victual, or for fortifications, buildings, or 
 works ; or for any other provisions to be used in any of the offices 
 of the Queen's Majesty's ordnance and artillery, armoury, ward- 
 robes, tents and pavilions, or revels, customer, collector, farmer 
 of customs, subsidies, imposts, or other duties, within any port of 
 the realm ; collector of the tenths of the clergy, collector of any 
 subsidy or fifteen, receiver-general of the revenues of any county 
 or counties, answerable in the receipt of the Exchequer, or in the 
 court of wards and liveries, or the duchy of Lancaster, clerk of 
 the hamper, — now hath, or at any time hereafter shall have, within 
 the time which he or they, or any of them, shall remain account- 
 able; shall, for the payment and satisfaction unto the Queen's 
 Majesty, her heirs and successors, of his or their arrearages, at 
 any time hereafter to be lawfully, according to the laws of the 
 realm, adjudged and determined upon his or their account (all his 
 due and reasonable petitions being allowed) be liable to the pay- 
 ment thereof, and be put and had in execution, for the payment 
 
 (ii) On the term " Imprest," used in tlie Treasury Warrants, and other Govern- 
 ment documents, see 6 Price Rep. 4'24, n.
 
 S. III.] OF LIEN, AND SALE BY THE DEBTOl?. 19 
 
 of such arrearages or debts, to be so adjudged and determined, 
 upon any such treasurer, receiver, teller, customer, collector, 
 farmer, officer, or accomptant, as is before named, in like and in 
 as large and beneficial manner, to all intents and purposes, as if 
 the same treasurer, receiver, teller, customer, farmer, or collector, 
 upon vi'hom any such arrearages or debts shall be so adjudged or 
 determined, had, the day he became first officer or accomptant, 
 stood bound by writing obligatory, having the eff'ect of a statute 
 of the staple, to her Majesty, her heirs or successors, for the true 
 answering and payment of the same arrearages or debts." 
 
 SECTION III. 
 
 OF LIEN, AND SALE BY THE DEBTOR. 
 
 When a person is indebted to the Crown by bond, and in his 
 lifetime an extent in chief is issued, his goods and chattels, in- 
 cluding a term of or leaseholds for years {w), are bound from 
 and including the day on which the extent is taken out ; in other 
 words, from the teste of the writ {x). 
 
 The nature of the lien of a Crown debt on land of inheritance 
 seems to be different in different cases. To many intents, pro- 
 bably, the lien begins from the time when the debtor becomes 
 indebted to the Crown by simple contract, or executes a bond 
 to the Crown, or becomes an accountant within the statute 13 
 Eliz. c. 4. 
 
 Against a purchaser for valuable consideration, and without 
 fraud, and without notice of the debt, or that the vendor holds an 
 office known to the public to be an accountable office, a bond 
 debt appears to be a lien from the time the debtor executed the 
 bond (?/). And against a purchaser for valuable consideration, 
 and without fraud, and without notice of the debt, or that the 
 vendor is an accountant within the statute 13 Eliz. c. 4, a Crown 
 
 (w) Fleetwood's case, 8 Co. 171, cited I 112, 123, 125, 127, 2 Ves. 288, 295. 
 Parker Rep. 103; The King \. Lambe, (y) Stat. 33 IL VIII. c. 39 ; 3 Co. 
 
 M'Clel. Rep. 422. 12 ; Shep. Touch. 359. 361. 
 
 (i) Thf, King V. Cottnn, Parker Rep. ' 
 
 c 2
 
 20 OF LIEN, AND SALE BY THE DEBTOR. [CH. 11. 
 
 debt is a Hen from the time the debtor became an accountant 
 within that statute (?). But against a purchaser for valuable 
 consideration, and without fraud, and without notice of the debt, 
 a lien is not created by a simple contract debt owing to the 
 Crown by a vendor, who does not hold an office known to the 
 public to be an accountable office (a). If the vendor does hold 
 such an office, and which is not within the statute 13 Eliz. 
 c. 4, then his simple contract debt is perhaps a lien, if the pur- 
 chaser has notice that the vendor holds that office (b) : and it 
 seems not to be a lien if the purchaser is unacquainted with 
 this fact(c). And it is presumed to be perfectly clear, that so 
 soon as a simple contract debt is by inquisition made a debt of 
 record, from that time at least a lien is created against a pur- 
 chaser for valuable consideration, and without fraud, and without 
 notice of the debt, or that the vendor holds an office known to 
 the public to be an accountable office {d). 
 
 When a Crown debt is a lien on land, it is a lien on the debtor's 
 freehold (c) land, but not on his copyholds held at the will of the 
 lord (f). In the case of freehold land, the Crown may extend a 
 legal or trust (g) estate, or an equity of redemption (h). And if 
 an accountant within the statute 13 Eliz. c. 4, before he be- 
 came such accountant, by a voluntary settlement settled land 
 to the use of himself for life, remainders over, remainder to his 
 daughter in fee, with power to himself of revocation ; the effect 
 of this power is to render the fee simple liable, both before and 
 after his death, to his Crown debt incurred after such settlement 
 made by him (i). 
 
 (2) Stat. 13 Eliz. c. 4 ; Sir Edward 
 Cuke's case, Godb. 289, cited Hardr. 24 ; 
 Sir Chi'istopher Mutton's case, stated 10 
 Co. 55 b. ; case of the Queen, Coihead, and 
 Bishop of Sarum, Mo. 126 ; Nicholls v. 
 How, or How v. Nicholl. 2 Vern. 389, 
 Prec. Ch 125. 
 
 (a) The King v. Smith, Wightw. 34. 
 
 (fc) lb.; Casberd v. Ward und Attorney 
 General, 6 Price, 411, Dan. 238. See 
 also 8 Co. 171 ; 2 Rol. Abr, 156, B. 1 ; 
 Parker Rep. 103. 
 
 (c) Casherd v Ward, 6 Price, 411, 
 Dan. 238. 
 
 (d) 8 Co. 171 ; 2 Rol. Abr. 156, B. 1 ; 
 Parker Rep. 103. 
 
 (e) M'Clel, Rep. 422. 
 
 (/) 1 Leon. 98; Parker Rep. 195; 
 8 Ves. 394. 
 
 (g) Hardr. 495, 496; 2 Freem. 130, 
 131 ; 3 Ch. Rep. 35; Nels. Rep. 132 ; 
 M'Clel. Rep, 422. 
 
 (/i) The King v. Coombes, 1 Price, 207. 
 
 ( j) Sir Edward Coke's case, Gorib. 289, 
 2 Rol. Rep. 294, Benl. 108, 117, ed. 
 1661, Jenk, Cent. c. 7, ca. 19; cited 
 Hardr. 24, 495, 496, Hob. 339, and 
 Parker Rep. 138.
 
 S. HI.] OF LIEN, AND SALE BY THE DEBTOll. 21 
 
 On the subject of a sale by the debtor, the law applies, 
 
 1. To a Sale of Leaseholds for years. 
 
 2. To a Sale of Freehold Land of Inheritance. 
 
 3. To an attendant Term. 
 
 1. When a person, indebted to the Crown by bond, is pos- 
 sessed of a lease for years, if he, before the teste of a writ of 
 extent by the Crown, for a valuable consideration, and without 
 fraud, sells the lease, such sale is binding on the king, and the 
 land is not now extendable or liable to the debt (j). 
 
 2. When a person is indebted to the Crown by simple con- 
 tract, if the money which constitutes that debt is money come 
 into the hands of an individual holding no office known to the 
 public to be an accountable office, then if while he is so indebted 
 to the Crown by simple contract, and before the debt is by inqui- 
 sition recorded, l).e conveys land to a purchaser for valuable con- 
 sideration, and without fraud, and without notice of the debt, the 
 land so conveyed is not, in the hands of the purchaser, bound by 
 such simple contract debt, and consequently cannot be extended 
 for it (A). 
 
 The following case shews that a purchaser, who takes posses- 
 sion, and pays a part of the purchase-money, and lays out money 
 in improving the pro])erty, before the conveyance is made to him, 
 may be affected by a bond, by the vendor entered into to the 
 Crown more than a twelvemonth after the purchaser took posses- 
 sion. In Bex V. Hollier, application was made to the Court for an 
 amovcas manus, on the behalf of the purchaser of an estate seized 
 luider an extent. The extent had issued against the defendant 
 for a debt of 10,000/. on two bonds to the Crown, dated respec- 
 tively in August, 1813, and July, 1814. Two years and a half 
 before the defendant entered into the first of those bonds, he 
 sold the estate to M., on whose behalf the present application was 
 made, for a sum of money, which was to have been paid by three 
 several payments ; the last of which (4000?.) was payable, by that 
 
 (j) Fleetwood's case, 8 Co. 171, cited I Vern. 389, Piec. Ch. 125. 
 Parker Rep. 103 ; Nicholls v. How, 2 I (/c) The King v. Smith, Wightw. 34.
 
 22 OF LIEN, AND SALK BY THE DEBTOR. [CH. II. 
 
 agreement, liefore the date of tlie first boiul, on the Pith of Fe- 
 bruary, 1812, when M. was let into possession : but a satisfactory- 
 title not having been made, the conveyance was not completed 
 when the extent issued. M. in the meantime having laid out a con- 
 siderable sum of money in improving the property, now applied 
 that he might be permitted to pay the remainder of the purchase- 
 money to the Crown, or that he might be permitted to give up 
 his claim to the estate, on satisfaction being made to him. The 
 Crown, it was stated, had also seized other property of the de- 
 fendant, to the amount of more than 6000/. The Court said, 
 that they could not make any order in such a case, for that it was a 
 matter of arrangement with the Crown ; and they asked, why the 
 applicant did not plead ; to which it was answered, that he was pre- 
 cluded by his want of legal title. Per Curiam. — The object of 
 this motion can only be effected by the consent of the Crown (I). 
 
 In Wilde v. Fort, where at law a purchaser of a freehold ground- 
 rent recovered back his deposit on certain objections to the title, 
 one of those objections was, that the vendor was indebted to the 
 Crown in the character of an accountant, within the statute 13 
 Eliz. c. 4 {in). On a sale of land by a person indebted by bond 
 to the Crown, as by a receiver-general of the land-tax, and of 
 the assessed taxes of a county, an act of parliament is on some 
 occasions obtained, to enable the land to be sold free from the 
 Crown's lien upon it {n). 
 
 3. The following cases occur on a term of years attendant 
 on the inheritance. — 
 
 In The King v. Jolm Smith, W. T., being seised in fee simple, 
 created in 1721 a term of 500 years, which by successive as- 
 signments became, on the 10th of October, 1795, assigned by 
 A. C. to C. G., in trust to attend the inheritance and protect it 
 against incumbrances. Before and at this time J. M. was seised 
 in fee, subject to the term. By lease and release of 9th and 10th 
 October, 1795, the fee simple was bond fide purchased of J. M. by 
 J. S. for a valuable consideration, and conveyed by J. M. to J. S. 
 
 (/) 2 Piicc, 394. I («) Ai-ts of this kind are, 7 G. IV 
 
 {m) 4 Taunt. 334. | c. 12, and c. 28.
 
 a. III.] OF LIEN, AND SALE BY THE DEBTOR. 23 
 
 and G. S., and their heirs, to the uses in the same release mentioned ; 
 at the time of which conveyance neither C. G., nor J. S., nor G. S. 
 liad had any notice that J. M. was a debtor or an accountant to the 
 king. J. M., the vendor, had been engineer in the service of govern- 
 ment in North America, and first became indebted to the king in 
 1778, and, on an extent issued in 1798, it was found that J. M. 
 owed vast sums to government ; a great balance remaining in his 
 hands, which he had not accounted for. On these facts, the Court 
 of Exchequer, in 1804, decided that the term of years, which, 
 on the purchase by J. S., was assigned to his trustee, in trust to 
 attend the inheritance and protect it against incumbrances, did 
 not protect it against the Crown debts mentioned, and that, con- 
 sequently, the fee simple might be extended notwithstanding 
 such term (o). In this case it is observable the term of years was 
 held in trust for J. M., the vendor, at the time of the sale by him 
 to J. S. (p), — a circumstance that essentially distinguishes it from 
 the later case of The King v. Lamhe [q). 
 
 In The King v. St. John, H. B. D. became indebted to the 
 Crown by bond, dated 24th September, 48 Geo. III. (1808). He 
 afterwards became seised in fee of certain messuages and premises 
 conveyed to him absolutely by lease and release of 13th and 
 14th May, 1812 ; at which time, a satisfied mortgage term, 
 created -in 1800, was assigned to St. J., in trust for H. B. D. 
 and his heirs, and to attend the inheritance. By lease and release 
 of 29th and 30th June, 1812, H. B. D. conveyed the same pre- 
 mises to G. D. and J. M., and their heirs, to the intent that the 
 same might be settled to the uses declared by a certain indenture 
 of 2nd September, 1796, which appears to have been a settlement 
 executed on, and previously to, the marriage of H. B. D. By 
 Thomson, C. B., — "The settlement of 1812 was voluntary, and 
 there is no covenant in the articles of 1796 which specifically 
 binds these lands. The assignment of the term, therefore, to 
 St. J. cannot defeat the right of the Crown." The Court 
 accordingly gave judgment for the Crown (r). 
 
 (o) M'Clel.Rep. 417n. ; Sugd. Vend. 
 & P. 6th ed. Append. 25. 
 f^p) M'Clel. Hep. 424. 
 
 (<y) M^Clel. Rep. 402. 
 (;■) 2 Price, 317.
 
 24 OF LIEN, AND DEBTOR'S MORTGAGE, &C. [CH. II. 
 
 In The King v. Lambe, J. L., the Crown debtor, purchased in 
 1774 the fee simple of land, and to secure a part of the purchase 
 money, the fee was conveyed to the use of C. S. V. S. for 1000 
 years, subject to redemption; and, in the meantime, subject to 
 the same term, to the use of J. L. in fee. J. L. became indebted 
 to the Crown by bond, entered into by him in 1776. In 1805, 
 J. T. having become bond fide the purchaser of the estate, on 
 a sale thereof by the assignees of J. L., who had become bank- 
 rupt, the mortgage money secured by the term was paid off out 
 of the purchase-money, and the residue of the term was assigned 
 to Lambe, in trust for J. T., and to attend the inheritance ; and 
 .the reversion, subject to the term, was conveyed to J. T. in fee; 
 neither Lambe nor J. T. having notice of the bond, or that J. L. 
 was indebted to the king. On the ground that the term was 
 never vested in any trustee for the Crown debtor, the Court held 
 that Lambe was entitled to the possession of the lands for the 
 residue of the term, and accordingly gave judgment for him 
 against the Crown (s). In this instance, therefore, the purchaser 
 was so far protected by the term, that this part of the fee simple 
 purchased by him could not be extended for the Crown debt, and 
 that, notwithstanding such debt, his trustee was entitled to keep 
 possession for the remainder of the term. 
 
 SECTION IV. 
 
 OF LIEN, AND DEBTOR'S MORTGAGE BY DEPOSIT OF TITLE DEEDS. 
 
 An equitable mortgage by deposit of title deeds is valid against 
 a simple contract debt, become, before the mortgage, due from the 
 mortgagor to the Crown, in a case where the party who lends the 
 money is a mortgagee, without fraud, and without notice of the 
 debt ; and the mortgagor is not an officer or accountant, within 
 the statute 13 Eliz. c. 4, nor a person holding an office publicly 
 known to be accountable, and which is not within the same 
 statute ; or if he does hold such latter description of office, the 
 
 (s) M'Clel. Rep. 402, 13 Piicc, 649.
 
 s. v.] OF AN extent; in chief, and in aid. 25 
 
 mortgagee is not at all cognizant of this fact (^). It is, however, 
 decided, that a mortgage by deposit of title deeds is not available 
 against a simple contract debt due to the Crown, although such 
 debt is incurred after the mortgage ; if, as against the Crown, the 
 mortgage was not bond fide taken by the mortgagee ; as where 
 the mortgagee was the receiver-general of the taxes in a parish, 
 and the mortgagor the collector of the same taxes, an office that 
 made it probable that the mortgagor might be or soon become 
 indebted to the Crown ; and the consideration of the deposit was 
 money advanced to the mortgagor, to enable him to make up his 
 accounts of taxes collected ; the receiver-general thereby uphold- 
 ing the collector's credit, and aiding him to go on to impose him- 
 self on the public as solvent (it). 
 
 SECTION V. 
 
 OF AN extent; in chief, and in aid. 
 
 There are, in the case of Crown debts, two kinds of process 
 called an extent; namely, an extent in chiefs and an extent in 
 aid. An extent in chief is where by the extent the Crown itself 
 seizes either the property of its debtor {v), or, in certain cases, a 
 debt that is found due [lo). An extent in aid is where by the 
 extent the Crown debtor seizes the property of his debtor (a:), or, 
 in certain cases, a debt that is found due {y). 
 
 If A. is indebted to the Crown, and B. to A., and the Crown 
 
 («) Casberd v. IFarrf and Attorney 
 General, 6 Price, 411, Dan. 238. See 
 also The King v. Smith, Wightw. 34. 
 
 (w) Broughton v. Davis, 1 Price, 216. 
 
 (I!) 8 Price, 686, 687. 
 
 {w) Bunb. 24; 1 Price, 94, 95; 8 
 Price, 687, 688 ; 11 Price, 779. In Sir 
 E. Coke's case, Dodderidge, J., said, a 
 prerogative which the king hath is, " that 
 the king shall have the debt of the debtor 
 to the king's debtor paid unto him. 21 
 H. Vll. 12, Abbot of Ramsay's case. 
 
 the prior of Ramsay was indebted to the 
 king, and another prior was indebted to 
 the prior of Ramsay ; and then it was 
 pleaded in bar, that he had paid the same 
 debt to the king, and the plea holden for 
 a good plea." Godb. 290. 
 
 (x) The King v. Blatchford, 1 Anstr. 
 162 ; The Kivg v. Bunney, 1 Price, 394 ; 
 The King (in aid of Hnghes) v. Wilton, 2 
 Price, 368; The King v. Larking, 8 Price, 
 683; Phiilips v. Shaic, 8 Ves. 241. 
 
 {y) The King v. Tarleton, 9 Price, 647.
 
 26 OF AN extent; in chief, and in aid. [cll. II. 
 
 itself proceeds against B., and seizes his debt owing to A., this 
 is an extent in chief in the second degree (2:). 
 
 When the extent is in chief, and the Crown seizes a debt 
 owing by B. to A., the Crown debtor, B.'s debt is in the first 
 degree. If the debt seized is owing by C. to B., indebted to A., 
 C.'s debt is in the second degree. If the debt seized is owing by 
 D. to C, indebted to B., indebted to A., D.'s debt is in the third 
 degree. The debt may be either by specialty or by simple con- 
 tract. And so far as the third degree it may be seized, but not 
 beyond («). And, in computing the degrees, the king's debtor is 
 not to be reckoned {b). 
 
 It is not every debtor to the Crown who is entitled to an extent 
 in aid. On this point, the statute 57 George III. c. 117(c), 
 which in several other respects regulates extents in aid, contains 
 an express provision, occasioned, probably, by some cases that 
 had a short time previously come before the Court of Ex- 
 chequer (d). 
 
 The fourth section of the statute enacts, — That it shall not be 
 lawful for any person or persons, companies or societies of persons, 
 corporate or not corporate, who shall or may be indebted to his 
 majesty by simple contract only ; nor for any such person or 
 persons, companies or societies, who shall or may be indebted to 
 his majesty by bond for answering, accounting for, and paying 
 any particular duty or duties, or sum or sums of money, which 
 shall arise or become due and payable to his majesty from such 
 person or persons, companies or societies respectively, for and in 
 respect and in the course of his or their particular trades, manu- 
 factories, professions, businesses, or callings; nor for any sub- 
 distributor of stamps, who shall have given bond to his majesty; 
 nor for any person who shall have given bond to his majesty, 
 either jointly or separately, as a surety only for some other debtor 
 
 (:) The King v. Bell, and The King v. 
 Shackle, 11 Price, 772, 779. 
 
 (a) fu'»t's case, Parker, Appendix, 259, 
 260 ; The King v. Eitate of H. Bonn, 
 Parker, 1(5, 19 ; The King v. Linliingtou, 
 1 Pi ice, 94 ; The King v. Lurking, 8 
 Price, 683. 
 
 (6) The King v. Lushi/igton, 1 Price, 94. 
 
 (c) The King (in aid of Grant) v, 
 Kimaston, 11 Price, 598; The King v. 
 Bell, and The King v. Shackle, ih. 112. 
 
 {d) The King (in aid of Hughes) v. 
 Wilton, 2 Price, 36Q ; Rex v. ll'illiams, 
 3 Price, 75.
 
 s. v.] OF AN extent; in chief, and in aid. 27 
 
 to his majesty, until such surety shall have made proof of a 
 demand having been made upon him on behalf of his majesty, 
 in consequence of the non-performance of the conditions of the 
 bond by the principal, and then only to the amount of the said 
 demand ; to sue out and prosecute any extent or extents in aid, by 
 reason or on account of any such debt or debts to his majesty 
 respectively, for the recovery of any debt or debts due to such 
 person or persons, companies or societies, or to such sub-dis- 
 tributor of stamps or surety as aforesaid ; and that all and every 
 commission and commissions to find debts, extent and extents in 
 aid, and other proceedings which shall be so issued or instituted 
 at the instance of or for such simple contract or bond debtor or 
 debtors respectively, and all proceedings thereupon, shall be null 
 and void. Provided always, that nothing herein contained shall 
 extend or be construed to extend, to preclude or prevent any 
 persons who shall or may become debtor or debtors to his majesty 
 by simple contract only, by the collection or receipt of any 
 money arising from his majesty's revenue for his majesty's use, 
 from applying for and suing out any commission or commissions, 
 extent or extents in aid, in case one or more of such persons 
 shall be bound to his majesty by bond or specialty of record in 
 the Court of Exchequer, for answering, securing, paying over, 
 or accounting for, to his majesty, the particular duties or sums of 
 money which shall constitute the debt, that may be so then due 
 from such person or persons to his majesty. 
 
 By a general order of the Court of Exchequer, dated June 22, 
 1822, — " It is ordered, that from henceforth no fiat for an extent in 
 aid shall be granted, unless the party applying for the same, or 
 some person or persons on his behalf, shall make affidavit, that, 
 unless the process of extent for the debt due to him from his 
 debtor be forthwith issued, the debt due to the Crown from the 
 party applying will be in danger of being lost to the Crown" (e). 
 
 (e) 11 Price, IGO. See on this order The King v. Bell, and The King \. Shackle, 
 
 11 Price, 772.
 
 28 [cH. II. 
 
 SECTION VI. 
 
 OF A SALE UNDER AN EXTENT. 
 
 The common law prerogative of the Crown to seize tlie land of 
 its debtor did not extend to empower a sale of the land for pay- 
 ment of the debt, but was confined to a right to hold the land 
 until the debt was levied out of the yearly rents and profits of 
 it {/)■ A statute of Elizabeth first gave authority to sell the 
 land {g). This Act, 13 Eliz. c. 4, received certain explanations 
 by the statute 27 Eliz. c. 3; and an Act of Parliament passed in 
 a late reign has materially altered the law contained in both those 
 statutes. 
 
 The 25 Geo. III. c. 35, after reciting that "It may tend 
 greatly to facilitate the payment of debts to the crown, where 
 the real estates of its accountants, or debtors, or of their sure- 
 ties, are seized into the king's hands under writs of extent, if 
 a sufficient part of such estates was to be sold under the pro- 
 visions of the Acts 13 and 27 Elizabeth; but the said Acts have 
 not been lately put in use, and inconvenience is likely to arise if 
 the mode of sale therein directed should be pursued," proceeds to 
 enact, " that it shall and may be lawful to and for his Majesty's 
 Court of Exchequer, on the application of his Majesty's Attorney 
 General in a summary way, by motion to the same Court, to 
 order that the right, title, estate, and interest of any debtor to 
 his Majesty, his heirs and successors, and the right, title, estate, 
 and interest of the heirs and assigns of such debtor, in any lands, 
 tenements, or hereditaments, which have been, or shall hereafter 
 be extended under and by virtue of any such writ of extent or 
 diem clausit extrermim, or so much thereof as shall be sufficient to 
 satisfy the debt for which the same shall have been so extended, 
 shall be sold in such manner as the said Court shall direct ; and 
 that when a purchaser or purchasers shall be found, the conveyance 
 of the lands, tenements, or hereditaments, so decreed to be sold, 
 
 if) 6 Price, 463 ; Dan. Hep. 248 ; 2 1 (g) 6 Price, 463. 
 Y. & J. 122; 3 Bl. Com. 419. I
 
 S. VI.] OF A SALE UNDER AN EXTENT. 29 
 
 shall be made to tlic purchaser or purchasers by his Majesty's 
 remembrancer in the said Court of Exchequer, or his deputy, 
 under the direction of the said Court, by a deed of bargain and 
 sale, to be inroUed in the same Court ; and that from and after 
 the making of sucli conveyance, and the inrolment thereof as 
 aforesaid, tlie bargainee or bargainees in such conveyance, and 
 his or their heirs, executors, administrators, and assigns, shall 
 have, hold, and enjoy tlie lands, tenements, and hereditaments 
 therein comprised, for his and their own respective use and 
 benefit, not only against the extent of the Crown, but also against 
 such debtor of the Crown, or the surety or sureties for such debtor, 
 and all persons claiming under such debtor, or the surety or sure- 
 ties, indess by a title paramount to, and available in law against, 
 such extent as aforesaid. And all monies, which shall become 
 payable from any such purchaser or purchasers as aforesaid, shall 
 be paid, accounted for, and applied towards the discharge of the 
 debt due to the Crown, and of all costs and expenses which shall 
 be incurred by the Crown in enforcing the payment of such debt, 
 in such manner as the said Court of Exchequer shall from time 
 to time order and appoint; and if, after payment of the whole 
 debt to the Crown, and of all costs and expenses incurred in 
 enforcing the payment thereof, there shall be any surplus of the 
 monies arising from any such sale, the said surplus shall belong 
 to the same person or persons as would be entitled to the lands, 
 tenements, or hereditaments sold, if there had not been a sale 
 thereof, and shall accordingly be paid to such person or persons 
 under the order and direction of the said Court of Exchequer, 
 upon motion or petition to the said Court, to be made upon such 
 notice to the Crown, and to be supported by such affidavits or 
 other proofs, as to the said Court shall from time to time seem 
 just and reasonable." 
 
 And the second section of the same statute, after reciting that 
 " from the want of the deeds and writings relative to the title of 
 such lands, tenements, and hereditaments, as the said Court of 
 Exchequer may decree to be sold under this Act, difficulties may 
 arise in the execution thereof," enacts farther, " that it shall be 
 lawful for the said Court of Exchequer, from time to time, to
 
 so OF A SALE UNUKR AN EXTENT. [CH. II. 
 
 make such order touching the production, delivery, and custody, 
 of such title deeds and writings as aforesaid, in the same manner 
 as if a decree had been made by the said Court for the sale of the 
 lands of a Crown debtor, in execution of a trust created for pay- 
 ment of debts by such Crown debtor himself." 
 
 The following cases [h) have occurred under this statute. In 
 The King v. Cracroft^ where certain lands of the defendant were 
 extended, and sold, and the purchaser approved of by the deputy 
 remembrancer's report, which was confirmed by the usual orders, 
 conditional and absolute ; but upon an inspection of the title deeds, 
 it appeared that a title to an estate in the premises, for the life of 
 the defendant's father, was all that could be made out by the Crown ; 
 the Court held that the Crown might discharge the purchaser from 
 his purchase, against his consent, and without the payment of his 
 costs, consequent on the purchase (?). In The Khuj v. Dyer^ the 
 Court, in the exercise of the discretionary power possessed 
 by it under the statute, directed land extended for penalties 
 against the excise laws, to be sold by auction before a col- 
 lector of excise at a particular place (J). In Rex v. Bulkeley, 
 it was held a motion for sale need not be made by the Attor- 
 ney General himself, but may be made by another person on 
 his behalf (A). In Rex v. Blunt, on an extent issued against 
 the defendant's estate, he was found to be possessed of certain 
 goods and chattels, and also to be entitled to the residue of certain 
 monies to arise from the sale of premises leased for lives, and for 
 a farther term of years after the decease of the survivor. Under 
 a writ of venditioni exponas, the sheriff sold this interest of the 
 defendant in such leasehold premises. But the Court refused to 
 confirm the sale, and to order the king's remembrancer to convey 
 to the purchaser ; the sale not being authorised by the common 
 law, and being made without the order of Court, required by the 
 statute (/). In Rex v. Marsh, where land extended was sold 
 under an order of Court, and the purchaser objected to the sale, 
 
 (h) See also Wall v. Attorney General, 
 11 Price, 643. 
 
 (i) M'Clel. & Y. 460. 
 (J) Ibid. 2fi\. 
 
 (/.) 1 Y. & J. 256. 
 (/) 2 Y. & J. 1-0; and see R« v. 
 Boyd, and Rex v. Adam, i.h. 122, n.
 
 S. VII.] TITI.ES PREFERRED TO I.IEN OF THE CROWN. .31 
 
 on the ground that an agent of tl»e Crown had employed a puffer 
 at the auction ; the Court held this circumstance sufficient to vitiate 
 the sale, and accordingly refused to enforce the contract against 
 the purcliaser (711). 
 
 On a sale under a WTit of extent, or decree or order of the 
 Court of Chancery or Exchequer, the statute 1 and 2 Geo. IV. 
 c. 121, s. 10, contains the following enactment (?t), — " That in all 
 cases where any estate belonging to a public accountant shall be 
 sold under any writ of extent, or any decree or order of the 
 Courts of Chancery or Exchequer, and the purchaser or pur- 
 chasers thereof, or of any part thereof, shall have paid his, her, or 
 their purchase-money into the receipt of his majesty's Exchequer, 
 an entry of such payment shall be made by the commissioners for 
 auditing the public accounts, in the declared account of such 
 public accountant ; and from and after such payment and entry 
 as aforesaid, such purchaser or purchasers, his, her, and their 
 heirs and assigns, shall be wholly exonerated and discharged from 
 all farther claims of his majesty, his heirs or successors, for or 
 in respect of any debt arising upon such declared account, 
 although his, her, or their purchase money shall not be sufficient 
 in amount to discharge the whole of the said debt." 
 
 Land bound by a Crown debt is, it appears, so far favoured, 
 that when goods and land are seized under an extent, either in 
 chief or in aid, the goods are first liable to be sold; and the 
 Crown is not entitled to sell the land, unless the goods prove to 
 be insufficient to satisfy the debt (0). 
 
 SECTION vn. 
 
 OF CERTAIN TITLES PREFERRED TO THE LIEN OF THE CROWN. 
 
 When a debtor to the Crown by bond is indebted to a subject 
 by judgment, and the judgment is earlier than the debt to the 
 
 (m) 3 Y. & J. 331. 
 
 (jO See Sugd. Vend. &: P. 6th ed. 692. 
 (y) Magna Cluuta, 9 II. III. c. 8, 
 
 2 Inst. 18 ; The King (in aid of Simpson) 
 V. Hopper, 3 Price, 40. See also The 
 Kin- V. Lamhe, M'Clel. 402.
 
 32 INSTANCES OF FRAUD AGAINST THE CROWN. [CH. II. 
 
 Crown, then, if before process issues to recover the Crown debt, 
 the debtor's land is extended under the judgment, this execution 
 executed is valid against the Crown, and an extent now at the suit 
 of the Crown cannot affect this execution of the subject (/?). 
 
 And, generally speaking, the Crown, when it extends land, 
 takes it subject to a charge or settlement that is earlier than the 
 lien of the Crown (q). Thus, in Poole v. the Attorney General, 
 where an estate was extended, the Crown was held to take it, 
 subject to legacies charged on it. The facts were, P. devised his 
 estate to A., paying 200Z. a piece to his grandchildren; with a 
 power to enter for non-payment. A. sold the estate to B. ; B. 
 being indebted to the Crown, the estate was seized and extended ; 
 P.'s grandchildren brought a bill against the Attorney General 
 and B., to have the legacies and charge the estate therewith; 
 and it was decreed accordingly (r). 
 
 SECTION VIII. 
 
 OF PARTICULAR INSTANCES OF FRAUD AGAINST THE CROWN. 
 
 In Chirton's case, one W. de C. was indebted to the king in a 
 large sum for customs. It was found by inquisition, that he had 
 purchased certain lands with the king's money, and by covin caused 
 the vendor to enfeoff his friends in fee, to defraud the king, and 
 nevertheless, took the issues and profits of the land to his own 
 use. But the Court of Exchequer adjudged those lands to be 
 seized to satisfy the debt to the Crown [s). And in FaveVs case, 
 one T. F., a collector of the fifteenth and tenth, being seised 
 of certain land in fee simple, and having divers goods and chattels 
 die intromissionis de collectione et levatione of the fifteenth and 
 tenth aforesaid, in extremity of illness aliened his tenements and 
 
 (/j) Curaoii's case, 3 Leon. 239, 4 
 Leon. 10; Attorney General v. Andrew, 
 Hardr, 23, cited 4 Durn. & E. 413, and 
 16 East, 282; stat. 33 H. VIII. c. 39, 
 s. 74. 
 
 (y) 2 Rol. Abr. 156, B. 3; Foskew's 
 
 case, 2 Leon. 90. 
 
 (r) Parker Rep. append. 272. 
 
 (s) 2 Dyer, 160 a., also stated 11 Co. 
 92 b., and 12 Co. 3. See likewise 2 Rol. 
 Abr. 160, K.
 
 S. IX.] OF THE DEBTS OF A CROWN DEBTOR DECEASED. 33 
 
 his goods and chattels to divers persons, and died without heir or 
 executor. And here process was issued against the terre-tenants 
 and possessors of the goods and chattels, to account for the col- 
 lection aforesaid, and to answer and satisfy the king {t). 
 
 SECTION IX. 
 
 OF THE DEBTS OF A CROWN DEBTOR DECEASED. 
 
 On the subject of debts of a Crown debtor deceased, may be 
 noticed, — 
 
 I. The voluntary payment by an executor of, — 1. a debt owing 
 by his testator to the Crown ; and, — 2. a debt owing by his tes- 
 tator to a Crown debtor. 
 
 II. The Crown's compulsory process of Diem clausit extremum 
 to obtain payment. 
 
 I. — 1. Magna Cliarta, 9 Henry III. c. 18, enacts: — "If any 
 thatholdeth of us lay-fee do die, and our sheriff or bailiff do shew 
 our letters patent of our summon for debt, which the dead man 
 did owe to us, it shall be lawful to our sheriff or bailiff to attach 
 and enrol all the goods and chattels of the dead, being found in 
 the said fee, to the value of the same debt, by the sight and testi- 
 mony of -lawful men, so that nothing thereof shall be taken away, 
 until we be clearly paid off the debt; and the residue shall remain 
 to the executors to perform the testament of the dead." 
 
 On this enactment, Sir E. Coke says, it is to be observed, 
 *' First, that the king, by his prerogative, shall be preferred in 
 satisfaction of his debt by the executors, before any other. Se- 
 condly, that if the executors have sufficient to pay the king's 
 debt, the heir that is to bear the countenance, and sit in the 
 seat of his ancestor, or any purchaser of his lands, shall not be 
 charged'' {u). 
 
 When a testator dies indebted to the Crown by debt on record, 
 as by judgment or recognizance of a Court of Record, or by bond, 
 an instrument to which the statute 33 Henry VIII. c. 39, gives 
 the force of a statute staple, these debts on record, or by bond, 
 
 (0 2 Dyer, 160 a. ; aLo stated 12 Co. 3. | {ii) 2 Inst. 32. See also Parker Rep. 99. 
 
 D
 
 34 OF THE DEBTS OF A CROWN DEBTOR DECEASED. [CH. II. 
 
 the executor is bound to pay before the testator's debts by judg- 
 ment, or specialty, or any other description, owing to a subject {v). 
 It is a devastavit in an executor, if he pays the debt of a subject 
 before the Crown's debt upon record (?r). 
 
 When a testator dies indebted to the crown by simple con- 
 tract, a subject's debt by judgment is, perhaps, to be paid before 
 such crown debt {x). But an express decision exists, that a debt 
 by simple contract due to the king is to be preferred before a 
 subject's debt by bond. In The King v. Thomas Burnett, " there 
 was an information against him, as administrator of W. B., for 
 lOOZ. received by W. B., to the king's use. The defendant 
 pleads, that W. B., in his lifetime, was indebted to the defendant 
 by bond in 1,600/.; and pleads />/e?ze administravit, besides goods 
 to the value of 5/., which he retained towards satisfaction of his 
 debt of 1,600/.; to which plea the Attorney- General demurred; 
 and judgment was given for the king, that a debt by simple con- 
 tract due to the king was to be preferred before a debt by bond 
 to a subject. And this judgment was affirmed upon a writ of 
 error in the Exchequer chamber, and the affirmance of it is 
 entered of the same term." This decision, so affirmed, is cited 
 by Lord Chief Baron Parker, in a case reported by himself [y). 
 After this decision, made in the strong case of a representative, 
 who claimed to retain his debt ; and considering the general 
 inclination of the law to prefer, in payment of debts, the crown 
 to a subject [z) ; an executor can never be advised to prefer a 
 simple contract debt of a subject to a simple contract debt of the 
 Crown, notwithstanding some appearance of authority, and even 
 an opinion of Lord Hardwicke (a), that seems to invest the 
 executor with this right of preference (5). 
 
 (u) Skrogs, or Scrags, v. Gresham, 1 
 Anders. 129, Mo. 193.— 1 Rol. Abr. 
 927, S. 5 ; Com. 438 ; 7 B. & C. 452 ; 
 Went. Off. Ex. 14th ed. 261—265; 2 Bl. 
 Com. 511. See Lane Rep. 65. 
 
 (w) Com. 438 ; 16 East, 281. See also 
 4 B.& C. 416, n. 
 
 (x) 2 Rol. Abr. 159, H. 8 ; Parker 
 Rep. 101. See Lane Rep. 65. 
 
 (y) Parker, 101. See also 102. 
 
 (s) Stat. 9 H. VIII. c. 18 ; 2 Inst. 32 ; 
 Cio. Eliz. 793; Godb. 290, 293; Parker 
 Rep. 99, 101; 4 B. & C. 416, n. ; 7 
 B. & C. 452 ; Skrogs, or Scrngs, v. 
 Gresham, 1 Anders. 129, Mo. 193. 
 
 (a) Otway v. Ramsay, 4 B. & C. 
 416, n. 
 
 (h) 1 Rol. Abr. 927, U. 6 ; Mo. 193 ; 
 Com. 438. See Parker Rep. 102.
 
 S. TX.] OF THE DEBTS OF A CROWN DEBTOR DECEASED. 35 
 
 2. Of a debt which a testator owes to a debtor of the Crown, 
 it may be stated, that if A. is indebted to tlie Crown by bond, 
 and B., the testator, is indebted to A. by simple contract, and 
 to other persons by bond, and after B.'s death an extent issues 
 on A.'s bond, and by an inquisition, taken before payment of B.'s 
 bond debts, his debt to A. by simple contract is found, and accord- 
 ingly by such inquisition made a debt of record ; here the Crown 
 is entitled to be paid this debt, before the testator's creditors by 
 bond. In such a case, the Court held, " That the seizure by the 
 inquisition of the simple contract debt into the king's hands, 
 preferred it to the bonds not paid before the seizure, and would 
 be a good plea to actions on such bonds ; because it is thereby 
 become a debt to the king upon record, and implies notice. But 
 they also held, that if the bonds had been paid before the inqui- 
 sition, or before the administrator had actual notice of the debt to 
 the king, such payment would have been good against the king; 
 because there was no debt upon record, and the administrator had 
 no means to discover whether there were any, or what debts to 
 the king; and the inconvenience would be infinite, if in such 
 cases executors or administrators should, notwithstanding their 
 utmost care, be charged with the misapplication of assets out of 
 their own estates " (c). When a testator dies indebted by judg- 
 ment and bond, and indebted by simple contract to a Crown 
 debtor, and after the testator's death the bond creditor obtains judg- 
 ment, but before this judgment the testator's simple contract debt 
 is seized into the king's hands ; here the debt so seized is payable 
 after the precedent, and before the subsequent, judgment creditor. 
 In The Kinr/v. Dicke?iso7i, a case of this kind, " It was adjudged 
 for the king, that his debt should be preferred before the subse- 
 quent judgments, viz. before any bond, (Hardr. 23) : but a pre- 
 cedent judgment should be preferred before it, upon the words of 
 the 26th [74] section of the statute 33 Henry VIII. c. 39,— so 
 always that the king's suit be taken and commenced, or process 
 awarded for the debt of the king, before judgment given for the 
 other persons" (d). 
 
 (c) The King v. Allanson, Parker, Ap- 
 pendix, 260; Attorney General v. While, 
 Com. 433, 438. 
 
 ^ 2 
 
 (d) The King v. Dickenson, Parker, 
 Appendix, 262.
 
 36 or THE DEBTS OF A CROWN DEBTOR DECEASED. [CII. II. 
 
 II. When a person dies indebted to the Crown by bond, the 
 Crown may by a writ of diem clausit exfremum seize his goods 
 and chattels, and freehold land (e) ; and in the ease of lands 
 descended from and lands devised by him, the Crown may, if it 
 pleases, seize first the lands that are devised {/)• 
 
 And when a person dies indebted to the Crown by simple con- 
 tract, and this fact is after his death found by inquisition, then 
 immediately after such inquisition, the effect of which is to make 
 the simple contract debt a debt of record, the Crown is entitled to 
 the writ diem clausit extremum against its debtor's estate {g) ; and 
 perhaps it may be stated, that under this writ may be seized the 
 debtor's goods and chattels, which he was possessed of, and the 
 land of which he was seised, at the time of his death {h). The 
 Crown is not, however, entitled to such writ before the simple 
 contract debt is so found by the inquisition, and thereby made a 
 debt of record (f). 
 
 When a diem clausit extremum may issue, it issues without 
 waiting for an executor or administrator ( ;). 
 
 It is decided that the Crown is not entitled to the writ diem 
 clausit extremum against the estate of a deceased person, who 
 neither died indebted to the king, nor was before his death found 
 by inquisition to be indebted to the king's debtor, or, within the 
 degrees, to some other person {k). 
 
 In Ex parte Hijypesley, application was by a bond debtor to the 
 Crown made to the Court of Exchequer, for a writ of diem clausit 
 extremum against the estate of a person, who died indebted by 
 simple contract to such bond debtor. But the Court said, " A 
 diem clausit extremum may certainly issue, at the instance of the 
 Crown, against the estate of its debtor in a proper case ; but never 
 in aid, unless the debt has been found in the lifetime of the debtor. 
 The case in Parker (/) is decisive on that point" (m). 
 
 (e) Com. 437; Savile, 52; Parker 
 Rep. 96, 97 ; M'Clel. Rep. 105. 
 
 (y) The Kingv. The Estate of G. Has- 
 sell, M'Clel. 105. 13 Price, 279. 
 
 (g) The King v. The Estate of Edward 
 Curtis, Parker, 95. 
 
 (h) Parker Rep. 96. 
 
 (0 Parker Rep. 98, 103. 
 
 (,/) 16 East, 281. 
 
 (k) The King v. The Estate of Henry 
 Boon, Parker, 16 ; The King v. The Estale 
 if Edward Curtis, ib. 100. 
 
 (/) Rex V. The Estate of Henry Boon, 
 Parker 19. 
 
 (to) 2 Price, 379.
 
 CH. III.] 37 
 
 CHAPTER III. 
 
 OF A DEVISE OF REAL ESTATE, IN TRUST FOR THE PAYMENT 
 OF DEBTS, OR DEBTS AND LEGACIES. 
 
 Sect. I. — Chattel Estate created by the Will. 
 II. — Copyholds devised. 
 III. — Trust to raise Money out of Rents and Profits. 
 IV. — Resulting Trust for the Testator s Heir at Law. 
 V. — Exemption of the Testator's Personal Estate. 
 VI. — Responsibility of a Purchaser from the Trustees. 
 VI L — Reviving Simple Contract Debts barred by the 
 
 Statute of Limitation^ 21 James I. c. 16. 
 VIII. — Miscellaneous Points of the General Subject. 
 
 SECTION I. 
 
 CHATTEL ESTATE CREATED BY THE WILL. 
 
 A DEVISE of land for the payment of debts, is sometimes of a 
 chattel estate in the land. When, for the purpose of paying- 
 debts, lands are devised to A., until B. shall attain the age of 
 twenty-one, A.'s estate in the land will not cease, although B. 
 dies imder age. The words are construed to mean, until B. shall 
 or should have come to the age mentioned {a). And when by a 
 devise of real property to executors, in trust for the payment of 
 debts, they take a chattel estate until the debts are paid, their 
 estate in the land will determine so soon as the debts are paid ; or, 
 
 (a) Boraston's case, 3 Co. 19, 21 ; I Ironmonger v. Lassells, I West Cas, T, 
 Lomai V. Holmeden, 3 P. W. 177 ; Mar- Hardw. 143. 
 
 iin V. Woodgate, Free. CIi. 34. See also
 
 38 COPYHOLDS DEVISED. [CH. III. 
 
 if they misapply the yearly rents and profits, at such time as they 
 might have paid the debts, if they had duly applied those rents 
 and profits in the payment of them. And where there is such 
 misapplication, the lands are notwithstanding discharged, and 
 the creditors' remedy is against the executors {b). 
 
 SECTION II. 
 
 COPYHOLDS DEVISED. 
 
 When by a person deceased before the statute 55 Geo. 
 III. c. 192, copyhold lands are, by the name of copyholds, 
 devised in trust for the payment of the testator's debts, a Court of 
 Equity will supply a surrender to the use of the will (c). And 
 when by a person so deceased land is devised for the payment of 
 his debts, and this devise is made in general terms, as by the 
 words " real estate," or the words, " messuages, lands, tenements, 
 and hereditaments," and these words are satisfied by freehold 
 lands of the testator ; copyholds, although not surrendered to the 
 use of the will, will, if necessary for the payment of the debts, 
 pass under the devise ; and a Court of Equity will supply a sur- 
 render to the use of the will. But the copyholds will not pass, 
 and the surrender will not be supplied, if the copyhold lands are 
 not necessary to pay the debts (d). It is lately decided, that by 
 the will of a person, deceased since the statute 55 Geo. III. c. 192, 
 copyholds will pass imder a general devise of real estate, notwith- 
 standing there is no surrender to the use of the will {e). 
 
 (6) Carter v. Earnadiston, 1 P. W. 
 505, 518, cited 1 Ball, & B. 54 ; Anon. 
 1 Salk. 153, cited 5 Ves. 736. See also 
 Gugelman v. Duport, 1 West Cas. T. 
 Hardw. 577. 
 
 (c) Bixly, or Bixby, v. Eley, 2 Dick. 
 698, 2 Bro. C. C. 325 ; Morris v. Clark- 
 snn, 3 Swanst, 558. 
 
 (d) Mallabar v. Mallabar, Cas. T. 
 
 Talb. 78; Drake v. Robinson, 1 P. W. 
 443 ; Haslewood v. Pope, 3 P. W. 322 ; 
 Goodwyn v. Goodwyn, \ Ves. 226; Lin- 
 dopp V. Eborall, 3 Bro. C. C. 188 ; Kid- 
 ney v. Coussmaker, 12 Ves. 136, 156; 
 Judd V. Pratt, 15 Ves. 394. 
 
 (e) Doe V. Ludlam, 7 Bing. 275, 5 
 Moore & P. 48.
 
 S. IV.] 
 
 39 
 
 SECTION III. 
 
 TRUST TO RAISE MONEY OUT OF RENTS AND PROFITS. 
 
 A DEVISE of land, in trust to pay debts out of the profits, 
 or out of the rents and profits, authorises a sale of the land (/"), 
 unless, by the context, yearly rents and profits only are meant {(/). 
 The land cannot be sold, if the trust is, to pay the debts out of 
 the yearly rents and profits only (h) ; or, " to set and farm let, and 
 out of the rents " to pay the debts (i); or, " by perception of rents 
 and profits, or by leasing, or by mortgaging," to raise sufficient 
 money to pay the debts (j). 
 
 SECTION IV. 
 
 RESULTING TRUST FOR THE TESTATOR's HEIR AT LAW. 
 
 When a will contains a devise of real estate of inheritance, 
 in trust for the payment of debts, or debts and legacies, 
 then, so far as this fund is not required for the purpose, a 
 trust will, unless a contrary intention appears in the will, 
 result for the testator's heir ; who, accordingly, if the estate is 
 not required to be sold, will be entitled to a reconveyance of 
 it {k). And such heir will, in the event of a sale, be entitled to 
 the surplus land unsold, or surplus money produced bythe sale (/), 
 
 (/; Lingon V. Foley, 2 Ch. Cas. 205 ; 
 Anon. 1 Vern. 104 ; Berry v. Askham, 2 
 Vern, 26 ; Frice v. Seys, Barn. Ch. Rep. 
 117, 120; Fddout v. Earl of Plymouth, 
 2 Atk. 105 ; Baines v. Dixon, 1 Ves. 41, 
 42 ; Lingard v. Earl of Derby, 1 Bro. 
 C. C. 31] ; Bootle V. Blundell, 19 Ves. 
 528. 
 
 (g) Heneage v. Lord Andover, 3 Y. & 
 J, 360. 
 
 (/j) Anon. 1 Vein. 104; Cook v. Par- 
 sons, Prec. Ch. 184 ; Lingard v. Earl of 
 Derby, I Bro. C. C. 311. See also 
 Conyngham v. Conyngham, 1 Ves. 522, 
 
 (J) Cookv. Parsons, Prec. Ch. 184. 
 
 (j) Ridout V. Earl of Plymouth, 2 
 Atk. 105. 
 
 (k) Buggins V. Yates, 9 Mod. 122. 
 
 (0 Gale V. Crofts, 4 Vin. Abr. 468, 
 2 Eq. Cas. Abr. 494 ; Wych v. Packing- 
 ton, 21 Vin. Abr. 499, 2 Eq. Cas. Abr. 
 507, 3 Br. P. C. ed. Toml. 44 ; Kirickev. 
 Bransbey, 21 Vin. Abr. 499, pi. 18 n., 
 2 Eq. Cas. Abr. 508 ; Roper v. Radcliffe, 
 9 Mod. 171. 5 Bro. P. C. ed. Toml, 
 360 ; Culpepper v. Aston, 2 Ch.Cas. 115, 
 221 ; Starkey v. Brooks, 1 P.W. 390 ; 
 Cruse V. Barky, 3 P. W. 20 ; Digby v.
 
 40 EXEMPTION OF TESTATOR's PERSONAL ESTATE. [CH. III. 
 
 unless a contrary intention appears in the will (m); as where 
 the intention is, to give such surplus land or money to the 
 party himself, to whom the estate is devised in trust for sale (n). 
 And if the testator creates out of his real estate a term of years, 
 in trust for the payment of debts, or debts and legacies, this term 
 will, unless a contrary intention appears in the will, result for 
 his heir, after the purposes of its creation are satisfied (o). In 
 Gore V. Blake, where lands of inheritance were devised for a 
 term of years, in trust to pay debts, and, subject to this term, were 
 limited over, the residue of the term, together with the surplus 
 rents and profits after the debts paid, were held not to belong to 
 the devisee in remainder, or to the testator's heir at law, but, on 
 the intention, to the trustee of the term {p). When on a devise 
 of land, in trust to be sold for the payment of debts, or debts and 
 legacies, a trust results for the testator's heir at law, it appears 
 that the heir is entitled to redeem the estate, and to prevent a 
 sale, by payment of the debts and legacies charged on it [q). 
 
 SECTION V. 
 
 EXEMPTION OF THE TESTATOR's PERSONAL ESTATE. 
 
 A testator's personal estate is, in a Court of Equity, the 
 natural and first fund for the payment of his debts (r) ; and, 
 
 Legard, 2 Dick. 500, 3 P. W. 5th ed. 
 22 n. ; Kinaston v. Kinastnn, 2 Dick. 506 ; 
 Ackroyd, or Akeroid, v. Stnithson, 1 Bro. 
 C. C. 503, 2 Dick. 566, 3 P. W.5thed. 
 22 n, ; Robinson v. Taylor, 2 Bro. C C. 
 589, 1 Ves. jun., 44 ; Halliday v. Hudson, 
 3Ves. 210; Wright \. Wright, 16 Ves. 
 188 ; Southouse v. Bate, 2 Ves. & B. 396. 
 
 (m) Tyrwith or Tyrwhitt v. Ttotmun, 
 21 Vin. Abr, 499 ; 2 Eq. Cas. Abr. 507 ; 
 3 Br. P. C. ed. Toml. 52. See also Haw- 
 kins V. Chappel, 1 Atk. 621, and Walton 
 V. Walton, 14 Ves. 322. 
 
 (n) North v. Crompton, 1 Cli. Cas. 
 196, cited 9 Mod. 188, and 1 Ball & B. 
 543 ; Coningham, or Cunningham, v. Mel- 
 
 lish, Prec. Ch. 31, 1 Eq.Cas. Abr. 273, 
 2 Vern. 247, and 3rd ed. n. 5 ; Mallabar 
 V. Mallabar, Cas. T. Talb. 78; Rogers v. 
 Rogers, ibid. 268, 3 P. W. 193 ; Hill v. 
 Bishop of London, 1 Atk. 620 ; Hunt' 
 phrey v. Tayleur, Amb. 137. See also 
 King V. Denison, 1 Ves. & B. 272, 
 273. 
 
 (o) Cook V. Gtiavas, cited 2 Vern. 645 ; 
 Harris v. Bishop of Lincoln, 2 P. W, 
 138 ; Levet v. Needham, 2 Vern. 138. 
 
 (p) I Ch. Rep. 263 ; I Ch. Cas. 98. 
 
 {q) Hawkins v. Chappel, 1 Atk. 622 ; 
 M'Cleland v. Shaw, 2 Sch. & Lef. 545. 
 
 (r) 2 Ves. 52; 1 Cox, 11; I Mer. 
 220 ; 19 Ves. 518.
 
 S. v.] EXEMPTION OF TESTATOR's PERSONAL ESTATE. 41 
 
 unless his creditors please, he cannot exempt it from this lia- 
 bility (s). But, except as against his creditors, a testator may, if 
 he thinks proper, throw the burthen of his debts, some, or all of 
 them, on his real property ; and, so far as this fund is sufficient 
 for the purpose, exempt his personal estate from the payment of 
 them (t). 
 
 Formerly it seems to have been held, that if a person devised 
 real estate, in trust for the payment of his debts, or debts, lega- 
 cies, and funeral expenses; and bequeathed all his personal 
 estate, or, after certain specific legacies, the residue of the personal 
 estate, to his executor ; such devise and bequest implied an inten- 
 tion to exempt the personalty from the payment of debts, and 
 were alone or of themselves sufficient for the purpose (?<). At 
 another time, but, it may be mentioned, near a century later than 
 Feltham v. Harhton, and the resolution there referred to, it 
 appears to have been iniderstood, that the personal estate could 
 not be exempted by implication, and that express negative words 
 were necessary to create this exemption {v). Formerly, also, it 
 was allowed to collect the intention from the state of the testa- 
 tor's affairs and parol evidence [ic). And a distinction was once 
 made between a devise to sell, and a charge only, for the pay- 
 ment of debts ; a devise having been thought stronger than a 
 charge to raise an implication of exemption [x). 
 
 But clearly it is now agreed, that the distinction between 
 a devise and a charge is exploded [y) ; and it is decided, that the 
 intention of the testator must appear from the will itself, and 
 
 (s) 3 P. W. 325 ; Amb. 37 ; 2 Atk. 
 624 ; 1 Wils. 24. 
 
 (t) Booth V. Blundell, 1 Mer. 193. 
 
 (w) Feltham v. Executors of Harhton, 
 1 Lev. 203, cited 2 Ball & B, 528 ; 
 Bicknel v. Page, 2 Atk. 79. 
 
 (y) Fereiies v. Robertson, Bunb. 301 ; 
 Phipps V. Annesley, 2 Atk. 57 ; Duke of 
 Ancaster v. Mayer, 1 Bio. C. C. 462 ; 
 Watson V. Brickwood, 9 Ves. 453 ; Han- 
 cox V. Abbey, 11 Ves. 186 ; Bootte v 
 Blundell, 1 Mer, 216. 
 
 (lo) Bamfield v. IVyndham, Prec. Ch. 
 101 ; Wainwright v. Bendlowes, 2 Vern. 
 
 718 ; Countess of Gainsborough v. Earl of 
 Gainsborough, 2 Freem. 188, 2 Vern. 
 252 ; Staptelon v. Colvile, Cas. T. Talb. 
 208; Bootle v. Blundell, 1 Mer. 220, 
 239. 
 
 (x) Wainwright v. Bendlowes, 2 Vern. 
 718, Prec. Ch. 451 ; Hauford v. Ben- 
 lows, S. C. Amb. 581 ; Adamsx. Meyrick, 
 1 Eq. Cas. Abr. 271 ; Stapleton v. Colvile, 
 Cas. T. Talb. 208. 
 
 (y) M'Cleland v. Shaw, 2 Sch. & Lef- 
 545 ; Stapleton v. Slapleton, 2 Ball & B. 
 527,
 
 42 EXEiMPTION OF TESTATOll's PERSONAL ESTATE. [CH. III. 
 
 cannot be collected from the state of the testator's afiairs, as the 
 amount of his debts, or of his real or personal property, or from 
 other extrinsic circumstances, or parol evidence (z) ; that express 
 words are not necessary to create the exemption of the personal 
 estate (a) ; but that a devise of real estate, in trust for the pay- 
 ment of all the testator's debts, or debts and legacies, and an 
 unspecific bequest of the whole of his personal estate to his exe- 
 cutor, are not alone or of themselves sufficient to raise an impli- 
 cation strong- enough to cause that exemption (b). 
 
 The rule now is, that a devise of real estate, in trust, as out of 
 the yearly rents and profits, or by sale or mortgage, to pay the 
 testator's debts, is not alone or of itself sufficient to free his 
 personal estate from its natural liability to be first applied to 
 satisfy such debts. Notwithstanding the devise, the testator's 
 personal property will continue to be the first fund applicable for 
 the payment of his debts (c), unless, on an examination of all the 
 parts of the will (d), it from some part clearly appears to be his 
 
 (z) Gale V. Croft, I Dick. 23 ; Stephen- 
 son V. Hmthcote, 1 Eden, 38, 43 ; Lord 
 Inchiquin v. Fre7ich, 1 Cox, 9 ; Bmmmel 
 V. Prothero, 3 Ves. Ill, 113 ; Bootle v. 
 Blundell, 1 Mer. 216, 220 ; Aldridge v. 
 Lord WaUscourt, 1 Ball & B. 312, 315. 
 
 (a) Duke of Ancaster v. Mayer, 1 Bro, 
 C. C. 460 ; Webb v. Jones, 1 Cox, 245, 
 2 Bro. C. C. 60, cited from Bro. C. C. in 
 2 Sch. & Lef. 544, and 2 Ball & B. 527, 
 528 ; Rhodes v. Rudge, 1 Sim. 85. 
 
 (h) Haslewood v. Pope, 3 P. W. 322 ; 
 Brummel v. Prothero, 3 Ves. 111. 
 
 (c) Anou. 2 Ventr. 349 ; Middleton v. 
 Middteton, 2 Ch. Rep. 377, cited 2 
 Freem. 189 ; Lord Grey v. Lady Grey, 
 1 Ch. Cas. 297 ; Lovel v. Lancaster, 2 
 Vern. 183 ; Cutler v. Coxeter, ih. 302, 
 and 3rd ed. n. (1) ; French v. Chichester, 
 ib. 568, 3 Br. P. C. ed. Toml. 16 ; Gale v. 
 Crofts, 4 Vin. Abr. 468, 2 Eq. Cas. Abr. 
 494, 1 Dick. 23 ; Dolman v. Smith, Prec. 
 Ch. 456, 2 Vern. 740, Gilb. Eq. Rep. 
 128 ; Nokey. Darby, 1 Br. P. C.ed.Toml. 
 506 ; Fereyes v. Robertson, Bunb. 301 ; 
 Haslewood v. Pope, 3 P. W. 322, 324 ; 
 
 Harewood v. Child, apparently S.C, cited 
 Cas. T. Talb. 204, 209 ; Lord Inchi- 
 quin V. French, or Lord O'Brien, Amb. 
 33, 1 Cox, 1, 1 Vv'ils. 82; Stephenson v. 
 Heathcote, 1 Eden, 38 ; Wrightsoti v. 
 Attorney General, 1 West Cas. T. llardw. 
 187 ; Samwell v. IVake, 1 Bro. C. C. 144, 
 
 2 Dick. 597 ; Duke of Ancaster v. Mayer, 
 
 1 Bro. C. C. 454 ; Gray v. Minnetliorpe, 
 
 3 Ves. 103 ; Brummel v. Prothero, ib. Ill; 
 Tait V. Lord Northwick, 4 Ves. 816; 
 Hartley v. Hurle, 5 Ves. 540 ; Brydges 
 V. Phillips, 6 Ves. 567 ; Watson v. Brick- 
 wood, 9 Ves. 447, cited 1 Mer. 239 ; 
 Tower V. Lord Rous, 18 Ves. 132 : Elton 
 V. Harrison, 2 Swanst. 270, n.; Rhodes 
 V. Rudge, 1 Sim. 79; M^Cleland v. Shaw, 
 
 2 Sch. & Lef. 538. See also Hall v. 
 Brooker, Gilb. Eq. Rep. 72 ; Reade v. 
 Litchfield, 3 Ves. 475 ; and Howe v. Farl 
 of Dartmouth, 7 Ves. 149. 
 
 (d) Williams v. Bishop of Llandaff, 1 
 Cox, 257 ; Tait V. Lord Northwick, 4 
 Ves. 824; Bootle v. Blundell, 1 Mer. 
 217 ; Gittiiis V. Steele, 1 Swanst. 28.
 
 S. v.] EXEMPTION OF TESTATOIl's PERSONAL ESTATE. 43 
 
 intention to exempt his personal estate from such liability, in 
 which case the intended exemption will take place (e). 
 
 In Hancox v. Ahhey^ a testator's personal estate was held to be 
 exempted from the payment of two particular sums, namely, 
 a mortgage debt and a legacy {f). 
 
 On each case, as it arises, the question of exemption is by Lord 
 Eldon stated to be — " Does there appear, from the whole testa- 
 mentary disposition taken together, an intention on the part of 
 the testator so expressed, as to convince a judicial mind that it 
 was meant, not merely to charge the real estate, but so to charge 
 it as to exempt the personal?" " For," adds his Lordship, " it 
 is not by an intention to charge the real, but by an intention 
 to discharge the personal estate, that the question is to be 
 decided" (//). 
 
 An intent to exempt the personal estate may in some cases be 
 inferred from the particular terms of the devise to pay debts, or of 
 the disposition of the testator's personal estate (/*). 
 
 It has been seen, however, that unless a contrary intention is 
 apparent from some other part of the will, the testator's personalty 
 is first applicable, notwithstanding real estate is devised in trust 
 for the payment of all his debts ; and it is, it may be particularly 
 mentioned, so applicable, although a term of years is created out 
 of the inheritance, and devised for the purpose (z) ; and although 
 
 (e) Peacock v. Glascock, 1 Ch. Rep. 
 45 ; Wainwright v. Bendlowes, 2 Vern. 
 718, Prec. Ch. 451 ; Mainwright v. Bend- 
 loe, S. C. Gilb, Eq. Rep. 125; Hayford 
 V. Benlows, S, C. Amb. 581, cited Cas. 
 T. Talb. 208; Adams v. Meyrick, 1 
 Eq. Cas. Abr. 271, cited 2 Atk. 79, 626, 
 and 3 Ves. 110; Waise \. Whitfield, 8 
 Vin. Abr. 437, 2 Eq. Cas. Abr. 374, 
 495; Bowershy v. Bowyer, 11 Vin. Abr. 
 424, 2 Eq. Cas. Abr. 461 ; Chester v. 
 Painter, 2 P. W. 335 ; Stapleton v. 
 Colvile, Cas. T. Talb. 202 ; Attorney 
 General v. Barkham, cited ib. 206, 210 ; 
 Walker v. Jackson, 2 Atk. 624, 1 Wils. 
 24 ; Philips V. Nicholas, and Holliday 
 V. Bounian, cited 1 Bro. C. C. 145 ; An- 
 derton v. Cook, cited ib, 456 ; Kynaston, 
 
 or Kinaston, v. Kynaston, 2 Dick. 506, 
 1 Bro. C. C. 457, n. ; Webb v. Jones, 1 
 Cox, 245, 2 Bro. C. C. 60, cited from 
 Bro. C. C. in 2 Sch. & Lef. 542. 544, 
 and 2 Ball & B. 527, 528 ; Burton v. 
 Knowlton, 3 Ves. 107 ; Gaskill v. Hough, 
 cited ib. 110; Waring v. Ward, 5 Ves. 
 670, 676 ; Bootle v. Blundell, 19 Ves. 
 494, .509, 1 Mer. 193 ; Greene v, Greene, 
 4 Madd. 148; Michell v. Michell, 5 
 Madd. 69 ; Dixon v. Dawson, 2 Sim. & 
 S. 327. See Hall v. Brooker, Gilb. Eq. 
 Rep. 72. 
 
 (/) 11 Ves. 179. 
 
 (g) Bootle V. Blundell, 1 Mer. 230. 
 See also 16^.220. 
 
 (h) Hancox v. Abbey, 11 Ves. 186. 
 
 (i) Walker v. Jackson, 2 Atk. 624, 625 ;
 
 44 EXEMPTION OF TESTATOR's PERSONAL ESTATE. [CH. III. 
 
 the devise to pay debts is not of the whole of the testator's real 
 estate, but of a part only, or of particular lands {J). 
 
 The exemption of personalty from the payment of debts is 
 sometimes effected by express words of exoneration used in the 
 will (k). If the personal estate is specifically bequeathed, it is 
 then also exempted (Z). But unless a contrary intention is ap- 
 parent from some other part of the will, a testator's personal 
 estate is first applicable to pay his debts, notwithstanding he 
 devises real property to pay them, and unspecifically gives away 
 his personal estate {jji) ; and particularly if tliis gift is to the 
 executor of the will (w), or is, after general or pecuniary legacies 
 bequeathed, of the residue of the personal estate (o) ; or if the 
 gift of the personalty is to the executor appointed by a will, 
 which makes no mention of personal estate, except by the mere 
 nomination of an executor (p). And the testator's personal 
 estate will, before the real property, be applicable to pay his 
 specialty debts, notwithstanding he directs that his executor, to 
 whom he gives all his personal estate, shall pay thereout all his 
 legacies, funeral expenses, and simple contract debts (q). 
 
 An argument for or against exemption may be drawn from any 
 part of the wiU. An inference in favour of exemption has some- 
 times been taken from the circumstance, that real estate is devised 
 in trust to pay debts, and funeral and testamentary expenses (r) ; 
 that the trustees to whom the real estate is devised are not the 
 
 Duke of Ancaster v. Mayer, 1 Bro. C. C. 
 454 ; Tower v. Lord Rous, 18 Ves. 132. 
 
 (j) Stephenson v. Heathcote, 1 Eden, 
 38 ; Bridgman v. Dove, 3 Atk. 201. 
 
 (k) Hall V. Brooker, Gilb. Eq. Rep. 
 73,74, 2 Eq. Cas. Abr.494; Morrow \. 
 Bush, 1 Cox, 185 ; March v. Fowke, 
 Cas. T. Finch, 414. 
 
 (I) Adams v. Meyrick, 1 Eq. Cas. 
 Abr. 271; Walker v. Jackson, 2 Atk. 
 624, 1 Wils. 24 ; Hartley v. Hurle, 5 
 Ves. 545, 546 ; Tower v. Lord Rous, 18 
 Ves. 138, 139 ; M'Cleland v. Shaw, 2 
 Sch. & Lef. 544 ; Bradnox v. Gratwick, 
 cited 3 P. W. 325. 
 
 (m) Duke of Ancasler v. Mayer, 1 Bro. 
 
 C. C. 454 ; Tower v. Lord Rous, 18 Ves. 
 132 ; Aldridge v. Lord IVallscourt, 1 
 Ball& B. 316. 
 
 («) Haslewood V. Pope, 3 P. W. 322 ; 
 Stephenson v. Heathcote, 1 Eden, 38 ; 
 Brummel v. Frothero, 3 Ves. 111. 
 
 (o) Fereyes v. Robertson, Bunb. 301 ; 
 Samwell v. Wake, 1 Bro. C. C. 144, 2 
 Dick. 597 ; Tait v. Lord Norlhwick, 4 
 Ves. 816, 824 ; Hartley v. Hurle, 5 Ves. 
 540; Tower v. Lord Rous, 18 Ves. 132. 
 
 (p) Gray v. Minnethorpe, 3 Ves. 103 ; 
 Stapleton v. Stapleton, 2 Ball & B. 523. 
 
 ((/) Watson V. Brickieood, 9 Ves. 447, 
 454. 
 
 (r) Hartley v. Hurle, 5 Ves. 542, 545.
 
 s. v.] exe:mption of testator's personal estate. 45 
 
 executors of the will (s) ; that the devise is in trust to pay debts 
 and funeral expenses, and the trustees are not the executors of 
 the will {t) ; that on a devise of real estate, in trust for sale, and 
 after sale in trust, in the first place, to pay debts, legacies, and 
 funeral expenses, the testator directs, that, after those payments, 
 the residue of the purchase-money is to be added to his other 
 personal estate (u). 
 
 An inference against exemption has sometimes been taken, 
 from an omission in the will to provide for the payment of funeral, 
 or funeral and testamentary expenses (v) ; and from the circum- 
 stance, that the trustees of the real estate are the executors of the 
 will(^«). 
 
 Lord Hardwicke and Sir W. Grant appear to have thought, 
 that the circumstance that the testator devises real estate, in trust 
 to pay his funeral and testamentary expenses, as well as his debts, 
 is not entitled to much weight in determining a question of ex- 
 emption {x). Some weight, however, must, it should seem, be 
 given to it {y) : not much, perhaps, where the trust fund is given 
 to persons who are also the executors of the will, and on whom 
 the funeral and testamentary expenses naturally fall (2:), but con- 
 siderable where it is given to trustees, who are not also the 
 executors (a). In several cases, a testator's personal estate has 
 been held not to be exonerated from the payment of his debts, 
 although a devise of real estate, in trust to pay them, extended to 
 pay his funeral and testamentary expenses also ; and both where 
 the trustees were, and where they were not, also the executors of 
 the will {h). 
 
 (s) Burton v. Knowlton, 3 Ves. 108. 
 See Brydges v. Phillips, 6 Ves. 572. 
 
 (f) Burton v. Knowlton, 3 Ves. 107, 
 108, 110. 
 
 (u) Wehb V. Jones, 1 Cox, 245, 2 Bro. 
 C. C. 60, cited 2 Ball & B. 528. 
 
 (v) Brydges v. Phillips, 6 Ves. 570; 
 Tait v.Lord Northwick, 4 Ves, 821, 823. 
 
 (w) Brydges v. Phillips, 6 Ves. 572 ; 
 Bootle V. BlundeU, 19 Ves. 522, 523, 527, 
 1 Mer. 217. 
 
 (i) Walker v. Jackson, 2 Atk. 626; 
 Brydges v. Phillips, 6 Ves. 570. 
 
 (y) 3 Ves. 108, 4 Ves. 821, 823; 
 Bootle V. Blundell, 1 Mer. 231, 239. 
 
 (:) Stephenson v. Heathcote, 1 Eden, 
 38 ; Burton v. Knowlton, 3 Ves. 108 ; 
 Hartley v. Hurle, 5 Ves. 540. See Gray 
 V. Minnethorpe, 3 Ves. 103. 
 
 (a) B-urton v. Knowlton, 3 Ves. 107, 
 108. 
 
 (6) Stephenson v. Healhcote, 1 Eden, 
 38 ; Gray v. Minnethorpe, 3 Ves. 103 ; 
 Hartley v. Hurle, 5 Ves. 540 ; M'Cleland, 
 V. Shaw, 2 Sch. & Lef. 538.
 
 46 EXEMPTION OF TESTATOR'S PERSONAL ESTATE. [CH. III. 
 
 With respect to inferences in general of the testator's inten- 
 tion, the conchision to be drawn from the authorities, and to 
 be most safely adopted in practice, seems to be, that the 
 weight of an inference, to be taken from particular words or 
 clauses in the will, is to be governed by the remaining parts 
 of the will. This appears to be the opinion of Lord Eldon, who, 
 in Booth v. Blundell, after stating that a question of exemption is 
 to be decided only by an examination of the whole will taken 
 together, proceeds in these words : — " It must be by an examina- 
 tion of the entire will ; for, if you take any one particular clause 
 of those, which have been in other cases relied upon as a ground 
 for inferring intention, it will be found that it is a ground for such 
 inference, only so far as it can fairly be pronounced to be so upon 
 reference to the general context. Take, for instance, the appoint- 
 ment of the same person to be trustee of the real estate, and 
 executor; that has been called by some judges a circumstance, 
 which shews the intention not to exempt the personal estate. I 
 say, on the contrary, that, whether it is or is not such a circum- 
 stance, depends entirely upon the context. If I discover, from 
 the beginning to the end of the will, an anxious discrimination 
 between the two characters in which this person is to take under 
 it: if I can trace a most extreme caution, that all their costs, 
 sustained in the character of executors, are to be paid to them, 
 not as executors, but as trustees of the real estate, then I must 
 conclude, that, in the will so constituted, the inference of inten- 
 tion, arising out of the union of the two characters in the same 
 individual, fails altogether, by reason of the stronger inference of 
 a contrary intention. Again, some judges have considered a direc- 
 tion, that the funeral expenses shall be paid out of the real estate, 
 a strong circumstance to exonerate the personal ; for that it is not 
 reasonable to suppose the testator could have meant to exempt it 
 from that, which is the primary charge upon it, and yet to leave it 
 subject, in all other respects, to the natural course of law ; while 
 others have professed not to see much in that argument, and that 
 the circumstance goes no farther in meaning than it does in 
 words, to create a fund for one particular class of expenditure. 
 All these supposed positive inferences, then, amount to no
 
 S. v.] EXEMPTION OF TESTATOr's PP^RSONAL ESTATE. 47 
 
 more than this — that the same expressions, when used in one 
 will, may have a totally different effect from what they would have 
 in another "(c). 
 
 Not only the same words used in different wills, and united 
 with different contexts, may, as is observed by Lord Eldon in the 
 passage just transcribed, produce opposite effects ; but the same 
 word, in the same will, may sometimes, in different minds, furnish 
 contradictory inferences. In Stephenson v. Heathcote, the trust of 
 the real estate devised was, " to raise so much money as would 
 fully pay off and satisfy all the testator's debts and funeral ex- 
 penses." In the mind of Lord Northington, who decided the 
 case, the word ' fully ' weighed against the exemption of the per- 
 sonal estate; and, it seems, that in the mind of Lord Lough- 
 borough, the same word afforded an argument^or such exemption. 
 Lord Northington said, although the testator has given a power 
 " to sell his real estate ' fully to pay and satisfy his debts,' this is 
 no more than making his real estate auxiliary to his personal. 
 The word 'fully' is of great force and effect: it is a word of 
 reference, and shews the devise of the real estate was intended to 
 be only in aid." And his Lordship added, I do not see any 
 words in this will, which indicate an intention to exempt the per- 
 sonal estate; "on the contrary, the word ' fully' is repugnant to 
 any such' intention" [d). Lord Loughborough's observation on 
 the same word is, — " In Stephenson v. Heathcote, in the trust to sell 
 so much of the real estate, as should he fully sufficient to satisfy 
 the debts, &c., the word 'fully' might have helped those, who 
 contended for the exemption of the personal estate. It might be 
 supposed to signify not partially " (e). 
 
 On the subject of exemption of personal estate, it remains to 
 notice the case of Waring v. Ward. From this case it appears, 
 that if personal estate is bequeathed to A., who by the will is 
 exempted from the payment of a part or the whole of the testator's 
 debts, which exemption is created for the benefit of the particular 
 legatee only, and not for the benefit of the estate generally, and 
 A. dies in the testator's lifetime ; the party who, by means of this 
 
 (c) 1 Mer. 217. j (e) 3 Ves. lOG. See 19 Ves. 521. 
 
 (J) 1 Edeu, 45. |
 
 48 RESPONSIBILITY OF PURCHASER FROM TRUSTEES. [CH. III. 
 
 lapsed bequest, becomes at the testator's death entitled to his 
 personal estate, will not take it exempted from the testator's 
 debts (/). 
 
 SECTION VI. 
 
 RESPONSIBILITY OF A PURCHASER FROM THE TRUSTEES. 
 
 It is a distinction between debts specified and unspecified by 
 the testator, that on a devise of real estate, in trust for the pay- 
 ment of debts generally, they not being specified by the testator, 
 a purchaser from the trustees is not, although he has notice of the 
 debts, bound to see his money applied in the payment of them. 
 But if the debts, all or some of them, are specified, as in a sche- 
 dule to the will, he is then obliged in equity to see his money 
 applied in payment of such specified debts [g). 
 
 When real estate is devised in trust for the payment of debts 
 unspecified and legacies, a purchaser is not bound to see his 
 money applied in the payment of either debts or legacies (A) ; 
 unless, perhaps, he is bound to see the legacies paid, if the sale 
 takes place after the debts are, and are stated to be, satisfied (z). 
 If the trust is to pay legacies only, then how far the purchaser is 
 bound to see his money applied in discharge of the legacies is 
 by Mr. Butler said to be " often a subject of discussion and doubt, 
 even with the most experienced practitioners" (j). Lord Hard- 
 wicke has said, "If an estate is devised, subject to particular 
 legacies, and nothing else, a purchaser must see those legacies 
 discharged" {k). And Lord Thurlow has held that, "where the 
 
 (/) 5 yes. 670. 
 
 (g-) Anon. Mos. 96; Elliot v. Merry- 
 man, Barn, Ch. Rep. 78, 81 ; Spalding 
 V. Shalmer, 1 Vern. 301, 303; Abbot v. 
 Gibhs, 1 Eq. Cas. Abr. 358 ; Lloyd v. 
 Baldwin, 1 Ves. 173; Rogers v. SkilU- 
 corne, Amb. 188 ; Walker v. Flamstead, 
 2 Kenyon, pt. 2, p. 57 ; WiUiamson v. 
 Curtis, 3 Bio. C. C. 96; Ciirrer, or 
 Comer, V. IValkley, 2 Dick. 649, and from 
 Reg. B. Sugd. Vend. & P. 6th ed. 512. 
 
 (/i) Rogers v. Skillikorne, Amb. 188 ; 
 Walker V. Flamstead, 2 Kenyon, pt. 2, 
 p. 57 ; Smith v. Guyon, 1 Bio. C. C. 186 ; 
 Jelib V. Abbott, and Beynon v. Collins, 
 cited Butl. Co. Litt. 18th ed. 290 b. n, 
 (1) XIV. 3. See also Umerod v. Hard- 
 man, 5 Ves. 722, cited 6 \'es. 654, n. 
 
 (0 See 2 Brest. Ab. 222. 
 
 (j) Butl. Co. Litt. 18th ed. 290 b. n 
 (1) XIV. 3. 
 
 (k) 2 Kenyon, pt. 2, p. 58.
 
 S. VI.] RESPONSIBILITY OF A PURCHASER, &C. 49 
 
 estate is to be sold, and a specific sum, as 5/., to be paid to A., 
 the purchaser must see to the application " (/). These authorities 
 seem to constitute a general rule, that where the trust is to pay 
 legacies only, a purchaser is bound to see his money applied in 
 the payment of them. 
 
 On a devise of a real estate, in trust for the payment of debts, 
 specified or vmspecified, or in trust for the payment of debts and 
 legacies, a purchaser is not, it appears, obliged to see that no 
 more of the estate is sold, than is required for the payment of the 
 debts, or debts and legacies (m). 
 
 The general opinion of the profession appears to be, if real 
 estate devised for the payment of debts, specified or unspecified, 
 or for the payment of debts and legacies, is devised in trust, to 
 raise as much money as the personal estate shall fall or prove 
 deficient in paying the testator's debts, or debts and legacies, that 
 this trust does not create a condition precedent, which invalidates 
 a purchase, if the personal estate is sufficient to pay the debts, or 
 debts and legacies ; and that a purchaser from the trustees is not 
 bound to inquire if the personal estate is deficient, or the real 
 estate is wanted or not (w). An important distinction seems, 
 however, to exist between such a devise, and a bare pozver, a 
 power given to sell for the purpose of raising as much money as 
 the personal estate shall fall short in paying. Such terms of a 
 poiver create, it seems, a condition precedent, which, if not com- 
 plied with, will invalidate a sale under the power (o). "To the 
 valid execution of such a power," says Mr. Butler, " the de- 
 ficiency of the personal estate seems to be a requisite circum- 
 stance. It may, therefore, be contended, that if there be not the 
 deficiency in question, the power is not well executed ; and a 
 necessary consequence of this appears to be, that if the purchaser 
 cannot give legal evidence of this deficiency, he cannot make out 
 
 (/) Smith V. Guyon, 1 Bro. C. C. 186. 
 
 (m) Spalding v. Sltalmer, 1 Vern. 301, 
 303. 
 
 (rt) Bull. Co. Liu. 18th ed. 290 b. n. 
 (1) XIV. 4; Sugd. Vend. & P. 6th ed. 
 513. 
 
 (o) Dike V. Ricks, or Kicke, Cro. Car. 
 335, 1 Rol. Abr. 329, pi. 9 ; Culpepper 
 V. Aston, or Austin, 2 Ch. Cas. 115, 
 221. See also Popham v. Hobert, 1 Ch. 
 Cas. 280, and Bowman v. Mathews, For. 
 Excheq. Rep. 163.
 
 50 REVIVING SIMPLE CONTRACT DEBTS [CH. III. 
 
 his title under tlie power" {p). And on the same power Sir E. 
 Sugden remarks, that " as the power is not well executed, unless 
 there be a deficiency, a purchaser must at his peril ascertain the 
 fact, notwithstanding that the trust be for payment of debts gene- 
 rally ; or being for payment of particular debts or legacies, the 
 common clause, that the trustees' receipts shall be sufficient dis- 
 charges, be inserted in the instrument creating the trust" (</). In 
 Dike V. Ricks, a will contained a power to E., the executrix, 
 " that if it should fully and sufficiently appear, that the said E. 
 should not find sufficient of the goods, chattels, and debts due to 
 the said J., the testator, to satisfy his debts, that then she should 
 sell all the said tenement, or so much as, with his goods and debts 
 owing him, would satisfy his debts." The executrix, it appears, 
 sold the w^hole tenement; and it seems that the Court was of 
 opinion, that the terms of the power created a condition prece- 
 dent, which made the validity of the sale of the ivhole tenement 
 depend, " on the value of the goods and debts due to the testator, 
 and what was the sum of debts which he owed, and what was the 
 value of the lands sold, for she had authority only to sell as much 
 as should suffice, &c." (r). This case is an authority, that, under 
 a power of the like nature, a purchaser is bound, not only to in- 
 quire if the personal estate is deficient, but to see that no more of 
 the land is sold than is necessary to make up the deficiency of 
 the personal estate. 
 
 SECTION VII. 
 
 REVIVING SIMPLE CONTRACT DEBTS BARRED BY THE STATUTE 
 OF LIMITATIONS. 
 
 A DEVISE of real estate, in trust for the payment of debts, or a 
 charge of debts on real estate, revives a simple contract debt 
 created within six years before the testator's death, and, by the 
 completion of the six years after his death, barred by the Statute 
 
 (p) Butl. Co. Liu. I8th ed. 290b., n. I (?) Sugd. Vend. & P. 6tlied. 515. 
 (1) XIV. 4. I (r) Cro. Car. 335.
 
 S. VII.] BARRED BY THE STATUTE OF LIMITATIONS. 51 
 
 of Limitations, 21 James I., c. 16 (.s). But in opposition to 
 former authorities and opinions (t), in agreement, however, with 
 the decision in Legastick v. Cotone (?<), and with the sentiments 
 and opinions of Lord Hardwicke (v), Lord Alvanley [iv). Lord 
 Kenyon (.r), Lord Redesdale (?/), and Lord Eldon (^), it was by Sir 
 T. Plumer, in Burke v. Jones, decided, that a devise of real estate, 
 as lands of inheritance, in trust for the payment of debts, will 
 not of itself revive a simple contract debt, at the testator's death 
 barred by the Statute of Limitations (a). Notwithstanding such 
 devise, the debt will after the death of the testator continue, by 
 reason of the statute, to be barred and irrecoverable, unless there 
 are other words in the will, from which an intention can be col- 
 lected, that the testator meant such barred debt to be paid by the 
 trustees {b). 
 
 The statute of James L does not fix any limitation to a bond 
 debt. But a jury is often recommended to presume payment of 
 a bond, where, from circumstances, as the lapse of twenty years, 
 without any demand of interest or principal, there is a reasonable 
 ground to conclude the debt has been discharged (c). In Newman 
 V. Newman, an action of debt on a bond, and where the obligor had 
 from 1792 up to the time of the action brought, 1815, resided in 
 America, the Court was of opinion that payment was not to be 
 presumed from lapse of time {d). In several cases a Court of 
 
 (s) Vaiighan v. Guy, Mos. 245, cited 
 2 Ves. & B. 285; Staggers v, Welhy, 
 cited 2 P. W. 374, 375, and from tiie 
 Reg. B. 2 Ves. & B. 282 ; Executors of 
 Fergus v. Gore, 1 Sch. & Lef. 107; 
 Burke V. Jones, 2 Ves. & B. 280, 281, 
 288; Morse v. Langham, cited ife. 286; 
 Hargreaves v. Michell, 6 Madd. 326; 
 Hughes V. Wynne, ] Turn. & R. 307. 
 
 (f) Anon. 1 Salk. 154; Andrews v. 
 Brown, Prec. Ch. 385; Blakeway, or 
 BLackway, v. Earl of Strafford, 2 P. W. 
 373, Sel. Ca. Ch. 37, 1 Dick. 48. 6 Br. 
 P. C. ed. Toml. 630; Jones v. Earl of 
 Strafford, 3 P. W. 79, 84, 89 ; Trueman 
 V. Eenton, Cowp. 548. See also Vaughan 
 V. Guy, 1 Barnard. 271, and Ketilby v. 
 
 KetUhy, cited 2 Anstr. 527, and 2 Ves. 
 & B. 288. 
 
 (u) Mos. 391, 
 
 (y) Oughterlony v. Earl P(rwis, Amb. 
 321 ; Lacon v. Briggs, 3 Atk. 107. 
 
 (w) 15 Ves. 488. 
 
 (x) Ibid. 
 
 (y) 1 Sch. & Lef. 109, 110. 
 
 (z) Ex parte Dewdney, 15 Ves. 497. 
 
 (a) 2 ,Ves. & B. 275, cited 19 Ves. 
 470. 
 
 (b) Gofton V. Mills, Prec. Ch. 9, 2 
 Vern. 141 ; Andrews v. Bnnvn, Prec. 
 Ch. 385, cited 2 Ves. & B . 283, 
 
 (c) Shellitoe v. Horsefall, Clayt. 102 ; 
 Oswald V. Legh, 1 Durn. & E. 270. 
 
 (d) 1 Stark. 101. 
 
 E 2
 
 52 HEVIVING SIMPLE CONTRACT DEBTS, &C. [CH. III. 
 
 Equity has presumed a bond to be satisfied, and accordingly 
 decreed it to be cancelled (e). 
 
 Presumption of payment of a bond may be met by evidence to 
 satisfy a jury that the debtor had not the opportunity or the 
 means of paying: and where evidence to repel the presumption 
 exists, a Court of Equity will direct an action or issue on the 
 facts {f). 
 
 A direction by will for the payment of debts will not, it seems, 
 revive a bond debt [g). On the revival of a simple contract debt, 
 and a distinction between this kind of debt and one by bond. 
 Lord Eldon lias made the following observations : — " Courts of 
 Equity, anxiously careful that no debt, which ought to be paid, 
 should remain unpaid, have applied a limitation of their own to 
 cases where it was not given by the legislature. The old de- 
 cisions, which I observe the Vice-chancellor thinks ought not to 
 stand (/i), went to this extent; that, if a man by his will directed 
 his debts to be paid, that took away the plea of the Statute of 
 Limitations ; and this Court, with the view that no debt should 
 go unpaid, construed that to mean every debt, that once existed. 
 Upon this subject, there is this distinction between debts on 
 simple contract and bond. The principle with regard to the 
 former is, that the debt may have existence, and the remedy be 
 taken away; but the bond debt goes upon the presumption of 
 payment; and the pleading is quite different. In the former 
 case, the plea is non assumpsit, or 7ion assumpsit infra sex annos ; 
 which does not negative the existence of the debt, even after the 
 six years : but to a bond, the plea is solvit ad diem, or solvit post 
 diem ; and the time is evidence of the actual discharge. I re- 
 member Sir Thomas Sewell's opinion, that a direction by will for 
 the payment of debts revived a bond : but Lord Thurlow thought 
 that would not do; as the presumption from non-payment of 
 interest was, that the debt was paid ; and the direction in the will 
 applied to debts, which might be supposed to exist, although the 
 
 (e) Carpenter v. Tucker, 1 Cli. llep. 
 78 : (•enf'iey v. Thorn, ib. 88 ; Dennis 
 \. Nourse, ib. 106. 
 
 (/) Fladong V. Winter, 19 Ves. 196 ; 
 
 and ]Vy)ine v. IVaring, there cited. 
 
 (g) 2 Ves. & B. 470. 
 
 (Ii) Bitrkej V. Jones, 2 Ves. & B. 
 275.
 
 S. VIII.] MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 53 
 
 remedy was taken away : but such direction could not be applied 
 to a bond, where payment is presumed" (/). 
 
 In the case of judgments, as well as bonds, it appears payment 
 may be presumed; as in an instance where a judgment was above 
 twenty years standing (J). 
 
 SECTION VIII. 
 
 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 
 
 A PERSON devised certain real estates to trustees, who were 
 also the executors of the will, in trust to sell and to discharge 
 certain incumbrances. The overplus of the money arising 
 by the sale was, on the intention, held to be charged by the 
 testator with the payment of his simple contract debts ■ (k). 
 Where a person devised all his real and personal estate to 
 trustees, and their heirs, &c., in trust by application, sale, or 
 mortgage thereof, to pay thereout whatsoever he should there- 
 after by will or codicil appoint, and then appointed the trustees 
 executors of his will, and directed that his debts should be paid 
 by his executors; the will was held to authorise a sale of the real 
 estate for the payment of debts ; although it was contended, that 
 the direction being for the payment of debts by the executors, 
 this shewed that the intention of the testator was, to confine it to 
 payment out of the personal estate. In making this decision. Sir 
 W. Grant said, — " The testator has given his real estate to certain 
 persons, whom he also appoints executors of his will, upon trust 
 to sell for such purposes as he shall afterwards appoint ; and then 
 directs his debts to be paid by his executors. In a late case of 
 the same kind, I held that such a direction authorised a sale for 
 the payment of debts; and I continue of that opinion." His 
 Honor accordingly decreed a specific performance of a contract 
 to purchase from the executors a part of the real estate (1). A 
 
 (i) 19 Ves. 470. 
 
 (j) Curties v. Fitzpatrick, 2 Peake 
 Rep. 92 ; Flower v. Eart of Bolinghroks, 
 1 Stra. 639. 
 
 (Ac) Kidney v. Coussmaker, 1 Ves. jun. 
 
 436, 2 Ves. juu. 267, 7 Bro. P. C. ed. 
 Toml. 573. 
 
 (i) Barker v. Duke of Devonshire, 3 
 Mer. 310.
 
 54 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. [CH. III. 
 
 person, who had during his infancy borrowed 130Z. to buy, and 
 therewith bought, necessaries, devised his real estate to trustees 
 for the payment of his debts, with interest ; and it was held, that 
 this money lent to the testator, although during his infancy, was 
 within the trust, and ought to be paid (m). In Verneyw. Vcrney, 
 a will contained this devise ; — I give my estate at O., chargeable 
 nevertheless with my debts, to my wife for life ; with remainders 
 over. But by a codicil, the testator devised all his lands, tene- 
 ments, &c., which he held in fee simple in Great Britain, to H., 
 his heirs and assigns, upon trust, by mortgage or sale thereof, to 
 raise such money as should be necessary for the more easy and 
 effectual payment of his debts. A question was made, whether 
 the codicil did not amount in equity to a revocation of the devise 
 in the will, as to the estate at O. The Court declared, that the 
 codicil was, in equity, a revocation of the devise, so far only as to 
 enable H., the trustee, to mortgage or sell the same, to raise 
 money for payment of the testator's debts ; and that the surplus 
 thereof passed by the devises in the will [n). An anonymous 
 case is thus stated : — " A man devised his debts to be paid out of 
 his real and personal estates; the executor paid more than his 
 personal estate ; he shall be reimbursed out of the real estate" (o). 
 T. W. devised, subject to his debts, all his property real and per- 
 sonal, to his widow. J. W., the father of T. W., by his will gave 
 an annuity for her life to the widow of T. W., and made the son 
 of T. W. his residuary devisee and legatee. The estate of T. W. 
 was insufficient for the payment of his debts; and J. W., by 
 a codicil to his will, directed his trustees and executors to pay 
 the debts of T. W. The true construction of the father's will 
 was decided to be, that, by the direction to pay his son's debts, 
 he intended only the payment of such part as, after the due appli- 
 cation of the son's estate, should remain unsatisfied (/?). A person 
 devised real estates, in trust to sell for payment of his debts; and, 
 subject thereto, he gave the same estates to F. for life, without 
 impeachment of waste, with remainder to her first and other sons 
 
 (m) Marlow v, Pitfeild, 1 P. W, 558. 
 (n) Belt's Supplem. to Ves. sen., 189, 
 2nd ed. 200. 
 
 (o) 2 Ch. Cas. 109. 
 
 (/)) Walker v. Lodge, 3 Russ. 459.
 
 S. VIII.] MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 55 
 
 in tail. The trustees sold part only of the estates, and cut down 
 and sold timber and other wood on other parts of the estates, and 
 applied the proceeds in payment of the debts. It was decided, that 
 *' by the act of the trustee, the wood and timber, which would have 
 belonged to the tenant for life, have been applied in relieving the 
 inheritance from a burthen, to which it was subjected by the tes- 
 tator. And therefore the tenant for life is entitled to a charge on 
 the inheritance, for the sum for which the timber and other wood 
 were sold" (q). 
 
 (2) Davies V. Wescomh, 2 Sim. 425.
 
 50 
 
 [CH. IV. 
 
 CHAPTER IV. 
 
 OF A CHARGE OF DEBTS, OR DEBTS AND LEGACIES, ON 
 REAL ESTATE. 
 
 Sect. I. — Tlie Trust created hy a Charge. 
 
 II. — Wills in which Real Estate has been held to he charged 
 with the payment of Debts, or Debts and Legacies. 
 - Wills in which Real Estate has been held not to be 
 charged tcith the payment of Debts, or Debts and 
 Legacies. 
 -Copyholds charged. 
 V. — Exemption of the Testator' s personal Estate. 
 VI. — Responsibility of a Purchaser. 
 VII. — Miscellaneous Points of the general Subject. 
 
 III.- 
 
 IV. 
 
 SECTION I. 
 
 THE TRUST CREATED BY A CHARGE. 
 
 Land is frequently devised, in trust for the payment of debts, 
 or debts and legacies ; and is as often charged with the payment 
 of them. A difference between a devise and charge seems to be, 
 that, on a devise, the will expressly creates a trust for the payment 
 intended ; and where a charge only is created, a trust for payment 
 is not expressed in the will, but is, in a Court of Equity, implied 
 in the charge (a). 
 
 The land charged sometimes descends to the testator's heir at 
 law (Z»), and is more frequently devised by the will. And equity 
 
 (a) Clarke v. Smith, 1 Lutw. 793, 797, 
 798 ; Elliot v. Merryman, Barn. Ch. 
 Rep. 78; Silh v. Prime, 1 Bro. C. C. 
 138, n. ; Bailey v. Ekins, 7 Ves. 323. 
 
 (/*) FrecmouU v. Dedire, 1 P. W. 429 ; 
 
 Young V. Dennet, 2 Dick. 452 ; Hargrave 
 V. Ti7idal, 1 Bro. C. C. 136, n. ; Bailey 
 V. Ekins, 7 Ves. 323. See also Clarke v. 
 Smith, 1 Lulw. 793, 797, Com. 72.
 
 S. II.] WILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. 57 
 
 fastens on the land a trust, available against the heir if the land 
 descends, and against the devisee if it is devised (c). 
 
 If the will charges the land with either debts, or debts and 
 legacies, a Court of Equity will, if a mortgage or sale of the 
 estate is necessary for the payment of them, accordingly decree a 
 mortgage or sale for the purpose (d). 
 
 SECTION 11. 
 
 WILLS IN WHICH REAL ESTATE HAS BEEN HELD TO BE CHARGED 
 WITH THE PAYMENT OF DEBTS, OR DEBTS AND LEGACIES. 
 
 The language of a will is often too clear to admit a doubt, if 
 real estate is or is not charged with the payment of debts, or debts 
 and legacies. But in many instances this clearness is wanting ; 
 and the question is then raised if debts, or debts and legacies, are 
 by the will charged on the real estate. The fact that they are, 
 or are not, so charged, depends on the intention, which, on an 
 examination of the whole will, is to be collected from it (e). 
 
 Where this inquiry has been occasioned, land, copyhold at 
 the will of the lord (/), customary (y), and freehold, has been 
 held to be charged, in many instances, with debts (h), and in 
 
 (c) See, besides the authorities in the 
 last note, Shallcross v. Fhiden, 3 Ves. 
 739. 
 
 (d) Hughs V. Collis, 1 Ch. Cas. 179 ; 
 Stubbs V. Stubbs, Cas. T. Finch, 415; 
 Newman v. Johnson, 1 Vern. 45 ; Clowds~ 
 ley V. Pelham, ib. 411 ; Berry v.Askham, 
 2 Vern. 26 ; Wareham v. Brown, ib, 153 ; 
 Harris v. Ingledew, 3 P. W. 91 ; Anon, 
 ib. 389, n. A. ; Elliot v. Merriinan, 2 
 Atk. 41 ; Finch v. Hattersley, 3 Piussell, 
 345, n. See also Green v. Belchier, 1 
 Atk. 506. 
 
 (e) Thomas v. Britnell, 2 Ves. 313 ; 
 Noel V. Weston, 2 Ves. & B. 269 ; and 
 see 1 W. Bl. Rep. 544. 
 
 (/) Newman v. Johnson, 1 Vern. 45; 
 
 Stanger v. Tryon, 2 Vern. 3rd ed. 709, n. 
 (2); Harris v. Ingledew, 3 P. W. 91 ; 
 Tudor V. Anson, 2 Ves. 582 ; Car v. 
 Ellison, 3 Atk. 73, 76; Coombes v. Gibson, 
 1 Bro. C. C. 273 ; Kentish v. Kentish, 3 
 Bro. C. C. 257 ; Growcock v. Smith, 2 
 Cox, 397, Pennington v. Pennington, 
 1 Ves. & B. 406; Noel v. Weston, 2 
 Ves. & B. 269 ; lioivley v. Eyton, 2 Mer. 
 128 ; Ronalds v. Feltham, 1 Turn. & R. 
 418. 
 
 (g) Earl of Godolphin v. Penneck, 2 
 Ves. 271. 
 
 (h) Stubbs V. Stubbs, Cas. T. Finch, 
 415; Cloudsleyv. Pelham, 1 Vern. 411, 
 cited, and said to le aflirmcd in II. L., 
 Nels. Rep. 178, and 2 Vern. 229 ; Kay
 
 58 WILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. [CH. IV. 
 
 other instances with debts and legacies (i). In Alexander v. 
 Holland^ a debt was held to be charged on the testator's copyhold 
 only, and not on his freehold land (J). 
 
 Some additional cases claim more particnlar notice, as the 
 terms of the wills, and the construction put on them, seem to con- 
 stitute precedents of ready practical application on interpreting 
 future wills of the same kind. 
 
 A charge, then, of debts on real estate, after in the will de- 
 vised, has been held to be created by the following words : — 
 
 " As for my lands, tenements, goods, and chattels, I give and 
 bequeath as followeth : After my debts paid, to my five daugh- 
 ters lOOZ. a-piece. Also I give to my wife, whom 1 make my 
 executrix, all the rest of my lands and tenements, goods and 
 chattels " (^). 
 
 " My debts and legacies being first deducted, I devise all my 
 estate, both real and personal, to A." (/). 
 
 " As to all my worldly estate, my debts being first satisfied, I 
 devise the same as follows" {m). 
 
 " As for my worldly goods, with which it hath pleased God to 
 bless me, after my debts paid, and funeral expenses discharged, I 
 dispose thereof as follows" (w). 
 
 " After payment of all my just debts, funeral expenses, and the 
 expenses of the probate hereof, I give," &c. (o). 
 
 V. Townsend, 2 Vern. 3rd ed. 709, n. (2) ; 
 Foster v. Cook, 3 Bro. C. C. 347 ; Brad- 
 ford V. Fotey, ib. 351, n. See also Webb 
 V. Webb, Barn. Ch. Rep. 89; A7wn. 2 
 Freem. 192 ; Thomas v. Britnell, 2 Ves. 
 313 ; Clarke v. SeweLl, 3 Atk. 96, 100 ; 
 Muddle V. Fry, 6 Madd. 270 ; and see, 
 farther, the cases on other points cited in 
 the course of this section. 
 
 (0 Hughs V. Cotlis, 1 Ch. Cas. 179; 
 Wareham v. Brown, 2 Vern. 153; Dal- 
 man v. Smith, or Weston, 2 Vern. 740, 
 Prec. Ch. 456, 1 Dick. 26, Lumley v. 
 May, Prec. Ch. 37 ; Astley v. Powis, 1 
 Ves. 483, 495 ; Ellison v. Airey, 2 Ves. 
 568: Bridgvuin v. Uuve, 3 Atk. 201 ; 
 Williams V. Bishop of Lnndajf, I Cox, 
 
 254 ; Coxe v Basset, 3 Ves. 155 ; Slaple- 
 ton V. Stapleton, 2 Ball & B. 523. 
 
 U) 2 Kenyon, pt. 2, p. 4. 
 
 (/i) Hughs V. Collis, cited 1 Ch. Cas. 
 179. 
 
 (/) 1^'ewman v. Johnson, 1 Vern. 45. 
 
 (m) Harris v. Ingledew, 3 P. W. 91. 
 
 (n) Hill V. Bishop of London, 1 Atk. 
 618, 621. See also on the words 
 " worldly goods," Miles v. Leigh, 1 West 
 Cas. T.Hardw. 710. 
 
 (o) Shallcross v. Finden, 3 Ves. 738 
 See also King v. King, 3 P. W. 358 
 Tompkins v. Tompkins, Prec. Ch. 397 
 and Kidney v. Coiis>imaker, I Ves. jun. 
 440.
 
 S. II.] WILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. 59 
 
 " As to my temporal estate, I give and dispose thereof as fol- 
 loweth. First I will that all my debts be justly paid. Also I 
 devise all my estate in G. to A." (p). 
 
 " Imprimis, I will and devise that all my debts, legacies, and 
 funeral, shall be paid and satisfied in the first place. Item, I give 
 and devise," &.e. (</). 
 
 " I do by this my will dispose of such Morldly estate as it hath 
 pleased God to bestow upon me. First, I will that all my debts 
 be paid and discharged ; and, out of the remainder of my estate, 
 I give and bequeath unto my wife 300/. My mind and will is, 
 that my wife have one moiety of what is left after my debts 
 paid" (/•). 
 
 " As to my worldly estate, which it hath pleased God to bestow 
 upon me, 1 give and dispose thereof in manner following ; that 
 is to say. Imprimis, I will that all the debts, which I shall owe at 
 the time of my decease, be discharged and paid. Item" I give, 
 devise, and bequeath, &,c. (s). 
 
 (p) Bawdier v. Smith, Prec. Ch.264. 
 
 Iq) Trott V. Vernon, Prec. Ch. 430, 1 
 Eq. Cas. Abr. 198, 2 Vern. 708, Gilb, 
 Eq. Rep. 111. 
 
 (/■) Beachcroft v. Beachcroft, 2 Vern. 
 690. 
 
 (s) Legh V. The Earl of Warringtan, 
 
 1 Bro. P. C. ed. Toml. 511, cited 2 Ves. 
 27'2, 314, and slated from MS. in Belt's 
 Supplein. to Ves. sen. 341, 2nd ed. 361 ; 
 Lord Warri7igton v. Leigh, or Lee, S. C, 
 
 2 Eq. Cas. Abr. 372, Ca. 19, Sel. Ca. 
 Ch. 39. In Mr. Belt's MS. note of this 
 case the will says, " As to my worldly 
 estate &c., I will &c. be discharged and 
 paid out of my worldly estate." If, how- 
 ever, after the words " discharged and 
 paid" followed, in the will, the words 
 " out of my worldly estate," there would, 
 it is certain, be an eipress charge on the 
 testator's real estate (^Beachcroft v. Beach- 
 croft, 2 Vern. 690 ; Clark v, Sewell, 3 
 Atk. 96, 100; Awbrey v. Middleton, 4 
 Vin. Abr. 460, 2 Eq. Cas. Abr. 497, 
 Ca. 16). But it is observable that, on 
 
 the appeal to the House of Lords, no part 
 of the argument of counsel turned on tiie 
 construction of the words '" worldly estate" 
 in the expression " out of my worldly 
 estate." And Lord Hardwicke, who, in 
 2 Ves. 272, cites the case in question, 
 not from Bro. P. C, but probably from a 
 MS., clearly makes the decision depend, 
 not on the meaning of " worldly estate," 
 in the words " out of my worldly estate," 
 but on theeffect of the introductory clause, 
 interpreted by Lord King in the Court of 
 Chancery, and by the House of Lords, to 
 run over the whole will. These circum- 
 stances alone might perhaps establish, 
 beyond all doubt, the accuracy of the re- 
 port in Bro. P. C, and of the short note 
 in 2 Eq. Cas. Abr., and, with reference 
 to the same words, also the report in Sel. 
 Ca. Ch. As, however, the case of Legh 
 V. The Earl of Warrington is cited on 
 all occasions, and is confessedly the 
 leading authority on the subject, and 
 in a late case was cited by counsel from 
 Mr. Bell's MS. note {Cliffoi-d v. Lewii,
 
 60 AVILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. [CH. IV. 
 
 " As to the worldly estate with which it hath pleased (lod to 
 bless me, I g'ive, devise, and dispose thereof as followeth : Im- 
 primis, I will that the charges of my funeral, and all debts which 
 shall be owing by me at the time of my death, be justly paid and 
 satisfied. And I will that all my debts be discharged within one 
 year after my decease, or so soon after as can possibly be per- 
 formed" (l). 
 
 " I will that my debts and funeral expenses be first paid and 
 discharged" (u). 
 
 "I will that all my just debts and funeral expenses be paid 
 and satisfied" {v). 
 
 " In the first place I will that all my just debts and funeral 
 expenses be fully paid and satisfied" (iv). 
 
 " First I will that all my just debts shall be in the first place 
 paid and satisfied" (x). 
 
 " First I will and direct that all my legal debts, legacies, and 
 funeral expenses, shall be fully paid and discharged" (y). 
 
 " I will and direct that my just debts, funeral and testamentary 
 expenses, be paid and satisfied" (z). 
 
 " First I direct all my just debts and funeral expenses to be 
 fully paid and satisfied" (a). 
 
 " First I will that all my debts, to the value of 20^. in the 
 
 6 Madd. 37), the difference between the 
 reports and that MS. appeared to be 
 of sufficient importance, to lead to an 
 examination of the will, at Doctors' 
 Commons. The author is accord- 
 ingly able to state, that he has there 
 read the original will of Mr, Langham 
 Booth, the testator in the suit, and that 
 the words of the clause in question are, — 
 As to my worldly estate, which it hath 
 pleased God to bestow upon me, I give 
 and dispose thereof in manner following; 
 that is to say, " Imprimis I will that all 
 the debts, which I shall owe at the time 
 of my decease, be discharged and paid." 
 Then immediately follows the word 
 " Item/' introductory to the devise of 
 the annuity to Mary Saxon. The report 
 
 in Bro. P. C. is therefore correct, with 
 the unimportant exception of the words 
 " mi/ debts," the expression in the will 
 being " the debts". 
 
 (0 Hatton V. Nichol, Cas. T. Talb, 
 110. 
 
 («) Colley V. Micklesto7i, cited 2 Ves. 
 582 ; Williams v. Chitty, 3 Ves. 545. 
 
 (v) Tudor V. Anson, 2 Ves. 582. 
 
 (w) Stanger v. Tryon, 2 Vern. 3rd ed. 
 709, n. 
 
 (a) Kentish v. Kentish, 3 Bro. C. C. 
 257. 
 
 (v) Kightley v. Kighlley, 2 Ves. jun. 
 328, 330. 
 
 (z) Clifford V. Lewis, 6 Madd. 33. 
 
 (a) Ronalds v. Feltham, 1 Turn. & R. 
 418.
 
 S. II.] WILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. 61 
 
 pound, and my funeral expenses, shall be paid by my executrix 
 hereinafter named" {/>). 
 
 " First I will and direct that all my just debts and funeral 
 expenses be fully paid and satisfied by my executor hereinafter 
 named" (c). 
 
 In these examples of a charge on real estate, after in tlie 
 will devised, two kinds of charge occur; one, where the will 
 omits to mention the party by whom the debts are to be paid ; 
 and the other, wdiere it is said they are to be paid by the 
 executor. 
 
 And it appears that where the will omits to mention the party, 
 by whom the debts are to be paid, an intention to charge may be 
 inferred — 1. from the circumstance, that personal estate needs not 
 an expressed intention to make it liable to debts (d) ; and 2. from 
 the circumstance, that the testator minded to pay his debts, and 
 also to devise real estate, before such devise uses these, or the like 
 words, — " As to all my worldly estate, my debts being first satis- 
 fied", I devise, &c. ; or, " Imprimis, I will and devise that all my 
 debts, legacies, and funeral, shall be paid and satisfied in the first 
 place" ; or, " First I direct all my just debts and funeral expenses 
 to be fully paid and satisfied" ; — and by these, or the like words, 
 expresses an intention, not only to benefit his creditors, but to 
 give them a preference before the devisee ; and, to this end, first 
 to secure payment to his creditors, and then, but not until then, 
 to make the real estate profitable to the devisee (e). 
 
 And it is observable that when, before the devise of the real 
 estate, a will contains the following, or the like expression, " I 
 will and direct that my just debts, funeral and testamentary ex- 
 penses, be paid and satisfied"; these words, although they do 
 not express that the debts are to be paid j^rs^, or, in the first place ^ 
 are yet interpreted to mean the same, as if the form of expression 
 
 (6) Finch V. Hattersley, cited 7 Ves. 
 210, 211, and stated from Reg. B. 3 
 Russell, 345, n. 
 
 (c) Henoell v. Whiiaker, 3 Russell, 
 343. 
 
 (rf) Shall cross v. Fimlen, 3 Ves, 739. 
 
 (e) Trott V. Vermw, Free. Ch. 430. 2 
 Vern. 708 ; Harris v. Ingledew, 3 P. W. 
 91, 96; Shallcross v. Fimlen, 3 Ves. 
 738 ; Ronalds v. Fellham, 1 Turn, & R. 
 418.
 
 62 WILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. [CH. IV. 
 
 expressly included those words " first", or " in the first place", 
 and are accordingly construed equally to denote the testator's 
 intention to prefer his creditors before the devisee of his real 
 estate (f). 
 
 It farther appears, that where it is said in the will that the 
 debts are to be paid by the executor, an intention to charge debts 
 on real estate devised, may be inferred, — 1. from the circum- 
 stance, that personal estate needs not an expressed intention to 
 make it liable to debts ; and 2. from the circumstance, that the 
 testator wills that his debts shall be paid by his executor (although 
 described by the word executor), and devises beneficially to his 
 executor real estate (r/) ; or from the circumstances, that the 
 testator devises beneficially to his executor real estate, and minded 
 to pay his debts, and that they shall be paid by his executor, uses 
 these, or the like words :— " First I will that all my debts shall 
 be paid by my executor", — and by these, or the like words, ex- 
 presses an intention, not only to benefit his creditors, but to 
 give them a preference before the devisee ; and, to this end, 
 first to secure payment to his creditors, and then, but not until 
 then, to make the real estate profitable to the executor, to whom 
 it is devised (A). 
 
 The will and decision in Legh v. Earl of Warrington appear 
 to be the express ground, on which Lord Hardwicke decided the 
 case of Earl of Godolphin v. PennecJi. In this case, F. P. by 
 his will declared, he would make a disposition of his whole estate 
 and effects. The first disposition was, that all his debts and 
 funeral charges should be first paid and satisfied. Then he 
 devised the particular parts of his estate, subject thereto, among 
 particular persons. The question was, whether certain cus- 
 tomary lands, held of the manor part of the duchy of CornM'all, 
 which had been mentioned in the will in distinct parts from the 
 
 (/) C^'ord V. 'Lewis, 6 Madd. 33 ; 
 Tudor V. Anson, 2 Ves. 582. 
 
 (g) ^inch V. Hattersley, 3 Russell, 
 345, n., and cited 7 Ves. 210; Henvell 
 V. Whilaker, 3 Russell, 343. See also 
 Aubrey v. Middleton, 4 Vin. Abr. 460, 2 
 Eq. Cas. Abr. 497, Ca. 16; Alcock v. 
 
 Sparhaivk, 2 Vern. 228 ; and Attorney 
 General v. Moor, 1 West Cas. T. Hardw. 
 102. 
 
 (/i) Trott V. Vernon, Free. Ch. 430; 
 Finch V. Hattersley , 3 Russell, 345, n., 
 cited 7 Ves. 210 ; Henvell v. IVhhaker, 3 
 Russell, 343.
 
 S. II.] WILLS IN WHICH REAL ESTATE HAS BEEN HELD, &C. 63 
 
 rest of the fee simple lands, were subject to debts, the testator 
 having surrendered those lands to B. P., who declared a trust 
 thereof by deed for several persons, and for the use of such as 
 testator should appoint. By Lord Hardwicke . — " I am satisfied 
 that by the will these lands are subject to debts. All the lands, 
 and e^'cry part of them devised, are made subject to debts. Here 
 the first disposition runs over all the subsequent clauses in this 
 will. That was the construction made by Lord King, in Leigh 
 V. Earl of Warwick (/), affirmed in the House of Lords; though 
 there were strong words against its running over the whole : for 
 though the testator there had used these general words here, yet 
 afterward, in devising the particular parts, he had devised them 
 subject to debts; and the question was, whether those other parts, 
 not so devised, should be by the first clause subject ; and it was 
 determined by that general clause to affect the whole, notwith- 
 standing the particular devises : that therefore was stronger ; and 
 in this I am of opinion the intent was, that every thing the 
 testator gave by his will should be subject to his debts. Con- 
 sequently, the trust of the lands must be subject as well as the 
 rest, notwithstanding these are mentioned in distinct parts, agree- 
 able to that case on the will of Booth before Lord King" {j). 
 
 Earl of Godolphin v. Penneck appears to be an authority, that 
 although a part of a testator's real estate is devised expressly sub- 
 ject to debts, a general introductory clause may also charge with 
 the payment of them, other real estate devised, but not by the 
 will expressly charged with the payment of debts {k). 
 
 (i) Undoubtedly the case meant is, 
 Legh V. Earl of Warrington, 1 Bro. P. C. 
 ed. Toml. 511, on the will of Langham 
 Booth. 
 
 O') 2 Ves. 271; cited 3 Ves. 552, 
 where Lord Loughborough says he di- 
 rected a search for the will in Lord Go- 
 dolphin V. Penneck, but it could not be 
 found. In the Reg. B. 1750, A. fo. 
 404 b, and 405, it appears that the will 
 of Francis Penneck is dated 6th March, 
 1722, and that he died about that time. 
 
 (/c) Earl oj' Godolphin v. Penneck may 
 
 be an authority for this point, although 
 the interpretation of the will in Legh v. 
 Eart of Warrington, as that case is cited 
 by Lord Hardwicke in the report of the 
 judgment above transcribed, may not be 
 the right interpretation of it. If it may 
 be allowed to doubt the correctness of 
 the construction there put on Mr. Booth's 
 Will, it may be thought to be an error to 
 say, that the testator " afterward, in de- 
 vising the particular parts, devised them 
 subject to debts." On an examination of 
 the will, it appears that, after the intro-
 
 64 
 
 [CH. IV. 
 
 SECTION III. 
 
 WILLS IN WHICH REAL ESTATE HAS BEEN HELD NOT TO BE 
 CHARGED WITH THE PAYMENT OF DEBTS, OR DEBTS AND 
 LEGACIES. 
 
 Land, copyhold (/), and freehold, has in several cases been 
 held not to be b)^ a will charged with the debts of the testator (vi). 
 As each decision here referred to turned on the language of the 
 whole will, and the terms of each vr^ may not, all of them, ad- 
 mit of ready practical application in future cases, a statement of 
 those wills may here be omitted. This general proposition, to be 
 extracted from them, may, however, here be introduced; namely, 
 that if the testator expresses his will to be, that his debts shall be 
 paid by his executor, as if he says, — " Imprimis, I wall that all 
 
 ductory clause, the first disposition is of 
 an annuity or rent of lOOL, which the 
 testator devises to INI. S. for her life, and 
 charges on his manor of Thornton, and 
 other lands in the parish of Thornton, 
 with a clause of entry and distress on 
 non-payment. Immediately after this 
 clause the will proceeds, " Item all the 
 said manor, ^c, subject to the payment 
 of the said rent as aforesaid, and charged 
 and chargeable there;cith, I give and de- 
 vise," &c. Here follow a devise to Henry 
 Booth for life, and numerous other limi- 
 tations, to the greater part of which are 
 added the words, " charged and charge- 
 able as aforesaid." The will contains a 
 power to Henry Booth to create a jointure 
 out of the same lands ; and this power is 
 given expressly, " subject to the payment 
 of the said rent as aforesaid." Besides 
 the estates charged with that annuity, 
 other real estate, not charged with it, is 
 devised ; and in this devise the limita- 
 tions are made . without the words " charged 
 and chargeable as aforesaid," or any other 
 words of reference to a charge in the will. 
 These words, " charged and chargeable 
 as aforesaid," added to the limitations of 
 the lands cliarged with the annuity given 
 
 to M. S. , refer, it is imagined, exclu.. 
 sively to that annuity ; and, unless those 
 words can be construed to refer to the in- 
 troductory clause in the will, there is not, 
 beyond that introduction, a single syllable 
 about debts, either in the will, or in the 
 two codicils annexed to it, 
 
 (/) Byas V. Byas, 2 Ves. 164. 
 
 (to) Anon. 2 Freem. 192, Ca. 269 b. ; 
 Barton v. Witcocks, 4 Yin. Abr. 463, 2 
 Eq. Cas. Abr. 499 ; Parker v. ICi/coi, 
 8 Vin. Abr. 439, 2 Eq. Cas. Abr. 371 ; 
 Eyles V. Cary, 1 Vern. 457 ; Thomas v. 
 Britnell, 2Ves.313 ; Brydges, or Bridgen, 
 V. Landen, or Lander, cited 3 Ves. 550, 
 and 7 Ves. 210, 211, and stated from 
 Eeg. B. 3 Russ. 346 n. ; Keeling v. 
 Brown, 5 Ves. 359 ; Powell v. Robins, 7 
 Ves. 209 ; Willan v. Lancaster, 3 Russ. 
 108. See also Sanderson v. Wharton, 8 
 Price, 680. Anon. 2 Freem. 192 seems 
 to be overruled by Clifford v. Lewis, 6 
 Madd. 33. On Eyles v. Cary, there is 
 this marginal note in 1 Eq. Cas. Abr. 
 198, — " This is a strong case. I question 
 if it would now be so decreed. Per Ver- 
 ney, M. R., in the case of Mallison and 
 Middleton, Aug. 2, 1739."
 
 S. IV.] COPYHOLDS CHARGED. 65 
 
 such debts as I shall justly owe at the time of my decease, and my 
 funeral charges and expenses be in the first place paid l)y my 
 executor hereinafter named"; or, "Imprimis I will and direct 
 that all my just debts and funeral expenses be paid and dis- 
 charged, as soon as conveniently may be after my decease, by my 
 executor hereinafter named"; or, " I will that all my just debts 
 and funeral expenses may be satisfied and paid by my executor, 
 as soon after my decease as may be" ; — and the testator does not 
 devise real estate to the executor, that expression of intention to 
 pay his debts is construed to apply to personal property only, and 
 is not sufficient to charge with the payment of debts real estate 
 devised by the will to another person («). 
 
 SECTION IV. 
 
 COPYHOLDS CHARGED. 
 
 Before the statute 55 George III. c. 192, if copyholds were 
 expressly devised (o), or devised by a general description not 
 satisfied by freehold lands of the testator (y;), and such copyholds 
 were either expressly, or under general words {q), charged by the 
 will with the payment of debts, and there was not a surrender to 
 the use of the will, a Court of Equity supplied the surrender for 
 the benefit of the creditors (r). 
 
 Before the same statute, in the case of Harris v. Iiifjlednr, 
 where copyholds were expressly devised to one person, and 
 by the same will, freehold lands were devised to other per- 
 sons, and, by the general description of " worldly estate", the 
 copyhold, as well as freehold, was charged with the payment of 
 the testator's debts, and the copyhold was not surrendered to the 
 use of the will, and, in consequence, descended to the testator's 
 
 (to) Bridgen v. Lander, 3 Russ. 346, n. ; 
 Keeling v. Brown, 5 Ves. 359 : Powell v. 
 Robins, 7 Ves. 209 ; Willun v. Lancaster, 
 3 Russ. 108. 
 
 (o) Harris v. Ingledew, 3 P. W. 91. 
 
 (p) Ithell V. Beane, 1 Ves. 215 ; Tu- 
 dor V. Anson, 2 Ves. 582. 
 
 Tudor V. Anson, 2 Ves. 582. 
 
 ()•) Harris v. Ingledeic, 3 P. VV. 91. 
 96. 97; Ithell v. Beane, 1 Ves. 215, 1 
 Dick. 132 ; Tudor v. An. on, 2 Ves. 582 ; 
 Car V. Ellison, 3 Atk. 77 ; Coombes v. 
 Gibson, I Hro. C. C. 273, and Belt's ed. 
 274, n. (8). See Pope v. Garland, 3 
 
 (q) Harris v. Ingledev, 3 P. \\ . 91 ; i Salk. 84.
 
 6G C:OI'YHOLDS C'HAUGED. [cil. IV. 
 
 lieir, for, it would seem, his own benefit, subject only to the 
 charge ; Sir J. Jekyll, M. R., expressed an opinion, that, not- 
 withstanding the copyhold was not surrendered to the use of the 
 will, " the copyhold shoidd be charged with the debts pari passu 
 with the freehold" ; and His Honor accordingly decreed, " that the 
 freehold and copyhold estates, particularly devised by the testator, 
 were liable to the payment of his debts, pari jmssu {s). In the 
 later case, however, of Groivcock v. Smith, (also determined before 
 the statute mentioned, ) the law seems to be differently laid down ; 
 a distinction being there made between surrendered and unsur- 
 rendered copyholds. The testator, in this case, having both free- 
 hold and copyhold estates, and havinf/ surrendered the copyholds 
 to the use of his will, made his will, and thereby expressly 
 charged " all and singular his real estate", with the payment of 
 so much of his debts as his personal estate should not be suffi- 
 cient to satisfy ; and he then devised the freehold and copyhold 
 estates to different persons. The personal estate was considerably 
 deficient for payment of the debts. " The Court thought the 
 copyholds well charged, and directed the deficiency to be raised 
 out of the freehold and copyhold, rateably according to their value ; 
 and stated the distinction to be, that where a testator having both 
 freehold and copyhold estates, but not having surrendered the 
 copyhold to the use of his will, charges all his real estates with 
 the payment of his debts, there the copyhold should not be 
 applied until the freehold was exhausted ; but where he liad 
 surrendered them, the freehold and copyhold should contribute 
 rateably " [t). Harris v. Ingledeio, and Groivcock v. Smith, appear 
 to be authorities, that if, by the will of a person deceased after the 
 statute 55 George HI. c. 192, copyhold lands are expressly devised, 
 and the testator devises freehold land also, and charges both free- 
 hold and copyhold with the payment of his debts ; whether the 
 copyhold is, or is not surrendered to the use of the will, the copy- 
 hold is, pari passu with the freehold, liable to satisfy the debts ; 
 in other words, the freehold and copyhold are liable to contribute 
 rateably according to their value. 
 
 (s) 3 P. VV. 91, 96. 98. and 99, n. [B] ; I (0 2 Cox, 397. See Coomhes v. Oih- 
 G Vin. Abr. 58 ; 2 Eq. Cas. Abr. 255. I so,,, 1 Bro. C, C. 273.
 
 v.] 
 
 SECTION V. 
 
 EXEMPTION OF THE TESTATOR's PERSONAL ESTATE. 
 
 Except as against creditors, from whom a testator cannot, im- 
 less they please, take his personal assets («), a charge of debts 
 on real estate may exempt the testator's personal property from 
 its natural liability to be first applied in the payment of them. 
 But a charge on the testator's real estate, or on a particular part 
 of it (r), is not alone or of itself sufficient to exonerate the person- 
 alty. The personal estate will continue to be first applicable {w), 
 unless an intention to exempt it can be collected from some other 
 part of the will (.r). 
 
 In Morrow v. Bush, where a will provided a particular fund, 
 namely, certain parts of the testator's real estate, for the payment 
 of his debts, and which fund was not sufficient to pay them, real 
 estate settled by the will was, on the intent to exempt the per- 
 sonal estate, held to be obliged to make up the deficiency (?/). 
 In Gleed v. Gleed, personal estate was held not to be exempted 
 from being first liable to pay debts and legacies, charged by the 
 will on real estate ; and, in the same case, certain legacies were 
 held to be payable out of real estate only {z). 
 
 (u) Prec. Ch, 3 ; 2 Atk. 624 ; 1 Wils. 
 24. 
 
 (v) Bridgman v. Dove, 3 Atk. 201, 
 202 ; Stapleton v. StapleUvi, 2 Ball & B. 
 523. 
 
 (w) Mead v. Hide, 2 Vern. 120; Cower 
 V, Mead, S. C, Prec. Ch. 2; French v. 
 Chichester, 2 Vern. 568, 3 Bro. P. C. ed. 
 Torn], 16 ; Dolman v. Smith, or Weston, 
 2 Vern. 740, Prec. Ch. 456, 1 Dick. 
 26 ; Lucy v. Bromley, Bunb. 260, Fitz- 
 gib. 41, 2 Eq. Cas. Abr. 458, 500 ; 
 Hatton v.Nichol, Cas. T. Talb. 110; 
 Bromhall v, Wilbraham, ilnd. 274, cited 
 
 ihhl. 209 ; Bridgman v. Dove, 3 Atk. 
 •201 ; Aldridge v. Lord Wallicoiirt, 1 
 Ball & B. 312 ; Stapletoii v. Stapleton, 2 
 Ball & B. 523. See also Walker v. 
 Jackion, 2 Atk. 625, and Davis v. Dee, 4 
 Vin. Abr. 455. 
 
 (i) Attorney General v. Barlcham, 
 cited Cas. T. Talb. 206, 210; Brad- 
 nox V. Gratwick, cited 3 P. W. 325; 
 ]\'illiams v. Bishop of Landaff, 1 Cox, 
 254 ; Reeves v. Newenham, 1 Vern. & 
 Scriv. 319,482,2 Ridgevv, P. C. 11. 
 
 (y) 1 Cox, 185. 
 
 (:) 2 Kenyon, part 2, p. 14. 
 
 V 2
 
 Gb 
 
 [CII. IV. 
 
 SECTION VI. 
 
 RESPONSIBILITY OF A PURCHASER. 
 
 When a person devises real estate, and cliarges it with the 
 payment of debts generally, they not being specified, as by a 
 schedule to the will, a purchaser of the estate is not bound to see 
 to the application of his purchase money. But if the debts, all or 
 some of them, are specified, then the purchaser is, in equity, obliged 
 to see his money applied in the payment of such specified debts {a). 
 And if the charge is of debts generally, and also of legacies, a 
 purchaser is, generally speaking, not bound to see his money 
 applied in payment of either debts or legacies {b). But a pm'- 
 chaser or mortgagee will be a party to a breach of trust, and, 
 consequently, after his money paid, responsible for and liable 
 to pay the legacies charged, if at the time of his purchase or 
 mortgage he had notice, as from the intrinsic nature of the tran- 
 saction, that his money was not to be applied in satisfaction of 
 the charges created by the will (c). 
 
 SECTION VII. 
 
 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 
 
 When a will charges real estate with the payment of debts, 
 all debts contracted either before or after the making of the will, 
 and not at the testator's death barred by the Statute of Limitations, 
 21 James I. c. 16, are, unless a contrary intention clearly appears 
 in the will, a charge on the estate (d). In Clarke v. Seivell, Lord 
 
 (a) Elliot V. Merryman, Barn. Ch. 
 Rep. 78 ; Walker v. Smallwood, Amb. 
 676 ; Walker v. Flamstead, 2 Kenyon, 
 part 2, p. 57. See also 6 Ves. 654, n. 
 These authorities contradict Anon. Mos. 
 96. 
 
 (b) Walker v. Ftaw!,iead, 2 Kenyon, 
 pail 2, p. 57.-2 Sim. & St. 205. See 
 
 Newell V. Ward, Nels. 38. 
 
 (c) Watkins V, Cheek, 2 Sim. & St. 
 199. 
 
 ((/) Brudenell v. Boughton, 2 Atk. 
 274; Bridgman v. Dove, 3 Atk 201; 
 Ilannh V. Packer, Amb. 556; Hahergham 
 V. Vincent, 1 Ves. jun. 411 ; Roue v. 
 Coni^ns-hame, 12 Ves. 37, 38.
 
 S. VII.] MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 69 
 
 Hardwicke admitted, that, suppose a man devises all his real 
 estate to A., and afterwards a particular farm to B., this would 
 be an exception out of the generality to A. "But," continued 
 his Lordship, "it is otherwise where there is a charge by a 
 testator upon all his estates for payment of debts ; for there the 
 devisee must take, subject to that charge" (e). If lands are 
 devised in fee to the testator's heir at law, the heir will take by 
 descent, and not by purchase, although by the will the lands are 
 charged with the payment of either debts (_/), or legacies (r/). A 
 person, by his will, charged all his real estate with the payment 
 of debts, and devised to his son and heir all the residue of his 
 estate, real and personal. After making his will, he purchased 
 several copyhold estates, held of the manor of W., which he 
 surrendered to such uses as he should, by wall or any codicil 
 thereto, appoint ; and he subsequently made a codicil, and thereby 
 devised to the same son all his copyhold estates within the manor 
 of W. On a creditors' bill against the son, Sir W. Grant 
 decided, that the codicil was a republication of the will, so as to 
 make the after purchased copyholds subject to the payment of the 
 testator's debts {h). Lands held in trust will pass vnider a devise 
 in general words, as lands, tenements, and hereditaments, con- 
 tained in the will of a surviving trustee, unless an intention not 
 to incKide them appears in the will (/) ; and such intention is, it 
 seems, inferred, where the testator charges the lands devised, with 
 the payment of debts, or legacies; and consequently the trust 
 estate wall not in these instances pass under the will {J). 
 
 (e) 3 Atk. 101. 
 
 (/ ) Piunket V, Petison, 2 Atk. 290 ; 
 Young V. Deniiet, 2 Dick. 452 ; Allen, or 
 Allan, V. Heher, 1 W. Bl. 22, 2 Stra. 
 1270. The authorities in this, and the 
 next, note overrule Gilpin's case, Cro. Car. 
 161, and Brittam, or Brittane, v. Char- 
 nock, 2 Mod. 286, 1 Freem. 2-J8. 
 
 (g) Haynsiinrth v. Pretty, Cro. Eliz. 
 833, 919, Mo. 644 ; Clerk v. Smith, 1 
 Salk. 241 ; Piunket v. Fenson, 2 Atk. 
 
 291) ; Allen v. Heher, 1 W.Bl. 22 ; Emer- 
 son V. Inchhird, 1 Ld. Eaym. 728 ; Chap- 
 lin V. Leroux, 5 M. & S. 14 ; Langley v. 
 Sneyd, 3 Brod. & B. 243, 1 Sim. & St. 
 45. 
 
 {h) Rnwleu V Eylo,!, 2 Mer. 128. 
 
 (/) Lord Brayhroke v. Inship, 8 Ves. 
 417. 
 
 (J) Poe v.Beade, 8 Durn. and E. 118, 
 cited 8 Ves. 437 ; Kx parte Morgan, 10 
 Ves. 101.
 
 70 
 
 [CH. V, 
 
 CHAPTER V. 
 
 OF A POWER TO RAISE MONEY FOR THE PAYMENT OF DEBTS, 
 DEBTS AND LEGACIES, OR LEGACIES ONLY (a). 
 
 A DISPOSITION of land for the payment of debts, or debts and 
 legacies, or legacies only, is frequently held not to pass an estate 
 in the land, but to confer a power only, bare of any estate, to 
 raise money for the purposes intended, (h) 
 
 The subject of a power of this description may here be treated 
 of imder the following heads : — 
 Sect I. — Of the Party to Sell under the Power. 
 II.— Of the Statute 21 Henry VIII. c. 4. 
 HI. — Of the Party to Sell, when no Person is by the Will 
 
 named for this jmrpose. 
 IV. — Of the Time for Sale, lohen the Property empowered 
 to he Sold is devised for Life, or is a Reversion 
 expectant on an Estate for Life. 
 V. — Of Descent to the Testator's Heir at Law until Sale. 
 VI. — Miscellaneous Points of the Geyieral Subject. 
 
 SECTION I. 
 
 OF THE PARTY TO SELL UNDER THE POWER. 
 
 On the party to sell under the power, there are, it will be seen, 
 some extremely refined and important distinctions. 
 
 (a) On the general subject of this sec- 
 tion, see, in adelition to the authorities 
 referred to, Anon. Dalison, 26, Ca. 3 ; 45, 
 Ca. 36 ; 106, Ca. 56 ; Dike v. Ricks, or 
 Ricke, Cro. Car. 335, 1 Pvol. Abr. 329, 
 pi. 9, 13; Harrington w . Attorney General, 
 Hardr. 419 ; Tenant v. Brown, 1 Ch. 
 
 Cas. 180; Cole v. Wade, 16 Ves. 27 
 
 Fitzh. Abr. tit. Devise, 10 ; 1 Rol. Abr. 
 329, pi. 8. 
 
 (6) Culpepper v, Aiton, or Austin, 2 
 Ch. Cas. 115, 221 ; Siaplelon v. Colvile, 
 Cas. T. Talb. 202, cited 2 Atk. 626; 
 Yates V. Compton, 2 P, W. 308 ; Blatch 
 V. Wilder, 1 Atk. 420, 1 West Cas. T. 
 Hardw. 322 ; Lancaster v. Thornton, 2 
 Burr. 1027 ; Foone v. Blount, Cowp. 464 , 
 466 ; Newton v. Bennet, 1 Bro. C. C, 
 135 ; White v. Vitty,2 Russell, 484, 495.
 
 S. 1.] OF THE PARTY TO SKLL UNDER THE POWER. 71 
 
 If in a bare power to sell to pay debts, or debts and legacies, 
 or legacies onlj^, the testator appoints several persons to sell, as 
 by the words, " I will that A. and B. shall sell", or, " I will that A. 
 B. and C. shall sell", these parties being the executors, or not the 
 executors of the will ; or by the words, " I will that my executors 
 shall sell"; here if all the parties sell, they must all join in the 
 sale and conveyance (c) ; and one of them cannot sell and convey 
 one part of the lands, and another of them another part to the 
 purchaser {d). 
 
 If the words of the power are, " I will that A. and B. shall 
 sell", and other persons, and not A. and B., are appointed the exe- 
 cutors of the will, and after the death of the testator A. or B. dies, 
 it is clear that at law the survivor cannot execute the power [c). 
 
 If the words are, " I will that my lands shall be sold by A. and 
 B., my executors", or, " by A. B. and C, my executors", and 
 A. dies ; it seems that at law B. in the first case, and B. and C. 
 in the second, cannot execute the power (jf ). 
 
 If the words are, " I will that A. and B. shall sell", or, " I will 
 that A. B. and C. shall sell", and these persons are appointed 
 executors, and A. dies ; it appears that at law, B. in the first case, 
 and B. and C. in the second, cannot execute the power (y). 
 
 If the words are, "' I will that my two executors shall sell" ; if 
 one of them dies, the survivor, it is said, cannot at law execute 
 the power (A). 
 
 If the words are, " I will that my executors shall sell", the 
 testator not in this place naming them, and he appoints A. and B., 
 or, A. B. and C, to be his executors ; it must be stated to be a 
 matter of some doubt, whether, if in the first case A. dies, or in 
 the second case A. and B. die, the survivor B. or C. can at law 
 execute the power, since one person only cannot satisfy the word 
 executors, in the plural [i). The inclination of the later autho- 
 
 (c) Co. Liu. 112 b.; Bro. Abr. tit. 
 Devise, pi. 31. 
 
 (rf) Plowd. Qujer. Qu. 243. 
 
 (e) Co. Litt. 112b,, 113 a.; Amm. 2 
 Dyer, 177 a., Ca. 32 ; GwiUiams v. 
 Roud, Hardr. 204. See While v. ViUii, 
 2 Russell, 481, 499. 
 
 (/) Co. Litt. 112 b., 113 a. See Sugd. 
 Pow. 3rd ed. 166. 
 
 (g) Anon. 2 Dyer, 177 a., Ca. 32; 
 Co. Litt. 112 b., ]13a. 
 
 (/() Co. Litt. 181b. 
 
 (i) See Guwdclirp's case, East. T. 49 
 Edw. 111. Ca. 10, p. 16, Bro. Abr. tit.
 
 72 OF THE PARTY TO SELL UNDER THE POWER. [cU. V. 
 
 rities seems however to be, that as the executorship, or office of 
 executor, devolves to the survivor, the authority to sell survives 
 with the office, and consequently that the power may be executed 
 by the survivor (J). 
 
 If the words are, " I will that my executors shall sell", the tes- 
 tator not naming them here, and he appoints A. B. and C. to be 
 his executors ; if A. dies, it is certain that B. and C. may, both at 
 law and in equity, execute the power ; because, being two per- 
 sons, the word executors, in the plural, continues to be satisfied 
 by the number of survivors {/<). 
 
 It appears from Perkins, — that if a testator says, " I will that 
 my executors shall sell", and appoints two executors, and one of 
 them renounces the executorship, and the other proves the will, a 
 sale by the latter alone is valid (/) ; a case, as presently will be 
 seen, expressly provided for by the statute 21 Henry VIII. c. 4: 
 that if the testator says, " I will that A. and B., my executors, 
 shall sell", and they both renounce the executorship, yet that 
 they may sell, because they are named in such direction to 
 sell (?/?) : but that if he says, " I will that my executors shall sell", 
 without here expressing their names, and they all renounce the 
 executorship, they cannot in this case sell {n) : that if the tes- 
 tator says, " I will that A., Mayor of London, shall sell", and 
 before the sale another man is chosen mayor, A. may, notwith- 
 standing, execute the power (o) : that if the testator says, " I will 
 that A. my heir shall sell", and A. dies before the sale, A.'s heir 
 
 Devise, pi. 10, Fitzh. Abr. tit. Devise, 
 pi. 8 ; Anon. Mo. 61, Ca. 172 ; Lock v. 
 hoggin, 1 Anders. 145 ; Anon. Gouldsb. 
 2, Ca. 4.— Co. Litt. 112 b., 181 b. ; also 
 Preamble to Stat. 21 H. VIII. c. 4 ; and 
 6 Duvn. & E. 396. 
 
 (J) Perk. 550 ; Hoitell v. Barne>, Cio. 
 Car. 382 ; Barne's case, VV. Jones, 352. — 
 Ilarg. Co. Litt. 113 a., n. (2), 181b., n. 
 (3); Sugd. Pow. 3rd ed. 165, 166; 2 
 Prest. Abstr. 254. 
 
 (k) Pro. Abr. tit. Devise, 31 ; Town- 
 shend v. Wale, oi- Whales, or Waileii, 
 Cro, Ellz. 524, Owen, 155, Mo. 341 ; 
 Lee V. Vincent, Cro. Eliz. 26, 3 Leon. 
 
 106, Mo. 147, Co. Litt. 112 b., 113 a. 
 Rowland v. Lee, S. C, cited 1 Anders 
 145. 
 
 (I) Perk. 545. See also Bonifaut v 
 Greenfield, Cro. Eliz. 80. 
 
 (m) Perk. 548, Bro. Abr. tit. Testa 
 meitt, pi. 1. See also Sugd. Pow. 3rd ed 
 Append, p. 641. 
 
 (n) Perk. 5-48. Pro. Abr. tit. Testa 
 ment, pi. 1; Yates v. Campion, 2 P. W 
 308, seems to be an authority to the same 
 effect. See also Keates v. Burton, 14 Ves 
 434; yet see Sugd. Pow. 3rd e J. 172, and 
 ib. Append, p. 640, 641. 
 
 (->) Perk. 552.
 
 S. I.] Ol Tin: I'ARTV TO SELL UNDER THE POWER. 73 
 
 cannot sell {p) : that if he says, " I will that A. my now executor 
 shall sell", the executors of A. cannot sell (7) : and if he says, 
 " I will that my executors shall sell", and the executors prove the 
 will, and appoint their executors, and die before they sell, that 
 their executors may sell ; but if they make no executors, that 
 their administrators cannot sell, for want of privity, for the sale 
 is a thini^ of trust (r). This statement by Perkins, that the 
 executors of the executors may sell, seems to be an authority, 
 that if the testator says, " I will that my executors shall sell", 
 and the surviving executor appoints his executors, and dies, that 
 his executors may at law and in equity sell. And, on the prin- 
 ciple of privity, if he appoints one executor only, it should seem 
 that this executor may at law and in equity sell (s). Yet it 
 appears if the testator says, " I will that B. and C. my executors 
 sell", and dies, and B. dies, and C. makes M. his executor, and 
 dies, and M. sells, this sale is at law void [t). 
 
 If the words of the will are, " I will that my executors shall 
 sell", and they all renounce the executorship, it seems that an 
 administrator with the will annexed cannot, at law or in equity, 
 execute the power {u). 
 
 If the testator devises to A. for life, and wiUs that, after the 
 death of A., the lands shall be sold " by my executors, or the 
 executors of my executors", and appoints two executors, and 
 during- the life of A. one of them dies intestate, and afterwards 
 the other executor appoints his executors, and dies, and afterwards 
 A. dies ; it has been held that the executors of the surviving exe- 
 cutor cannot at law execute the power (r). 
 
 If the testator devises to A. for life, and directs that, after A.'s 
 death, the lands shall be sold by his executors, without naming 
 them here, and makes B. C and D. his executors; and, during 
 
 (p) Perk. 550. 
 
 (g) Perk. 552. 
 
 (r) Perk. 549. See also on a personal 
 power, not transferable to a new trustee 
 appointed, Hibbanl v. Lamb, Amb. 
 309. 
 
 (s) See Perk. 550 ; Houell v. Barnes, 
 Cro. Car. 382; Sugd. Pow. 3rd ed. 165, 1 (i) Anon. Mo. 61, Ca. 172, cited 16 
 166 ; 2 Presl. Abstr. 254. Ves. 45. 
 
 (() Bro. Abr. tit. Testament, pi. 1, 
 tit. Executors, pi. 3. 
 
 (it) Isabel Gowdchep's case, 49 Edw.III. 
 16, Bro. Abr. tit. Devise, pi. 10, Year 
 Book 15 H. VII. 11 b., Sugd. Pow. 3rd 
 ed. Append, p. 640, 641 ; Yates v. Comp- 
 ton, 2 P. W. 308.
 
 74 OK THE PARTY TO SELL UNDER THE POWER. [Cll. V. 
 
 the life of A., one of the executors, as B., dies ; then after the 
 death of A., C. and D. may botli at law and in equity sell (iv). 
 But if the direction is, that after A.'s death the lands shall be 
 sold by B. C. and D., my executors, it seems that the survivors 
 C. and D. cannot at law sell {x). 
 
 A man devised to his wife for life, remainder to K., his daughter, 
 in tail, and if she died without issue, that then after the death of 
 his wife the land should be sold by his executors, together with 
 the assent of A, B., and made his wife and a stranger his execu- 
 tors, and died. The wife entered and died, and A. B. died, and 
 the executor who survived alone sold the land. The question 
 was, whether it was a good sale, or not. And the Court was of 
 opinion it was not good, for want of sufficient authority ( y). 
 
 The examples which have been mentioned of a bare power in 
 a will, to sell real estate for the payment of debts, or legacies, 
 prove that the object, in the interpretation of the words of the 
 will, is to fulfil the testator's intention, and that, far from adopt- 
 ing a strict interpretation of the will, the Courts, in order to pro- 
 mote the sale intended, lean very much to put a liberal construc- 
 tion on the words of the power. And in consequence of that 
 object and liberal construction, it is, that al though the Courts will 
 not interpret the will to empower a sale by any party, or any 
 party alone, not meant to be entrusted with this authority ; — as by 
 A., if the power is given to A. and B. {z) ; or by A. and B., if 
 the power is given to " my executors", and both A. and B., who 
 are appointed the executors, renounce the executorship {a) ; or 
 by the executors of A., if the power is given to "A. my now 
 executor" (b) ; or by the administrators of executors, if the 
 power is given to "my executors" {c); or by an administrator 
 with the testator's will annexed, if the power is given to " my 
 executors", and they all renounce the executorship (d) ; or by A. 
 
 (w) Co. Liu. 112 b. J Bro. Abr. tit. 
 Devise, pi. 31 ; Anon. 2 Leon. 220. 
 
 (x) Co. Litt. 112 b., 113 a. 
 
 (y) Danne v. Annas, 2 Dyer, 219 a. 
 
 (s) Co. Litt. 112 b., 113 a., 181 b. ; 
 Anon. 2 Dyer, 177 a., Ca. 32 ; Gwilliams 
 V. Bowel, Haidr.204. 
 
 (a) Perk. 548 ; Yates v. Compton, 2 
 r. W. 308. 
 
 (b) Perk. 552. 
 
 (c) Perk. 549. 
 
 (d) Bro. Ahr. tit. Devisr, [il. 10; 
 Yates V. Coinplon, 2 V. W. 300.
 
 S. 1.] or THE PARTY TO SELL UNDER THE POWER. 75 
 
 after the death of B., and ■without B's assent, if the power is given 
 to A. to sell, with the assent of B. (e) : — yet, inclined to authorise 
 at law a sale under the power, the Courts, it appears, interpret 
 the w^ords to empower a sale by surviving executors, if the power 
 is given to " my executors ", and the number of surviving execu- 
 tors satisfies the word executors, in the plural (f) ; by A. and B., 
 if the power is given to " A. and B. my executors", and botli A. 
 and B. renounce the executorship {//) ; by A., if the power is 
 given to A., Mayor of London, and before the sale another man 
 is chosen mayor (A) ; and by the executors of executors, if the 
 power is given to " my executors" (i); and farther, it may per- 
 haps be stated, by a surviving executor of the testator, or even 
 by the executors or executor of a surviving executor of the 
 testator, if the power is given to " my executors" (j). And in 
 an?/ of the cases which have been mentioned, although the power 
 cannot be exercised at law, yet certaiidy a Court of Equity will, 
 while the trust implied in it exists, enforce the execution of that 
 trust, by decreeing a sale pursuant to the testator's intention (k). 
 A devise to trustees or executors to sell is, it may be noticed, 
 essentially diiBferent from a bare power given to them for the 
 purpose. For when a person devises land to trustees or exe- 
 cutors, in trust to sell, the will passes to the devisees the testa- 
 tor's estate in the land. The devise makes them joint-tenants, 
 and therefore if one or more of them die before this tenancy is 
 severed, the estate and trust survive to the remainder. As, if a 
 testator devises " to A. and B.", in trust to sell, and appoints 
 them, or other persons, executors; or devises " to my executors", 
 in trust to sell, and appoints A. and B. executors ; in these, and 
 the like, cases, if one of the devisees, as A., dies, the estate and 
 
 (e) Danne v. Annas, 2 Dyer, 219 a, 
 
 (/) Co. Liu. 112 b., 113 a. ; Toicns- 
 hend v. Wale, Cro. Eliz. 524. 
 
 (g) Perk. 548. See also Sugd. Pow. 
 3d edit. Append, p. G41. 
 
 (^h) Perk. 552. 
 
 (i) Perk. 549, 532. 
 
 (j) Perk. 549, 550 ; Houeli v. Barnes, 
 Cro. Car. 382.— liarg. Co. Litt. 1 13 a., n. 
 (2), 181 b., n. (3) ; 2 Prcst. Absti. 254. 
 
 (/c) Gwilliains v. Rowel, Hardr. 204 ; 
 Garfflot V. Garfoot, 1 Ch. Cas. 35 ; Asby 
 V. Doyl, ih. 180 ; A7nl>y v. Gower, S. C, 
 
 1 Cli. Rep. 168 ; Pitt v. Pelham, 1 Ch. 
 Rep. 283, 1 Lev. 304, 2 Freem. 134, 1 
 Ch. Cas. 176 ; Locton v. Locton, 2 Freem. 
 136, 1 Ch. Cas. 179 ; Yates v. Compton, 
 
 2 P. \V. 308 ; Witchcot v. Souch, 1 Ch, 
 Rep. 183.
 
 76 OF THE STATUTE '21 HENUY VIII. C. 4. [CH. V. 
 
 trust will survive to B., and he alone may consequently sell and 
 convey to a purchaser {!). And in this place it may farther be 
 mentioned, that where land is devised to trustees, or executors, in 
 trust to sell, the devise prevents a descent to the testator's heir 
 at law, who is therefore not entitled to enter on the death of his 
 ancestor. The devisees are entitled to enter, and they, or the 
 survivors or survivor of them, or other trustees or trustee for the 
 time being, may sell and convey, without the concurrence of the 
 heir at law of the testator {m). 
 
 SECTION 11. 
 
 OF THE STATUTE 21 HENRY VIII. C. 4. 
 
 The statute 21 Henry VIII. c. 4, which, when part of execu- 
 tors refuse to act, authorises a sale by the remainder, recites and 
 enacts as follows {n) : — 
 
 " Where divers persons before this time, having other persons 
 seised to their use of lands, have by their last wills and testaments 
 willed and declared such their said lands to be sold by their 
 executors. And notwithstanding such trust so by them put in 
 their said executors, it hath oftentimes been seen, where such 
 last wills and testaments of such lands have been declared, and in 
 the same divers executors named, that after the decease of such 
 testators some of the same executors, willing to accomplish the 
 trust that they were put in by the said testator, have accepted the 
 charge of the said testament, and the residue of the same execu- 
 
 (/) Co. Litt. 113 a., 181 b. ; Jenk. 
 Cent. C. 1, Cas. 83, 
 
 (m) Bro. Abr. tit. Assise, 356, tit. De. 
 vise, 5 ; Fitzh. Abr. tit. Devise, 8 ; Perk. 
 542 ; Co. Litt., 236 a. See also Stile v. 
 Tomson, 2 Dyer, 210 a. In Fowle v. 
 Green, 1 Ch. Cas. 262, where the heir was 
 obliged to join in the sale, the reason of this 
 compulsion docs not appear. 
 
 («) See generally on this statute, Anon. 
 
 1 Anders. 27, Ca. 62 ; Anon. Benloe(ed. 
 1689) 15, Ca. 18 Bro. Abr. tit. De- 
 vise, 26, 31 ; Co. Litt. 113 a. ; Cro. Eliz. 
 856 ; Jenk. Cent. 44 ; Godb. 78 ; Gouldsb. 
 
 2 ; 6 Durn. & E. 396 ; 3 Prest. Abstr. 
 225, 253, 263 ; Sugd. Gilb. Uses, 3rd 
 ed. 128, n. (4) ; the reference in which 
 note to Treat, of Purch., p. 387, seems to 
 be p. 517, in the 6th ed. of that work.
 
 S. II,] OF THE STATUTE 21 HENRY VIII. C. 4. 77 
 
 tors have refused to interineildle in anywise with the execution 
 of the said will, or with the sale of such lands so willed to be sold 
 by the testator. And forasmuch as a bargain and sale of such 
 lands, so willed by any person to be sold by his executors, after 
 the opinion of divers persons, can in no wise be good or effectual 
 in the law, unless the same bargain and sale be made by the 
 whole number of the executors named to and for the same ; — 
 
 " For remedy whereof, be it enacted, that where part of the exe- 
 cutors named in any such testament of any such person, so making 
 or declaring any such will of any such lands, tenements, or other 
 hereditaments, to be sold by his executors, after the death of any 
 such testator do refuse to take upon him or them the administra- 
 tion and charge of the same testament and last will, wherein 
 they be so named to be executors, and the residue of the same 
 executors do accept and take upon them the cure and charge of 
 the same testament and last will ; that then all bargains and 
 sales of such lands, tenements, or other hereditaments, so willed 
 to be sold by the executors of any such testator, as well here- 
 tofore made as hereafter to be made, by him or them only of the 
 said executors that so doth accept, or that heretofore hath accepted 
 and taken upon him or them any such cure or charge of admi- 
 nistration of any such will or testament, shall be as good and as 
 effectual in the law, as if all the residue of the same executors, 
 named in the said testament, so refusing the administration of 
 the same testament, had joined with him or them in the making 
 of the bargain and sale of such lands, tenements, or other here- 
 ditaments, so willed to be sold by the executors of any such tes- 
 tator, which heretofore hath made or declared, or that hereafter 
 shall make or declare, any such will of any such lands, tene- 
 ments, or other hereditaments, after his decease to be sold by his 
 executors." 
 
 In Bonifaut v. Greenfield, Mdiere a testator devised a manor to 
 four persons and their heirs, in trust to sell, and appointed them 
 executors, and one of them renounced the trust and executorship, 
 the Court was of opinion that, at common law, the remainder 
 might sell ; and it was adjudged, that a sale by the three was good, 
 either by the common law, or by the statute 21 Henry VIII.
 
 78 OF TIIK PARTY TO SKLl,, &C. [CII. V. 
 
 c. 4 (o). In Dome v. Jtidf/e, a person devised lands to five 
 persons in trust for sale, and appointed them executors ; who 
 accepted the trust and executorship; bnt such devisees had 
 nothing to do with the land as executors, and the money when 
 raised was not distributable by them in their character of execu- 
 tors. The trustees did not refuse the trust, but all accepted it ; 
 and deeds of lease and release were produced, appearing on the 
 face of them to have been duly executed by all the five trustees, 
 but the execution of three only of them was in fact proved. 
 The deeds were held to convey three fifths only of the property ; 
 and it was decided that the statute 21 Henry VIII. c. 4, did 
 not apply to support the conveyance of the whole {p). 
 
 SECTION III. 
 
 OF THE PARTY TO SELL, WHEN NO PERSON IS BY THE WILL 
 NAMED FOR THIS PURPOSE. 
 
 When a will contains a bare power of sale, by simply directing 
 real estate to be sold, and does not say by whom, the party to 
 sell is sometimes the executors, and sometimes the heir at law of 
 the testator. 
 
 The executors are to sell, whenever they, in the execution of 
 their office (7), are to apply the produce of the sale to pay 
 debts (r), or both debts and legacies (5), or legacies only {t); as, 
 in the last case, where the produce of the sale is, by the terms of 
 the will, to be confounded with the testator's personal property, 
 and with it to form one fund for the payment of the legacies (u). 
 But if the produce of the sale is not to be applied by the execu- 
 
 (0) Cio. Eliz. 80 ; Bonefant v. Grein- 
 field, S. C, Godb. 77, 1 Leon. 60, cited 
 Wilmot Rep. 56. See also Hawkins v. 
 Kemp, 3 East, 410, 429, 434, 437, and 
 Adams v. Taunton, 5 Madd. 435. 
 
 (p) 11 East, 288. 
 
 (q) Tylden v. Hyde, 2 Sim. & St. 241. 
 
 (r) Anon. 3 Dyer, 371b., Ca. 3; 
 Move's case, cited 1 Anders. 145 ; Anon. 
 Dalison, 106, Ca. 56 ; Anni. 2 Leon. 
 
 220 , Blatch V. Wilder, 1 Atk. 420.-- 
 Perk. 547, 2 Leon. 43, 3 Leon, 167, 1 
 Lev. 304. 
 
 (s) Anon. 2 Leon. 220. See Hughs v. 
 Collis, 1 Ch. Gas. 179. 
 
 (t) /I rio«. 2 Leon. 220; ^now, Dalison, 
 106, Ca. 56; Curvitl v. Carvill, 2 Ch. 
 Rep. 301. 
 
 (n) Tylden v. Hyde, 2 Sim, & St. 238.
 
 S. IV.] OF THE TIME FOR SALE, &C. 79 
 
 tors ill the execution of their office, then the executors are not 
 necessarily the party to sell. And if the testator simply bequeaths 
 the money to arise from the sale to certain persons named, this 
 bequest alone does not cause the money to be applicable by the 
 executors in the execution of their office, and therefore, in this 
 case, they are not, but the heir at law of the testator is, the party 
 to sell and convey to the purchaser (o). 
 
 Where executors are the party to sell, and two executors are 
 appointed, and one dies before or Jifter the death of the testator, 
 and before or after he has proved the will, it seems to be clear 
 that the power survives with the office, and therefore that the 
 survivor may sell (ic). 
 
 In Patton v. Randall, it was held that neither the executors, 
 nor the lieir at law, took by implication a power of sale under the 
 will, but that as the property directed by the testator to be sold was 
 devised by him, the devise created in the devisees a trust for sale, 
 for the purposes mentioned in the will : and it was decided that 
 a sale could not take place until all the devisees, some of whom 
 were infants, attained the age of 21 ; and that the executors, who 
 had agreed to sell the estate, could not compel the purchaser to 
 complete his contract (x). 
 
 SECTION IV. 
 
 OF THE TIME FOR SALE, V/HEN THE PROPERTY EMPOWERED 
 TO BE SOLD IS DEVISED FOR LIFE, OR IS A REVERSION EX- 
 PECTANT ON AN ESTATE FOR LIFE. 
 
 Where a person devises to A. for life, and directs that, after 
 A.'s death, the lands shall be sold by his executors, Sir E. Coke 
 was of opinion that the lands could not be sold before the death 
 
 (d) BenUiam v. Wiltshire, 4 Madd. 
 44., cited 1 J. 6c W. 193, 196. See also 
 Pitt V. Pelhaw, 1 Lev. 304, 1 Ch. Cas. 
 176, 2 Freem. 134, T. Jones, 25, and 
 Loctonv. Locton, 2 Freem. 136, and cited 
 1 Ch. Cas. 179. 
 
 (w) Anon. 3 Dyer, 371 b., Ca. 3 ; 
 Moi-e's case, cited 1 Anders. 145; Anon. 
 2 Leon. 220 ; Houell v. Eanies, Cro. 
 Car. 382, W. Jones, 352. 
 
 (x) 1 J. & W. 189.
 
 80 or THE TIME FOR SALE, &C. [CH. V. 
 
 of A. (?/). And, it would seem to the same effect, another autho- 
 rity states, that where a man wills that his lands shall be sold 
 after the death of A. by his executors, the time of sale is not 
 come until the death of A. (z). But wliere A., the devisee for 
 life, was one of two executors, and the other executor died in A.'s 
 life-time, a sale before the death of A. has been held to be valid. 
 As, where a man devised his lands to his wife for life, and farther 
 willed that if he should not have any issue by his wife, then after 
 the death of his wife the lands should be sold, and the money 
 distributed to three of his blood, and made his wife and ai^iOther 
 his executors; and the other executor died, and the wife sold the 
 lands ; here the Court of King-'s Bench held, " that the lands 
 should be sold in the life of the wife, otherwise they could never be 
 sold" (a). Houell v. Barnes was a case sent from the Court of 
 Chancery for the opinion of the Court of King's Bench. One 
 report of it states, — " F. B., seised of land in fee, deviseth it to his 
 wife for her life, and afterwards orders the same to be sold by his 
 executors, and the monies thereof coming to be divided amongst 
 his nephews ; and made W. C. and R. C. his executors. W. C. 
 died ; the wife is yet alive. We all resolved, that the surviving 
 executor may sell. But whether he might sell the reversion 
 immediately, or ought to stay until the death of the wife, was a 
 doubt" [h). Another report of the same case states the effect of 
 the devise in these terms: — A., seised of land, "devises it to his 
 wife for life, and that after the death of his wife it should be sold 
 by his executors", for payment of his debts and legacies. And, 
 according to this report, one of the executors died, and the wife 
 died, and the Court certified that the surviving executor might 
 sell. But no notice is taken of the second point in the case, the 
 power of the executor to sell in the life-time of the wife (c). In 
 Uvedalev. Uvedale, a person recited in his will, that his wife was, 
 under a settlement, entitled to certain lands for her life, for her 
 jointure. And by his will he confirmed such jointure of his wife, 
 
 (y) Co. Litt. 112b., 113a. See Hargr. I (a) Anon. 2 Leon. 220. See Bentham 
 Co. Litt, 113 a. n. (2), and Sugd. Pow. v. Wiltshire, 4 Madd. 44. 
 3rd ed. 272. (b) Cio. Car. 382. 
 
 (z) Bro. Abr. tit. Device, 31. I (c) Barne's case, W. Jor.es, 35?.
 
 S. IV.] OF THE TIME FOR SALE, &C. 81 
 
 and after her death willed that the lands should be sold, and the 
 money divided between certain persons named. Lord Hardwicke 
 decreed the lands to be sold, because (as the report is understood) 
 the cestuis que trust under the will were entitled to have them 
 sold ; and he decreed a sale in the lifetime of the wife. And his 
 Lordship observed, that " the words ' after her decease' were 
 not put in to postpone the sale" {d). A learned writer mentions 
 a case before the Court of Exchequer, where a devise was to A. 
 for life, and after her decease to trustees to sell, and pay the 
 money amongst the children then living; and the Court held the 
 sale could not be made till after the wife's decease {e). In 
 Bentham v. JViltshire, where a person devised to H. B. for her 
 life, and directed that after her decease the estate should be 
 sold, (not saying by whom,) and the money to be paid amongst 
 certain persons in the will named ; it appears that on a sale in the 
 lifetime of the tenant for life, it was objected to the vendor's 
 title, that the will only directed a sale after the death of the 
 tenant for life, who was still living ; but that, on a reference to 
 the master, he reported a good title could be made, and that 
 report was confirmed. And yet Sir John Leach seems in a 
 farther stage of the cause to have considered, that a sale was not 
 authorised during the life of the tenant for life ; for a circumstance 
 which liad some weight with His Honor, when he decided that 
 under the will there was no power of sale in the executors, was, 
 that the sale was directed to be made after the death of the 
 tenant for life, who was one of the executors (/"). 
 
 From these cases this general rule may be extracted, — That 
 where the property empowered to be sold is devised for life, the 
 time for sale will depend on the intention to be collected from 
 the whole will ; and, so far as the particular words may not be 
 governed by the context in the will, on the weight due to the 
 authorities, grounded on the same or similar expressions; and 
 that consequently the time for sale may be either before or after 
 the death of the tenant for life, according to the circumstances of 
 the particular case. 
 
 (d) 3 Atk. 117. 
 
 (e) Anon. Excheq. 1806, stated Sugd, 
 Pow. 3rd ed. 273. 
 
 (J ) 4 Madd, 44. See Carvill v. Car- 
 vill,2 Ch. Rep. 301.
 
 82 
 
 [CH. V. 
 
 SECTION V. 
 
 OF DESCENT TO THE TESTATOR's HEIK AT LAW UNTIL SALE. 
 
 A PERSON may in some cases sell land, and convey an estate in 
 it, altliougli at the time of the sale and conveyance he himself has 
 no estate in it; or, to use the words of Littleton, although " he 
 hath nought in the tenements at the time of the estate made." 
 An example of this capability to sell and convey is furnished by 
 a will, which authorises a sale by executors of the testator's lands 
 of inheritance, and which lands, until the sale and conveyance of 
 them to the purchaser, descend to the testator's heir at law. 
 Here the executors may sell the lands, and convey the testator's 
 estate in them, although they take under the will " nought in the 
 tenements", but only a power, that is bare of any estate (//). 
 
 When a will contains a bare power of this description, and 
 given to executors either expressly or by implication, then, unless 
 the property is devised away from the testator's heir at law (/0> 
 it will, until the power is executed, descend to such heir. But 
 an execution of the power by the executors will, without the 
 concurrence of the heir, divest his seisin, and transfer it to the 
 purchaser, and consequently the heir is not in this case a neces- 
 sary party to the sale or conveyance (i). But as the inheritance, 
 when descended to the heir, will continue in him until the power 
 is executed ; for this reason, in cases where from circumstances 
 the power cannot be exercised at law, and the trust of it never- 
 theless subsists in equity, a Court of Equity will make the heir a 
 trustee for sale, and accordingly decree him to join in the sale, 
 and to convey to the purchaser. The Court will decree the heir 
 to join in the sale and conveyance, if the power is given to A. and 
 B., and other persons are appointed the executors of the will, and 
 
 (g) Litt. S. 169; Houell v. Barnes, 
 Cro. Car. 382. 
 
 (/t) Staplelon v, Colvile, Cas. T. Talb. 
 202 ; Blatch V. Wilder, 1 Atk. 420. 
 
 (t) Litt. S. 169; Co. Litt. 236 a.; 9 
 Co. 77 a. ; Bio. Abr. tit. Devise, 5, 32, 36, 
 
 46 ; Perkins, 541 ; Lancaster v. Thornton, 2 
 Burr. 1031 ; Hilton v. Kenwovthy , 3 East, 
 558 ; Warneford v. Thompson, 3 Ves. 
 513 ; Tylden v. Hyde, 2 Sim. & St. 238, 
 White V. Vitty, 2 Russ. 495, 496, 497.
 
 S. VI.] MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 83 
 
 A. or B. dies before the power is executed ( /) ; or if the power 
 is given to executors, and they all die before it is executed (k) ; 
 or if the power is given to executors, and they all renounce the 
 executorship, and accordingly administration with the will annexed 
 is granted (/) ; and also in cases where the will empowers a sale, 
 and omits to mention the party to make it, and the heir is con- 
 strued to be the person to sell (m). In Blatch v. Wilder, where 
 a testator directed his real estate to be sold for the payment of his 
 debts, but did not say who should sell it ; and the executors were 
 held to take under the will a power of sale, and the Court 
 decreed the property to be sold ; it also ordered that the executors 
 and the heir should join in the sale (/?). 
 
 It appears that when a will contains a bare power to sell real 
 estate, which imtil the sale descends to the heir of the testator, 
 such heir is at law entitled to the intermediate rents and profits 
 until a sale (o) ; but if the power is to sell to pay debts, or debts 
 and legacies, or legacies only, such rents and profits do not, it 
 seems, in equity belong to the heir, if they are required for the 
 purposes of the trust {p). 
 
 SECTION VI. 
 
 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 
 
 Sir Edward Coke seems to have been of opinion, that "when 
 a man devises his tenements to be sold by his executors, it is 
 all one as if he had devised his tenements to his executors to 
 be sold" {q). The soundness of this opinion may however be 
 doubted. And it may be thought that a devise, namely, an ex- 
 
 (J) GwiLliams v. Rowel, Hardr. 204. 
 
 (k) Ashy V. Doyl, 1 Ch. Cas. 180 j 
 Ambu'y. Cower, S. C, 1 Ch. Rep. 168 ; 
 Gavfnot V. Garfoot, 1 Ch. Cas. 35, 2 
 Freem. 176. 
 
 (0 Yates V. Compton, 2 P. W. 308. 
 
 (tk) Pitt V. Pelham, 1 Ch. Rep. 283, 
 1 Lev. 304, 2 Freem. 134, 1 Ch. Cas. 
 176; Locto7i v. Loctnn, 2 Freem. 136, 1 
 Ch. Cas. 179. 
 
 (n) 1 Atk. 420, 1 West Cas. T. Hardw. 
 322, cited 2 Russ. 496. See also Car. 
 vHl V. Carvill, 2 Ch. Rep. 301, 303, and 
 White V. Vitty, 2 Russ. 484. 
 
 (o) Co. Litt. 113 a., 236 a. 
 
 (p) Lancaster v. Thornton, 2 Burr. 
 1031; Yates v. Compton, 2 P. W. 308, 
 311 ; Uvedale v. Uvedale, 3 Atk. 118. 
 
 (q) Co. Litt. 236 a. 
 
 G 2
 
 84 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. [CH. V. 
 
 pression of tlie testator's will or mind (r), in the words, " I devise 
 my lands to be sold by my executors," is equivalent to the words, 
 "I devise that my executors shall sell my lands,"and, like the latter 
 words, will not pass to the executors an estate in the lands, but 
 a bare authority only {s). A testator provided in his will, that " if 
 my personal estate, and my house and lands at W., should not pay 
 my debts, then my executors to raise the same" out of certain 
 copyhold premises before devised by him. On the question, 
 whether this proviso would entitle the executors to sell the copy- 
 hold estate. Lord Hardwicke held that it would ; "for as the 
 rents are not near enough to discharge the testator's debts, these 
 words will give the trustees [executors] a power to sell, to satisfy 
 the testator's intention of paying his debts" (t). An executor or 
 other party, to whom a bare power of sale of real estate is given 
 by a will, is not able to release the power to the heir at law : 
 such release is held to be void (m). Unless the contrary is ex- 
 pressed in a bare power to sell, the authority conferred by it is 
 personal, and cannot be delegated, and consequently cannot be 
 exercised by a deed executed by attorney (u). Although on a 
 sale under a bare power, the trustees or executors, donees of the 
 power, necessarily, since the testator is dead, sell and convey in 
 their own names to the purchaser, yet the purchaser is in by the 
 devisor, and not by the trustees or executors (w). When a will 
 contains either a devise, or a bare power to sell, it appears that 
 the devisee, or donee of the power, may sell part of the land at 
 one time and part at another, as purchasers may be found (x). 
 
 (r) 2 Burr. 1031. 
 
 (s) Bro. Abr. tit. Devise, 5, 32, 36 ; 
 Co. Litt. 236 a., Lord Nott. n. (1) ; Co. 
 Litt. 265b. ; Yates v. Compton, 2 P. W. 
 308. 
 
 (t) Bateman v. Bateman, 1 Atk. 421. 
 
 (h) Co. Litt, 265 b. 
 
 (v) Combes' case, 9 Co. 75 b., 1 RoL 
 Abr. 330. 
 
 {lu) Fitzh. Abr. tit. DevUe, pi. 3 ; 9 
 Co. 77 a. ; 1 Rol. Abr. 330, F. 3 ; Beal 
 V. Shepherd, Cro. Jac. 199. 
 
 (.x) Co. Litt. 113 a. ; 1 Co. 173 b.
 
 CH. VI.] 85 
 
 CHAPTER VI. 
 
 OF LEGACIES PAYABLE OUT OF REAL ESTATE. 
 
 Sect. I. — Of Legacies payable out of Real Estate^ in aid of the 
 Personal Estate. 
 II. — Of Legacies payable out of Real Estate, in exonera- 
 tion of the Personal Estate. 
 III. — Of Legacies payable out of certain Real and Personal 
 Estates, in exoneration of the general Personal 
 Estate. 
 IV. — Of Legacies held to be payable out of the Personal 
 
 Estate only. 
 V. — Of a Devise on condition to pay Legacies. 
 VI. — Of charging by a Codicil, not executed according to the 
 
 Statute of Frauds. 
 VII. — Of withdrawing one of ttco Funds charged ivith Le- 
 gacies. 
 VIII. — Of revoking by a Codicil, not executed according to the 
 Statute, Legacies charged by the Will on Real 
 Estate. 
 IX. — Of sid)stituting and adding Legacies by a Codicil. 
 X. — Of Legacies charged on Land devised for Life, loith 
 Remairiders over ; or charged on a Remainder or 
 Reversion in Fee, expectant on an Estate for Life. 
 XI. — Purchase of Estate charged. 
 XII. — Of Legal and Equitable charges. 
 XIII. — Of flic failure of Real Estate charged icith Legacies. 
 XIV. — Of the sinking of a Legacy into the Liheritance, on the 
 
 death of the Legatee before the time of payment, 
 XV. — Miscellaneous Points of the General Subject.
 
 8(} 
 
 [cii. VI. 
 
 SECTION I. 
 
 OF LEGACIES PAYABLE OUT OF REAL ESTATE, IN AID OF THE 
 PERSONAL ESTATE. 
 
 A testator's personal estate is the natural fund for the pay- 
 ment of legacies bequeathed by him. And his real property is 
 not liable to pay them, unless an intention to create this liability 
 can be collected from some part of the will (a). 
 
 Legacies have, in several cases, been construed to be payable 
 out of the testator's real estate, in aid of his personalty; when, 
 consequently, the latter property was first liable to pay them (b). 
 
 This construction has been put on the following wills : — 
 
 " As to all my worldly estate, I give and dispose thereof in 
 manner following." Then the testator gave several pecuniary 
 legacies, and several annuities for lives, to be paid by his exe- 
 cutor ; and then he devised all the rest and residue of his goods, 
 and chattels, and estate, to his nephew M., the testator's heir at 
 law, and made him sole executor (c). 
 
 " I give and dispose my worldly estate as follows." The 
 testator then gave some general legacies, and concluded his will 
 in these words : — " Lastly, I give the remainder of my estate at 
 N. and D., and all my freehold and personal estate whatsoever, not 
 herein otherwise disposed of, after payment made of my just 
 
 (a) 4 Madd. Rep. 188. 
 
 (6) Lord Grey v. Lady Grey, 1 Ch. 
 Cas. 296 ; Hyde v. Hyde, 3 Ch. Rep, 
 155 ; Alcock v. Sparhawk, 2 Vein. 228 ; 
 Jones V. Seiby, Prec. Ch. 288 ; Whaley 
 V. Cox, 2 Eq. Cas. Abr, 549, as to the 
 legacy of 200L ; Lloyd v. Williams, Barn. 
 Ch. Rep. 224, 228 ; Lord Inchiquin v. 
 French, Amb. 33, 41 ; Hannis v. Packer, 
 ib. 556 ; Ironmonger v. Lassells, 1 West 
 Cas. T. Hardw. 143 ; Bridgman v. Dove, 
 3 Atk. ed. Sand. 201 , and n. (2). Minor 
 V. Wicicsleed, 3 Bro. C. C. 627. See like- 
 
 wise Lord Pawlet v. Parry, Prec. Ch. 
 449, Gilb. Eq. Rep. 123 ; Webby. Webb, 
 Barn. Ch. Rep. 86 ; Hone v. Medcraft, 
 1 Bro. C. C. 261, on the legacies which 
 immediately follow the viz. ; Jackson v. 
 Jackson, 2 Cox, 35 ; Holford v. Wood, 
 4 Ves. 76 ; and Willoxv. Rhodes, 2 Russ. 
 452 ; also Tompkins v. Tompkins, Prec. 
 Ch. 397. 
 
 (c) Awbrey v. Middleton, 4 Vin. Abr. 
 460, 2 Eq. Cas. Abr. 497. Tliere was, 
 it appears, an express devise in the will 
 to another relation of Uie testator.
 
 S. I.] OF LEGACIES PAYABLE OUT OF REAL ESTATE, &C. 87 
 
 debts and leg-acies, to my brotlicr S, B., whom I also appoint my 
 executor to this my last will " {d). 
 
 Amongst other legacies, a testator made this bequest, — " I 
 give to J. D. the sum of 1 000/., to be due and payable to him by 
 my executor, whom I shall herein appoint, after the expiration of 
 one month next after my decease." Then followed some general 
 legacies, and this farther disposition, — " Also I give, devise, and 
 bequeath to T. H., and to his heirs for ever, whom 1 do hereby 
 make and appoint my only and sole executor of this my will, 
 all my goods, lands, and chattels, except what is hereinbefore 
 given" (e). 
 
 " As to my worldly estate I dispose of as follows." The tes- 
 tator then gave 100/. to his daughter S., which he directed to be 
 paid by his executor within a month after the decease of his 
 widow. The testator devised his real estate to his wife for life, 
 and, after her decease, to his son J. C, in fee. He also appointed 
 two trustees and overseers of his will, and desired them to see it 
 duly performed. And all the rest and residue of his goods, chat- 
 tels, and personal estate, not before disposed of, he gave to his 
 son J. C, and made him executor (f). 
 
 " As touching and concerning my worldly estate, I give, devise, 
 and bequeath as follows. I give, devise, and bequeath to my 
 daughter F., 300/. at twenty-one. Item, I give, devise, and 
 bequeath to my sons W., F., and J., each 220/., to be paid at 
 twenty-one, with benefit of survivorship. Item, my will is, that 
 my executor, with the advice of my trustee, shall place out my 
 sons apprentices, and pay out of their aforesaid fortunes proper 
 sums on that account. Item, my executor is to pay to my trustee 
 30/. a year for the education of the children. Item, I give, 
 devise, and bequeath to my son H. H., all and singular my real 
 and personal estate, not herein disposed, to him, his heirs, and 
 assigns. And I appoint my brother H. overseer of my will." 
 From tlie argument in the case, it appears that the son H. H. 
 was appointed the executor of the will (//). 
 
 (d) Brudenell v. Boughton, 2 Atk. 268, 
 273. 
 
 (e) Edgell v. Haywood, 3 Atk. 352, 358. 
 
 (/) Lypet V. Carter, I Ves. 499. 
 (g) Hassel V. Hassel, 2 Dick. 527. See 
 Joyce's case, Nels. 155.
 
 88 OF LEGACIES PAYABLE OUT OF REAL ESTATE, &C. [CH. VI. 
 
 C. P. devised certain freehold chambers to trustees and their 
 heirs, upon trust to sell, and to apply the money arising by such 
 sale towards payment of the legacies by his will bequeathed ; and 
 the rents and profits thereof, until sold, to be applied to the same 
 uses. And after giving two pecuniary and some specific legacies, 
 as to, for, and concerning all the rest, residue, and remainder of 
 his personal estate, after payment of his debts, legacies,' and 
 funeral expenses, he bequeathed the same unto his trustees, upon 
 trust to convert such residue into ready money, and to lay out 
 the same in the purchase of freehold property, which the trustees 
 were to settle in the manner mentioned in the will (A)« 
 
 J. H. gave all his real and personal estate to his wife for life ; 
 and after her decease gave various legacies ; and all the rest, 
 residue, and remainder of his real and personal estate, he gave, 
 devised, and bequeathed, to P. W. and W. B. {/). 
 
 "As to my worldly estate, I will that all my lawful debts be 
 paid first. I give and bequeath unto," &c. The testator here 
 gave numerous general legacies of small sums of money. And 
 then continued — " It is further my will, that the daughter of the 
 said W. F., and the daughters of the said R. ¥., shall not receive 
 their money, until they shall have attained the age of twenty-one 
 years." And at the end of the will he said, " And it is further 
 my will, that in case there should be any bad debts, that is to 
 say, not recoverable, then each person shall receive in proportion 
 according to such loss. And if my worldly estate should amount 
 to more than here bequeathed, then it is my will that each person 
 shall receive his proportion according as heretofore bequeathed." 
 The will contained no devise or mention of real estate, except 
 under the words "worldly estate" in the passages transcribed. 
 Sir J. Leach, on deciding that the testator's real estate was 
 charged with the legacies, said, " The words ' My worldly 
 estate,' unless qualified by other expressions, necessarily com- 
 prise both real and personal estate, and there is nothing in this 
 will which amounts to such a qualification" {j). 
 
 (/i) Maugham v. Mason, 1 Ves. & B. I (() Bench v. Biles, 4 Madd. 187. 
 410. I U) Muddle V. Fry, 6 Madd. 270.
 
 S. II.] OF LEGACIES PAYABLE OUT OF REAL ESTATE, &C. 89 
 
 In Sponr/ v. Spang, pecuniary lej^acies, charged on real estate 
 in aid of the personalty, were held not be charged on real estate 
 specifically devised by the will {k). 
 
 SECTION II. 
 
 OF LEGACIES PAYABLE OUT OF REAL ESTATE, IN EXONERATION 
 OF THE PERSONAL ESTATE. 
 
 As real estate may, in aid of the testator's personal estate, be 
 made liable to the payment of legacies, so it may, in exoneration 
 of the personal estate, be made the^r^^ or only fund applicable to 
 pay them. Either kind of exemption will take place, if, on an 
 examination of the whole will, such intention can be collected 
 from any part of it (/). 
 
 An exoneration of the personalty has been held to be effected 
 in the cases named in the margin (m). In several other cases 
 the real estate seems to have been held to be the only fund 
 applicable to pay the particular legacies (w). Where, however, 
 it is the intention, the personalty may be liable as an auxiliary 
 fund in aid of the real estate first charged (o). 
 
 In Harrison v. Naylor, the testator's general personal estate 
 was exonerated from the payment of certain legacies; which 
 were held to be payable out of real estate, by the will directed 
 to be bought with the testator's personal estate, remaining after 
 payment of debts and other legacies {j)). 
 
 (fc) 3 Bligh P. C. (N. S.) 84, 1 Dow. 
 & C. 365 ; reversing the decree of the 
 Court of Exchequer, 1 Y. & J, 300. 
 
 (/) Miles V. Leigh, 1 Atk. 575, 1 West 
 Cas. T. Haidw. 709. 
 
 (m) Walker V. Pink, cited 1 Cox Rep. 
 5 ; Ward v. Lord Dudley and Ward, 2 
 Bro. C. C. 316, 1 Cox, 438. See also 
 Ex parte Morgan, 10 Ves. 101, and 
 White V. Vilty, 2 Russ. 484. 
 
 (n) Anon. 12 Mod. 342 ; Jennings v. 
 Looks, 2 P. W. 276 ; Heath v. Heath, ib. 
 366 ; Phipps v. Annesley, 2 Atk. 57 ; 
 
 Amesbury v. Brown, 1 Ves. 482 ; Low- 
 ther V. Condon, Barn. Ch. Rep. 327, 329 ; 
 Lauson V. Hudson, 1 Bro. C. C. 58 ; Laio- 
 son V. Lawson, S. C, 3 Bro. P. C. ed. 
 Toml. 424, on the 100/. legacy ; Gaioler 
 V. Standerwick, 2 Cox, 15, 18 ; Crowder 
 V. Clowes, 2 Ves. jun. 449 ; Shirt v. 
 Westby, 16 Ves. 393 ; Abrams v. Winshup, 
 3 Russ. 350 ; Rickets v. Ladley, ib. 418 ; 
 Kirke v. Kirke, 4 Russ. 435. 
 
 (o) Whaley v. Cox, 2 Eq. Cas. Abr. 
 549 ; Strode v. Ellis, Nels. 203. 
 
 (p) 3 Bro. C. C. 108, 2 Cox, 247.
 
 90 OF LEGACIES PAYABLE OUT OF REAL ESTATE, [CH. VI. 
 
 Although the whole terms of the wills, on which it has been 
 held, that the real estate was the only fund applicable to pay the 
 legacies, may not, it is probable, often, if ever, occur again in 
 practice, yet it may be allowed here to make use of them, as the 
 ground of the following observations: — 
 
 1. That the personal estate may be wholly exonerated, not- 
 withstanding the legacy is given by a bequest, that, without the 
 aid of the context, would be a gift out of the personalty ; and 
 that accordingly a legacy, so given out of the personalty, has by 
 the context been made a charge on the real estate only [q). 
 
 2. That, in other cases, the particular legacy was, indepen- 
 dently of any context, given out of the real estate ; as by the 
 words, " I bequeath 1000/. to T., to be paid to him when he 
 shall have arrived at his age of twenty-one, out of the manor of 
 B." (r). And again, " I give to W. C. 100/., to be paid to her 
 out of my said freehold and copyhold estates" [s). 
 
 And 3. That, in other instances, the legacy was, independently 
 of context, given out of the real estate, but the intent to exone- 
 rate the personalty was shewn by the context also. In one case 
 of this kind, the testator gave legacies, and directed that they 
 should be paid out of his real estate, and gave his personal estate 
 to his children {t). In another case, the will contained the fol- 
 lowing disposition, — " I bequeath to each of my daughters 1000/., 
 to be raised and to be paid to them immediately after the decease 
 of my wife, out of the rents, issues, and profits of my manors, 
 lands, &c. in W., or by sale or mortgage of the same, together 
 with interest from the decease of my said wife, until the same 
 sums shall be duly paid to my said daughters, or their respective 
 executors, &c. And my will is, that in case either of my said 
 daughters shall depart this life before me, then the survivor of 
 my said daughters, her executors, &c., shall have and receive 
 all and every the sum and sums of money hereinbefore devised 
 out of my said lands, to be raised in the manner hereinbefore 
 
 (9) Phipps V. A7iiiestey, 2 Atk. 57 ; 
 Crowder v, Cloives, 2 Ves. jun. 449. 
 (r) Jennings v. Looks, 2 P. W. 276. 
 (s) Lawson v. Lawson, or Hudson, 3 
 
 Bro. P. C. ed. Toml. 424, 1 Bio, C. C. 
 58. See also Anon. 12 Mod. 342, and 
 Seal V. Tichener, 2 Dick. 444. 
 
 (t) Heath v. Heath, 2 P. W. 366.
 
 S. II.] IN EXONERATION OF THE PERSONAL ESTATE. 91 
 
 appointed. And, in such case, the part of the daujrhter so dying 
 shall not cease, or sink into the estate for the benefit of my heir, 
 but shall remain and be raised for the benefit of my daughters. 
 Lastly, I bequeath all my personal estate to my said daughters, 
 and do make them executors" (n).' In a farther case, a testator 
 having given his estate generally after payment of debts and 
 funeral, without mentioning legacies, afterwards gave four lega- 
 cies to his sisters, and in the same clause added, " all which 
 legacies I mean shall be paid out of my freehold estate in N." 
 And, by a subsequent clause, he gave a power to mortgage 
 and charge the real estate for payment of that money (v). 
 And in another instance, after a devise in fee of certain lands 
 called O. and W., subject to the payment of the legacies after 
 given, and charged upon the said premises, the testator gave 
 400/. to H. and 200/. to S., to be paid them respectively at 
 their ages of twenty-one years out of his said tenements, called 
 O. and W., with interest from his death ; and he thereby 
 charged the said tenements called O. and W. with the same 
 accordingly {w). 
 
 A legacy is frequently charged on land by a condition in the 
 will to pay it. Sometimes a devise is immediately followed by a 
 condition to pay a specified sum (a.) ; and sometimes the legacy, 
 and condition to pay it, are contained in a clause distinct from 
 the devise of the land [y). Under the first kind of devise on 
 condition, it would seem that the legacy will, without the aid of 
 any context, be a charge on the land only [z). And it is appre- 
 hended that, if this fund fails, the legacy will not be payable out 
 of the testator's personal estate («), unless an intent to make the 
 personalty an auxiliary fund can be collected from some other 
 
 (m) Lowther v. Condon, Barn. Ch. 
 Rep. 327, 329. 
 
 (y) Ameshury v. Brown, 1 Ves. 482. 
 
 (u)) Gawler v. Standerwick, 2 Cox, 
 15, 18. 
 
 (x) Seal V. Tichener, 2 Dick. 444. 
 See 1 West Cas. T. Hardw. 709. 
 
 (iy) Miles v. Leigh, 1 West Cas. T. 
 Hardw. 707, 1 Atk. 573, 4 Vin. Abr. 
 
 463, 2 Eq. Cas. Abr. 503; Whaley v. 
 Cox, 2 Eq. Cas. Abr. 549. 
 
 (:) See Jennings v. Looks, 2 P. W. 
 276; Ation. 12 Mod. 342; Lawson v. 
 Hudsoji, 1 Bro. C. C. 58 ; and Seal v. 
 Tichener, 2 Dick. 444. 
 
 (a) See, besides the cases in the last 
 note, Ameshury v. Brown, 1 Ves. 482 ; 
 Brydges v. Phillips, 6 Ves. 571 ; Spurway
 
 92 OF LEGACIKS PAYABLE OUT OF REAL ESTATE, &C. [CH. VI. 
 
 part of the will {b). Where a will contained the second kind of 
 devise on condition, the construction put on the whole will taken 
 together was, in Miles v. Leif/h, that the testator meant the con- 
 dition to follow immediately the devise of the land, and that the 
 land so devised was the only fund applicable to pay the particular 
 legacy (c) ; and in Whale?/ v. Cox, that the land devised on con- 
 dition was the first fund applicable to pay the legacy, and that 
 the testator's personal estate was, in aid of the land, also liable 
 to pay it (d). 
 
 Personal estate has, in many instances, been held to be ex- 
 empted from the payment of legacies, where the will has con- 
 tained a devise of real estate, in trust to sell, and to pay certain 
 sums out of the purchase money (e) ; and also where the will has 
 contained a separate bequest of certain legacies, and has devised 
 real estate in trust to sell, and pay them {J")- And it appears 
 that when a will contains a devise of real estate, in trust to sell, 
 and out of the purchase money to pay certain sums, or to pay 
 certain legacies bequeathed by a separate clause in the will, and 
 the real estate devised is the first fund for the payment of those 
 legacies of either kind, such estate will also be the ouIt/ fund to 
 pay them ; and although it fails, as by a sale of the whole or part 
 of the estate in the testator's lifetime, the testator's personal 
 estate will not be liable to pay any part of those legacies ((/), 
 unless, from some words in the will, the intent appears to be- 
 queath demonstrative legacies, payable out of the personal estate, 
 in the event of the failure of the real property made the first 
 fund or security to pay them {h). 
 
 In Spurwaij v. Glynn, a person by his will, subject to and charged 
 
 V. Glynn, 9 Ves. 483 ; Hancoz v. Ahbey, 
 11 Ves. 185; Gittins v. Steele, 1 Swanst. 
 29, 30. 
 
 (b) Whaley v. Cox, 2 Eq. Cas. Abr. 
 549. 
 
 (c) 1 West Cas. T. Haidw. 707, 1 
 Atk. 573. 
 
 (d) 2 Eq. Cas. Abr. 549. 
 
 (e) Arnald v. Arnald, 1 Bro. C. C 
 401, 2 Dick. 645 ; Leacroft v. Maynard, 
 1 Ves. jun. 279, 3 Bro. C. C. 233 j 
 
 Brydges V. Phillips, 6 Ves. 567, 571 ; 
 Hancox V. Ahbey, 11 Ves. 179, 185; 
 Richets V, Ladley, 3 Russ. 418. 
 
 (_/) Gittins V. Steele, 1 Swanst. 24. 
 See also Carvill v. Carvill, 2 Ch. Rep. 
 301. 
 
 (g) Arnald v. Arnald, 1 Bro. C. C. 
 401 ; Gittins v. Steele, 1 Swanst. 24. See 
 Foley V. Percival, 4 Bro. C. C. 419. 
 
 (/)) Fowler v. Willoughbii, 2 Sim. & 
 St. 354 ; Strode v. Ellis, Nels. 203.
 
 S. III.] OF LEGACIES PAYABLE OUT OF CERTAIN ESTATES, &C. 93 
 
 with the payment of all and every the pecuniary legacies therein- 
 after bequeathed, devised to G. and P., as tenants in common in 
 fee, all his real estates in England, except his moiety of an 
 estate called P. He then devised that moiety of the P. estate to 
 trustees, upon trust, by sale or mortgage, or out of the rents and 
 profits, to raise 400/. and pay it to the plaintiff. And by a resi- 
 duary clause he directed the residue of his personal estate to be 
 applied in payment of the several legacies thereby given, in ease 
 and exoneration of his real estates theretofore charged with the 
 payment of them. Sir. W. Grant noticed that the legacy of 
 400/. was not bequeathed separately from the devise in trust to 
 raise it, observing that " there is no direct bequest to the plain- 
 tiff of 400/., but that sum is directed to be raised out of this par- 
 ticular estate, and paid to him ;" and decided that the 400/. was 
 charged exclusively on the P. estate, and that it was not payable 
 out of the testator's personal assets (/). 
 
 SECTION III. 
 
 OF LEGACIES PAYABLE OUT OF CERTAIN REAL AND PERSONAL 
 ESTATES, IN EXONERATION OF THE GENERAL PERSONAL 
 ESTATE. 
 
 In Hartley v. Hurle, certain real estate, and leaseholds for 
 years, and money in the funds, by a will given to trustees, in 
 trust to pay the several legacies thereinafter mentioned, were 
 held to be the only fund applicable to pay the legacies; and 
 which, consequently, were payable out of that real estate and 
 part of the personal estate, in exoneration of the general per-^ 
 sonal assets of the testator [j). In Austeji v. Halsey, Lord Eldon 
 appears to have thought that legacies were not a charge on the 
 bulk of the testator's real estate; but he declined to give an 
 opinion, whether they were a charge on that property ; and, on 
 the intention collected from the whole will, decided that they 
 were payable from the accumulated savings out of the testator's 
 
 (0 9 Ves. 483. {j) 5 Ves. 540, 545.
 
 94 OF LEGACIKS HELD TO HE PAYABLE [cil. VI. 
 
 real and personal estates (k). In Cole v. Turner^ legacies were 
 held to be charged on freehold, copyhold, and leasehold estates, 
 and, it would seem, on them only {I). 
 
 SECTION IV. 
 
 OF LEGACIES HELD TO BE PAYABLE OUT OF THE PERSONAL 
 ESTATE ONLY. 
 
 The proper fund for the payment of legacies is the testator's 
 personal estate ; and his real property is not, either first or last, 
 charged with them, by a mere bequest, unaccompanied by any 
 context indicative of an intent to create that charge (m). 
 
 Several cases occur in which legacies have been construed not 
 to be a charge on the testator's real estate, but to be payable out 
 of his personal estate only. This interpretation has been put on 
 the following wills (w) : — 
 
 A person bequeathed 500/. to his grandson J., and 500Z. to his 
 grandson T. ; and charged his lands with the payment of those 
 legacies ; and then went on, " Item, I give to my grandson A. 
 .500/., and to my grandson B. 500/." The legacies to A. and B. 
 were held not to be charged on the land (o). 
 
 A will began in these words, — " As to my worldly estate, I 
 dispose of the same as follows, after my debts and legacies paid." 
 Then the testator gave several legacies. After which he be- 
 queathed 1500/. a-piece to his five daughters, payable at twenty- 
 one, or marriage ; and then followed these words, " after all my 
 legacies paid, I give the residue of my personal estate to my son." 
 Then he devised his fee-simple lands to his son and his heirs ; 
 and if his son should die without issue in the lifetime of any of 
 his daughters, he devised his real estate to his daughters ; to 
 whom he ordered interest to be paid at 5/. per cent, by his 
 executors, for their portions until the same should become due ; 
 
 {k) G Ves. 475. 
 (0 4 Russ. 376. 
 (to) 2 Freem. 265. 
 
 (n) See also hard Pawlet v. Parry, or 
 Perry, Prec. Ch. 449, Gilb. Eq. Rep. 
 
 123, 4 Vin. Abr. 461, 2 Eq. Cas. Abr. 
 497 ; Austen v. Halsey, 6 Ves. 475 ; and 
 Howell V. Hayler, 1 Hovend. Supplem. to 
 Ves. 342, 
 
 (n) Grise v. Goodwin, 2 Freem. 264.
 
 S. IV.] our OK 'l"HK I'F.KSONAL r.S'JA'I'l'; ONLY. 95 
 
 and appointed his son and one S. his execntors. The son, to 
 whom the lands were devised, was the only son and heir at law 
 of the testator. The personal estate was not snfficient to pay all 
 the portions, but was enough to pay much the greatest part of 
 them. The deficiency was held not to be charged on the real 
 estate (7^). 
 
 T. J. S. devised to his heir at law certain real estates in fee, 
 " subject to and chargeable nevertheless with the payment of 
 all my just debts, funeral charges, bonds, annuities, and all lega- 
 cies hereafter mentioned; that is to say, to T. S. I give 1000/., 
 to W. S. I ffive lOOOZ." And here followed numerous other 
 legacies bequeathed in the same way. The testator afterwards 
 made several other devises and bequests, and disposed of the 
 residue of his personal estate. And at the end of the will he 
 appointed Mrs. H., together with J. L. and R. F. executors ; 
 and then added, " and I do bequeath to the said J. L. and R. F., 
 to each of them, lOOOZ." On the whole will taken together, the 
 charge of legacies on the real estate was held to be confined to 
 the legacies enumerated immediately after the words " that is to 
 say," and not to extend to the legacies given at the end of the 
 will to J. L. and R. F. (</). 
 
 J. K. by his will disposed as follows: — " First I will and 
 direct that all my legal debts, legacies, and funeral expenses, 
 shall be fully paid and discharged." He then gave some direc- 
 tions for his burial, and proceeded — " Next I devise to my niece 
 S. R., and her heirs, all my messuages, lands, tenements, and 
 hereditaments, situate in B." He then devised another mes- 
 suage to his cousin M. J., in fee. And he devised to C. K. 
 another estate in fee. He then bequeathed several legacies ; 
 and gave all the residue of his real and personal estate to R. A., 
 S. B., and M. J., and appointed them executors. Beyond the 
 first sentence in the will, there were no words to charge the 
 legacies on the real estate ; and Sir R. P. Arden held that the 
 terms of that sentence were not sufficient for the purpose (?). 
 
 (p) Davis V. Gardiner, 2 P. W. 187. I (r) Kightley v. Kightley, 2 Ves. jun. 
 (<y) Hnne v. Medcraft, 1 Bro. C. C. 261 . I 328.
 
 96 OF LEGACIES HELD TO BE PAYABLE, &C. [cH. VI. 
 
 A. F. bequeathed 600/. to her daughter, A. P. She also 
 bequeathed to another of her daughters 100/., and gave several 
 small legacies to other persons. She then directed that the lega- 
 cies, which she had given, should be paid, vi^ithin two years after 
 her decease, by her executor to such of the legatees as should 
 then have attained the age of twenty-one years, and to the others, 
 as and when they should attain that age. She next devised a 
 real estate, which she particularly mentioned, and all other her 
 real estates to her son C. in fee. And as to all the rest and 
 residue of her said personal estate, which should remain after 
 payment of her debts and funeral expenses, she gave the same to 
 her said son, for his own use and benefit, and appointed him sole 
 executor. Sir J. Leach decided that the legacies were not charged 
 on the real estates (s). 
 
 In Kightley v. Kightley, Sir R. P. Arden drew a distinction 
 between debts and legacies, and decided that this first sentence in 
 a will, " First I will and direct that all my legal debts, legacies, 
 and funeral expenses, shall be fully paid and discharged," were 
 not suflftcient to charge legacies on real estate devised by specific 
 devises in the will ; although he had no doubt but the same words 
 charged that estate with the payment of debts. The grounds of 
 this distinction seem to have been, that a provision for debts 
 is obligatory on the conscience, but legacies are purely voluntary ; 
 that the real estate was specifically devised ; and that there is no 
 reason why pecuniary legacies should have any preference to such 
 specific devises {t). This distinction appears, however, to have 
 dissatisfied Lord Loughborough, who has observed on it, — " In 
 Kiglitley v. Kightley, the Master of the Rolls states a difference 
 between debts and legacies : I do not know how to state a differ- 
 ence between them" {u). But in a subsequent case Sir R. P. 
 Arden maintained his former opinion, and then said, " As to the 
 distinction between debts and legacies, I am still of the same 
 opinion that I held in Kightley v. Kightley, though the Lord 
 Chancellor doubted my distinction. I cannot agree that where 
 
 (s) Parker v. Fearnley , 2 Sim. & St. I («) 2 Vcs. jun. 328. 
 592. I (") 3 Ves. 551.
 
 S. V.J OF A DEVISE ON CONDITION TO PAY LEGACIES. 97 
 
 there is a specific devise, there is no difference between debts and 
 legacies. The testator must be taken to mean his debts to be 
 paid, and then his legacies to be paid ; and a specific devise is as 
 much a legacy in this sense as a pecuniary legacy" {v). And 
 again, in a later case, his Honor, said, " I have formerly fully 
 expressed my opinion upon this point, as to the difference be- 
 tween debts and legacies; I understand the Lord Chancellor 
 expressed some doubt about it ; but upon reflection I still remain 
 of the same opinion" (rv). 
 
 SECTION V. 
 
 OF A DEVISE ON CONDITION TO PAY LEGACIES. 
 
 On the subject of a condition to pay a legacy, may be considered, 
 1. The general nature of a devise that is a condition, and of 
 a conditional limitation. 
 
 •2. A condition to pay a legacy, and the remedies of the lega- 
 tee for it. 
 
 3. A condition to pay a legacy, when the devise is to the 
 testator's heir at law. 
 
 4. A, condition to pay a legacy, when the will gives to the 
 legatee a right of entry on non-payment of it. 
 
 5. The equitable relief afforded to the devisee, if the con- 
 dition is broken. 
 
 1. When a devise is made on a condition, and the condition is 
 broken, the effect of the breach of the condition may be different in 
 different cases. In one case the effect may be, to entitle the testa- 
 tor's heir at law to enter, and by this entry to destroy the estate on 
 condition; and, in another case, to cause such estate to cease of 
 itself, without any entry for the purpose {x). Technically speak- 
 ing, the devise is in the first case a condition, and in the second 
 
 (v) Ibid. 739. I 204, 3 Co. 20 b.; Hodgson v.Rawson, 
 
 (w) 5 Ves. 362. 1 Ves. 44, 47.— Co. Li«. 214 b.; 10 Co. 
 
 (r) Wellock v. Haminoiid, Cro. Eliz. I 40 b. 
 
 H
 
 98 OF A DEVISE ON CONDITION TO PAY LEGACIES. [CH. VI. 
 
 case a conditional limitation ; in other words, in the first case a 
 condition, and in the second a limitation (?/). 
 
 There are certain "apt and legal" words of condition {z) ; as, sub 
 conditioner upon condition (a) ; proviso, or proviso sctnper, provided, 
 or provided always (b); ita quod, so that (c). There are also certain 
 apt and legal words of limitation {d), as quamdiu, so long as (e) ; 
 quousque, until {/) ; durante, during (//). And on a lease for years, 
 if the lessee shall so long live, the latter words make a limitation(A). 
 
 Certain expressions which, if used in a feoffment or grant, 
 might not be words of condition, are, when found in a will, con- 
 strued to be apt and legal words of condition {i) ; as, in particu- 
 lar it may be mentioned, the words ad solvendum, or solvendo, to 
 pay, or paying {j). 
 
 Where a devise is a condition, and the condition is broken, 
 the testator's heir at law may enter and avoid the devise ; but no 
 one but the heir can do this(^). Where a devise is a conditional 
 limitation, and the condition is broken, so soon as it is broken 
 
 {y) Cro. Eliz. 204 ; 1 Ves. 47. 
 
 (z) Lift. S. 328 ; Bro. Abr. tit. Con- 
 ditions, pi, 7, 43 : 10 Co. 42 ; Duke of 
 Norfolk's case, 2 Dyer, 138 a. 
 
 (a) Litt. S. 328 ; Co. Litt. 203 a; 10 
 Co. 42; Hardr. 11. 
 
 (6) Litt. S. 329; Co. Litt. 203 b. ; 10 
 Co. 42 ; Lord Cromwel's case, 2 Co. 69 b.; 
 Simpson v. Titterell, Cro. Eliz. 242; Earl 
 of Pembroke v. Berkley, ib. 384, Mo. 706 ; 
 Creckmere v. Patterson, I Leon. 174; 
 Thomas's case, 1 Rol. Abr. 411. In the 
 words of Sir E. Coke, the word proviso 
 " halh divers operations. Sometime it 
 worketh a qualification or limitation, 
 sometime a condition, and sometime a 
 C07enant." Co. Litt. 146b., 203 b. ; Litt. 
 S. 220; Lord Cromwel's case, 2 Co, 
 69 b,; Anon. 1 Dyer, 13 b., Ca. 65; 
 Ayer w.Orme, 2 Dyer, 221b.; Scot v. 
 Scot, Cro. Eliz. 73, 2 Leon. 128, 3 Leon. 
 225, 4 Leon. 70.— Bro. Abr, tit. Con- 
 iitions, pi. 195; 1 Rol, Abr, 410, 
 
 (c) Litt, S, 329 ; 10 Co. 42, 
 
 (rf) 10 Co, 41 b. ; Co. Litt, 235 a. 
 
 (e) 10 Co. 41b,; Co. Litt. 214 b,; 
 234 b., 235 a. 
 
 (/) 10 Co, 41b.; Co. Litt. 214 b.; 
 Bro. Abr. tit. Conditions, pi. 106. 
 
 (g) Litt.S. 380; Co. Litt, 234 b.; 10 
 Co. 41 b. ; Gland's case, 5 Co. 116, 
 
 (h) 10 Co. 42 ; Co. Litt. 214 b- See 
 Brudnel's case, 5 Co. 9 b. 
 
 (i) 10 Co. 42; Cro. Eliz, 146; Co. 
 Litt, 236 b.; Bro, Abr. tit. Conditions, 
 pi. 96, 191,215, 218; tit. Devise, pi. 19, 
 46 ; 1 Rol. Abr. 410; Anon. Mo. 57, 4 
 Leon. 2; Underwood v. Swain, 1 Ch. 
 Rep. 161; Miles v. Leigh, 1 Atk. 573, 
 1 West Cas, T, Hardw, 707. 
 
 (j) 3 Co. 21 ; 10 Co. 42 ; 2 Mod. 7 ; 
 Crickmere v, Paterson, Cro, Eliz. 146, 1 
 Leon. 174, Co. Litt. 236 b,, 1 Rol, Abr. 
 410, I. pi. 2; Fox V. Carlyne, Cro. PJliz. 
 454 ; Miles v. Leigh, 1 West Cas. T. 
 Hardw. 709, See Streete v. Beale, 1 Rol. 
 Abr. 411. 
 
 (/c) Plowd. 412, 413; 10 Co. 41b.; 
 Bro. Abr. tit. Conditions, pi, 43; 1 Ventr. 
 200; 1 Ves, 422, 423 ; 1 Atk. 424.
 
 S. V. OF A DEVISE ON CONDri'lON TO FAV LEGACIES. 1)9 
 
 the estate on condition ceases, and a person who is not the tes- 
 tator's heir at laAV, as a remainder-man, or executory devisee, 
 may be entitled to enter and supply the vacant possession (/). 
 When there is a devise over on the conditional limitation, and 
 the condition is broken, that devisee over is entitled to enter. 
 But his entry is not necessary to acquire an estate; for immedi- 
 ately on the determination of the conditional limitation, if the 
 limitation over is a remainder, such remainder-man has an estate 
 in possession (m), and if it is an executory devise in fee, such 
 devisee over in fee has an estate in fee in possession (n). 
 
 An opinion once existed, that if a will contained a devise for 
 life on condition, with remainder over in tail, and the condition 
 was broken, the testator's heir at law might enter, and hold during 
 the life of the tenant for life, and that such entry did not destroy 
 the estate in remainder (o). This opinion, which allowed the 
 entry of the heir to have a partial effect only, is however opposed 
 by numerous authorities, and clearly is not now law. The entry 
 of the heir defeats the whole devise ; so that if the estate on 
 condition is an estate for life, or other particular estate, with a 
 remainder over, or an estate in fee with an executory devise over, 
 that entry (supposing the devise to be a condition, and not a 
 limitation,) destroys not only the estate on condition, but also the 
 remainder or executory devise over (p). And the circumstance 
 that such entry has this effect is the reason, that now, when a 
 devise is made on condition, with, expressly if the condition is 
 broken, a remainder or executory devise over, such remainder or 
 executory devise is interpreted, not indeed to destroy the con- 
 dition annexed to the devise, but to make the devise on condition 
 a conditional limitation (q). 
 
 (0 10 Co. 40 b. ; 2 Mod, 7 ; Neivis v. 
 Lark, Plowd. 408; Wellock v. Hammond, 
 Cro. Eliz. 204. 
 
 (m) Plowd. 413; 10 Co. 40 b. 
 
 (?j) Anon. 2 Mod, 7. 
 
 (o) Warren v. Lee, 2 Dyer, 126 b. 
 (53), (54), 1 Rol, Abr, 472, I. pi. 4. 
 
 (p) Plowd. 412; 10 Co. 41b.; Co. 
 Litt. 202 a. ; Bro. Abr. tit. dmtiuions. 
 
 pi. Ill ; 1 Rol. Abr. 472, I. pi. 4 ; Wue- 
 man v. Baldwin, 1 Rol. Abr. 411, K. 
 pi. 5 ; Fulmerston v. Steward, cited Cro. 
 Jac. 592. 
 
 ((/) Wiseman v. Baldwin, 1 Rol. Abr. 
 411, K. pi. 5; Fulmerston v. Steward, 
 cited Cio. Jac. 592; Lady Fry's case, I 
 Veatr. 199, 200, 202. 
 
 H 'J
 
 J 00 OF A DEVISE ON CONDITION iO PAY I.EfJlACIES. [CH. VI. 
 
 An opinion oiiec also j^revailed, that when a will contained a 
 devise for life, with a remainder over, and an express condition was 
 annexed to the estate for life, the devise for life coidd not be con- 
 strued to be a limitation, but that the remainder over made void 
 the condition. Accordingly, Sir E. Coke appears to have thought, 
 that words of express condition (meaning, it would seem, apt and 
 legal words of condition expressed) could not be construed to 
 be a limitation {i-). And this opinion, which is supported by 
 other authorities (.9), he grounded on two decisions; by which it 
 was held, that where a will contained a devise for life on express 
 condition, (expressed in both cases by the words " upon condi- 
 tion",) with a remainder over, this remainder did not make the 
 devise for life a conditional limitation, but had the effect to cause 
 the condition to be void ; because to construe the condition to be 
 valid, would entitle the heir at law and not the remainder-man to 
 enter, and the entry of the heir M'ould destroy the remainder, and 
 so defeat the testator's intention [t). These aathorities created 
 a distinction between express and implied conditions ; for Sir E. 
 Coke admitted that words, which were neither an express condi- 
 tion, nor apt and legal words of limitation, might be construed to 
 be a limitation (?<). This distinction has however been a long 
 time exploded [v). And it is now decided by numerous cases, 
 that when a will contains a devise on express condition, with, 
 expressly {w) if the condition is broken, a limitation over, this 
 limitation over makes the preceding devise a conditional limitation ; 
 and this whether the limitation over is a remainder expectant on 
 an estate for life {x), or in tail (j/), on condition, or is an exe- 
 cutory devise in fee limited on an estate in fee on condition [z) ; 
 
 (»■) 10 Co. 40b., 41a., 41b. 
 
 (s) Thomai's case, 1 Rol. Abr. 411, 
 843 ; Skirue v. Bond, ib. 412. 
 
 (() 29 Ass. pi. 17 ; Bro. Abr. tit. Con- 
 ditions, pi. Ill, tit. Devise, pi. 16 ; Fitzh. 
 Abr. tit. Assize, pi. 281, cited Plowd.412, 
 and 10 Co. 40 b. ; Dr. Butt's case, cited 
 10 Co. 41b. 
 
 (w) 10 Co. 41 a. 
 
 (d) 1 Ventr, 203, 322, 
 
 {w) See Gulliver v. Ashby, 1 W. r>l. 
 
 607, 4 Burr. 1929. 
 
 (or) See 1 Ventr. 202. 
 
 (i/) Wiseman v. Baldwin, 1 Rol. Abr. 
 411, K. pi. 5, Cro. Eliz. 377 ; Spittle v. 
 Davies, 2 Leon. 38 ; Fi-y v. Porter, 1 
 Ventr. 199, 1 Mod. 86, 300 ; Page v. 
 Hayward, 2 Salk. 570. 
 
 (c) Haynsivorth v. Pretty, Cro. Eliz. 
 833, 919, 1 Rol. Abr. 411 ; Fulmerston v. 
 Steward, cited Cro. ,Tac. 592 ; Avelyn v. 
 Ward, 1 Ves. 420.
 
 S. v.] OF A DEVISE ON CONDITION TO PAY LEGACIES. 101 
 
 and also whether the devise on condition is to the testator's heir 
 at law (a), or to some other person [b). In Gulliver v. Aslihij, a 
 person devised to D. W. for life, remainder to A. S. in tail male, 
 and, for want of such issue, to A. C, the plaintiff, in tail ; and a 
 subsequent part of the will contained an express condition, in- 
 tended to obliee A. S. to take the sirname of W. A. S. did not 
 take this name, and suffered a common recovery. The question 
 was not, if, notwithstanding the express condition, the devise to 
 A. S. might be construed to be a conditional limitation, but 
 whether, as the limitation over to A. C. was not made expressly if 
 A. S. broke the condition, the whole will taken together implied 
 that expression : and the Court of King's Bench decided that it 
 did not, and that the devise to A. S. was a condition, and not a 
 limitation, [c). The Court also held that the condition was sub- 
 sequent. If therefore it was not broken before the recovery 
 suffered by A. S., that recovery destroyed the condition, and 
 barred the remainder of A. C. [d). 
 
 Particular expressions found in a will have been construed not 
 to be a condition [e] ; and are often interpreted to be a limitation, 
 and not a condition. And this latter interpretation is allowed, 
 although the particular expression, when used in a will, generally 
 speaking makes a condition {f). A reason to interpret a devise 
 to be a limitation is, that the devise is to the testator's heir at 
 law (^), or that on the devise there is a limitation over in re- 
 mainder (A), or by executory devise {i), or that the devise is both 
 to the heir at law, and also with a limitation over {j). To con- 
 strue the devise to be a condition Avould extinguish the remedy, 
 where the devise on condition is to the heir at law (A) ; and would, 
 
 (a) Spittle V. Davies, 2 Leon. 38 ; 
 Haynsworlh v. Pretty, Cro. Eliz. 833, 
 919 ; Avelyn v. Ward, \ Ves. 420. 423. 
 
 (6) IVisemaii v. Baldwin, 1 Rol. Abr. 
 411. 
 
 (c) 1 VV. Bl. 607 ; 4 Burr. 1929. See 
 Grimston v. Lord Bruce, 2 Vern. 594. 
 
 ((i) Benson v. Hodson, 1 Mod. HI; 
 Page V. Hayward, 2 Salk. 570. 
 
 (e) Martidale v. Martin, Cro. Eliz. 
 288 ; Gibons v. Marltiward, Mo. C94 ; 
 Anon. 2 Leon. 154, 3 Leon. 65. 
 
 ( /) Welbck V.Hammond, Cro. Eliz. 204. 
 
 {g) Wellock V. Hammond, Cro. Eliz. 
 204, 3 Co. 20 b. ; Anon. 2 Mod. 7 ; Tun- 
 stall V. Bracken, Amb. 167, 170. 
 
 (/)) Neivis V. Lark, Plowd. 408, 412 ; 
 Hayward v. Stillingfteet, 1 Atk. 424, 1 
 West Cas. T. Hardw. 179. 
 
 (i) Wiseman v. Baldioin, 1 Rol. Abr. 
 411. 
 
 (j) Avelyn v. Ward, 1 Ves. 420, 421; 
 Sim,psonv. Vickers, 14 Ves. 341, 346. 
 
 {k) Cro. Eliz. 205.
 
 10'2 OF A DEVISE ON CONDITION TO PAY LEGACIES. [CH. VI. 
 
 M'liere there is a limitation over on the devise on condition, occa- 
 sion the heir to destroy by his entry that limitation over (l). 
 
 2. A common condition annexed to a devise is, to pay a legacy, 
 or an annuity. 
 
 A devise to a person, who was not the testator's heir at law, on 
 condition to pay a legacy, or annuity, has been held to be a con- 
 dition, and not a limitation, in the following cases (m) : — where one 
 devised land to J. S. for years, reddendo et solvendo 20s. annuatim 
 at Michaelmas to J. D. (w) : also where a copyholder in fee of 
 lands descendible in Borough English had three sons, and devised 
 to the second son in fee, upon condition that he would pay to his 
 four daughters, to every of them at their full age, 20/. (o) : also 
 v/here P. S., being seised in fee, devised to J. S., his kinsman, and 
 his heirs, in consideration that he should pay all his debts and 
 legacies ; and in which will the testator appointed his legacies to 
 be paid within tM^o months after the death of his wife, who had an 
 estate for life in the premises {p) : also where J. H. devised part 
 of his real estate to his mother for life, and afterwards to his 
 cousin W. R., his heirs and assigns, he and they paying thereout 
 legacies to several persons ; which sums the testator willed to be 
 paid within twelve months next after his mother's decease {q) : 
 and also where E. R., having two daughters, his heiresses at law, 
 devised his real estate to his kinsman Sir R. R., paying 1000/. a 
 piece to his two daughters, within six months after the decease of 
 his wife (r). 
 
 If the legacy or annuity is not paid, and so the condition is 
 broken, the heir at law of the testator is entitled to enter, and 
 support an ejectment, and at law to recover the land from the de- 
 visee {s). But in equity the heir will be a trustee for the legatee (t). 
 
 (0 Plowd. 412 ; 10 Co. 41 b, ; Bro. 
 Abr. tit. Conditions, pi. Ill ; 1 Rol. Abr. 
 411, K.pl. 5. 
 
 (m) See also Grimston v. Lord Bruce, 
 2 Yern. 094, 1 Salk. 156, Freke v. Lee, 
 Pollexf. 553, and Shawe's ease, Palm. 
 76. 
 
 (•«) Foxy. Carlyne, Cio. Eliz. 454. 
 
 (()) Curteis v. Wolverston, Cro. Jac. 56. 
 
 (p) Underwood v. Swain, 1 Ch. Rep. 
 161. 
 
 (q) Hodgson V. Eawson, 1 Ves. 44, 47. 
 
 (/•) Barnardiston v. Fane, 2 Vera. 366. 
 
 (s) Fox V. Carlyne. Cro. Eliz. 454 ; 
 Curteis v. Wolverston, Cro. Jac. 56 ; Bar- 
 nardiston V. Fane, 2 Vera. 366 ; Freke v. 
 Lee, Pollexf. 553 ; Wigg v. Wigg, 1 Atk. 
 383 ; Hodgxonv. liawson, 1 Ves. 44, 47 ; 
 TumtaU. v. Bracken, Amb. 167, 170. 
 
 (t) Wigg V. Wigg, 1 Atk. 383, 1 West 
 Cas. T. Hardw. 679 ; Hodgson v. liawson, 
 1 Ves. 47 ; Avelyv v. Ward, ih. 423.
 
 S. v.] OF A DEVISE ON CONDITION TO PAY LEGACIES. 103 
 
 A devise on condition to pay an annuity was held to be a 
 limitation, and not a condition, in the following case of Wiseman 
 V. Baldwin. A man has two sons, R., the eldest, and H., and 
 also two daughters ; and devises to H. in tail, when he shall come 
 to twenty-four years of age, " upon condition that he shall pay 
 unto my two daughters 20/. a-year at their full age, and if the 
 said H. die before twenty-four, then I will that R., my son and 
 heir, shall have the said land to him and to his heirs, he giving 
 and paying to my said daughters the said money, in such manner 
 as H. should have done if he had lived : And if my sons H. and 
 R. (if the said lands come to the said R. by the death of H.) do 
 not pay the said money to my said daughters as aforesaid, then I 
 will my said lands shall remain to my said daughters, and to 
 their heirs for ever." On this will it was adjudged — " This is a 
 limitation on the estate of H., and not a condition ; so that if H. 
 does not pay the money to the two daughters after his age of 
 twenty-four years, and at the full age of the daughters, R. shall 
 have it [the land] by way of limitation, and he cannot enter as for 
 a condition broken ; because otherwise, scilicet, if this shall be a 
 condition, it would defeat the portions given to the daughters, 
 and the future devise to them, which is against the intent of the 
 devisor" («). 
 
 When a condition to pay a legacy is annexed to a remainder 
 in fee devised to A., and A. dies before the remainder falls into 
 possession, the condition will bind his heir, " if the devise so 
 takes effect, as that he must claim under the ancestor, as much as 
 if the ancestor himself had taken in possession" {v). 
 
 3. If a person devises to his heir at law either for years, for 
 life, or in tail, remainder to A. in fee, in either case the heir 
 takes by devise (w). But if the ancestor devises to his heir in 
 fee-simple, then the law makes void the devise, and puts the heir 
 in by descent [x). If the ancestor devises to A. for years, for 
 
 (m) 1 Rol. Abr. 411, K., pi. 5, Cro. 
 Eliz. 377. 
 
 (t;) Miles V. Leigh, 1 Atk. 573, 575, 1 
 West Cas. T. Hardw. 710, where iMarks 
 V. Marks [1 Stra. 129] is cited as a 
 strong authority in point. 
 
 (w) Plowd. 545 a. ; Bro. Abr. tit. De- 
 vise, pi. 4, 41 ; Heme v. Meyrick, 1 P. 
 W. 201. 
 
 (x) Plowd. 545 a.; Bro, Abr. tit. De- 
 vise, pi. 4 ; 1 Rol. Abr. 626, I. pi. 1 ; 
 Hob. 30 ; Smith v. Tri-^gs, 1 Stra. 487.
 
 104 or A DEVISE ON CONDITION TO PAY LEGACIES. [CH. VI. 
 
 life, or in tail, and the reversion in fee is undisposed of by the 
 will, a fee-simple, namely the reversion in fee, will descend to 
 the heir. And if the ancestor devises to the heir for years, or for 
 life, and the reversion in fee is undisposed of by the will, this 
 reversion will descend to the heir, and drown the estate for years, 
 or for life, and the heir will be in by descent of the fee in pos- 
 session (//). But if the devise is to the heir in tail, and the 
 reversion in fee descends, the entail will not be merged, and the 
 heir will be seised in tail by devise, and of the reversion in fee 
 by descent (z). If the ancestor devises to A. for a chattel 
 interest (a), or for a term of years (&), or for life (c), or in tail {d ), 
 remainder to the heir in fee, the heir, seised in fee, is in by 
 descent. 
 
 In the above instances, the heir seised in fee is so seised, 
 M'ithout any limitation over, or condition, to affect that seisin. 
 As a fee-simple, namely a reversion in fee, may descend subject 
 to an estate, as for life, or in tail, devised by the will of the 
 ancestor ; so a descent is allowed, subject to an executory devise, 
 or to a condition, created by the ancestor's will ; notwithstanding 
 in these cases the heir will not be seised without any limitation 
 over, or condition to affect that seisin. 
 
 If a person devises to his heir at law in fee, and, by executory 
 devise, limits on a contingency the fee-simple over to another 
 person; until the contingent event takes place, the freehold {e) 
 certainly, and it seems also the fee-simple (f), descends to the 
 
 (3/) 3 Leon, 26 ; Wood v. Ingeisole, 
 Cro. Jac, 260. 
 
 (s) Bro. Abr. tit. Discent, pi. 13 ; 2 
 Co. 61 ; Plowd. 545 a. 
 
 (a) Anon. 2 Dyer, 124 a., Ca. 38, 1 
 Rol. Abr. 626, 1. pi. 3; Hinde v. Lyon, 
 2 Leon. 11, 3 Leon. 64, 70; Bashpool's 
 case, 2 Leon. 101, 3 Leon. 118, 4 Leon. 
 35 ; Doe v. Timins, 1 Barn. & Aid. 530. 
 
 (ft) Bro. Abr. tit, Deuise, pi. 41. 
 
 (c) Preston v. Holmes, 1 Rol. Abr. 
 626, I. pi. 2. See Miles v. Leigh, I Atk. 
 574. 
 
 ((i) Nottingham v. Jennings, 1 P. VV. 
 
 23, 1 Ld. Raym. 568, 1 Salk. 233. 
 
 (e) Pay's case, Cro. Eliz. 878; Huins- 
 uorth V. Pretty, ib. 920 , Gore v. Gore, 
 2 P. W. 28, 65 ; Hopkins v. Hopkins, 
 Cas. T. Talb. 44, 52 ; Hayward v. Stil- 
 lingjieet, 1 Atk. 422, 424, 1 West Cas.T. 
 Hardw. 176;BMi/oc/cv.Sfone6-,2Ves.521, 
 
 (f) Hinde v. Lyon, 2 Leon. 11, 3 
 Leon. 64, 70 ; Plnnket v. Holmes, 1 Lev. 
 11, 1'. Raym. 28 ; Purefoy v. Rogers, 2 
 Saund. 380, 3 Keb. 1 1 ; Carter v. Barna- 
 dislon, 1 P. W. 505 ; Loddington v. Kime, 
 1 Ld. Raym. 203, 3 Lev. 431, 1 Salk. 
 224 ; Doe v. Timins, 1 Barn. &c Aid.
 
 S. v.] OF A DEVISE ON CONDITION TO PAY LEGACIES. 105 
 
 heir ; and the heir seised in fee, after the executory devise has 
 failed, is, it is decided, in by descent, and not by devise (//). 
 
 When a person devises to his heir at law in fee, on condition 
 to pay a legacy, this condition will not break the descent, but the 
 heir will take by descent, and not "by devise (h) ; and in equity 
 the heir will be a trustee for the legatee (z). And if the devise 
 is to the heir at law in fee, on condition to pay a legacy to A., 
 with, expressly if the legacy is not paid, an executory devise 
 over to A. in fee, in this case the devise to the heir is void ; and 
 if the legacy is not paid, the estate descended to the heir ceases, 
 and A. may enter (j). 
 
 In the case of co-heiresses, if the ancestor devises to them, and 
 their heirs, they will take by devise as joint-tenants, and not be 
 co-parceners by descent (k). And if he devises to one only of 
 two co-heiresses, and to her heirs, this one will take the whole by 
 devise, and not one moiety by devise, and the other moiety by 
 descent (l). And if a devise to one of two sisters, co-heiresses 
 of the testator, is to her and her heirs, on condition to pay a 
 legacy, the devise will be a conditional limitation ; and if the 
 legacy is not paid, and so the condition is broken, her estate will 
 cease, and then one moiety will be in her as heir at law, and the 
 other moiety in the other sister as co-heir, who may now enter, 
 or, if necessary, obtain possession by ejectment {?n). 
 
 530,543, 549. See farther on the abeyance 
 of the fee simple, Lilt. S. 646, 647, 648, 
 Co. Litt, 342 b., 343 a., and Vick v. 
 Edivards, 3 P. W. 372. 
 
 is) Chaplin v. Leroui, 5 M. & S. 14 ; 
 Doe v.Timins, I Barn. & Aid. 530 ; which 
 cases overrule, not the decision, but the 
 reason of the decision, in Scott v, Scott, I 
 Eden, 458, Arab. 383. See Haynsworth 
 V. Pretty, Cro. Eliz. 833, 919, and 
 Avelyn v. Ward, 1 Ves. 420, 423. 
 
 (/i) Clerk, or Clarke, v. Smilh, Com. 
 72, 1 Salk. 241, 1 Lutw. 793, 797 ; 
 Emerson v. Inchbird, 1 Ld. Raym. 728 ; 
 Smith V. Alterly, 2 Freem. 136 j ]Vhfdey 
 V. Cox, 2 Eq. Cas. Abr. 549. These au- 
 thorities overrule Gilpin's case, Cro. Car. 
 
 161, and Brittam v. Charnock, 2 Mod. 
 286, 1 Freem. 248. See 5 M. & S. 20. 
 On the point of descent, Awbrey v. Mid- 
 dleton, 4 Vin. Abr. 460, 2 Eq. Cas. Abr. 
 497, appears also to be overruled. 
 
 (i) Smith V. Alterly, 2 Freem. 136 ; 
 Wigg V. Wigg, 1 Atk. 383 ; Bacon v. 
 Clerk, 1 P. W. 478, Prec. Ch. 500. 
 
 (J) Haynsworth v. Pretty, Cro. Eliz. 
 833, 919, Mo. 644, 1 Rol. Abr. 411. 
 See Anon. Cas. T. Holt, 254, 6 Mod. 241. 
 
 (fc) Anon. Cro. Eliz. 431 ; Bea re's case, 
 
 1 Leon. 112; Hedgerv. Rowe, 3Lev. 127. 
 
 (/) Reading v. Rawsterne, or Royston, 
 
 2 Ld. Raym. 829, 1 Salk. 242. 
 
 (m) Tunstall v. Brachen, Amb, 167, 
 1 I3ro. C. C. 124, n.
 
 106 OF A DEVISE ON CONDITION TO PAY LEGACIES, [cil. VI. 
 
 The following- qucere, made by Manwood, is reported by Dyer. 
 — " A man seised in fee of land in gavelkind, had issue two sons, 
 and devised to the eldest son in fee, on condition that he should 
 pay to the wife of the devisor 1 00/. at a certain day : at which he 
 failed of payment. Whether the youngest son may not enter 
 into the moiety upon his brother, as by a limitation implied in 
 the estate, if the condition be not performed" {n) ? It appears to 
 be now clear that the youngest son may make this entry (o) ; 
 because, as when a condition is annexed to a devise of gavelkind 
 land, the heir at common law, namely the eldest son {p), is the 
 party to enter if the condition is broken («^), the testator's inten- 
 tion would be defeated, by interpreting the devise to be a condi- 
 tion and not a limitation (r). 
 
 A devise on condition to pay a legacy has been held to be a 
 limitation, and not a condition, in the following cases, where the 
 devise was to the testator's heir at law. In Wellock v. Hammond, 
 T. W., copyholder in fee of land, of the nature of Borough 
 English, descendible to the puisne son and puisne brother, had 
 issue four sons and a daughter ; and devised to his wife for life, 
 remainder to J., his eldest son, paying forty shillings to each of 
 his brothers and to his sister, within two years after the death of 
 his wife [s). In Gugehnan v. Duport, F. D. devised to her 
 grandson, J. D., and the heirs of his body, all her plantations and 
 lands, upon condition that he first paid lOOOZ. to her grand- 
 daughter, J. D., at her age of twenty-one years, or marriage, 
 which should first happen ; and she thereby charged her said 
 lands and plantations with the said sum of lOOOZ. And she em- 
 powered her executor to raise and pay the same out of the rents 
 and profits of the said premises, and to keep the said plantations, 
 and other lands, in his own possession, till the said 1000/. should 
 be so raised and paid. On this will Lord Hardwicke observed, — 
 " Here is a devise to the heir at law upon condition, which ope- 
 
 (n) 3 Dyer, 316 b. (5). J (q) 3 Dyer, 343 b. ; Noy's Max. 82. 
 
 (o) Wellock V. Hammond, Cro. Eliz, {j^ Cro. Eliz. 205. 
 
 204, 3 Co. 20 b. ; Tunstall v. Bracken, (s) Cro. Eliz. 204, 3 Co. 20 b., 2 
 
 Amb. 167. Leon. 114. 
 
 (p) Bro. Abr. tit. Discent, pi. 59.
 
 S. V. OF A DEVISE ON CONDITION TO PAY LEGACIES. 107 
 
 rates as a limitation, and gives a right of entry to the legatee ; 
 ' the daughter [grand-daughter] therefore had a legal estate, and 
 a legal remedy" {f). 
 
 4. As a devise on condition is often construed to be a limita- 
 tion, when made to the testator's heir at law ; or wlien made to 
 some other person, with, expressly if the condition is broken, a 
 limitation over ; so when land is devised in fee, on condition to 
 pay a legacy, with, if the legacy is not paid, an express gift to 
 the legatee of the right to enter, and hold, and take the rents and 
 profits, until the legacy is satisfied, the effect of this gift of a right 
 to enter is, to make the devise on condition a conditional limita- 
 tion (//). Such right to enter is a chattel interest, and if the 
 legacy is not paid, the legatee will have a legal chattel estate, 
 and may enter, and, with resemblance to a tenant by elegit, may 
 hold possession, and take the rents and profits, until out of them 
 he has paid himself the legacy (v). Also his right of entry 
 entitles him, if necessary, to the legal remedy of ejectment to 
 obtain possession (w). The right to enter, Lord Hardwicke has 
 observed, is " improperly called a power ; for a right of entry 
 will go to executors and administrators" (.r). And on the same, 
 and other authority, it may be mentioned, that if this chattel in- 
 terest " be granted to a man, although his executors are not 
 named, yet they will take it barely as his representatives" (y). 
 
 There appears to be a distinction between a right to enter and 
 hold until payment of a legacy or annuity, and a right to enter 
 and distrain if an annuity is not paid. For when a will contains 
 a devise, on condition to pay a rent or annuity, with, if the 
 rent is not paid, an express gift to the annuitant of the right to 
 enter and distrain, and the devise is not made to the testator's 
 heir at law, it would seem that the right to enter and distrain 
 only does not make the devise a conditional limitation ; but that 
 
 (t) 1 West Cas. T. Hardw, 577, 
 579. See also Ernes v. Hancock, 2 Atk. 
 508. 
 
 (w) Wigge V. W'lgge, 1 West Cas. T. 
 Hardw. 677, 1 Atk. 382 ; Ernes v. Han- 
 cock, 2 Atk. 507, 509 ; Embrey v. Mar- 
 tin, Amb.230. 
 
 («) Wigg V. Wigg, 1 Atk. 383 ; Ernes 
 V. Hancock, 2 Atk. 509, cited 3 Atk. U6 ; 
 Sherman v. Collins, 3 Atk. 319, 322. 
 
 (w) Sherman v. Collins, 3 Atk. 322. 
 
 (x) 3 Atk. 322. 
 
 (t/) Ibid. ; Embretf v. Martin, Amb, 
 230 ; Manning v. Herbert, Amb. 577.
 
 108 OF A DEVISE ON CONDITION TO PAY LEGACIES. [CH. VI. 
 
 both remedies, the right of the heir to enter, and the right of the 
 annuitant to enter and distrain, may stand together ; and that if ' 
 the rent is not paid, either remedy may be availed of against the 
 devisee (z). If, however, the heir enters, the right to distrain 
 will, it is presumed, be destroyed (a) ; and then the heir appears 
 to be a trustee for the annuitant {b). 
 
 5. When a will contains a devise on condition to pay a legacy, 
 and there is not a limitation over if the legacy is not paid, and 
 the devise is a condition and not a limitation, and the condition 
 is broken, and the heir enters, it appears that a Court of Equity 
 will afford relief to the devisee, and put him again in possession, 
 on payment of the legacy, with interest and costs (c). And the 
 like remedy is, it seems, extended to the devisee, when the devise 
 is on condition to pay a legacy, and the devise is made a limita- 
 tion by a right given to the legatee, if the legacy is not paid, to 
 enter and hold vmtil it is satisfied (d). But when a devise is to A. 
 in fee, on condition to pay a legacy to B., with, if the legacy is 
 not paid, a limitation over to a third party, C, in fee, and which 
 limitation over makes the devise a conditional limitation, it ap- 
 pears that if the condition is broken, and then consequently the 
 estate of A. ceases, equity cannot relieve him, but allows to C. 
 the benefit of the forfeiture, and permits him accordingly to 
 enter, and hold under the limitation over. And the effect of 
 the breach of the condition will, it is presumed, be the same, if 
 the devise over in fee is not to a third party, but to the legatee 
 himself (e). 
 
 Here it may be mentioned, that if land is devised to A. for life. 
 
 (2) Anun. 3 Dyer, 348 a., Ca. 13; 
 Shaw V. Norton, cited 1 Leon. 269. See 
 Streete v. Beaie, I Rol. Abr. 411. 
 
 (a) Plowd. 412; 10 Co. 41b.; Co. 
 Liu. 202 a.; 1 Rol. Abr. 411, K. pi. 5. 
 
 (fo) Wigg V, Wigg, 1 Atk. 383. 
 
 (c) Underxoood v. Swaine, 1 Ch. Rep. 
 161 ; Barnardistou v. Fane, 2 Vern. 366 ; 
 Grimston v. Lord Bruce, 2 Vern. 594, 1 
 Salk. 156 ; Fry v. Porter, 1 Mod. 311. 
 See also Cage v. Russel, 2 Ventr. 352; 
 
 Popham V. Bampjield, 1 Vern, 81 ; Bertie 
 V. Lord Falkland, 1 Salk. 231, 2 Freem. 
 220, 3 Ch. Cas. 129, 2 Vern. 333 ; Fry 
 V. Porter, 1 Mo J. 308. 
 
 (d) Sherman v. Collins, 3 Atk. 319,322. 
 
 (e) Simpson v. Vickers, 14 Ves. 341. 
 See also Cage v. Russel, 2 Ventr. 352 ; 
 Cleaver v, Sparling, 2 P. W. 528 ; and 
 Maston V. Willotighby, 5 Vin. Abr. 93, 2 
 Eq. Cas. Abr. 211 ; also Fry v. Porter, 
 1 Mod. 308, 311.
 
 S. VI. OF CHARGING BY A CODICIL, &C. 109 
 
 remainder to B. in fee, on condition to pay legacies at certain 
 times appointed, with, if the legacies are not accordingly paid, a 
 limitation over to C. in fee ; a Court of Equity will, to enable B. 
 to perform the condition, allow him to enter during the life of 
 the tenant for life, and to cut and sell the timber for the purpose 
 of paying the legacies {f). 
 
 SECTION VI. 
 
 OF CHARGING BY A CODICIL, NOT EXECUTED ACCORDING TO 
 THE STATUTE OF FRAUDS. 
 
 If a legacy is bequeathed by a will, real estate cannot therehy 
 be charged with the payment of it, unless the will is executed and 
 attested according to the Statute of Frauds, 29 Ch. II. c.3 (y). And 
 if a legacy is bequeathed by a codicil, real estate cannot thereby be 
 charged with the payment of it, unless the codicil is so executed 
 and attested (A). But when a legacy is bequeathed by a codicil, 
 real estate may be by the will charged with the payment of it, 
 notwithstanding the codicil is not executed according to the 
 statute, provided the will is so executed. But here a distinction 
 is to be noticed between a charge originally on the land, or other 
 real estate, and a charge which, made on this estate, is auxiliary 
 only to the personalty. For when by a will executed according 
 to the statute, real estate is, as an auxiliary fund, in aid of the 
 testator's personal property, charged with the payment of legacies 
 bequeathed out of such personal estate, a legacy given by a 
 codicil unattested, or otherwise not executed according to the 
 statute, may be a charge on the land or other real estate charged 
 by the will ii). But if the charge is originally on the real estate, 
 
 (/) Claxton V. Claxton, 2 Vern. 152, 
 Prec. Ch. 15; Nelson v. Kelson, cited 2 
 Vern. 153. 
 
 (o-) Brudenell v. Boughton, 2 Atk. 272 ; 
 Lawson V. Hudson, 1 Bro. C. C. 60. 
 
 (h) Masters v. Masters, 1 P. W. 422. 
 
 (i) Hyde V. Hyde, 3 Ch. Rep. 155, 
 
 cited 2 Ves. jun. 213, 236 ; Masters v. 
 Masters, 1 P, W. 423; Brudenell v. 
 Boughton, 2 Atk. 268, 273, 274, cited 
 2 Ves. jun. 236; Lord Inchiquin v. 
 French, Amb. 33, 41, 1 Cox, 1 ; Han- 
 nis V. Packer, Amb. 556 ; Jackson v. 
 Jackson, 2 Cox, 35, 1 P. W. 5th ed.
 
 110 OF CHARGING BY A CODICIL, NOT EXECUTED [CH. VI. 
 
 that is, if the will charges that estate with the payment of lega- 
 cies, and exempts the testator's personal estate from its liability 
 to be first applied to pay them ; here, as the legacies given by 
 the will are not payable first out of the personal estate, a legacy 
 given by a codicil, which is not executed according to the statute, 
 will not, it appears, be a charge on the testator's real property 
 charged by the will (J). The principle on which the legacies 
 given by the codicil are, in the first branch of this distinction, 
 charged on the real estate, is said to be, analogy between a charge 
 of this kind, and a charge of debts on real estate; which, when 
 so charged by a will executed according to the statute, will be 
 burthened with debts contracted not only before but after the 
 making of the will, and up to the time of the testator's death (k). 
 This analogy certainly offers a principle on which future legacies 
 may be brought within the charge made by the will; yet, on the 
 authority of Sir J. Jekyll and Lord Hardwicke, the charge of the 
 legacies given by the codicil may be thought to rest, quite inde- 
 pendently of analogy, on these principles, — that the will is 
 executed according to the statute ; that the charge made by the 
 will is of legacies given out of personal estate, and is meant to 
 include future as well as present legacies so given ; that the 
 legacies given by the codicil are bequeathed out of personal 
 estate ; and that the codicil is a part of the will (Z). 
 
 When by a will, executed according to the statute, real estate 
 is, as an auxiliary fund in aid of the testator's personal estate, 
 charged with the payment of legacies bequeathed out of the 
 personal estate, a legacy given by a codicil, although unat- 
 tested, will be charged on the real estate, if the charge in the 
 will is made by words sufficiently general to take in future lega- 
 cies (m) ; as by the words, " I devise to A. all the rest and residue 
 
 423, n. 3 ; Hahergham v. Vincent, 2 Ves. 
 jun. 236 ; Buckeridge v. Ingram, ih. 665 ; 
 Coxe V. Basset, 3 Ves. 163 ; Bose v. Cun- 
 ynghame, 12 Ves. 37, 38 ; IVilkinson v. 
 Adam, 1 Ves. &B. 446. See aho Smart 
 V. Prujean, 6 Ves. 560. 
 
 (_;■) Hahergham v. Vincent, 2 Ves. jun. 
 237; Hooper \. Goodwin, 18 Ves. 167. 
 
 (k) Hahergham v. Vincent, 2 Ves. jun. 
 236 ; and see 2 Atk. 274, and 12 Ves. 
 37, 38. 
 
 (/) Masters v. Masters, 1 P. W.423; 
 Hannis v. Packer, Amb. 556. 
 
 (m) Hyde v. Hyde, 1 Ch. Rep. 155 ; 
 Masters v. Masters, 1 P. W. 423 ; Bru- 
 ^ enfll V. Bovghton, 2 Atk. 273, 274 ; Jack-
 
 S. VI.] ACCORDING TO THE STATUTE OF FRAUDS. Ill 
 
 of my real and personal estate, after payment of my debts and 
 legacies" {n). But a legacy bequeathed by a codicil will not be 
 charged on the real estate, if this estate is in the will charged 
 with the payment of legacies "above-mentioned"(o), or "hereby", 
 or "hereinafter", bequeathed (/>), or in other terms, which confine 
 the charge to particular legacies only. 
 
 Legacies given by a codicil may be by the will charged on 
 the real estate, although all the legacies given to the same persons 
 by the will are revoked by that codicil {q). 
 
 An important distinction is to be noticed between a will, which 
 itself charges future legacies, and a will that reserves a power to 
 charge by a future instrument. For although when a will, exe- 
 cuted according to the statute, charges real estate, in aid of the 
 personalty, with the payment of legacies, a legacy given by a 
 codicil, that is not so executed, may be a charge on the real 
 estate ; yet if the will does not itself make this charge, but ex- 
 presses the intention to be, to effect the charge by a future in- 
 strument; as where a person devised all his real and personal 
 estate in the island of G., upon trust, among other purposes, " to 
 pay off and discharge all such annuities, legacies, or bequests, as 
 I shall give or bequeath to be paid out of and from, or charge 
 and make chargeable upon, my real or personal estate in the said 
 island of-G., by my will, or by any codicil thereto, or by any 
 writing at any time hereafter signed by me, or in my own hand- 
 writing, whether witnessed or not"; in these cases of an attempt 
 to reserve by a will duly executed a power to charge by an instru- 
 ment not duly executed, if a legacy or annuity is bequeathed by 
 a codicil, that expresses an intention to charge it on the real 
 estate, such legacy or annuity will not be so charged by either 
 the will or codicil, if the latter is not executed and attested ac- 
 cording to the statute (?*). 
 
 son V. Jackson. 2 Cox, 35, 1 P. W. 5th 
 ed. 423, n. 
 
 (n) Hannis v. Packer, Amb. 556. 
 
 (o) Masters v. Masters, 1 P. W. 423. 
 
 (p) Bonner v. Bonner, 13 Ves, 379. 
 (9) Jackson v. Jackson, 1 Cox, 35. 
 (r) Bose v, Cunynghame, 12 Ves. 29.
 
 112 
 
 [CII. VI. 
 
 SECTION VII. 
 
 OF WITHDRAWING ONE OF TWO FUNDS CHARGED WITH LEGACIES. 
 
 If by a will a legacy is charged on land only, this legacy can- 
 not be, under the Statute of Frauds, 29 Ch. II. c. 3, expressly 
 revoked, except by a codicil, or other testamentary instrument, 
 executed according to that statute {s). 
 
 When by a will, executed according to the Statute of Frauds, a 
 legacy, or annuity, is bequeathed out of two funds, namely, out of 
 personal estate, and real estate, as an auxiliary fund in aid of the 
 personalty ; as where a testator bequeaths an annuity, and charges 
 all his estates, both real and personal, with the payment of it (^) ; 
 or where he bequeaths an annuity, or legacy, and makes it pay- 
 able out of the produce of the sale of the whole of his estate, both 
 real and personal (m) ; in these cases, the personalty charged with 
 such legacy, or annuity, may be withdrawn from its liability to pay 
 it, by a codicil that differently disposes of all the testator's personal 
 estate, although this codicil is not executed according to the 
 statute ; and if this different disposition is so made, the legacy, or 
 annuity, will still continue to be, under the will, a charge on the 
 real estate, notwithstanding the personalty is discharged by the 
 codicil (v). In Buckeridge v. Ingram, the personal estate was 
 during a life only discharged of an annuity, the testator having 
 by a codicil bequeathed all his personal estate to E. M. for her 
 life {w). 
 
 (s) Brudenell v. Boughton, 2 Atk. 272 ; 
 Hahergham v. Vincent, 2 Ves. jiin. 237 ; 
 Attorney General v. Ward, 3 Ves. 331 ; 
 Hooper v. Goodwin, 18 Ves. 167 ; Eecket 
 V. Harden, 4 M. & S. 1, 
 
 (t) Buckeridge v. Ingram, 2 Ves. jun. 
 652, 666. 
 
 (n) Sheddon v. Goodrich, 8 Ves. 483 ; 
 
 Attorney General v. Ward, 3 Ves. 328, 
 330. See Hooper v, Goodwin, 18 Ves. 
 156.' 
 
 (t;) Buckeridge v. Ingram, 2 Ves. jun, 
 652, cited 8 Ves. 500 ; Sheddon v Good- 
 rich, 8 Ves. 481. See also Mortimer v. 
 West, 2 Sim. 274. 
 
 (li)) 2 Yes. jun. 652.
 
 s. vjii.] n;3 
 
 SECTION VIII. 
 
 OF REVOKING BY A CODICIL, NOT EXECUTED ACCORDING TO THE 
 STATUTE, LEGACIES CHARGED BY THE WILL ON REAL ESTATE. 
 
 It has been mentioned that a legacy cliarg-ed on land only 
 cannot be, under the Statute of Frauds, expressly revoked, except 
 by a testamentary instrument executed according to that sta- 
 tute (x). If, however, a legacy is not charged on land only, but 
 is payable first out of personal estate, and the land is, as an 
 auxiliary fund in aid of the personalty, charged with the payment 
 of it ; in this case, it appears, the whole legacy, or part only, may 
 be revoked by a codicil, that is not executed according to the 
 statute, as by a codicil only signed by the testator, and not at- 
 tested by any witness (y). But here an important distinction 
 seems to have been created, between a revocation of the whole 
 legacy, and a revocation of a part only. If the whole legacy is 
 revoked by such a codicil, then the effect of the codicil is to dis- 
 charge the personal property, and to leave the whole legacy a 
 charge on the real estate (z). But if a part only of the legacy is 
 revoked, as if a legacy of 400/. given by the will is by the codicil 
 reduced' to TOO/., in this case the effect of the codicil is not to 
 leave the whole legacy, or 400/., a charge on the real estate, but 
 the part only, or 100/., not revoked by the codicil. The legatee 
 is now entitled to the reduced legacy only, or 100/.; and as by 
 the will the real estate is a fund auxiliary only to the personalty, 
 this diminished legacy will be payable first out of the personal 
 estate, and, if this fund is deficient, out of the real estate charged 
 in aid of it {a). In the late case of Moi'timer v. West^ an annuity 
 by a will made payable out of freehold, copyhold, leasehold, and 
 
 (x) Brudenell v. Botighton, 2 Aik. 272 ; 
 Hahergham v. Vincent, 2 Ves. jun. 237 ; 
 Hooper w. Goodwin, 18 Ves. 167 , Becket 
 V. Harden. 4 M. & S. 1, 
 
 (y) Brudenell v. Boughton, 2 Atk. 268 ; 
 Mortimer v. West, 2 Sim. 274. See also 
 
 Buckeridge v. Ingram, 2 Ves. jun. 652; 
 Sheddon v. Goodrich, 8 Ves. 481 ; aod 
 Attorney General v. Ward, 3 Ves. 327. 
 
 (:) Mortimer v. West, 2 Sim. 274. 
 
 (il) Brudenell v. Boughton, 2 Atk. 
 268.
 
 114 OF SUBSTITUTING AND ADDING I-EGACIES [CH. VI. 
 
 personal estates, was revoked by a codicil attested by one witness 
 only ; and it was decided that the annuity continued to be a 
 charge on the freehold property (b). 
 
 When a legacy is payable first out of personal estate, and is 
 charged on real estate as an auxiliary fund in aid of the per- 
 sonalty, then by a codicil iniattested, a substitution of either the 
 legacy or legatee may be made ; that is, by such codicil a smaller 
 legacy may be substituted for one given by the will, and this 
 substituted smaller legacy may be given either to the same person, 
 who is the legatee in the will, or to a different person. And also 
 by such a codicil the original legacy, bequeathed by the will, 
 may be given to a different person, substituted in the place of the 
 original legatee. And notwithstanding this substitution of either 
 the smaller legacy, or the legatee, in the one case the legacy 
 substituted by the codicil, and in the other the legacy given by 
 the will, will still be a charge on the real estate in aid of the 
 personalty (c). 
 
 SECTION IX. 
 
 OF SUBSTITUTING AND ADDING LEGACIES BY A CODICIL. 
 
 If by a will a legacy is charged on real estate only, as if made 
 payable out of the produce of land devised to be sold, and by a 
 codicil that legacy is revoked^ and a legacy of the same, or a less, 
 sum is substituted in the place of the legacy given by the will, 
 and the legacy so given by the codicil is bequeathed to either 
 the same or a different person, and the codicil is silent on the 
 fund, out of which the legacy given by it is to be paid, such sub- 
 stituted legacy is construed to be, by the will, charged on the real 
 estate only. And if given to a charity, it will consequently be 
 void under the Statute of Charitable Uses {d). So, if by a will 
 a legacy is charged on real estate only, and by a codicil a sum 
 of money is bequeathed to the same legatee, and added to the 
 
 (6) 2 Sim. 274. 
 
 (c) Brudenell v. Boughton, 2 Atk. 268 ; 
 Attnrneii General v. Ward, 3'Ves. 327. 
 
 (d) Leacroft v. Maynard, 3 Bro. C. C. 
 233, 1 Ves. jun. 279. See also 6 Madd. 
 Rep. 31.
 
 S. IX.J BY A CODICIL. 115 
 
 legacy given by tlie will, as by the words, " I give to my niece 
 the farther sum of 200/,, in addition to what I have given her by 
 my will," and the codicil does not mention the fund out of which 
 this latter legacy is to be paid, such legacy will not be payable 
 out of the testator's personal estate, but, like the one to which it 
 is added, out of his real estate (e). Yet to charge the real estate 
 with such an additional legacy, the codicil must, it is presumed, 
 be executed and attested according to the Statute of Frauds (f). 
 The cases mentioned depend on substitution and addition. A 
 sum of money, given by a codicil, may be an original legacy, 
 wholly independent of the will, although the codicil puts this 
 legatee in the place of one named in the will. And between a 
 substituted legacy, as of a less sum for a greater, or one person 
 for another, and an original legacy, there is this important dif- 
 ference ; — a substituted legacy is, prima facie, attended with the 
 same incidents, that belong to the legacy, the place of which it 
 supplies (17). A legacy substituted for another, given free from 
 the legacy duty, has, accordingly, been held to be payable free 
 from that duty {h). But an oingijial legacy is not so prima facie 
 stamped with another's nature. And, therefore, where a person 
 bequeathed to M. Y. 20,000Z., which he directed to be paid free 
 of the legacy duty, and this legacy lapsed by the death of M. Y. 
 in the testator's life-time, and afterwards the testator made the 
 following codicil, — " Having since the date of my will lost my 
 daughter M. Y. by death, I do, instead of the legacies bequeathed 
 to her by my said will, which are now lapsed, give and bequeath 
 to her husband, R. Y., the sum of 20,000/. ;" Sir J. Leach de- 
 cided, that the words of this codicil did not create a substitution, 
 but gave an original legacy, and that therefore the husband, 
 11. Y., was not entitled to have the duty on his legacy paid out 
 of the testator's estate. And, on appeal, this judgment was 
 affirmed by Lord Lyndhurst (/). 
 
 (e) Crowder v. Clowes, 2 Ves. jun. 
 449. See also 6 Madd. Rep. 31, and 
 Long V. Long, 3 Ves. jun. 286, n. 
 
 (_/') See Biudenell v. Boughton, 2 Atk. 
 272 ; Habergham v. Vincent, 2 Ves. jun.- 
 
 237 ; and Hooper v. Goodwin, 18 Ves. 167. 
 
 (g) 6 Madd. Rep. 31. 
 
 (h) Cooper v. IJai^, 3 Mer. 154. 
 
 (j) Chili leris v. Voiuig, 6 Madd. 30, 
 2 Russ. 183, 
 
 I 2
 
 116 
 
 [cii. VI. 
 
 SECTION X. 
 
 OF LEGACIES CHARGED ON LAND DEVISED FOR LIFE, WITH RE- 
 MAINDERS over; OR CHARGED ON A REMAINDER OR REVER- 
 SION IN FEE, EXPECTANT ON AN ESTATE FOR LIFE. 
 
 When land is devised for life, with remainders over, and 
 legacies are charged on the land, the terms of this charge most 
 commonly make them payable out of all the estates, both in pos- 
 session and in remainder. In a case where land was devised for 
 life, remainder for life, remainder in fee, " charged and charge- 
 able with lOOZ. a piece to the testator's six nieces," Lord Hard- 
 wicke stated, " The general rule is, that ' charged and chargeable' 
 runs over all the estate, as well particular as the fee ; as suppose 
 at the end the testator had said, ' charged with all my debts,' it 
 woidd be a charge on all" (j). 
 
 Legacies charged on land have, on the intention collected from 
 the whole of the particular will, been held to be payable, in 
 several cases, out of the remainders as well as the estate for 
 life (A), and in others out of the estate for life as well as the re- 
 mainders (/). In two instances they have been held to be pay- 
 able out of the remainders as well as the estate for life, notwith- 
 standing the tenant for life was expressly named to pay them (m). 
 It is an argument that the estate in possession, or estate for life, 
 was meant to be charged, that the legacies are made payable 
 within a certain time, as twelve months after the testator's 
 death (w). When legacies are a charge on a reversion or re- 
 mainder in fee, expectant on an estate for life, and are by the 
 will directed to be paid within a limited time, a Court of Equity 
 will decree them to be raised, during the life of the tenant for 
 
 (j) 1 Ves. 168. 
 
 (k) Sadd V. Carter, Free. Cli. 27, 2 
 Eq. Cas. Abr. 370 ; Tompkins v. Tomp- 
 kins, Prec. Ch. 397 ; BriHgman v. Dove, 
 3 Atk. 201. 
 
 (I) Jones V. Sethy, Prec. Ch. 288 ; 
 
 Carter v. Carter, 1 Ves. 168. 
 
 (m) Sadd v. Carter, Prec. Ch. 27 ; 
 Bridginan v. Dove, 3 Atk. ed. Sand. 
 201,n. (1). 
 
 (») 1 Ves. 168, 169 ; Prec. Ch. 289.
 
 S. XI.] PURCHASE OF ESTATE CHARGED. 117 
 
 life, by a sale of such reversion or remainder in fee (o). In a 
 case in which a legacy was bequeathed " to be paid on the land 
 called T., situate in the parish of M.," and of which land the 
 testator was seised of the reversion in fee, expectant on an estate 
 for life, and the testator devised the same land by his will, the 
 legacy was decreed to be raised by sale or mortgage, during the 
 life of the tenant for life (p). 
 
 When legacies are charged on land devised for life, with re- 
 mainders over ; before they are paid, the tenant for life is obliged 
 to keep down, out of his estate for life, the interest on them (y) ; 
 and if, to pay the principal, the land is mortgaged, the tenant for 
 life is, like other tenants for life of land mortgaged (;■), bound to 
 keep down, out of his life estate, the interest of the mortgage 
 money (a). 
 
 SECTION XI. 
 
 PURCHASE OF ESTATE CHARGED. 
 
 When legacies only, as distinguished from debts and legacies, 
 are by a will made payable out of real estate beneficially devised, 
 and the estate is sold by the devisee to a purchaser, who before 
 his money was paid (t), or even before the execution of the con- 
 veyance, and after the purchase-money paid (?/), had notice of 
 the will ; notwithstanding such sale, the legacies continue to be a 
 charge on the estate, and in equity, accordingly, the purchaser is 
 bound to see his money applied in payment of them ; and if they 
 are not paid, the Court will, against the purchaser, decree the 
 legacies to be paid out of the estate bought by him (v). 
 
 (o) Buam V. Clerk, 1 P. W, 478, Prec. 
 Ch. 500 ; Carter v. Carter, 1 Ves. 168. 
 
 (p) Davies v. Davies, Dan. 84. 
 
 (g) Bridgman v. Dove, 3 Atk. ed. 
 Sand. 201, n. (2) ; Jones v. Selby, Prec. 
 Ch. 288. 
 
 (r) Revel V, Watkinson, 1 Ves. 93 ; 
 Ainedmrii v. Brown, ih, 489; Tracy v. 
 
 Lady Hereford, 2 liro. C. C. 128. 
 
 {s) Bridgman v. Dove, 3 Atk. ed. 
 Sand. 201, n. (2). See Hayes v. Hayes, 
 1 Ch. Cas. 223. 
 
 (t) Tourvitle v. Naish, 3 P. \V. 307. 
 
 (u) Wigg V. Wigg, 1 Atk. 382, 1 West 
 Cas. T. Ilardw. 677. 
 
 (v) Smith \.Alterly, 2 Freem. 136 ; Dru-
 
 118 PURCHASE OF ESTATE CHARGED. [CH. VI. 
 
 A piircliaser of" an estate cliarj^ed with legacies is, however, 
 not liable to see them paid, if the will creates a trust or power to 
 sell, and authorises the trustees to sign receipts for the purchase- 
 money ; and in this case the purchaser will not be responsible 
 for the application of his money, although the parties entitled to 
 it are infants (?«). 
 
 But if real estate beneficially devised is charged with legacies, 
 some of which are given to adult persons, and others to infants, 
 and the adult legatees are entitled to require the estate to be 
 sold to pay their legacies, notwithstanding the infancy of the 
 other legatees, and the devisee accordingly sells, and the pur- 
 chaser is liable to see his money applied to pay the legacies ; in 
 such a case it appears from Dickenson v. Dickenson, that if a part 
 of the purchase-money is, to satisfy the infants' legacies when 
 they shall be payable, invested in Government securities, this 
 investment will not take from the infants the security of the 
 estate sold ; which, it seems, will still be liable to make up any 
 deficiency in the legacies, if the fund created by the money now 
 raised and invested is, at the time when the infants become 
 entitled to receive their legacies, fallen in value, and inadequate 
 to produce the amount of them [x). 
 
 When, after a sale of land charged with legacies, a purchaser, 
 who had notice of the will, is decreed to pay them, the Court 
 will afford him relief by a decree over against the devisee from 
 whom he purchased, if on an inquiry whether the devisee had 
 received from the purchaser the whole of the purchase-money, 
 or had made a deduction for the legacy, the result is against the 
 devisee, that the whole money was received by him {y). 
 
 pers' Company v. Yardlcy, 2 Vein. 662; 
 Wigg V. Wigg, 1 Atk, 382, 1 West 
 Cas- T. Hardw. 677 ; Manning v. Her- 
 hert, Amh. 575. See also Tompkins 
 V. Tompkins, Prec. Ch. 399 ; Wilson v. 
 
 Stafford, Amb. 181 ; Lord Braybrohe v. 
 Inskip, 8 Ves. 417, 420, 421, 432. 
 
 (w) Sowarsby v. Lacy, 4 Madd. 142. 
 
 (.t) 3 Bro. C. C. 19. 
 
 (y) Newman v. Kent, 1 Mer. 240.
 
 S. XII.] 
 
 119 
 
 SECTION XII. 
 
 OF LEGAL AND EQUITABLE CHARGES. 
 
 A CHARGE of a legacy on land devised is sometimes a charge 
 at law^ and sometimes a charge in equity oiihj (z). 
 
 It is a charge at law, if, on non-payment of the legacy, pos- 
 session of the land may be recovered from the devisee by an 
 action of ejectment (a) ; as when the land is devised on condition 
 to pay a legacy, and the devise is a condition and not a limita- 
 tion, and, on non-payment, an ejectment may be brought by the 
 testator's heir at law (i) ; or when the land is devised to one of 
 two co-heiresses of the testator, and the devise is not a condition 
 but a limitation, and, on non-payment, an ejectment may, for a 
 moiety of the land, be brought by the co-heir to M'hom the land 
 is not devised (c) ; or when the land is Borough English, de- 
 scendible to the youngest son, and is devised to the testator's 
 eldest son and heir at law, and the devise is not a condition but a 
 limitation, and, on non-payment, an ejectment may be brought by 
 the heir in Borough English {d)\ or when the land is devised 
 on condition to pay the legacy, and a right of entry given to 
 the legatee makes the devise a limitation, and, on non-payment, 
 entitles the legatee to bring an ejectment (e) ; or when the 
 legacy is bequeathed out of personal estate, and land devised 
 is, as an auxiliary fund in aid of the personalty, charged with the 
 payment of it, and a right to enter, and to hold until payment, is 
 given to the legatee {f). 
 
 A legacy charged on land seems also to be a charge at law, if 
 the legatee can support an action of debt against the terre-tenant 
 for the money. Holt, C. J., is reported to have said — " If 
 
 (2) 1 Atk. 383 ; 3 Atk. 322. 
 
 (a) Emes v. Hancock, 2 Atk. 508 ; 
 Sherman v. Collins, 3 Atk. 322 ; Giiget- 
 manv.Duport, 1 West Cas.T. Hard w. 579. 
 
 (by Hodgso7i V. Raiuson, 1 Ves. 47. 
 
 (r) Tunstall v. Bracken, Amb. 167, 
 1 bro. C. C. 124, n. 
 
 (rf) Wellock V. Hammond, Cio. Eliz. 
 204, 3 Co. 20 b. 
 
 (e) Hmes v. Hancock, 2 Atk. 507 ; 
 Emhrey v. Martin, Amb. 230 ; Manning 
 V. Herbert, ib. 575. 
 
 (/) Sherman V, Collins, 3 x\tk. 319, 
 322.
 
 120 OF LEGAL AND KC^UITABLE CHARGES. [CU.Vl. 
 
 money be devised ojit of lands, sure the devisee may have debt 
 against the owner of the land for the money, upon the statute 
 32 Henry VIII., of wills; for wherever a statute enacts any 
 thing, or prohibits any thing, for the advantage of any person, 
 that person shall have remedy to recover the advantage given 
 him, or to have satisfaction for the injury done him contrary to 
 law, by the same statute ; for it would be a fine thing to make a 
 law by which one has a right, but no remedy but in equity ; and 
 the action must be against the terre-tenant" {f/). On this opinion 
 Lord EUenborough has made the observation, — " That in the case 
 of a legacy payable out of land, unless the legatee had his remedy 
 by action of debt, founded on the statute, he would be wholly 
 without remedy in the Courts of Common Law" (h). 
 
 A charge of a legacy seems to be merely equitable, or a charge 
 only in cqnitj/, when, on non-payment of the money, the legatee 
 lias no remedy except in a Court of Equity (i). An example of 
 an equitable charge seems to be furnished by a case, in which an 
 equity of redemption in fee of an advowson in gross was devised 
 on condition to pay a legacy, and the devisee of the advowson 
 died in the life-time of the testator (j). And if a reversion in 
 fee, expectant on an estate for life, is devised to the testator's heir 
 at law, on condition to pay a legacy, such legacy is, during the 
 life of the tenant for life, an equitable charge only {k). If land is 
 devised to A. in fee, on condition to pay certain legacies, and, by 
 a right of entry given to the legatees, the devise is made a con- 
 ditional limitation, and A. dies in the testator's lifetime ; here, 
 although the devise to A. lapses in favour of the testator's heir 
 at law, yet, if the legacies are not now a charge on the land at 
 law, they are, it is decided, in equity, and a Court of Equity will 
 decree the heir to pay them (Z). 
 
 (g) 6 Mod. 26 ; 2 Lord Eaym. 937; 
 2 Salk. 415 ; Cas. T. Holt, 419. 
 
 (h) 4 M. & S. 119. 
 
 (i) Sherman v. Collim, 3 Atk. 322. 
 
 (j) Webb V. Sutton, Nels. 175. See 
 also Hills V. Wirley, 2 Atk. 607, and 
 
 Oke V. Heath, 1 Ves. 135, 141. 
 
 {k) Bacon V. Clerk, Free. Ch. 600, 1 
 P. W. 478. 
 
 (/) Wigge V. Wigge, 1 West Cas. T. 
 Hardw. 677, 1 Atk. 382.
 
 S. Xlli.] 
 
 121 
 
 SECTION XIII. 
 
 OF THE FAILURE OF REAL ESTATE CHARGED WITH LEGACIES. 
 
 Real estate charged with legacies may fail to pay them, 
 
 1. When the testator's personalty is charged on failure of that 
 real fund ; and 
 
 2. When the real estate alone is charged. 
 
 1. Legacies charged on land, made the first fund liable to pay 
 them, have, on the intention collected from the whole will taken 
 together, been held to be payable out of the testator's personal 
 property, as an auxiliary fund in aid of the real estate, partly fail- 
 ing to pay them {m). 
 
 When legacies charged on land are meant to be, what in the 
 Civil Law are called demonstrative legacies, the legatees may, on 
 failure of the land, be entitled to be paid out of the testator's 
 personal assets (n). A demonstrative legacy seems to be a 
 general legacy of this kind ; namely, one that is payable first 
 from a particular fund, to which the testator points as the first 
 security to pay it, and which legacy, failing this security, is pay- 
 able out of the testator's general personal assets (o). An ex- 
 ample of a demonstrative legacy is, a sum of money bequeathed, 
 and to pay which a particular debt owing to the testator, as on 
 bond, is in the will pointed at as the first security or fund for the 
 purpose ; and, failing this fund, as by payment of the debt in the 
 testator's lifetime, or by the insolvency of the debtor after the 
 testator's death, the legacy so secured by the debt is payable out 
 of the general personal assets of the testator (p). A legacy of a 
 sum, that is the full amount of the debt, may be demonstrative (q) ; 
 and so may a legacy of a sum less than the debt, or of a sum out 
 
 (m) Strode v. Ellis, Nels. 203 ; Whaley 
 V. Cox, 2 Eq. Cas. Abr, 549. 
 
 (»j) Fowler V. Willoughby, 2 Sim. & 
 St. 354. 
 
 (<)) 2 Bro. C. C. 109 , 4 Ves. 565 ; 2 
 
 Sim. & St. 358. 
 
 (p} Pawlefs case, T. Raym. 335 ; 
 Roberts v. Pocock, 4 Ves. 150. 
 
 (r/) Pawlet's case, above. See also 
 Le Grice v. Finch, 3 Mer. 50,
 
 122 OF THE FAILURE OF REAL ESTATE [CH. VI. 
 
 of it (/■). When, however, the full amount of a debt is be- 
 queathed, tlie terms of the bequest are often held to make the 
 legacy specific (s). And it may be specific, although in the be- 
 quest the sum of money, which constitutes the debt, is expressly 
 named (t). A legacy of a sum of money out of a debt may also 
 be specific (u). Between the two kinds of legacy, specific and 
 demonstrative, the distinction is extremely important. For when 
 a debt, or part of a debt, is bequeathed, and the legacy is con- 
 strued to be specific, here, although, by some circumstances which 
 affect the debt, the legacy may not be construed to be adeemed (v), 
 yet if the money owed, and so specifically bequeathed, is, either 
 by the voluntary act of the debtor, or by demand or compulsion 
 from the testator {to), paid in the testator's life-time, by this pay- 
 ment the legacy is adeemed (x) ; and if the debt was paid by 
 demand or compulsion, a Court of Equity will not look at the 
 intention with which it was called in, but simply inquires if the 
 legacy is specific, and if it is, construes it to be adeemed by such 
 payment of the debt (y). In the case of a demonstrative legacy, 
 although the fund pointed at as a security to pay it fails, as where 
 
 (7-) Theobcd v. Wynn, and Squibh v. 
 Chicheley, cited in Paw/et'scase, T.Raym. 
 335 ; Savile v. Blacket, 1 P.W. 779 ; Ford 
 V. Fleming, 2 Stra. 823, 2 P. W. 469, 1 
 Eq. Cas. Abr. 302; Ellis v. Walker, 
 Amb. 310 ; Roberts v. Pocock, 4 Ves. 150. 
 
 (s) Lord Castletoii v. Lord Fanshaw, 
 1 Eq. Cas. Abr. 298, cited 4 Ves. 566 ; 
 Ashbur7ier v. Macguire, 2 Bro. C. C. 108 ; 
 Stanley v. Potter, 2 Cox, 180 ; Chaworth 
 V. Beech, 4 Ves. 555 ; Innes v. Johnson, 
 ib. 568. 
 
 («) Ashburner v. Macguire, 2 Bro. C. 
 C. 108, 111 ; Stanley v. Potter, 2 Cox, 
 180 ; Chaworth v. Beech, 4 Ves. 555. 
 
 (u) Hamhling v. Lister, Amb. 401 ; 
 Badrick v. Stevens, 3 Bro. C. C. 431. 
 See Smith v. Fitzgerald, 3 Ves. & B. 5. 
 
 («) Ashburner v. Macguire, 2 Bro. C. 
 C. 108 ; Coleman v. Coleman, 2 Ves.jun., 
 639, cited 4 Ves. 574. 
 
 (w) A distinction once existed bc- 
 (vveen a voluntary and compulsory pay- 
 
 ment. Earl of Thomond V. Earl of Suffolk, 
 1 P. W. 464 ; Crockat v. Crockat, 2 P. W. 
 165; Rider v. Wager, ib., 331 ; Ashton 
 V. Ashton, 3 P. W. 385 ; Partridge v. 
 Partridge, Cas. T. Talb. 228 ; Birch v. 
 Baker, Mos. 375 ; Humbling v. Lister, 
 Amb. 401 ; Lawson v. Stitch, 1 Atk. 508, 
 1 West Cas. T. Hardw. 326 ; Drinkwater 
 V. Falconer, 2 Ves. 624 ; Coleman v. Cole- 
 man, 2 Ves.jun, 640. But this distinc- 
 tion seems to be now exploded. Ashburner 
 V. Macguire, 2 Bro, C. C. 110; Innes v. 
 Johnson, 4 Ves. 574. 
 
 (x) Ashburner v. Macguire, 2 Bro. C. 
 C. 1 10 ; Stanley v. Potter, 2 Cox, 1 80 ; 
 Humphreys v. Humphreys, ib. 184, 185 ; 
 Badrick v. Stevens, 3 Bro. C. C. 431 ; 
 Fryer v. Morris, 9 Ves. 360. These 
 cases appear to overrule Hambling v. 
 Lister, Amb. 401, cited from Reg. B. 
 13 Ves. 336. 
 
 (y) Stanley v. Potter, 2 Cox, 180 ; 
 Barker v. Rayner, 5 Madd. 217, 218.
 
 S. XIII.] CHARCIEO WITH LEGACIES. 123 
 
 this security is a debt vvliich in the life-time of the testator is 
 paid, and paid either by the voluntary act of the debtor, or by 
 demand or compulsion from the testator {z), yet, notwithstanding^ 
 this failure of the security, the legacy is not lost to the legatee, 
 but is payable to him out of the testator's general personal 
 assets (a). 
 
 In Fowler v. Willoughhj, a person, who had contracted for 
 the purchase of an estate, by his will gave to trustees a sum of 
 1400/., to be raised by the sale of that estate, describing it as the 
 estate which he had lately purchased of Mr. F. ; upon trust to 
 place the 1400/. out upon good security ; and, out of the interest 
 thence arising, to maintain and educate his grandson, J. F., until 
 he should attain the age of twenty- one years ; and when he should 
 attain that age, he willed that his grandson should receive 800/. as 
 his share of the 1400/. And he gave to his grandson T. F., 
 when he should attain the age of twenty-one years, the remaining 
 sum of 600/., and all the interest and profits which should have 
 arisen from the 1400/., over and above the maintenance and 
 education of his grandson, J. F. And he gave all the residue of 
 his personal estate to his son, T. W., whom he appointed sole 
 executor of his will. After the testator's death, it was found tha* 
 the contract for purchase could not be enforced against his assets ; 
 and it then became a question whether the legacy to J. F. could 
 take effect, although it could not be raised in the manner directed 
 by the testator. Sir J. Leach decreed the legacy to be paid out 
 of the testator's general estate ; stating that this was neither a 
 legatum 7iominis, nor a legatum debiti, but a pecuniary legacy with 
 a particular security, which in the Civil Law was termed a 
 demonstrative legacy, and that our law followed the Civil Law in 
 giving effect to such a legacy, where the particular security 
 intended by the testator happened to fail (b). 
 
 (s) Attorney General v. Parkin, Amb. 
 569 ; Ashhurner v. Macguire, 2 Bro. C. C. 
 110. 
 
 (a) Pawlet's case, T. Haym. 335 ; 
 Savile V. Blacket, 1 P. W. 779 ; Onnev, 
 Smith, 1 Eq. Cas. Abr. 302, Gilb. Eq. 
 Rep. 82, 2 Vern. 681 ; Roberlsv. Pocock, 
 4 Ves. 150. See likewise Petiiward v. Pet- 
 
 tiward, Cas. T. Finch, 152 ; Attorney 
 General v. Parkin, Amb. 568, cited 2 
 Bro. C. C. 113, 2 Cox, 182, 2 Ves. jun. 
 640, and 4 Ves. 566 : also Coleman v. 
 Coleman, 2 Ves. jun. 639, and Le Grice 
 V. Finch. 3 Mer. 50. 
 (h) 2 Sim. & St. 354.
 
 124 OF THE FAILURE OF REAL ESTATE, &C. [CH. VI. 
 
 2. When legacies are not demonstrative, and real estate alone 
 is charged with them, then if this fund partly or wholly fails, the 
 legatees are not entitled to be paid out of the testator's personal 
 assets (c). Accordingly it is said, " If a man gives a legacy, 
 and chargeth it upon Black Acre : although this be not sufficient 
 to answer the full value of the legacy, yet it shall not be charged 
 upon the personal estate" (d). And in Colchester v. Lord Stam- 
 ford it was said by Trevor, " If a man hath two daughters, and 
 deviseth to one 1000/. out of his real estate, and to another lOOOZ. 
 out of his personal estate, there if the real estate be evicted, that 
 legacy is lost, and shall never come into an average with the 
 other upon the personal estate" (e). 
 
 In Gittins v. Steele, a legacy of 7000Z. was charged on certain 
 freehold and leasehold estates, which the testator devised in trust 
 for sale, and in trust to pay that legacy out of the purchase 
 money. After making his will, the testator sold some of the 
 estates ; and the money produced by the sale of the remainder, 
 was insufficient to satisfy the legacy of 7000/. And Lord Eldon, 
 on the intention to be collected from the whole will taken together, 
 decided that the testator's general personal estate was not subject 
 to pay it. " Entertaining," said his Lordship, " no doubt that 
 the intention of the testator has been frustrated by a subsequent 
 sale of a part of his estates, I am not authorised to advert to that 
 fact as aifecting the construction of the will. I am bound, as a 
 judge, to assume, that the testator supposed that he should leave, 
 at his decease, freehold and leasehold estates sufficient for the 
 payment of the legacy of 7000/. ; and I protest against being un- 
 derstood to give my judgment on the ground of the subsequent 
 sale. My duty is, to apply the funds which at his death are ap- 
 plicable, by the operation of the will, to the payment of this 
 legacy. If they are insufficient, the Court, whatever may be 
 the hardship of the case, cannot supply other funds" {f). 
 
 (c) Arnald v. Arnald, 1 Bro. C. C. 
 401 ; Brydges v. Phillips, 6 Ves. 571 ; 
 Gittins V. Steele, 1 Swanst. 29, 30. See 
 also Amesbiivy v. Brown, 1 Ves. 482 ; 
 Spurway v. Glynn, 9 Yes. 483 ; and 
 
 Hancox v. Abbey, 11 Ves. 185. 
 
 (d) 2 Freem. 22, Ca. 21. 
 
 (e) 2 Freem. 124. 
 ( /■) 1 Swanst. 24.
 
 XIV.] 
 
 125 
 
 SECTION XIV. 
 
 OF THE SINKING OF A LEGACY INTO THE INHERITANCE, ON THE 
 DEATH OF THE LEGATEE BEFORE THE TIME OF PAYMENT. 
 
 When, out of personal estate, (which includes leaseholds 
 for years (^),) a legacy is bequeathed to A.; it is given to him 
 on a condition precedent, if the bequest is to him at the age of 
 twenty-one (h), or to him if (z), or when (j), or as soon as (k), 
 he attains twenty-one. And, because these expressions, or 
 the like terms of contingency, create a condition precedent, if 
 A. dies before the age of twenty-one, his legacy will sink into 
 the estate, and will not pass to his personal representative (/). 
 But in these cases the legacy will not sink into the estate, and, 
 on A.'s death before twenty-one, will go to his personal repre- 
 sentative, if the context of the bequest qualifies the condition, 
 and makes the legacy vested before his death (m). 
 
 If, out of personal estate, a legacy is bequeathed to A. at a 
 future day, as to A. at his age of twenty-one, or when he attains 
 twenty-one, with interest until that time, the bequest of interest 
 is evidence that the legacy is intended to be a present gift, to be 
 paid hereafter, and the legacy is interpreted to be vested at the 
 death of the testator (n), unless clearly intended to be contingent, 
 
 (g) Atkins V. Hiccocks, 1 Atk. 500 ; 
 Yates V. Fettiplace, 1 Ld. Raym. 508, 12 
 Mod. 276. 
 
 (/i) Clobberie's case, 2 Ventr. 342; 
 Onslow V. South, 1 Eq. Cas. Abr. 295. 
 Ca. 6, cited 3 Bro. C. C. 473 ; Stapleton 
 V. Cheales, Prec. Ch. 317, cited 6 Ves. 
 245 ; Fonereau v. Fonereau, 3 Atk. 645, 
 1 Ves. 118. 
 
 (i) Prec. Ch. 318 ; 6 Ves. 245. 
 
 ( j) Prec. Ch. 318 ; 6 Ves. 245 ; Anon. 
 1 Freem. 420, Ca. 559. On the words 
 ' when ' and ' if,' see 6 Ves. 243 — 249, 
 9 Ves. 230, and 3 Bro. C. C. 473. 
 
 (fc) Knight V. Knight, 2 Slim. & St. 490. 
 
 (/) Authorities in the last four notes. 
 
 (m) Fonereau v. Fonereau, 3 Atk. 645, 
 1 Ves. 118; Hanson v. Graham, 6 V^es. 
 239. 
 
 (n) Clobberie's case, 2 Ventr. 342 ; 
 Lanipen v. Clowbery, or Cloberry v. Lam- 
 pen, S. C, 2 Ch. Cas. 155, 2 Freem. 24 ; 
 Anon. Skinn. 147 ; Stapleton v. Cheales, 
 or Cheele, Prec. Ch. 317, 2 Vern. 673 ; 
 Hoath V. Hoath, 2 Bro. C. C. 3 ; Hanson 
 V. Graham, 6 Ves. 239. See also Collins 
 V. Metcalfe, 1 Vern. 462 ; Walcott v. 
 Hall, 2 liro. C. C. 305 ; Dodson v. Hay, 
 3 Bro. C. C. 404 ; Booth v. Booth, 4 Ves. 
 399 ; and Jones v. Mackilwain, 1 Russ. 
 220; also Neale v. ]Villis, Barn. Ch. 
 Rep. 43.
 
 126 OF THE SINKINC; OF A LEGACY, SCC. [cH. VI. 
 
 notwithstandini^ tlie bequest of interest (o). There is, however, 
 a distinction between interest and maintenance ; for notwithstand- 
 ing^ a bequest of maintenance until A. is of age, the legacy will 
 continue to be contingent until he attains twenty-one, uidess 
 there is farther evidence in the will to make it vested before {]>). 
 
 It is important to distinguish between a legacy contingent 
 until a future day, and a legacy not payable until a future day. 
 The latter may be vested at the death of the testator, although 
 to be paid hereafter. If, out of personal estate, a legacy is be- 
 queathed to A., to be paid at a future period, as to A., to be paid 
 at the age of twenty-one (</), or to A., to be paid when he attains 
 twenty-one (r), or to A., to be paid at the death of a third party, 
 to whom a preceding life estate in the property is bequeathed (s) ; 
 in these, and similar {t) cases, the legacy of A. will be vested at 
 the death of the testator, unless there are farther words in the 
 will to make it contingent. 
 
 The distinction noticed between a legacy bequeathed on a con- 
 dition precedent, and a legacy vested presently, and to be paid 
 hereafter, is thus stated in Clobberie's case, the leading authority 
 on this point — " If money be bequeathed to one at his age of 
 twenty-one years ; if he dies before that age, the money is lost. 
 On the other side, if money be given to one, to be paid at the 
 age of twenty-one years ; there, if the party dies before, it shall 
 go to the executors" (u). 
 
 (o) BaUfm-d V. Kehbell, 3 Ves. 363 ; 
 Knight V. Knight, 2 Sim. & St. 490. 
 
 (p) Pulsfm-d V. Hunter, 3 Bro. C, C. 
 416; Hanson v. Graham, 6 Ves. 249. 
 See also 1 Atk. 501, and Harrison v. 
 Buckle, 1 Stra. 238. 
 
 (g) Clobberie's case, 2 Ventr. 342; 
 Anon. 1 Freem. 420 ; Anon. 2 Freem. 64 ; 
 Chester v. Painter, 2 P. W. 335 ; Luundy 
 V. Williams, ib. 478 ; Roden v. Smith, 
 Ambl. 588 ; Walcott v. Hall, 2 Bro. C. 
 C. 305 ; Bolger v. Mackell, 5 Ves. 509. 
 
 (r) May v. Wood, 3 Bro. C. C. 471 ; 
 Anon. 2 Freem. 89. 
 
 (s) Corbett v. Palmer, 2 Eq. Cas. Abr. 
 548, and 544, in marg. ; Hatch v. Milts, 
 1 Eden, 342 ; Weedon v. Fell, 2 Atk. 
 
 123; Monkhouse \. Holme, 1 Bro. C. C. 
 298 ; Benyon v. Maddison, 2 Bro. C. C. 
 75 ; Scurfield v. Hemes, 3 Bro. C. C. 90 ; 
 Molesworih v. Molesworth, 3 Bro. C. C. 
 5, 4 Bro. C. C. 408 ; Roebuck v. Dean, 
 4 Bro. C. C. 403 ; Skey v. Barnes, 3 
 Mer. 335. See also Slurgess v. Pearson, 
 
 4 Rladd. 411, and Muitland v. Chalie, 
 6 Madd. 243. 
 
 (t) Bro. Abr. tit. Devise, pi. 27 ; Row- 
 ley V. Lancaster, 2 Ch. Rep. 25 ; Lane v. 
 Goiidge, 9 Ves. 225 ; Love v. L'Estrange, 
 
 5 Bro. P. C. ed. Toml. 59, cited 3 Bro. 
 C. C. 472, and 4 Ves. 408 ; Dodson v. 
 Hay, 3 Bro. C. C. 404. See also Neale 
 V. Willis, Barn. Ch. Rep. 43. 
 
 (m) 2 Ventr. 342 ; on which distinc-
 
 S. XIV.] OF THE SINKING OF A LEGACY, &C, 127 
 
 If, out of land (w), a legacy is bequeathed to A. on a contin- 
 gency, as to A. at his age of twenty-one ; if A. dies before the 
 contingent event takes place, as before his age of tv\^enty-one, 
 the legacy will sink into the land, for the benefit of the heir, 7Mtus 
 ovfactus{w), and will not pass to A.'s personal representative (a). 
 And if, out of land, a legacy is bequeathed to A., to be paid at a 
 certain age, as to A., to be paid at twenty-one ; if A. dies before 
 the time of payment, the legacy will here likewise sink into the 
 land for the benefit of the heir ( y). And whether the legacy is 
 given to A. at twenty-one, or to A. to be paid at twenty-one, it 
 seems to be clear that, notwithstanding interest is bequeathed 
 to be paid during the contingency, the legacy will sink into the 
 land, if A. dies under age {z). 
 
 Wlien a legacy given by a father to his child, and made pay- 
 able out of land, is bequeathed to the child at a certain age, or to 
 
 lion, see also 2 Vern. 417 ; 2 P. W. 612 ; 
 
 1 Atk. 501, 512; 2 V'es. 263; 1 West 
 Cas. T. Hardw. 701 ; 1 Bro. C. C. 123, 
 3 Ves. 543 ; 5 Ves. 513 ; 6 Ves. 245 ; 
 and 9 Ves. 230. 
 
 (v) By land is here meant real estate 
 (1 Atk. 50;J; 1 West Cas. T. Hardw. 
 701 ; 2 P. W. 610 ; 2 Ld, Raym. 937 ; 
 5 Ves. 513), which excludes leaseholds 
 for years. Yet if a term of years is 
 created out of the inheritance, in trust to 
 raise a sum of money, this money is 
 payable out of land, or real estate. Bond 
 V. Brown, 2 Ch. Cas. 165 ; Lady Pawlett 
 V. Lord Pawlett, 1 Vern. 321. See also 
 
 2 Freem. 244, 245. 
 
 (w) 2 P. W. 277, 610 ; 1 Atk. 486 ; 
 2 Ves. 207. 
 
 (i) On legacies by a father to his 
 child, Taylor v. Wood, Nels. 193 ; Carter 
 V. Bletsoe, Prec. Ch. 267, Gilb. Eq. 
 Rep. 11 ; Smith v. Avery, 1 Eq. Cas. 
 Abr. 269; Phipps v. Lord Mvlgrave, 3 
 Ves. 613. 
 
 (y) On legacies by a father to his 
 child, Smith V. Smith, 2 Vern. 92 ; Yates 
 V. Fettiplace, or Phettiplace,2 Vern. 416, 
 Prec. Ch. 140, 1 Ld. Kaym. 508 ; Jen- 
 
 nings V. Looks, 2 P. W. 276 ; Boycot v. 
 Cottwi, 1 Atk. 552, 555, 1 West Cas, 
 T. Hardw. 520; Rich v. Wilson, Mos. 
 68 ; Ord v. Ord, 2 Dick. 439 ; Harrison 
 V. Naylor, 2 Cox, 247, 3 Bro. C. C. 
 108. On legacies to a stranger, Gawler 
 V. Standerwick, 2 Cox, 15. That it is a 
 general rule, that a legacy payable out of 
 land will sink into the inheritance, if the 
 legatee dies before the time of payment, 
 see 3 Atk. 321, and Attorney General v. 
 Milner, ib, 112, and in which case For- 
 tescue, M. R., says, " With regard to 
 children's portions, the rule of the Court 
 has been, that where the child dies before 
 it becomes payable, it shall sink into the 
 land. And if the rule is, that a legacy 
 out of land, given as a portion to a child, 
 who dies before the contingency happens, 
 shall go to the heir, and not to the repre- 
 sentative of the child, I think it is much 
 stronger where the legacy is given to a 
 stranger payable out of land." //;. 115. 
 (z) On legacies by a father to his 
 child. Carter v. Bletsoe, Rich v. Wilson, 
 and Boycot v. Cotton, above. On legacies 
 to a stranger, Gawler v. Standerwick, 
 above.
 
 128 or THE SINKING OF A LEGACY, &C. [(II. VI. 
 
 him, to be paid at a certain age, as at the age of twetity-ono, a C'oiut 
 of Equity, in interpreting this bequest, concludes tliat the parent 
 thought that, if the cliild did not live till such time, it would not 
 want its portion or legacy. And the like interpretation is ex- 
 tended to legacies to strangers. But when a legacy is bequeathed 
 to a person, to be j^aid at a future day, and the mind of the 
 testator appears to be free from the thought, that the legatee 
 will not want the legacy, if he dies before the time of payment, 
 then, unless by the context a future gift appears clearly to be 
 intended, the bequest is interpreted to mean a present gift, to be 
 paid hereafter, and the payment of which is postponed for the 
 convenience of the estate, or for some other reason apparent in 
 the mind of the testator ; and, in these cases, the legacy may not 
 sink into the land, although the legatee dies before the time of 
 payment arrives (a). Accordingly, in the authorities referred to 
 in the margin, a legacy has been held not to sink into the land, 
 although the legatee died before the time of payment (Z») ; and, 
 in other instances, where the legacies were payable within, or at 
 the end of a year, or other appointed period, after the death of 
 the testator himself (c), or of a devisee for life of the property (r/). 
 When a legacy is bequeathed to A., to be paid at a day to 
 
 (rt) 2 P. W. 277 ; 3 P. W. 174 ; 2 
 Atk. 128 ; Barn. Ch. Rep. 329 ; 3 Atk. 
 321 ; Ambl. 576 ; 1 Bro. C. C. 123, 124, 
 192, 
 
 (h) On legacies by a father to his child, 
 Lowther v. Condon, 2 Atk. 127, Barn. 
 Ch. Rep, 327, cited 3 Atk, 321 ; Sher- 
 man V. Collins, 3 Atk. 319 ; Manning v. 
 Herbert, Ambl. 575 ; on which case, see 
 Belt's Supplem. to Ves, p. 38 ; Bayleij v. 
 Bishop, 9 Ves. 6. On legacies by a 
 grandfather to his grandchild, Emesv. Han- 
 cock, 2 Atk. 507 ; Embrey v. Martin, 
 Ambl. 230 ; Embry v. Marlyn, S. C, 1 
 Kenyon, 77. On legacies to strangers, 
 Strickland v. Garnet, 2 Ch. Rep. 97 ; 
 Hutchins v. Foy, Com. 716, cited 1 Ves. 
 47. Tunstall V. Brachen, Ambl. 167 ; 
 Clark V. Ross, 2 Dick. 529, 1 Bro. C. C. 
 121, n.; Dawson v. Killet, 1 Bro. C C. 
 
 119 ; Mason v. Marshall, stated ih. 122 ; 
 Molesworth v. Molesicorth, 3 Bro. C. C. 
 5, 4 Bro. C. C. 408. 
 
 (c) On legacies by a father to his 
 child, Coivper v. Scott, 3 P. W. 119; 
 Wilson V. Spencer, ib, 172. See Webb v. 
 Webb, Barn. Ch. Rep. 86. 
 
 (d) On legacies by a father to his 
 child, Pawsey v. Edgar, 2 Dick. 531, 1 
 Bro. C. C. 192, n. ; Godwin v. Munday 
 1 Bro. C. C. 191 ; Fry v. Fry, stated ih. 
 192 ; Thompson v. Voio, ib. 193, n. ; 
 Morgan \. Gardiner, ib.n. On legacies 
 to strangers, Hodgson v. Rawson, 1 Ves. 
 44 ; Jeale v. Tichener, Ambl. 703, 1 Bro. 
 C. C. 120. n., Seal v. Tichener, S. C, 2 
 Dick. 444. And see Hall v. Terry, 1 
 Atk. 502, 1 West Cas. 'i'. Hardw. 500, 
 cited 1 Ves. 48, and 1 Bro. C. C. 194. 
 See likewise Weedon v. Fell, 2 Atk. 123.
 
 S. XV.] MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 1'29 
 
 come, as at the age of twenty-one years, and is payable out of 
 personal estate, and out of, as an auxiliary fund, the testator's real 
 estate ; here, if the legatee dies before the day of payment, the 
 charge on the land, or other real estate, sinks into the inheritance, 
 but the legacy still continues to be payable out of the testator's 
 personal estate (c). 
 
 SECTION XV. 
 
 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 
 
 Unless a contrary intention appears in the will, a charge of 
 legacies on land authorises a Court of Equity to decree a sale, or 
 mortgage or sale, of it, for payment of the legacies {f) ; and this 
 decree will, it seems, be made, although the testator's heir at law, 
 to whom the land charged is devised, is an infant {g). Also, a 
 sale will be decreed, notwithstanding the estate charged is a rever- 
 sion expectant on an estate for life (A). \nBaines v. Dixon, where 
 land was devised for the payment of debts and legacies. Lord Hard- 
 wicke held that the particular terms of the will did not authorise a 
 sale for payment of the legacies, and directed a sale for the debts, 
 but the, legacies to be paid as the yearly rents and profits should 
 arise {i). When a legacy is charged on real estate only, a Court 
 of Equity will not decree it to be raised before the time of pay- 
 ment ; " and although an equity might possibly arise to a purchaser 
 without notice of such a charge, yet this is not an event to which 
 the Court will look forward" (J). Where a will creates a trust 
 
 (e) On legacies by a father to his 
 child, Ord v. Ord, 2 Dick. 439 ; Lowe v. 
 Moselu, stated 3 Ves. 140. On legacies 
 to strangers, Duke of Chandos v. Talbot, 
 2 P. W. 601, 609, 613; Prowsev. Ab- 
 ingdon, 1 Atk. 482, 1 West Cas. T. 
 Hardw. 312 ; Van v. Clarke, 1 Atk. 510, 
 I West Cas. T. Hardw. 699 ; Basset v. 
 Basset, 3 Atk. 203, 207 ; Fearce v. 
 Lirman, 3 Ves. 135. 
 
 (/) Bacon V. Clerk, 1 P. W. 478 ; 
 Miles V. Leigh, 1 Atk, 573 ; Hone v. 
 Medcraft, 1 Bro. C. C. 261, 265. 
 
 (^) Mould V. Willitimson, 2 Cox, 386. 
 
 (/() Bacon V. Clerk, 1 P. W. 478, 
 Prec. Ch. 500 ; Carter v. Carter, 1 Ves, 
 168 ; Davies v. Davies, Dan. 84. 
 
 (0 1 Ves. 41. 
 
 (,/) Gawler v. Standerivick, 2 Cox, 15, 
 18.
 
 l;30 MISCEIJ-ANKOUS POINTS OF THE GENEUAI- SUBJECT. [CH. VI. 
 
 to raise money out of land, as to pay debts and legacies, and, 
 with resemblance to a tenant by elegit, the trustee takes a chattel 
 estate until the money is raised ; here, if the trustee, in the exe- 
 cution of the trust, enters and receives the rents to an amount 
 sufficient to discharge the trust, the estate is then, it appears, 
 taken as having borne its burthen ; and if the money is misap- 
 plied, the land is no farther chargeable, and the cestui que trust 
 must take his remedy against the trustee, for the misapplication 
 made by him [k). From a case of this kind, the circumstances 
 in Gugelman v. Duport were held to be different; and there, 
 accordingly. Lord Hardwicke decreed an estate to bear a second 
 time the burthen charged on it ; namely, a legacy, the amount of 
 which the trustee had raised out of the rents and profits, and died 
 insolvent, without having satisfied any part of it(Z). Before the 
 statute 55 Geo. III. c. 192, a charge of a legacy on a copy- 
 hold, which was not surrendered to the use of the will, was invalid, 
 except in certain cases, in which a Court of Equity would, for 
 the benefit of the legatee, supply the surrender [m). In Shirt v. 
 JVestb?/, a charge of another person's debts was interpreted to be 
 a bequest of legacies out of real estate. The testator said, " I 
 charge my real estates, situate within the township of K., with 
 the payment of the following sums of money, or such of them as 
 shall be unpaid at the time of my decease, and which are the debts 
 of my late brother, J. H., deceased : to S. J. the sum of £300" ; 
 specifying the other persons and sums, in the same manner. 
 These sums were by Lord Eldon decided to be legacies, and 
 carrying interest, not as the debts of J. H., but as sums of money 
 bequeathed by the testator (it). It is important to notice a dis- 
 tinction between a legacy and a i^esidue. A legacy bequeathed 
 out of personal estate may be, and is accordingly very commonly 
 
 (fc) Carter v. Barnadiston, 1 P. W. 
 505, 509, 518; Gugelman v. Duport, 1 
 West Cas. T. Hardw. 579. See also 
 Anon. 1 Salk. 153 ; Juxon v. Brian, Prec. 
 Ch. 143 ; Tompkins v. Tompkins, ib', 397 ; 
 Oldjield V. Oldfield, 1 Vern. 336 ; and 
 
 Hutclmuon v. Lord Massareene, 2 Ball 
 & B. 49. 
 
 (/) 1 West Cas. T. Hardw. 577. 
 
 (m) Rafter v. Stock, 1 Eq. Cas. Abr. 1 23, 
 Ca. 12 ; Palmer v. Palmer, 2 Dick. 534. 
 
 (n) 16 Ves. 393.
 
 S. XV.] MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. 131 
 
 construed to bo, cliar^ed on real estate, in aid of the personalty : 
 but it is said, "It is true that a real estate shall never conic in 
 aid of a residue ; but when it is a new resulting fund, it is differ- 
 ent " (o). These words appear to mean, that real estate is never 
 construed to be, in aid of the personalty, charged with the pay- 
 ment of a residue, or of a sum of money bequeathed out of a 
 residue ; yet if the residue is first, for a particular purpose, given 
 to trustees, as to J. W. and W. M., in trust for S. for life, and 
 after this purpose fulfilled, as after the death of S., the testator 
 ceases to treat the same fund as residuary ; in this case, a sum 
 of money bequeathed out of it may be interpreted to be a legacy, 
 and, like other legacies, charged on real estate in aid of the 
 personalty (p). 
 
 ((-) 3 Iko. C. C. 631. {p) Minor v. Wicksteed, 3 Bro. C. C. 627. 
 
 K 2
 
 132 
 
 CHAPTER VII. 
 
 OF AN ANNUITY DEVISED, AND BY THE WILL CHARGED ON 
 REAL ESTATE. 
 
 Sect. I. — Liability of Testator^ s -personal Estate to pay the 
 Annuity ; and on a Revocation of the Will hy a 
 Codicil. 
 II. — Liability of an Anmiitant to pay Land-Tax. 
 III. — Remedy to obtain Payment of the Annuity. 
 IV. — Remedy to obtain Payment of an Annuity^ charged 
 
 on an Incorporeal Hereditament. 
 V. — Interest on Arrears of an Annuity. 
 VI. — Sale of the Estate Charged. 
 VII. — Charge on renewable Leaseholds. 
 VI II. — Apportionment. 
 
 IX. — Miscellaneous Points of the General Subject. 
 
 SECTION I. 
 
 LIABILITY OF TESTATOR'S PERSONAL ESTATE TO PAY THE AN- 
 NUITY: AND ON A REVOCATION OF THE WILL BY A CODICIL. 
 
 In several cases an annuity given by will has been held to be 
 payable out of the testator's real estate, in aid of his personal 
 estate (a), and, in other instances, in exoneration of the person- 
 
 (a) Elliot V. Hancock, 2 Vern. 143 , 
 Quintine v. Yard, 1 Eq. Cas. Abr. 74 ; 
 Aubrey v. Middleton, 4 Vin. Abr. 460, 
 2 Eq. Cas. Abr. 497 ; Attorney General 
 V. Lady Downing, 1 Dick, 414, 417, 
 Arab. 572; Buckeridge v. Ingram, 2 Ves. 
 jun. 652 ; Sheddon v. Goodrich, 8 Ves. 
 
 481, 497, 501; Fitzgerald v. Field, 1 
 Russ. 416, 428 ; Lusliington v. Sewell, 
 
 1 Sim. 435, 477. See Joyce's case, Nels. 
 155 ; Oldham v. Litchford, or Litchfield, 
 
 2 Freem, 284, 2 Vern, 506; Rigbies 
 case. Ley, 61 ; and Brown v. Claxton, 3 
 Sim. 225.
 
 S. I.] LIABILITY OF TESTATOR's PERSONAL KSTATE, &C. 133 
 
 alty (/>). In Cole v. Turner, an annuity was held to be charged 
 on freehold, copyhold, and leasehold estates, and, it would seem, 
 on them only (r). In Brown v. Claxton, an annuity was held to 
 be a charge on personal estate, and, perhaps, on that only {d). 
 A person by his will, executed "and attested according to the 
 Statute of Frauds, bequeathed an annuity to his daughter, and 
 charged it on all his estate, both real and personal. And by a 
 codicil, attested by two witnesses only, he gave all his real and 
 personal estate to E. M. for life. On this case it was held, that 
 under the will the annuity was a charge on the real estate, in aid 
 of the personalty; that by the codicil the personal estate was, 
 during the life of E. M., exempted from the payment of the an- 
 nuity ; and that, notwithstanduig the codicil, the annuity con- 
 tinued to be a charge on the testator's real estate (e). And, in 
 another case also, an annuity bequeathed by a will, and charged 
 on real and personal estate, was held to remain a charge on the 
 real estate, although so far as it was payable out of the personal 
 estate, the bequest was revoked by a codicil not executed accord- 
 ing to the statute (/). An annuity, which was by a will charged 
 originally on real estate, was, in Beckett v. Harden, held not to 
 be revoked by a codicil not executed according to the statute ; 
 and in the same case it was decided, that the annuity was not 
 revoked by another codicil, which revoked the devise, that by the 
 will was, subject to the annuity, made to J. B., and, in the place 
 of that devise, devised the same estate to J. P. {g). A person by 
 his will devised all his lands to A., subject to an annuity, which 
 he bequeathed to his wife ; and afterwards by a codicil he devised 
 part of those lands to B. and C, confirming all his devises and 
 bequests in favour of his wife ; and she was held to be entitled to 
 resort, for her annuity, to the part devised to B. and C. [h). 
 
 (hi) Cheeseman v. Partridge, 1 Atk, 
 436, 9 Mod. 213; Ex parte Morgayi, 10 
 Ves. 101. 
 
 (c) 4 Russ. 376. 
 
 (d) 3 Sim. 225. 
 
 (e) Biickeridge v. Ingi-am, 2 Ves. jun. 
 
 652, 665, cited 8 Ves. 500. 
 
 (_/■) Sheddon v. Goodrich, 8 Ves. 481, 
 497, 
 
 (g) 4 M. & S. 1. 
 
 (/() Reeves v. Keweiiham, 1 Vern. & 
 Scriv. 319, 482, 2 Ridgevv. P. C. 11.
 
 134 
 
 [CH. VII. 
 
 SECTION II. 
 
 LIABILITY OF ANNUITANT TO PAY LAND-TAX. 
 
 A RENT or annuity devised out of land is liable to pay a pro- 
 portion of the land-tax payable for the land (/) ; unless such rent 
 is devised in terms intended to exempt it from that payment ; as 
 in the terms, " free of all taxes" ; or, " clear of all taxes" {J) ; or, 
 " without any deduction, or abatement, for any taxes, charges, or 
 impositions, imposed or to be imposed, parliamentary, or other- 
 wise " (k) ; or, it seems, "without any deduction, defalcation, or 
 abatement for or in any respect whatsover" (l). 
 
 If the rent or annuity is devised by the words " clear yearly 
 sum", it seems it must be stated to be doubtful, if those words 
 are sufficiently strong to exempt the annuitant from the payment 
 of the land-tax {)n). 
 
 There is a distinction between a rent or annuity, and an annuity 
 which is only an instalment of a legacy. For an annuity payable 
 out of land is not liable to pay the land-tax, when it is only a 
 yearly payment or instalment of a sum of money bequeathed out 
 of land, and directed to be paid by certain yearly payments (n). 
 
 Where a person devised an annuity to his brother and sister- 
 in-law, charging it on shares in the New River Company, and 
 the annuity had been paid for sixteen years without deducting 
 the land-tax. Lord Hardwicke refused to relieve the payer against 
 
 (i) Stat. 38 G. III. c. 5 ; 38 G. III. 
 c. 60, s. 15; 42 G. III. c. 116, s. 92, 
 127 ; King v. Weston, 2 Eq. Cas. Abr. 
 62; Atwood v. Lamprey, 3 P, W. 127, 
 5th ed. 127, n. B. ; NichoUs \. Leeam, 
 3 Atk, 573. 
 
 (j) Brewster v. Kltchin, or Kitchell, 
 or Kidgell, 1 Ld. Raym. 317, 1 Salk. 
 198, Cas, T. Holt, 669 ; Champernon v. 
 Champernon, cited Uougl. 603, 4th ed. 
 625. See ihnlgwinth \.Crawliii,2 Atk. 376. 
 
 "(/c) Murchionesiof liUiiiilfci d v. Ducliess 
 
 of Marlborough, 2 Atk. 542, cited 2 Ves. 
 5'J3, 504. 
 
 (Z) Bradbury v. Wright, Dougl. 602, 
 4th ed. 624 ; which seems to overrule 
 Green v. Marygold, 8 Vin. Abr. 41 1, 2 
 Eq. Cas. Abr. 64. 
 
 (»i) llodgworth V. Crawley, 2 Atk. 
 376 ; Earl of Tyrconnel v. Duke of 
 Aucaster, 2 Ves. 499, Amb. 237 ; Villa 
 Real V. Lord Galway, I Bro. C. C. 4, n. 
 
 (n) Grimsloii v. Lord Bruce, I Salk. 
 156, 2 Vern. 594.
 
 S. 111.] RKMKDY TO OiVlAIN I'AYMKNT OF THE ANNUITY. 135 
 
 tljo inistako ; his Lordship saying-, " I go upon the reason of other 
 cases, and on this general rule, that where the annuity is given 
 to a relative for life, whether it is exj)ressed for maintenance or 
 not, if it has been paid for any length of years, and no deduction 
 has been made on account of the- land-tax, nor was it owing to 
 any fraud or imposition on the receiver, I will presume it has 
 been so paid by the mutual consent of both sides, and if there 
 should arise any (juarrel between the payer and receiver after- 
 wards, the payer is not entitled to be relieved" (o). 
 
 SECTION III. 
 
 REMEDY TO OBTAIN PAYMENT OF THE ANNUITY. 
 
 An annuity devised, and by the will made payable out of land, 
 is a rent (p); a rent-seek, if the will does not contain a clause of 
 distress on non-payment of it, and a rent-charge, if this clause is 
 contained in the will (q). If it is a rent-charge, and it is not 
 paid, the annuitant has a remedy at common law by distress (?■). 
 And if the annuity is a rent-seek, and is not paid, the annuitant 
 has a remedy at law by distress, under the statute 4 Geo. II. c. 
 '28, s. 5 (.v). And in the case of the rent-seek, it appears also 
 that, before the statute mentioned, the annuitant might obtain 
 relief in equity by a decree for payment of the rent (t). When 
 the devise is of a rent-charge, the devisee may, under the clause 
 of entry, recover possession by ejectment (u). A writ of annuity 
 
 (o) Nicholls V. Leeion, 3 Atk. 573. 
 
 (/)) Brediman's case, or Brediman v. 
 Bromley, 6 Co. 56 b., Cro. Jac. 14-2; 
 Kingbtcell V. Cawdrey, Mo. 592. 
 
 {q) Litt. S. 217, 218 ; Co. Litt. 143b. ; 
 Brediman's case, 6 Co. 56 b., 58 a. ; 
 Buttery v. Robinson, 3 Bingh. 521. 
 
 (r) Litt. S. 217, 218. See Hassell v. 
 Gowthwaite, Willes. 500, 508. 
 
 (s) Saward \. Anstey, 2 Bingh. 521, 
 522 ; Buttery v. Robinson, 3 Bingh. 392, 
 11 J. B. Moore, 262. See on the sale of 
 the distress, Stat. 2 VV. & M. c. 5 ; 4 
 
 G. II. c. 28, s. 5 ; 11 G. II. c. 19 ; and 
 Short V. Hubbard, 2 Bingh. 349, 9 J. B. 
 Moore, 667. 
 
 (t) Web V. Web, Mo. 626 ; Ferrers v. 
 Tannet, or Tanner, cited there, and also 
 in 3 Ch. Cas. 91 ;' ShtUe v. Mallory, Rio. 
 805; Ferris v. Newby, cited 1 Ch. Cas. 
 147. 
 
 (li) Eure V. Ewe, 1 Eq. Cas. Abr. 
 1 15 ; Morgan v. Morgan, 2 Dick. 643 ; 
 O'Donel v. Browne, 1 Ball Cit B. 262. 
 See Jemot v. Cooley, T. Rayra. 158, 1 
 Lev. 170.
 
 13G IlEMEDY TO OBTAIN PAYMENT OE AN ANNUITY, [CH. VII, 
 
 is u remedy at law against the person of tlie grantor of an an- 
 nuity (v). It follows that this writ is not a remedy, of which a 
 devisee of an annuity, devised out of land, can avail himself, the 
 grantor having in this case ceased to exist before the gift of the 
 annuity takes effect (iv). If an annuity, or yearly rent, is devised 
 to A., and made payable, during the life of B., out of real estate 
 devised to B. for life, it is decided that, during the continuance 
 of A.'s freehold interest, an action of debt does not lie, either at 
 common law, or by the statute 8 Anne, c. 14, s. 4, for the arrears 
 of the annuity (x). 
 
 SECTION IV. 
 
 REMEDY TO OBTAIN PAYMENT OF AN ANNUITY, CHARGED ON 
 AN INCORPOREAL HEREDITAMENT. 
 
 It is a common law prerogative of the king, to reserve a rent 
 out of an incorporeal hereditament leased by him, and to distrain 
 the lessee's corporeal hereditaments, namely, all his lands, if the 
 rent is not paid (?/). 
 
 It is said that a subject cannot, by the common law, reserve a 
 rent out of an incorporeal hereditament {z). This is true, if a ser- 
 vice reserved in a lease made by him is not a rent, excejit he can 
 distrain for it. But it is not true, if the service may be a rent, 
 although a distress for it cannot be made. For it is clear that a 
 subject may, by deed, make a lease for years of tithes, and reserve 
 a service in money, and this lease will be a contract, on which, if 
 the money is not paid, he may maintain an action of debt (a). 
 A service (apparently in money) reserved in a lease of tithes was, 
 in Dalston v. Reeve, decided to be a rent {h); and this decision is 
 
 {v) Liu. S. 219; Co. Litt. 144 b.; 
 Brediman's case, 6 Co. 58 b. 
 
 (to) Bredimun's case, 6 Co. 58 b. ; 
 Gilb. on Rents, ed. 1792, 120. See also 
 Suward v. Anstey, 2 Bingh. 621. 
 
 (x) Webb V. Jiggs, 4 M. & S. 113 ; 
 Kelly V. Clubbc, 3 Brod. & B. 130. 
 
 (.!/) Gilb. ou Rents, 22. 
 
 (s) Co. Litt. 44 b., 47 a., 144 a. ; Gilb. 
 on Rents, 20 — 23 ; Jewel's case, 5 Co. 3 ; 
 Biitt's case, 7 Co. 23 b. 
 
 (a) Co. Liti. 47 a. : Gilb. on Rents, 
 24, 93. 
 
 (b) 1 Ld. Raym. 77.
 
 S, IV.] CHARGED ON AN INCORPOREAL HEREDITAMENT. 137 
 
 supported by several other authorities (c). A rent cannot, how- 
 ever, by the common law, be reserved to a subject on a lease for 
 life made by him of tithes, or other incorporeal hereditament. 
 Such reservation is void ; and the reason seems to be, because, 
 during the lease, there is no remedy to recover the rent : it cannot 
 be distrained for, and, durini^ a freehold lease, an action of debt 
 does not, by the common law, lie for rent reserved in it (d). By 
 the statute 8 Anne, c. 14, s. 4, an action of debt now lies for rent 
 reserved in a lease for life of corporeal (e) hereditaments. And by 
 the statute 5 Geo. III. c. 17, ecclesiastical persons are authorised 
 to lease tithes, or other incorporeal hereditament, either for life or 
 years, and by an action of debt to recover the rent reserved in 
 the lease. But although a subject may make the leases men- 
 tioned of incorporeal hereditaments, and therein reserve a rent, 
 yet a subject cannot distrain for any service or rent reserved In a 
 lease of an incorporeal hereditament {J"). It seems to follow that, 
 when an annuity is by a subject devised out of such an heredita- 
 ment, as out of tithes, the devisee cannot, if the annuity is not 
 paid, distrain for the annuity. But although he is denied this 
 remedy at law, a Court of Equity will, it appears, afford him 
 relief. And accordingly, in Thorndike v. Allington, where a 
 devise was made of 20/. per annum out of a rectory, with a 
 clause of distress for non-payment, and the glebe was worth only 
 405. a year, the Court held that the whole rectory, tithe as well 
 as glebe, was liable to pay the annuity, and the defendant was 
 decreed to pay the arrears {g). 
 
 (c) Dean and Chapter of Windsor v. 
 Cover, or Cower, 2 Saund. 302, T. Raym. 
 194, 1 Lev. 308 ; Tipping v. Crover, T. 
 Raym. 18 ; Bally v. Welts, 3 W'ils. 25. 
 
 (d) Co. Litt. 47 a. ; Gilb. on Rents, 
 25, 93 ; 3 Bl. Com. 232 ; Hawk. Abr. Co. 
 Liu. 73. 
 
 (e) Mr. Serjeant Hawkins makes a 
 
 question, whether this statute does not 
 extend to leases of incorporeal heredita- 
 ments. Hawk. Abr. Co. Litt. 73 ; Harg. 
 Co. Litt. 47 a., n. 4. 
 
 (/) Co. Litt. 47 a., 144 a; Gilb. on 
 Rents, 20. 21. 
 
 (g) 1 Ch. Cas. 79.
 
 138 
 
 [Cll. VII. 
 
 SECTION V. 
 
 INTEREST ON ARREARS OF AN ANNUITY. 
 
 Generally speaking, interest is not payable on the arrears 
 of a rent-charge, or rent-seek, or other annuity ; and a Court of 
 Equity has, in several cases, refused to decree such interest {h): 
 in one, where the annuity was created by deed(?"); in 
 others, where it was a jointure created by deed (J) ; and in 
 another, where the annuity was by will bequeathed, out of real 
 and personal estate, to the testator's sister (k). Under some cir- 
 cumstances, however, equity will decree interest (Z) ; and in par- 
 ticular cases the Court has made this decree (m). When the 
 annuity is given by will, a circumstance which inclines the Court 
 to allow interest is, that the annuity is the bread, or only source 
 of maintenance, of the annuitant, who is the widow, or an infant 
 child, of the testator {71). Other circumstances that occasion the 
 same inclination are, that the annuity is a rent-charge, and the 
 annuitant, being entitled to enter, either obtains possession of the 
 estate, or brings an ejectment; and the owner of the land applies 
 to a Court of Equity for the pur])ose, in the one case, to oblige 
 the annuitant to quit the possession, and, in the other, to procure 
 an injunction to stay the legal remedy of ejectment {0). And, 
 
 (h) Batten v. Earnley, 2 P. W^. 163; 
 Bignal, or Bicknell, v. Brereto)i, I Dick. 
 278 ; Anon., S. C, 2 Ves. 661 ; Lindsey 
 V. Anon., cited 1 Ves. jun. 451 ; Creuze 
 V. Hunter, 2 Ves. jun. 157 ; Creuze v. 
 Lowth, S. C, 4 Bro. C. C. 316. See also 
 Stapleton v. Conway, 1 Ves. 428 ; Morris 
 V. Dillingham, 2 Ves. 170 ; Bennifold v. 
 Waring, cited 3 Bro. C. C. 495 ; and 
 Mellish V. Metlish, 14 Ves. 516. 
 
 (i) Robinson v. Cumming, 2 Atk. 409, 
 411. 
 
 (j) Bedford v. Coke, 1 Dick. 178, 
 also stated 2 Ves. jun. 166 ; Tew v. Fau-I 
 of Winterton, 3 Bro. C. C. 489, 493, 
 1 Ves. jun, 451. 
 
 (fc) Anderson v. Dwyer, 1 S<.:h. & Lef. 
 301. 
 
 (0 2 P. W. 163 ; Cas. T. Talb. 2 ; 
 2 Ves. 170 ; 1 Dick. 181. 
 
 (w) Newman, v. Aiding, 3 Atk. 579 ; 
 Cotton V. White, 1 Dick. 182, n. See 
 also 1 Ves. 428. 
 
 (n) 1 P. W. 543 ; 2 Atk. 211 ; 3 Atk, 
 579. Yet see Bedford v. Coke, 1 Dick. 
 178, cited 2 Ves. jun. 166, and Tew v. 
 Earl of Winterton, 3 Bro. C. C. 495, 
 
 1 Ves. jun. 451. 
 
 (o) Countess of Ferrers v. Earl Ferrers, 
 Cas. T. Talb. 2 ; Robinson v. Cumming, 
 
 2 Atk. 411; Morgan v. Morgan, 2 Dick. 
 643.
 
 S. VI.] 
 
 SAT,E OF THE ESTATE CHARGED. 
 
 139 
 
 accordiiiirly, the Court lias decreed interest to be paid on an 
 annuity bequeathed to the testator's widow (/>), and, in another 
 instance, bequeathed to the testator's infant heir at law (7) ; and 
 on a rent-charge, to compel the payment of which the annuitant 
 brought an ejectment, and to stay tiiis remedy at law the owner 
 of the land obtiiined an injunction in equity (r). 
 
 SECTION VI. 
 
 SALE OF THE ESTATE CHARGED. 
 
 When an annuity is devised out of land, it will be a charge 
 on the land in the hands of a purchaser, who bought with notice 
 of the will (s). In Wynn v. Williams, a purchaser was, after the 
 death of the annuitant, decreed to pay to her personal represen- 
 tatives several years' arrears of the annuity {t). On a devise of 
 land, charged by the will with the payment of an annuity, either 
 a rent-charge, or rent-seek, the annuity is not a charge on the 
 devisee personally ; and if he sells the estate, he cannot, after he 
 has so parted with it, be compelled to pay the annuity. But if 
 on the sale he obtains a covenant from the purchaser to pay it, 
 he may, support an action on this covenant, although he cannot 
 be damnified on non-payment («). It is stated that in the argu- 
 ment of a case it was held, " that if a man devise an annuity to a 
 child, to be issuing out of certain lands, and by the same will he 
 deviseth the same lands for the payment of his debts and legacies, 
 that the devise of the annuity is a subsisting charge on the lands, 
 and shall be good" {v). 
 
 (p) LilUm V. Litton, 1 P. W.541. 
 
 (y) Drapers' Company/ v. Davis, 2 Atk. 
 •211. 
 
 (?•) Morgan V. Morgan, 2 Dick. 643 ; 
 O'DoneL v. Browne, 1 Ball & 13. 262. 
 
 (s) Bam. Ch. Rep, 82. 
 (0 5 Ves. 130. 
 
 (w) Sawardv. Anstey, 2 Binnh,5l9. 
 (r) PoioeWs Case, Nels. 202.
 
 140 
 
 [CH. VII. 
 
 SECTION VII. 
 
 CHARGE ON RENEWABLE LEASEHOLDS. 
 
 When renewable leaseholds are devised, and the testator 
 charges them with the payment of an annuity, and they are 
 devised in terms, the legal effect of which is to pass the whole of 
 the testator's interest in the lease ; and after his death the lease 
 is, under the tenant-right of renewal, renewed by the devisee ; 
 the annuity will, after this renewal, continue to be a charge on 
 such leaseholds ; unless, from some other part of the will, the 
 intent appears to confine the bequest of the annuity to the lease 
 only, which subsists at the testator's death (iv). And if the will 
 contains no direction on this farther point, it must, it should seem, 
 be stated to be doubtful, w^iether the annuitant is obliged to con- 
 tribute to the renewal fines, in proportion to his interest in the 
 property [x). 
 
 SECTION VIII. 
 
 APPORTIONMENT. 
 
 On the death of the devisee of an annuity for his life, charged 
 on land, his personal representative is entitled to such part of the 
 annuity as became due on the last day on which the annuity was 
 payable ; but not to any part or arrears between tliat day and the 
 death of the annuitant (?/). If the annuitant dies on a day on 
 which the rent is payable, his personal representative will, it 
 seems, be entitled to such rent up to that day, if he died after 
 sunset ; but if he died before sunset, then only up to the last 
 day on which the annuity was payable [z). 
 
 (m)) Maxwell v. Ashe, stated from Reg. 
 B. 7 Ves. 184 ; Winslow v. Tighe, 
 2 Ball and B. 195 ; Siubhs v. Roth, ib. 
 548. See Anon. 2 Freem. 22, Ca, 21. 
 
 (a?) Mcmoell v. Ashe, 1 Bro. C. C. 
 444, n. ; Moody v. Matthews, 7 Ves. 174 ; 
 Winslow V. righe, 2 Ball and B. 206 ; 
 Stubhs V. Roth, ih. 554. 
 
 (y) Webbv. Lord Shaftesbury, 11 Ves. 
 361 ; Anderson v. Dwifer, 1 Sch. & Lef. 
 301. See also Franks v. IWMe, 12 Ves. 
 484, Pearly v. Smith, 3 Atk. 261, and 
 Howell V. Hanforth, 2 W. BI. 1016. 
 
 (:) Southernv.Bellasis, 1 P.VV. 179, n., 
 cited ib. 180, and in Prec. Ch. 556.
 
 IX.] 
 
 141 
 
 SECTION IX. 
 
 MISCELLANEOUS POINTS OF JHE GENERAL SUBJECT. 
 
 A CASE is thus reported — " The will was, ' I devise my lands 
 ill the parishes of A. and B. to J. S. ; and I devise a rent to J. N., 
 out of my lands in the parish aforesaid' ; and per Holt, C. J., good 
 to charge the lands in both parishes" (a). 
 
 When an annuity is devised, and by the will made a charge 
 on A., which is freehold land, and also on B., which consists of 
 leaseholds for years, this rent will not be two rents, a freehold out 
 of A., and a chattel out of B. ; but the construction which may 
 be put on this devise seems to be, that one rent only is devised, 
 that the whole rent is freehold property, and that, if it is not 
 paid, the annuitant may distrain for it, either on the freehold 
 land, or on the leaseholds for years (h). 
 
 An annuity given by will is, for many purposes, considered as 
 a legacy (c). In Sihlcy v. Perry, where Lord Eldon decided that 
 the annuitant was entitled to a share of the residue bequeathed to 
 legatees, his Lordship stated, " The rule is, that an annuitant 
 will fall under the general character of legatee, unless there is 
 something to shew the testator himself distinguished between 
 them. In that I found myself on the case of the Duke of Bolton's 
 will, upon which Lord Thurlow held, that, legacies being charged 
 on real estate, annuities were charged on the real estate as lega- 
 cies" {d). A person devised all his real and personal estates to 
 S. A., subject to, and chargeable with, a certain annuity to his 
 widow, and appointed S. A. executrix. The testator had no 
 real estate, except a certain tavern ; a part of the furniture and 
 effects in which also belonged to him. This property he had in- 
 sured, and, after his death, the policy expiring, the executrix 
 renewed it. The tavern was afterwards burnt down. And in a 
 
 (a) Cas. T. Molt, 298, 12 Mod. 375. 
 
 {h) BuiCs case, 7 Co. 23. 
 
 (r) Attorney General v. Downing, I 
 
 Dick. 417; Kannock v. Horton, 7 Ves. 
 402 ; Sibley v. Perry, 7 Ves. 534. 
 (,/) 7 Ves. 534.
 
 142 MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. [CH.VII. 
 
 suit instituted by the widow against the executrix for the admi- 
 nistration of the testator's estate, the sums due on the policy were 
 ordered to be paid into Court; Sir L. Shadwell saying, " 1 
 shall not enter into the question whether she [the defendant] was 
 bound to renew the policy of insurance or not. The fact is, that 
 she, being the executrix, did renew it, and therefore I must hold 
 that, prhnci Jacie, she renewed it in the character in which she 
 was entitled to renew it, namely, as executrix. The inclination 
 of my opinion is, that the proceeds of the policy cannot be con- 
 sidered as part of the testator's general personal estate ; but that 
 they are affected with a trust for the benefit of the parties inte- 
 rested in the real estate. And, prima facie, there is so much 
 ground for holding that the proceeds of the policy are a substitu- 
 tion for the property charged, that the order ought to be made 
 according to the notice of motion" (e). In a case where an 
 annuity was payable out of personal estate, and which, from some 
 unknown cause, had for many years been paid out of real estate 
 devised by the testatrix, the Court, on the ground of laches and 
 other circumstances, dismissed a bill which the aimuitant had filed 
 for the purpose of having an account of the testatrix's personal 
 estate, and out of it the arrears of the annuity satisfied, and the 
 future payments of it secured {/). 
 
 (e) Parry v. Ashley, 3 Sim. 97. (/) Brmon v. Claxton, 3 Sim. 225.
 
 143 
 
 CHAPTER VIII. 
 
 OF PROPERTY BY OR IN THE COURTS OF LAW AND OF 
 EaUITY HELD TO BE ASSETS. 
 
 Sect. I. — Of Property by or in a Court of Law held to he 
 Assets. 
 II. — Of Property by or in a Court of Equity held to be 
 Assets. 
 
 SECTION I. 
 
 OF PROPERTY BY OR IN A COURT OF LAW HELD TO BE ASSETS. 
 
 There are many cases in which property, particularly cir- 
 oumstanced, has by or in a Court of Law been held to be 
 assets («). 
 
 And in particular it may be mentioned, that by or in a Court of 
 Law, the following kinds of property have been held to be assets ; 
 namely, — Money produced by a sale of land devised to executors, 
 on condition to sell to pay debts {h): a leasehold estate vested 
 
 (a) Anon. 3 Dyer, 264 b., Ca. 41, 
 cited Mo. 858 ; Boddy v. Hargrave, Mo. 
 566 ; Anon. 2 li. VIII., cited 2 Leon. 7 ; 
 Alexander v. Gresham, 1 Leon. 224; 
 Bethel v. Stanhope, Cro. Eliz. 810, Owen, 
 132; Anon. Dalis. 89, Ca. 4; Cope v. 
 Lewyn, Hob. 38 ; Bafeild v. Collard, 
 Aleyn, 1 ; Norden v. Levit, 1 Lev. 189 ; 
 Dethicke v. Caravan, ih. 224 ; Peirce v. 
 Davy, Gouldsb. 58 ; Chandler v. Tomson, 
 
 I RoK Abr. 921 ; Legerd v, Linley, 
 Clayt. 38 ; Topham v. Brown, ih. 123, 
 
 II Vin, Abr. 232; Anon. Savile, 118; 
 Jenkins v. Plume, or Ptomhe, 1 Salk. 207, 
 6 ]Mod. 181 ; Turner v. Davies, 1 Mod. 
 62; Cooke v. Cotcraft, 2 W. Bi. 858; 
 
 King V. Thorn, 1 Durn. & E. 489, cited 
 3 East, 110 ; Webster v. Spencer, 3 Barn. 
 & Aid. 365 ; Clark v. Hougham, 2 B. 
 & C. 157 ; Bushby v. Diion, 3 B. & 
 C. 298.-27 H. Vlil. 6, Bro. Abr. tit. 
 Assets enter maines,f 1. 1, cited 1 Leon.l 12; 
 Bro. Abr. tit. Propertie, pi. 50 ; Gouldsb. 
 177; 1 Brownl. & G. 34 ; 2 Brovvnl. & 
 G. 46, 47; 5 Co. 34 ; Hob. 59 ; Keilw. 
 63 b.; Yelv. 33; 7 Durn. & E. 359. 
 See also Siordet v. Brodie, 3 Campb. 253. 
 See, generally on this subject, 1 Rol. 
 Abr. 920, and Vin. Abr. tit. Assets, and 
 tit. Executors, G. a., G. a. 2, G. a. 3. 
 
 (b) I Rol. Abr. 920, G. pi. 2, 3, 6 : 
 1 Brownl. & G. 34 ; 2 Brownl. & G .
 
 144 OF PROPERTY BY OR IN A COURT OF LAW, [CH. VIII. 
 
 in the executor, and although not sold (c) : a lease for years, 
 although the rent is the full value of the land {d) : a term of 
 years, which a woman possessed as executrix, and which became 
 extinguished in the reversion purchased by her husband (e) : a 
 lease for years possessed by an executor in this character, and 
 extinguished by his purchase of the reversion (f): a term of 
 years surrendered by an executor (y) : a reversion for years, 
 expectant on a term of years granted by a testator (A) : a lease 
 for one year made by a copyholder (^) : a lease for years by 
 license made by a copyholder {j) : a lease for years, or a personal 
 chattel, pledged by a testator, and redeemed by his executor (k) : 
 a lease for years by an intestate deposited with a third party, and on 
 which the latter has a lien (Z) : money by an executor recovered 
 in the Court of Chancery, and come to his hands {m) : damages re- 
 covered by an executor (w) : damages recovered by an executor of 
 an executrix of a lessee, for a breach of covenant entered into by 
 the lessor with the lessee : a lease for years made to an executor 
 of an executrix of a lessee, under a covenant entered into by the 
 lessor with the lessee (o) : a debt owing by an executor to his 
 testator {p) : a debt owing by an administrator to his intestate (q) : 
 the profits of a testator's goods, traded with by the executor (r) : 
 
 46, 47 ; 1 Rol. Rep. 56 ; Shawe v. Hunt- 
 leii, 1 Rol. Abr. 920, 11 Vin. Abr. 226. 
 See also Burwell v. Corrant, Hardr. 405. 
 
 (f) Jury V. Woodhoitse, 1 Barnes, 240. 
 (rf) Kale V. Jocelyne, Style, 61. 
 
 (e) Anon. Mo. 54, Ca. 157. 
 
 (/) Bro, Abr. lit. Executors, 174 ; tit. 
 Exting. 54, 57 ; tit. Lease, 63 ; Fryer v. 
 Gildich, 1 Brownl. & G. 76. See also 
 Mo. 507, and 3 Leon. 112. 
 
 (g) 1 Co. 87 b. 
 
 (h) Prattle v. King, T. Jones, 169. 
 
 (i) Anon. Poph. 188, 11 Vin. Abr. 
 146. 
 
 (j) Anon. Poph. 188. 
 
 (/c) Bro. Abr, tit. Admin. 51, Assets 
 enter maines, 12, Executors, 179; 1 Leon, 
 155- See also arg. 4 Ves, 541. 
 
 (/.) Vincent v. Sharp, 2 Stark. 507. 
 
 (m) Harecourt, or Harcock, v. Wren- 
 ham, Mo. 868, 1 Brownl, & G. 76; 
 
 Harwood v. Wrayiiam, 1 Rol. Abr. 920 ; 
 A7ion. 1 Rol. Rep. 56, Ca. 32. 
 
 (h) Co, Litt. 124 a. ; 1 Rol. Abr. 920, 
 G. pi. 4; 11 Vin, Abr. 231, pi. 47; 
 Cope V. Lewyn, Hob. 38 ; Anon. Savile, 
 118. See also Yard v, Ellard, 1 Salk. 
 117. 
 
 (o) Chapman v, Dalton, Plowd, 286, 
 292, cited 1 Co. 98 b, 
 
 (p) Woodward v. Lord Darcy , Plowd. 
 186; Holliday v. Boas, 1 Rol. Abr. 920, 
 G. pi. 13 ; Flud V. Ramsey, Yelv. 160 ; 
 Dorchester v. Webb, Cro. Car. 373 ; 
 Wanhford v. Wankford, 1 Salk. 299. 306, 
 3 Salk. 162, 1 Freem. 520, cited 8 Dowl, 
 & Ryl. 64. See also Mo. 507, and Bro. 
 Abr. tit. Executors, 114. See likewise 
 the next section of this chapter. 
 
 (</) 1 Rol. Abr. 920, G. pi. 11. 
 
 (r) 1 Rol. Abr. 920, G. pi. 8.
 
 S. 1.] HELD TO BE ASSETS. 145 
 
 goods in Ireland, or in any other country beyond sea (.s) : a 
 ship (t) ; and which is, perhaps, present assets, although out at 
 sea (u) : stock, or money in the public funds (v) : the young of 
 certain animals, of which the testator dies possessed ; as lambs, 
 pigs, or calves, which are produced by his sheep, swine, or cows, 
 after his death [iv) : a debt which is part of the testator's estate, 
 and which the executor has released (x) : money for which an 
 administratrix sold the good-will of the trade of her intestate, who 
 was a publican, and whose house, where the trade was carried on, 
 the administratrix lived in as tenant at will for some time before 
 she sold the good-will (t/) : the advantage of a news-walk (z). 
 
 Sperate debts contained in an inventory, delivered by an exe- 
 cutor or administrator to the Ecclesiastical Court, are also by a 
 Court of law held to be assets (a). In such inventory an executor 
 or administrator is bound to put down, as part of the testator's estate, 
 the debts owing to the deceased (b). If the inventory admits the 
 debts to be recoverable, they are called sperate (c) debts. And in 
 an action brought against an executor, such inventory is evidence 
 that the debts "may be had for demanding" (d). And, accordingly, 
 debts put down in the inventory, are, by a Court of Law, held to 
 be prima facie assets in the hands of the executor (e), if he therein 
 admits the debts to be recoverable {f) ; or if, in the inventory, 
 
 (s) Dowdale's case, or Richardson v. 
 Dowdale, 6 Co. 46 b., Cro. Jac . 55. 
 
 (t) Brady v. Shell, 1 Campb. 147. 
 
 (m) Bank of England v. Morrice, 2 
 Barn. Rep. 184. 
 
 (u) Franklin v. Bank of England, 9 
 B. & C. 156, 161, 4 Mann. & Ryl, 11. 
 See S. C. in I Russ. 575. 
 
 (w) Godb. 32. 
 
 (x) Brightman v. Keighley, Cro. Eliz. 
 43 ; Veghelman v. Kighley, 1 Anders. 
 138 ; Kightley v. Kightley, 4 Leon. 102 ; 
 Kittley's case, Godb. 29 ; Anon. Dalis. 
 89, Ca. 4 ; Anon. Owen, 36.— Hob. 66. 
 
 (y) Worral v. Hand, 1 Peake Rep. 
 74, 3rd edit. 105. Lord Kenyon, before 
 wiiom the cause was tried, said, " In the 
 Court of Chancery it was the daily prac- 
 
 tice to consider all beneficial interests, 
 such as renewable leases, and the like, as 
 assets, and to charge the representative 
 with the money arising from them ; and 
 this was analogous to those cases." On 
 the goodwill of a trade, see also Cruttwell 
 V. Lye, 17 Ves. 335, 1 Rose, 123, and 
 Bryson v. Whitehead, 1 Sim.& St. 74. 
 
 (z) Anon, cited 2 Bos. & P. N. R. 
 70. 
 
 (a) 1 Salk. 296; 1 Stark. Rep. 32. 
 
 (b) Stat. 21 H. VIII. c. 5, s. 4 ; 
 Swinb. 5th ed. 404 ; 2 Bl. Com. 510, 
 
 (c) 1 Salk. 296 ; 8 Taunt. 735, 736. 
 
 (d) 1 Salk. 296. 
 
 (e) 1 Salk. 296; Bull. N. P. 140. 
 (/) 8 Taunt. 736.
 
 146 OF PROPERTY BY OR IN A COURT OF LAW [cil. VIII. 
 
 " tliere is one particular of good and bad debts," and the executor 
 "dotli not distinguish them" (//). The effect of the evidence 
 afforded by the inventory is, to charge the executor with the debts 
 contained in it as assets in his liands, and to entitle the plaintiff 
 to a verdict against him. But such evidence may be defeated 
 by proof, on the part of the executor, that the debts, supposed 
 to be sperate, are in fact desperate; and on this proof the 
 executor may obtain a verdict (/«). In an action upon the case 
 against an executor, upon plene administravit pleaded, it was 
 declared by Holt, C. J., — " That all sperate debts mentioned in 
 the inventory shall be counted assets in the executor's hands ; for 
 that is as much as to say, that they may be had for demanding, 
 unless the demand or refusal be proved" (^). And according to 
 another report, of perhaps the same case, upon a plene adminis- 
 travit^ Holt said, — " If an inventory be produced, where there is 
 one particular of good and bad debts, the defendant shall be 
 charged with the whole, because he doth not distinguish them, 
 unless he can discharge any part of it by special evidence" (J). 
 In BuUer's Nisi Prius, a case is mentioned in these terms, — " If 
 in the inventory produced, the article concerning debts did not 
 distinguish between sperate and desperate, it would be sufficient 
 to charge the executor with the whole prima facie as assets, and 
 put it upon him to prove any of them desperate ; as if the article 
 were, ' Item, for debts due and owing, which I admit myself to be 
 charged with when recovered or received.' Smith v. Davis, M. 
 10 Geo. II., per Hardw. J." (h). The same case is also stated 
 in Selwyn's Nisi Prius, and here it is said, — " Lord Hardwicke, 
 C. J., put the defendant on proof, that she could not recover 
 those debts ; for she ought in her inventory to have set forth 
 which debts were sperate and which desperate. The defendant 
 proved by a witness, who went to demand several of them, that 
 
 (g) Comberb. 342. 
 
 (ft) Shelley's case, 1 Salk. 296, Cas. 
 T. Holt, 305; Anon. Comberb. 342; 
 Smith V, Davis, Bull. N. P. 140, 2 Selw. 
 N. P. 8th ed. 783, n. 
 
 (i) Shelley's case, above. 
 
 (,/) Anon. Comberb. 342. In the 
 
 same page, the reporter of this case adds 
 " Note, sperate debts shall be reckoned 
 as money in pocket, because it is sup- 
 posed the executor may have them when 
 he will." 
 
 (/c) Bull. N. P. 140.
 
 S. I.] HELD TO BE ASSETS. 147 
 
 he could not recover them ; and accordingly they were allowed 
 as desperate " (/). In assumpsit against executors to recover 
 the value of certain goods, the defendants, in support of their 
 third plea, plene administraverunt prcnter 367L, proved the inven- 
 tory given in by them to the Ecclesiastical Court, which admitted 
 the sum of 367Z. to be due to the testator's estate, but stated that 
 232/., the amount of certain debts, supposed to be recoverable, 
 was included in that sum. The plaintiff obtained a verdict for 
 367/. ; and this verdict, it was decided, the plaintiff was entitled 
 to retain, Dallas, C. J., saying, — " The defendants have, in their 
 inventory, admitted the debts to be recoverable, and do not now 
 deny that they are recoverable. But this case is still stronger 
 against the defendants, for the plaintiff has produced an affidavit, 
 stating tliat the debts might be recovered, if applied for" {m). 
 A case may here be mentioned, in which an action of debt was 
 brought against an executor on a bond, and he having written a 
 letter to the plaintiff, stating the particulars of the testator's 
 estate, and therein mentioned 300/. as due on a mortgage to the 
 testator, upon producing this letter at the trial, the judge took it 
 as sufficient evidence to prove, that the 300/. came to the defend- 
 ant's hands, and directed the jury accordingly. But against the 
 judgment obtained in this action, a Court of Equity relieved the 
 defendant, on proof, by the executor, that the mortgage was a 
 bad security, there being three precedent mortgages on the same 
 lands, and that the 300/. had not been received, but was still 
 standing out upon such subsequent mortgage (w). It remains to 
 notice a Nisi Prius case, in which it appears an inventory, that con- 
 tained certain debts due to an intestate, was not considered to be 
 prima facie, or sufficient, evidence of assets in the hands of the ad- 
 ministrator ; a case which is, therefore, it would seem, at variance 
 with the authorities before mentioned. It occurred, it is observable, 
 before the decision in Young v. Caiodrey. In Giles v. Dyson, an 
 administrator, the defendant had exhibited an inventory in the 
 Ecclesiastical Court ; and the counsel for the plaintiff contended, 
 
 (0 2 Selw. N. P. 8th ed. 789, n. I Young v.Cordery, S. C.,3 J. B. Moore, 66. 
 
 (m) You7ig V. Cawdrey, 8 Taunt. 734 ; I (/i) Robinson v. Bell, 2 Vern. 146. 
 
 l2
 
 148 OF PROPERTY BY OR IN A COURT OF EOUITY [cH. VIII. 
 
 that certain debts which the defendant, in his inventory, allowed to 
 be due to the estate, and which ho did not represent to be des- 
 perate, were to be considered as actual assets in the defendant's 
 hands; but he admitted it was competent to the defendant to 
 shew, that these debts had not been paid. Lord EUenborough, 
 — " You must prove, presumptively at least, that these debts have 
 been paid ; that presumption may depend on the time, and a 
 number of other circumstances ; but upon the plea of jjlcjie admi- 
 nistravit, it is necessary to prove that effects came into the hands 
 of the defendant; this is the universal practice" (o). 
 
 SECTION II. 
 
 OF PROPERTY BY OR IN A COURT OF EQUITY HELD TO BE 
 
 ASSETS [p). 
 
 There are many cases in which property, particularly cir- 
 cumstanced, has by or in a Court of Equity been held to be 
 assets {q). 
 
 And, in particular, it may be mentioned, that by or in a Court 
 of Equity, the following kinds of property have been held to be 
 assets ; namely, — money arising from the sale of land, devised to 
 be sold by executors for payment of the testator's debts (r) . 
 stock, or money in the public funds {s) : money due to a testator 
 on mortgage (t) : the equity of redemption of a term of years 
 
 (o) 1 Stark. 32. 
 
 (p) On the subject of this section, see 
 also the chapter on Equitable Assets. 
 
 (q) Kingdon v. Bridges, 2 Vern. 67 ; 
 Ashfeld V. Ashfield, ib. 287 ; Chichester \. 
 Bickerstaff, ib. 295 ; Toohe's case, cited 
 ib. 54 ; Rider v. Wager, 2 P. W. 332 ; 
 Watts V. Thomas, ib. 364 ; Bligh v. Earl 
 of Darnley ib. 622 ; Du7in v. Green, 3 
 P. W. 9 ; Gibson v. Sanders, Sel. Ca. Ch. 
 18, 11 Vin. Abr. 235; Anon. 2 Freem. 
 100 ; Ryall v. Kyall, 1 Atk. 59 ; Frede- 
 rick V. Aynscomhe, ib. 392 ; Cook v. Vuck- 
 enfield, 2 Atk. 566; Lawton v. Lawion, 
 
 3 Atk. 13 ; Mabank v. Metcalf, ib. 95 ; 
 Byrn v. Godfrey, 4 Ves. 6. 
 
 ()■) Buvwell V. Corrant, Hartlr. 405. 
 
 (s) Franklin v. Bank of England, 1 
 Russ. 575, 585, 597. See S. C. in 9 
 B. & C. 156, and 4 Mann. & Ryl. 11. 
 Late cases, it may here be noticed, on 
 stock passing under particular words used 
 in a will, are Collier v. Squire, 3 Russ. 
 467, and Kendall v. Kendall, 4 Russ. 
 360. 
 
 (t) Bridgman v. Tyrer, Cas. T. Finch, 
 236 ; Corsellis v. Corsellis, ih, 351 ; Cas- 
 borne v. Scarf e, 1 Atk. 605.
 
 S. II.] ' HELD TO BE ASSETS. 149 
 
 mortgaged {u) : the equity of redemption of the fee-simple mort- 
 gaged (?;) : the trust of a lease for years (iv) : money by a will 
 appointed under a general power to appoint for any purpose (x) ; 
 the power being reserved by the testator himself, on a settlement 
 made by him (^), or being given to the testator {z), or being to 
 charge land, either of himself, or of another person (a) : money 
 by a voluntary deed appointed under a general power to charge 
 land by deed or will for any purpose (5) : a chattel interest by a 
 voluntary deed appointed in land, by a person then indebted, and 
 who had a general power to appoint for any purpose (c) : leases 
 bequeathed, and, by the assent of the executor, vested in the 
 legatee {d) : shares in a newspaper, and of the profits of printing 
 it subsequent to the death of the owner of the shares {e) : a debt 
 which an executor owes to his testator (f). On the last kind of 
 
 ()/) Barthrop v. West, 2 Cli. Rep. 62 ; 
 Coleman v. Winch, 1 P. VV. 776 ; Case of 
 Creditors of Sir C. Cox, 3 P. W. 341 ; 
 Hurtwell v. Ckitters, Arab. 308 ; Clarke 
 V. Samson, 1 Ves, 100. See also Fosset 
 V. Austin, Prec. Ch. 39. 
 
 (v) Plucknet v. Kirk, 1 Vein. 411 ; 
 Solley V. Gower, 2 Vern. 61 ; Anon. 2 
 Freem. 115; Plunket v. Pejison, 2 Atk. 
 294. See also Trevor v. Perryor, 1 Ch. 
 Cas. 148, and Ryall v. liyall, 1 Atk. 59. 
 
 (w) Attorney General v. Sands, 3 Ch. 
 Rep. 37, Neis. 134, 2 Freem. 131. 
 See Ki7ig v. Ballett, 2 Vern. 248, and 
 Scolt V. Scholey, 8 East, 486. On the lia- 
 bility of an attendant term to be assets, 
 see 3 Ch. Rep. 37 ; Nels. Rep. 134 ; 2 
 Freem. 131 ; 2 Ch. Cas. 152 ; Prec. Ch. 
 247; 11 Mod. 5; Tiffen v. Tiffen, 1 
 Vern. 1, 2 Ch. Cas. 49, 55, 2 Freem. 
 66 ; Chapman v. Bond, 1 Vern. 188 ; 
 Thruxton v. Attorney General, ib. 340 ; 
 Baden, or Bladen, v. Earl of Pembroke, 2 
 Vern. 52, 53, Nels. 164; Earl of Pem- 
 broke V. Bowden, S. C, b Ch. Rep. 217 ; 
 Charlton v. Law, 3 P. W. 328. See also 
 Dowse V. Percival, 1 Vern. 104. 
 
 (x) Lord Townshend v. Windham, 2 
 Ves. 9 ; and Sliirley v. Lord Ferrers, there 
 cited. See Grise v. Goodivin, 2 Freem. 
 
 264, 265 ; Harrington v. Harte, 1 Cox, 
 131 ; Holmes v. Coghill, 7 Ves. 499, 12 
 Ves. 206; and Buckland v. Barton, 2 
 Hen. Bl. 136. 
 
 (j/) Thompson v. Towne, Prec. Ch. 52, 
 2 Vern. 319 ; Lassells v. Lord Cornwallis, 
 Prec. Ch. 232, 2 Vern. 465, 2 Freem. 
 279 ; Ashfield v. Ashfield, 2 Vern. 287 ; 
 George v. Milbanke, 9 Ves. 190. 
 
 (s) Hinton v. Toye, 1 Atk. 465; 
 Bainton v. Ward, 2 Atk. 1 72, and from 
 Reg. B. 7 Ves. 503, n. 
 
 (a) Lassells v. Lord Cornwallis, Shirley 
 V. Lord Ferrers, Bainton v. Ward, and 
 George v. Milbanke, above. 
 
 (b) Pack v.Bathurst, 3 Atk. 269. See 
 also Troughton v. Troughton, 3 Atk. 656, 1 
 Ves. 86 ; and Lord Toiunshend v. Wind- 
 ham, 2 Ves. 9. 
 
 (c) Lord Townshend v. ]Vindham, 2 
 Ves. 1. 
 
 (rf) Chamberlain v. Chamberlain, 1 Ch. 
 Cas. 256, cited 3 East, 125, 127. 
 
 (e) Gibblett v. Read, 9 Mod. 459. See 
 also Cooke v. Colcrajt, 2 W. Bl. 856. 
 
 (/) Askwilh V. Chamberlain, 1 Ch. 
 Rep. 138, Toth. tit. Debt, p. 53 ; NichoU 
 V. Chamberlain, 3 Ch. Rep. 89; Brown 
 V. Selwin, Cas. T. Talb. 240, 241 ; Sim- 
 mons V. Gutteridge, 13 Ves. 262.
 
 150 OF PROPERTY BY OR IN A COURT OF EQUITY, &C. [CH. VIII. 
 
 assets it may be mentioned, that if a bond or simple contract debt 
 is owing by A. to B., who aj)points A. liis executor, at law the 
 debt is by this means extinct, in the sense, that the action is gone ; 
 but at law the debt is still assets {(/) ; and the debt is not extinct 
 in equity (/<), where it is part of the testator's personal estate (z), 
 and is assets to pay debts (j), and legacies {k), and may itself 
 be by the testator bequeathed (Z), and will pass in a bequest of 
 the residue (m). Also, where the residue was undisposed of, the 
 executor has been held to be a trustee of the debt for the testa- 
 tor's next of kin (w). And, farther, the testator's heir at law is 
 entitled to have mortgaged lands exonerated out of a debt owing 
 by the executor (o). 
 
 fe) Woodward v. Lord Darcy, Plowd. 
 186 ; HoUiday v. Boas, 1 Rol. Abr. S20 ; 
 Wankford v. Wanhford, 1 Salk. 306, Cas. 
 T, Holt, 311 ; Cheethim v. Ward, I Bos. 
 & P. 630 ; Frmkley m. Fox, 9 B. & 
 C. 130, 4 Mann. & Ryl. 18.— Bro. Abr. 
 tit. Dette, 65, Executors, 114, 118; Mo. 
 507 ; 1 Brownl.J & G. 62. See also 
 Fryer v. Gitdring, Mo. 855, and Caweth 
 V, Philips, 1 Ld. Raym. 605. 
 
 (h) Field V. Clerk, 1 Ch, Rep. 242 ; 
 Anon. 2 Freem. 52, Ca. 58. See Matthew 
 V. FitZ'Simon, 4 Bro. P. C. ed. Tomi. 11. 
 
 (i) Askwith v. Chamberlaine, Toth. tit. 
 Debt, p. 53; Erriiigton v. Evans, 2 Dick. 
 456. 
 
 (/) Brown v. Selwin, Cas. T. Talb. 
 240, 241 ; Freukley v. Fux, 9 B. & C. 
 134. 
 
 (/c) Nichols V. Chamberlain, 3 Ch. 
 Rep. 89, Nels. 44 ; Brown v. Selwin, 
 Cas. T. Talb. 242. 
 
 (/) Cas. T. Talb. 242. 
 
 (m) Phillips V. Phillips, 1 Ch. Cas. 
 292, 2 Freem. 11 ; Brown v.Sehcin, Cas. 
 T. Talb. 240 ; both cited 1 West Cas. 
 T. Hardw. 163. 
 
 (n) Carey v. Goodinge, or Goodwyn, 
 3 Bro. C. C, 110; Berry v. Usher, 11 
 Ves. 87, 90. 
 
 (o) Fox V. Fox, 1 West Cas. T. Hardw, 
 162, 2 Eq. Cas. Abr. 502, 1 Atk. 463.
 
 151 
 
 CHAPTER IX. 
 
 OF PERSONAL AND REAL ASSETS. 
 
 Of assets there are assets per descent, and assets enter maines of 
 an executor (a). Assets enter maines, or in the hands, of an exe- 
 cutor, appear to be called also personal assets {h) ; and to be 
 applicable to pay simple contract debts, and also debts of a higher 
 degree, as by bond or covenant, which binds the testator's heir 
 at law, and by statute, judgment, or recognizance (c). Assets 
 per descent appear to be called also Real assets [d) ; and at the 
 common law, and except under the doctrine of marshalling assets, 
 and the case of Crown debts, not to be applicable to pay simple 
 contract debts, but only debts of a higher degree, as by bond or 
 covenant, which binds the testator's heir at law, and by statute, 
 judgment, or recognizance (e). 
 
 These different kinds of assets may form the subjects of, 
 Section I. — Of Personal Assets. 
 II. — Of Real Assets, 
 
 SECTION I. 
 
 OF PERSONAL ASSETS. 
 
 The following kinds of property are personal assets (y), — an 
 estate pur aider vie in freehold {g) land, and limited to the testa- 
 tor merely, or to him, his executors and administrators {h) : a 
 rent-charge j^ur aider vie, and limited to the grantee merely. 
 
 (a) Tertnes de la Ley, v. Assets ; 2 
 Bl, Com. 244, 510. 
 
 (6) 2 Bl. Com. 340 ; 2 Ves. jun. 70. 
 
 (c) 2 Bl. Com. 511. 
 
 (d) 2 Bl. Com. 340 ; 2 Ves. jun. 70. 
 
 (e) See the Statutes, 47 G. III. c. 74, 
 and 1 W. IV. c. 47 ; and Bull. Co. Litt. 
 191a, n., vi. 9. 
 
 (/) See also Chapter XL, on Property 
 held to be personal estate of a person 
 deceased. 
 
 (g) Neither sect. 12 of Stat. 29 C. II. 
 c. 3, nor sect. 9 of Stat. 14 G. II. c. 20, 
 extends to Copyholds ; Zouck v. Forse, 7 
 East, 186. 
 
 (h) Stat. 29 C. 11. c. 3, s. 12 ; 14 G. 
 II. c. 20, s. 9 ; Duke of Devonshire v. 
 Atkins, 2 P. W. 381, Sel. Ca. Ch. 71 ; 
 Oldham v. Pickering, 2 Salk. 464, 1 Ld. 
 Raym. 96 ; Ripley v. Waterivorth, 7 Ves. 
 425, 441, 447. See Raggett v. Gierke, 
 1 Vern. 234, 2 Ventr. 364.
 
 152 OF HEAL ASSETS. [CH. IX. 
 
 without naming his heirs, executors, or administrators (i) : an estate 
 imr auter vie by a lease limited to A. and his heirs, and in a 
 settlement made by A. converted into personal estate, and after- 
 wards devised by him [j) : the right of the next presentation to a 
 church, which is full, and which right has been granted to a person, 
 who dies possessed of it [k) : timber growing on the estate of a 
 lunatic, and cut under an order of the Court of Chancery, 
 founded on the master's report, that it would be for the benefit of 
 the lunatic, and sold, the produce of the sale being paid into the 
 Bank on account of the lunatic [1) : damages recovered by an 
 executor in an action of trespass {m) : all personal property, which 
 devolves to executors, and is assets {n). 
 
 SECTION II. 
 
 OF REAL ASSETS. 
 
 The following kinds of property, descended from a person 
 seised in fee, are Real assets, — freehold land (o) : ancient de- 
 mesne land {p) : gavelkind land {q): Borough English land (r) : 
 land descended from an ancestor, between whom and the heir 
 there is an intermediate descent (.9) : lands descended on the 
 part of the father and of the mother [t) : a trust estate in fee- 
 
 (j) Beaipark v. Hutchinson, 7 Bingh. 
 178. 
 
 (j) Duke of Devonshire v. Kinton, or 
 Atkins, 2 Vern. 719, 2 P. W. 381, cited 
 7 Ves. 444. 
 
 (/c) 7 B. & C. 150, 151, 183, 193 j 
 Bro. Abr. tit. Chattels, pi. 20, tit. Estates, 
 pi. 51. 
 
 (/) Ex parte Bromjield, 1 Ves. jun. 
 453 ; Oxenden v. Lord Compton, S. C, 
 2 Ves. jun. 69. 
 
 (m) Co. Litt. 124 a. 
 
 (n) 6 Co. 47 b.; Savile, 119; 1 Russ. 
 585, 597 ; 2 Bl. Com. 510. Of a tes- 
 tator's personal property out of England, 
 see Dowdale's case, 6 Co. 46 b. 
 
 (o) Alton. 2 Dyer, 124 a., Ca. 38 ; 
 Ew.erson v. Inchhird, 1 Ld. Raym. 728 ; 
 Wihon V. Armorer, 1 Lev. 287, 3 Salk. 
 
 157, 1 Rol. Abr. 269, A. pi. 3. Of lands 
 in Ireland or Scotland, see Evans and 
 Ascough's case. Latch, 234, cited arg. 1 
 Vern. 419, and Bligh v. Earl of Darnley, 
 2 P. W. 622. 
 
 (p) Fitzh. Abr. tit. Assets par disc. 1 ; 
 Bro. Abr. tit. Assets per disc. 11;! Rol. 
 Abr. 269, A., pi. 1 ; 3 Vin. Abr. 141. 
 
 (q) Co. Litt. 376 b. ; Hob. 25; Cro. 
 Jac.218 ; W.Jo. 88; Hawtriev. Auger, or 
 Anger, 2 Dyer, 239 a.. Mo. 74. 
 
 (r) Jo. 88; 14 Vin. Abr. 245. 
 
 (s) Anon. 3 Dyer, 368 a., Ca. 46 ; 
 Dennye's case, Noy, 56, 14 Vin. Abr, 
 245 ; Bmvyer v. Rivitt, VV. Jo. 88, 14 Vin. 
 Abr. 245; Jenks' case, Cro. Car. 151 ; 
 Holley V. Weeden, 2 Ch. Cas. 175, 1 
 Vern. 400. 
 
 (t) Co. Lilt. 376 b. ; 2 Co. 25 b. ; 3
 
 S. II.] OF REAL ASSETS. 153 
 
 simple (u) : tithes in the hands of laymen (v) : advowson in fee 
 appendant to a manor (w) : advowson in fee in gross (x) ; which, 
 whether the descent is of a trust estate (?/), or the legal estate (z), 
 a Court of Equity will decree to be sold, for the payment of 
 judgment and specialty debts (a).' 
 
 An estate pier miter vie, limited to the ancestor and his heirs, 
 is likewise real assets {h). 
 
 A reversion in fee descended is, when assets, real assets, and 
 offers several distinctions. 
 
 The Courts of Law and of Equity hold to be assets, a rever- 
 sion in fee expectant on a term of years (c) ; and also a reversion 
 
 Co, 14 a. ; Hob. 25 ; VV. Jo. 88 ; 14 Vin. 
 Abr. 245. 
 
 (w) Stat. 29 C. II. c. 3, s. 10 ; 2 
 Freem. 115; King v. Ballett, 2 Vern. 
 248. See Creed v. Colville, 1 Vern. 172, 
 Lady Grey v. Colvile, 2 Ch. Rep. 143, 
 and Goffe v. Whalley, 1 Vern. 282. 
 
 (y) Co. Litt. 159 a. 
 
 (w) 3 Atk. 465. 
 
 (a) At law, this advowson seems to be 
 assets to make a lineal warranty a bar in 
 formedon ; Bro. Abr. tit. Assets per disc. 
 4, 2] ; Co. Litt. 374 b., cited 3 Atk. 
 461, 464'; but, at law, it is perhaps not 
 assets to pay debts. See Doct. & St. 
 Dial. 2, ch. 26, ed. 1709, p. 229 ; Cro. 
 Eliz, 359; Savile, 119; 2 Atk. 206; 
 3 Atk. 461, 464 ; Jacob, 221 ; 7 B. 
 and C. 150. It is clear that an advow- 
 son may be extended, in the sense, be 
 valued; Fleta, lib. ii., c. 71, s. 10, p. 
 158, ed. 1685 ; Britton, 185, 186, ed. 
 1640; Cro. Eliz. 359, 360; Co. Litt. 
 374 b., where the passages in Fleta and 
 Britton are cited by Sir E. Coke, as au- 
 thorities, that an advowson is " valuable," 
 and to support his opinion that an advow- 
 son is assets to make a lineal warranty a 
 bar in formedon. But neither Fleta nor 
 Britton says that an advowson is assets ; 
 and Sir E. Coke does not say that it is 
 assets to pay debts. In Anon. Savile, 
 119, it is said, " Each tiling whicli the 
 
 law gives to the executors shall be said to 
 be valuable, and, consequently, shall be 
 assets. By recovery in Quare impedit, 
 they shall recover damages, which shall 
 be assets. And as an advowson shall be 
 assets in the heir, so a presentation shall 
 be in the executors." On the right of an 
 executor, or heir, or other party, in certain 
 cases to present to a church, see Bro. 
 Abr. tit. Chattels, 6, 20; 11 Vin. Abr. 
 145, pi. 16 ; Shep. Touchst. 432 ; Holt 
 V. Bishop of Winchester, 3 Lev. 46, 
 3 Salk. 280, and Rennell v. Bishop 
 of Lincoln. 3 Bingh. 223, 7 B. & C. 
 113, 9 Dowl. &Ryl. 810. 
 
 (y) Robinson v. Tonge, 3 Vin. Abr. 
 145, 2 Eq. Cas. Abr. 509, 1 Bro. P. C. 
 ed. Toml. 114, 3 P. W. 398, 401, cited 
 2 Atk. 206, and 3 Atk. 464. 
 
 (e) Westjaling v. Westfaling, 3 Atk. 
 460, 461, 464, cited 7 Ves. 447. 
 
 (a) Jacob Rep. 221. 
 
 (b) Stat. 29 C. II. c. 3, s. 12 ; Mar- 
 wood V. Turner, 3 P. W. 163, 166; 
 Westfaling v. Westfaling, 3 Atk. 460. 
 
 (c) Smith V. Angell, 2 Ld. Raym. 783, 
 7 Mod. 40, 1 Salk. 354; Villeis v. 
 Handley, 2 Wils. 49 ; Tyndale v. Warre, 
 Jacob, 217, 218 ; Bushhy v. Dixon, 3 
 B. & C. 298, 5 Dowl. & Ryl. 126. See 
 also Osbaston, or Osberston, v. Stanhope, 
 2 Mod. 50, 3 Salk. 180, 1 Freem. 160.
 
 154 OF REAL ASSETS. [CII.IX. 
 
 in fee expectant on an estate for life (d). And, in the last 
 instance, a Court of Equity will, during the estate for life, decree 
 the reversion, descended to the heir at law, to be sold, for the 
 payment of the ancestor's specialty debts (c). 
 
 At law, if a person seised of a reversion in fee, expectant on 
 an estate-tail, enters into a bond wherein he binds his heirs, this 
 reversion descended from the obligor to his heir is, before it is 
 fallen into possession, so far not assets, that the heir may plead 
 riens per descent [f). But, after it is fallen into possession, it may 
 be assets {g). And if a reversion in fee, expectant on an estate 
 for life and contingent uses in tail, descends to the heir of the 
 donor, in equity it is, before it is fallen into possession, the donor's 
 assets, which the Court will decree to be sold for the payment of 
 his specialty debts. And it is probable also the same decree may 
 be obtained, in the stronger case of a reversion in fee expectant 
 on an estate-tail, or entail which is vested [h). 
 
 On a reversion being assets at law. Sir T. Plumer has made 
 the following observations : — " There are three cases of rever- 
 sions. If it be a reversion dependent upon a term of years, the 
 law does not consider the term as any thing; and judgment is 
 given against the heir, if he plead riens per descent. But if the 
 creditor takes out an elegit^ he is stopped by the term, which is a 
 good defence for the lessee in ejectment, and so there is a cesset 
 executio during the term. If it be a reversion after an estate for 
 life, the heir must plead specially, stating that he has no assets. 
 
 (d) Rook V. Clealand, 1 Ld. Rayin.53, 
 1 Lutw. 503, 507; Smith v. Angell, 2 Ld. 
 
 Raym. 784, 785, 786, 7 Mod. 42 Jacob 
 
 Rep. 216, 218. Rent reserved on a lease 
 for life, and as incident to the reversion 
 descended to the heir of the lessor, seems 
 to be assets on voucher of the heir. Bio. 
 Abr. tit. Assets -per disc. 17, "23. 
 
 (e) Tyndale v. Warre, Jacob, 212, 
 221, 222, See Fortrey v. Fortrey, 2 
 Vern. 134. 
 
 (/) Terling v. Trafford, cited 6 Co. 
 42 a,, 58 b„ and Jacob Rep. 216, 1 Rol. 
 Abr. 269, A. pi. 2 ; Kelloiv v. Rowden, 
 
 3 Mod. 257 ; Bound v. Kello, S. C, 1 
 Freem. 498 ; Kinaston v. Clark, 2 Atk. 
 206; Smith v. Parker, 2 VV. Bl. 1232; 
 Tyndale v. Warre, Jacob, 217. 
 
 (g) Kellow V. Rowden, 3 Mod. 253, 1 
 Freem. 498 ; Godolphin v. Abingdon, 2 
 Atk. 57 ; Kinaston v. Clark, ib. 204, and 
 stated from MS., 2 Cruise Dig. 2nd ed. 
 447 ; Countess of Warwick v. Edwards, 1 
 Dick. 51 ; Tyndale v. Warre, Jacob, 
 218. See also Marchioness of Tweedale 
 V. Earl of Coventry, 1 Bro. C. C. 240. 
 
 (h) Tyndale v. Warre, Jacob, 212.
 
 S. II.] OF REAL ASSETS. 155 
 
 except this, and setting forth what it is : the creditor may then 
 take judgment qnando accident. In the case of a reversion after 
 an estate-tail, the authorities say that the heir may plead generally 
 riens per descent ; distinguishing this from the plea in the case of 
 a reversion after an estate for life. ■ The plaintiff may then reply 
 that there is this reversion descended to the defendant, and he 
 may then have a judgment quando acciderit, the same as in the 
 case of a reversion after an estate for life" (i). 
 
 The law of inheritance offers a distinction between a fee-simple 
 in possession, and a fee-simple in reversion expectant on an 
 estate-tail. And with reference to the descent of the former fee, 
 or fee in possession, there is an important difference between a 
 seisin in law and actual seisin. If A. is seised in fee of land, of 
 which no other person is seised or possessed ; or if A. is seised 
 in fee of land, of which no other person is seised, and of which 
 another person is in possession for a term of years, for an uncer- 
 tain chattel estate, or at will ; A. is seised in fee-simple in pos- 
 session. If the land, of which no other person is seised or 
 possessed, descends from A. to B., the heir at law, then, 
 immediately on the death of A., B. is seised in law only ; 
 and, after B. has entered on the land, he is actually/ seised of it. 
 If the land, of which no other person is seised, and of which 
 another' person is in possession for a term of years, or for an 
 uncertain chattel estate, descends from A. to B., the heir at law, 
 then, immediately on the death of A., B. is actually seised of the 
 land {j). This difference between the two seisins is of much 
 importance; because, if the heir dies seised in law only, the 
 ancestor, from whom the descent came to him, continues to be 
 the stock of descent ; but if the heir dies actually seised, then he 
 himself is the stock of the next descent, agreeable to the maxims, 
 seisina facit stipitcm, and possessio fratris de feodo simplicifacit 
 sororem esse hceredem [k). In each of the mentioned cases, where 
 the heir dies actually seised, he dies actually seised in fee-simple 
 in possession ; and because he is so seised, he himself is the 
 
 (0 Jacob Rep. 217, 218. 
 
 (j) Lilt. S. 8 ; Co. Litt. 15 a., 20 a. 
 Bushby V. Dixon , 3 B. & C. 298. 
 {k) Liu. S. 8 ; Co. Litt. 14 b., 15 a. 
 
 15 b., 29 a. ; 2 Bl. Com. 209, 227 ; Bro. 
 Abr. tit. Discent, 30 ; Guodtitle v. Neicmuii, 
 3 Wils. 516 ; Doe v. Keen, 7 Durn. & E. 
 386.
 
 156 or REAL ASSETS. [CH. IX. 
 
 stock of descent. And in a case where a reversion in fee, expec- 
 tant on the estate of a tenant from year to year, descended to A., 
 who, without receipt of rent, died seised, a Court of Law held 
 that, by reason of the possession of the tenant from year to year, 
 A. died actually seised, and that the land was assets to satisfy a 
 bond debt of A. (Z). When the fee-simple, which descends to 
 the heir, is not a fee in possession, but a fee in reversion expec- 
 tant on an estate-tail, then if he, who is seised in tail, is either 
 another person or the heir himself, such heir is not, during the 
 continuance of the entail, actually seised in fee-simple in posses- 
 sion (m) ; and it follows that, when the reversion falls into pos- 
 session, he himself cannot, on the ground that while the entail 
 continued he was actually seised in fee-simple in possession, be 
 the stock of descent. But he may be the stock of descent for 
 other reasons. For if he is seised of the freehold, the law allows 
 the heir in fee in reversion expectant on the entail to make, by 
 certain acts done by him, an alteration or change in the freehold 
 and the reversion, and by this means to make himself the stock 
 of descent (n). But if the heir has not so changed the freehold 
 and reversion, or at least the reversion, he will not be the stock 
 of descent (o). That stock may be the donor of the entail (/»). 
 And a consequence is, that if, when the reversion falls into 
 possession, and is then claimed by descent, the heir, who took by 
 descent the reversion, is not the stock, from whom the present 
 heir must make title to the land, such land will not be assets of 
 that intervening heir of the reversion, but will be the assets of 
 him, who is found to be the present stock of descent (q). 
 
 (I) BuMy V. Dixon, 3 B. & C. 298, 
 5 Dowl. & Ryl. 126. 
 
 (m) Co. Liu. 14 b., 29 a. 
 
 («) Stringer v. New, 9 Mod. 363. 
 
 (o) Bro. Abr. tit. Discent, 30; Co. 
 Litt. 14b.; 1 Rol. Abr. 628, pi. 6, 7, 
 8, 9 ; 3 Mod. 257 ; Cu7min^ham v. 
 Moody, 1 Ves. 174 ; Doe v. Hulton, 3 
 Bos. & P. 643. 
 
 (p) Keilow V. RoivJen, 3 ]Mod. 253 ; 
 Giffnrd v. Barber, 4 Vin. Abr. 452, 2 
 Eq. Cas. Abr. 706; Jenkins v. Pricliard, 
 
 2 Wils. 45, by mistake said to be ad- 
 judged for the defendants, 3 Bos. & P. 
 658. See a correct report of the same case 
 in Watk.on Desc. 113,n.,3rd. ed., 144, n. 
 (q) Keilow V. Rowden, 3 Mod. 253, 3 
 Lev. 286, 1 Show. 244, Carth, 126, Cas. 
 T. Holt. 71, 336 ; Roimd v. Kello, S. C, 
 1 Freem. 498 ; Giffard v. Barber, 4 Vin. 
 Abr. 452, 2 Eq. Cas. Abr. 706; which 
 authorities contradict Smith v. Paiker, 2 
 VV. Bl. 1230, a case also denied to be 
 law by Lord Thurlow, Lord Alvanley,
 
 S. II.] or REAL ASSETS. 157 
 
 It remains to notice, that as the intervening heir or reversioner 
 expectant on the estate-tail may grant the reversion, so he may 
 incnmber it by a charge or judgment (r). And notwithstanding 
 a judgment will not make such intervening heir the stock of 
 descent, it binds the reversion ; and although the reversion, when 
 it falls into possession, will not, to satisfy that judgment, be 
 assets descended to the heir of him who is the stock of descent, 
 as the donor of the estate-tail, yet such heir takes the reversion 
 bound by the judgment, which accordingly is available against 
 him (s). 
 
 and Sir T. Plumer, 1 Bro. C. C. 246, 
 3 Bos. & P. 650, Jacob, 219. 
 
 (r) 3 Mod. 256; 4 Vin. Abr. 452; 
 
 1 Ves. 177 ; 2 W. Bl. Rep. 1232. 
 
 (s) Giffard v. Barber, 4 Vin. Abr. 
 4.52, Ca. 17, 2 Eq. Cas. Abr. 706.
 
 158 
 
 CHAPTER X. 
 
 OF PARAPHERNALIA; OF A WIFE'S PERSONAL CHATTELS, 
 MADE BY MARRIAGE THE PROPERTY OF HER HUSBAND; 
 AND OF PERSONAL CHATTELS, WHICH ARE THE SEPARATE 
 PROPERTY OF A WIFE. 
 
 Se CT I. — Of Paraphernalia. 
 
 II. — Of a W fe^ s personal Chattels, made hy Marriage the 
 
 Property of her Husband. 
 III. — Of personal Chattels, lohich are the separate Property 
 of a Wife. 
 
 SECTION I. 
 
 OF PARArHERNALIA. 
 
 There are certain personal chattels, wliicli, in a husband's 
 life-time, are, to most intents, liis own property ; but which, after 
 his death, belong, except as against his creditors, to his widow. 
 These are called her paraphernalia; which is a term borrowed from 
 the Civil Law, and, derived from the Greek language, signifies 
 something over and above her dower {a). The apparel, namely, 
 and ornaments of the person, of the wife are paraphernalia {h) ; 
 convenient (c) apparel and ornaments, or, adopting expressions, 
 which appear to be intended to convey the same meaning, apparel 
 and ornaments " convenient for her degree" (t?), or "having regard 
 unto her degree" [e), or " suitable to her rank and degree" (/"). 
 
 (a) 2 Bl. Com. 436. See also on the 
 word Paraphernalia, Fleta, lib. v. c. 23, 
 s. 6, Mo. 213, and 1 Rol. Abr. 911. 
 
 (6) 2 Bl. Com. 436. 
 
 (c) 33 H. VI. 31 ; Bro. Abr. tit. Ad- 
 ministrators, pi. 6 ; tit. Erecuiprs, pi. 19 ; 
 
 Fitzh. Abr, tit. Executors, pi. 24 ; 1 Rol. 
 Abr. 911, pi. 6, 8; Mo. 214. 
 
 (d) Cro. Car. 344. See 2 Dyer, 166 b. 
 
 (e) 2 Leon. 166. 
 (/) 2 Bl. Com. 436.
 
 S. I.] OF PARAPHERNALIA. 159 
 
 In one case, liowever, the degree of the wife, with reference to 
 her title to paraphernalia, seems to be made to depend on the 
 degree of her husband {g). And in a case where Gould, J., 
 expressed an opinion, that the husband was bound to support his 
 wife in a manner suitable to his degree, he observed, " the law 
 takes notice of things suitable to the degree of the husband, in 
 the paraphernalia of the wife" {h). According to other autho- 
 rities, the suitableness of parajihernalia appears to be considered 
 as depending on the quality of the wife and her husband (z). 
 
 From different cases which have occurred in the Courts, it 
 appears that paraphernalia have consisted of, or may consist of, 
 rings ( /) ; trinkets [k) ; a gold watch (Z) ; jewels {m) ; jewels of 
 the value of 3000/. at least (w) ; diamonds (o) ; a diamond neck- 
 lace (/?); "four chains of gold, twenty-eight dozen of gold 
 buttons, and an agate (agget)" (7) ; " sixty-five great pearls, 
 and sixty-five small pearls, and a diamond chain" (r). 
 
 Although it is commonly said that paraphernalia are the apparel 
 and ornaments of the wife's person (s), yet it is not clear they 
 may not also consist of other kinds of personal chattels (if), as of 
 a bed (?/), or dressing or chamber plate {v). 
 
 To make jewels, or other personal ornaments, paraphernalia, 
 
 is) Viscountess Biiidon's case, 2 Leoa. 
 166. See also Offley v. OJiey, Free. Cli. 
 27. 
 
 (fe) Jenkins v. Tucker, 1 Hen. Bl. 94. 
 
 (i) 1 Rol. Abr. 911, pi. 2; Lord 
 Hastings v. Dowglas, ov Douglass, 1 Rol. 
 Abr. 911, pi. 9, Cio. Car. 343. See also 
 Mo. 215. 
 
 (j) 2 Atk. 104 ; 3 Atk. 434 ; Stamvay 
 V. Styles, 2 Eq. Cas. Abr. 156, in itiarg. 
 
 (7c) 2 Atk. 104. 
 
 (7) Stanway v. Styles, above ; Seymore 
 V. Tresilian, 3 Atk. 358 ; Seymour v 
 Trevilyan, S. C, 1 West Cas. T. Hardw 
 109. 
 
 (m) 1 Ch. Cas. 240 ; 1 Freem. 304 
 
 1 P. W. 729 ; 2 Atk. 104 ; 3 Atk. 358 
 
 2 Ves. 4 ; 1 Bro. C. C. 576. 
 
 (n) Northey v. i\orihey, 2 Atk. 77, 79 
 (o) 3 Atk. 434. See Calmadij v. Cal 
 
 mady, 11 Vin, Abr. 181, 2 Eq. Cas. 
 Abr. 628, Ca. 9. 
 
 (p) Graham v. Lord Londonderry, 3 
 Atk. 393. 
 
 (5) Viscountess Bindon's case, Mo. 213, 
 2 Leon. 166. 
 
 (r) Lord Hastings v. Sir A. Douglass, 
 Cro. Car. 343. W. Jones, 332, 1 Eol. 
 Abr. 911, pi. 9. 
 
 (s) 2 P. W. 79 ; 2 Bl. Com. 436. 
 
 (t) 1 Rol. Abr. 911, pi. 2; Noy's 
 Max. Ch. 49 ; 2 Ch. Rep. 382. 
 
 (u) 1 Rol. Abr. 911, pi. 2; 11 Vin. 
 Abr, 178, 180, pi. 13 ; Noy's Max. Ch. 
 49 ; 2 Ch. Rep. 382, 
 
 (v) Middleton v. Middleton, 2 Ch. 
 Rep. 377, 382 ; Ridout v. Earl of Ply- 
 mouth, 2 Atk. 104; Incledon v. North- 
 cote, 3 Atk. 434 ; Offley v. Offley, Prec. 
 Ch. 27.
 
 160 OF PARAPHERNALIA. [CH. X. 
 
 it seems to be necessary, that the wife have in her husband's 
 life-time not only possessed, but worn, the particular jewels or 
 ornaments. For most of the authorities speak of these parapher- 
 nalia as having been, during the marriage, worn or used by the 
 wife (iv). Where a diamond necklace was claimed as parapher- 
 nalia. Lord Hardwicke appears to have considered that, to sup- 
 port this claim, it was essential it should be proved, that the 
 lady had worn it as the ornament of her person : but said it is 
 not necessary to prove she wore it at all times, " but only upon 
 birth-days and other public occasions, which it has been proved 
 she did" (x). And in a case where it appeared the husband 
 kept certain jewels under lock and key, and that his executor 
 found them locked up in his bureau at the time of his death, 
 Lord Hardwicke held them to be paraphernalia, notwithstanding 
 they had been kept by the husband; his Lordship saying, " the 
 being in the custody of the husband will make no alteration, for 
 the possession of the husband is the possession of the wife, and 
 so vice versa, as she wore them for the ornament of her person 
 whenever she was drest" (y). A case that occurred in the reign 
 of Elizabeth, is thus reported : — " If the husband delivers to his 
 wife a piece of cloth (drape) to make a garment, and dies; 
 although this was not made into a garment in the life-time of the 
 husband, yet the wife shall have it, and not the executor of the 
 husband, inasmuch as it was delivered to her to this intent" (z). 
 On the necessity, therefore, of having worn paraphernalia, there 
 may possibly be a distinction between apparel and jewels, or 
 other personal ornaments. 
 
 During marriage, paraphernalia are, to most intents, the pro- 
 perty of the husband (a) ; the wife has no power to dispose of 
 them (b) ; and her husband is entitled to pledge, sell, or give 
 them away (c). During the same period, also, paraphernalia are 
 
 (w) 1 Rol. Abr. 911, pi. 9 ; Cro. Car. 
 344; 3 Atk. 359; 1 West Cas. T. 
 Haidw. 110; 2 Bl. Com. 436. 
 
 (x) Graham v. Lord Londonderry, 3 
 Atk. 393. 
 
 (y) Northey v. Korthey, 2 Atk. 77. 
 
 (z) Harwell V. Harwell, IRol.Ahr.QW. 
 
 (a) 2 Kenyon Rep. pi, 2, p. 7. 
 
 (b) Cro. Car. 344. 
 
 (c) 2 Atk. 644 ; 3 Atk. 359, 394 ; 2 
 Kenyon, pt. 2, p. 7 ; 2 Bl. Com. 436 ; 
 Graham v. Lord Londonderry, 3 Atk. 393.
 
 S. I.] OF PARAPHERNALIA. 161 
 
 liable to the payment of the husband's debts {d). If he survives 
 his wife, they continue to be his property (e). But if he dies in 
 the life-time of his wife, althous^h he may by his will bequeath 
 them to her (f), yet it is settled he cannot bequeath them away 
 from her (^), a point that formerly was considered to be doubt- 
 ful {h). When paraphernalia are bequeathed by a husbaiid to 
 his wife, she may elect to take them in her own right, or under 
 the will (?■). But if she elects to take them in her own right, a 
 Court of Equity holds her to be obliged to relinquish whatever 
 else she claims under the will, for she must abide by the will in 
 toto, or not at all (j). 
 
 After the death of a husband, his widow is entitled to " con- 
 venient" apparel, but, at law, not to " excessive" apparel. The 
 excess belongs to the husband's executors {k). And at law, an 
 excess of jewels, or other personal ornaments, seems also to 
 belong to them (/). In a Court of Equity it may, however, be 
 different. For in a case where a widow brought a bill against 
 the executor of her husband, to have her paraphernalia, and Lord 
 Hardwicke decreed for the wife, according to the prayer of the 
 
 (d) 2 Kenyon Rep. pt. 2, p. 7. 
 
 (e) Goie V. Ktiight, 2 Vein. 3id ed. 
 534, & n. (2.) 
 
 (/) Burton V. Pierpoint, 2 P. W, 78 ; 
 Clarges v. Ducheas oj Albemarle, 2 Vern. 
 245 ; Sir T. Clarges.' case, S. C, Nels. 
 174 ; Churchill v. Small, 2 Kenyon, pt. 
 2, p. 6. See also Uead v. Snell, 2 Atk. 
 642, 644, and Cary v. Appleton, 1 Ch. 
 Cas. 240. 
 
 (g) Northey v. Northey, 2 Atk, 77 ; 
 Seymore v. Tresilian, 3 Atk. 358 ; Seymour 
 V. Trrvilyan, S. C, 1 Vilest Cas. T. 
 Hardw. 109. See also 1 P. VV. 730 ; 1 
 Atk. 441, 442 ; 2 Kenyon, pt. 2, p. 7 ; 
 and Calmady v. Calmady, 11 Vin. Abr. 
 181, 2 Eq. Cas. Abr. 628, Ca. 9, 
 
 (K) Lord Hastings v. Douglass, Cro. 
 Car. 343, W. Jones, 332, 1 Rol. Abr. 
 911 ; Clarges v. Duchess of Albemarle, 2 
 Vern. 245; Wilcox v. Gore, 11 Vin. Abr. 
 180, 2 Eq. Cas. Abr. 626. See also Da- 
 
 venport V. Bobinson, Totli. tit. Devise, p. 79. 
 (i) See Clarges V. Duchess of Albemarle, 
 2 Vern. 245, Nels. 174. and Marshall 
 v.Bleu), 2 Atk. 217. 
 
 (J) Churchill v. Small, 2 Kenyon. pt. 
 2, p. 6 ; Mayer v. Cowland, 2 Dick. 
 563. " It is a general rule of equity, where 
 the demands are of the same kind of estate, 
 that you cannot claim under, and yet con- 
 trovert the testator's intention. But I 
 give no opinion where they are different " : 
 By Lord Hardwicke, in Seymour v. Tre- 
 vilyan, 1 West Cas. T. Hardw. 109. 
 
 (k) 33 H. VI. 31 ; Fitzh. Abr. tit. 
 ExeoUors, pi. 24 ; Bro. Abr. tit. Admi- 
 7iistrators, pi. 6, tit. Executors, pi. 19 ; 1 
 Rol. Abr. 911, pi. 7 ; 11 Vin. Abr. 179, 
 pi. 6, 7 ; Mo. 214, 215. See also 2 Dyer, 
 166, b. 
 
 (/) Viscoimtess Bindons case, 2 Leon. 
 166, Mo. 213 ; Lord Hastings w. Douglass 
 Cro. Car. 343. 1 Rol. Abr. 911, pi. 9. 
 
 M
 
 162 OF PARAPHERNALIA. [CH. X. 
 
 bill, his Lordship is reported to have said, — " Though the 
 jewels here are worth 8000/. at least, yet the value makes no 
 alteration in this Court" (///). 
 
 In a case where, after the death of a husband, a diamond neck- 
 lace, which was the wife's paraphernalia, was sold, Lord Hard- 
 wicke decided she was entitled to an account according to the 
 value at which it had been sold {n). And in the same case, his 
 Lordship expressed an opinion, " If a husband pledges the wife's 
 paraphernalia, and dies, leaving a sufficient estate to redeem the 
 pledge, and pay all his debts, she shall be entitled to have it 
 redeemed out of the husband's personal estate" (o). 
 
 After a luisband's death, his creditors cannot take in satisfac- 
 tion of their debts his widow's necessary (p) apparel (q). But, 
 with this exception, a widow's paraphernalia are, at law (r) and 
 in equity, assets for the payment of her husband's debts (s), as 
 by recognizance [t), specialty (n), or simple contract (y). But 
 paraphernalia, at least such as are not excessive, are not assets 
 for the payment of legacies (w). 
 
 But there may be no paraphernalia, at least to which the 
 widow is entitled, and consequently the apparel and jewels, or 
 
 (m) Northcy v. NoHheij, 2 Atk, 77, 79. 
 
 (n) Graham v. Lord Londonderry, 3 
 A\k. 393. 
 
 (o) Ibid. 395. 
 
 (p) The word " necessary" is, it must 
 be confessed, rather an indefinite expres- 
 sion. And no authority has been met 
 with, where it is explained to mean neces- 
 sary, according to the " rank and degree" of 
 the wife. Lord Hardwicke stated in a case 
 before him. As to paraphernalia, "the rule 
 of law is, that where the husband dies in- 
 debted, the wife is not entitled thereto. In 
 Cr. C. there is a case, that the wife was 
 entitled only to one gown." 2 Ves. 7. 
 In Lord Hastings v. Douglass, a Court of 
 Law agreed, that a husband could not by 
 his will give his wife's necessary apparel 
 away from her, because she ought not to 
 go naked, but be preserved from shame 
 and cold. 1 Rol. Abr. 911, pi. 9. 
 
 (q) Noy's Max. Ch. 49 ; 2 Bl. Cora. 
 436 J 2 Ves. 7 ; 1 Rol. Abr. 911, pi. 5. 
 
 (7-) Viscountess Bindon's case. Mo. 
 213, 216; Harwell v. Harwell, 1 Rol. 
 Abr. 911 ; Lord Hastings v. Douglass, 
 Cro. Car. 343 ; Lord Townshendv. Wind- 
 ham, 2 Ves. 7. 
 
 (s) Sliipton V. Hampson, Cas. T. Finch, 
 145 ; Lady Tyrrell's case, 5. C, 1 
 Freem. 304; Stubbs v. Stvhbs, Cas. T. 
 Finch, 415 ; Willson v. Pack, Free. Ch. 
 295 ; Burton v. Pierpoint, 2 P. W. 78 ; 
 Nicholas V. Southwell, Mos. 177 ; Ridout 
 V. Earl of Plymouth, 2 Atk. 104; Lord 
 Townshend v. Windham, 2 Ves. 1,7; 
 Churchill V. Smalt, 2 Kenyon, pt. 2, p. 7. 
 See also Campion v. Cotton, 17 Ves. 263. 
 
 (0 Tynt V. Tynt, 2 P. W. 542. 
 
 (it) Tipping V. Tipping, 1 P. W. 729 ; 
 Snehon y. Corbet, 3 Atk. 369. 
 
 (v) Willson V. Pack, Free. Ch. 295 ; 
 Snehon v. Corbet, 3 Atk. 369. 
 
 (w) Tipping V. Tipping, 1 P. W. 730, 
 cited 3 Atk. 395; Snelson v. Corbet, 3 
 Atk. 369, 370.
 
 S. II.] OF A WII'K's PEllSONAI, CHATTELS, &C. K).*) 
 
 other ornaments of her person, may be assets for general purposes 
 in the administration of tlie husband's estate, and therefore be 
 assets for tlie payment of leg-acies, if by marriage articles, or a 
 settlement made previously to the marriage, a jointure is settled 
 upon her in terms, which express this provision to be a bar to her 
 claim to j)araphernalia ; as if it is expressed to be in lieu of 
 dower, and all demands out of the husband's personal estate (x) ; 
 or to be in bar and satisfaction of the wife's dower and thirds, 
 and all other parts of the real and personal estate of the husband, 
 which she might claim by the common law of England, the cus- 
 tom of London, or otherwise howsoever (_y). 
 
 SECTION II. 
 
 OF A wife's personal CHATTELS, MADE BY MARRIAGE THE 
 PROPERTY OF HER HUSBAND. 
 
 Marriage makes the property of the husband, and his per- 
 sonal representatives, all the chattels personal, as " ready money, 
 jewels, household goods, and the like" (r), which, in the wife's 
 own right (r/), either belong to her at the time of the marriage (Z»), 
 or come to her during the coverture (c), and which, in either case, 
 are not paraphernalia, and are in possession (d), or, as it is ex- 
 pressed, "capable of immediate and tangible possession" (e), 
 and are not settled to her separate use. And the marriage makes 
 this absolute gift, "whether the husband survive the wife, or 
 
 (i) Chomley v. Chomleii, 2 Vern. 47, 
 82, Nels. 179. 
 
 (j/) Read V. Sttell, 2 Atk. 642, 644. 
 
 (s) 2 Bl. Com. 435. 
 
 (a) Co. Liu. 351 b. " Of personal 
 goods, e?i outer droit, as executrix or 
 administratrix, &c., the marriage is no 
 gift of them to the husband, although he 
 survive his wife." (Ibid.) " But they 
 shall go to the administrator de bonis 
 non ; for should they go to the husband, 
 the creditors, legatees, &c., of the de- 
 ceased would be thereby wronged." (Note 
 to Co. Litt. 351b., Uth edition.) In 
 Thrustout V. Cnppin, 2 W . Bl. 801, 3 
 
 Wils. 277, it was decided, a husband 
 might release a term of years, which his 
 wife possessed, as administratrix of her 
 former husband. 
 
 (6) Co. Litt. 351b.; l)oct. & St. 
 Dial. 1, Ch. 7, ed. 1709, p. 25 ; Plowd. 
 418; 1 P. W. 380; 3 Ves. 469; 2 Bl. 
 Com. 433, 435. 
 
 (c) Doct. & St. Dial. 1, Ch. 7 ; Palmer 
 V. Trevor, 1 Vern. 261 ; Lady CromwelV s 
 case. Hob. 3, in marg. ; Pilkington v. 
 Cuthberlsou, 2 Bro. P. C ed. Toml. 7. 
 
 (d) Co. Litt. 351 b, ; 3 Durnf. & E, 
 631 ; 1 Dick. 342 ; 2 Bl. Com. 435. 
 
 ( e ) 3 Ves. 469. 
 
 m2
 
 164 OF PERSONAL CHATTELS, WHICH ARE [CH. X. 
 
 no" (/■). But if such chattels personal are, by a third party, 
 settled or given to the separate use of the wife, then they are not 
 the property of the husband, but belon<^ to the wife, independently 
 of him {(/). And if they are paraphernalia, then, as it has been 
 seen, they are not, to all intents, the husband's property {h). 
 
 A Court of Equity has held to be assets of a husband de- 
 ceased, 1001. which the wife had during the coverture deposited 
 with a third party, a relation of the wife, to be kept and secured 
 for her separate use ; and 500/., which, during the coverture, and 
 without the husband's privity, the same person gave to the wife, 
 and secured by a promissory note to her (/). A Court of Equity 
 has also held to be assets of a husband deceased, certain per- 
 sonal chattels, namely, " Jewels, rings, pictures, dressing plate, 
 and other trinkets," given to his wife before marriage, and 
 which upon the marriage the coverture made the property of the 
 husband ; and certain personal chattels, namely, " mourning 
 rings, family pictures, &c.," given to the wife after marriage, and 
 which the coverture made the property of the husband (j) : also 
 several jewels, some of which his wife had before marriage, and 
 others which she, during the coverture, bought with money that 
 she had saved out of a yearly sum, that her husband allowed her 
 for her own expenses {k). 
 
 SECTION III. 
 
 OF PERSONAL CHATTELS, WHICH ARE THE SEPARATE PROPERTY 
 
 OF A WIFE. 
 
 A GIFT of personal chattels may be made to a wife's separate 
 use ; as in the instances where, during the marriage or coverture, 
 the husband gave to her money {I) ; a bracelet (m) ; South Sea 
 
 (/) Co. Liu. 351b. 
 
 (g) Kirk V. Paidin, 7 Vin. Abr. 95, 
 Ca. 43, 2 Eq. Cas. Abr. 115 ; Petts, or 
 Potts, V. Lee, 4 Vin. Abr. 131, 2 Eq. 
 Cas. Abr. 149, Ca. 6. 
 
 (h) Northey v. Northey, 2 Atk. 77 ; 
 Seymore v. Tresilian, 3 Atk. 353. See 
 Section I. of the present Chapter. 
 
 (t) Hodges V. Beverley, Bunb. 188, 
 cited 2 Madd. Rep. 136, 140. 
 
 (j) Ridout V. Earl of Plyvwnth, 2 
 
 Atk. 104. 
 
 (k) Lady Tyrrell's case, 1 Freem. 304 ; 
 Shipton v.i Hampson, i'. C, Cas. T. 
 Finch, 145. 
 
 (/) Flay V. Flay, 2 Freem. 64 ; Earl 
 of Shaftshury v. Countess of Shaftsbury, 
 2 Vern. 747 ; Bains v. Ballat, cited in 
 Stanway v. Styles, 2 Eq. Cas. Abr. 156, in 
 marg. ; Calmadyv, Calmady ,c'ited3F .W . 
 339, and 2 Eq. Cas. Abr. 156, in marg. 
 
 (m) Flay v. Flay, 2 Freem. 64.
 
 S. III.] THE SEPARATE PROPERTY OF A WIFE. 165 
 
 Annuities (n) ; trinkets (r>) ; money saved " out of housekeep- 
 ing" (/?) ; the profit of all " butter, egi^s, poultry, pig-s, fruit, and 
 other trivial matters," arising from a certain farm belonging to the 
 husband, and " over and besides what was used in the family "(^) : 
 as also in the instances where a present, made to the wife on 
 her marriage, was made to her by her husband's father, of dia- 
 monds (r) ; and where a gift to the wife, during the marriage, 
 was made by the husband's father, of certain pieces of plate (.s) ; 
 and by a friend, of a picture set about with diamonds (t). 
 
 When on the marriage, or during the coverture, a present is by 
 any person, except the husband, made to the wife, it would seem 
 that, generally speaking, a Court of Equity interprets the gift to 
 be made to the wife's separate use ; if such present consists of 
 diamonds, or other ornaments of her person (u). And this inter- 
 pretation has been made, where a gift during the coverture con- 
 sisted of a picture set about with diamonds {v). 
 
 At law, a husband cannot, without the intervention of a trustee, 
 make, during the coverture, a gift to his wife for her separate use, 
 and to take effect in his life-time (tc). But in a Court of Equity 
 such gifts are supported, although not made to a trustee for the 
 wife (x). Yet a gift of personal chattels from a husband to his 
 wife, during the coverture, is not by a Court of Equity construed 
 to be' for her separate use, in other words, to make them her 
 separate estate (3/), except in cases (2:), where there is " a clear 
 irrevocable gift, either to some person as a trustee, or by some 
 
 (re) Lucas V. Lucas, 1 Atk. 270, 1 
 West Cas. T. Hardw. 456, cited 3 Atk. 
 393, and 2 Swanst. 106. 
 
 ( ) Countess Cowper's case, cited 1 
 Atk. 27 1, and 3 Atk. 393. 
 
 (p) Mangey v. Hungerford , cited in 
 Stanway v. Styles, 2 Eq. Cas. Abr. 156, 
 in marg. ; probably Mrs. Hungerford's 
 case, cited 1 Atk. 271, and 3 Atk. 393. 
 
 Cg) Slanning v. Style, 3 P. W. 334. 
 
 (r) Graham v. Lord Londonderry, 3 
 Atk. 393. 
 
 («) Brinkman v. Brinkman, cited 3 
 Atk. 394. 
 
 (t) Graham v. Lord Londonderry, 
 above. 
 
 (li) Ibid. 
 
 (y) Ibid. 
 
 (w') Litt. S. 168 ; Co. Litt. 112a.; 2 
 Vern. 385; 1 Atk. 271; 3 Atk. 72; 2 
 Swanst. 106. 
 
 (i) 1 Atk. 271; 3 Atk. 394; 2 
 Swanst. 105, 106. 
 
 {y} Lady Tyrrell's case, 1 Freem. 
 304 ; M'Lean v. Longlands, 5 Ves. 71 ; 
 Walter v. Hodge, 2 Swanst. 92. See hod 
 V. Lamb, 1 Crompt. & Jerv. 44, 45. 
 
 (s) Slanning v. Style, 3 P. W. 334 ; 
 Lucas V. Lucas, 1 Atk. 270, 1 West Cas. 
 T. Hardw. 456, cited 2 Swanst. 106; 
 Countess Cowper's case, cited 1 Atk. 271, 
 and 3 Atk. 393.
 
 166 OF I'EIISONAL CHATTELS, WHiCH AUK [cH. X. 
 
 clear and distinct act of the husband, l)y which he divested him- 
 self of his property, and engaged to hold it as a trustee for the sepa- 
 rate use of his wife" (a) ; or, in nearly the same words, where there 
 is " a clear distinct act of the husband, by which he divested 
 himself of the property, and agreed to hold it as a trustee for his 
 wife" (h) ; or, to the like effect, where there is " satisfactory evi- 
 dence of an act constituting a transfer of the property, and suffi- 
 cient transmutation of possession" (c). 
 
 Lord Hardwicke has held, that where a husband " expressly 
 gives any thing to his wife, to be worn as ornaments of her 
 person only, they are to be considered merely as paraphernalia ; 
 and it would be of bad consequence to consider them otherwise ; 
 for if they were looked upon as a gift to her separate use, she 
 might dispose of them absolutely, which would be contrary to his 
 intention" (^d). 
 
 When a married woman possesses property to her separate 
 use, the rents, interest, or dividends, or other yearly produce 
 of it (e), her savings out of it ( /*), and personal or real property 
 bought by her with either fund ((/), are likewise her separate estate. 
 
 A wife's separate estate, made so by the gift of any person, 
 except her husband, is, in a Court of Equity, not assets for the 
 payment of the husband's debts (A) ; such gift being of either 
 real (i) or personal (j) estate, and made either before the mar- 
 
 (a) 5 Ves. 79, cited 2 Swanst. 104, 
 106. 
 
 (6) 2 Swanst. 107. 
 
 (c) Ibid. 
 
 (d) Graham v. Lord Londonderry, 3 
 Atk. 394. 
 
 (e) Gore V. Knight, 2 Vern. 535, Prec. 
 Ch. 255 ; Gold v. Rutland, 1 Eq. Cas. 
 Abr. 346, Ca, 18; Eastlii v. Easily, 2 
 Eq. Cas. Abr. 148 ; Fetliplace v. Gorges, 
 1 Ves. jun. 49, 3 Bro. C. C. 8. 
 
 (/) Bletsow V. Sawyer, I Vern. 244 ; 
 Slanning v. Style, 3 P. W. 334, 338 ; 
 Stanwuy v. Styles, S. C, 2 Eq. Cas. Abr. 
 156,inmaig. ; Gold v. Rut land, 1 Eq.Cas. 
 Abr. 346 ; Herbert v. Herbert, ibid. 66, 
 Ca. 3, Prec. Ch. 44, and Sir Paul Neal's 
 case, there cited ; Hearle v. Greenbank, 
 
 3 Atk. 695, 709; Fettiplace v. Gorges, 
 1 Ves.jun.49, 3 Bro. C. C. 8. 
 
 (g^ Gore V. Knight, 2 Vern. 3rd ed. 
 535, & n. (2), Prec. Ch. 255 ; Fowles 
 V. Countess of Dorset, 4 Vin. Abr. 131, 
 Ca. 5, 2 Eq. Cas. Abr. 149, in marg. ; 
 Gold V. Rutland, Herbert v. Herbert, and 
 Neal's case, above ; Lastly v. Lastly, 2 
 Eq.Cas. Abr. 148 ; Offley v. Offley, Prec. 
 Ch. 27 ; Willson v. Pack, ib. 295, 297 ; 
 Peacock V. Monk, 2 Ves. 190. 
 
 (h) Vandenanker v. Desbrough, 2 Vern. 
 96 ; Herbert v. Herbert, and Neal's case, 
 above. See also 5 Ves. 521. 
 
 (i) Bennet v. Davis, 2 P. W. 316; 
 Vandenanker v. Desbrough, above. 
 
 0) Kirk V. Paulin, 7 Vin. Abr. 95, 
 pi. -13,2 Eq.Cas. Abr. 115.
 
 S. III.] THE SEPARATE PROPERTY OF A WIFE. 167 
 
 riage (/c), or (luring- the coverture (/)• And a wife's pin-money, 
 made her separate estate by the gift of her husband, by means of 
 articles, or a settlement, executed previously to the marriage, and 
 her savings out of it, and property, as jewels, bought by the 
 wife with such pin-money, or separate estate, are not assets to 
 pay the debts of the husband (m). But if a husband during 
 the coverture makes a gift to his wife of personal chattels, as of 
 money, or some ornament of her person, as a bracelet ; these, 
 although given to the wife's separate use, are assets for the pay- 
 ment of the husband's debts (?^). 
 
 (/c) See Ex parte Ray, 1 Madd. Rep. 
 199. 
 
 (Z) Kirk V. Paulin, and Bennet v. 
 Davis, above. 
 
 (m) Herbert v. Herbert, Neal's case, 
 
 and Willson v. Pack, above. See also 
 Easily v. Easily, above ; and 1 Crompt. & 
 Jerv. 43. 
 
 (n) Flay v. Flay, 2 Freem. 64 ; Slan- 
 ning V. Style, 3 P. W. 334, 339.
 
 168 
 
 [CH. XI. 
 
 CHAPTER XI. 
 
 OF A RENT-CHARGE OF A WIFE; OF HER TERMS OF YEARS; 
 AND OF HER CHOSES IN ACTION. 
 
 Sec'I'. I. — Of a Rent-charge of a Wife. 
 
 II. — Of Iter Terms of Years. 
 
 III. — Of her Choses in Action. 
 
 SECTION I. 
 
 OF A RENT-CHARGE OF A WIFE. 
 
 A RENT-CHARGE payable out of real estate is an incorporeal 
 hereditament. It is property which may be inherited, or descend 
 to the heir of the owner (a). If the rent is granted for life, in 
 tail, or in fee, it is freehold property, and the grantee is seised of 
 it {h). Yet the hereditament itself must be distinguished from 
 the produce of it. For the produce, or rent become due or in 
 arrear, is a chattel, and is not freehold property (c). It appears 
 to be called a chattel real [d) ; and to be a chattel real in 
 action (e). If a woman seised of a rent-charge for life, in tail, or 
 in fee, and payable out of real estate, marries, her husband and 
 she are seised of the rent, namely the hereditament, in her right. 
 During the coverture, the husband is entitled to receive the rent, 
 that is, the produce ; but the hereditament itself he alone cannot 
 dispose of, but, like other freehold estate of the wife, it will sur- 
 
 (a)Co.Litt.6a.20a.;2Bl. Com. 20,41, 
 42 ; Gilb. on Rents, ed. 1792, p. 94, 95. 
 
 ('») Co. Liu. 162 b., 351a; 2 Atk. 
 514 ; Gilb. on Rents, 94, 98. 
 
 (o) Co. Litt. 162 b., 351a.; Gilb. on 
 
 Rents, 98 ; Salwey v. Salwey, Amb. 692, 
 2 Dick. 434. 
 
 (d) Co. Litt. 351 a, ; Amb, 693. 
 
 (e) Co. Litt. 351 a. & b. ; 2 Dick. 
 435 ; Amb. 693.
 
 S. I.] OF A RENT-CHARGE OF A WIFE. 1G9 
 
 vive to her, in case of her husband's death in her life-time (^). If 
 the wife dies leaving the rent in arrear, become due both before 
 and during the coverture ; to the arrears due before the marriage, 
 the surviving husband is entitled, not by the common law, but 
 under the statute 32 Henry VIII. c. 37, s. 3. {(/); and to the 
 arrears become due during the coverture, the husband is by the 
 common law entitled by survivorship, and without, it should 
 seem, taking out letters of administration to his wife (A). But if the 
 husband dies in the life-time of the wife, and leaving any part of 
 the rent in arrear, unreduced into his possession, the wife is 
 entitled to it by survivorship, and not the personal representa- 
 tive of the husband (?'). Of a rent-charge, the property of a 
 wife. Sir Edward Coke speaks in the following terms. — Having 
 immediately before mentioned estates for years, by statute-mer- 
 chant, statute-staple, elegit, wardships, and other " chattels real 
 in possession," he proceeds : " Chattels real, consisting merely 
 in action, the husband shall not have by the intermarriage, unless 
 he recovereth them in the life of the wife, albeit he survive the 
 wife ; as a writ of right of ward, a valore maritagii, a forfeiture 
 of marriage, and the like, whereunto the wife was entitled before 
 the marriage. But chattels real being of a mbced nature, viz. 
 partly in possession, and partly in action, which happen during 
 the coverture, the husband shall have by the intermarriage, if he 
 survive his wife, albeit he reduceth them not into possession in 
 her life-time ; but if the wife surviveth him, she shall have them. 
 As if the husband be seised of a rent-service, charge, or seek, in 
 the right of his wife, the rent become due during the coverture, 
 the wife dieth, the husband shall have the arerages ; but if the wife 
 survive the husband, she shall have them, and not the executors 
 of the husband. But if the arerages had become due before the 
 marriage, there they were merely in action before the marriage ; 
 
 (/) 2 Atk. 514. 
 
 (g-) On the application of this Statute 
 to Copyholds, see Gilb. Ten. 187, 188. 
 
 {h) Co. Liu. 162 b,, 351 a. & b. ; 2 
 Bl. Com. 434, 435 ; Sharp v. Pool, cited 
 4 Co. 51. 
 
 (i) Co. Litt. 351 a; Salwey v. Salwey, 
 Amb. 692, 2 Dick. 434. See also Broume 
 V. Dunnery, Hob. 208 ; Temple v. Tem- 
 ple, Cro. Eliz. 791 ; and Withers v. Kel' 
 sea, 1 Ch. Cas. 189.
 
 170 
 
 OF THE TERMS OF YEARS OF A WIFE. [CH. XI. 
 
 and therefore the husband should not have tliem by the common 
 law, although be survived her. But now, by the statute 32 Henry 
 VIII. c. 37, if the husband survive the wife, he shall have the 
 averages as well incurred before the marriage as after" (j). 
 
 SECTION II. 
 
 OF THE TERMS OF YEARS OF A WIFE. 
 
 1. OJ'a Legal Estate in Possession. — 2. Of an Equitable Estate in 
 Possession. — 3. Of a PossibilitT/, under an Executory Devise. 
 1. A term of years, the legal estate in possession of which a 
 married woman is possessed of, either at the time of her mar- 
 riage, or during the coverture, becomes, by the marriage {k), to 
 many purposes, the property of her husband. He is entitled, 
 during the coverture, to sell (/), mortgage (in), or surrender (?«) 
 it, and also to dispose of it without a valuable consideration, as by 
 a voluntary settlement of it (o). He may likewise grant leases out 
 of it [p) ; and even a lease made in his life-time, to commence at 
 his death, will, it appears, be valid {q). Such a term of the wife 
 
 (,/) Co. Liu. 351 a. & b. 
 
 (Ji) Sir W. Grant, speaking of a lease 
 for years, the property of a woman at the 
 time of her marriage, says, " Her husband 
 could derive no other interest in her right 
 than she had. The lease and right of 
 renewal could pass to him only in the 
 same plight and condition as she held 
 them ; and therefore subject to every 
 equity, that would attach upon her. The 
 husband, taking by marital riglit, is not 
 esteemed a purchaser for valuable con- 
 sideration. He stands precisely in the 
 place of his wife. That is laid down in 
 Fitzgerald v. l-,ord Fauconherg, Fitz-Gib. 
 207 [2 Eq. Cas. Abr. 677, Ca. 3]." 7 
 Ves. 184. 
 
 (0 Co. Litt. 46 b., 3.51a.; 2 Bl. C. 
 434. In Anon. 9 Mod. 43, husband and 
 wife being divorced a mensa et thoro, the 
 Court of Chancery granted an injunction 
 
 to restrain the husband from selling a 
 term of years, which he possessed in her 
 right. 
 
 (m) Co. Litt. 46b., 351 a.; 2 Bl. C. 
 434 ; Yong v. Radford, Hob. 3 ; Watts 
 V. Thomas, 2 P. W. 364. 
 
 (h) Co. Litt. 46b., 351 a.; 2 Bl. C. 
 434. 
 
 (o) Ibid. ; 9 Ves. 98. 
 
 (p) Co. Litt. 46 b., 351a.; Sym's 
 case, Cro. Eliz. 33 ; Steed v. Cragh, 9 
 Mod. 42, cited 6 Ves. 395; Druce v. 
 Denison, 6 Ves. 385, 394; which two 
 last cases see on an agreement by the 
 husband to lease, he dying before the 
 lease made. And farther on a lease by 
 the husband, see Loftus' case, Cro. Eliz. 
 279. 
 
 (q) Grute V. Locroft, Cro. Eliz. 287, 
 cited 1 Co. 155, Mo. 395, and 1 Rol. 
 Abr. 344, G. 13.
 
 S. JI.] OF THE TERMS OF YEARS OF A WIFE. 171 
 
 is, moreover, subject to the payment of lier husband's debts, by 
 means of a judgment against him, and execution (r); and, in case 
 of his baukruj)tcy, it belongs to the assignees (s). The husband 
 is also, it should seem, entitled to dispose of the term, by a refer- 
 ence to arbitration, and an award thereon {t). If lie is outlawed, 
 or is convicted of some offence, and such outlawry or conviction 
 will occasion the forfeiture to the Crown of his own terms of years, 
 the term of his wife will be forfeited also [u); and if he commits 
 suicide, the wife's term will, with his own goods and chattels, 
 be forfeited to the Crown (u). Notwithstanding a husband may, 
 alone, and without his wife, dispose of her term of years in her 
 life-time, in the ways mentioned, yet, during the coverture, the 
 husband and wife are both possessed of the term, in the right of 
 the wife (iv) ; and this possession of the wife is the reason, that 
 the husband cannot, unless he survives his wife, dispose of the 
 term by his will ; for when the wife's possession continues to his 
 death, it is not permitted to be divested by an act, which does 
 not take effect until afterwards (x). Also, the wife's interest in 
 the term, in case she survives her husband, is not, it appears, 
 bound by a judgment alone against the husband, where he dies 
 before execution against him (7/). And if the husband charges 
 the term, as by the grant of a rent-charge out of it, this charge 
 will not bind the wife surviving (z). If the husband survives his 
 wife, the term then becomes his own property {a) ; and he takes 
 it as a surviving joint-tenant, without taking out letters of 
 
 (r) Co. Liu. 351a.; 2 Bl. C. 434; 
 1 P. W. 258. That a mortgage term of 
 the wife may be sold to pay the husband's 
 debts, see Packer v. Wyndham, Prec. Ch. 
 4P2. See also 2 Atk. 208. 
 
 (s) 1 Cooke Bk. L. 291, and 8th ed. 
 325 ; Eden Bk. L. 2nd ed. 245. 
 
 (t) Anon. 2 Dyer, 183 a., Ca. 57, & n. 
 in marg. 
 
 (w) Co. Litt. 351 a. ; 2 Bl. C. 434 ; 3 
 Bl. C. 284 ; 4 Bl. C. 387. 
 
 (v) Hales V. Petit, Plowd. 257, cited 
 9 Co. 129 b., and 1 Hale P. C. 413. 
 
 (((•) Plowd. 418. 
 
 (x) Plowd. 418; Co. Lilt. 351 a; 2 
 Bl. C. 434 ; 1 Rol. Abr. 344, G. 4. 
 
 (y) 1 Rol. Abr. 346, I. 4 ; 1 Prest. 
 Abstr. 343. 
 
 (s) Fitzh. Abr. tit. Charge, 1 ; Bro. 
 Abr. tit. Charge, 41 ; 1 Rol. Abr. 344, 
 G. 5, 346, I. 2 ; Co. Litt. 351 a. ; Plowd. 
 418. See also Lilt. S. 286. 
 
 (a) Co. Litt. 46 b., 351a.; 2 Bl. C. 
 434 ; Yong v. Radford, Hob. 3 ; Moody 
 \. Matthews, 7 Ves. 174, 183, 184; 
 which case see, on a renewable lease, 
 charged by the wife before marriage with 
 an annuity.
 
 172 OF THE TERMS OF YEARS OF A WIFE. [CH. XI. 
 
 administration to his wife (b). If the husband dies in the life- 
 time of the wdfe, then the whole term, if not disposed of in his 
 life-time, or so much of it as is not then disposed of, survives 
 to the wife, and does not belong to the personal representatives 
 of the husband (c). 
 
 2. When a married woman is, either at the time of her mar- 
 riage, or during the coverture, possessed of an equitable estate of 
 a term of years in gross {d) in possession, the legal estate being in a 
 trustee, and such equitable estate not being on her marriage, or 
 during the coverture, settled to her separate use (e), her husband is 
 entitled to sell or mortgage such equitable estate, and to grant leases 
 of the land {/). And if he survives his wife, the trust becomes, it 
 should seem, in equity, his own property, as survivor, and with- 
 out taking out administration to the wife (g). But, at law, it 
 appears the administrator of the wife is entitled to the trust {h). 
 
 3. When a married woman, at the time of her marriage, or 
 during the coverture, is, by means of an executory devise, pos- 
 sessed of a vested legal interest or possibility in a term of years, 
 the term being limited to her expectant on the determination of 
 a preceding devise for life of the term, the husband cannot at laiv, 
 even for a valuable consideration, assign this term of the wife, 
 while the devise to her is still executory, the term not being yet 
 
 (b) Wrotsley v. Adams, 1 Rol. Abr,345, 
 H. 8 ; Pale v. Micheli, 2 Eq. Cas. Abr. 
 138 ; Barnwell, v. Russell, Gilb. Eq. Rep. 
 233, 2 Eq. Cas. Abr. 138; — Plowd. 
 Quaer. Qu. 265; 2 Bl. C. 435. See 
 Doe V. Folgrean, 1 Hen. Bl. 535. 
 
 (c) Co. Litt. 46 b., 351 a. ; 2 Bl. C. 
 434 ; Sym's case, Cro. Eliz. 33. 
 
 (d) On the trust of a term, which at- 
 tends the inheritance of the wife, see Best 
 V. Stamford, 2 Freem. 288, Free. Ch. 
 252, 1 Salk. 154. 
 
 (e) Doyly v. PerfuU, or Persall, 1 Ch. 
 Cas. 225, 2 Freem. 133; Ano7i. March 
 Rep. 88, Ca. 141 ; Bates v. Dandy, 2 
 Atk. 208 1 Ch. Cas. 266, 1 Vern. 7. 
 
 (/) Bullock V. Kvight, 1 Ch. Cas. 
 265 ; Sir Edward Turner's case, 1 Vern. 
 
 7, cited 2 Atk. 214, and reversing the 
 decree in Turner v. Bnimfield, 1 Ch. Cas. 
 307; Pitt y.Uunl, 1 Vern. 18, 2 Ch. 
 Cas. 73, 2 Freem. 78 ; Tudor v. Samyne, 
 2 Vern. 270, cited 2 Atk. 421; Sanders 
 V. Page, 3 Ch. Rep. 223 ; Packer v. 
 Wyndham, Free. Ch. 412 ; Boupe v. At- 
 kinson, Bunb. 162; Bates v. Dandy, 2 
 Atk. 208 : Incledon v. Korthcnte, 3 Atk. 
 430, 435. See also Lady Cronnveli's 
 case, Hob 3, in marg. 
 
 (o) Pale V. Micheli, 2 Eq. Cas. Abr. 
 138, Ca. 4. 
 
 (/)) Witham's case, 4 Inst. 87, Co. 
 Lilt. 351 a. ; Hunt v. Baker, 2 Freem. 
 62. See also Clerk v. Rutland, Lane, 
 113, and Denie's case, there cited.
 
 S. II.] OF THE TERMS OF YEAIIS OF A WIFE. 173 
 
 fallen into possession (»). But it is a distinction, tliat, although 
 he carniot at law assign such a term of the wife, he may, both at 
 law and in equity, release it, as to the preceding tenant for life of 
 the term (/). The interest of the wife in a term so devised to 
 her, by an executory devise expectant on a preceding limitation 
 of the term for life, is technically called a possibility ; because 
 the first devisee is for his life possessed of the whole term ; and 
 as, in contemplation of law, a life estate is of greater importance 
 than a term of years, however long, so it is presumed that the 
 devisee for life will outlive the number of years, small or great, 
 of the term ; which presumption makes it possible only that the 
 interest bequeathed over will ever fall into possession, and during 
 the life of the first devisee, therefore, the executory devisee is 
 possessed of a possibility only {k). It is clear, that a possibility 
 of a term of years, where such possibility is possessed by an ex- 
 ecutory devisee, in his own right, is, in equity, devisable (Z), 
 and also, for a valuable consideration, assignable by deed (m). 
 With respect to an assignment by a husband of a possibility 
 possessed in the right of his wife. Lord Hardwicke has said, " A 
 husband cannot assign in law a possibility of the wife, nor a pos- 
 sibility of his own, but this Court [of Chancery] will, notwith- 
 standing, support such an assignment for a valuable considera- 
 tion" [n). The same learned judge also, on another occasion, 
 stated, that, in equity, " the husband may assign the wife's chose 
 in action, or a possibility that the wife is entitled to, as well as 
 her term, so that it be not voluntary, but for a valuable considera- 
 
 (i) Carter's case, cited 4 Co. 66 b., 
 and 10 Co. 47 b., 48 a. ; Lampet's case, 
 10 Co. 46b., 47b., 6th question; Thomas 
 V. Freeman, 2 Vern. 563. See also 1 P. 
 W. 574. 
 
 Cj) Lampet's case, 10 Co. 46 b., 48 a., 
 48 b. ; Lampit v. Starkey, S. C, 2 
 Brownl. & G. 172; Thomas v. Freeman, 
 2 Vern. 563. See also 1 Russ. Rep, 50, 
 
 (k) 4 Co. 66 b.; 10 Co. 47 b.; 1 P. 
 W. 574 ; 9 Mod. 102 ; Co. Litt. 351 a. 
 
 (I) Cole V. Moore, Mo. 806, and 
 Curson v. Karvile, there cited ; Wind v. 
 
 Jekyl, 1 P. W. 572. See also 1 Ch. 
 Cas. 8. And, generally, on a devise 
 of a possibility coupled with an in- 
 terest, of which nature is the pos- 
 sibility in a term of years devised by an 
 executory devise, see Roe v. Jones, 1 
 Hen. Bl. 30, and Jones v. Roe, in error, 
 3 D. & E. 88, cited 8 East, 567, and 2 
 M. & S. 170. 
 
 (m) Theobalds v. Duffoy, 9 Mod. 101. 
 See Thomas v. Freeman, 2 Vern. 563. 
 
 (n) 1 Atk. 280.
 
 174 OF CIIOSES IN ACTION OF A WIFE. [CII. XI. 
 
 tion" {(>). These opinions appear to be authorities (jt;), tlmt, 
 in equity, a husband may, for a valuable consideration, assign 
 a term of years devised to his wife by an executory devise, and 
 that this assignment will be binding on the wife, if the possibility 
 falls into possession during the coverture. But such assignment 
 will not, perhaps, be binding on the wife, if she survives her 
 husband, who dies in the life-time of the tenant for life, and, 
 consequently, before the possibility devised is fallen into posses- 
 sion (q). 
 
 SECTION III. 
 
 OF CHOSES IN ACTION OF A WIFE. 
 
 Personal chattels consist of chattels in possessioji, and chattels 
 in action. A chattel of the latter kind is technically called a 
 chose in action; and is so denominated, because the chose, or 
 thing so named, is, neither really nor constructively, in the pos- 
 session of the owner of it, but is in the possession of some one 
 else, from whom the owner is entitled to recover it, or, as it is 
 said, to reduce it into possession, by an action at law, or suit in 
 equity (r). 
 
 Two sorts of choses in action are, — one which may be called 
 a present chose in action, since it gives a present right of ac- 
 tion (s); and another, which is called a future (i), or rever- 
 sionary (?/), chose in action. The former may by action or suit 
 be, at the present time, reduced into possession ; the latter can- 
 not be so reduced into possession, until some future period (u). 
 
 In the numberof chattels, that have been present choses in action, 
 maybe reckoned, stock in the public funds [w), in a person's own 
 
 (o) 2 Atk. 208. See also ib. 551. 
 
 (p) On the same opinions see, however, 
 3 Russ. 71— 83. 
 
 ((/) See Theobalds v. Duffoy, 9 Mod. 
 102, cited 1 Ves. 20, 2 Atk. 208, 3 Atk. 
 533, and 3 Huss. 85 ; and Homier v. 
 Morton, 3 Russ. 69, 85, 86. See like- 
 wise 1 Russ. 50, 51. 
 
 (r) 3 Ves. 469. 
 
 (s) 1 Russ. 44, 45, 67. 
 
 (0 1 Russ, 50, 51. 
 
 (it) 3 Russ. 68. 
 
 (ii) 1 Russ. 59, 60 ; 3 Russ. 69, 86. 
 
 (w) 1 Ves. jun. 198; 5 Price, 264, 
 266 ; 1 Ball & B. 389, 390. This 
 occasion may be taken to notice the
 
 S. III.] or CHOSES IN ACTION OF A WIFE. 175 
 
 name (x), or in the name of a trustee (?/) ; a debt (z), as, money 
 due on a mortgage (a), bond (i), bill of exchange or promissory- 
 
 general nature of a sum of government 
 stock. A person who owns a share of 
 such stock, as 100/. 3 per cents, does not 
 own a sum of money, which, although 
 not in his own possession, somewhere ex- 
 ists, and is out at interest, but a nominal 
 sum only, existing no where, but the pro- 
 prietorship of which entitles the owner to 
 receive an annuity, perpetual or limited 
 according to the nature of the fund, which 
 annuity is subject to redemption, and 
 such proprietor is entitled, by selling the 
 annuity, to turn his nominal sum of stock 
 into real money. (4 Ves. 751 ; 9Ves. 177 ; 
 13 Ves. 45; 5 Price, 262, 263; The 
 King V. Parish of St. John, Norwich, 6 
 East, 182.) Sir R. P. Arden has thus ex- 
 pressed himself on the subject : — "There 
 is a very untechnical expression used 
 with regard to stock. There is literally 
 no such thing as 100/. stock. The 3 per 
 cents are only perpetual annuities granted 
 for ever, redeemable by the public upon 
 the payment of a certain sum of money." 
 (4 Ves. 751.) And where a person be- 
 queathed to his wife " 200/. per year, 
 being part of the monies I now have in 
 bank security", Sir VV. Grant said, " The 
 description of the subject of this bequest, 
 ' part of the monies I now have in bank 
 security,' is the correct mode of giving the 
 absolute property in stock; for, strictly, 
 the proprietor of stock has an annuity 
 only, and no capital." (Rowlings v. 
 Jennings, 13 Ves. 39, 45.) And in a 
 case where it was held that stock was 
 not included in the words " money out 
 at interest," used in a particular sta- 
 tute. Lord Ellenborough stated — " Moneq 
 out at interest, however the lender may 
 stipulate not to call for the principal for a 
 given period, is still a loan of money, 
 with forbearance for a certain time. It 
 implies that the principal is to be repaid 
 at some time or other, when the lender 
 
 will be entitled to receive it as money; 
 and not a substitute for the principal in a 
 mere annuity. But with respect to stock, 
 the payment of the principal can never 
 be compelled. All that the government 
 engage for is, a perpetual annuity, re- 
 deemable at their own will and pleasure. 
 Can we say, that stock is money out at 
 interest ? Money out at interest must 
 mean that which is capable of being re- 
 called at some time or other. Is that at 
 all applicable to the funds, where the 
 whole principal money is sunk in an an- 
 nuity, and cannot be recalled, thougli in 
 this stock parliament have reserved a 
 power of redemption V (6 East, 186.) 
 An action at law, in which stock is sued 
 for as money, cannot be sustained; as 
 where the counts of the declaration are, 
 for 2,000/. lent and advanced, 2,000/. 
 had and received, &c. (Nightingal.l v. 
 Devisme, 5 Burr. 2589, 2 W. Bl. 684.) 
 Stock is a chose in action, which cannot, 
 to pay creditors, be attached by the pro- 
 cess of the Court of Cliancery. (Durulas v. 
 Dutens, 1 Ves. jun. 19G, 198, cited 1 Ball 
 & B. 389, and 2 Ball & B. 233 ; Cuil.laud 
 v. Estwick, 2 Anstr. 381 ; Hidery. Kidder, 
 lOVes. 360, 368, 369; Bank of England v. 
 Lunn, 15 Ves. 569; Guy v. Pearkes, 18 
 Ves.196 ; Cockrane v. Chambers, Amb. ed. 
 Blunt, 79 n. See Taylor v. Jones, 2 Atk. 
 600, cited 10 Ves. 369 ; Horn v. Horn, 
 Amb. 79 ; and King v. Dupine, 2 Atk. 
 603, ed. Sand. n. (2).) 
 
 (.r) Wildman v. Wildman, 9 Ves. 174. 
 
 (ly) Becket v. Becket, 1 Dick. 340 ; 
 Langham v. Nenny, 3 Ves. 467. 
 
 (:) Miles' case, 1 Mod. 179. 
 
 (a) Burnett v. Kinnaston, 2 Vern. 
 40l,Prec.Ch.ll8. 
 
 (b) Huntley v. Griffith, Mo. 452 ; 
 Liiter V. Lister, 2 Vern. 68 ; Howell v. 
 Maine, 3 Lev. 403, cited 2 M. & S. 396, 
 and 2 Madd. Rep. 136, n.
 
 176 OF CHOSES IN ACTION OF A WIFE. [CH. XI. 
 
 note(c); arrears of a jointure charged on land (t?) ; a portion 
 payable out of land (r) ; a legacy (f) ; a residue bequeathed (ff) ; 
 a share of an intestate's estate (A); a share of an intestate's 
 estate paid into the Court of Chancery (i) ; an orphanage part by 
 the custom of London (j) ; damages in an action of trespass {k). 
 
 Among future choses in action, reversionary or contingent, 
 may be enumerated, — a reversionary interest in money, or stock, 
 expectant on a preceding life estate, limited of it (/) ; a legacy 
 bequeathed to A., when she shall attain the age of twenty- 
 one (m) ; a portion payable to A., on the contingency of her sur- 
 viving her father (w), or mother (o) ; a legacy to A., on the 
 contingency of her surviving her mother (p). 
 
 Where, at the time of her marriage, or during the coverture, 
 a wife is entitled to a present chose in action, if this chose in 
 action is, during the coverture, either really reduced into the 
 husband's possession, or virtually so, as by receipt by a third 
 party of a legacy or debt, under a power of attorney from the 
 husband and wife, or from the husband alone, to receive it; liere, 
 if the wife dies in the life-time of the husband, then, after his 
 death, his executor or administrator is entitled to the money (q). 
 And if such a present chose in action becomes, during the 
 coverture, not, perhaps, properly speaking, a chose in possession. 
 
 (c) Holloway v. Lightbourne, 2 Madd. 
 135, n.; Lightbourne v. Holyday, S. C, 
 
 2 Eq. Cas. Abr. 1 ; Hodges v. Beverley, 
 Bunb. 188 ; Connor v. Martin, cited 
 
 3 Wils. 5; Nash v. Kash, 2 Madd. 
 133. See also M'Neilage v. Holloway, 
 1 Barn. & Aid. 218. 
 
 (d) Lord Carteret v. Paichnl, 3 P. W. 
 197 ; Salwey v. ^alwey, Arab. 692, 2 
 Dick. 434. 
 
 (e) Hurst v. Goddard, 1 Ch. Cas. 169; 
 Incledon v. Northcote, 3 Atk. 430. 
 
 (/) Huntley v. Griffith, Mo. 452; 
 Clerke v. Knight, Cas. T. Finch, 91. 
 
 (g) Grosvenor v. Lane, 2 Atk. 180; 
 Oglander v. Boston, 1 Vern. 396. 
 
 (ft) Squib V. Wyn, 1 P. W. 378; 
 Wildman v. Wildman, 9 Ves. 174, 177. 
 
 (i) Johnson v. Johnson, 1 Jac. & W. 
 472, 475. 
 
 (j) Hinlon V. Scot, Mos. 336. 
 
 (k) Milner v. Milnes, 3 Durnf. & E. 
 627, 629, 631. 
 
 (I) Gayner, or Gayer, v. Wilkinson, 
 2 Dick. 491 ; 1 Bro. C. C. 50 n. ; Dus- 
 ivell V. Earle, 12 Ves. 473; Hormhy 
 V. Lee, 2 Madd. 16 ; Purdeiv v. Jackson, 
 1 Russ. 1 ; Honnerv. Morton, 3 lluss. 65. 
 
 (m) Brotherow v. Hood, Com. 725. 
 
 («) Bash, or Bush, v. Dalway, 3 Atk. 
 530, 1 Ves. 19. 
 
 (o) Hornsby v. Lee, 2 Madd. 16. 
 
 fp) Grey v. Kentish, 1 Atk. 280, and 
 ed. Sand. n. (2). 
 
 (9) Huntley v, Griffith,MoA52, 1 Rol. 
 Abr 342, D.,5, 6,7.
 
 S. III.] OF CHOSES IN ACTION OF A WIFE. 177 
 
 but a chose vested in the husband, by means of a decree in equity, 
 decreeing payment to the husband and wife, tliey being either 
 plaintiffs or defendants in the suit; here, if the wife afterwards 
 dies in the life-time of the husband, the money decreed to be 
 paid belongs to the husband, by survivorship (?■). And in the 
 case of such a joint decree, decreeing payment to the liusband 
 and wife, the money will, it appears, survive to the wife, if, 
 before payment, the husband dies in her life-time {s). And 
 when a present chose in action becomes, during the coverture, a 
 chose vested in the husband, by means of an arbitrator's a\^ard 
 of payment to him (/) ; or by a decree in equity, to pay to the 
 husband alone in the right of his wife {u) ; such chose in action, 
 so become vested, is the husband's own property, and, in the case 
 of his death in the life-time of his wife, will not survive to her, but 
 will belong to his personal representative. 
 
 At law, a husband's interest in the choses in action of his wife 
 is, his right to reduce them into his possession (?') ; but when the 
 chattel is a present chose in action, then, with reference to his 
 power to dispose of it for a valuable consideration, his interest 
 extends farther in a Court of Equity (?«), on the principle that what 
 is agreed to be done is, in this Court, considered as done(.r). 
 
 It appears to be clear, that if, for a valuable consideration, a 
 husband assigns a present chose in action of his wife, this assign- 
 ment is, in a Court of Equity, valid against the wife, notwith- 
 standing the husband dies in her life-time (y), and before the 
 chose in action is reduced into possession {z). But a wife's 
 
 ('/•) Forbes v. Phipps, 1 Eden, 502. 
 
 (s) Nanneyv. Martin, 1 Ch. Rep. 233, 
 1 Ch. Cas. 27, 2 Freem. 172, cited 2 Sim. 
 177. See also Mos. 234, and M'Clel. & 
 Y.57. 
 
 (t) Oglander v. Baston, 1 Vern. 396, 
 cited 1 Eden, 507. 
 
 (w) Heygate v. Annesley, 3 Bro. C. C. 
 362. 
 
 (v) 9 Ves,. 99 ; 1 Huss. 25, 44, 57, 
 66 ; 3 Russ. 68. 
 
 (w) 9 Ves. 99 ; 1 Russ. 45, 59 ; 
 3 Russ. 68, 69, 85, 86. 
 
 (a) 3 Russ. 68, 69; 3 Atk. 524; 
 1 Ves. 20, 21. 
 
 ( u) Lord Carteret v. Paschal, 3 P. W. 
 197 ; PaschalL v. Thurston, S. C, 2 Bro, 
 P. C. ed Toml. 10. cited 9 Ves. 99; 
 Bates V. Dandy, 2 Atk. 207, and also 
 stated 1 Russ. 33. n, and 3 Russ, 72, n ; 
 Basil, or Bush, v. Daiwaii, 3 Atk. 530, 
 1 Ves. 19 ; Johnson v. Johnsoti, 1 Jac. 
 & W. 472, 476. 
 
 (:) See, besides the authorities in the 
 last note. Earl of Salisbury v, Newton, 1 
 Ed<=n, 370, cited 4 Ves. 529.
 
 178 ' OF CHOSES iN ACTION OF A WIFE. [CH. XI. 
 
 present chose in action will, unless reduced into possession in 
 the husband's life-time, survive to the wife, in the event of his 
 death in her life-time, notwithstanding the husband's voluntary 
 assignment of it («). 
 
 At law, a wife's present chose in action survives to her, if her 
 husband dies in her life-time, and before he has reduced it into 
 possession (b). And, in eqnity, a wife's present chose in action 
 survives, by a general rule, to her, in the event of her husband's 
 death in her life-time, in cases where this right of survivorship is not 
 defeated by an assignment, or other act, capable of preventing it (c). 
 And also it may, in equity, survive to her, notwithstanding some 
 act done by the husband, expressive of his title to receive it ; as, 
 notwithstanding — a voluntary assignment by the husband (c?) : proof 
 by him, under a commission of bankruptcy, of a debt due on bond 
 to the wife, the husband dying before a dividend is made (e) : 
 an action brought by husband and wife, for a debt due to the 
 wife before marriage, and judgment for husband and wife, the 
 husband, however, dying before execution sued out {J") : an agree- 
 ment between the husband and an executrix, to appropriate a 
 sum of money, due on mortgage to the testatrix, to pay a legacy 
 of the same amount bequeathed to the wife, and subsequent 
 receipts by the husband of the interest of the legacy, as of a 
 
 (a) Burnett v. Kiii.as.ton, 2 Vern. 401, 
 Prec. Ch. 118, 2 Freem. 239, cited 9 Ves. 
 99 ; Becket v. Becket, 1 Dick. 340. See 
 also 2 Atk. 208. On a husband's release 
 of a chose in action of his wife, see Bro. 
 Abr. tit. Bar. ^ Fern 24, 44, 80 ; 2 
 Kol. Rep. 134 ; 2 Freem. 241 ; 2 Vern, 
 191 ; Cas. T. Talb. 170 ; 2 Ves. 678 ; 2 
 Atk. 208 ; 1 Salk. 326 ; 1 Russ. 48—51 ; 
 3 Russ. 87, 88 ; and, farther, Salkeld 
 V. Vernon, 1 Eden, 64. 
 
 (/-) Bio. Abr. tit. Bur. 8^ Fern. 44 ; Co. 
 Lit!. 351, b; 2 Vern. 69; 2 Freem. 102 ; 
 1 Russ. 25 ; 3 Russ. 68. 
 
 (r) Pheasant v. Pheasant, 2 Ventr. 
 340, 1 Ch. Cas. 181 ; Twisden v. Wise, 
 
 1 V'^ern. 161 ; Lister v. Lister, 2 Vern. 
 68, 2 Freem. 1^2; Houman v. Corie, 
 
 2 Vern. 190 ; Jiuihiurd v. Neirin, Prec. 
 
 Ch. 209, 2 Eq. Cas. Abr. 137, in marg. ; 
 Rudyerd v. Nerne, S. C, 2 Freem. 262 ; 
 Bates V. Dandy, 2 Atk. 207, 1 Russ. 33, 
 n., 3 Russ. 72, n. ; Langham v. Nenny, 
 3 Ves. 467; Macaulay v. Philips, 4 Ves. 
 15; Mitford v. Mitford, 9 Ves. 87; 
 Wildman v. Wildman, 9 Ves. 174 ; 
 Baker v. Hall, 12 Ves. 497 ; Wall v. 
 Tomlinson, 16 Ves. 413; Nashv, Nash, 
 2 Madd. 133. 
 
 (rf) Burnett v. Kinaston, 2 Vern. 401, 
 Prec. Ch. 118, cited 9 Ves. 99 ; Garforth 
 V. Bradley, 2 Ves. 675, 678 ; Becket v. 
 Becket, 1 Dick. 340. 
 
 (e) Anon. 2 Vern. 707. 
 
 (/) 1 Ch. Rep. 235 ; 2 Freem. 172 : 
 1 Vern. 396, cited 1 Eden Rep. 507; 
 Mos. 234, 390 ; 2 P. W. 497 ; Prec. Ch. 
 415 ; 3 Atk. 21 ; M'Ciel. & Y. 56, 57.
 
 S. III.] OF CHOSES IN ACTION OF A WIFE. 179 
 
 sum secured by the mortgage (//) : a bill in equity filed by the 
 husband and wife, making a demand in right of the wife (A) : a 
 bill in equity filed against the husband and wife, and a decree 
 that a third party bring a sum of money before a master, to be 
 placed out at interest for the benefit of the parties, to whom the 
 same should appear to belong, and payment to the master accord- 
 ingly (?) : a bill in equity filed by the husband for money bequeathed 
 to the wife, and a decree to lay out the money in the funds for the 
 benefit of the husband and wife, subject to the farther directions 
 of the Court (j) : a petition presented by husband and wife, 
 reference to the Master to inquire what was due to the petitioners, 
 report of principal and interest, order for payment to the peti- 
 tioners of the interest, and payment to the husband accordingly (k) : 
 bill by husband and wife in the Court of Exchequer, for a legacy 
 bequeathed to the wife, and a decree directing the deputy remem- 
 brancer to take an account of the testator's debts and legacies, 
 and to state what might remain unpaid, and to compute interest 
 thereon ; and death of the husband, before any farther proceedings 
 had in the suit (/). 
 
 When a wife is possessed of a present chose in action, her 
 husband, by a general rule, becomes entitled to it, in the event 
 of her death in his life-time. But he takes it, not as survivor, 
 but as 'the person entitled to administer to her (m). As such 
 administrator, he is liable to pay his wife's debts {n) ; but he 
 himself, and his personal representatives, will be entitled to the 
 surplus remaining (o). And to this surplus, his personal repre- 
 sentatives wall, in equity, be entitled, in case of the husband's 
 death, after he administered to his wife, and before the chose in 
 
 (^g) Blount V. Bestland, 5 Ves. 515. 
 
 (h) Hervey v. Ashton, Cas. T. Talb. 
 212, 217 ; Anon. 3 Atk. 726, 
 
 (i) Nightingale v. Lockman. JMos. 230, 
 390. 
 
 (j) Bond V. Simmons, 3 Atk. 20, cited 
 4 Ves. 18. 
 
 (k) More V. Woulfe, 2 Ball & B. 424. 
 
 (i) Adams v. Lavender, M'Clel. & Y. 
 41. 
 
 (m) Hurst V. Goddard, I Ch. Cas. 
 
 N 
 
 169 ; Clerke v. Knight, Cas. T. Finch^ 
 91; Sqnib v. Wyn, 1 P. W. 378, and 
 5th ed. n. (1); Day v. Pargrave, or 
 Padrone, cited 2 M. & S. 396, and stated 
 ibid. n. (b.)— 2 Freem. 241 ; 2 Bl. Com. 
 434 ; Stat. 29 C. II. c. 3, s. 25. See 
 also Anon. 2 Rol. Rep. 134 ; Gary v. 
 Taylor, 2 Vern. 302 ; and Plowd. Quar. 
 Qu. 265. 
 
 («) I P. W. 380 ; 1 Eden Rep. 507. 
 
 (o) 1 P. W. 380.
 
 180 OF CHO«ES IN ACTION OF A WIFE. [CH. XI. 
 
 action was reduced into possession {p), or even in case of the 
 husband's death before he took out administration to his wife {q). 
 
 When a married woman is possessed of a contingent chose in 
 action, it will by a general rule survive to her, if, while it conti- 
 nues to be contingent, her husband dies in her life-time (r). If 
 it is a contingent reversionary interest, expectant on an estate for 
 life, and, during the contingency, the husband, for a valuable 
 consideration, makes an assignment of it, and afterwards, in the 
 life-time of the husband, such interest becomes vested, yet if he 
 dies without any farther act done to reduce the chose in action 
 into possession, his wife will be entitled to it by survivorship {s). 
 And although the wife's chose in action is a vested reversionary 
 interest, which her husband, for a valuable consideration, assigns, 
 yet, if he dies in her life-time, and while such interest is rever- 
 sionary, it will survive to the wife, notwithstanding that assign- 
 ment {t). 
 
 It remains to mention, that, by means of a settlement made on 
 a wife previously to her marriage, her husband may contract to 
 purchase her choses in action, which either are her property 
 at the time of the marriage (?^), or become her property 
 during the coverture [v). But, according to the modern doc- 
 trine, a mere settlement does not constitute such a contract [w) ; 
 and, to establish an agreement of this kind, it is essential 
 
 (p) Humphrey v. Bullen, 1 Atk. 458, 
 1 West Cas. T. Hardw. 66. 
 
 (q) Cart v. Rees, stated 1 P. W. 381 ; 
 Lady Aiscough's case, stated ibid. 382; 
 Bacon v. Bryant, 11 Vin. Abr. 88, Ca. 
 25, 2 Eq. Cas. Abr. 425, Ca. 15 ; Elliot 
 V. Collier, 1 Ves. 15, 3 Alk. 526, 1 Wils. 
 168. See Amhurst v. Selby, 11 Vin. 
 Abr. 377, Ca. 8, 2 Eq. Cas. Abr. 456, 
 Ca. 1. 
 
 (r) Brotherow v. Hood, Com. 725 ; 
 Stamper v. Barker, 5 Madd. 157. 
 
 (s) Hornsby v. Lee, 2 Madd. 16, cited 
 3 Russ. 70. See 3 Russ. 69 and 86. 
 
 (t) Purdew v. Jackson, 1 Russ. 1 ; 
 Hoiiner v. Morton, 3 Russ. 65 ; Watson 
 V. Dennis, ibid. 90. 
 
 (u) Meredith v. Wynn, Prec. Ch. 312, 
 Giib. Eq. Rep. 70; Medith v. Wynn, 
 S. C, 1 Eq. Cas. Abr. 70 ; Blois v. Vis- 
 countess Hereford, 2 Vern. 501 ; Norbone's 
 case, S. C, 2 Freem. 282 ; Adams v. Cole, 
 Cas. T. Talb. 168 ; Sykes v. Meynal, 1 
 Dick. 368, (in which last case, it may be 
 mentioned, the settlement was made after 
 marriage) ; Wharton v. Wharton, 2 Keny. 
 part 2, p. 99. See also Cleland v. Cle- 
 Uind, Prec. Ch. 63. 
 
 (d) (iarforth v. Bradley, 2 Ves. 677 ; 
 Miiford V. Mitford, 9 Ves. 87, 95. 96 ; 
 Carr v. Taylor, 10 Ves. 579. 
 
 (w) Heaton v. Hassell, 4 Vin. Abr. 40, 
 in marg., 2 Eq. Cas. Abr. 467 ; Garforth 
 V. Bradley, 2 Ves. 677, cited 9 Ves. 96.
 
 S. III.] OF CHOSES IN ACTION OF A VVIl-E. 181 
 
 that " it be expressly so agreed between the parties, and that 
 appears to be part of the consideration of the settlement" (x). 
 The rule, says Sir W. Grant, is established, that to make the 
 husband a purchaser of the whole fortune of his wife, " the set- 
 tlement must either express, or clearly import, that intention " (y). 
 Where such a purchase is effected, the chose in action of the 
 wife will not survive to her, but will belong to the personal repre- 
 sentatives of her husband, in the event of his death before it is 
 reduced into his possession {z). Several cases occur, in which it 
 has been held that such a purchase was not effected (a) ; and a 
 consequence of this interpretation has been, that the chose in 
 action survived to the wife, on the death of her husband in her 
 life-time (Z»). 
 
 (x) 4 Vin. Abr. 40, in raarg. ; 2 Eq. 
 Cas. Abr. 467, in marg. 
 
 {y) 10 Ves. 579. 
 
 (2) Meredith v. Wynn ; Blois v. Vis- 
 countess Hereford ; Norbone's case, S. C. ; 
 Adams v. Cole ; Syhes v. Meynall ; and 
 Wharton v. Wharton; above. 
 
 (a) Burden v. Dean, 2 Ves. jun., 607 ; 
 Carry. Taylor, 10 Ves. 574, 579. 
 
 (6) Lister v. Lister, 2 Vern. 68, 2 
 
 Freem. 102 ; Rudyerd v. Nerne, 2 Freem. 
 262 ; Rudyard v. Neirin, S. C, Prec. 
 Ch. 209, 2 Eq. Cas. Abr, 137, in marg, ; 
 Heaton v. Hassell, 4 Vin. Abr. 40, in 
 marg., 2 Eq. Cas. Abr. 467 ; Garforth 
 V. Bradley, 2 Ves. 675 ; Salwey v. Sal- 
 wey, Arab. 692, 2 Dick. 434; Drucev. 
 Denison, 6 Ves. 385, 395 ; Mitford v. 
 Mitford, 9 Ves. 87, 95, 96.
 
 182 
 
 [CH. XII. 
 
 CHAPTER XII. 
 
 OF CERTAIN PROPERTY HELD TO BE PERSONAL ESTATE OF 
 A PERSON DECEASED ; AND OF RENT, EMBLEMENTS, 
 
 AND 
 
 MORTGAGE-MONEY. 
 
 Sect. I. — Of certain Property held to he personal Estate of a 
 Person deceased. 
 II.— Of Rent. 
 I II. — Of Emblements. 
 IV. — Of Mort(j age- Money. 
 
 SECTION I. 
 
 OF CERTAIN PROPERTY HELD TO BE PERSONAL ESTATE OF A 
 PERSON DECEASED. 
 
 Generally speaking, all personal property, which devolves to 
 an executor, is assets in his hands (a). Several cases may, there- 
 fore, here be referred to, in which property particularly circum- 
 stanced has by or in a Court of Law (5), and, in other instances. 
 
 (a) 6 Co. 47 b. ; 3 Atk. 467 ; 1 Russ. 
 685, 597 ; 2 Bl. Com, 510. An excep- 
 tion is, an executor's right to present to a 
 church ; in a case, where a person, seised 
 in fee of an advowson, dies, and, the 
 church being void before and at his death 
 the presentation Falls, as a chattel, to his 
 executor. Bro. Abr. tit. Present, al Es 
 glise, 34 ; Co. Litt. 388 a. ; 7 B. & C 
 147,180, 185, 195. 
 
 (fo) Harvey v. Harvey, 2 Stra. 1141 
 An m. case on a cyder mill, cited in Law- 
 tnii V. Lawton, 3 Atk. 14, 16, and in Law- 
 to'i V. Salmon, 1 Hen. Bl. 259, n. ; Lawton 
 V. Lawton, S. C, 3 Atk. ed. Sand. 16, n., 
 and Amb. ed. Blunt, 114n.; Bearpark 
 V. Hutchinson, 7 Bingh. 178. " Wood 
 felled and severed from the ground " is, 
 as between heir at law and executor, per- 
 sonal estate. And so are trees bought 
 by a person, who dies before they are 
 felled. (Wentw. Off. Ex. ch. 5, 14th ed. 
 
 p. 142, 148; God. Orph. Leg. part 2, ch. 
 13, 2nd ed. 122, 123, 124, 125). " Dung 
 may be a chattel, and it may not be a 
 chattel ; for a heap of dung is a chattel, 
 but if it be spread upon the land, it is 
 not '' : By Roll, J., in Carver, or Yer- 
 worth, V. Pierce, Style, 66, Aleyn, 32. 
 " Pictures and glasses, generally speak- 
 ing, are part of the personal estate, yet if 
 put up instead of wainscot, or where 
 otherwise wainscot would have been put, 
 they shall go to the heir." Cave v. Cave, 
 2 Vern. 508. On questions between 
 executor and heir on the title to particu- 
 lar kinds of property, see, farther, Swinb. 
 on Wills, part 6, sect. 7 ; Wentw. Off. 
 Ex. ch. 5; God. Orph. Leg. part 2, 
 ch. 13; and 11 Vin. Abr. tit. Executors, 
 U. Z. and Z. 2 ; and on similar ques- 
 tions relative to fixtures, and certain 
 other descriptions of property, see Amos 
 and Fer. on Fixtures, ch. 4.
 
 S. I.] OF CERTAIN PROPERTY, &C. 18-3 
 
 by or ill a Court of Equity (c), been held to be personal estate of 
 a person deceased. In a Court of Equity, a lease of a testator, 
 renewed by his executor, has been determined to be part of the tes- 
 tator's personal estate {d). And the same Court has held to be per- 
 sonal estate of a person deceased, real estate by a deed of partner- 
 ship converted into personalty (e) : also real estate contracted to be 
 sold ; a binding contract to sell having, in a Court of Equity, the 
 force to convert the real estate into personalty, although the party, 
 who sells, dies before the contract is carried into execution (/") ; 
 in cases, that is, where one or other of the contracting parties is 
 entitled in a (^ourt of Equity to carry the contract into execu- 
 tion ; in other words, where there is " an effectual agreement 
 binding on all parties, so as, under all the circumstances, it ought 
 to be carried into execution, upon this general principle of Equity, 
 that what is contracted for valuable consideration to be done, 
 will by the Court be considered as done" (^). Shares in a 
 newspaper, and of the profits of printing it subsequent to a 
 
 (c) Stiibhs V. Stuhbs, Cas. T. Finch, 
 415; Lord Gorge v. DiUington, 1 Ch. 
 Rep. 281 ; Cotton v. Cotton, 2 Ch. Rep. 
 138 ; Earl of Winchelsea v. Norciijf'e, ib. 
 367, 377, 1 Vera. 435, 2 Freem. 95 ; 
 Anon. 2 Freem. 114, Ca. 126 ; Anon. ib. 
 210, Ca. 284 b. ; Squier v. Blayer, ib. 
 249; Hulbert v. Hart, 1 Vein, 133: 
 Awdlei] V. Aiodley, 2 Vera. 192 ; Jenison 
 V. Lord Lexington, 1 P. W. 555 ; Luwton 
 V, Lawton, 3 Atk. 13 ; Lord Dudley v. 
 Lord Warde, Arab. 113; Wade v. Paget, 
 1 Bro. C. C. 363, 1 Cox, 74 ; Russell v. 
 Smytldes, 1 Cox, 215 ; ^non. cited 7 Ves. 
 437 ; Triquet v. Thornton, 13 Ves. 345 ; 
 Collier v. Squire, 3 Russ. 467 ; Wig- 
 sell V. Wigsell, 2 Sim. & St. 364. On 
 property in a medical secret, recipe, re- 
 ceipt, or nostrum, see Jenks v. Holford, 1 
 Vera. 61, Tipping v. Tipping, 11 Vin. 
 Abr. 244, Ca. 15, 2 Eq. Cas. Abr. 467, 
 Ca. 14, cited 9 Mod. 460 ; i'ewbery v. 
 James, 2 Mar. 44u ; Wiltiams v. Wil- 
 liams, 3 Mer. 157 ; Ynvatt v. Winyard, 1 
 Jac. & W. 394 ; and Green v. Folgham, 
 1 Sim. & St. 398. And on property in a 
 secret in trade, see Bryson v. WJiiteticad, 
 1 Sim. & St. 74. 
 
 (d) Holt V. Holt, 1 Ch. Cas. 190 ; 
 Anon. 2 Ch. Cas. 207 ; Walley v. Watley, 
 
 I Vera. 484. See also James v. Dean, 
 
 I I Ves. 383, and Ray v. Ray, Coop. 
 264. 
 
 (e) Ripley v. Waterworth, 7 Ves. 425. 
 (/) Lacon V. Mertins, 3 Atk. 1 ; 
 
 Mayer v. Gowland, 2 Dick. 563 ; Howse 
 V. Chapman, 4 Ves. 542, 550 ; Lawes 
 V. Bennett, 1 Cox, 167, also stated 
 7 Ves. 436, and 14 Ves. 596 ; Townley 
 V. Bedwell, 14 Ves. 591 ; Greene v. Greene, 
 4 Madd. 148. 
 
 {g) Attorney General v. Day, 1 Ves. 
 218, 220 ; Buckma.ter v.Harrop, 7 Ves. 
 344, 345 ; Johnson v. Legard, 1 Turn. & 
 R. 281. On the same principle, where 
 real estate is agreed to be bought, the 
 price to be paid is, by the contract, made 
 real estate of the purchaser. Green v. 
 Smith, 1 Atk. 572, 1 West Cas. T. 
 Hardw. 561, cited 10 Ves. 613 ; Cave v 
 Caye, 2 Eden, 139 ; Buckmaster v. Har- 
 rop, 7 Ves. 341; Broome v. Monck, 10 
 Ves. 597 ; Savage v. Carroll, 1 Ball & B. 
 265; Rawlins v. Burgis, 2 V. & B. 382, 
 387.
 
 184 OF CERTAIN PROPERTY, &C. [cH. XII. 
 
 testator's death, liave been held to be part of his personal 
 estate (/<). River, or canal, shares are in some instances real, 
 and in others ])ersonal, estate. New River shares, or shares of 
 the New River Water, are real estate (/). And so likewise are 
 shares in the navigation of the River Avon, made navigable by 
 a statute 10 Anne ( /). Shares in the Worcester and Birming- 
 ham Canal Navigation are, by the Act passed for making the 
 canal, made personal estate {!(). And here it may be mentioned, 
 that fixtures on leasehold premises belonging to a testator, and 
 which he had a right to remove, have been determined to be 
 mere personal chattels, and therefore to pass under a bequest for 
 charitable purposes (Z). 
 
 Both at Law and in Equity, rent (m) and emblements (n) are 
 often the personal estate of a person deceased. And in Equity 
 a mortgage, pledge and money, is personal estate (o). These 
 three kinds of personalty, rent, emblements, and mortgage- 
 money, property which very commonly belongs to a testator, 
 and is frequently of great value and importance, it is proposed to 
 make the subjects of the remaining sections of this chapter. 
 
 (A) Gihbtett V. Read, 9 Mod. 459. 
 See also Longman v. Tripp, 2 Bos. & P. 
 N. R. 67. That a share in a newspaper 
 is devisable, see ibid. 71, 9 Mod. 460, and 
 Keene v. Harris, cited 17 Ves. 338, 342, 
 and in 1 Rose, 125. In Hogg v. Kir by, 8 
 Ves. 217, it is stated by counsel, that " it 
 has been determined, that property exists 
 in a newspaper, and that an action lies for 
 publishing under the same title." 
 
 (i) Driibutter v. Bartholomew, 2 P. W. 
 127 ; Lord Townsend v. Ash, 3 Atk.336; 
 NichoUs V. Leeson, ibid. 573 ; Lord 
 Sandys v. Sibthorpe, 2 Dick. 545 ; Adair 
 V. The New River Company, 1 1 Ves. 429. 
 See also 2 Ves. 182, and 2 Ves. jun. 663. 
 Acts of Parliament establishing the New 
 River are, 3 Jam. I. c. 18, and 4 Jam. I. 
 c. 12 ; on which statutes, see the observa- 
 tion made by Sir R. P. Arden, 2 Ves. 
 jun. 663. 
 
 (J) Buckeridge v. Ingram, 2 Ves. jun. 
 652 ; Howse v. Chapman, 4 Ves. 542, 
 544. 
 
 (k) Stat. 31 Geo. III. c. 59 ; Ex parte 
 Home, 7 B. & C. 632. 
 
 (/) Johnston v. Suann, 3 Madd. 457. 
 
 (m) 10 Co. 128 b. 
 
 (n) Litt. S. 68 ; Co. Litt. 55 b ; 3 
 Atk. 16. 
 
 (o) Bridgman v. Tyrer, Cas.T. Finch, 
 236; Gardner v. Hatton, ibid. 318; Cor- 
 sellis V. Corsellis, ibid, 351 ; Canning v. 
 Hicks, 1 Vern. 412, 2 Ch. Cas. 187 ; 
 Clerkson v. Bowyer, 2 Vern. 66 ; Owen 
 V. White, 3 Ch. Rep. 20, 2 Freem. 126 ; 
 Anon. 2 Freem. 52, Ca. 57 ; Fiskv. Fiik, 
 Prec. Ch. 11 ; Ansten v. Executors of 
 Dodwell, 1 Eq. Cas. Abr. 318, Ca. 9; 
 Kendal V. Mickfeild, Barn. Ch. Rep. 46 ; 
 Casborne v. Scarfe, 1 Atk. 605.
 
 S. II.] 
 
 185 
 
 SECTION 11. 
 
 OF RENT. 
 
 The following distinctions occur on rent unpaid at the death 
 of a lessor, who is seised in fee-simple. If a person, seised in fee, 
 leases for years, with a reservation to himself and his heirs of 
 rent payable at certain days, it is clear that if the lessor dies 
 after either rent day, all the rent due at the last rent day will 
 devolve to his executors (p). And it is also certain, that if the 
 lessor dies before either rent day, the rent, which will on that 
 day become due, will follow the reversion, and belong to the heir 
 at law, to whom the reversion is descended (q), or to the devisee, 
 to whom the reversion is devised (r) ; except in particular cases ; 
 for the rent may be separated from the reversion (s), and be 
 made, it appears, the subject of a bequest (t). If the lessor dies 
 on a rent day, it seems that the rent, on that day become due, 
 will, unless separated from the reversion, belong to the heir at 
 law or devisee, if the lessor dies before sunset (u) ; but it is per- 
 haps doubtful to whom it will belong, if the lessor dies after sun- 
 set, and before midnight (v). 
 
 (p) 10 Co. 128b. 
 
 Iq) Anon. Mich. 34 H. VIII. cited in 
 Clun's case, 10 Co. 128 b., 1 Rol. Abr. 
 591, B. 3 ; Drake v. Munday, Cro. Car. 
 207. 
 
 ()■) Fitzh. N.B. 121 , N. ; 10 Co. 129a. ; 
 2 Bl. Com. 176: Sachevereil v. Frogate, 
 1 Ventr. 148, 161. 
 
 (s) Co. Litt. 143 a. ; 2 Bl. Com. 176 ; 
 Robins v. Cox, 1 Lev. 22. 
 
 (t) Litt. S. 585; Ardes, or Arge, v. 
 Watkins, Cro. Eliz. 637, 651, Mo. 549, 
 
 1 Rol. Abr. 234. See 1 Lev. 22, and 
 Knolles' case, 1 Dyer. 5 b. 
 
 (w) Lord Rockingham v. Oxenden, or 
 Fenrice, 2 Salk. 578, 1 P. W. 177. See 
 Anon. Gouldsb. 98, Ca. 17. 
 
 {v) See Plowd. 172, 173; Co. Litt. 
 202 a. ; Bwppa v. Mayo, 1 Saund. 282, 
 287 ; Thomson v. Field, Cro. Jac. 499 ; 
 Lord Rockingham v. Penrice, 1 P. VV. 
 177 ; Southern v. Bellasis, ib. 179, n. ; 
 and Earl of Strafford v. Lady Wentworth, 
 9 Mod. 21, Prec, Ch. 555.
 
 186 
 
 [CH. XII. 
 
 SECTION III. 
 
 OF EMBLEMENTS. 
 
 The next kind of personal property reserved for particular 
 notice is Emblements {w). Emblements are certain kinds of 
 the earth's produce, which, in some cases, after land is no longer 
 occupied by the party who owned such produce, may be severed 
 and carried away from the land as part of his property. The 
 general principle of a right to emblements is, public policy, 
 which, for the common good, gives encouragement to husban- 
 dry (x). Wheat, and oats, and other corn, beans, peas, potatoes, 
 hemp, flax, and hops, are emblements (y). It seems also to be 
 understood that turnips, carrots, and parsnips are emblements ; 
 and that clover, saint-foin, saffron, melons, cucumbers, and arti- 
 chokes are so likewise (z). But grass, although the product of 
 hay-seed sown, is not emblements (a). 
 
 Emblements may belong to a lessee at will; to the exe- 
 cutors of a lessee at will ; to the executors of a tenant for life, 
 and of other tenants, whose estates are determinable on death ; 
 to a husband seised in right of his wife ; to a tenant pu?- auter 
 vie ; to a lessee for years of a tenant for life, and of other tenants, 
 whose estates are determinable on death; to the executors of a 
 lessee for years, if he shall so long live; to the executors of a 
 tenant in tail ; and of a tenant in fee ; to a devisee of a tenant in 
 fee; and to the survivor of joint-tenants. And here it may be 
 
 (u.') From emhleer, signifying to sow ; 
 Bro. Abr. tit. Embleem. pi. 1, 9. See 
 Spelm. Gloss, v. Bladiim. Generally on 
 Emblements, see that title in the Abridg- 
 ments of Brooke, Rolle, and Viner ; Per- 
 kins, 512 — 524 ; Gilb. on Evidence, 4th 
 ed. 240—249; and Amos & Fer. on 
 Fixtures, &c., 173. 
 
 {x) Co. Litt. 55 a. ; 2 Inst. 81 ; Hob. 
 132 J SAtk. 16; 2 Bl. Com. 122. 
 
 (y) Litt. S. 68 ; Co. Litt. 55 b. ; 2 
 
 Inst. 81 ; Keilw. 125 ; 2 Bl. Com. 123 ; 
 Latham v. Atwood, Cro. Car. 515; Anon. 
 2 Freem. 210, Ca. 284 b.; Fisher v. 
 Forbes, 9 Vin. Abr. 373, 2 Eq. Cas. Abr. 
 392 ; West V. Moore, 8 East, 339, 340 ; 
 Evans v. Roberts, 5 B. & C. 829, 832. 
 ' (z) Co. Litt. 55 b. ; 5 B. & C. 835 ; 
 4 Burn's Eccl. L. 7th ed. 299; Toll. 
 Execut. 150; Amos & Fer. on Fixt. 174. 
 (a) Co. Litt. 56 a. ; 2 Inst. 81 ; 5 B. 
 6c C. 832 ; 2 Bl. Com. 123.
 
 S. III.] OF EMBLEMENTS. 187 
 
 mentioned, that, amongst farther instances (Z*), a question on the 
 title to emblements may occur in the cases of a copyholder (c),of 
 a parson (f/), of a feoffee on condition (e), of a mortgagor (/"), of a 
 posthumous son and heir at law (f/), of a tenant by extent under 
 a statute or recognizance (h), of -one who by action at law reco- 
 vers land (i), of a widow to whom dower is assigned, or by whom 
 it is recovered by action at law (j), of one who enters by title (k), 
 and lastly in instances of disseisin (/), or outlawry (m). 
 
 Corn, or other kind of emblements, belongs to a lessee at will, 
 if the lessor puts him out before it is ripe (??,), or, if ripe, before 
 it is in the due course of husbandry severed (o). In the event 
 of the tenant's death before severance of emblements, they belong- 
 to the executors of a lessee at will (p), of a tenant for life (q), of 
 a tenant in dower (r), and of a tenant by the curtesy {s). If a 
 
 (6) Bro. Abr. tit. Embl. 13, 16, 21, 
 25 ; Launton's case, 4 Leon. 1 ; Gran- 
 tham V. Hawley, Hob. 132 ; Wicks v. 
 Jordan, 2 Bulstr. 213, 9 Vin. Abr. 372 ; 
 Banks' case, 9 Vin. Abr, 373 ; Johns v. 
 Whitley, 3 Wils. 127. 
 
 (c) Bro. Abr. tit. Emhl. 4, tit. Forf. 
 de ter. 109 ; 4 Co, 21 b. ; 1 Bol. Abr. 
 727, pi. 18 ; 9 Vin. Abr. 367, pi. 18 ; 
 Oland's' case, or Oland v. Burdwick, 5 
 Co. 116, Cro. Eliz. 460, Gouldsb. 189. 
 
 (rf) Bro. Abr, tit. Embl. 2, 9, tit. 
 Dean &; Ch. I ; 1 Rol. Abr. 655, K. 3 ; 
 Stat. 28 H. VIII. c. 11 ; Bulwer v, Bul- 
 wer, 2 Barn. & Aid. 470. 
 
 (e) Bro. Abr. tit. Chattels, 10, tit. 
 Embl. 18. 
 
 (/) Keech w. Hall, Doug. 23; Moss 
 V. Gallimore, ib. 270, 4th ed. 283 ; Chris- 
 tophers V. Sparke, 2 Jac. & W. 234, 235. 
 
 (g) Co. Litt. 55 b. ; Perk. pi. 521. 
 
 (/i) Co. Litt. 55 b. ; Burden v.Withing- 
 ton, 2 Leon. 54. 
 
 (i) Bro, Abr, tit. Embl. 8, 11, 23; 
 Perk, pi. 515. 
 
 (j) 2 Inst. 81 ; Perk. pi. 521 ; 9 Vin. 
 Abr. 367, pi. 19 ; Anon. 3 Dyer. 316 a,, 
 Ca. 2 ; Fisher v, Forbes, 9 Vin, Abr. 373, 
 2 Eq, Cas, Abr, 392. 
 
 (k) Bro, Abr. tit. Emhl. 25 ; Co. 
 Litt. 55 b. 
 
 (/) Bro. Abr. tit.. Chattels, 10, tit. 
 Embl. 1, 10, 12, 13, 17, 18, 19, 20., tit. 
 Tresp. 202; 1 Rol. Rep. 101 ; Jenk. 
 Cent. C. 5, ca. 29 ; Perk. pi. 519 ; Co. 
 Litt. 55 b. ; Knivet's case, or Knevett v. 
 Pool, 5 Co. 85, Cro. Eliz. 46,3, Gouldsb. 
 143 ; Liford's case, 11 Co. 46 b., 51 b. ; 
 Anon. 1 Dyer, 31 b , ca. 219 ; Aiion. 
 Mo. 24, ca, 84 ; Anon. Dalis, 30, ca. 8. 
 
 (m) 5 Co. 116 b. 
 
 (n) Litt. s. 68 ; Bro. Abr. tit. Embl. 
 7, tit. Ten. per Copie, 3 ; Cas. T. Holt, 
 414. 
 
 (o) Co. Litt. 55 b.; Cas. T. Holt, 414. 
 
 (p) Co. Litt. 55 b. ; Bro. Abr. tit. 
 Embl. 6. 
 
 (q) Fitzh. Abr. tit. Devise, 25; Co. 
 Litt. 55 b. ; Latham v. Atwond, Cro. Car. 
 515 ; Fisher v. Forbes, 9 Vin. Abr. 373, 
 2 Eq. Cas. Abr. 392. 
 
 (?•) And the doweress may dispose of 
 them by her will, Stat, of Merton, C. 1 1 ; 
 2 Inst. 80, 81 ; Fitzh, Abr. tit. Devise, 
 26 ; Bro. Abr. tit. Embl. 22 ; Perk. pi. 
 522, 523 ; Anon., Keilw. 125, ca. 84. 
 
 (0 Perk, pi. 514.
 
 188 OF EMBLEMENTS. [CH. XII. 
 
 husband seised in right of his wife dies before severance of 
 emblements, they belong to his executors (f). Also emblements 
 belong to a husband seised in right of his wife, if the wife dies 
 before they are severed {u) : and likewise to a tenant pur miter 
 vie, if before severance the cestui que vie dies [v). And if a 
 tenant for life, or doweress, or tenant by the curtesy, or husband 
 seised in right of his wife, or cestui que vie, dies before severance 
 of emblements, they belong to the lessee for years of the tenant 
 for life {w), or doweress {x), or tenant by the curtesy (y), or 
 husband seised in right of his wife (r), or tenant pur auter vie (a). 
 And if a lease for years is made by a husband seised in fee in 
 right of his wife, and the wife dies, and then the lease determines, 
 the lessee has the right to the emblements (i). And if a lease is 
 made to A. for a term of years, if he shall so long live, the exe- 
 cutors of A. are entitled to the emblements growing on the land 
 at the time of his death (c) . 
 
 One principle which makes certain roots, and the crops of par- 
 ticular seeds sown, to be emblements is, that such roots and 
 crops are annual vegetables (d). And two farther principles, on 
 which emblements belong to the particular party in each of the 
 cases mentioned, are, — first, that such emblements are the fruit of 
 the expense or labour of the lessee at wdll, or of the tenant for 
 life, or other tenant whose estate is determinable on death (e) : 
 and, secondly, that the estate of the lessee at will, and of the 
 tenant for life, or other tenant whose estate is determinable on 
 death, is of uncertain continuance ; the estate at will being deter- 
 mined by the lessor, or by his death, or that of the lessee, and 
 the estate of each of the other tenants being determined by death, 
 
 (t) Bro. Abr.tit. Embl. 26; Co. Litt. I Lease, 24 ; Co. Litt, 56, a. 
 53 b. ; Perk. pi. 518. (a) Co. Litt. 55 b. 56 a. ; Perk. pi. 
 
 (»t) Co. Litt, 55 b. 
 
 (v) Bro. Abr. tit. Embl. 6, 16 ; Co. 
 Litt. 55 b. 
 
 (w) Co. Litt. 55 b., 56 a. ; Knivel's 
 case, or Knevett v. Pool, 5 Co. 85., Cro. 
 Eliz. 463. 
 
 (,r) Ibid. 
 
 (y) Perk. pi. 514. 
 
 513. 
 
 (6) Perk. pi. 513. 
 
 (c) 1 Rol. Abr. 727, pi. 12; 9 Vin. 
 Abr. 366, pi. 12. 
 
 (d) Co. Litt. 55 b.; 2 Inst. 81 ; 
 Keilw. 125. 
 
 (e) Co. Litt. 55 b. ; 2 Inst. 81 ; Mob. 
 132 ; Cro. Car. 515 ; 2 Freein. 210 ; 9 
 
 (z) Bro. Abr. tit. Embl. 6, 14, tit. I Vin. Abr. 366, fl 12
 
 S. III.] OF EMBLEMENTS. 189 
 
 as before is mentioned (f). The same principles extend, it ap- 
 pears, to a deceased tenant in tail, whose executors are entitled 
 to the emblements, which are the fruit of his own expense or 
 labour, and are growing on the land at the time of his death (^). 
 A farther principle, on which, in certain cases, a claim to em- 
 blements may be supported is, that the tenant's estate was de- 
 termined by the act of law {h). 
 
 The principle mentioned of uncertainty of estate appears not 
 to apply to emblements of a deceased tenant in fee, and the title 
 to which is disputed between his executor, and his heir at law to 
 whom the land is descended. Here, after the death of the tenant, 
 the land and emblements continue to be the property of himself, 
 represented by either his heir at law or executor. And the 
 emblements the law gives to the executor {i). And this is done 
 perhaps on the principle, that the expense and labour, of which 
 the emblements are the fruit, were bestowed on the land with 
 the intent to reap a return in personal estate ; and that had the 
 crop been severed in the tenant's life-time, it would have been 
 property of that nature. And so far as the crop is raised at the 
 expense of the deceased tenant, the claims of simple contract 
 creditors to debts, and of younger children to portions, out of 
 property raised by a fund naturally liable to those debts and por- 
 tions,' are evidently additional weights to incline the law to give 
 such emblements to the executor in preference to the heir. If a 
 person buys the fee-simple of land, on which there are then 
 emblements, and dies before severance, and the land descends, in 
 this case also the executor will certainly be entitled to them. 
 And the principle may be, that the purchaser bought the crop 
 with the intent to make it part of his personal estate, and that 
 had it been severed in his life-time, it would have been personal 
 property. 
 
 (/) Litt. s. 68; Co, Litt. 55 b. ; 
 Perk. pi. 513; 9 Vin. Abr. 366, pi, 12 ; 
 2 Barn. & Aid, 471. 
 
 (g) Perk. pi. 59, 512 ; Shep. Touchst. 
 472. 
 
 {h) 5 Co. 116 b.; Cro. Eliz. 461. 
 
 (0 2 Inst. 81 ; Hob. 132 ; 3 Atk, 16; 
 8 East, 343 ; 5 B. & C. 832 ; 2 Bl, 
 Com. 404 ; Launton's case, 4 Leon. 1 ; 
 Emerson v. Emerson, or Annison, 1 Ventr. 
 187, 2 Keb, 874 ; Anon. 2 Freem. 210, 
 Ca. 284 b.
 
 190 OF EMBLEMENTS, [CH. XII. 
 
 The emblements of a deceased tenant in fee go to his executor, 
 when the land descends ; but if it is devised by him, they go with 
 the land to the devisee (j). The principle perhaps is, analogy 
 to the force of a gift by feoffment, whereby when the land itself 
 passes, " vesture, herbage, trees, mines, and all whatsoever parcel 
 of that land doth pass" (k). The devisee will, however, not be 
 entitled to the emblements, if the will contains a bequest of per- 
 sonal estate, described in terms which disclose an intention to 
 inchide emblements in the bequest (Z) ; as where a bequest to 
 executors is in the terms, "all my goods and chattels, stock of my 
 farm, and all other my moveables whatsoever" (m), or, " all my 
 stock upon my farm, and all other my personal estate of what 
 nature or kind soever" (w). But it is not clear that the emble- 
 ments will not belong to the devisee of the land, although the 
 will contains a bequest in the general terms of " all my personal > 
 estate of what nature or kind soever", or, " all my goods and 
 chattels, and all other my moveables whatsoever " ; and particu- 
 larly if the bequest is to a beneficial legatee, and not, for the 
 purposes mentioned in the will, to the executors. 
 
 If the devise of the land is to the testator's heir at law, and 
 notwithstanding the devise, which has not the force to break the 
 descent, the heir takes by descent, and not under the will, and 
 the will does not contain a separate disposition of the emblements, 
 it is, perhaps, a consequence of the descent, that the emblements 
 will go to the testator's executors, and will not belong to the heir. 
 
 It remains to mention an instance, where the principle of public 
 policy, applied to emblements, may at first sight be thought to 
 be disregarded. The instance is, of a joint-tenancy. For here, 
 if the land survives, the emblements survive with it, and do not 
 go to the executors of the deceased tenant (o). In truth, how- 
 ever, the public is probably very rarely, if ever, injured by this 
 
 (j) Anoji. Cro. Eliz. 61 ; Spcncer^s 
 case, Win. 51, 9 Vin. Abr.372; Cox v. 
 Godsalve, 6 East, 604, n. ; West v. Moore, 
 8 East, 343. 
 
 (k) Co. Litt. 4 b. ; 2 Bl. Com. 18. 
 
 (/) Perk, pi. 512. 
 
 (m) Cox V. Godsalve, 6 East, 604, n. 
 
 (n) Wen V. Moore, 8 East, 339. 
 
 (o) Geanes, or James, v. Portman, Cro. 
 Eliz. 314, Owen, 102, 9 Vin. Abr. 
 371 ; Koumev's case, 2 Vern. 322.
 
 S. III.] or EMBLKMENTS. 191 
 
 circumstance ; because in a multitude of instances the chances of 
 survivorship are extremely equal ; and where they are unequal, as 
 by reason of age or infirmity, few persons are likely to leave the 
 land unsown, in despair of living through the year to reap the 
 produce, and because they attach no weight whatever to their own 
 chance of surviving. 
 
 If joint-tenants are husband and wife, and the husband sows 
 the land, and dies before severance, it seems to be doubtful, 
 whether the emblements will survive to the wife, or will belong 
 to the executors of the husband (/?). 
 
 A claim to emblements may fail, if, to support It, it needs the 
 principle of expense or labour, and this principle is wanting (f^). 
 And, accordingly, if in a voluntary conveyance, or in a will, land 
 is limited to A. for life, with a remainder over, as to B. for life, 
 and at the death of A. the corn, which is then on the land, and 
 which was growing at the time of the conveyance, or death of the 
 testator, was not sown at A.'s own expense, such emblements 
 will with the land pass to the remainder-man B. (r). And it is 
 said that the emblements do not belong to the executors of a 
 person, who marries a doweress, or tenant for life, or in fee, by 
 whom the land was sown before her marriage with this hus- 
 band (s). 
 
 Also a claim to emblements may fail, if the principle of uncer- 
 tainty of estate is wanting. In the case of a lessee for a term of 
 years, created by one whose estate is not uncertain, as by a termor 
 for years, or person seised in fee, the emblements, which are 
 growing on the land at the end of the lease, belong to the lessor, 
 and not to the lessee or his executors (t). 
 
 In certain cases, a claim on the part of the tenant to emblements 
 
 (p) Bro Abr. tit. Emhl. 15 ; Co. Litt. 
 55 b.; Anon. 3 Dyer, 316 a., Ca. 2; 
 Anon. Cro. Eliz. 61 ; Arnold v, Skeale, or 
 Skele V. ArnoU, Noy, 149, 1 Rol. Abr. 
 727, pi. 16, 3 Dyer, 316 a. n., Co. LiU. 
 55 b., Hal. n. ; Brewster's case, Co. Litt. 
 55 b., Hal. n. ; Rowney's case, 2 Vern. 
 322. 
 
 (q) Hob. 132. 
 
 (r) Hob. 132 ; Anon. Cro. Eliz. 61 ; 
 Allen s case, cited Win. 51, 9 A^in. Abr. 
 371 ; Anon. Godb. 159, Ca. 219. 
 
 (s) Bio. Abr. tit. Embl. 26; 1 Rol. 
 Abr. 727, pi. 17; 9 Vin. Abr, 37, 
 pi. 17. 
 
 (t) Liu. S. 68 ; Doug]. Rep. 196, 4th 
 ed. 206.
 
 192 OF MORTdAGE-MONEY. [CH. XII. 
 
 may fail, if his estate is determined by his own act (u), as by for- 
 feiture {v), or surrender {w), or, in the case of a tenancy at will, 
 by his own determination of the tenancy (x). In a late case, 
 a farm was let under a condition, that if the lessee should incur 
 any debt, upon which any judgment should be signed, and on 
 which judgment any writ of execution should issue, it should be 
 lawful for the lessor to re-enter. .Tudgment being signed against 
 the lessee for a debt, and •A.fi.fa. issued thereupon, the lessor re- 
 entered, and took possession of the growing crops. And to 
 those crops or emblements, it was decided the lessor was entitled, 
 the lessee having broken the condition, and incurred a forfeiture 
 by his own act (v/). 
 
 SECTION IV. 
 
 OF MORTGAGE-MONEY. 
 
 Formerly, where a mortgage was made in fee, and forfeited, 
 the money due on it was, in several cases, decreed to be paid to 
 the heir, and not to the executor of the mortgagee (z) ; if, without 
 this money, the personal assets of the mortgagee were sufficient 
 for the payment of his debts (a). For it seems, that if the per- 
 sonal assets were insufficient for that purpose, the executor, and 
 not the heir, was entitled to the mortgage-money, or at least to so 
 
 (m) Co. Litt. 55 b. ; 2 Inst. 81 ; 2 Bl. 
 Com. 145; Oland's case, or Oland v. 
 Burdwick, 5 Co. 116, Cro. Eliz. 460, 
 Mo. 394, Gouldsb. 189 ; Bulwer v. BiU- 
 wer, 2 Barn. & Aid. 470. 
 
 (v) Bro. Abr. tit. Embl. 3 ; Forfeit, de 
 ter. 109; Co. Litt. 55b.; 4 Co. 21b.; 
 Cro. Eliz. 461 ; Gouldsb. 189 ; Perkins, 
 pi. 515. 
 
 (w) Cro. Eliz. 461. 
 
 (x) Co. Litt. 55 b.; 5 Co. 116; Cro. 
 Eliz. 461 ; 2 Bl. Com. 146; Weeper v. 
 Handall, 1 Rol. Abr. 727, 9 Vin. Abr. 
 366 , Sweeper v. Randal, S. C.,Cro. Flliz. 
 156, 9 Vin. Abr. 371. 
 
 (v) Davis V. Eyton, 7 Bingh. 154. 
 
 (s) Tilley v. F.gerton, 1 Ch Rep. 181, 
 3 Ch. Rep. 63, 2 Freem. 125, cited 1 
 Ch. Cas. 88, and 3 Swanst. 631 ; Smith 
 V. Smimlt, 1 Ch. Cas. 88; Martin v. 
 Gobe, stated 3 Swanst. 633, and ap- 
 parently cited as Gohe v. Earl nf Carlisle, 
 2 Vern. 67 ; Anon, cited 3 Swanst. 634. 
 See also Alston v. Walker, 1 Brownl. & 
 G. 64 ; Saint John v. Wareham, or Grab- 
 ham, stated 3 Swanst. 631, and cited 1 
 Ch. Cas 88, 2 Freem. 126, and 3 Ch. 
 Rep. 64. 
 
 (a) 1 Ch. Rep. 183; 1 Ch. Cas. 88 ; 
 Nels. Rep. 162 ; 3 Swanst. 633, 634.
 
 S. IV.] OF MORTGAGE-MONEY. 193 
 
 much of it, as was required for the payment of debts {b). It 
 appears, however, from many later opinions and decisions, that 
 the modern doctrine is, that the executor, and not the heir, of the 
 mortgagee is entitled to the money; although the condition to 
 redeem is on payment to the mortgagee or his heirs, or heirs or 
 assigns, and notwithstanding the personal assets of the mortgagee 
 are more than sufficient for the payment of his debts (c). And, 
 on greater reason, it is decided that mortgage-money belongs to 
 the executor, and not to the heir, of the mortgagee, if the con- 
 dition to redeem is merely on payment of the money, without 
 naming any one to whom it is to be paid {d) ; or on payment 
 to the mortgagee, his executors, or administrators {e) ; or to him, 
 his executors, or assigns, or executors, administrators, or as- 
 signs if)', or to him, his heirs or executors, or to him, his heirs, 
 executors, administrators, or assigns (f/). And in all these cases, 
 in which mortgage-money is payable to the executor, it is also 
 payable to him, if the mortgagee dies before the mortgage is 
 forfeited, and the money is paid either before or after the for- 
 feiture (A). 
 
 When the executor of a mortgagee in fee is entitled to the 
 money due on the mortgage, he may oblige the mortagee's 
 heir at law, if in possession of the land, to give that possession up 
 
 (h) 1 Ch. Rep, 183 ; 1 Ch. Cas. 88 ; 
 Anon. Nels. 162. See 1 Ch. Cas. 286, 
 2 Freem. 144, and 3 Swanst. 630. 
 
 (c) Winn v. Littleton, or Littleton's 
 case, 1 Vern, 3, 2 Ch. Cas. 51, 2 Ventr. 
 351 ; Canning v. Hicks, 1 Vern. 412, 
 2 Ch. Cas. 187 ; Pawlett v. Attorney 
 General, Hardr. 467, 469 ; Turner v. 
 Turner, 2 Ch. Rep. 154 ; Thornboroiigh 
 V. Baker, 3 Swanst. 629, 630; Stokes v. 
 Verrier, ih. 634. 
 
 ■ (d) Thornborough v. Baker, 3 Swanst. 
 629, 1 Ch. Cas. 284, 285, 2 Freem. 143 ; 
 Anon. 2 Freem. 12, Ca. 11; Tabor v. 
 Tabor, 3 Swanst. 636. 
 
 (e) Smith v. Smoiilt, 1 Ch. Cas. 88 ; 
 Pawlett V. Attorney General, Hardr. 467 ; 
 Lord Gorge v. Dillington, 1 Ch. Kep. 
 
 279, and stated 3 Swanst, 633. 
 
 (f) Stanley v. Mandesley, 1 Ch.Rep. 
 254 ; Lord Gorge v. Dillington, ib. 279. 
 
 (g) Anon. 3 Leon. 32; A7wn. 2 Freem. 
 12, Ca. 11 ; Bightson v. Overton, ih. 20, 
 2 Eq. Cas. Abr. 429, in marg. ; Thorn- 
 borough V. Baker, 3 Swanst. 628, 1 Ch. 
 Cas. 283, 2 Freem. 143, 2 Eq. Cas. Abr. 
 428, cited 2 Freem. 227 ; Noy v. Ellis, 
 2 Ch. Cas. 220 ; Noy v. Besustane d!f Ellis, 
 S. C, Cas. T. Finch, 305 ; Tiirner's case, 
 2 Ventr. 348. 
 
 (h) Winn v. Littleton, or lAttleton's 
 case, 1 Vern. 3, 2 Ventr. 351 ; Canning 
 V. Hicks, 1 Vern. 412. See also Austen 
 V. Executors of Dodwell, 1 Eq. Cas. Abr. 
 318, Ca. 9.
 
 104 OF MOUTGAGF.-MONEY. [CH. XII. 
 
 to him ; and, whether in or out of possession, to convey to him 
 the fee-simple (^). 
 
 Tlie case of Stewkleij v. Henley seems to be an authority, that if 
 the land and mortgage-money are, by the mortgag-ee's will, given 
 to A. and his heirs, in trust for B. and his heirs, and B. dies, and 
 the mortgage is redeemed, the money will be payable to B.'s exe- 
 cutor, and not to his heir {j). 
 
 It is, however, in the power of a mortgagee in fee, to make the 
 pledge and money follow in equity the course, which the land takes 
 at law, and, in this sense, to make real estate of the pledge (A), 
 which, without this conversion, is, in equity, personal estate (Z). 
 Such conversion may be eifected by the mortgagee's will, wherein 
 he expresses that intention in a devise of the land (m)* And a 
 will, that makes the pledge real estate, may have the effect, 
 amongst others (w), to entitle the devisee's heir at law, to whom 
 at law the land is descended, to the possession of the land, and 
 also to the money secured by it (o). But it seems such conversion 
 by the will of the mortgagee is not allowed to the extent, to 
 withdraw the pledge and money from the personal estate of the 
 testator, if there is a deficiency of his assets for the payment of 
 his debts (/;). 
 
 It may farther here be noticed, that on a purchase from a 
 mortgagee in fee, the purchaser may make the pledge to be in 
 equity his real estate, and by this means confer on his heir at law 
 the benefit of the purchase. In Cotton v. lies, a purchase was 
 construed to have this effect {q). 
 
 (i) Ellis V. Gnavas, 2 Ch. Cas. 50 ; 
 Lord Gorge v. DiUington, 1 Ch. Rep. 
 279, cited 3 Swarist. 633 ; Tabor v. 
 Grover, 2 Freem. 227, 2 Vern. 367 ; 
 Wood V. Nosworthy, cited 2 Vern. 193. 
 See Turner v. Craiie, 2 Ch. Rep. 242, 
 1 Vern. 170. 
 
 (,/) 2 Ch. Rep. 166. 
 
 (/() Thornhorough v. Baher, 1 Ch. Cas. 
 283, 2B6, 2 Fieem. 145 ; Martin v. 
 
 Mowlin, 2 Burr. 969, 978. 
 
 (/) 1 (;h. Cas. 286; 2 Burr. 978. 
 See Fisk v. Fisk, Prec, Ch. 11. 
 
 (m) Doe V. Parratt, 5 Durn. & E. 
 652. 
 
 (w) Garret v. Evers, Mos. 364. 
 
 (o) Noys V. Mordaunt, 2 Vern. 581, 
 Prec. Ch. 265. 
 
 (/;) Garret v. Evers, Mos. 364. 
 
 ((/) 1 Vern. 271.
 
 195 
 
 CHAPTER XI IL 
 
 OF HEIR-LOOMS, AND CERTAIN OTHER CHATTELS. 
 
 Srct. I. — Of Heir- Looms. 
 
 II. — Of certain other Chattels. 
 
 SECTION I, 
 
 OF HEIR-LOOMS. 
 
 An lieir-loom seems to be a personal chattel, which so belongs 
 to an estate of inheritance, that, by the particular custom of the 
 place where the estate is situate, it is descendible with it to the 
 heir at law. Sir Henry Spelman defines it, " omne utensile 
 robustius quod ab sedibus non facile revellitur, ideoque ex more 
 quorundam locorum ad hseredem transit tanquam membrum 
 hsereditatis : nam keier Sax. hseres : leoma, membrum" (a). " In 
 some places," says Sir Edward Coke, "chattels as heir-loomes 
 (as the best bed, table, pot, can, cart, and other dead chattels 
 moveable) may go to the heir; and the heir in that case may 
 have an action for them at the common law, and shall not sue 
 for them in the Ecclesiastical Court; but the heir-loome is due 
 by custom, and not by the common law. An heir-loome is called 
 principalium, or hcsreditarium " {h). And although heir-looms 
 may generally be "such things as cannot be taken away without 
 
 (a) Spelman Gloss, v. Heier~lome. 
 
 (6) Co.Litt. 18 b. To the same effect, 
 see Bro. Abr. tit. Cttstomes, 27, tit. Dis- 
 cent, 43, and 1 Rol Abr. 625, E. 3. 
 An heir-loom may not only be, the he^t 
 bed, table, or the like, an expression 
 which supposes some other chattel of the 
 same kind, and appears to admit that 
 the heir-loom may be a chattel, newly 
 acquired by tlie owner of the estate ; 
 
 but it may be a particular chattel, that 
 has seen several descents. " Heir-loome 
 is any piece of household stuff (ascun 
 parcel des utensils d'un mease), which, 
 by the custom of some countries, having 
 belonged to a house for certain descents, 
 goes with the house (after the death of 
 the owner) to the heir, and not to the 
 executcrs." Termes de la Ley, v. Heir- 
 loome. 
 
 o 2
 
 196 or HEiii-i.ooMs. [CH. xin. 
 
 damaging or dismembering the freehold" (r), yet Sir E. Coke 
 and Sir W. Blaekstone both are authorities, that a personal chat- 
 tel, whiel) is not annexed to the freehold, as a cart, or household 
 utensil or implement, may also be an heir-loom (d). In an action 
 of trover for a chain of pearl, it was, by Holt, C. J., ruled at 
 Nisi Prius, that " a jewel cannot be an heir-loom, but only things 
 ponderous, as carts, tables, &c." {c). 
 
 Heir-looms may be sold, or otherwise disposed of, by tlie 
 ancestor, in his life-time, and, like timber, even separately from 
 the estate to which they belong (/"). But, separately from 
 the estate, he cannot dispose of them by his will (r/). " If a 
 man," says Sir E. Coke, " be seised of a house, and possessed of 
 divers heir-looms, that by custom have gone with the house from 
 heir to heir, and by his will deviseth away the heir-looms, this 
 devise is void ; for the will taketh effect after his death, and by 
 his death the heir-looms, by ancient custom, are vested in the heir, 
 and the law preferreth the custom before the devise "(A). If 
 the estate is devised away from the heir, and the heir-loom is 
 some " utensile robustius quod ab sedibus non facile revellitur," 
 some chattel, which " cannot be taken away, without damaging 
 or dismembering the freehold ; " in this case, it is presumed such 
 heir-loom will, with the estate, pass to the devisee (i). But if the 
 heir-loom is some best chattel, not fixed to the freehold, as the 
 best cart, or pot, or can, or other household utensil or implement, 
 then, perhaps, this chattel will not, where there is such devise, 
 belong either to the devisee, or to the heir, but will, as personal 
 property, go to the testator's executor or administrator. 
 
 (c) Spelman Gloss, v. Heier-lmne ; 2 
 Bl. Com. 427. 
 
 (d) Co. Liu. 18 b. ; 2 Bl. Com. 428. 
 
 (e) Lord Petre v. Heneage, 1 Ld. 
 Raym. 728. In another report of the 
 same case, the learned judge expressed an 
 opinion, that " goods in gross cannot be 
 an hfcir-loom, but they must be things 
 fixed to the freeiiold, as old benches, 
 tables, &c." (12 Mod. r)\9). This cer- 
 tainly was an observation directly perti- 
 nent to the case before the Court ; but 
 here it may be noticed that, with reference 
 
 to the obiter dicta of the same learned 
 person. Lord Chief Justice Willes has 
 said, that, in many cases, they were" nun- 
 qiiam dicta, but barely the words of the 
 reporters ; for, upon examination, I have 
 found many of the sayings ascribed to that 
 great man. Lord Chief Justice Holt, 
 were neversaidby him." 1 Ves.jun. 13. 
 
 (/) 2 Bl. Com. 429. 
 
 (g) Co. Litt. 185 b.; 1 P. W. 730; 
 2 BL Com. 429. 
 
 (/i) Co. LiU. 185 b. 
 
 (i) See Amos & Fer. on Fixt. 167.
 
 S. I. 
 
 OF HEIK-LOOMS. 
 
 197 
 
 On bequeathing personal chattels, as plate, pictures, books, or 
 household furniture, the testator frequently directs that they shall, 
 in the nature of heir-looms, accompany the descent or devolution of 
 a particular real estate, devised, or previously settled. Such a be- 
 quest, although it will not make these chattels heir-looms, will im- 
 press them with so much of their nature, that they will be capable 
 of following the course of descent or limitation of real property. 
 But an adult tenant, either in fee or in tail, of the real estate, the 
 course of descent or limitation of which such chattels are to follow, 
 may sell or otherwise alien them in his life-time ; and, what dis- 
 tinguishes this kind of property from real heir-looms, may dispose 
 of them, without the estate, by his will. A person possessed of 
 personal chattels, under a bequest, by which, if it was a limita- 
 tion of real estate, he would be seised either in fee-simple or fee- 
 tail, possesses the whole and absolute interest in them (J) ; and, 
 as personal property is not a subject of descent (k), they will, if 
 not before disposed of by him, devolve at his death to his per- 
 sonal representative, executor or administrator (/). And they 
 will so devolve, and his interest in them will be the same, not- 
 withstanding a direction in the will, that they shall be deemed 
 and taken as heir-looms (m). 
 
 When personal chattels are bequeathed to accompany limita- 
 tions, oradevise, in strict settlement of real estate, and are directed 
 to be deemed and taken as heir-looms, an infant tenant in tail in 
 possession of the real estate will be possessed of the whole inte- 
 rest in the chattels (n), unless there are additional expressions in 
 the bequest, which prevent their vesting in such tenant in tail 
 during his minority (o). When vested in the infant, they cease 
 to follow the limitations of the real estate ; at the age of fourteen 
 he may dispose of them by his will (p) ; and in the event of his 
 
 (J) Dod V. Dickenson, 8 Vin. Abr. 
 451, 2 Eq. Cas. Abr. 325 ; Richards v. 
 Lady Bergavenny. 2 Vein. 324, 
 
 (k) Co. Liu. 388 a; 2 Bio. C. C. 
 578. 
 
 (/) Co. Liu. 388 a. 
 
 (to) Duke of Bridgwater v. Littleton, 
 1 Bio. C. C. 280, n. 
 
 (n) Duke of Bridgwater v. Littleton, 
 ] Bio. C.C. 280, n.; Bland v. Bland, 2 
 Cox, 349 , Warter v. Hutchinson, 2 Bred. 
 & B. 349, 5 J. B. Moore, 143 ; Lord 
 Deerhurst v. Duke of St. Albans, 5 Madd. 
 232. 
 
 (o) Trafford v. Trafford, 3 Atk. 347. 
 
 ip) 12 Ves. 229.
 
 198 OF CERTAIN OTHER CHATTELS. [CH. XIII. 
 
 death at any age during his minority, they will, if undisposed of 
 by him, belong to his personal representatives {q). 
 
 SECTION II. 
 
 OF CERTAIN OTHER CHATTELS. 
 
 An heir at law, to whom land is descended in fee, is, to 
 the exclusion of his ancestor's executor or administrator, en- 
 titled to the following kinds of chattels personal, which, as " pro- 
 fits of the freehold" (r), or, " necessary to the well-being of the 
 inheritance" {s), belonged to such ancestor at the time of his 
 death ; namely, deerinapark {t), thatis, ina " real authorised " (u) 
 
 (5) Duke of Bridgwater v. Littleton, 1 
 Bro. C. C. 180, n.; Foley v. Burnell, 
 1 Bro. C. C. :.74, 4 Bro. P. C. ed. TomI, 
 319 ; Va'ughan v. Burslem, 3 Bro. C. C. 
 101 ; Carr v. Lord Errol, 14 Ves. 478, 
 also stated 5 Madd. 253. 
 
 (r) Cro, Eliz. 372, 
 
 (s) 2 Bl. Com. 428. 
 
 (t) Co. Lilt. 8 a.; 1 Rol, Abr. 916, 
 Z. 2 ; Wentw. Off. Ex. ch, 5, 14th ed. 
 p. 127 ; God. Orph. Leg. part 2, ch. 14. 
 Without the deer, " the park, which is an 
 inheritance, is not complete." 7 Co. 17 b. 
 
 (u) 2 BI. Com. 427 ; 7 Co. 17 b. Sir 
 E. Coke says, — " It is not lawful for any 
 man to erect a park, without a license 
 under the great seal of the king." And 
 to a lawful park, he observes, " three things 
 are required: 1. A liberty, either by 
 grant, as is aforesaid, or by prescription ; 
 
 2. Inclosure by pale, wall, or hedge ; and 
 
 3. Beasts savages of the park." (2 Inst. 
 1 99). And, to the same effect, he in another 
 place states, — In law, a park " sigiiifieth 
 a great quantity of ground inclosed, pri- 
 vileged for wild beasts of chase by pre- 
 scription, or by the king's grant." ( 1 Inst, 
 or Co. Litt. 233 a), A similar defini- 
 tion is given in the Termes de la Ley 
 V. Park. And Sir W. Blackstone says, 
 — " A park is an enclosed chase, ex- 
 tending only over a man's own grounds. 
 
 The word park, indeed, properly sig- 
 nifies an enclosure ; but yet it is not 
 every field or common, which a gentle- 
 man pleases to surround with, a wall, or 
 paling, and to stock with a herd of deer, 
 that is thereby constituted a legal park ; 
 for the king's grant, or at least immemo- 
 rial prescription, is necessary to make it 
 so." (2 Bl. Com. 38). A park by grant, 
 or prescription. Sir E. Coke calls a lawful 
 (2 Inst. 199) park, or park in law, (3 Inst. 
 76). A park " erected without lawful 
 warrant," he terms a nominative (2 Inst. 
 199) park, or a park in use or reputation. 
 (3 Inst. 76). And Sir M. Hale distin- 
 guishes between a '' legal park," and 
 " a bare park in reputation ;" and says, 
 '' If a man inclose a piece of grounds and 
 put deer in it, this makes it not a park, 
 without a prescription time out of mind, 
 or the king's charter." (1 Hist. PI, Cr. 
 491). Of an ancient park, or park by 
 prescription, see Withers v. Iseham, 1 
 Dyer, 70 a., and The King; v. Byron, 
 Bridgm. Rep. 23, Manwood For. L, 
 ch, 3, ed, 1665, p. 84. In pleading, if 
 a close is stiled a certain close called a 
 park, as C, Park ; or if it is stiled a 
 park, called C. Park ; and it is not said 
 that It is a park, either by grant or prescrip- 
 tion, a Court of Law cannot take it to be 
 so. (^Duties V. Powell, Willes, 46, 50 ;
 
 S. 11.] OF CERTAIN OTHER CHATTELS. 199 
 
 park ; conies in a warren {v) ; doves, or pigeons, in a dove- 
 house (?('), young and old (x) ; fish in a pond(//), as "carps, 
 breames, tenches, &c.", bouglit by the ancestor, and put into his 
 pond for store (z). And the heir is, it may here be added, 
 entitled to timber, and fruit, or^ other trees growing ; to fruit 
 
 M.,llocke\. Easily, 3 Lev. 227. See also 
 Anon. Keilw. 202 b.) And, farther, on a 
 park, see 1 1 Co. 86 a., 87 b. ; Keilw. 
 203 a. ; 2 Rol. Abr. 33 ; Manwood For.L., 
 ch. l,ed. 1665, p. 52. " At Woodstock," 
 sajs Camden, " is a magnificent palace 
 built by Henry I. Henry I. also adjoined 
 to the palace a large park, inclosed with a 
 wall of stone, which John Rous affirms to 
 have been the first park in England ; 
 though we meet with these words, Pwca 
 syivestris bestiaruvi, moie than once in 
 Domesday- Book. But afterwards they 
 increased to so great a number, that there 
 were computed more in England, than in 
 all the Christian world besides." ( 1 Camd, 
 Brit. 297). Henry I., it appears, inclosed 
 Woodstock Park, " not for deer, but all 
 foreign wild beasts, such as lions, leo- 
 pards, camels, lynxes, which he procured 
 abroad of other princes." (Plot's Nat, 
 Hist, of Oxfordshire, 2nd ed. p. 357 ; 
 Spelm. Gloss, v. Parens). A writer on 
 the county of Northamptonshire says, — 
 " Though some of the Northamptonshire 
 parks, and particularly some of those that 
 bear that name in the older maps of the 
 county, are now disused, and retain only 
 the name, yet the number is rather en- 
 larged than diminished, many other places 
 having lately been imparked, and very 
 finely stocked with deer." (Morton's 
 Nat. Hist, of Northamptonshire, ed. 
 1712, p. 12). The same observation may, 
 perhaps, be applied to most other counties 
 in England ; and such recent inclosures 
 are, it is probable, parks in reputation only, 
 and not legal parks. In Burton's Descrip- 
 tion of Leicestershire (ed. 1622, p. 6), are 
 enumerated several parks in that county j 
 and, among others, " Kirby Park, im- 
 parked by William, first Lord Hastings, 
 14 Edward IV., now the inheritance of 
 Sir Henry Hastings. Bagworth Park, 
 
 imparked by William Lord Hastings, 14 
 Edward IV., now the inheritance of Sir 
 Robert Banaster, Knight." Tiie same 
 author also mentions a park " imparked 
 by William Lord Hastings, by license of 
 King Kdward IV., 14 Edw. IV." And 
 of parks disparked, he names " Hoult 
 Park, imparked by Thomas Palmer, E>q., 
 by license granted 26 Henry VI." Madox, 
 in his History of the Exchequer, enume- 
 rates the fines paid for a great variety of 
 licenses granted by the Crown ; and, 
 among others, he mentions that, " Peter 
 de Goldinton gave one Hawk, for leave to 
 enclose certain land, part of his wood of 
 Stokes, to make a park of it" (p. 326). 
 And it there also appears that, to make a 
 park, a license was granted to inclose a 
 wood in the manor of Coggeshal, proba- 
 bly in Essex (p. 280, n. (y)). Other fines 
 for inclosures are mentioned in the same 
 work, p. 279, n. (n), and p. 353. 
 
 («) Co. Litt. 8 a. ; Wentw. Off. Ex. 
 ch. 5 ; God. Orph. Leg. part 2, ch. 14. 
 
 (?u) Co. Litt. 8 a. ; Wentw. Off. Ex, 
 ch. 5 ; Swinb. on Wills, part 6, s. 7, 
 5th ed. p. 403 ; God. Orph. Leg. part 2, 
 ch. 14, part 3, ch.21. 
 
 (x) Co. Litt. 8 a. The author of " The 
 Office and Duty of Executors" says, that 
 the executor, and not the heir, is en- 
 titled to " young pigeons, though not 
 tame, being in the dove- house, not able 
 to fly out ; yet their dams, the old ones, 
 shall go to the heir with the dove-house." 
 Wentw. Off. Ex. ch. 5, 14th ed. p. 143. 
 
 (y) Wentw. Off. Ex. ch. 5; Swinb. 
 on Wills, part 6, s. 7 ; God. Orph. Leg. 
 part 2, ch. 14 ; Fartec v. Cray, C^ro. Eliz. 
 372; Gray v. Trowe, Gouldsb. 129; 
 Grey's case, or Grey v. Bartholomew, 
 Owen, 20. See also Anon. Keilw. 118 a. 
 
 (z) Gray v. I'awlett, oi Paulet, 1 Rol. 
 Abr. 916, Z. 1, Co. Litt. 8 a.
 
 200 OF CERTAIN OTHER CHATTELS. [CH. XIII. 
 
 on trees ; and to grass growing, or, as it is otherwise expressed, 
 growing for hay, or grass ready to be cut down («). And 
 having mentioned certain animals, to which an heir at law is 
 entitled on the death of his ancestor, it may be of some use 
 farther to state, that they constitute exceptions to the general 
 law, which gives to the personal representative, executor or 
 administrator, of a person deceased, all his personal property (/>) ; 
 and, under which general law, the executor or administrator is 
 entitled, it may in particular be noticed, to the following kinds 
 of ])roperty of the person deceased; namely, his tame deer, 
 conies, pigeons, pheasants, partridges ; " so, though not tame, 
 if they were taken, and kept alive in any room, cage, or like 
 receptacle, as pheasants and partridges often be" (c) : also his 
 fish in a trunk (d) : and his horses, kine, bullocks, sheep, swine, 
 and cattle of all kinds; his geese, ducks, poultry, &c. (e): and it 
 is manifest that the author of " The Office and Duty of Execu- 
 tors" inclined to the opinion, that the personal representative is 
 moreover entitled to the hounds, greyhounds, and spaniels, which 
 belonged to the deceased {/) ; and this opinion agrees, it is pro- 
 bable, with the present law on the subject (^) ; notwithstanding 
 it may be true that hounds, being Jerce naturcB, are not, for all 
 purposes, either goods or chattels (A), and will not pass under a 
 grant or bequest of " goods and chattels" («'), and although Swin- 
 burne and Noy appear to have thought, that the hounds of a 
 person deceased devolve to his heir, and not to his executor or 
 administrator (j). 
 
 (fl) Swinb, on Wills part 3, s. 6, 
 part 7, s. 10, 5th ed. p. 176, 478, 479 ; 
 God. Orph. Leg. part 2, ch. 13, and 
 ch. 14, 2nd ed. p. 122, 126 ; Wentw, 
 Off. Ex. ch. 5, 14th ed. p. 145, 146. On 
 trees, as lemon-trees, in boxes, see Oli- 
 viere v. Venwn, 6 Mod. 170. 
 
 (6) Co. Litt. 388 a ; Wentw. Off. Ex. 
 ch. 5. 
 
 (c) Wentw. Off. Ex. ch. 5, 14th ed. 
 p. 143 ; God. Orph. Leg. pt. 2, ch. 13, 
 2nd ed. p. 122. 
 
 (d) Wentw. Off. Ex. ch. 5; Co. 
 Litt. 8 a. See also 6 Mod. 183. 
 
 {e) Wentw. Off. Ex. ch. 5, 14ih ed. 
 
 p. 138 ; God. Orph. Leg. pt. 2, ch. 13, 
 2nd ed. p. 122. 
 
 (/) Wentw. Off. Ex. ch. 5, 14th ed. 
 p. 143. 
 
 (g) 4 Burn Eccl. L. 7th ed. 297 ; 
 Amos ik Fer. on Fixt. 169. 
 
 (h) Swinb. on Wills, pt. 7, s. 10, 5th 
 ed. p. 476, 480. 
 
 (0 Noy's Max. 50, 101, 9th ed. 144, 
 230, and arg. Cro. Eliz. 126, Owen, 94. 
 
 (.;") Swinb. on Wills, pt. 7, s. 10, 5th 
 ed. 480 ; Noy's Max. 50, 9th ed. 144. In 
 Ireland v. Higgins, Owen, 93, it is said 
 by counsel in arg., that dogs arc not 
 assets.
 
 201 
 
 CHAPTER XIV. 
 
 OF CONVERSION BY WILL OF REAL ESTATE INTO PERSONAL, 
 AND OF PERSONAL INTO REAL ESTATE. 
 
 Sect. I. — Of Conversion of Real into Personal Estate. 
 II. — Of Conversion of Personal into Real Estate. 
 
 SECTION I. 
 
 OF CONVERSION OF REAL INTO PERSONAL ESTATE. 
 
 1. Conversion for a limited purpose only. — 2. Conversion for all 
 the purposes of the ivill ; the testator creating a trust to sell real 
 estate, and meaning to dispose of the ichole produce of the sale, 
 but to dispose of it as property distinct from his general personal 
 estate. — 3. Conversion for all the purposes of the icill ; the testa- 
 tor creating a trust to sell real estate, and meaning to dispose of 
 the lohole produce of the sale, and to dispose of it, as, for the 
 purposes of his will, a part of his general personal estate. — 
 4. Conversion, out and out. — 5. Of the quality, real or personal, 
 of the interest, that, under a trust for sale, results to the testator s 
 heir at law. 
 
 1. When a will creates a trust to sell real estate, the testator's 
 object sometimes is, to cause a conversion for a limited purpose 
 only; as to pay debts, or legacies, or both debts and legacies (a). 
 Where a will has created a trust to sell real estate, for the limited 
 purpose to pay debts, the testator's heir at law has been held to 
 take, by resulting trust, the surplus of the money raised by the 
 sale, after the debts paid (h). 
 
 (a) Dixon v. Dawson, 2 Sim. &c St. 
 327. 
 
 (6) Gale v. Crofts, 4 Vin. Abr. 468, 
 
 2 Eq. Cas. Abr. 494. See Kinasion v. 
 Kinaston, 2 Dick. 506; and, farther, 16 
 Ves. 19 L
 
 202 OF CONVERSION OF REAL INTO PERSONAL ESTATE. [CH. XIV. 
 
 Where a will has created! a trust to sell real estate, for the 
 limited purpose to pay legacies, the testator's heir at law has been 
 held to take, by resulting trust, — the surplus of the money pro- 
 duced by the sale, after payment of the legacies (c) : the whole 
 money arising from a sale of real estate, in a case where a testa- 
 tor gave all the residue of his real and personal estate, in trust 
 to be sold, and the produce of the sale of the real estate was not 
 required for the purposes of the trust {d) : the whole real estate, no 
 part of which was sold, the purposes of the will being all satisfied, 
 without having recourse to it (e) : the whole real estate, in a case 
 where the only disposition of the produce of the sale was of the 
 interest of it for the life of a person, and the estate was not sold 
 in her life-time (f): lOOOZ. bequeathed to the executor, " to be 
 disposed of according to any instructions the testator might leave 
 in writing"; no instructions as to that sum being found after the 
 testator's death (g). 
 
 In Hill V. Cock, where real estate was devised to trustees, 
 in trust to sell for the particular purpose, " in the first place, to 
 reimburse themselves all reasonable expenses, which they should 
 be put to in or about the execution of the will, or the trust thereby 
 in them reposed " ; and the will did not afterwards express any 
 ulterior purpose ; the testator's heir at law was held to take, by 
 resulting trust, the money arising from the sale of the real estate, 
 which it was not necessary to apply for the only purpose ex- 
 pressed in the will (h). 
 
 And where a will has created a trust to sell real estate, for the 
 limited purpose to pay debts and legacies, the testator's heir at law 
 has been held to take, by resulting trust, — the surplus of the money 
 produced by the sale, after payment of debts and legacies (z) : the 
 
 (c) Stonelwuse v. Evelyn, 3 P. W. 
 252 ; Randall v. Bookey, 2 Vern. 425, 
 Prec. Ch. 162; City of London v. Gar~ 
 way, 2 Vern. 571 ; Berry v. Usher, 11 
 Ves. 87. 
 
 (d) Rohimon v. Taylor, 2 Bro. C. C. 
 589, 1 Ves.jun. 44. 
 
 ((") Chitty V. Parker, 2 Ves.jun. 271, 
 
 4 Bro. C. C. 411 ; Maugham v. Mason, 
 1 Ves, & B. 410. 
 
 (/) Wilson V. Major, 11 Ves. 205. 
 
 (g) Collins V. Wakeman, 2 Ves. jiin. 
 683, cited 18 Ves. 166. 
 
 (/() 1 Ves. & B. 173. 
 
 (i) Starkey v. Brooks, 1 P. W. 390.
 
 S. I.] OF CONVERSION OF REAL INTO PERSONAL ESTATE. 203 
 
 whole real estate ; no part of which was sold, the purposes of the 
 will being all satisfied, without having recourse to it (j). 
 
 2. When a will creates a trust to sell real estate, the testa- 
 tor's object sometimes is, to cause a conversion for all the pur- 
 poses of the will ; meaning to dispose of the whole produce of 
 the sale, but to dispose of it as property distinct from his general 
 personal estate (k). 
 
 Where a will has contained this intention, the effect of the 
 conversion has been, — to entitle a widow to a moiety of her hus- 
 band's share, bequeathed to him of the money to arise by the 
 sale (Z) : to entitle to the estate to be sold the next of kin of the 
 legatee of the whole produce of the sale; in a case, where 
 the property had not been sold, and the legatee, who was a 
 lunatic, had been incompetent to elect to take the estate as 
 land {jn). 
 
 In other cases, the effect of the conversion has been, to entitle 
 the testator's heir at law to take, by resulting trust, — a legacy 
 lapsed, after the testator's decease, by the death of the legatee 
 before it vested in him {n) : five-sixth parts of the produce of the 
 sale of the real estate, such parts being bequeathed by a resi- 
 duary clause in the will, and having lapsed, after the testator's 
 
 (j) Buggins V. Yates, 9 Mod. 122. 
 
 (fc) Davers v. Folkes. 1 Eq. Cas. Abr. 
 396, Ca. 9 ; Smith v. Claxton, 4 flladd. 
 484, on the second and third devises ; 
 Jones V. Mitchell, 1 Sim. & St. 290. 
 
 (/) Doughty V. Bull, 2 P. VV. 320. 
 
 (m) Ashby v. Palmer, 1 Mer. 296. 
 In this report of the case, some material 
 words contained in the will are omitted. 
 The following statement of the will is 
 extracted from the Reg. B. — " E. F. gave 
 and devised to W. F. and M. P., and to 
 their heirs, &c., all her real and personal 
 estate, in trust to sell as soon [as] con- 
 veniently they could after her decease ; 
 and out of the money thereby raised, and 
 with the rents, issues, and profits, of her 
 real estate until sale, in the first place to 
 pay and discharge all the debts of her 
 late husband, deceased, her own debts, 
 and funeral expenses ; and witii the sur- 
 
 plus thereof bring up, maintain, and educate 
 her daughter E., in such manner as they 
 should think most for her advantage until 
 she attained twenty-one years, or should 
 be married, which should first happen ; 
 and then to pay all such money, as should 
 remain in their hands undisposed of for 
 the uses aforesaid, unto her said daughter. 
 But if her said daughter died unmarried 
 before attaining twenty-one years, such 
 monies, remaininsc unapplied to her use, 
 were to be for the use and benefit of the 
 said M. P., her heirs, executors, adminis- 
 trators, and assigns, to whom she gave 
 and bequeathed the same." — Reg. B. 
 1 81 5, A. 1 11 1 b. See S. C, stated from 
 MS., 2 Jarm. on Dev. 64. And on a 
 devise of land, in the quality of land or 
 money, see, farther, 4 Madd. Rep. 492. 
 (n) Cruse v. Barley, 3 P. W. 20.
 
 204 OF CONVERSION OF REAL INTO PERSONAL ESTATE. [cH. XIV. 
 
 decease, by the death of the legatee before they vested in him (o): 
 a legacy lapsed by the death of the legatee in the testatrix's life- 
 time (p) : a residuary legacy lajised l)y the death of the legatee 
 in the testator's life-time (q) : a residuary legacy bequeathed by 
 the will, and lapsed by the death of the legatee in the testator's 
 life-time ; in a case, where such legacy was held not to pass by a 
 codicil attested by two witnesses only (r) : a rent-charge be- 
 queathed to charitable uses, and void under the statute 9 George 
 II. c. 30 (s) : legacies bequeathed to charitable uses, and void 
 under the same statute (t). 
 
 3. When a will creates a trust to sell real estate, the testator's 
 object sometimes is, to cause a conversion for all the purposes of 
 the will ; meaning to dispose of the whole produce of the sale, 
 and to dispose of it as, for the purposes of his will, a part of his 
 general personal estate (u). 
 
 Where a will has contained this intention, the effect of the 
 conversion has been, — that the surplus produce of the sale, after 
 payment of debts and legacies, passed to the residuary legatee 
 under a bequest of " all the rest and residue of my personal 
 estate " (v) : that a legacy given to charitable uses, and void under 
 the statute 9 George II. c. 36, passed to the residuary legatee of 
 " personal estate" (iv) : to entitle to the real estate, as money, the 
 personal representatives of the sole next of kin of the legatee, to 
 
 (()) Spink V. Lewis, 3 Bro. C. C. 355. 
 
 (p) Hutcheson v. Hammond, 3 Bro, C. 
 C. 128, cited 4 Yes. 810. 
 
 (q) Digby v. Legard, 2 Dick. 500, 3 
 P. W. 5tii ed. 22, n., and also stated 1 
 Bro. C. C. 501 ; Ackioyd, or Akeroid, 
 V. Smithson, 1 Bro. C. C. 603. 3 P. W. 
 5th ed. 22, n., cited 18 Ves. 165, and 1 
 Ves. & B. 417 ; Kicholls v. Crisp, stated 4 
 Ves. 65; and on, it seems, another point 
 reported in Ambl. 769 ; Williams v. 
 Coade, 10 Ves. 500. In the last case, 
 the Court considered it to be clear, that 
 the rents and profits until the sale were 
 personal estate. 
 
 ()■) Hnoper v. Goodwin, 18 Ves. 156. 
 
 (s) Gravenor v. Hallum, Amb. 643. 
 
 (t) Gihhs V. Rumsey, 2 Ves. & B. 294, 
 See hennell v. Abbott, 4 Ves. 810, 811 ; 
 
 and Barrington v. Harris, there cited. 
 
 (u) Wright V. Wright, 16 Ves. 188; 
 Smith V. Claxton, 4 Madd. 484, on the 
 first devise; Vauchamp v. Bell, 6 Madd. 
 343. See also Brown v. Bigg, 7 Ves. 
 279 ; and, farther. Fates v. Compton, 2 
 P. W. 308 ; Lord Bristol v. Hungerford, 
 Prec. Ch. 81, 3 P. W. 194, n. C. ; 
 Flanagan v. Flanagan, cited 1 Bro. C. C. 
 500, and 2 Ves. jun. 77, 176 ; and Bur- 
 ion V. Hodsoll, 2 Sim. 24. 
 
 (i') Mallahar v. MaUahar, Cas. T. 
 Talb. 78, cited 3 Bro. C. C. 143, and 
 in Mr. Scott's (Lord Eldon's) argument 
 in Ackroyd v. Smithson, 1 Bro. C C. 508, 
 509. See also 8 Ves. 495, 496. 
 
 (w) Durour v. ]\[otteux, 1 Ves. 320, 
 cited 1 Bro. C. C. 500, 3 Bro. C. C. 143, 
 1 Ves. & B, 417, 1 Sim. & St. 294, and
 
 S. 1.] OF CONVERSION OF HEAL INTO PERSONAL ESTATE. 205 
 
 whom the money to arise by the sale was bequeathed (.r) : to en- 
 title a residuary legatee to a legacy, bequeathed out of the produce 
 of the sale of the real estate, and which legacy failed, because it 
 was given to a person under a particular character, which he had 
 falsely assumed, and which alone -could be supposed the motive of 
 the testatrix's bounty (//) : to entitle a residuary legatee to legacies, 
 lapsed by the death of the legatees in the testatrix's life-time (z): to 
 entitle the trustee, or devisee of the estate to be sold, to the sur- 
 plus land, or produce of the sale, after the other purposes of the 
 will were satisfied {a). 
 
 In Shcddon v. Goodrich, where, it seems, a will contained a 
 like intention of conversion and disposition, and where legacies 
 were bequeathed out of the money to arise by the sale, and the 
 surplus produce was, by a residuary clause, given to the testator's 
 heir at law ; it appears to be decided, that this residuary bequest 
 was not revoked by a second will, or a codicil, attested by two 
 witnesses only. And in this case Lord Eldon seems to have ex- 
 pressed an opinion, that if a will, attested by three witnesses, 
 converts real estate out and out into personalty ; the testator in- 
 tending the property to be considered as if it had, in his life-time, 
 existed as personal estate; he cannot, after making such will, 
 dispose of the produce of the sale, by a codicil which is not attested 
 by three witnesses {h). 
 
 In Gibbs V. Oufjier, Mdiere a will converted real estate into 
 money, which, for the purposes of the will, the testator meant to 
 be taken as part of his general personal estate, it appears to have 
 been decided, that the real estate was, not liable to pay the simple 
 contract debts of the testator, except by means of the equitable 
 doctrine of marshalling the assets {c). 
 
 4. When a will creates a trust to sell real estate, the testator's 
 
 in Mr. Scott's argument in Ackroijd v. 
 Smithson, 1 Bro. C. C. 510. And see 
 the will in Duronr v. Motteux stated 
 from Reg. B., 1 Sim. & St. 292, n. 
 
 (a) Fletcher v. Ashhuriier, 1 Bro. C. 
 C. 497. 
 
 (y) Kc.nnell v. Ahhott, 4 Ves. 802. 
 
 (s) Amphlett V. Parke, 1 Sim. 275. 
 
 (a) North V. Cromptnn, 1 Ch. Cas. 
 
 196, cited 2 Vern. 253, 1 Bro. C. C. 89, 
 and 1 Ball & B. 543 ; Coninghain, or 
 Cunningham, v. Mellhh, Free. Ch. 31, 
 2 Vern. 247, and 3rd ed. n 5 ; Rogers 
 V. Rosters, Cas. T. Talb. 268, 3 P. W. 
 193. See also Cook v. Duckmjield, 2 
 Atk. 562, 567. 
 
 (6) 8 Ves. 481. 
 
 (r) 12 Ves. 413.
 
 20G OF CONVERSION OK REAL INTO TERSONAE ESTATE. [CII. XIV. 
 
 object in causing the conversion sometimes is, so to impress the 
 real estate with the (juality of money, that, after the testator's 
 death, it shall be taken to have existed as money previously to 
 his death, and therefore be considered as, to all intents, and for all 
 purposes, part of his general personal estate. And where this 
 intention appears in the will, the real estate is said to be converted 
 out and out into personalty (d). 
 
 A conversion of this kind seems to take place in Loj'd Bristol 
 v. Hun(/erfo7'd, where a person devised lands, in trust to be sold 
 for the payment of his debts and legacies, and willed that the sur- 
 plus should be deemed part of his personal estate, and go to his 
 executors; to each of whom he gave a legacy of 100/. And in 
 which case the words of the decree made by the Master of the 
 Rolls are, — " And as to the surplus of the said estate, after the 
 debts and legacies paid, his Honor declared, that the testator 
 having given to each of his executors 100/., there is a resulting 
 trust in them for the benefit of the representatives of the said 
 testator ; and that the defendants, Mrs. R. and Mrs. M., who 
 were co-heirs and representatives of the said testator. Sir W. B., 
 were well entitled thereto; and doth therefore decree, that the 
 residue and surplus of Sir W. B.'s estate, his debts and legacies 
 being paid as aforesaid, be equally distributed between them" (e). 
 
 If a will converts real estate out and out into personalty, it 
 would seem that this estate, or the money to arise ])y the sale, is, 
 independently of the doctrine of marshalling assets, liable to pay 
 the simple contract debts of the testator, although the will makes 
 no provision for debts, as either by a direction to sell for payment 
 of debts, or by a charge of debts ( /*). 
 
 5. When, by a will, a chattel estate until a person is of age 
 
 (rf) 2 Bro. C. C. 595; 8 Ves. 495, 
 496 ; 11 Ves. 91 ; 19 Ves. 427 ; 1 Ves. 
 &cB. 175; 6 Madd. 347, 348. 
 
 (e) Free. Ch. 81, 3 P. V>! . 194, n. 
 [C] ; Countess of Bristol v. Hungeiford, 
 S. C, 2 Vern. 645 ; Symmes v. Symonds, 
 S. C, 4 Bro. P. C. ed. Toml. 328. 
 
 (/) Gibbs V. Ougier, 12 Ves. 413. 
 The observation of Lord Tenterden, that 
 "It is quite dear, tlie testator cannot 
 
 alter the legal character of the property, 
 by directing that it shall be considered 
 part of his personal estate " (Burlier v. 
 May, 9 Barn. & C. 494), must, perliaps, 
 be understood 1o apply merely to the 
 particular circumstances, with reference 
 to which it was made ; and to mean that, 
 by such a direction, a testator cannot 
 convert equitable into legal assets.
 
 S. 1.] OF CONVERSION OF REAL INTO PERSONAL ESTATE. 207 
 
 is, for a particular purpose, created out of the inheritance of land, 
 and the inheritance is devised by the will, but, for want of dis- 
 position, after the particular purpose satisfied, a trust of the 
 chattel estate results for the testator's heir at law ; here, the heir 
 takes this trust, not as real, but as personal estate. And, accord- 
 ingly, after the death of the heir, a decree has been made for his 
 administrator, and not for his heir(^). And, in the like case, a 
 trust would also, it appears, result, as personal estate, if it were 
 the trust of a term of years, created out of the inheritance devised 
 by the will. " In case it had been a term absolutely raised out 
 of the inheritance, yet being raised for a particular purpose, which 
 is satisfied, the heir should have the benefit of the surplus of the 
 term. But now, though the heir is favoured thus to have the 
 surplus of a term, that is carved out of the inheritance for a 
 particular purpose, yet he must have it as a term, which must go 
 in a course of administration, and not in a course of descent " (A). 
 In Hewitt v. Wright, a deed created a trust to sell real estate for 
 the payment of debts, and to raise 1500Z., for a specified pur- 
 pose. The real estate was sold ; and after the specified purpose 
 of raising the 1500Z. was satisfied, as the deed contained no far- 
 ther disposition of that sum, a trust of it was held to result, as 
 personalty, to the grantor ; and therefore to pass under his will. 
 In making this decision. Lord Thurlow observed, that it was 
 established, " that where a real estate is directed, by a deed or 
 will, to be sold, so much as the deed or will does not dispose of 
 results as land. This is settled by Emhlyn v. Freeman [Prec. 
 Ch. 541]. If it goes, in the case of a will, to the heir; in the 
 case of a deed, it must result to tlie grantor. And though, in 
 the case of the will, it cannot go to the executor as money, not 
 having been converted, but must descend to the heir, yet he 
 should think that it was personal estate of the heir ; and, if he 
 were dead, would go to his executor ; and, if so, where it resulted 
 to the grantor, it would be personalty in his hands, and would 
 pass as such. And, therefore, although he thought the case of 
 ILmhlyn v. Freeman right, that the conversion into money did not 
 
 {g) Level V. Needhim, 2 Vern. 138. (/),) Ilnd. 139.
 
 208 OF CONVERSION OF REAL INTO PERSONAL ESTATE, [cil. XIV. 
 
 prevent its resulting to the grantor, he could not help thinking, 
 notwithstanding tliat case, that the trust of the 1500/. resulted 
 here, in the same manner that it vested in W., the grantor, as 
 personal estate, and so was disposed of by the general terms of 
 the devise" (/). In IVrifilit v. JVr'u/lif, where a will contained a 
 trust to sell real estate, it was iu)t necessary to determine whether 
 the testator intended a conversion out and out ; or intended to 
 cause a conversion for all the purposes of his will, meaning to 
 dispose of the whole produce of the sale, and to dispose of it, as, 
 for the purposes of his will, a part of his general personal estate ; 
 because, in the events that had happened, the result, with respect 
 to the rights of the parties, would be the same. But on the sup- 
 position that the will contained the latter intention, then, as one, 
 namely the ulterior, purpose of the will failed, a trust resulted 
 for the testator's only child, a daughter, and heiress at law. 
 And this interest of the heir was held to result for her as 
 personal estate ; and therefore it was decided, that, to the ex- 
 clusion of the heir at law of the daughter and testator, the 
 daughter's mother was entitled to the money as her adminis- 
 tratrix [j). In Smith v. Claxton, a will contained a trust to sell 
 real and personal estate, and, Math the produce of the sale, to pay 
 the testator's debts, and certain legacies, and in trust to pay the 
 residue or surplus to the testator's wife. The wife died in the 
 testator's life-time ; and the debts and legacies were fully paid 
 out of the personal estate. It was decided, that, as the testator's 
 purpose of sale had no application to the events which had hap- 
 pened, the whole interest which, in consequence, fell to his heir, 
 resulted to him as land, and therefore, he being dead, belonged 
 to his heir at law, and not to his personal representative. The 
 same will contained a second devise of real estate, in trust for sale ; 
 the ultimate disposition of the produce being in trust for the tes- 
 tator's sons, J. and R. R. died in the testator's life-time. And 
 under such ultimate disposition, the interest, namely, the moiety, 
 which, in consequence of the partial failure of the purpose of 
 sale by the death of R., fell to the testator's heir, was held to 
 
 (i) 1 15rn. C. C. 86. , ( j) 16 Ves. 188.
 
 S. r.] OF CONVERSION OF REAL INTO PERSONAL ESTATE. 209 
 
 result to him as personal estate, and therefore to belong to his 
 personal representative. The same will contained a third devise 
 of real estate, in trust for sale ; the ultimate disposition of the 
 produce being- in trust for the testator's sons, T. and J. The tes- 
 tator died, leaving T. his heir at law. And he also being dead, 
 it was decided that his interest, or moiety, was personal estate, 
 and therefore belonged to his personal representative (k). In 
 Joiies V. Mitchell, a will, which created a trust to sell real estate, 
 disposed of the whole produce of the sale. And a part of the 
 money being bequeathed to charitable uses, such bequest was 
 void under the statute, 9 George II. c. 36. And the purpose of 
 the will so partially failing, the sum given to the charity was held 
 to result to the testatrix's heir at law, and to belong to his personal 
 representatives (Z). In Dixon v. Dawson, a will contained a de- 
 vise of real estate, in trust to sell for the payment of debts, and 
 certain legacies ; but did not dispose of the surplus money remain- 
 ing after those payments. The testatrix died, leaving P. D. her 
 heir at law. The trustees sold the estate, and P. D. afterwards 
 died. And the surplus produce of the sale was held to belong to 
 the personal representative of P. D. ; Sir John Leach, who made 
 this decision, saying, " Where the whole land is properly sold by 
 the trustees, and there is only a partial disposition of the produce 
 of the sale, there the surplus belongs to the heir as money, and 
 not as land" {m). 
 
 In Walter v. Maunde, where, under a trust created by will to 
 sell real estate, part of the estate had been sold by the trustees, 
 the testator's next of kin, who, under the particular terms of the 
 will were entitled to the property, were held to take, as personal 
 estate, the produce of the estate sold, and, as real estate, such 
 part of the estate as remained unsold (ii). 
 
 (k) 4 Madd. 484. In this case, Sir J, 
 Leach said, that under both the last de- 
 vises, T., the heir, might, by agreement 
 with his brother J., have elected to take 
 his interest as land. Ibid. 494, On elec- 
 
 Ves. 338 ; and Ashhy v. Palmer, 1 Mer, 
 296. 
 
 (/) 1 Sim. & St. 290. 
 
 (m) 2 Sim. & St. 327. See 16 Ves. 
 191, and 19 Ves. 429. 
 
 tion, see farther Davers v. Folkes, 1 Eq. (jj) 19 Ves. 424, on appeal from the 
 
 Cas. Abr. 396; Fletcher v. Ashhumer, 1 ' decree in Cole v, Wade, 16 Ves. 27. 
 Bro. Cr. C. 500; Kirhnan v. 3fi7«, 13
 
 210 OF CONVERSION OF REAL INTO PERSONAL ESTATE. [CII. XIV. 
 
 To the case of Smith v. Claxton, before mentioned, Sir J. 
 Leach applied, it may be useful here to notice, the following ge- 
 neral principles, which he apprehended to be the true result of all 
 the authorities. — " Where a devisor directs his real estate to be 
 sold, and the produce to be applied to particular purposes, and 
 those purposes partially fail, the heir at law is entitled to that 
 part of the produce, which in the events is thus undisposed of. The 
 heir at law is entitled to it, because the real estate was land at the 
 devisor's death ; and this part of the produce is an interest in that 
 land not effectually devised, and which therefore descends to the 
 heir. It is for this reason that the produce of an estate, which the 
 devisor directs to be sold, can never be strictly part of his general 
 personal estate. If a devisor directs such produce to be paid to 
 his executors, and applied as part of his personal estate, the 
 executors take it as devisees. Every person, taking an interest 
 in the produce of land, directed to be sold, is in truth a devisee, 
 and not a legatee. A devisor may give to his devisee either land, 
 or the price of land, at his pleasure ; and the devisee must receive 
 it in the quality in which it is given, and cannot intercept the 
 purpose of the devisor. If it be the purpose of the testator to 
 give land to the devisee, the land will descend to his heir; if it 
 be the purpose of the devisor to give the price of land to the 
 devisee, it will, like other money, be part of his personal estate. 
 Under every will, when the question is, whether the devisee, or 
 the heir, failing the devisee, takes an interest in land, as land or 
 money, the true inquiry is, whether the devisor has expressed a 
 purpose, that, in the events which have happened, the land shall 
 be converted into money. Where a devisor directs his land to 
 be sold, and the produce divided between A. and B., the obvious 
 purpose of the testator is, that there shall be a sale for the conve- 
 nience of division ; and A. and B. take their several interests as 
 money, and not land. So, if A. dies in the life-time of the 
 devisor, and the heir stands in his place, the purpose of the 
 devisor, that there shall be a sale for the convenience of division, 
 still applies to the case ; and the heir will take the share of A., as 
 A. would have taken it — as money, and not land. But in the case 
 put, let it be supposed that A. and B. both die in the life-time of
 
 S. II.] OF CONVERSION OF PERSONAL INTO REAL ESTATE. 211 
 
 the devisor, and the whole interest in the land descends to the 
 heir ; the question would then be, whether the devisor can be con- 
 sidered as having expressed any purpose of sale applicable to that 
 event, so as to give the interest of the heir the quality of money. 
 The obvious purpose of the devisor being, that there should be a 
 sale for the convenience of division between his devisees, that pur- 
 pose could have no application to a case, in which the devisees 
 wholly failed, and the heir would therefore take the whole interest 
 as land" (o). 
 
 SECTION II. 
 
 OF CONVERSION OF PERSONAL INTO REAL ESTATE. 
 
 A PRINCIPLE created by, and followed in. Courts of Equity 
 is, that what ought to be done is, to many intents, considered as 
 done (/?). This principle, applied to a bequest of money to be 
 laid out in land, has the effect that, for many purposes, the money 
 is, from the death of the testator (q), converted into land (r). 
 Consequences of this conversion are, — that the benefit of the be- 
 quest will pass under the general words, "lands, tenements, 
 and hereditaments ", contained in the will of a devisee in fee of 
 the land to be bought (s) : that if the devisee in fee of the land 
 to be bought, and who has not elected to consider the money as 
 money, dies before the purchase, the benefit of the bequest will 
 descend to the heir of the devisee, and will not pass to the 
 devisee's personal representatives {t) : that the land to be bought 
 is not assets to satisfy the simple contract debts of a devisee in 
 
 (o) 4 Madd. 492. 
 
 (p) 1 W. Bl. Rep. 129. 
 
 (5) Lord S, Beuiiclerk v. Mead, 2 Atk. 
 167. 
 
 (r) Sperling v. Toll, 1 Ves. 70 ; John- 
 son V. Arnold, ib. 169 ; Lord S, Beau- 
 clerk V. Mead, 2 Atk. 167, 170 ; Prillen 
 V. Ready, ib. 587, 590 ; Brent v. Tyn- 
 dall, 3 Bro. C. C. ed. Belt, 101, u. (4) ; 
 Perry v. Phelips, 1 Ves. jun. 251. 
 
 p 2 
 
 (s) Raihleigh v. Masters, 3 Bro. C. C. 
 99, 1 Ves. jun. 201 ; Kendrick v, Ken- 
 drick, 3 Bro. C. C. ed. Belt, 99, n. (1) ; 
 Guidot V. Giddot, 3 Atk. 254. See 
 Brent v. Tyndall, 3 Bro. C. C. ed. Belt, 
 101, n.(4). 
 
 (() Carr v. Ellison, 2 Dick. 796, 2 
 Bro. C. C. 56; Scudamore v. Scudamore, 
 Free. Ch. 543.
 
 212 OF CONVERSION OF PERSONAL INTO REAL ESTATE. [CH, XIV. 
 
 fee of the land, who dies before the purchase is made (?/) : that 
 if the devisee in fee of the hind dies an infant, as an infant can- 
 not elect to consider the money as money, the money will as 
 land descend to his heir, and not pass under a bequest of person- 
 alty in his will (?;) : that the husband of the devisee in tail, or in 
 fee, of the land to be bought, may be entitled to be tenant by the 
 curtesy, although the wife dies before the purchase is made (iv) : 
 and that if a legacy is bequeathed to A., to be paid at twenty-one, 
 and is payable out of the land to be purchased, the legacy will 
 sink into the land, if A. dies before the day of payment (x). 
 
 The conversion of the money into land does not take place 
 until the death of the testator, unless it is clearly his intention to 
 make the will impress the money with the nature of land in his 
 life-time; and, therefore, if this intention is wanting, words, 
 which in his will are properly applicable to land only, will not 
 extend to apply to the money bequeathed by him to be laid out 
 in land (?/). 
 
 Under the principle mentioned, the money is not to all intents 
 converted into land, from the death of the testator (r). At his 
 death the money will, as personal estate, be subject to the pay- 
 ment of his debts (a). A party entitled to the fee-simple of the 
 land to be bought is, unless an infant (b), at liberty to consider 
 the money as either money or land (c) ; and it will pass in his 
 will under a bequest of personal estate, if there is either evidence 
 in the will, or collateral (d) evidence, that he elected to consider 
 the money as personalty {e). And it will pass in his will under 
 
 (u) Trelawney v. Booth, 2 Atk. 307. 
 
 (v) Earlom v. Saunders, Amb. 241 ; 
 Carr v. Ellison, 2 Bro. C. C. 56. 
 
 («') Sweetapple v. Bindon, 2 Vern. 
 536 ; Carr v. Ellison. 2 Dick. 796 ; Cun- 
 ningham V. Moody, 1 Ves. 174, 176 ; 
 Bodson V. Hay, 3 Bro. C. C. 404, 409 
 
 (x) Harrison v. Naylor, 2 Cox, 247, 3 
 Bro. C. C. 108 ; Pullen v. Ready, 2 Atk. 
 587, 590 ; Attorney General v. Mdner, 3 
 Atk. 112. 
 
 {y) Lords. Beanclerk v. Mead, 2 Atk. 
 167. 
 
 (:) 1 W. Bl. Rep. 129. See Abbott v. 
 Lee, 2 Vern. 284. 
 
 (a) Lord S. Beaitcleik v. Mead, 2 Atk, 
 167, 170. 
 
 (/)) Earlom v. Saunders, Amb. 241 ; 
 Carr v. Ellison, 2 Bro. C. C. 56. 
 
 (c) B radish V. Gre, Amb. 229 ; Traf- 
 ford V. Borhm, 3 Atk. 440. 447. 
 
 (//) Amb. 229; 1 Bro. C. C. 236, 
 238. 
 
 (e) Earlom v. Satinders, Amb. 241, 
 242.
 
 S. II.] OF CONVERSION OF PERSONAL INTO REAL ESTATE. 213 
 
 a bequest of personal estate, if, at the time of his death, the 
 money is in his own hands, " without any other use but for him- 
 self" (/"), and a contrary intention is neither apparent in his 
 will, nor proved by collateral evidence {(/). Money bequeathed to 
 be laid out in land is not land so far, that a fine may be levied of 
 the money (h). And the money is not land for this purpose, 
 namely, to escheat to the Crown, under an ultimate limitation to 
 the right heirs of the testator ; where the will does not so wholly 
 impress the money with the nature of land, as to leave, after the 
 testator's death, no choice to consider it as land or money (i). 
 
 (/) 1 Bro, C. C. 238. 
 
 (g) Pulteney v. Earl of Darlington, 1 
 Bro. C. C. 223, 7 Bro. P. C. ed. Toml. 
 530,cited2Ves.juD.175, and3Ves.529. 
 
 {h) 1 P. W. 130; 2 P. W. 174; 
 Cruise on Fines, 66. 
 
 (0 Walher v. Benne, 2 Ves. jun. 170, 
 185.
 
 214 
 
 CHAPTER XV. 
 
 OF THE STATUTES 3 AND 4 WILLIAM AND MARY, C. 14 ; 47 
 GEORGE IIL, ST. 2, C. 74; AND 11 GEORGE IV.ANDl WILLIAM 
 IV., C. 47. 
 
 Sect I. — Statute 3 and 4 William ^ Mary, c. 74. 
 IL— Statute 47 George IIL, st. % c. 74. 
 III. — Statute 11 George IV. and 1 William IF., c. 47. 
 
 SECTION I. 
 
 STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. 
 
 Freehold land of inlieritance, descended to a person's heir 
 at law, is, by the common law, assets for the payment of the ances- 
 tor's debts by specialty, as by bond or covenant, in which his 
 heirs are bound (a). But, by the common law, the ancestor 
 might deprive his creditors of this fund for their payment, by dis- 
 posing of the land by his will ; for, if he devised it, the devisee 
 was, in equity (b), as well as at law, entitled to hold the land 
 free from the claims of the testator's creditors (c). Also, by the 
 common law, the heir at law, to whom the land descended, might, 
 at law, frustrate the creditors of his ancestor, by selling or alien- 
 ing the land before the creditors sued him {d) ; although, in 
 equity, it appears he was responsible for the value of the land 
 aliened [e). 
 
 This state of the law has been considerably altered by the 
 following statute, 3 and 4 William & Mary, c. 14, made per- 
 petual by 6 and 7 William IIL, c. 14. Amongst other provisions, 
 
 (a) 1 Stra. 665 ; 4 East, 492. 
 
 (h) 2 Atk. 432. 
 
 (c) 4 East, 491 ; 7 East, 135 ; 2 Atk. 
 
 292,432; 2 Anstr. 515. 
 
 (d) 1 P.W. 777. 
 
 (e) 1 P. W. 777. See also ib. 431.
 
 S. 1.] STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. 215 
 
 it renders land devised liable to the testator's debts by specialty, 
 in wliicli his heirs are bound ; and, in cases where the land has 
 descended, makes the heir at law liable to an action, although he 
 has sold or aliened the property, before his ancestor's creditors 
 have brought an action against him. 
 
 It recites and enacts as follows : — 
 
 Whereas it is not reasonable or just that, by the practice or 
 contrivance of any debtors, their creditors shouki be defrauded 
 of their just debts ; and, nevertheless, it hath often so happened, 
 that where several persons having, by bonds or other specialties, 
 bound themselves and their heirs, and have afterwards died seised 
 in fee-simple of and in manors, messuages, lands, tenements, and 
 hereditaments, or had power or authority to dispose of, or charge 
 the same, by their wills or testaments, have, to the defrauding 
 of such their creditors, by their last wills or testaments devised 
 the same, or disposed thereof, in such manner as such creditors 
 have lost their said debts : for remedying of which, and for the 
 maintenance of just and upright dealing, 
 
 II. Making wills Be it enacted, That all wills and testaments, 
 
 void, as against limitations, dispositions, or appointments, of or 
 creditors by bond . i i . 
 
 ,, . ,, concerning any manors, messuages, lands, tene- 
 
 or other specialty, o J ' » ' ' 
 
 binding the testa- ments, or hereditaments, or of any rent, profit, 
 tor's hens. term, or charge out of the same, whereof any per- 
 
 son or persons, at the time of his, her, or their decease, shall be 
 seised in fee-simple, in possession, reversion, or remainder, or have 
 pov/er to dispose of the same by his, her, or their last wills or 
 testaments, shall be deemed and taken (only as against such 
 creditor or creditors as aforesaid, his, her, and their heirs, succes- 
 sors, executors, administrators, and assigns, and every of them) 
 to be fraudulent, and clearly, absolutely, and utterly void, frus- 
 trate, and of none effect. 
 
 III. Enablino- And for the means that such creditors may be 
 creditors to main- enabled to recover their said debts, be it enacted, 
 ain an action o nj^^^^^ -j.^ ^^le cases before mentioned, every such 
 
 debt against heir _ ... 
 
 at law and devisee Creditor shall and may have and maintain his, her, 
 jointly. Qj^^ their action and actions of debt, upon his,
 
 21G STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. [Cll. XV. 
 
 her, and their said bonds and specialties, against the heir and 
 heirs at law of such obligor or obligors, and such devisee and de- 
 visees, jointly, by virtue of this Act ; and such devisee or de- 
 visees shall be liable and chargeable for a false plea by him or 
 them pleaded, in the same manner as any heir should have been 
 for any false plea by him jileaded, or for not confessing the lands 
 or tenements to him descended. 
 
 ,,, „ . - . Provided always, and be it enacted, I'hat where 
 
 IV. Retaining •' ' 
 
 in full force any there hath been, or shall be, any limitation, or 
 
 disposition for the appointment, devise, or disposition, of or concern- 
 raising or payment . , , 
 of any debts, or any i"g ^"7 manors, messuagcs, lands, tenements, or 
 
 portions for cliil- hereditaments, for the raising or payment of any 
 
 dren, otherlhanthe ^^^j ^^^^ -^ ^^1^^ ^^ ^1^^^^^ ^^ portion Or por- 
 
 heir at law, pursu- _ '' _ '' ' i m i 
 
 ant to agreement in tions, sum or sums of money, for any chud or 
 
 writing made before children of any person, other than the heir at law, 
 
 marriatre. ,. ^ . f. 
 
 according to or in pursuance ot any marriage con- 
 tract or agreement in writing, bond fide made before such marri- 
 age, the same and every of them shall be in full force ; and the 
 same manors, messuages, lands, tenements, and hereditaments, 
 shall and may be holden and enjoyed by every such person or 
 persons, his, her, and their executors, administrators, and assigns, 
 for whom the said limitation, appointment, devise, or disposition, 
 was made, and by his, her, and their trustee or trustees, his, her, 
 and their heirs, executors, administrators, and assigns, for such 
 estate or interest as shall be so limited or appointed, devised, or 
 disposed, until such debt or debts, portion or portions, shall be 
 raised, paid, and satisfied. 
 
 And whereas several persons, being heirs at law, 
 V. Making heir ^ i • i i 
 
 at law answerable ^^ avoid the payment of such just debts, as in 
 
 in cases where he regard of the lands, tenements, and heredita- 
 
 sells or aliens be- j^gj^^g descending to them, they have by law been 
 fore action brought. . . , 
 
 liable to pay, have sold, aliened, or made over such 
 
 lands, tenements, or hereditaments, before any process was or 
 
 could be issued out against them, be it enacted, That in all cases 
 
 where any heir at law shall be liable to pay the debt of his ancestor, 
 
 in regard of any lands, tenements, or hereditaments, descending to
 
 S. I.] STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. 217 
 
 liim, and shall sell, alien, or make over the same, before any 
 action brought, or process sued out, against him, that such heir at 
 law shall be answerable for such debt or debts, in an action or 
 actions of debt, to the value of the said land so by him sold, 
 aliened, or made over ; in which- cases all creditors shall be pre- 
 ferred as in actions against executors and administrators, and 
 such execution shall be taken out upon any judgment or judg- 
 ments so obtained against such heir, to the value of the said land, 
 as if the same were his own proper debt or debts ; saving, that 
 the lands, tenements, and hereditaments, bondjide aliened before 
 the action brought, shall not be liable to such execution. 
 
 Provided always, and be it enacted. That where 
 VI. Prescribing . r ^^ • • i 
 
 the cases in which ^^J ^ction of debt upoii any specialty is brought 
 
 on verdict or jud^- against any heir, he may plead nens />er descent 
 
 ment against heir ^^ ^j^^ ^j^^^ ^^ ^j^^ original writ brought, or the 
 
 at law, a jury shall _ ^ ^ ^ ... 
 
 or shall not inquire hill filed against him ; and the plaintiff in such 
 
 of the value of the action may reply, that he had lands, tenements, 
 
 lands descended. ii j., . ^ i* , ir .^ 
 
 and hereditaments irom his ancestors, beiore the 
 
 original writ brought, or bill filed; and if, upon issue joined 
 thereupon, it be found for the plaintiff, the jury shall inquire 
 of the value of the lands, tenements, or hereditaments, so de- 
 scended, and thereupon judgment shall be given, and execution 
 shall -be awarded, as aforesaid: but if judgment be given against 
 such heir by confession of the action, without confessing the 
 assets descended, or upon demurrer, or niliil dicit, it shall be for 
 the debt and damages, without any writ to inquire of the lands, 
 tenements, or hereditaments, so descended. 
 irTT nr I • i Provided also, and be it further enacted. That 
 
 Vii. Makingde- ' ' 
 
 visee liable in the all and every devisee and devisees, made liable by 
 
 same manner as the this Act, shall be liable and chargeable in the 
 heir at law, not- i i . i t r /- i • 
 
 withstanding alie- ^^"^® manner as the heir at law, by force of this 
 
 nation before action Act, notwithstanding the lands, tenements, and 
 
 brought. hereditaments, to him or them devised, shall be 
 
 aliened before the action broug^ht. 
 
 Under the words " power to dispose of" used in Section II,, 
 
 leasehold estates pu7' auter vie are construed to be within the
 
 218 STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. [CII. XV. 
 
 statute, and a devise, therefore, of them has been decided to be 
 void against creditors (/). Under Section III. it is decided, 
 that the action thereby given is limited to an action of debt, and 
 does not extend to an action of covenant for the recovery of 
 damages (p). If a creditor files a bill in equity against the 
 devisee, the heir at law of the testator must be made a defendant 
 in the suit (A). He is likewise a necessary party in a suit in 
 equity against the assignees of the devisee, who is a bankrupt (/). 
 In an action against the heir and devisee, a plea put in by either, 
 and which confesses lands descended or devised, must particularly 
 specify or describe those lands {j). 
 
 A person, by a bond, without a penalty, bound himself and his 
 heirs to pay an annuity; and, by his will, devised all his freehold 
 lands, in trust for his son. The son died under twenty-one, and 
 the trustee being held to take an estate only until the son died, 
 in an action brought on the bond against the trustee, for arrears 
 of the annuity become due after the son's death, it was decided 
 that the action could not be maintained ; on the grounds, that the 
 plaintiffs were not creditors in the time of the testator, and that 
 they had received all that for which they became creditors in the 
 time of the devisee; that the statute 3 and 4 W. & M. c. 14, 
 therefore, did not affect the question, and, as the defendant no 
 longer had the land, he could not be charged in the action (k). 
 
 Where a bill was filed by creditors for satisfaction out of real 
 assets descended to an infant heir. Sir L. Kenyon said, he could 
 not make this direction, because the parol might demur ; but he 
 ordered a receiver to be appointed of the real estate descended (/). 
 In another case, however, where a person devised one of his 
 estates to his heir at law, charged with the payment of two 
 
 (/) Westfaling v. Westfalitig, 3 Atk. 
 460, 465. 
 
 (g) Wilson V. Knuhley, 7 East, 128. 
 
 (h) Gawler v. Wade, 1 P. W. 99, 
 cited 2 Atk. 434, 435 ; Warren v. Stawell, 
 2 Atk. 125. If there is no heir, or the 
 plaintiff cannot discover one, see Gnwier 
 V. Wade, above, and 7 East, 133, where 
 
 it is cited. 
 
 (i) Warren v. Stawell, 2 Atk. 125. 
 
 (./■) Gott V. Atkinson, Willes, 521, 
 
 (k) Morra?it v. Gough, 7 B. & C. 206, 
 1 Mann. & Ryl. 41. 
 
 (/) Sweet V. Partridge, 2 Dick. 696, 1 
 Cox, 433, cited 2 Jac, & W. 290.
 
 S. I.] STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. '219 
 
 legacies, and devised other estates to his heir, without any charge 
 on them, counsel argued that, " as to the estate charged with the 
 legacies, the parol would not demur ; for the legatees had a right 
 to have their legacies immediately raised, they being expressly 
 charged on that estate ; but that" the legacies could not be raised, 
 until the specialty creditors were satisfied ; and therefore the pay- 
 ment of the specialty debts was incidental to the raising of the 
 legacies, which took this case out of the common rule of the 
 parol demurring, so far as respected the charged estate." Lord 
 Loughborough " was of this opinion, and ordered the charged 
 estate to be sold" (m). A person by his will gave to his only 
 child T. D., an infant, all his water corn-mill, with the appurte- 
 nants, and three cow commons on Morton Heath ; to hold to the 
 said T. D., his heirs and assigns, after age ; and in case of the 
 death of T. D. under age, then the testator gave the said mill, 
 &c., to M. D. The testator's specialty creditors having exhausted 
 his personal estate, and his creditors by simple comtract applying 
 to stand in their place, Sir W. Grant held the estate could not 
 be sold until the infant came of age ; saying, " The devisee is an 
 infant, and therefore I cannot order the estate to be sold, until 
 he comes of age. I can only declare, that the simple contract 
 creditors are entitled to stand in the place of the specialty credi- 
 tors'; with liberty to apply, when the infant comes of age, to have 
 the estate sold to pay their debts" (n). Here the infant devisee 
 appears to have been the testator's heir at law. Flasket v. Beehy 
 decides, that an infant devisee, against whom an action at law 
 is brought, is not, like an infant heir at law, entitled to the 
 privilege of praying that the parol may demur until he is of 
 age (o). 
 
 The proviso in Section IV. extends to make valid a devise, or 
 disposition, by which a person in his will devises land, in trust 
 for (/>), or charged with {q), the payment of his debts; as if he 
 gives to trustees all his lands, upon trust to sell, and to apply the 
 
 (rn) Mould v. Williamson, 2 Cox, 386. 
 (ji) Powell V. Robins, 7 Ves. 209. 
 (o) 4 East, 485, 1 Smith, 264. 
 
 (p) Earl of Bath v. Earl of Bradford, 
 2 Ves. 587. 
 
 (fy) Aenf v.Cmig, cited 2 Atk. 29 1,293.
 
 220 STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. [CH. XV. 
 
 money arising from such sale in payment of his just debts (r) ; 
 or charges all his lands with the payment of his debts, and gives 
 all his real estate to G., his heirs and assigns, chargeable never- 
 theless with the payment of the testator's debts and legacies (.s). 
 
 Contrary to some former cases (t), which must now be consi- 
 dered to be overruled, to come within Section IV. of the statute, 
 it is not necessary that the disposition in the will break the 
 descent to the testator's heir at law; for although the descent is 
 not broken, yet if the land descends, charged by the will with the 
 payment of debts, this charge is construed to be a disposition 
 within the proviso of that section of the statute ; in other words, 
 is not fraudulent within the intent of the statute (u). 
 
 A person, who by his will makes real estate a fund for the 
 payment of his debts, may confine this fund to a particular part 
 only of his property. To pay the debts he may devise to trustees 
 a particular estate, excepting the capital mansion-house ; and 
 this devise may not be fraudulent under the statute (v). So he 
 may prescribe a particular manner to pay the debts; and this 
 manner may not vitiate the disposition made by him. A devise, 
 for instance, of land, in trust to pay debts, may not be fraudulent 
 under the statute, and may come within the proviso of Section IV., 
 and be therefore valid, although the trust created is to pay the 
 debts out of the yearly rents and profits only ; a devise that does 
 not authorise a Court of Equity to decree a sale of the land. 
 Such a devise occurred in Lingard v. Earl of Derhy^ where the 
 Master of the Rolls ordered the money for the payment of debts 
 to be raised by mortgage. But it appearing by the Master's 
 report, that a sufficient sum could not be raised by mortgage, it 
 became a question whether the Court could, under the will, order 
 a sale. And it was decided that a sale could not be decreed; 
 Lord Loughborough saying, " Where the devise is, to pay the 
 
 (r) Gott V. Atkinson, Willes, 521 ; 
 Gottv. Vavasor, S. C, 2 Barnes, 136. 
 
 (s) Elliott V. Merryman, Barn. Ch. 
 Rep. 78, 80, 2 Atk. 41. 
 
 (0 Freemonlt v. Dedire, 1 P. W. 429, 
 431; Plunhet v, Fenson, 2 Atk. 290; 
 
 Young V. Dennet, 2 Dick. 452. 
 
 (h) Hargrave v. Tindal, 1 Bro. C. C. 
 136, n. ; Bailey v. Ekins, 7 Ves. 319; 
 Shiphurd V. Lutwidge, 8 Ves. 26. 
 
 (v) Hvghes V. Doulben, 2 Bio. C. C. 
 614, 2 Cox, 170.
 
 S, I.] STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. 221 
 
 debts out of the profits of the estate, it is equivalent to a devise 
 to the trustees to sell, and a decree for a sale is only an execution 
 of that trust. But I am afraid you will find that, both by the words 
 and construction of the Statute of Fraudulent Devises, where there 
 is a devise for the payment of debts, it takes the case out of the 
 statute, and it stands as it would have done before the statute 
 was made ; the creditor can come only as the will directs. I 
 take it to be the clear intent of the testator here, that not an acre 
 should be alienated for the payment of his debts ; therefore, there 
 cannot be a sale" (iv). It appears, however, that if a will con- 
 tains a disposition of a particular part only of real estate for the 
 payment of debts, although the statute may make this disposition 
 valid, yet, if such part is not sufficient to pay the debts, the sta- 
 tute has not the efi'ect to confine the creditors to that part only, and 
 they are entitled to come upon the remainder of the estate (.r). 
 And so if a particular manner is prescribed to pay the debts, as 
 by payment out of yearly rents and profits, the creditors are not 
 confined to this manner, if the fund constituted by it is ultimately 
 insufficient to pay them. The observations which Lord Thurlow 
 has made on Lord Loughboroug-h's opinion, expressed in lAngard 
 V. Earl of Derby ^ are a full authority to this effect. Lord Thurlow 
 says, " As to the case that has been cited, if it only meant to 
 determine, that the inconveniency of the mode prescribed by the 
 testator for the payment of his debts would not bring it within 
 the Statute of Fraudulent Devises, provided the fund was ulti- 
 mately sufficient, I agree with that case ; but if it was meant to 
 be laid down, that even though by the mode prescribed the fund 
 would turn out ultimately insufficient for the purpose, I never 
 can accede to that. Whenever such a case comes before me, I 
 will refer it to the Master to state to me, whether, according to 
 the mode prescribed by the testator, the debts could be paid ; and 
 if the Master tells me that the debts cannot be paid by this mode, 
 I will consider this as a fraudulent devise, until I am controlled 
 by the House of Lords" (?/). And Lord Eldon has said, " I 
 
 (w) 1 Bio. C.C. 311, cited 3 Ves. 118. I 614, 2 Cox, 170. 
 
 (i) Hughesv. Doulhen, 2 Bro. C. C. I (u) 2 Cox, 170; 2 Bro. C. C. 614.
 
 •222 STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. [CH. XV. 
 
 agree with Lord Thurlow, that although a devise for the payment 
 of debts by rents and profits would be out of the Statute of Frau- 
 dulent Devises, the Court would not be willing to adopt the 
 limited construction ; but would, upon a devise of a gross sum 
 out of rents and profits for that purpose, hold, that the testator 
 intended the debts to be paid with all convenient speed" {z). 
 
 Where a person devised a great part of his real estate, in trust 
 for the payment of all his debts, except such as he had contracted 
 by being bound as surety for H., Lord Hardwicke expressed an 
 opinion, " If this had been a devise for the payment of all his 
 debts generally, imdoubtedly this would have been good, within 
 the proviso of the Statute of Fraudulent Devises. But as this 
 devise was not for the payment of all his debts generally, this 
 case is not within the benefit of that proviso" (a). It appears, 
 however, his Lordship afterwards said he had a doubt whether 
 this opinion, which he had before given, was right or not; and he 
 reserved the question (b). It has been observed by Sir W. 
 Grant, that " though the Statute of Fraudulent Devises would 
 undoubtedly prevent a devise for payment of legacies, so as to 
 disappoint creditors by specialty, it would not prevent a devise 
 for payment of debts generally, though the effect would be to let 
 in creditors by simple contract, to the prejudice of creditors by 
 specialty" (c). The latter creditors are prejudiced, because the 
 devise makes the estate equitable assets, and accordingly distri- 
 butable amongst them and simple contract creditors equally (d). 
 But specialty creditors may not only be injured to this extent, 
 but may also, by a devise for payment of debts, be postponed to 
 creditors by simple contract. Lord Chief Justice Willes was of 
 opinion, that if there is a devise for the payment of any particular 
 debt upon simple contract, it will be a good devise against bond 
 creditors [e). And where a person by his will directed " his 
 
 (z) Bootle V. Blundell, 19 Ves. 528. 
 See 1 Meriv. 232, 233. 
 
 (u) Vernon v. Vawdrey, Barn. Ch. 
 Rep. 280, 304 ; cited Coop. Rep. 45, 
 where counsel said the report is confirmed 
 by the Reg. B. 
 
 (6) Barn. Ch. Rep. 307. 
 
 (c) 12 Ves. 154. 
 
 (d) Haslewood v. Pope, 3 P. W. 323 ; 
 Silk V. Prime, 1 Bro. C. C. 138, n. 
 
 (e) Willes Rep. 524.
 
 S. I.] STATUTE 3 AND 4 WILLIAM AND MARY, C. 14. 2*23 
 
 personal estate to be applied, in the first place, in the payment of 
 debts out of his family, and to strangers, and his real estate to be 
 sold, and simple contract creditors to have a preference, and then 
 to pay specialty creditors " ; Sir W. Grant decided, that " this 
 devise satisfied the words of the proviso, being for payment of 
 debts" (_/"). And here it may be mentioned, that in a case in 
 which a person, having an equity of redemption in fee in land, 
 devised the land and equity of redemption to trustees, in trust to 
 sell the devised premises, and thereby to pay all his debts ; Lord 
 King said, the testator " might give his equitable assets, in what 
 manner and upon what terms he pleased ; for instance, he might 
 dispose of them in trust to pay his simple contract debts only ; 
 though it was true he had no power by his will to dispose of his 
 personal estate from his creditors, or to devise it for satisfaction 
 of his simple contract creditors, in preference to his specialty 
 creditors; but these equitable assets being entirely within his 
 power, he might let in the specialty creditors for a satisfaction 
 thereout, under what terms he should think proper" {r/). " The 
 uniform rule," Lord Eldon says, " is, that a provision by will, 
 effectual, in law or in equity, for payment of creditors, is not 
 fraudulent within the intent of the statute" {h). And it seems, 
 also, it may not be fraudulent, although it is not effectual to pay 
 all the creditors of the testator. For it may, it is apprehended, 
 be stated, that a devise, or other testamentary disposition, for 
 the payment of debts, may not be fraudulent, although all the 
 testator's debts may neither be the object of such disposition, 
 nor be capable of satisfaction under it; for, as before is men 
 tioned, there is an express opinion of Lord Chief Justice 
 Willes, that a devise for the payment of any particular debt 
 upon simple contract is a good devise against bond creditors {i) ; 
 and Mi/la?' v. Horton decides, that the testator may give to 
 simple contract creditors a preference before creditors by spe- 
 cialty {j) ; and in either case, the fund may not be sufficient 
 
 (/) Millar V. Horton, Cooper, 45. I Qi) 7 Ves. 323. 
 
 (g) -Dfg V. Deo-, 2 P. W. 418. See (i) Willes, 524. 
 
 also 1 P. W. 228, 229, in arg. ' O) Cooper, 45.
 
 224 STATUTE 3 AND 4 WILLIAM AND JIARV, C. 14. [CH. XV. 
 
 to pay both classes of debt. But to make tlie devise or otlier 
 disposition not fraudulent, the manner or mode which it prescribes 
 to pay the debts, the satisfaction of which is the object of the 
 devise, must be effectual for the purpose (/.). 
 
 " Before the statute of 3 W. III., c. 14, the heir was not bound 
 by lands descending to him, where sold or aliened before action 
 brought ; and if an obligor devised his land, the devisee so selling 
 was not liable to the obligee " (/). Section V. of that statute 
 provides an action of debt against the heir, to wliom land is 
 descended, if he aliens the land before he is sued by his ancestor's 
 creditors. And it appears that, as before the statute, the credi- 
 tors might, against such alienation, obtain relief in a Court of 
 Equity (?«), so this Court has likewise relieved them since the 
 statute (n). The heir or devisee, who aliens the land, continues 
 afterwards to be personally responsible for the debts of the ances- 
 tor or testator (o) ; but, neither at law, nor in equity, is the land, 
 or purchaser of it, liable to such debts, after it is londjide aliened 
 by the heir {p), or devisee [q). 
 
 When a person dies indebted by bond, in which his heirs are 
 bound, and at his death land in possession, that is, an estate in 
 fee in possession, as distinguished from reversion, descends to his 
 heir ; here, if the heir devises the land, this devise is within the 
 statute, and fraudulent and void, as against the bond creditor of 
 the ancestor (r). And such a devise may likewise be fraudulent, 
 although the estate descended to the heir is a reversion in fee, ex- 
 pectant on an estate taiL In Kinaston v. Clark, T. D. settled his 
 estate on himself for life, remainders over for life, remainder to his 
 first and every other son in tail male, remainder to himself in fee. 
 There was issue a son. The father died indebted by bond ; and 
 
 (k) 2 Cox, 170; 2 Bro. C. C. 614. 
 
 (0 By Lord Hardwicke, 2 Atk. 204 ; 
 Denton's case, Clayton, 106. 
 
 (m) 1 P. W. 777. 
 
 (ii) Bateman v. Bateman, 1 Eq. Cas. 
 Abr. 149. 
 
 (o) Stnt. 3 and 4 W. & M. c. 14, 
 
 s. 5, 7; 2 Anstr. 514, 515. 
 
 (p) Stat. 3 and 4 W. & M. c, 14, s. 5. ; 
 2 Anstr. 514, 515. 
 
 (q) Stat. 3 and 4 W, & M. c. 14, 
 s. 5. 7.; Matheus v. Jours, 2 Anstr- 
 506,514, 515. 
 
 (r) 2 Atk. 206.
 
 s. II.] STAT. 47 GEO. III. ST. 2, c. 74. 223 
 
 the son died afterwards without issue, but by his will devised the 
 estate to the defendant in fee. Lord Hardwieke decided that this 
 reversion, being come into possession, was assets to pay the debts 
 of the father, notwithstanding the son had devised it to the defen- 
 dant. And, by circuity, the simple contract creditors are, he 
 said, to stand in the place of satisfied bonds (s). A principal 
 ground of this decision is, that where, by the bond of a person, 
 his heirs are bound, " the heir is as much debtor upon the bond 
 as the obligor" (t). Of a reversion in fee, expectant on an estate 
 tail. Sir T. Plumer also has said, " The heir cannot devise it : 
 any disposition of it, whether made by the will of the ancestor, 
 or of the heir, is null and void, as against creditors, by the statute 
 3 W. Sl M., c. 14" {u). And, speaking of Kinaston v. Clark^ the 
 same learned judge says, the question there was, whether, pend- 
 ing the estate tail, the heir could devise the estate ; and Lord 
 Hardwieke, though entertaining much doubt, determined that his 
 devise was void under the statute [v). 
 
 It may in this place be stated, that, although a debt by bond, 
 in which the heirs of the obligor are bound, is the debt of the 
 heir, because his ancestor has bound him, " yet he is liable no 
 farther than to the value of the land descended ; and as soon as 
 he has paid his ancestor's debts to the value of the land, he shall 
 hold the land discharged ; otherwise, he might be chargeable ad 
 infinitum" {lo). 
 
 SECTION IL 
 
 STAT. 47 GEORGE III. ST. 2, C. 74. 
 
 The statute 47 Geo. III. st. 2, c. 74, enacts, That from and 
 after the passing of this Act, when any person, being at the time 
 of his death a trader within the true intent and meaninaf of the 
 
 (s) 2 Atk. 204; stated from MS. 2 
 Cruise Dig. 2nd ed. 447 ; and cited 
 Jacob Rep. 219. 
 
 (0 2 Atk. 205 ; 2 Cruise Dig., ind 
 ed, 4G5. 
 
 (if) Jacob Rep. 218. 
 (d) Ihld. 219. 
 
 {w') Buckley v. Xiglitingale, 1 Stra, 
 665.
 
 226 STAT. 47 GEO. III. ST. 2, c. 74. [ch. xv. 
 
 laws relating to bankrupts, shall die seised of, or entitled to, any 
 estate or interest in lands, tenements, hereditaments, or other 
 real estate, which he shall not by his last will have charged with, 
 or devised subject to or for, the payment of his debts, and which, 
 before the passing of this Act, would have been assets for the 
 payment of his debts due on any specialty, in which the heirs 
 were bound, the same shall be assets to be administered in Courts 
 of Equity for the payment of all the just debts of such person, as 
 well debts due on simple contract as on specialty ; and that the 
 heir, or heirs at law, devisee, or devisees of such debtor, shall be 
 liable to all the same suits in equity, at the suit of any of the 
 creditors of such debtor, whether creditors by simple contract or 
 by specialty, as they were before the passing of this Act liable to 
 at the suit of creditors by specialty, in which the heirs were 
 bound. Provided always, that, in the administration of assets by 
 Courts of Equity, under and by virtue of this Act, all creditors 
 by specialty, in which the heirs are bound, shall be paid the full 
 amount of the debts due to them, before any of the creditors by 
 simple contract, or by specialty, in which the heirs are not 
 bound, shall be paid any part of their demands. 
 
 To bring a case within this statute, the deceased must have 
 been a trader at the time of his death. In Keene v. Riley, simple 
 contracf creditors moved for a receiver ; but it being contended, 
 that, as the testator had not by his will charged his real estate 
 with the payment of his debts, the Court had no jurisdiction 
 to appoint a receiver, the testator not being a trader at the time 
 of his death. Lord Eldon, upon hearing the clause of the statute 
 read, said that was his opinion (.r). Also in Hitclion v. Bennett.y 
 where the question was, whether the real estate of a person 
 deceased was, under the statute, liable to the payment of his 
 simple contract debts, Sir John Leach stated, — " The law remains 
 as before the statute, unless the deceased was a trader at the time 
 of his death. The Master has found that this testator had dis- 
 continued trading from the year 1794, being two years previous 
 to his death, and it [I] cannot therefore apply to his estate the 
 
 (a) 3 Mei. 436.
 
 s. II.] STAT. 47 GEO. III. ST. '2, c. 74. 227 
 
 provisions of this statute. It is said that this construction will 
 enable a man, labouring under a mortal disease, to quit his trade, 
 and thus exonerate his real estate. In such a case, it would be 
 difficult to avoid an imputation of fraud, that would frustrate his 
 purpose. But if a man should happen to die the day after he 
 has bond fide quitted trade, this statute does not apply to his 
 estate" (?/). In Lechmere. v. Brasier, where a bill in equity was 
 filed by simple contract creditors of an intestate against his infant 
 heir at law, and a decree had been made, ordering a sale of the 
 real estate, Lord Eldon expressed a doubt, if the decree ought to 
 have been for a sale during the infancy of the heir, as the parol 
 might demur (z). An admission by an executrix of a simple 
 contract debt was, in Putnam v. Bates, held not to take the debt 
 out of the Statute of Limitations, so as to entitle the creditor to a 
 decree for payment out of real estate devised. The defendants 
 were S. B., the executrix and devisee of a moiety of the real 
 estate, of which the testator died seised, and B. and his wife, who 
 were the devisees of the other moiety. Proof was given of pay- 
 ment of part of the debt by the executrix within six years ; but 
 there was no evidence of any admission of the debt by B. and 
 his wife. And the question being, whether the plaintiff was 
 entitled to any decree against B. and his wife, and against so 
 much of the real estate as they were interested in. Lord Gifford 
 said, " The plaintiff admits that he must prove the debt against 
 the executrix, and that he must also prove an admission 
 within six years. He admits farther, that, for the purpose of 
 affecting the real estate, he must prove the debt against the heir 
 or devisee, as well as against the executrix. If, in a proceeding 
 at law, he were to recover on a promise made by the executrix, 
 he can scarcely contend that such a judgment would be evidence 
 against the heir or devisee. But as the original existence of the 
 debt must be proved against the devisee, is it not equally neces- 
 sary to prove against him an admission of the debt within six 
 years ? If the admission by the executrix within six years be 
 sufficient to take the case out of the Statute of Limitations as 
 
 {y) 4 Madd. 180. (:) 2 J. & W. 287. 
 
 o 2
 
 228 STAT, n GEO. IV. AND 1 WILI.. TV. C. 47. [CH. XV, 
 
 af^ainst the heir or devisee, why shoiihl not lier admission be 
 equally evidence against him as to the orij^inal existence of the 
 debt ? If it be necessary to prove the debt against the devisee, it 
 must be equally necessary to prove some admission within six 
 years, that can affect him. The decree can be only against 
 S. B." («). In Horn v. Horn., a person, who was at the time of 
 his death a trader, devised his real estates, subject to the payment 
 of legacies, to his son J. H. in fee. And on a bill filed by lega- 
 tees for payment of their legacies, Sir John Leach decided, that 
 the purchaser from an heir or devisee of a trader is bound to see 
 to the application of his purchase money in satisfaction of legacies 
 charged on land descended or devised, notwithstanding the sta- 
 tute 47 Geo. Ill, St. 2, c. 74, by which simple contract debts are 
 also to be paid out of the land {h). 
 
 SECTION III. 
 
 STAT, n GEORGE IV. AND 1 WILLIAM IV. C. 47. 
 
 The statutes 3 and 4 William and Mary, c. 14, and 47 Geo. 
 III. St. 2, c. 74, yet remain in force, so far as their provisions and 
 remedies affect the real estates of persons, who died before the 
 16th July 1830, at which time the following statute, 11 Geo. IV. 
 and 1 Will. IV. c. 47, passed. And which Act, it will be seen, 
 repeals the two former statutes, and, with respect to certain debts 
 of persons in being on or after the 16th July 1830, consolidates 
 and enlarges the provisions of the Acts repealed. 
 
 I. Repealing re- Whereas an Act was passed in the third and 
 cited Acts. fourth years of King William and Queen Mary, 
 
 intituled " An Act for the Relief of Creditors against Fraudu- 
 lent Devises," which was made perpetual by an Act passed in the 
 sixth and seventh years of King William the Third, intituled, 
 " An Act for continuing several Laws therein mentioned." And 
 whereas an Act was passed by the Parliament of Ireland, in the 
 fourth year of Queen Anne, intituled, " An Act for Relief of 
 
 (h) 3 Russ. 188. (6) 2 Siin. & St. 448.
 
 S. III.] STAT. 11 GEO. IV. AND 1 WILL. IV. C. 47. 2*29 
 
 Creditors against Fraudulent Devises." And whereas an Act 
 was passed in the forty-seventh year of his late Majesty King 
 George the Third, intituled, " An Act for more eifectually se- 
 curing the Payment of Debts of Traders." And whereas it is ex- 
 pedient that the provisions of the said recited Acts should be en- 
 larged, and that the said recited Acts should be repealed, in 
 order that all the provisions relating to this matter should be 
 consolidated into one Act. Be it therefore enacted, that the 
 said several recited Acts shall be, and the same are hereby re- 
 pealed, but so as not to affect any of the provisions and remedies 
 of the said Acts, or any of them, to the benefit of which any 
 persons are entitled, as against any estate or interest in any lands, 
 tenements, hereditaments, or other real estates, of any person or 
 persons who died before the passing of this Act. 
 
 II. Makingwills And whereas it is not reasonable or just that, 
 
 vo-.d, as against jjy ^j^g practice or contrivance of any debtors, 
 
 , ,, ' their creditors should be defrauded of their iust 
 
 covenant, or other J 
 
 specially, binding debts, and nevertheless it hath often so happened, 
 the testator s heirs. |.jj^|. ^}igpe several pcrsons having, by bonds, 
 covenants, or other specialties, bound themselves and their heirs, 
 and have afterwards died seised in fee-simple, of, and in manors, 
 messuages, lands, tenements, and hereditaments, or had power or 
 authority to dispose of or charge the same by their wills or testa- 
 ments, have, to the defrauding of such their creditors, by their 
 last wills or testaments devised the same, or disposed thereof in 
 such manner as such creditors have lost their said debts; for 
 remedying of which, and for the maintenance of just and upright 
 dealing, be it therefore further enacted. That all wills and testa- 
 mentary limitations, dispositions, or appointments, already made 
 by persons now in being, or hereafter to be made by any person 
 or persons whomsoever, of or concerning any manors, messuages, 
 lands, tenements, or hereditaments, or any rent, profit, term, or 
 charge out of the same, whereof any person or persons at the 
 time of his, her, or their decease shall be seised in fee-simple, in 
 possession, reversion, or remainder, or have power to dispose of 
 the same by his, her, or their last wills or testaments, shall be
 
 230 STAT. 11 GEO. IV. AND 1 WILL. IV. C. 47. CH. XV.] 
 
 deemed or taken (only as against such person or persons, bodies 
 politic or corporate, and his and their heirs, successors, executors, 
 administrators, and assigns, and every of them, with whom the 
 person or persons making any such wills or testaments, limita- 
 tions, dispositions or appointments, shall have entered into any 
 bond, covenant, or other specialty, binding his, her, or their 
 heirs,) to be fraudulent, and clearly, absolutely, and utterly 
 void, frustrate, and of none effect; any pretence, colour, feigned 
 or presumed consideration, or any other matter or thing to the 
 contrary notwithstanding. 
 
 And for the means that such creditors may be 
 
 III. Enabling 
 
 creditors to main- enabled to recover upon such bonds, covenants, 
 tain an action of and other Specialties, be it further enacted. That 
 debt or covenant j^ ^j^^ ^^^^^ before mentioned, every such creditor 
 
 against heir at law, ... 
 
 and devisee, or shall and may have and maintain his, her, and their 
 devisee of devisee, action and actions of debt or covenant upon the 
 ^ '° ^' said bonds, covenants, and specialties, against the 
 
 heir and heirs at law of such obligor or obligors, covenantor or 
 covenantors, and such devisee and devisees, or the devisee or de- 
 visees of such first mentioned devisee or devisees, jointly, by 
 virtue of this Act; and such devisee or devisees shall be liable 
 and chargeable for a false plea by him or them pleaded, in the 
 same manner as any heir should have been for any false plea by 
 him pleaded, or for not confessing the lands or tenements to him 
 descended. 
 
 IV. Enablino- And be it further enacted. That if in any 
 
 creditors to main- case there shall not be any heir at law against 
 
 tain an action ^\^^J^ jointly with the devisee or devisees, a 
 
 against the devisee . 
 
 solely, if there is remedy is hereby given, in every such case every 
 
 not any heir at law. creditor, to wliom by this Actrelief is so given, shall 
 
 and may have and maintain his, her, and their action and actions 
 
 of debt or covenant, as the case may be, against such devisee 
 
 or devisees solely ; and such devisee or devisees shall be liable 
 
 for false plea as aforesaid. 
 
 V. Retaining in Provided always, and be it further enacted, 
 
 full force any dis- That where there hath been or shall be any limi-
 
 S. III.] STAT. 11 GEO. IV. AND 1 WILL. IV. C. 47. 231 
 
 tatioii or appointment, devise, or disposition, of or 
 
 raising or payment Concerning any manors, messuages, lands, tene- 
 
 of any debts; or ments, or hereditaments, for the raising or payment 
 
 , .,, . of any real and iust debt or debts, or any portion 
 
 children, pursuant •' •> ' j i 
 
 to agreement in or portions, sum or sums of money, for any child 
 
 writing made be- qj. cli}l(Jren of any person, according to or in 
 fore marriage. 
 
 pursuance of any marriage contract or agreement 
 
 in writing, hondjide made before such marriage, the same and every 
 of them shall be in full force, and the same manors, messuages, 
 lands, tenements, and hereditaments, shall and may be holden and 
 enjoyed by every such person or persons, his, her, and their heirs, 
 executors, administrators, and assigns, for whom the said limita- 
 tion, appointment, devise, or disposition was made, and by his, 
 her, and their trustee or trustees, his, her, and their heirs, execu- 
 tors, administrators, and assigns, for such estate or interest as 
 shall be so limited or appointed, devised, or disposed, until such 
 debt or debts, portion or portions, shall be raised, paid, and 
 satisfied. 
 
 VI. Making heir And be it further enacted. That in all cases 
 at law answerable, ^j^g^.^ |^gjj, ^^ j^^ ^Y\q[\ be liable to pay the 
 
 in cases where he 
 
 sells or aliens be- "cbts, or perform the covenants, of his ancestors, 
 
 fore action brought, in regard of any lands, tenements, or heredita- 
 ments-descended to him, and shall sell, alien, or make over the 
 same, before any action brought or process sued out against him, 
 such heir at law shall be answerable for such debt or debts, or 
 covenants, in an action or actions of debt or covenant, to the 
 value of the said lands so by him sold, aliened, or made over, in 
 which cases all creditors shall be preferred as in actions against 
 executors and administrators ; and such execution shall be taken 
 out upon any judgment or judgments so obtained against such 
 heir, to the value of the said land, as if the same were his own 
 proper debt or debts ; saving that the lands, tenements, and here- 
 ditaments, hondjide aliened before the action brought, shall not be 
 liable to such execution. 
 
 VII. Presciib- Provided always, and be it further enacted, 
 ing the cases, in That where any action of debt or covenant upon
 
 232 STAT. 11 GEO. IV. AND 1 WILL. IV. C. 47. [CH. XV. 
 
 ... ,. any specialty is broug-lit aij:ainst the heir, he may 
 
 winch, on verdict J i J n n ^ ^ j 
 
 orjiidgmentagainst plead rieus per descent, at the time of the original 
 heir at law, a jury ^,.j(. brouuht, or the bill filed against him; and 
 
 shall or shall not , ,..„.. , . i ^i ^ i i j 
 
 f ., , the ])lanitm in such action may reply, that he had 
 
 inquire ot the value ' j i j^ 
 
 of the lands des- lands, tenements, or hereditaments, from his an- 
 cended. cestor, before the original writ brought, or bill 
 
 filed; and if, upon the issue joined thereupon, it be found for the 
 plaintiff, the jury shall inquire of the value of the lands, tene- 
 ments, or hereditaments, so descended, and thereupon judgment 
 shall be given, and execution shall be awarded, as aforesaid ; but 
 if judo-ment be given against such heir, by confession of the 
 action, without confessing the assets descended, or upon demurrer, 
 or nihil elicit, it shall be for the debt and damage, without any 
 writ to inquire of the lands, tenements, or hereditaments, so 
 descended. 
 
 ,rTXT „T , • Provided always, and be it further enacted, 
 
 VIII. Making . . 
 
 devisee liable in That all and every the devisee and devisees, made 
 
 the same manner ^^^^i^ {^y ^.j^jg j^^^^ g|^j^|| ^^ ^jj^l^jg j^j^^ chargeable, 
 
 as the heir at law, . i i • i i r 
 
 notwithstanding a- ^^ the Same manner as the heir at law, by force 
 lienation before ac- of this Act, notwithstanding the lands, tenements, 
 tion brougiit. ^^^ hereditaments, to him or them devised, shall 
 
 be aliened before the action brought. 
 
 IX. Making real And be it further enacted, That from and 
 estate of traders ^^^^j. ^|^g passing of this Act, where any person, 
 
 assets to be adrni- . . /■ i . i i i • i • 
 
 nistered in Courts being, at the time 01 his death, a trader, withm 
 of Equity, for the the true intent and meaning of the laws re- 
 payment of as well j^^.jj j.^ bankrupts, shall die seised of, or entitled 
 
 debts on simple ° '- ^ 
 
 contract as on spe- to, any estate or interest in lands, tenements, or 
 cialty. hereditaments, or other real estate, which he shall 
 
 not, by his last will, have charged with, or devised, subject to, or 
 for, the payment of his debts, and which would be assets for the 
 payment of his debts due on any specialty, in which the heirs were 
 bound, the same shall be assets, to be administered in Courts 
 of Equity, for the payment of all the just debts of such person, 
 as well debts due on simple contract as on specialty ; and that 
 the heir or heirs at law, devisee or devisees, of such debtor,
 
 S. 111.] STAT. 11 GEO. IV. AND 1 WILL. IV. C. 47. 233 
 
 and the devisee or devisees of sucli first mentioned devisee or 
 devisees, shall be liable to all the same suits in equity, at the 
 suit of any of the creditors of such debtor, whether creditors 
 by simple contract or by specialty, as they are liable to at 
 the suit of creditors by specialty, in which the heirs were 
 bound ; Provided always, that in the administration of assets by 
 Courts of Equity, under and by virtue of this provision, all credi- 
 tors by specialty, in which the heirs are bound, shall be paid the 
 full amount of the debts due to them, before any of the creditors 
 by simple contract, or by specialty, in which the heirs are not 
 bound, shall be paid any part of their demands. 
 
 X. Enacting that And be it further enacted. That from and 
 the parol shall not after the passiiig of this Act, where any action, 
 
 demur, in cases of . , ,. ^ i /- i i 
 
 action or suit b or ^" ' ^^ other proceeding, tor the payment or debts, 
 against any infant or any Other purpose, shall be commenced or pro- 
 under twenty-one. gec^,tpf[ jjy or agaiiist any infant under the age of 
 twenty-one years, either alone or together with any other person or 
 persons, the parol shall not demur ; but such action, suit, or other 
 proceeding, shall be prosecuted and carried on in the same manner, 
 and as effectually, as any action or suit could, before the passing of 
 this Act, be carried on or be prosecuted by or against any infant, 
 where, according to law, the parol did not demur. 
 
 And be it further enacted. That where any 
 
 XI. Empower- . i i i 
 
 ine Courts of Equi- ^^^^^ ^'^^'^ been or shall be instituted in any Court 
 ty to direct or com- of Equity, for the payment of any debts of any 
 
 pel infant heir at i j ^ i • i ii • i • 
 
 ^ , . person or persons deceased, to which their lieir 
 
 law, or devisee, to *■ ^ 
 
 convey estates, de- or heirs, dcvisee or devisees, may be subject or 
 creed to be sold liable, and such Court of Equity shall decree the 
 , , ° estates liable to such debts, or any of them, to be 
 
 sold for satisfaction of such debt or debts, and by 
 reason of the infancy of any such heir or heirs, devisee or devisees, 
 an immediate conveyance thereof cannot, as the law at present 
 stands, be compelled; in every such case, such Court shall direct, 
 and, if necessary, compel such infant or infants, to convey such 
 estates to be sold (by all proper assurances in the law) to the pur- 
 chaser or purchasers thereof, and in such manner as the said Court
 
 204 STAT. 11 GEO. IV. AND 1 WILL. IV. C. 47. [CII. XV. 
 
 shall think proper and direct ; and every such infant shall make 
 such conveyance accordingly ; and every such conveyance shall 
 be as valid and effectual, to all intents and purposes, as if such 
 person or persons, being an infant or infants, was or were, at the 
 time of executing the same, of the full age of twenty-one years. 
 And be it further enacted, That where any 
 n . fv ■ lands, tenements,or hereditaments, have been or 
 
 ing Courts 01 Ii.qui- ' ' ' 
 
 ty, where any he- shall be devised in settlement, by any person or 
 reditaments arede- persons, whose estate, under this Act, or by law, 
 
 vised in settlement, , , . , . .,, .,, i n i i- i i 
 
 to decree the tenant "^ by his or their will or Wills, shall be liable to 
 for life, or other the payment of any of his or their debts, and by 
 person having a ^^^^^^ devise shall be vested in any person or per- 
 
 limited interest, or ... 
 
 the first executory SOUS for life, or other limited interest, with any 
 
 devisee, to convey remainder, limitation, or gift over, which may 
 
 the fee-simple, or ^ , , , i , • • 
 
 , , . not be vested, or may be vested in some person 
 other whole inter- ^ j i 
 
 est, in the heredi- or persons, from whom a conveyance or other 
 laments, decreed to assurance of the Same cannot be obtained, or by 
 
 be sold for the pay- . . , , i ii i 
 
 ment of debts, way of executory devise, and a decree shall be 
 made for the sale thereof for the payment of such 
 debts, or any of them, it shall be lawful for the Court by whom 
 such decree shall be made, to direct any such tenant for life, or 
 other person having a limited interest, or the first executory devi- 
 see thereof, to convey, release, assign, surrender, or otherwise 
 assure the fee-simple, or other the whole interest or interests so 
 to be sold, to the purchaser or purchasers, or in such manner as 
 the said Court shall think proper ; and every such conveyance, 
 release, surrender, assignment, or other assurance, shall be as 
 effectual, as if the person, who shall make and execute the same, 
 were seised or possessed of the fee-simple, or other whole estate, 
 so to be sold. 
 
 XIII. And be it further enacted. That nothing in this Act 
 shall extend, or be deemed or construed to extend, to repeal or 
 alter an Act, made by the Parliament of Ireland, in the thirty- 
 third year of the reign of King George the Second, intituled, 
 " An Act for the better securing the payment of bankers' notes, 
 and for providing a more effectual remedy for the security and 
 payment of the debts due by bankers."
 
 235 
 
 CHAPTER XVI. 
 
 OF ASSETS, WHICH CONSIST OF PROPERTY OUT OF 
 ENGLAND. 
 
 Goods or effects of a person deceased, and wliich are out of 
 England, may, to satisfy his debts, be assets in the hands of his 
 executor, who is in England. " If the executors," a Court of 
 Law has said, " have goods of the testator's in any part of the 
 world, they shall be charged in respect of them ; for many mer- 
 chants and other men, who have stocks and goods to a great value 
 beyond sea, are indebted here in England ; and God forbid, that 
 those goods should not be liable to their debts, for otherwise 
 there would be a great defect in the law" (a). And, to the same 
 effect. Lord Lyndhurst, in a late case before the Court of Ex- 
 chequer, stated, " The effects of the testator are assets, wherever 
 situated, whether at home or abroad ; and such effects as are in 
 a foreign country at the time of the testator's death, although 
 they remain and are wholly administered there by the executor, 
 are equally assets" (Z»). Goods or effects may, accordingly, be 
 assets when they are situated in Ireland (c), or consist of a sum 
 of money, which is a part of the rentes or public debt of France {d). 
 In a late case, a testator, an Englishman, a British subject, and 
 domiciled in England, died possessed of property in the American, 
 Austrian, French, and Russian funds ; and it was decided, that 
 this property, or stock, was, for the purpose of being liable to the 
 legacy duty, English personal property ; the executor being a 
 person living in England, an English executor, and having, as 
 executor, dealt with the stock, by causing it to be transferred 
 into his own name, and, by power of attorney, authorising the 
 
 (a) 6 Co. 47 b. 1 55. See also lb. 503. 
 
 (b) 1 Crompt. & Jerv. 370. (rf) Attomeii General v. Dhmmd, 1 
 
 (c) Dowdale's case, 6 Co. 46h.; Rich- Crompt. & Jerv. 356, 370, 1 Tyrwh. 
 ardson v. Doivdele, S. C, Cro. Jac. I 243.
 
 23G OF ASSETS, WHICH CONSIST OF [CH. XVI. 
 
 dividends to be paid to the legatees {e). And there it appears to 
 be admitted by Bayley, B., " that if there had been a deficiency 
 of assets in this country, to meet the debts of the testator, it 
 would have been the duty of the executor to have sold this pro- 
 perty, and to have brought it bodily into this country, as that 
 which was to be resorted to ; and that it would have been a devas- 
 tavit, if he had not adopted that plan, if there were debts" (/"). 
 
 The fourth section of the statute 5 George II. c. 7, " An Act 
 for the more easy recovery of debts in his Majesty's Plantations 
 and Colonies in America," makes real estates in those planta- 
 tions and colonies assets for debts, in like manner as real estates 
 were, at that time, by the law of England, liable to debts by 
 specialty {g). The statute enacts. That from and after the 29th 
 September, 1732, the houses, lands, negroes, and other heredita- 
 ments and real estates, situate or being within any of the said 
 plantations, belonging to any person indebted, shall be liable to, 
 and chargeable with, all just debts, duties, and demands, of what 
 nature or kind soever, owing by any such person to his Majesty, or 
 any of his subjects ; and shall and may be assets for the satisfac- 
 tion thereof, in like manner as real estates are, by the law of 
 England, liable to the satisfaction of debts due by bond or other 
 specialty, and shall be subject to the like remedies, proceedings, 
 and process, in any Court of law or equity, in any of the said 
 plantations, respectively, for seizing, extending, selling, or dis- 
 posing of any such houses, lands, negroes, and other hereditaments 
 and real estates, towards the satisfaction of such debts, duties, 
 and demands, and in like manner as personal estates in any of 
 the said plantations, respectively, are seized, extended, sold, or 
 disposed of, for the satisfaction of debts (li). 
 
 (e) Ewiri's, or Ewing's, case, 1 Crompt. 
 & Jerv. 151, 1 Tyrwh. 91. 
 
 (/) 1 Crorapt. & Jerv. 157. 
 
 (g) See Manning v. Spooner, 3 Ves, 
 118, and Thomson v. Grant. I Russ. 
 540 n. On the liability of a Plantation 
 in Barbadoes to debts, see 4 Mod. 226, 
 and Noel v. Robinson, I Vern. 90, 453, 
 460, 469, 2 Ch. Hep. 248, 2 Ventr. 
 
 358 ; Robinson v. Noel, S. C, 2 Ch. Cas. 
 145. And, generally, on Colonial Law, 
 see Howard on the Laws of the British 
 Colonies in the West Indies, and other 
 parts of America. 
 
 (Ji) So much of this Act, as relates to 
 Negroes, is repealed by stat. 37 Geo. III. 
 c. 119.
 
 CH. XVI.] PROPERTY OUT OF ENGLAND. 237 
 
 The following statute, 9 George IV. c. 33, is " An Act to 
 declare and settle the law respecting the liability of the real 
 estates of British subjects, and others, situate within the jurisdic- 
 tion of his Majesty's Supreme Courts in India, as assets in the 
 hands of executors and administrators, to the payment of the debts 
 of their deceased owners." It enacts, — 
 
 That whenever any British subject shall die 
 
 I. Real estate . , „ • i i i 
 
 made assets to pay seised ot or entitled to any real estate in 
 
 debts, whtither by houses, lands, or hereditaments, situate within or 
 specialty or simple ^^^- ^„j^gj. ^|^g p-eneral civil jurisdiction of His 
 
 contiact. . . 
 
 Majesty's Supreme Courts of Judicature at rort 
 William in Bengal, Fort St. George, and Bombay respectively ; 
 or whenever any person (not being a Mahomedan or Gentoo) 
 shall die seised of or entitled to any such real estate, situate within 
 the local limits of the civil jurisdiction of the same Courts respec- 
 tively ; such real estate of such British subject or other person as 
 aforesaid (not being a Mahomedan or Gentoo) is and shall be 
 deemed assets, in the hands of his or her executor or administra- 
 tor, for the payment of his or her debts, whether by specialty or 
 simple contract, in the ordinary course of administration. 
 
 That it is and shall be lawful for such executor or 
 
 II. Executors or . , i n • • i i • i 
 
 administrators may administrator of such British subject or other per- 
 sell re'al estate for SOU as aforesaid (not being a Mahomedan or Gen- 
 
 the payment of ^. ^^ ^^jj ^^^ dispose of such real estate for the 
 
 debts. ' ^ 
 
 payment of such debts as aforesaid, and to convey 
 and assure the same estate to a purchaser, in as full and effectual 
 a manner in law as the testator or intestate of such executor or 
 administrator could or might have done in his life-time. 
 
 Ill In any suit That in any suit or action to be commenced and 
 or action for debt, prosccutcd in any of the said Courts respectively, 
 the executor or ad- j^^j^j^g^ g^g]^ executor or administrator as aforesaid, 
 
 ministrator may be 
 
 charo^ed with the for the recovery of any debt or demand, due and 
 full amount in value owing by such testator or intestate in his life- 
 time, and at the time of his death, such executor 
 or administrator shall and may be charged with the full amount in 
 value of such real estate as aforesaid, not exceeding the actual net
 
 238 OF ASSETS, WHICH CONSIST, &C. [CH. XVI. 
 
 proceeds of such estate when sold by the sheriff, as assets in the 
 hands of such executor or administrator to be administered. 
 
 That in any such suit or action against such 
 
 IV. rower to is- 
 
 sue writs of seques- ^xecutor or administrator as aforesaid, it is and 
 
 tration or execution shall be lawful for the said Courts respectively to 
 
 against the real es- award and issue such writs of sequestration and 
 tate ■ 
 
 execution against such houses, lands, and real 
 
 effects of such testator or intestate, in the hands of such execu- 
 tor or administrator as aforesaid ; and to cause the same to be 
 seized, sequestered, and sold, or possession thereof delivered 
 inider such writs respectively ; in the same manner as such Courts 
 could and might have done in the life-time of such testator or 
 intestate as aforesaid. 
 
 That all conveyances and assurances of such 
 
 V. Confirming 
 
 conveyances there- ^^^^ estates of sucli British subjects and other per- 
 tofore made by exe- sons, SO dying seised or entitled as aforesaid, (not 
 
 cutors or adminis- !• tv/ti i r^i. \*i.i. '^^ • 
 
 , , being; Mahomedans or Crentoos, ) situate within or 
 
 trators. ^ ' / 
 
 being under the general or local jurisdiction of such 
 Courts respectively as aforesaid, heretofore made and executed by 
 executors and administrators of such deceased British subjects 
 and other persons as aforesaid, are hereby confirmed, and shall 
 be deemed, held, and taken to be of the same force, validity, and 
 effect in law, as if the same had been made and executed by such 
 deceased persons in their life-time. 
 
 VI. This Act That neither this Act, nor any thing herein con- 
 not to alter the tained, shall be construed to operate as or have 
 ture, oTtenuiero'f ^^^^ ^^^^* ^^ changing or altering the legal quality, 
 any subject of pro- nature, or tenure, of any lands, houses, estates, 
 P^''^^' rights, interests, or any other subject of property 
 whatsoever, or of making the same or any of them to be of the 
 nature of real property, if by law, before the passing of this Act, 
 the same or any of them were personal property ; but that the law 
 in that respect shall be and continue the same, as if this Act 
 had not passed.
 
 2.')J) 
 
 CHAPTER XVII. 
 
 OF PROPERTY, WHICH IS NOT ASSETS. 
 
 It appears that, among other instances (a), property and 
 things, which, by or in a Court of Law, have been held not to be 
 assets, are, — a debt due to a testator ; for, until paid, the debt is 
 in action, and not in possession (b) : bonds and specialties, which 
 " are no assets, until the money is paid" (c) : goods taken 
 from a testator in his life-time, " so as they never were but a 
 chose in action to the executor " ; which goods are not assets 
 imtil they are recovered (d) : an intestate's goods taken away by 
 wrong before administration granted ; which goods are " not 
 assets in the hands of the administrator, till they be converted, or 
 damages for them" (e) : a testator's goods, taken and converted 
 after his death, and before they come to the actual possession of 
 the executor (f) : the profits of a leasehold for years, on which 
 an executor has entered, and which profits do not exceed the 
 
 (a) ArchhhhoTp Craniner^s case, 3 Dyer, 
 309 b., 2 Leon. 7, 3 Leon. 23 ; Crosman 
 v.Reade, 1 Leon. 320, Cto. Eliz. 114, 
 Mo. 236 ; Lawrence v. Beverleigh, or 
 Beverly, 2 Keb. 841, also stated 2 Vern. 
 55, and Nels. Rep. 165, and cited 1 Vern. 
 471, and 3 P. W. 217; Edwards v. 
 Graves, Hob. 265 ; Nicols v. Bride 
 Bridge, 12 Mod. 381 ; Yard v. Eland, 
 or Ellard, 1 Ld. Raym. 368, 12 Mod. 
 207 ; Deering v. Torrington, 1 Salk. 79 ; 
 Parker v. Bay lis, 2 Bos. & P. 73 ; Roe 
 V. Harrison, 2 Burn. & E. 425, 429.— 
 Bro. Abr. tit. Executors, pi. 179 ; 2 Leon. 
 142, 143 ; 1 Rol. Abr. 923, M. pi. 3 ; 
 6 Co. 58 b.-, Cro. Eliz. 43; Cro. Jac. 
 142; Hardr 489; Cas. T. Holt, 297, 
 313, 314 ; 3 Vin. Abr. 141, p'. 7. See 
 
 aho A nnn. Gouldsb. 79, Ca. 15 ; Anon, 
 ih. 88, Ca. 14 ; and Eveling v. Leveson, 
 ib. 115; and, farther, Co. Litt. 113 a., 
 236 a. ; Bro. Abr. tit. Executors, pi. 150, 
 tit.Propertie, pi. 50 ; 1 Salk. 154 ; Wentw. 
 Off. Ex. ch. 5 & 6; and Shep. Touchst. 
 498. On the property of a bailee, or 
 pledgee, in goods bailed or pledged, see 2 
 Bl. Com. 396; Sir VV. Jones on Bailm. 
 75 — 86 ; and RatcUffe v. Davies, Cro. 
 Jac. 244. 
 
 (ft) Bro. Abr. tit. Executors, pi. 112; 
 Anon. Owen, 36. 
 
 (c) 1 Ventr. 96. 
 
 ((/) Bethel V. Stanhope, Cro. Eliz. 810. 
 
 (e) Keble v. Oshaston, Hob. 49. 
 
 (/') Jenkins v. Plomhe, or Plume, 6 
 Mod. 94, 1 Salk. 208.
 
 240 or PROPERTY, WHICH IS NOT ASSETS. [CH. XVII. 
 
 amount of the rent (y) : goods wliicli belonged to a testator, and 
 which his executors had in their hands ; in a case, where they 
 had paid to the value of them, in tlieir own money, to others, to 
 whom the testator was indebted (A); and in a case, Mdiere, for a 
 deb-t secured by bond of a testator, his executors took in the 
 bond, and gave their own bond to the obligee for payment of the 
 same debt (l) : plate pledged by a testator for its full value, and 
 redeemed by his executors with their own money (j) : a testa- 
 tor's goods, retained by an executor in satisfaction of his own 
 debt (h) : a chattel recovered by an executor in an action at law; 
 which chattel, though he has judgment, yet till execution is not 
 assets in his hands (/) : rent received by executors contiiuially 
 after their testator's death, under a lease which the testator made 
 for years, rendering a rent to him, and to his heirs and assigns (m) : 
 certain goods, which, being distrained and impounded, an execu- 
 tor has in his hands {n) : a right to present to a church, vacant at 
 the death of the patron, seised in fee or in tail of the advowson, 
 and which right devolves to his executor, and not to his heir (o) : 
 copyholds held at the will of the lord (p) : a right of entry or of 
 action; which right (without any estate in possession, reversion, 
 or remainder) " is not yet assets, until it be recovered, and 
 reduced into possession " iq). 
 
 Among other instances (r), it appears that property or things. 
 
 (g) Buckley v. Pirk, 1 Salk. 79, 316, 
 10 Mod. 12 ; Body v. Hargnive, Cro. 
 Eliz. 712. 
 
 (h) Langst07i v. Dive, cited Plowd. 
 186; Anon. 20 Hen. VII., cited Keilw. 
 59 b.; Ano7i. 1 Rol. Abr. 923. M. pi. 2. 
 — 1 Dyer, 2b., pi. 4, 7 ; 1 Leon. 112; 
 2 Leon. 31, 90. 
 
 (i) Stampe v. Hutchins, 1 Dyer, 2 a., 
 pi. 3, n., Cro. Eliz, 120, 1 Leon. 111. 
 
 (,/) Anon. 1 Dyer, 2 a., pi. 3, 6; Anon. 
 Keilw. 58 a., Ca. 2, 61 b. ; Anon. 1 Rol. 
 Abr. 923, M. pi. 1. 
 
 (/c) Keilw. 63 a. 
 
 (0 6 Mod. 93 ; 1 Salk. 207. 
 
 (m) Anon. 3 Dyer, 361 b., Ca, 15 
 
 (") Anon. Cro. Kliz. 23. 
 
 (o) Co. Litt. 388 a ; Rennetl v. BiJiop 
 of- Lincoln, 3 Bing. 264, 272, 7 B. & 
 C. 147, 150, 151, 180, 185, 193, 195. 
 
 (p) 4 Co. 22 a. 
 
 (q) 6 Co. 58 a., 58 b. ; Co. Litt. 374 b. 
 
 (i) Jones V. Bradshaw. 3 Ch. Rep. 2, 
 2 Freem. 153, Nels. 74 ; Anon., or Tur- 
 ney v. Daws, 2 Ch. Cas. 232 ; Dunn v. 
 Green, 3 P. W. 9, 11 ; Charlton v. Low, 
 ih. 330 ; Anon. 2 Eq. Cas. Abr. 509, Ca. 
 3 ; Lord Townshend v. Windham, 2 Ves. 
 1, 4, 5; Hassall v. Smithers, 12 Ves. 119. 
 See also Rutland v. Moiineux, 2 Vera. 
 64; Kingdon v. Bridges, ib. 67 ; Ploto- 
 man v. Plowman, ib. 289, and 3rd ed. n. ; 
 Goodfellow V. Burchett, ib. 298 ; Fletcher 
 V. Lady .Sedley, ib. 490, and 3rd ed.
 
 CH. XVII.] OF PROPERTY, WHICH IS NOT ASSETS. 241 
 
 which, by or in a Court of Equity, have been held not to be 
 assets are, — money, which a person had a power to raise, by 
 appointment by deed or will, and which power he did not exe- 
 cute (s) : money for which a factor sold goods of his principal; in 
 a case, where the factor died before payment, and it was decided 
 the money was not part of his assets (^) : a leasehold estate ; in a 
 case, where R. renewed the lease in his own name and in that of 
 his brother J., and R. alone paid the fine and rents, and received 
 the profits, and where it was decided, such leasehold estate was 
 not part of the assets of R., there being sufficient evidence, 
 although but of one witness, to rebut the resulting trust (u) : a 
 sum of money, which executors found in a box in their testatrix's 
 house, and which money they stated to belong to several persons, 
 who were members of a club held at her house (v) : a wife's pre- 
 
 491 n. ; Armitage v. Metcalf, 1 Ch. Cas. 
 74 ; Holt V. Holt, ib. 190, cited 1 Vern. 
 92, and 2 Vern. 57. Of a personal an- 
 nuity, granted to a person and his heirs, 
 see Doct. & St. Dial. 1. ch. 30, ed. 1709, 
 p. 105, 107 ; Bro. Abr. tit. Assets per 
 disc. 26 ; Co. Litt. 374 b. ; Anon. Keilw. 
 124 b., Ca. 82 ; Earl of Stafford v. Buck- 
 ley, 2 Ves. 170, 179. An author's manu- 
 script of a work composed by him, but 
 not published, is, it is probable, not assets 
 for the payment of his debts. In Atcher- 
 ley V. Vernon, 10 Mod. 530, Com. 381, 
 a case before the Court of Chancery, it 
 was inquired by counsel, — " Suppose a 
 man of learning should have the misfor- 
 tune to die in debt, can the creditors 
 come into this Court, and pray a discovery 
 of all his papers, that they may be printed 
 for the payment of his debts?" A ques- 
 tion more doubtful may be, to whom the 
 manuscript shall belong, whether to the 
 heir or to the personal representative of 
 the author. In Atcherley v. Vernon, there 
 were three claimants to some manuscript 
 Reports of Cases in Chancery ; namely, 
 the author's heir at law, "as guardian 
 of the reputation of his ancestor" ; trus- 
 tees, who contended that the author h^id 
 
 bequeathed the manuscripts to them, 
 under the words " residue of my per- 
 sonal estate'"; and the author's widow, 
 who insisted, " that she ought to have 
 them, as included in the devise of house- 
 hold goods and furniture." The Court, 
 it appears, decided nothing in the affair, 
 because all consented to have them 
 printed under the direction of the Court, 
 without making any profit of them. (10 
 Mod, 531.) With respect to a book printed 
 and published after the stat. 54 Geo. III. 
 c. 156, it is observable that, by the fourth 
 section of this Act, the sole liberty of 
 printing and reprinting such book for 
 twenty -eight years, and, if the author 
 shall be living at the end of that period, 
 then for the residue of his life, is given to 
 the author, and his assignee or assigns. 
 
 (s) Holmes v. Coghill, 7 Ves. 499, 12 
 Ves. 206. See also Harrington v. Harte, 
 1 Cox, 131. 
 
 (t) Burdett v. Willett, 2 Vern. 638. 
 See Com. Dig. tit. Chancery, 2 G. 2, 
 4th ed., p. 365. 
 
 (u) Maddison v. Andrew, 1 Ves. 57,60. 
 
 (v) Randal v. Hearle, 2 Anstr. 363, 
 366.
 
 242 OF PROPERTY, WHICH IS NOT ASSETS. [CH. XVII. 
 
 sent choses in action, namely, bond debts ; wliich it was decided 
 were not assets of her luisband, wlio died in lier life-time, before 
 he had reduced them into possession ; and where it was held 
 such choses in action were not purchased by the husband, by a 
 settlement made by him previously to the marriage (?/;) : copy- 
 holds held at the will of the lord {x). In a case where the ques- 
 tion occurred, whether certain customary lands, held of the manor 
 part of the Duchy of Cornwall, would be assets for the payment 
 of debts, without the act of the tenant to subject them to that 
 payment. Lord Hardwicke left such question undetermined, 
 there being no proof before him, to make it appear whether they 
 were liable to the payment of debts or not. In the same case, 
 his Lordship said, " he took it, that tenant-right estates in the 
 North were subject to debts, though he was not sure of it." And 
 " some at the bar seemed to think otherwise" (?/). 
 
 (w) Lister v. Lister, 2 Vern. 68, 2 
 Freem. 102. 
 
 (x) Parker v. Dee, 2 Ch. Cas. 201 ; 
 Earl of Godolphiu v. Penneck, 2 Ves. 
 271 ; Aldrich v. Cooper, Q Ves. 391, 393, 
 
 394. See Helley v. Helley, 2 Eq. Cas. 
 Abr. 509, Ca. 4. 
 
 (y) Earl of Godolphin v. Penneck, 2 
 Ves. 271.
 
 243 
 
 CHAPTER XVIII. 
 
 OF PROBATE OF A WILL ; OF LETTERS OF ADMINLSTRATION ; 
 AND OF AN INVENTORY. 
 
 Sect. I. — Of Probate of a Will; of Letters of Administration. 
 II. — Of an Inventory. 
 
 SECTION I. 
 
 OF PROBATE OF A WILL ; OF LETTERS OF ADMINISTRATION. 
 
 Certain provisions relative to the duty payable on, and to 
 other matters concerning, the probate of a will and letters of ad- 
 ministration, are made by the following sections of the statute 
 55 Geo. III. c. 184. 
 
 xxxvil P ^^^ better securing the duties on probates of 
 
 nalty for not ob- wills and letters of administration, be it enacted, 
 taining probate of That from and after the 31st day of August, 1815, 
 
 will, or letters of ad- ,« i n , i . r i • 
 
 ministration with- " ^^y person shall take possession 01, and in any 
 
 in a given time, manner administer any part of the personal estate 
 
 lOOL, and 10 per ^^^ effects of any person deceased, without ob- 
 cent. on the duty. . . , - , .n i c ^ • ' 
 
 taming probate of the will or letters oi adminis- 
 tration of the estate and effects of the deceased, within six calen- 
 dar months after his or her decease, or within two calendar months 
 after the termination of any suit or dispute respecting the will or the 
 right to letters of administration, if there shall be any such, which 
 shall not be ended within four calendar months after the death of 
 the deceased ; every person so offending shall forfeit the sum of 
 100?., and also a further sum at and after the rate of 10/. per 
 centum on the amount of the stamp duty payable on the probate 
 of the will or letters of administration of the estate and effects 
 of the deceased. 
 
 R 2
 
 244 OF PROBATE OF A WILL, &C. [CH. XVIII. 
 
 XXX VIII Ec- ^'^*^ ^^ ^' further enacted, That from and after 
 clesiastical Court, the expiration of three calendar months from the 
 or person, not to passing of this Act, no Ecclesiastical Court or 
 
 grant probate or , ,, , r i mi i 
 
 letters of adminis- P^^'^^^^ shall grant probate 01 the will, or letters 
 tration, without af- of administration of the estate and effects, of any 
 !fefflct?''^ '"'^"' person deceased, without first requiring and re- 
 ceiving from the person or persons applying for 
 the probate or letters of administration, or from some other com- 
 petent person or persons, an affidavit, or solemn affirmation in the 
 case of Quakers, that the estate and effects of the deceased, for 
 or in respect of which the probate or letters of administration is 
 or are to be granted, exclusive of what the deceased shall have 
 been possessed of or entitled to as a trustee for any other person 
 or persons, and not beneficially, but including the leasehold 
 estates for years of the deceased, whether absolute or determin- 
 able on lives, if any, and without deducting anything on account 
 of the debts due and owing from the deceased, are under the 
 value of a certain sum, to be therein specified, to the best of the 
 deponent's or affirmant's knowledge, information, and belief, in 
 order that the proper and full stamp duty may be paid on such 
 probate or letters of administration ; which affidavit or affirmation 
 sliall be made before the surrogate, or other person who shall ad- 
 minister the usual oath for the due administration of the estate 
 and effects of the deceased. 
 
 XXXIX. Affi- And be it further enacted. That every such 
 . , \^^ affidavit or affirmation shall be exempt from stamp 
 
 from stamp duty, ^ ^ 
 
 and to be trans- duty, and shall be transmitted to the Commis- 
 mitted to commis- sioners of Stamps, together with the copy of 
 
 sioneis of stamps, .i .n r ^ ^ r 
 
 Penalty for nep^lect "^'^ ' °^ extract or account oi the letters oi 
 
 50/. administration, to which it shall relate, by the re- 
 
 gistrar or other officer of the Court, whose duty it shall be to 
 transmit copies of wills, and extracts or accounts of letters of 
 administration, to the said Commissioners, for the better collection 
 of the duties on legacies and successions to personal estate upon 
 intestacy ; and if any registrar, or other officer whose duty it shall 
 be, shall neglect to transmit such affidavit or affirmation to the
 
 S. 1.] OF I'llOKATE OF A WILL, &C. 245 
 
 said Commissioners of Stamps, as hereby directed, every person 
 so offending shall forfeit the sum of 50/. 
 
 XL. Provision ^^^ ^® ^* further enacted, That from and after 
 
 for the case of too the passing of tliis Act, where any person, on 
 
 high a stamp duty applying for the" probate of a will or letters of 
 
 being paid on pro- i . . 
 
 bate &:c. administration, shall have estimated the estate and 
 
 effects of the deceased to be of greater value than 
 the same shall have afterwards proved to be, and shall in conse- 
 quence have paid too high a stamp duty thereon, if such person shall 
 produce the probate or letters of administration to the said Com- 
 missioners of Stamps, within six calendar months after the true 
 value of the estate and effects shall have been ascertained, and it 
 shall be discovered that too high a duty was first paid on the pro- 
 bate or letters of administration, and shall deliver to them a par- 
 ticular inventory, and account, and valuation of the estate and 
 effects of the deceased, verified by an affidavit, or solemn affirma- 
 tion in the case of Quakers, and if it should thereupon satisfac- 
 torily appear to the said Commissioners, that a greater stamp 
 duty was paid on the probate or letters of administration than 
 the law required, it shall be lawful for the said Commissioners to 
 cancel and expunge the stamp on the probate or letters of admi- 
 nistration, and to substitute another stamp for denoting the duty 
 which ought to have been paid thereon, and to make an allow- 
 ance for the difference between them, as in the cases of spoiled 
 stamps, or, if the difference be considerable, to repay the same in 
 money, at the discretion of the said Commissioners. 
 ,,^ ^ ^ . . And be it further enacted. That from and after 
 
 XLI. Provision 
 
 for the case of too the passing of tliis Act, where any person, on 
 
 little stamp duty applying for the probate of a will, or letters of 
 
 eing p 1 on pro- administration, shall have estimated the estate 
 
 bate, olC. 
 
 and effects of the deceased to be of less value 
 than the same shall have afterwards proved to be, and shall in 
 consequence have paid too little stamp duty thereon, it shall be 
 lawful for the said Commissioners of Stamps, on delivery to them 
 of an affidavit, or solemn affirmation, of the value of the estate 
 and effects of the deceased, to cause the probate or letters of
 
 246 OF PROBATE OF A WILL, &C. [CH. XVIII. 
 
 administration to be duly stamped, on payment of the full duty 
 which ought to have been originally paid thereon in respect of 
 
 such value, and of the further sum or penalty payable by law for 
 stamping deeds after the execution thereof, without any deduc- 
 tion or allowance of the stamp duty originally paid on such pro- 
 bate or letters of administration : Provided always, that if the 
 application shall be made within six calendar months after the 
 true value of the estate and effects shall be ascertained, and it 
 shall be discovered that too little duty was at first paid on the 
 probate or letters of administration ; and if it shall appear by affi- 
 davit or solemn affirmation, to the satisfaction of the said Com- 
 missioners, that such duty was paid in consequence of any mis- 
 take or misapprehension, or of its not being known at the time 
 that some particular part of the estate and effects belonged to the 
 deceased, and without any intention of fraud, or to delay the 
 payment of the full and proper duty; then it shall be lawful for 
 the said Commissioners to remit the before mentioned penalty, 
 and to cause the probate or letters of administration to be duly 
 stamped, on payment only of the sum which shall be wanting to 
 make up the duty which ought to have been at first paid thereon. 
 
 XLII, Farther Provided always, and be it further enacted, 
 provisions in cases rj.j^^^ j^ ^^^^ ^^ j^^^^^^ ^^ administration, on 
 
 of too high, or too . 
 
 little, stamp duty which too little Stamp duty shall have been paid 
 paid. at first, the said Commissioners of Stamps shall not 
 
 cause the same to be duly stamped in the manner aforesaid, until 
 the administrator shall have given such security to the Ecclesias- 
 tical Court or Ordinary, by whom the letters of administration 
 shall have been granted, as ought by law to have been given on 
 the granting thereof, in case the full value of the estate and 
 effects of the deceased had been then ascertained ; and also that 
 the said Commissioners of Stamps shall yearly, or oftener, trans- 
 mit an account of the probates and letters of administration, upon 
 which the stamps shall have been rectified in pursuance of this 
 Act, to the several Ecclesiastical Courts by which the same shall 
 have been granted, together with the value of the estate and 
 effects of the deceased, upon which such rectification shall have 
 proceeded.
 
 S. I.] OF PROBATE OF A WILL, &C. 247 
 
 XLIII. Penalty And be it further enacted, That where too little 
 on executor or ad- duty shall have been paid on any probate or 
 ministratornotpay- ^^^^^^^^ ^^ administration, in consequence of any 
 
 ing the full duty on _ ^^ ^ •' 
 
 probate, &c., in a mistake or misapprehension, or of its not being 
 given time afterdis. kjiown at the time that some particular part of 
 paid at first 100/ ^^^ estate and effects belonged to the deceased, if 
 and 10 per cent, on any executor or administrator acting under such 
 the duty wanting, probate or letters of administration shall not, 
 within six calendar months after the passing of this Act, or after 
 the discovery of the mistake or misapprehension, or of any estate 
 or effects not known at the time to have belonged to the deceased, 
 apply to the said Commissioners of Stamps, and pay what shall 
 be wanting to make up the duty which ought to have been paid 
 at first on such probate or letters of administration, he or she 
 shall forfeit the sum of 100/., and also a further sum, at and after 
 the rate of lOZ. per centum on the amount of the sum wanting 
 to make up the proper duty. 
 
 XLIV. Ecclesi- And be it further enacted, That from and after 
 astical Court, or ^|^g expiration of three calendar months from the 
 
 person, not to re- . ^ i • a 
 
 voke, or accept the passHig of this Act, it shall not be lawful for any 
 surrender of, pro- Ecclesiastical Court, or person, to call in and re- 
 bate, or letters ot ^^^ ^^ ^^ accept the Surrender of, any probate 
 
 administration, on '■ 
 
 the ground onlv of or letters of administration, on the ground only of 
 
 wrong duty paid, too high or too low a Stamp duty having been 
 
 paid thereon, as heretofore hath been practised; and if any 
 
 Ecclesiastical Court, or person, shall so do, the Commissioners of 
 
 Stamps shall not make any allowance whatever for the stamp 
 
 duty on the probate or letters of administration which shall be so 
 
 annulled. 
 
 XLV. Commis- And whereas it has happened, in the case of 
 
 sioners of Stamps letters of administration on which the proper 
 
 *u ^j . 'u 'l^ stamp duty hath not been paid at first, that cer- 
 
 the duty on probate r J r ' 
 
 and letters of ad- tain debts, chattels real, or other effects, due or 
 
 ministration in cer- belonging to the deceased, have been found to be 
 
 of such great value, that the administrator hath 
 
 not been possessed of money sufficient, either of his own or of the
 
 248 OK PROBATE OF A WILL, &C. [CH. XVIII. 
 
 deceased, to pay the requisite stamp duty, in order to render 
 such letters of administration available for the recovery thereof 
 by law; and whereas the like may occur again, and it may also 
 happen that executors, or ])ersons entitled to take out letters of 
 administration, may, before obtaining probate of the will or letters 
 of administration of the estate and eiFects of the deceased, find 
 some considerable part or parts of the estate and effects of the 
 deceased so circumstanced as not to be immediately got posses- 
 sion of, and may not have money sufficient, either of their own 
 or of the deceased, to pay the stamp duty on the probate or 
 letters of administration, which it shall be necessary to obtain; Be 
 it therefore further enacted. That from and after the passing of this 
 Act, it shall be law^ful for the said Commissioners of Stamps, on 
 satisfactory proof of the facts by affidavit or solemn affirmation, in 
 any such case as aforesaid, which may appear to them to require 
 relief, to cause the probate or letters of administration to be duly 
 stamped, for denoting the duty payable or which ought originally 
 to have been paid thereon, and to give credit for the duty, either 
 upon payment of the before mentioned penalty, or M-ithout, in 
 cases of probates or letters of administration already obtained, 
 and upon which too little duty shall have been paid, and either 
 with or without allowance of the stamp duty already paid thereon, 
 as the case may require, under the provisions of this Act ; pro- 
 vided, in all such cases of credit, that security be first given by 
 the executors or administrators, together with two or more suffi- 
 cient sureties, to be approved of by the said Commissioners, by 
 a bond to his Majesty, his heirs, or successors, in double the 
 amount of the duty, for the due and full payment of the sum for 
 which credit shall be given, within six calendar months, or any 
 less period, and of the interest for the same, at the rate of 10/. 
 per centum per annum, from the expiration of such period until 
 payment thereof, in case of any default of payment at the time 
 appointed; and such probate or letters of administration being 
 duly stamped in the manner aforesaid, shall be as valid and 
 available as if the proper duty had been at first paid thereon, and 
 the same had been stamped accordingly.
 
 S. 1.] OF PROBATE OF A WILL, &C. 249 
 
 .. .,,T ^ Provided always, and be it further enacted, 
 
 XLVl. Conimis- •' ' ' 
 
 sioners may extend That if at the expiration of the time to be allowed 
 the credit, if neces- ^^^ ^^le payment of the duty on such probate or 
 letters of administration, it shall appear to the 
 satisfaction of the said Commissioners, that the executor or admi- 
 nistrator, to whom such credit shall be given as aforesaid, shall 
 not have recovered effects of the deceased, to an amount suffi- 
 cient for the payment of the duty, it shall be lawful for the said 
 Commissioners to give such further time for the payment thereof, 
 and upon such terms and conditions, as they shall think expedient. 
 XLVII Probate Provided also, and be it further enact^ed. That 
 or letters of admi- the probate or letters of administration, so to be 
 ristration, stamped gjamped on Credit as aforesaid, shall be deposited 
 
 on credit, to be de- 
 posited with the with the said Commissioners of Stamps, and shall 
 
 Commissioners. not be delivered up to the executor or administra- 
 tor until payment of the duty, together with such interest as 
 aforesaid, if any shall become due ; but the same shall never- 
 theless be produced in evidence by some officer of the Commis- 
 sioners of Stamps, at the expense of the executor or adminis- 
 trator, as occasion shall require. 
 XLVIII. Duty, And be it further enacted, That the duty, for 
 
 for which credit which credit shall be given as aforesaid, shall be 
 shall be given, to , , , i . -n/r • . i • i • 
 
 be a debt to the ^ "^"*' *° ^^ Majesty, his heirs, or successors, 
 Crown. And pe- from the personal estate of the deceased, and 
 nalty, if executor or ^\^^\ \,q p^id jn preference to and before any 
 
 administrator shall , i • i ^ c i 
 
 pay any other debt Other debt whatsoever due irom the same estate ; 
 in preference. and if an executor or administrator of the estate 
 
 of the deceased shall pay any other debt in preference thereto, he 
 or she shall not only be charged with and be liable to pay the duty 
 out of his or her own estate, but shall also forfeit the sum 
 of 500Z. 
 
 XLIX. Provi. And be it further enacted. That if before pay- 
 
 sion for the case of ^^^^ ^f ^j^^ ^|^^ f^^. ^j^j^j^ ^^^^^^ gl^^ll be given 
 letters of adminis- . • i • i ii i 
 
 tration de&onisnoK ^ any such case as aforesaid, it shall become 
 
 taken out before necessary to take out letters of administration de 
 payment of the duty ^^^^.^ ^^^ ^^ ^j^^ deceased, it shall also be lawful 
 
 for which credit 
 
 shall be given. for the said Commissioners to cause such letters
 
 250 or PROBATE OF A WILL, &C. [CH. XVIII. 
 
 of administration de bonis non to be duly stamped with the particu- 
 lar stamp provided to be used on letters of administration of that 
 kind, for denoting the payment of the duty, in respect of the 
 effects of the deceased, on some prior probate or letters of admi- 
 nistration of the same effects, in such and the same manner as if 
 the duty had been actually paid, upon having the letters of admi- 
 nistration de bonis non deposited with the said Commissioners, and 
 upon having such further security for the payment of the duty as 
 they shall think expedient, and such letters of administration shall 
 be as valid and available as if the duty, for which credit shall be 
 given, had been paid. 
 
 , ^ - And be it further enacted, in regard to probate 
 
 L. In cases oi . 
 
 trust property, pro- of wiUs and letters of administration. That where 
 visions concerning ^^^y pg^^j- ^f ^\^q personal estate, which the deceased 
 sons res^dlng°out^of was possessed of or entitled to, shall be alleged 
 England. to have been trust property, if the person or per- 
 
 sons who shall be required to make any affidavit or affirmation 
 relating thereto, conformably to the provisions of the Act of the 
 48th year of his Majesty's reign [s. 36, 37,] shall reside out of 
 Eno-land, such affidavit or affirmation shall and may be made 
 before any person duly commissioned to take affidavits by the 
 Court of Session or Court of Exchequer in Scotland, or before 
 one of his Majesty's justices of the peace in Scotland, or before 
 a Master in Chancery, ordinary or extraordinary, in Ireland, or 
 before any judge or civil magistrate of any other country or place, 
 where the party or parties shall happen to reside ; and every 
 such affidavit or affirmation shall be as effectual, as if the same 
 had been made before a Master in Chancery in England, pur- 
 suant to the directions of the said last mentioned Act. 
 
 Provided always, and be it further enacted, 
 
 LI. Provisions •' 
 
 for a return of duty, That where it shall be proved by oath or proper 
 
 where, by reason of vouchers to the Satisfaction of the said Commis- 
 
 t e e tso e e- • ^^^^ q£ Stamps, that an executor or adminis- 
 
 ceased, too great a J^ ' 
 
 duty shallhave been trator hath paid debts due and owing from the 
 
 P^^*^- deceased, and payable by law out of his or her 
 
 personal or moveable estate, to such an amount as being deducted 
 
 from the amount or value of the estate and effects of the deceased,
 
 S. I.] OF PROBATE OF A WILL, &C. 251 
 
 for or in respect of which a probate or letters of administration, or 
 a compensation of a testament, testamentary or dative, shall have 
 been granted after the 31st day of August, 1815, or which shall be 
 included in any inventory exhibited and recorded in a Commis- 
 sary Court in Scotland as the law requires, after that day, shall 
 reduce the same to a sum, which, if it had been the whole gross 
 amount of value of such estate and effects, would have occasioned 
 a less stamp duty to be paid on such probate or letters of admi- 
 ninistration, or confirmation or inventory, than shall have been 
 actually paid thereon, under and by virtue of this Act, it shall be 
 lawful for the said Commissioners to return the difference, pro- 
 vided the same shall be claimed within three years after the date 
 of such probate or letters of administration or confirmation, or 
 the recording of such confirmation as aforesaid ; but where, by 
 reason of any proceeding at law or in equity, the debts due 
 from the deceased shall not have been ascertained and paid, or 
 the effects of the deceased shall not have been recovered and 
 made available, and in consequence thereof the executor or admi- 
 nistrator shall be prevented from claiming such return of duty as 
 aforesaid within the said term of three years, it shall be lawful 
 for the Commissioners of the Treasury to allow such further time 
 for making the claim, as may appear to them to be reasonable 
 under the circumstances of the case. 
 
 A schedule annexed to the same statute contains the following 
 duties on the probates of wills and letters of administration. 
 
 DUTY. 
 
 £. s. d. 
 Probate of a will, and letters of administration 
 
 with a will annexed, to be granted in England ; where 
 
 the estate and effects, for or in respect of which such 
 
 probate, or letters of administration, shall be granted, 
 
 exclusive of what the deceased shall have been possessed 
 
 of ,or entitled to as a trustee for any other person or 
 
 persons, and not beneficially, shall be — 
 
 Above the value of £20 and under the value of £100 - 10
 
 252 OF PROBATE OF A WILL, &C, 
 
 Of the value of £100 & under the value of £200 
 200 
 300 
 450 
 600 
 800 
 
 1000 
 
 1500 
 
 2000 
 
 3000 .. 
 
 4000 
 
 5000 
 
 6000 
 
 7000 
 
 8000 
 
 9000 
 10,000 
 12,000 
 14,000 
 16,000 
 18,000 
 20,000 
 25,000 
 30,000 
 35,000 
 40,000 
 45,000 
 50,000 
 60,000 
 70,000 
 80,000 
 90,000 
 100,000 
 120,000 
 140,000 
 160,000 
 180,000 
 
 , &c. 
 
 [cn. xviii. 
 
 
 £ 
 
 S. ( 
 
 d. 
 
 ' £200 - 
 
 2 
 
 
 
 
 
 300 - 
 
 5 
 
 
 
 
 
 450 - 
 
 8 
 
 
 
 
 
 600 - 
 
 11 
 
 
 
 
 
 800 - 
 
 15 
 
 
 
 
 
 1000 . 
 
 22 
 
 
 
 
 
 1500 - 
 
 30 
 
 
 
 
 
 2000 - 
 
 40 
 
 
 
 
 
 3000 - 
 
 50 
 
 
 
 
 
 4000 - 
 
 60 
 
 
 
 
 
 5000 - 
 
 80 
 
 
 
 
 
 6000 - 
 
 100 
 
 
 
 
 
 7000 - 
 
 120 
 
 
 
 
 
 8000 - 
 
 140 
 
 
 
 
 
 9000 - 
 
 160 
 
 
 
 
 
 10,000 - 
 
 180 
 
 
 
 
 
 12,000 - 
 
 200 
 
 
 
 
 
 14,000 - 
 
 220 
 
 
 
 
 
 16,000 - 
 
 250 
 
 
 
 
 
 18,000 - 
 
 280 
 
 
 
 
 
 20,000 - 
 
 310 
 
 
 
 
 
 25,000 - 
 
 350 
 
 
 
 
 
 30,000 - 
 
 400 
 
 
 
 
 
 35,000 - 
 
 450 
 
 
 
 
 
 40,000 - 
 
 525 
 
 
 
 
 
 45,000 - 
 
 600 
 
 
 
 
 
 50,000 - 
 
 675 
 
 
 
 
 
 60,000 - 
 
 750 
 
 
 
 
 
 70,000 - 
 
 900 
 
 
 
 
 
 80,000 - 
 
 1050 
 
 
 
 
 
 90.000 - 
 
 1200 
 
 
 
 
 
 100,000 - 
 
 1350 
 
 
 
 
 
 120,000 - 
 
 1500 
 
 
 
 
 
 140,000 - 
 
 1800 
 
 
 
 
 
 160,000 - 
 
 2100 
 
 
 
 
 
 180,000 - 
 
 2400 
 
 
 
 
 
 200,000 - 
 
 2700 
 
 
 

 
 S.I.] 
 
 OF PROBATE 
 
 OF A WILL, &C. 
 
 
 253 
 
 
 
 £ 
 
 s. d. 
 
 £200,000 &under the 
 
 value of £250,000 
 
 - 3000 
 
 
 
 250,000 
 
 .. 300,000 
 
 - 3750 
 
 
 
 300,000 
 
 .. 350,000 
 
 - 4500 
 
 
 
 350,000 
 
 . . 400,000 
 
 - 5250 
 
 
 
 400,000 
 
 ' .. 500,000 
 
 - 6000 
 
 
 
 500,000 
 
 . . 600,000 
 
 - 7500 
 
 
 
 600,000 
 
 . . 700,000 
 
 - 9000 
 
 
 
 700,000 
 
 . . 800,000 
 
 - 10,500 
 
 
 
 800,000 
 
 . . 900,000 
 
 - 12,000 
 
 
 
 900,000 
 
 .. 1,000,000 
 
 - 13,500 
 
 
 
 1,000,000 and upwards 
 
 -15,000 
 
 
 
 Letters of administration, without a will annexed, to 
 be granted in England ; where the estate and effects, 
 for or in respect of which such letters of administration 
 shall be granted, exclusive of what the deceased shall 
 have been possessed of or entitled to as a trustee for any 
 other person or persons, and not beneficially, shall be — 
 
 Above the value 
 
 of £20 and under the value of £50 - 
 
 10 
 
 Of the value of 
 
 50 
 
 100 - 
 
 1 
 
 
 100 
 
 
 200 - 
 
 3 
 
 
 200 
 
 
 300 - 
 
 8 
 
 
 300 
 
 
 450 - 
 
 110 
 
 
 450 
 
 
 600 - 
 
 15 
 
 
 600 
 
 
 800 - 
 
 22 
 
 
 800 
 
 
 1000 - 
 
 30 
 
 
 1000 
 
 
 1500 - 
 
 45 
 
 
 1500 
 
 
 2000 - 
 
 60 
 
 
 2000 
 
 
 3000 - 
 
 75 
 
 
 3000 
 
 
 4000 - 
 
 90 
 
 
 4000 
 
 
 5000 - 
 
 120 
 
 
 5000 
 
 
 6000 - 
 
 150 
 
 
 6000 
 
 
 7000 - 
 
 180 
 
 
 7000 
 
 
 8000 - 
 
 210 
 
 
 8000 
 
 
 9000 - 
 
 240
 
 254 
 
 OF PROBATK OF A 
 
 WILL, &C. 
 
 [CH. 
 
 XVIII. 
 
 
 
 £ 
 
 s. 
 
 (L 
 
 of £9000 & under the v 
 
 alueof £10,000 
 
 - 270 
 
 
 
 
 
 10,000 
 
 12,000 
 
 - 300 
 
 
 
 
 
 12,000 
 
 14,000 
 
 - 330 
 
 
 
 
 
 14,000 
 
 . . 16,000 
 
 - 375 
 
 
 
 
 
 16,000 
 
 18,000 
 
 - 420 
 
 
 
 
 
 18,000 
 
 20,000 
 
 - 465 
 
 
 
 
 
 20,000 
 
 . . 25,000 
 
 - 525 
 
 
 
 
 
 25,000 
 
 30,000 
 
 - 600 
 
 
 
 
 
 30,000 
 
 35,000 
 
 - 675 
 
 
 
 
 
 35,000 
 
 40,000 
 
 - 785 
 
 
 
 
 
 40,000 
 
 45,000 
 
 - 900 
 
 
 
 
 
 45,000 
 
 50,000 
 
 - 1010 
 
 
 
 
 
 50,000 
 
 60,000 
 
 - 1125 
 
 
 
 
 
 60,000 
 
 70,000 
 
 - 1350 
 
 
 
 
 
 70,000 
 
 80,000 
 
 - 1575 
 
 
 
 
 
 80,000 
 
 90,000 
 
 - 1800 
 
 
 
 
 
 90,000 
 
 . , 100,000 
 
 - 2025 
 
 
 
 
 
 100,000 
 
 . . 120,000 
 
 - 2250 
 
 
 
 
 
 120,000 
 
 . . 140,000 
 
 - 2700 
 
 
 
 
 
 140,000 
 
 . . 160,000 
 
 - 3150 
 
 
 
 
 
 160,000 
 
 .. 180,000 
 
 - 3600 
 
 
 
 
 
 180,000 
 
 . . 200,000 
 
 - 4050 
 
 
 
 
 
 200,000 
 
 . . 250,000 
 
 - 4500 
 
 
 
 
 
 250,000 
 
 . . 300,000 
 
 - 5625 
 
 
 
 
 
 300,000 
 
 . . 350,000 . 
 
 - 6750 
 
 
 
 
 
 350,000 
 
 .. 400.000 • 
 
 - 7875 
 
 
 
 
 
 400,000 
 
 . . 500,000 ■ 
 
 - 9000 
 
 
 
 
 
 500,000 
 
 .. 600,000 ■ 
 
 ■11,250 
 
 
 
 
 
 600,000 
 
 .. 700,000 ■ 
 
 -13,500 
 
 
 
 
 
 700,000 
 
 .. 800,000 ■ 
 
 - 15,750 
 
 
 
 
 
 800,000 
 
 .. 900,000 • 
 
 ■18,000 
 
 
 
 
 
 900,000 
 
 .. 1,000,000 - 
 
 . 20,250 
 
 
 
 
 
 1,000,000 and upwards 
 
 
 • 22,500 
 
 
 
 
 
 In a late case, where a testator, who was an English subject, 
 and resident in England, died possessed of certain i-entes, or sum
 
 S. II.] OF AN INVENTORY. 255 
 
 of money, wliicli was part of the public debt of France, it was 
 decided that this property in a foreign country was not liable to 
 the probate duty, although the executor sold it, and brought the 
 produce into England («). 
 
 SECTION II. 
 
 OF AN INVENTORY. 
 
 The 4th section of the statute 21 Henry VIII., c. 5, requires 
 an executor or administrator to make a true and perfect inventory 
 of " all the goods, chattels, wares, merchandises, as well moveable 
 as not moveable, whatsoever," that were of the person deceased ; 
 one part of which inventory is directed to be delivered to the 
 bishop, ordinary, or other person, having power to take probate 
 of testaments, and the other part to remain with the executor or 
 administrator. The 5th section of the same statute provides, 
 " that if the person so deceased will, by his testament or last 
 will, any lands, tenements, or hereditaments, to be sold, the money 
 thereof coming, nor the profits of the said lands for any time to 
 be taken, shall not be accounted as any of the goods or chattels 
 of the person deceased." 
 
 On an inventory. Sir John Nicholl observes, " The Canons 
 require an inventory to be exhibited, even before probate is 
 granted ; and this was the old practice of this Court [Prerogative 
 Court of Canterbury] ; and, indeed, is still the practice in some 
 country jurisdictions. The statute 21 Henry VIIL, c. 5, s. 4, 
 requires executors and administrators to exhibit inventories, as 
 part of their duty, without any proceedings to call upon them to 
 do so. The modern practice, however, is certainly not to render 
 an account, unless it shall be called for ; but the executor must 
 remember, that he has bound himself by his oath to render a just 
 account, when he is by law required. The Court may, and in 
 
 (n) Attnrneif General v. Diiiwnd, 1 Croinpt. & Jeiv. 356, 1 Tyrwli; 243.
 
 256 OF AN INVENTORY. [CH. XVIII. 
 
 some instances does, for the protection and security of the parties 
 interested, require ex officio that an inventory shall be exhibited ; 
 and though the Court does not exact this in all cases, still it 
 always will, where a party, having an interest in the property, 
 applies for it" (Z»). 
 
 (b) Phillips V. Bignell, 1 Phillim. 
 240. See also 2 Add. 236. Late cases 
 on an inventory are, BiUler v. Butler, 
 2 Phillim. 37 ; Reeves v. Freeting, ih. 
 56 ; Barclay v. Marshall, ih. 188 ; Grif- 
 fiths V. Bennett, ib. 364 ; Kenny v. Jack- 
 son, 1 Hagg. 105 ; Pitt v. Woodham, ib. 
 247; Williams' case, 3 Hagg. 217; 
 Ritchie V. Rees, 1 Add. 144; Gale v. 
 Luttrell, 2 Add. 234 ; Paul v. Nettlefohl, 
 
 ib. 237; Hunter v. Byrn, ib. 311 ; Tel- 
 ford V. Morriso7i, ib. 319 ; Brogden v. 
 Brown, ib. 336. Generally on an inven- 
 tory, see Swinb. part 6, sections 6, 7, 8, 
 9, 10; Wentw. Off. Ex. ch. 4; God. 
 Orph. Leg. part 2, ch. 21 ; 4 Burn's 
 Eccl. L. tit. Wills, s. 5, 7th ed. p. 294. 
 And for a form of an inventoiy, see 4 
 Burn's Eccl. L. 7th ed. p. 491.
 
 257 
 
 CHAPTER XIX. 
 
 OF FUNERAL AND TESTAMENTARY EXPENSES. 
 
 Immediately on the death of a testator, the first duty which 
 arises, and whieli is owing, at least to society (a), if not to the 
 deceased himself, is to cause the body to be buried (b). And 
 this duty is so much acknowledged by the law, that it appears a 
 person, who so far administers the estate of the deceased, as to 
 cause him to be buried, does not by this act make himself an 
 executor de son tort (c). " Giving directions for the funeral," 
 says Sir R. P. Arden, " is only an act of charity, and will not 
 make a man executor. God forbid it should ; for then the de- 
 ceased could not be buried by any one, from the apprehension 
 of being involved as executor" {d). Before any person, as an 
 executor named in the will, or other party, has taken on himself 
 the administration of the testator's estate, singular as the cir- 
 cumstance may appear, it is, perhaps, down to the present day 
 undecided, who the person is, on whom the legal (as distin- 
 guished from any filial, parental, or other moral) duty falls, 
 to cause the body to be buried {e). Where there is a will, 
 although any one has so far power to cause the interment of the 
 body, that he will not, by exercising this power, make himself 
 an executor de so7i tort, yet it appears that " until something is 
 
 (a) VVentw. Off. Ex. ch. 12 ; 3 Y. & 
 Jerv. 34, 36. 
 
 (b) 3 Inst. 202 ; 3 Y. & Jerv. 34, 36. 
 
 (c) Bro. Abr. tit. Administrators, pi. 
 6 ; 2 Dyer, 166 b. ; Keilw. 63 a. ; 1 1 
 Vin. Abr. 207, pi. 24; 2 Bl. Com. 507. 
 
 ((Z) Harrison v. Rowley, 4 Ves. 216. 
 
 (e) Generally speaking, a husband 
 is under a " strict legal necessity " of 
 burying his wife. (^Jenkins v. Tucker, 
 1 H. Bl. 90.) And probably, in gene- 
 
 ral cases, this duty falls on him, not- 
 withstanding the wife is possessed of an 
 estate to her separate use ; although, in 
 particular instances, he may have the 
 right to throw her funeral expenses on that 
 estate. (^Bertie v. Lord Chesterfield, 9 
 Mod. 31 ; Poole v. Harrington, Toth. tit. 
 Feme Covert, ed. 1820, p. 97 ; Gregory 
 V. Lockyer, 6 Madd. 90). On a father's 
 duty to bury his daughter, see 1 H. Bl. 
 93.
 
 258 OF FUNERAL AND TESTAMENTARY EXPENSES. [cil. XIX. 
 
 done upon the will, no one has authority even to bury" {f). But 
 after the executor has taken on himself the administration 
 of the testator's estate, and, l)y greater reason therefore, after 
 he has proved the will, it seems that the law throws on him 
 the obligation to bury the testator [g). 
 
 The law authorises an executor to defray a certain expense, 
 attendant on the burying of the deceased, before he pays the 
 cost of proving the will (A); and, as the expense of proving the 
 will is payable before debts owing by the testator (/), the law 
 empowers the executor to pay a certain expense for the funeral, 
 before he discharges any debt owing by the deceased (j), even 
 if it be a debt due to the Crown [k). 
 
 When an executor has paid the expense of his testator's funeral, 
 and after this payment, and the cost of proving the will, there is 
 a deficiency of assets to satisfy the testator's debts, then, as against 
 creditors, the sum which, by a Court of Law, is allowed to the 
 executor, on account of the funeral expenses, seems to have been 
 different at different periods (/). In one case, it appears 150Z. 
 was charged for the testator's funeral, " out of which. Holt said, 
 at least 140Z. ought to be deducted, for lOZ. is enough to be 
 allowed for the funeral of one in debt." And in the same case it 
 is added, " Longueville said, that Baron Powell, in his circuit, 
 would allow but eleven shillings and sixpence in the like case, 
 which, he said, was all the necessary charge" {m). And in Shel- 
 ley's case, Holt, C. J., appears to have held, " That for strictness, 
 
 (/) Georges v. Georges, 18 Ves. 296. 
 
 {g) 3 Atk. 119; 3 Campb. 299; 3 Y. 
 & Jerv. 36, 38 ; Shepp. Touchst. 476 ; 
 2 Bl. Com. 568. 
 
 Qi) Doct. & St. Dial. 2, ch. 10, ed. 
 1709, p. 154; Bro. Abr. tit. Executors, 
 pi, 172 ; 3 Inst. 202 ; Wentw. Off. Ex- 
 ch. 12; 2 Bl, Com. 508, 511. 
 
 (i) Wentw. Off. Ex. ch. 12; 2 Bl. 
 Com. 511 ; 4 Bum's Eccl. L. 348. 
 
 (j) Doct. & St. Dial. 2, ch. 10 ; Bro. 
 Abr. tit. Executors, pi, 172 ; 3 Inst, 202 ; 
 8 Co, 136; Fleta, lib, 2, cap, 57, ed. 
 
 1685, p. 126; 1 Rol. Abr. 926, S. pi. 
 1; Wentw. Off. Ex. ch. 12; 11 Vin. 
 Abr. 300, S. a, pi, 1 ; 3 Campb. 299 ; 
 2 Bl. Com. 508, 511 ; Atkins v. Hill, 
 Cowp. 284, 288. 
 
 Qi) Wentw. Off. Ex. ch. 12 ; 2 Bl. 
 Com. 511 ; The King v. Wade, 5 Price, 
 621, 627. See Harcock v. Wrenham, 1 
 Brownl. & G. 76. 
 
 (0 3 Atk, 119; Bull, N, P, 143; 
 Smith V. Davis, 2 Selw, N. P. 8th ed. 
 780, n. 
 
 (m) Anon. Comberb, 342.
 
 CH. XIX.] OF FUNERAL AND TESTAMENTARY EXPENSES. 259 
 
 no funeral expenses are allowable against a creditor, except for 
 the coffin, ring-iiig the bell, parson, clerk, and bearers' fees ; but 
 not for pall or ornaments" (n). In The King v. Wade, Richards, 
 C. B., said, " No doubt funeral expenses are to be preferred, 
 even to a debt due to the Crown ; but we ought to know from 
 the plea, what those expenses were, and to be able to judge 
 whether they were reasonable and necessary" (0). According 
 to a late case, Hancock v. Podmorc, " The rule, as against a cre- 
 ditor, is, that no more shall be allowed for a funeral than is 
 necessary. In considering what is necessary, regard must un- 
 doubtedly be had to the degree and condition in life of the party." 
 And in the same case, where an action was brought by a bond 
 creditor against the executrix of a person, who had been a captain 
 in the army, and at the time of his death was on half-pay, and 
 the executrix had paid 79Z. for funeral expenses, the Court of 
 King's Bench decided, " that 79/. is a larger sum than ought to 
 be allowed, as against a creditor, for the funeral of a person in 
 the desrree and condition of life of this testator." And the Court 
 appears to have expressed an opinion, that, in the particular case, 
 20/. only ought to be allowed (/>). 
 
 In Offlef/ V. Offiei/, a cause that occurred in a Court of 
 Equity, and which, it appears, "came on amicably," "there 
 had been 600/. laid out in Mr. O.'s funeral, which the Court 
 decreed should be a debt to affect the trust estate; Mr. O. 
 being a man of a great estate and reputation in his country, 
 and being buried there ; but if he had been buried elsewhere, 
 it seemed his funeral might have been more private, and the 
 Court would not have allowed so much " (5'). Stagy. Punter, 
 which also came before a Court of Equity, is thus reported, — 
 " Upon exceptions to a Master's report for not allowing 60/. 
 for the testator's funeral, Lord Chancellor [Hardwicke] — " At 
 law, where a person dies insolvent, the rule is, that no more 
 shall be allowed for a funeral than is necessary; at first, only 
 40s., then 5/., and at last, 10/. I have often thought it a hard 
 
 («) 1 Salk. 296, Cas. T. Holt, 305. 1 {p) 1 Barn. & Add. 260. 
 (()) 5 Price, 621,627. I {q) Free. Ch. 27. 
 
 S2
 
 260 OF FUNERAL AND TESTAMENTARY EXPENSES. [CH. XIX. 
 
 rule, even at law, as an executor is oblif^ed to bury his testator, 
 before he can possibly know whether his assets are sufficient to 
 pay his debts. But this Court is not bound down by such strict 
 rules ; especially where a testator leaves great sums in legacies, 
 which is a reasonable ground for an executor to believe the estate 
 is solvent. As this is the case here, I am of opinion that 
 60/. is not too much for the funeral expense, especially as the 
 testator had directed his corpse should be buried at a church 
 thirty miles from the place of his death ; and, besides, there is 
 still another estate to be sold, so that it is not clear that there 
 will be any deficiency ; and, on these circumstances, his Lordship 
 allowed the exception to the Master's report" (r). In Stacpoole 
 V. Stacpoole, an administrator expended 1200/., or, as it appears 
 in another place, 12'37/., in the intestate's funeral ; and two of 
 the next of kin seem to have been concerned in these expenses, 
 for the purpose of gaining some benefit by it as tradesmen. But 
 the Master and the Court thought that 200/. was a sufficient sum 
 for the funeral, and the Court so decided {s). 
 
 Where creditors were not concerned, there has been at law 
 recovered for funeral expenses, in one case, 270/. (/), and in 
 another instance, 140/. 15^. {u). 
 
 When there is a deficiency of assets to pay the testator's 
 debts, an executor, who has, in payment of the funeral expenses, 
 exceeded the sum, which, as against creditors, a Court of Law 
 will, in the particular case, allow him, is guilty of a devastavit, 
 and he must pay the excess out of his own pocket {v). 
 
 An action may, in some cases, be sustained against an execu- 
 tor, on his implied promise to pay the funeral expense of his 
 testator. In Tugwell v. Hcyman, executors were held to be liable 
 for such expense, on their implied promise to pay it ; the* circum- 
 stances of the case being, that the defendants, the executors, had 
 given no orders whatever to the plaintiff, or to any one else, to 
 furnish the funeral, which, it was allowed, was conducted in a 
 
 (r) 3 Atk. 119. 
 
 (s) 4 Dow r. C. 209, 214, 227. 
 
 («) Beriie v. Lord C'ImterJield, 9 Mod. 
 
 31. 
 
 (u) Jenkins v. Tucker, 1 H. Bl. 90, 
 94, n. 
 
 (i.) Shepp. Touchst. 47G ; 2 Bl. Com. 
 508.
 
 CH. XIX.] OF FUNERAL AND TESTAMENTARY EXPENSES. 261 
 
 manner suitable to the testator's degree and circumstances ; the 
 plaintiff's charge was fair and reasonable, and the defendants had 
 sufficient assets to pay it (w). A similar action was sustained 
 against an executor, on his implied promise, in Rofjcrs v. Price, 
 where the circumstances were,- that there was no evidence to 
 shew the plaintiff, the undertaker, acted upon the credit of any 
 other person ; the funeral was, it was admitted, suitable to the 
 degree of the deceased, a funeral such as in ordinary cases 
 would be required ; and the executor possessed assets sufficient 
 to defray the plaintiff's demand (x). On counsel stating, in 
 Hancock v. Podmore, that " an executor is liable for the expenses 
 of a decent funeral, even though the testator be buried without 
 the authority of his executor," Bailey, J,, interposed, and said, 
 " only where the funeral is suitable, and the executor has assets 
 in his hands " (y). 
 
 Johnson v. Baker was an action of assumpsit for goods sold. 
 The defendant was executor of W., and the demand was for 
 mourning furnished to the widow and family of the defendant's 
 testator. It was urged for the plaintiff, that this demand might 
 come under the description of funeral expenses, which an executor 
 was bound to pay. Best, C. J., was of opinion, that it was not 
 a funeral expense, and that the executor could not claim against 
 the estate, if compelled to pay (z). 
 
 Before an executor discharges any debt owing by his testator, 
 the law authorises him to pay the cost of proving the will (a). 
 And it appears that under the plea of plene administravit to an 
 action of assumpsit, an administrator may prove the expenses of 
 administration, namely, the proctor's bill for taking out letters of 
 administration, and shew that he has retained money to that 
 amount [h). 
 
 {w) 3 Campb. 298. 
 
 (x) 3 Y. & Jerv. 28. The sum reco- 
 vered was 30/. See Arlot v. Churchland, 
 cited ib. 32, 37, 38. The authorities in 
 this and the last note seem to be at vari- 
 ance with the opinion of Holt, C. J., in 
 Anon. 12 Mod. 256, Cas. T. Holt, 309. 
 
 (y) 1 Barn. & Adol. 262. 
 
 (s) 2 Carring. & P. 207. 
 
 (a) Wentw. OfF. Ex. ch. 12; 2 BI. 
 Com. 51 1 ; 4Burn's Eccl. L. 348 ; 1 Sim. 
 & St. 461 ; Hancock v. Podmore, 1 Barn. 
 & Adol. 260. 
 
 (6) Gillies V. Smither, 2 Stark. 528. 
 On retaining to pay the expense of pro- 
 bate of a will, or other cost of administra-
 
 262 OF FUNERAL AND TESTAMENTARY EXPENSES. [CH. XIX. 
 
 In a case, where a testator provided a particular fund to pay 
 debts, funeral and testamentary expenses, and the will occa- 
 sioned a suit in equity, Sir J. Leach decided, that the costs of 
 the suit were not payable out of that fund, the expression " tes- 
 tamentary expenses " being confined to the usual charges of pro- 
 bate, &c. ; and that the costs must therefore be paid out of the 
 residuary estate (c). 
 
 tion, see Jenk. Cent. C. 4, Ca. 88, and I and The King v. Wade, 5 Price, 621. 
 Anon. Mos. 328 ; and on retaining to pay (c) Browne v. Groombridge, 4 Madd. 
 
 funeral expenses, see Anon. Mas. 328, ' 495.
 
 263 
 
 CHAPTER XX. 
 
 OF RETAINER BY EXECUTOR, HEIR, AND DEVISEE. 
 
 Skct. I. — Of Retainer hy Executor. 
 
 II. — Of Retainer hy Heir or Devisee. 
 
 SECTION L 
 
 OF RETAINER BY EXECUTOR. 
 
 An executor, to whom his testator dies indebted, is entitled to 
 pay himself in preference to all other creditors, whose debts are 
 of equal degree with, or of lesser degree than, his own (a). To 
 this end he may retain legal assets, as leaseholds for years (/>), or 
 chattels personal, to satisfy the whole of his own greater (c), or 
 equal debt (<?) ; and therefore against judgment, bond, or simple 
 
 (a) 10 Mod. 496, 497. 
 
 (b)- Shelley v. Sackoile, And. 24, Mo 
 2, Ca. 3, Benl. 11, Ca. 8 ; Baker v. Be- 
 risford, 1 Lev. 154, 1 Keb. 285. 
 
 (c) WiUiamson v. Nonvich, 1 Rol 
 Abr. 923 ; ^\'hitehead v. Sampson, 
 Freem. 265. 
 
 (d) 20 Hen. VII. 5 ; Keilw. 63 a. ; 
 Rol. Abr. 922, L. 1 ; 1 Salk. 304 ; 1 
 Mod. 40, 41 ; Willes, 188 ; 3 Barn. & C 
 322 ; 3 Bl. Com. 18 ; Woodward v. Lord 
 Darcy, Plowd. 184 ; Bright \. Woodioard 
 1 Vern. 3rd ed. 369, n. An administra 
 tor also may retain, 1 Rol. Abr. 922, L. 
 Charlton v. Loio, 3 P. W. 328, 331 . 
 Want V. Swayne, Willes, 185 ; and 
 although he be administrator durante mi 
 nore actate, Roskelley v. Godolphin, T 
 Raym. 483 ; Briers v. Goddard, Hob 
 250 ; 4 Ves. 764 ; or administrator de 
 bonis: non to the debtor, Weeks v. Gore, 3 
 P. W. 184, n. : or administrator for the 
 
 use of a lunatic during the lunacy, Franks 
 V. Cooper, 4 Ves. 763. Of retainer in 
 cases of principal and surety, see Anon. 
 Godb. 149, Ca. 194, 11 Vin. Abr. 263, 
 265; Anon. 11 Vin. Abr. 265, pi. 9; 
 S2mgnall v . Delawne, 2 Vern. 36 ; 
 Silk V. Prime, 1 Dick. 384, 385; Ba- 
 thurst V. De la Zouch, 2 Dick. 460. Of 
 pleadings in retainer, see 2 Rol. Abr. 
 684, pi. 8; 11 Vin. Abr. 266, tit. Exe- 
 cutors, M. a. 2 ; Warner v. Wainsford, 
 Hob. 127 ; Wainford v. Warner, 1 
 Brownl. & G. 80 ; Fox v. Andrew, 1 
 Brownl. & G. 52 ; Caverly v. Ellison, T. 
 Jones, 23 ; Baker v. Berisford, 1 Lev. 
 154 ; Page v. Denton, 1 Ventr. 354 ; At- 
 kinson V. Raxoson, 1 Mod. 208 ; Prince v. 
 Rowson, 2 Mod. 51 ; Marriott v. Thomp- 
 son, Willes, 186; Picard v. Brown, 6 
 Durn. & E. 550; Harry v. Jones, 4 
 Price, 89 ; Thompson v. Thompson, 9 
 Price, 464. That an executor or ad
 
 264 
 
 OF RETAINER BY EXECUTOR. 
 
 [CH. XX. 
 
 contract creditors, his own debts by judtrmcnt (e); against bond 
 or simple contract creditors, liis own debts by bond [f) ; against 
 a creditor for rent, his own debt by bond {g) ; and against simple 
 contract creditors, his own debts by simple contract (//). This 
 privilege is allowed him in equity (0? as well as at law. The 
 principle is, tiiat the executor cannot sue himself (J). 
 
 In Woodward v. Lord Darcy, the Court of Common Pleas 
 expressed an opinion, that an executor, to whom his testator is 
 indebted by bond, in which the heir is bound, " cannot retain 
 
 nistrator may either plead his right to I 
 retain, or give it in evidence under the 
 plea plene administravit, see Bull v. Fan- 
 kester, Winch, 19 ; Bond v. Green, 1 
 Brownl. & G. 75, Godb. 216; Stone- 
 house V. Ilford, Com. 145; ^jion. Jenk. 
 Cent. C. 4, Ca. 88 ; Plumer v. Marchant, 
 3 Burr. 1380 ; Loane v. Casey, 2 W. Bl. 
 965 ; Gillies v. Smither, 2 Stark. 529. 
 That an executor may not, to the prejudice 
 of legatees, retain assets in discharge of 
 his own legacy, but must abate in pro- 
 portion, see Butler v. ]Vallis, 2 Freem. 
 134; Fretwell v. Stuqi, 2 Vern. 434; 
 Attorney General v. Robins, 2 P. W. 25 ; 
 Heron V. Heron, 2 Atk. 171. Generally 
 on retainer of assets, see 1 Rol. Abr. 
 922, L., 923, M., 1 1 Vin. Abr. 261—267, 
 269—271, 3 Danv, Abr. 385—387. 
 
 (e) Vaughan v. Browne, 2 Stra. 1106. 
 
 (/) Cockroft V. Black, 2 P. W. 298 ; 
 Marriott v. Thompson, Willes, 186. 
 
 (g) Gage, or Cage, v. Acton, 1 Salk. 
 325, 1 Ld. Raym.515, Com. 67 ; Stone- 
 ^mjMs^'- Ilford, Com. 145. 
 ^^X^) 1 Ventr. 199 ; Vaugh. 97 ; Bat- 
 hurst's case, 2 Ventr. 40; Sleddall v. 
 Bowerbank, 1 Rol. Abr. 923, 11 Vin. 
 Abr, 262 ; Charlton v. Low, 3 P. W. 33 1 . 
 From the report of the last case, it might 
 perhaps be inferred, that the administra- 
 trix was allowed to be paid before other 
 simple contract creditors, out of the pio- 
 duce of the real estate decreed to be sold 
 for the satisfaction of debts. By the decree, 
 her preference in payment is confined to 
 the intestate's personal estate. The words 
 
 are — " And so far as it shall appear that 
 the said Samuel Lowe received assets of 
 the said Henry Lowe for the payment of 
 the said legacy, the said defendant, Su- 
 sanna Lowe, is to be considered as a cre- 
 ditor of the said Samuel Lowe by simple 
 contract ; and is to be at liberty to retain 
 sufficient of the personal estate of the 
 said Samuel Lowe to make satisfaction for 
 what shall be found due to her for her said 
 legacy and interest, preferable to any other 
 creditor by simple contract, but not in pre- 
 judice to any creditor of a superior na- 
 ture." Reg. B. 1734, A. 294. 
 
 (0 1 P. W. 296 ; Cockroft v. Black, 
 
 2 P. VV. 298 ; Robinson v. Cumming, 2 
 Atk. 409. And a personal representative, 
 executor or administrator, may retain 
 after a decre for an account in a credi- 
 tors' suit, and also out of assets come to 
 his hands after such decree. Nunu v. 
 Barlow, 1 Sim. & St, 588. 
 
 (j) Plowd. 185; Willes, 188; 3 
 Burr. 1384; 2 W. Bl. Rep. 968 ; 3 BL 
 Com. 18; Chapman v. Turner, 11 Vin. 
 Abr. 72, 2 Eq. Cas. Abr. 426. On the 
 doctrine, that, by operation of law, the 
 property of the testator's goods is altered, 
 and vested in the executor as his own 
 proper goods in satisfaction of his debt, 
 see Plowd. 185 a.; 1 Anders. 24, Ca. 50; 
 
 3 Bulstr. 7 ; 1 Rol. Rep. 129 ; Bro. Abr. 
 tit. Executors, pi. 116; Anon. Keilw. 
 58 a., Ca. 2, 61 b., Ca. 2, 63 a., 64 a. ; 
 .lenk. Cent. C. 4, Ca. 88; Wentw. Off. 
 Ex. ch. 2, 14th ed. p. 77.
 
 S. I.] OF RETAINER BY EXECUTOR. 265 
 
 goods for part of liis debt, and for the rest have an action against 
 the heir; for lie cannot apportion his debt; but he ought to 
 retain goods for the whole, or have an action for the whole 
 against tiie heir" (/{). Where, however, the assets are insufficient 
 to pay his whole debt, he may retain all of them in part satisfaction 
 of it {/). A learned writer states, that in Hopkinson v. Leech, 
 7 May, 1819, Sir J. Leach, V. C, was of opinion, that an execu- 
 tor may retain a debt, although it be more than six years old ; 
 but that his Honor directed the opinion of a Court of Law to be 
 taken (w). 
 
 The privilege, whicli an executor enjoys to retain for his own 
 debts, is confined to debts of greater degree than, or of equal 
 degree with, those of other creditors (w), and does not extend to 
 entitle the executor to retain for his own debt against a creditor, 
 whose debt is of higher degree than that of the executor (o). 
 And therefore he cannot for his own bond debt retain asrainst a 
 creditor by judgment at law (/.'), or decree in equity (r/), or for 
 his own simple contract debt against a creditor by bond(7'). 
 
 If an executor pays out of his own money debts of the testator, 
 he may, to reimburse himself, retain assets to the amount of that 
 payment (s). And this retainer he may make, if, instead of pay- 
 
 (A:), Plowd. 185 a. See also AVentw. 
 Off. Ex. ch. 2, 14th ed. p. 78. 
 
 (0 Slonehnuse v. Ilford, Com. 145 ; 
 Robinson v. Ciunming, 2 Atk. 411. 
 
 (m) 1 Madd. Prin. & Pr. of Ch. 583. 
 
 (n) 1 Salk. 326 ; I Ld. Raym. 515, 
 516; 1 P. V/. 296; 3 P. W. 331; 
 Willes, 188; 3 Burr. 1284; 3 Ves, & 
 B. 197. 
 
 (o) 1 Ld. Raym. 515 ; 3 Bl. Com. 19. 
 
 (p) Burnet v. Holden, T. Raym. 210, 
 1 Lev. 277, 2 Keb. 549 ; Thomason, or 
 Thompson, V. Woods, 3 Lev. 218, 3 Salk. 
 65. 
 
 (q) Stashy v. Powell, 1 Freem. .333 ; 
 where, in ed. 1742, the sense requires the 
 word 7wt to be supplied, 
 
 (r) Musson v. May, 3 Ves. & B. 194. 
 
 (s) Plowd. 186; 1 Rol. Rep. 129; 1 
 Rol. Abr. 923, m. 2 ; Bro. Abr. tit. 
 Executors, 116; Keilw. 64 a.; Jenk. 
 
 Cent. C. 4, Ca. 88; Willes, 188 ; 4 
 Durn. & E. 640; Anon. 1 Dyer, 2 a., 
 pi. 3 ; Langston v. Dive, cited Plowd. 
 186; Cleydon, or Claydon, v, Spensar, 
 Mo. 2, Benl. 11, ed. 1689; Shelley v. 
 Sackvile, 1 And. 24, Mo. 2, Ca. 3, Benl. 
 11, ed. 1689, Ca. 8 ; Anon. 20 H. VIL, 
 cited Keilw. 59 b. ; Baker v. Berisford, 
 
 1 Lev. 154. On an executor's claim to 
 interest on his own money, laid out by 
 him in payment of the testator's debts, 
 see Macarte v. Gibson, Sel. Ca. Ch. 50. 
 On an executor's redeeming- out of his 
 own money property pledged by his tes- 
 tator, and the executor's right to retain it, 
 see Bro. Abr. tit. Administ. 51, tit. Execu- 
 tors, 179; 1 Rol. Abr. 923, M, 1 ; 2 Rol. 
 Abr. 684, pi. 7; Jenk. Cent. C. 4, Ca. 
 88; 11 Vin. Abr. 263; Anori. 1 Dyer, 
 
 2 a., pi. 3 , Anon. Keilw, 58 a., Ca, 2, 
 61 b., Ca. 2. See also Yelv. 178.
 
 266 or RETAINER BY EXECUTOR. [( H. XX. 
 
 iiig the debt, he gives his bond to pay it (t). Also an executor 
 may, it should seem, retain in satisfaction of a debt owing to his 
 wife (?<). If there are two executors, and one of them with his 
 own money pays debts of tlic testator, lie may to the amount so 
 paid retain against his co-executor (v). But if a testator dies 
 indebted to his executor, it may perhaps be stated, that, if at law 
 he may retain against his co-executor, who is a creditor in equal 
 degree (?r), yet probably he cannot do this in equity, where, it 
 should seem, both debts are to be discharged in proportion (a;). 
 It is decided, that if two bond creditors take joint letters of admi- 
 nistration, one of them cannot in equity retain against the other; 
 but the retainer of the one administrator is there considered as 
 the retainer of the other, and must enure for their mutual benefit, 
 in the discharge of the debts of both in proportion (?/). 
 
 He who is executor of an executor, and who is also the execu- 
 tor of the first testator, may retain such first testator's assets in 
 satisfaction of a debt, by such first testator owing either to this 
 executor personally, or to him as the executor of his own imme- 
 diate testator. A. the executor of B., executor of C, may, if A. 
 is executor of C, retain C.'s assets in satisfaction of a debt owing 
 by C. to A. ; and in satisfaction of a debt owing by C. to B. (z). 
 But A., the executor of B., executor of C, has not capacity to 
 retain C.'s assets in satisfaction of a debt owing by C. to B., if A. 
 is not also the executor of C. ; which he may not be ; as if a 
 co-executor of the will of C. survived B. (a). If A. is indebted 
 to B. by bond, and B. makes C. his executor, and A. also makes 
 C. his executor, then C. may retain the assets of A. in satisfac- 
 
 Ct) Martin v. Whipper, Cro. Eliz. 114 ; 
 Stamps V. Hiitchins, Cro. Eliz. 120, 1 
 Leon. Ill, Mo. 260, 1 Dyer, 2 a., pi. 
 .3,n. ; Briers v. Goddard, Hob. 250; 
 Anon. Gouldsb. 79, Ca, 15. 
 
 (m) Atkinson v. Rawson, 1 Mod. 208 ; 
 Prince v. Rowson, 2 Mod. 51 ; Briers v. 
 Goddard, Hob. 250. 
 
 (v) 1 Rol. Abr. 923, L. 9, 
 
 (w) 37 II. VI. 30, pi. 11 ; 20 H, VII. 
 5, pi. 14 ; Keilw. 63 a. ; 1 Rol. Abr. 
 92^ L. pi. 10; 11 Vin. Abr. 72, 262, 
 
 pi. 10; 2 Eq. Cas. Abr. 426; 3 Bl. 
 Com. 19. 
 
 (,r) 11 Vin. Abr. 262, pi. 10; 3 Bl. 
 Com. 19. 
 
 (y) Chapman v. Turner, 11 Vin. Abr. 
 72, 2 Eq. Cas. Abr. 426, 450, in marg,, 
 and 464 in marg., 9 Mod. 5th ed. 268. 
 
 (:) Hopton v. Dryden, Free. Ch. 180, 
 2 Eq. Cas. Abr. 450 ; Thomson v. Grant, 
 
 1 Russ. 540, n. ; Cock v. Cross, 2 Lev. 73. 
 (a) Hopton v. Dryden, Free. Cli. 180, 
 
 2 Eq. Cas. Abr. 450.
 
 S. I.] OF RETAINER BY EXECUTOR. 267 
 
 tion of the debt owing by A. to C, as the executor of 13. {//). If 
 A. is indebted to B. and to C. by several bonds, and dies, and D. 
 takes administration, and afterwards B. makes D. his executor, 
 and dies, D. may retain assets which he has as administrator to A., 
 to satisfy the debt due to him as executor to B. (c). If A., in- 
 debted by one bond to B., and by another bond to C, dies, leav- 
 ing C. and D. liis executors ; and D. renounces ; and C. buries 
 the testator, and intermeddles with his personal estate, but dies 
 before he has proved the will, and before he has expressly de- 
 clared whether he would or would not retain for his debt, and 
 makes E. his executor ; it was, in Croft v. Pyke, left undecided, 
 whether as C. had the power of retaining out of the assets, so the 
 same being in his hands it amounted to a retainer, and conse- 
 quently whether C.'s bond ought to be allowed in the account 
 before the bond of B. {d). On the subject of election to retain, 
 the following case of Weeks v. Gore had occurred some years 
 previously to the one last mentioned. A. lent money on bond to 
 B., who dying intestate, C. took out administration to him ; after 
 which C. dying, A. took out administration de bonis non, 8fc. to 
 B. ; and it was determined that A. might, out of the assets of B., 
 retain for such bond debt contracted before he took out admi- 
 nistration. And though A. happened to die before he had made 
 any election in what particular effects he would have the property 
 altered, yet the Court said, it must be presumed he would elect 
 to have his own debt paid first ; and, this being presumed, there 
 would remain no difficulty as to altering the property ; for as the 
 executors of A. were to account for the assets of B., they must, 
 on the account, deduct the amount of the money lent by A. 
 to B. (e). 
 
 An administratrix has been held to be entitled to retain, in 
 satisfaction of a debt created by a bond, which, before her marriage, 
 was by her husband given to herself, and made on condition to 
 
 (6) Fryer v. GUdridge, Hob. 10. 
 
 (c) Bimiet V. Dixe, 1 Rol. Abr. 922, 
 11 Vin. Abr. 261. 
 
 (d) 3P. W. 180. 
 
 (e) Weeks v. Gore, 3 P. W. 184, n. 
 See also on the election of an executor or 
 administrator to retain, Burdel v. Fix, 2 
 Brownl. & G. 50.
 
 268 or IIKTAINEU BY EXKCLTOH. [CH. XX. 
 
 leave to lier 1000/. if she survived him ( /'). There are also seve- 
 ral cases, wherein an executrix has been allowed to retain assets, 
 in satisfaction of a debt payable luider a bond s^iven to a trustee 
 to secure to her the payment of that money. These cases par- 
 take of the nature of the one last mentioned ; with this difference, 
 that here the bond is not given to the wife herself, but to a 
 trustee for her ; one instance being where the condition of the 
 bond was to pay (^), and others to leave (/i), to her a certain sum 
 of money. And where before marriage a husband covenanted 
 with a trustee that, in case the wife survived him, his executors 
 or administrators should pay to the trustee 400/., in trust for the 
 wife, and the husband died in the life-time of the wife, and she 
 took out administration ; it was determined she was entitled to 
 retain in satisfaction of that sum, and might give the covenant in 
 evidence inider the plea plene adminutravit (z). And in Loane v. 
 Casey, a similar case, an executrix was held to be entitled to 
 retain assets to satisfy damages for a breach of covenant, by the 
 husband entered into with a trustee for the wife to leave her all 
 his personal estate, and 200/. a-year for life out of his real 
 estates {j). And here De Grey, C. J., said, " Whenever 
 an executrix has a right to a sum of money, whether it be 
 strictly a debt to herself, or nominally to another, she may retain 
 it." And he mentioned that " in a case before Eyre, C. J., a 
 widow executrix was allowed to retain the money, with which 
 she had paid oft' a mortgage on her jointure ; the husband having 
 covenanted it to be free from incumbrances ; this being a satis- 
 faction for his breach of covenant" (A). And on an executor's 
 right to retain for damages, Blackstone, J., said, " Damages, that 
 
 (_/') Gage, or Cage, v. Acton, 1 Salk. 
 325, 1 Ld. Raym. 515, Com. 67 ; Acton 
 V. Peirce, or Acton, 2 Vern. 480, Pjcc. 
 Ch. 237. That such a bond made to the 
 wife herself is valid, see, farther, Mil- 
 hourn v. Eivart, 5 Durn. & E. 381. 
 
 (g) Roskelley v. Godniphin, T. Raym. 
 483, 2 Show. 403 ; BoskelLet v. Godol- 
 phin, S. C, Skinn. 214, cited Willes, 
 188. 
 
 (/i) Cockrcft V. Black, 2 P. W. 298 ; 
 Marriott v. Thompson, Willes, 186. See 
 also Ilodgkin v. Blackman, Cas. T. Finch, 
 232, and Brilton v. Batthurst, 3 Lev. 
 113. 
 
 (i) Harry v. Jones, 4 Price, 89. See, 
 likewise, Bowerbank v. Monteiro, 4 Taunt. 
 844. 
 
 (,/) 2 W. Bl. 965. 
 
 (A) Ibid. 967.
 
 S. I.] OF RETAINER BY EXECUTOR. 269 
 
 are in their nature arbitrary, cannot be retained, because, till judg- 
 ment, no man can foretell tlieir amount. Such are damages 
 founded upon torts. But where damages arise from the breach 
 of a pecuniary contract, there is a certain measure for them, and 
 such damages may well be retained. The remedy for a note of 
 hand carrying interest is only in damages ; but will any one say 
 this shall not be retained? The jury here have ascertained the 
 damages sufficiently, by finding that the arrears of the annuity 
 already accrued are more than the value of both the real and 
 personal assets" (Z). 
 
 " An executor may retain his own debt, or the debt of his 
 trustee" {m). He may also retain in satisfaction of a debt due 
 to himself as trustee (?i). And as an administrator may retain to 
 satisfy a debt payable under a bond given to a trustee to secure 
 to him, the administrator, the payment of that money (o) ; so if 
 the trustee is himself administrator, he may retain in satisfaction 
 of the money to be paid ; as in the case of Plunier v. Marchant, 
 where, before marriage, the husband covenanted with trustees, 
 that his executors or administrators should, within six months 
 after his death, pay 700Z. to the trustees, upon certain trusts for 
 the benefit of the wife and the children of the marriage. The 
 husband died intestate, and one of the trustees took out adminis- 
 tration. And on an action brought by a bond creditor, it was 
 decided that the administrator might retain, and give the covenant 
 made with him in evidence under the pleay^Zewe admhiistravit {p) . 
 In Thompson v. Thompson, a husband, before marriage, covenanted 
 with trustees, that the heirs, executors, or administrators of the 
 husband, in case the wife survived him, should pay to the wife, 
 for her life, an annuity of 20Z. ; or that the heirs, executors, or 
 administrators of the husband should pay to the trustees, within 
 months after the death of the husband, 400/. And it 
 was by the same deed declared and agreed, that such 400/., in 
 case the same should be paid, should be and remain vested in the 
 
 (/) 2 W. Bl. 968. 
 
 (to) 1 Sim. & St. 461. See 9 Price, 
 477. 
 
 (n) Maycrf v. Davenport , 2 Sim. 227. 
 
 (()) Marriott v. Thompson, Willes, 186; 
 Franks v. Cooptr, 4 Ves. 763. 
 
 (p) 3 Burr. 1380 ; Harry v. Jones, 4 
 Price, 89.
 
 270 or RETAINEK BY EXECUTOR. [CH. XX. 
 
 trustees. Here it was determined, that the wife, who survived, 
 and took out administration to, her husband, was not entitled to 
 retain in satisfaction of the 400/. ; and on the ground, it should 
 seem, tliat the intent of the covenant was, that the annuity only 
 should be paid to the wife, and not the principal or corjms, 
 which it was meant should be paid to and remain vested in the 
 trustees (*/). 
 
 An executor de son tort^ or of his own wrong, appears to be 
 one, who wrongfully intermeddles with the personal estate of a 
 person deceased ; in the case of a will, before the executor proves 
 it, or administers ; and in the case of an intestacy, before admi- 
 nistration is granted. And an executor of his own wrong may 
 also be one, who, after probate or administration by an executor, 
 claims to be executor, and intermeddles or administers expressly 
 in that character (r). To this description of executor, and who 
 does not afterwards legalise his own wrong by obtaining letters 
 of administration, the right to retain is not allowed {s). The 
 encouragement, which a power of this kind would give to such 
 wrongful executorships, is a manifest reason not to extend the 
 privilege to them. An executor of his own wrong cannot 
 retain even a debt of greater degree owing to himself; a point 
 that was expressly decided in Coulter s case {t) ; and there the 
 
 (7) 9 Price, 464. 
 
 (r) Read's case, 5 Co. 33 b. ; Stokes 
 V. Forter, 2 Dyer, 166 b.; Anon. 1 Salk. 
 313.— 2 Durn. & E. 100, 597 ; 2 Bl. 
 Com. 507. On Acts which may make a 
 person an executor of his own wrong, 
 see, farther, stat. 43 Eliz. c. 8 ; 1 Eol. 
 Abr. 918, 919; Com. Dig. tit. Admhiis- 
 trator,C.; Stokes v. Porter, 2 Dyer, 166 
 b., 1 Anders. 11 ; Anon. Dalis. 94 ; Laury 
 V. Aldred, 2 Brownl. & G. 183 ; Kitchin 
 V. Dixson, or Dixon, Gouldsb. 116, Noy, 
 69 ; Anon. Noy, 69 ; Palmer v. Lither- 
 land, Noy, 86 ; Ayre v. Ayre, 1 Ch. Cas. 
 33 ; Anon. 1 Salk. 313, Cas. T. Holt, 44 ; 
 Anon. 7 Mod. 31 ; Padget v. Priest, 2 
 Durn. & E. 97 ; Edwards v. Harben, ib. 
 587 ; MouHlfnrd v. Gibson, 4 East, 441, 1 
 
 Smith, 129; Femings v. Jarrat, 1 Espin. 
 335 ; Hall V. Elliot, 1 Peake 86, 3rd 
 ed. 119 ; Cottle v. Aldrich, 1 Stark. 37, 
 
 4 M. & S. 175 ; Hooper v. Summerset, 
 Wightw. 16. See also Vernat's case, 
 Clayt. 116. 
 
 («■) Whippers case, 1 Dyer, 2 a., Ca. 
 3, n. ; Alexander v. Eamb, 1 Brownl. & 
 G. 103 ; West V. Lane, ib. 104 ; Bond 
 
 ^. Green, Godb. 217 Yelv. 138, Carth. 
 
 104, 1 Y. & J. 415. See also Atkin- 
 son V. Rawson, 1 Mod. 208 ; Prince v. 
 Rowson, 2 Mod. 51. 
 
 (t) Coulter's ca&e, or Coulter \. Ireland, 
 
 5 Co. 30, Mo. 527, 1 Rol. Abr. 922, L. 
 4 ; Ireland v. Coulter, S. C, Cro. Eliz. 
 630.
 
 S.I.] 
 
 OF RETAINER BY EXECUTOR. 
 
 271 
 
 Court said, that " an executor of liis own wrong should not 
 retain, for from thence would ensue great inconvenience and 
 confusion : for every creditor (and chiefly when the goods of the 
 deceased are not sufficient to satisfy all the creditors) would 
 contend to make himself execvrtor of his own wrong, to the 
 intent to satisfy himself by retainer, by which others would be 
 barred" {u). And the same pohit is decided by the modern case, 
 Curtis V. Vernon, where the executor was not permitted to retain, 
 although he pleaded the rightful administratrLx's assent to his 
 retainer in satisfaction of his debt {v). 
 
 When an action is brought against an executor of his own 
 wrong, and he afterwards procures letters of administration to be 
 granted to him, whereby he legalises his wrong, he is entitled to 
 plead his lawful right to retain. And in some cases, even after 
 plea put in, he may plead such right by plea jnds darrein con- 
 tinuance [ic). 
 
 The Court of Chancery has said, " a Court of Equity will 
 never assist a retainer" [x) ; and that " the rule of this Court in 
 cases of retainer is, unless the party can shew a legal right to 
 retain, we never give it him ; if he can shew a legal right, we 
 never take it from him"(?/): "he who cannot retain in law, 
 cannot in equity" {z). From these rules it seems to follow, and 
 it appears to be accordingly determined, that an executor is not 
 allowed to retain, for the whole of his debt, property which at 
 law is not assets to pay it, and which in a Court of Equity is 
 distributable amongst creditors equally ; although of such equi- 
 table assets he may, it should seem, retain sufficient to satisfy 
 his proportionable part payable out of them {a). 
 
 (w) 5 Co. 30 b. 
 
 (y) 3 Durn. & E. 587 ; Vernun v, 
 Curtis, S. C, 2 Hen. Bl. 18. 
 
 (w) Williamson v. Norwich, Style, 337' 
 1 Rol. Abr. 923 ; Vavghan v. Browne, 
 Andr. 328, 2 Stra. 1 106. And see Ken- 
 rick V. Burges, Mo. 126 ; Pyne v. Wnol- 
 land, 2 Ventr. 179; Baker v. Beresford^ 
 1 Keb. 285, 1 Sid. 76; and Curtis v. 
 Vernon, 3 Durn. & E. 587 ; authorities 
 which appear to contradict Whitehead v. 
 Sampson, 1 Freem. 265. See, farther, 
 
 Watson V. Harrison, 1 Freem. 533. 
 
 (x) Free. Ch. 181. 
 
 (y) 11 Vin. Abr. 72; 2 Eq. Cas. Abr. 
 426. 
 
 (z) Ibid. 
 
 (u) Anon,, or Cell v. Adderlii, 2 Ch. 
 Cas. 54 ; Hopton v. Dryden, Prec. Ch. 
 179, 2 Eq. Cas. Abr. 450; Baily v. 
 Ploughman, Mos. 95. See also Silk v. 
 Prime, 1 Dick. 384, 385 ; Chambers v. 
 Harvest, Mos. 123 ; and7/«// v. Kendall, 
 ib. 328.
 
 27'2 [cH. XX. 
 
 SECTION II. 
 
 OF RETAINER BY HEIR OR DEVISEE. 
 
 " Where an heir by bond or judgment is a creditor, Qiicpre, 
 if he shall not retain ; the reason being the same in the case 
 of an heir as it is of an executor, for neither can sue him- 
 self" (Z»). To this question it may be answered, that clearly an 
 heir at law, who is a specialty creditor of his ancestor, may, by 
 the common law, retain legal assets descended against other 
 creditors of equal or lower degree (c) ; and may plead this right 
 in an action brought against him, as by a bond creditor of his 
 ancestor (rZ). The same right of retainer is allowed in a Court 
 of Equity (e). But in a suit, where, among the specialty debts 
 of the ancestor, was a large sum due on bond to the heir and 
 another person, as executors of the obligee ; under the circum- 
 stances of the case, a Court of Equity would not permit the heir 
 to retain in satisfaction of this debt : he did not by his answer 
 claim to retain ; and having at a late stage of the proceeding set 
 up this claim, the Court said, retainer could not at that stage be 
 allowed (Z"). Loomes v. Stotherd decides, that when a husband 
 devises all his real estate to his wife, she may, against specialty 
 creditors of the testator, retain that estate in satisfaction of a debt 
 due from him to the trustees of his marriage settlement, upon a 
 bond for securing a sum of money for the benefit of the devisee 
 and her children. This is the point of the case ; and, in the 
 judgment, Sir John Leach observed on retainer generally, as 
 well as on that in the particular case, " At common law, an 
 heir could retain for his own specialty debt : so a devisee, under 
 the statute, must have the same right as an heir. An executor 
 may retain his own debt, or the debt of his trustee ; and therefore 
 a devisee may retain for his own specialty debt, or the debt of 
 
 (6) 2 Vern. 62. 
 {c) 1 Sim. & St. 461. 
 (d) Shetelworth v. Neville, 1 Durn. & 
 E. 544. 
 
 (e) 1 Sim. & St. 461 ; 1 Russ. 541, 
 542. 
 
 ( /■) Plaiter v. Foxholl, 1 Russ. 538.
 
 S. II.] OF RETAINER BY HEIR OR DEVISEE. 273 
 
 his trustee ; and if the devisee be also the executor of a deceased 
 creditor, he may first retain for his own debt, and next for the 
 debt of his testator. But the devisee cannot retain his debt in 
 priority to the costs of the suit ; because the costs of the suit are 
 to be considered as expenses in administering the estate, and are 
 the first charge upon an estate, whether administered in or out of 
 Court. But if a devisee states in his answer, that his right of 
 retainer will exceed the assets, after such notice the plaintiff may 
 be considered as proceeding at the peril of costs" {g). 
 
 A person devised his estate to trustees (whom he also made 
 executors), and their heirs, to be sold for payment of his debts. 
 The trustees refused to act, and the creditors brought a bill for a 
 sale. A question made was, " whether the heir at law, who was 
 bound in several bonds with his father, by way of security, might 
 not retain. But it was adjudged that he could not, but only 
 come in for a rateable share with the other creditors" (Jl). 
 
 In Shefelworth v. Neville, which was an action of debt on two 
 bonds made by the defendant's father, the defendant pleaded that 
 he had not any lands or tenements by descent from his father, 
 except a certain messuage and a windmill; and which messuage 
 and windmill he pleaded were liable " to the payment and satis- 
 faction of a certain sum of 100/. laid out and expended by the 
 defendant, since the death of his father, for, in, and about the 
 repairing of the said windmill, with the appurtenances, over and 
 beyond the amount of the rent, issues, and profits thereof." To 
 this plea there was a general demurrer, and judgment was given 
 for the plaintiff. Ashhurst, J., held the plea to be bad, on the 
 grounds, besides the novelty of the plea, that it did not state the 
 repairs were necessary ; that it did not allege that the defendant 
 had no notice of the plaintiff's demand, before the repairs were 
 made ; that an heir at law, till the possession is recovered against 
 him, is entitled to the rents and profits, and in the meantime 
 he may have received more than sufficient to pay for the repairs. 
 Buller, J., decided the plea was bad, on the single ground, that 
 it did not state the repairs were necessary (i). 
 
 (g) 1 Sim. & St. 458. I (0 1 Durn. & E. 454. 
 
 (/i) Chambers v. Harvest, Mos. 123. I 
 
 T
 
 274 
 
 CHAPTER XXI. 
 
 OF THE ORDER IN WHICH THE DEBTS OF A PERSON DE- 
 CEASED ARE PAYABLE OUT OF HIS LEGAL ASSETS. 
 
 Of assets, some are called legal, and others equitable, assets. 
 With the former, the Courts of Law and of Equity pay certain 
 debts in a particular order : with the latter, a Court of Equity 
 pays certain creditors equally, without regard to the order ob- 
 served in distributing legal assets {a). 
 
 When an executor or administrator is possessed of legal assets, 
 it is his duty to pay out of them, first, a certain expense for the 
 funeral of the deceased ; secondly, the duty payable on the pro- 
 bate of the will or letters of administration, and certain other 
 testamentary expenses: and, thirdly, before he pays any other 
 debt owing by the deceased, he is bound to discharge his debts 
 by record and specialty due to the Crown (b) ; and, fourthly, 
 such debts as are by particular statutes to be preferred before all 
 others, — apriority which is given by the statute of 9 Anne, c. 10, 
 s. 30, to money owing for the postage of letters ; and by the 
 statute 17 George II. c. 38, s. 3, to money received by virtue of 
 the office of overseer of the poor (c). 
 
 After the above payments are made, the next consideratioin, 
 with reference to the satisfaction of debts, is, the order in which 
 an executor or administrator is bound to pay the debts, which the 
 
 («) Plunket V. Penson, 2 Atk. 290 ; Silk 
 V. Prime, 1 Bro. C. C. 138, n. See also 
 Chapter XXVII. of the present Treatise. 
 
 (b) Wentw, Off. Ex. eh. 12 ; Swinb. 
 part 6, s. 16 ; God. Orph. Leg. part 2, 
 ch. 28; 4 Burn Eccl. L. 348, 349; 2 
 Bl. Com. 511 ; 1 Sim. & St. 461. See 
 also Chapters II., XVIII., and XIX., 
 of the present Treatise. 
 
 (c) 2 Bl. Com. 511. Dr. Burn, it is 
 observable, appears to have understood, 
 
 that an executor or administrator is bound 
 to pay, first, funeral expenses ; secondly, 
 money due from an overseer of the poor ; 
 thirdly, the charges of the probate of the 
 will, or of the letters of administration ; 
 and, fourthly, crown debts. (4 Burn 
 Eccl. L. 348.) The words bf the statute 
 17 Geo. II. are, that the money due from 
 the overseer shall be paid " before any of 
 his other debts are paid and satisfied."
 
 CH. XXI.] OF THE ORDER IN WHICH DEBTS, &C. 275 
 
 deceased at the time of his death owed to a subject. And here it 
 will be recollected, that " among debts of equal degree, the 
 executor or administrator is allow^ed to pay himself first, by 
 retaining in his hands so much as his debt amounts to" (d). 
 
 The debts, which a person at- the time of his death owes to a 
 subject, may consist of debts by judgment at law; by common 
 law recognizance ; by bond entered into for valuable considera- 
 tion ; by simple contract ; and by voluntary bond. To these 
 may be added several kinds of debts, which, for the purpose of 
 payment out of personal assets, are equal to some class of the 
 debts mentioned. In pursuing the subject of this chapter, the 
 reader's attention may, therefore, be directed to 
 
 1. Judgments. 
 
 2. Common Law Recognizances. 
 
 3. Bonds. 
 
 4. Simple Contracts. 
 
 5. Voluntary Bonds. 
 
 6. Certain Debts, which, for the purpose of Payment out of per- 
 
 sonal Assets, are equal to some class of the Debts mentioned. 
 1. Debts by judgment at law are entitled to be paid before 
 common law recognizances, and debts by bond, and by simple 
 contract [e). But to support this right, it is necessary that the 
 judgment be docketed pursuant to the statute 4 and 5 W. & M. 
 c. 20 ; for if not so docketed, the executor is not bound to pay it 
 before a debt by bond or by simple contract. And, accordingly, to 
 an action of debt brought on the judgment, the executor may 
 under the plea j)lene administravit discharge himself, by proof of 
 payment of bond and other specialty debts (/). And such an 
 undocketed judgment, which the executor has not paid, cannot 
 be pleaded by him to an action of assumpsit brought against him 
 by a simple contract creditor {g). 
 
 (J) 2 Bl. Com. 511 ; 3 Bl. Com. 18, 
 19. See also Chapter XX. of the present 
 Treatise. 
 
 (e) Pemberton v. Bavham, 4 Co. 59 b. ; 
 5 Co. 29 a. ; Bereblock v. Read, 4 Co. 
 59 b., Cro. Eliz. 734, 822; Robinson v. 
 Toni^e, 3 P. W. 398.— Cro. Eliz. 575, 793 : 
 
 t2 
 
 ] Rol. Abr. 926, R. pi. 1, 2 ; 927, S. pi. 
 4, 5; Vaugh. 94; 4 Mod. 296; 6 Durn. 
 &E. 369; 7 Barn. & C. 452. 
 
 (/) Hickey v. Hayter, I Espia. 313, 
 6 Duin. & E. 384. 
 
 (g) Steele v. Rorke, 1 Bos. & P. 307.
 
 276 OF THE OliDER IN WHICH DEBTS ARE [CH. XXI. 
 
 2. Debts by common law recognizance are entitled to be paid 
 before debts by bond, and by simple contract (h). 
 
 3. Debts by bond are entitled to be paid before debts by 
 simple contract {i). And in the case of a bond conditioned to 
 pay a sum of money at a future day, if a creditor by simple con- 
 tract brings an action of assumpsit against the executor, he may 
 plead such bond, and condition to pay money at a day not yet 
 come ; and, to the amount of the sum so payable by the condi- 
 tion of the bond, the assets are, by the plea mentioned, protected 
 against the claim of the simple contract creditor (j). But 
 between this kind of bond, under which it is certain money will 
 be payable, and a bond under which money may, on a contin- 
 gency only, be payable, there is a material distinction. For the 
 executor will not in equity be guilty of a devastavit, if he pays a 
 simple contract debt, with the knowledge of a bond, under which 
 money may on a contingency be payable (k) ; as if the bond is 
 entered into for the performance of covenants, and the executor 
 pays the simple contract debt, before the condition of the bond is 
 broken by any breach of the covenants (Z). And notwithstanding 
 the bond, the simple contract creditor may at law recover his 
 debt by action against the executor (m). A bond or covenant of 
 indemnity may create a contingent debt. Nevertheless, if the 
 bond is forfeited, or the covenant is broken, at the testator's 
 death, the obligee or covenantee will be a specialty creditor of 
 the testator (n). 
 
 4. In ranging the before mentioned judgments, recognizances, 
 and bonds, in the order stated, it is understood that such debts 
 are supported by valuable consideration. After specialty debts 
 
 (/)) Robson V. Francis, 1 Rol. Rep. 
 405, 1 Rol. Abr. 925, Q. pi. 2 ; Edgcomh 
 V. Dee, Vaugh. 89, 102, 103. 
 
 (0 9 Co. 88 b.; Cro. Eliz. 316; 4 
 Taunt. 846 ; 7 Barn. & C. 452. 
 
 {j) Buckland v. Brnok, Cro. Eiliz. 315; 
 Lemun v. Fottke, 3 Lev. 57 ; Bank of 
 England v. Mm-ice, 2 Stra. 1028, 1035, 
 Cas. T. Hardw. 219. See also Goidimith 
 V. Sydnor, Cro. Car. 362, 1 Rol. Abr. 
 
 925, Q. 4 ; and Robson v. Francis, 1 
 Rol. Abr. 925, Q. 2. 
 
 {k) See Eeles v. Lambert, 2 Vern. 
 101, n. ; and Robson v. Francis, 1 Rol. 
 Rep. 405, 1 Rol. Abr, 925, Q. pi. 3. 
 
 (I) Hawkins v. Day, Amb. 160, and 
 ed. Blunt, Append. 803. 
 
 (m) Harrison's case, 5 Co. 28 b. 
 
 («) Cox V. Jot,eph, 5 Durn. & E. 307 ; 
 Mnsson v. May, 3 Ves. & B. 194.
 
 CH. XXI.] PAYABLE OUT OF LEGAL ASSETS. 277 
 
 contracted for valuable consideration are satisfied, debts by simple 
 contract arc entitled to be paid (o). And of simple contract 
 debts, the wages of a servant, within " the Statute of La- 
 bourers" (/->), are perhaps payable before any other simple con- 
 tract debt {(]). But if this privilege exists, it is not certain that 
 other servants enjoy the same right of preference (?■). 
 
 5. After debts by simple contract, and supported by valuable 
 consideration, are satisfied, executors are bound to pay debts by 
 judgment voluntarily, that is, without valuable consideration, 
 confessed by the testator (s) ; and debts by the testator's volun- 
 tary bond, conditioned to pay money (t). But here it is to be 
 understood, that such voluntary bond is grounded on a lawful 
 consideration ; as, one that is meritorious (?0> such as payment of 
 debts, or making a provision for a wife or child (w) ; or the good {w) 
 consideration of blood, or of natural love and affection ; or some 
 other lawful consideration or motive, as of duty, justice, or 
 honour {x). A voluntary bond, sustained by either of such law- 
 ful considerations, clearly may be valid (y). But a bond, the 
 
 ((.) 7 Barn. & C. 452 ; 2 Bl. Com. 
 511 ; Wentw. Off. Ex. ch. 12, 14th ed. 
 p. 297 ; Soam v. Bowden, Cas.''T. Finch, 
 396. 
 
 (;))'l Rol. Abr. 927, U. 1. Statutes 
 of Labourers appear to be, 23 Edw. III., 
 25 Edw. III., 5 Eliz. c. 4, I Jam. I. o. 6, 
 20 Geo. II. c. 19, 53 Geo. III. c. 40. 
 
 (q) 1 Rol. Abr. 927, U. 1, 4 ; 2 BI. 
 Com. 511 ; Shepp. Touch. 478. 
 
 (r) 1 Rol. Abr. 927, U. 4; where 
 Rolle inquires — " Qutere if a debt on 
 simple contract be to be paid after a debt 
 for wages to a servant, who is not within 
 the Statute of Labourers." Between ser- 
 vants, there appears to be this distinction, 
 — that one who is within a Statute of La- 
 bourers can, and one who is not within 
 such a statute cannot, on a simple con- 
 tract, sustain an action of debt against an 
 executor for wages owing by his testator. 
 Fitzh. Abr. tit. Executors, 50 ; Bro. Abr. 
 tit. Dette, 53, 188, tit. Executors, 41, 
 87, 163 ; 9 Co. 88 a., 88 b. ; Mo. 698 ; 
 
 Wentw. Off. Ex. ch. 11. 
 
 (s) Fairebeard v. Bowers, 2 Vern. 202, 
 Free. Ch. 17. 
 
 (t) Jones v. Powell, 1 Eq. Cas. Abr. 
 84, 143 ; Williams v. Sawyer, Sel. Ca. 
 Ch. 6, 2 Eq. Cas. Abr. 182 ; Saunders v. 
 Graves, 1 Dick. 93 ; Hamsden v. Jackson, 
 1 Alk. 294 ; Blount v. Doughty, 3 Atk. 
 481. 483 • Bedford v. Gibson, 9 Mod. 5th 
 ed. 415. See also 3 P. W. 222 : 1 Bro. 
 C. C. 38 ; Gilham v. Locke, 9 Ves. 612 ; 
 Loeffes v. Lewen, Free. Ch. 370 ; and 
 Hunt V. Maunsell, 1 Dow F. C. 211. 
 
 (m) 3 F. W. 340. 
 
 (v) 3 F. W. 341 ; 3 Bro. C. C. 14 ; 
 9 Ves. 614. 
 
 (w) 2 Bl. Com. 297. 
 
 (x) 1 F. W. 607 ; 2 P. W. 434 ; 2 
 Wils. 341 ; 9 Ves. 614. 
 
 (y) Wright V. Moor, 1 Ch. Rep. 157 ; 
 Beard v. Nuttball, 1 Vern. 427 ; Black, 
 horn V. Edgley, 1 P. W. 607 ; Stiles v. 
 Attorney General, 2 Atk. 152.
 
 278 OF THE ORDER IN WHICH DEBTS ARE [CH. XXI. 
 
 condition of which binds the obligor to do an act that is malum 
 in se, is as clearly void (z). And so* likewise is a bond, the con- 
 sideration of which is an immoral act, or an act that is malum 
 in se, to be done by the obligee (a). When the consideration of 
 a voluntary bond to pay an annuity is lawful, and arrears of the 
 annuity grow due, those arrears are, as between the obligor and 
 obligee, a debt for which the obligor may immediately be sued. 
 If, then, the obligee promises not to sue, and this promise is made 
 the consideration of a second bond to pay the arrears, or another 
 annuity in addition to or in the place of the first, such second 
 bond is a bond for valuable consideration {h). 
 
 A description of voluntary bond, not unfrequently met with, 
 is a bond given to a kept-mistress. Its validity depends, it will 
 be seen, on circumstances, and many distinctions are taken by 
 the Courts on securities of this nature. 
 
 The cases of seduction, or incontinence, between unmarried 
 persons, may first be noticed. 
 
 If on the seduction of an unmarried female, the seducer pre- 
 viously gives to her a bond, as the price of her virtue, such bond 
 is void (c). If, on the other hand, after the seduction, and, 
 although the woman is some time kept by the man, he, either at 
 the time when the illicit intercourse between them ceases, or 
 afterwards, gives, from some lawful motive, to her a bond, this 
 bond is valid {d). But, in a third case, if, after the seduction, 
 the bond is entered Into as the price of future cohabitation, the 
 immoral consideration of this bond makes it void (<?). In a farther 
 instance, if an unmarried woman is kept by a man, who was not 
 
 (s) Co. Liu. 206 b. ; 1 Rol. Abr. 418, 
 Y. pi. 2, 3, 6; IP. W. 189; 10 Mod, 
 134 ; Prat v. Phanner, Mo. 477. 
 
 (a) 1 Rol. Abr. 418, Y, pi. 4, 5; 
 Mason V. Watkins, 2 Ventr, 109 ; Walker 
 V. Perkins, 1 W. Bl. 517, 3 Burr. 1568. 
 See Brook v Kitig, 1 Leon. 73, and 
 Jones' case, ib. 203. 
 
 (ft) Stiles V. Attorney General, 2 Atk. 
 152 ; Gilham v. Locke, 9 Ves. 612. See 
 also Blount v. Doughty, 3 Atk. 484, and 
 Hunt V. Maunsetl, 1 Dow P. C. 211. 
 
 (c) Walker v. Perkins, 1 W. Bl. 517, 
 3 Burr. 1568 ; Franco v. Bolton, 3 Ves. 
 371. 
 
 (c?) Marchioness of Annandale V, Harris, 
 
 2 P. W. 432, 1 Bro, P. C. ed. Toml. 
 250, cited 9 Mod. 5th ed. 265 ; Cray v. 
 Rookc, Cas. T. Talb. 153; Turner v. 
 Vaughan, 2 Wils. 339. 
 
 (e) Walker v. Perkins, 1 W. Bl. 517; 
 
 3 Burr. 1568 ; Franco v. Bolton, 3 Ves. 
 371.
 
 CH. XXI.] PAYABLE OUT OF LEGAL ASSETS. 279 
 
 her seducer, and he, at the time when the connexion between 
 them ceases, or afterwards, gives to her, from some lawful motive, 
 a bond, this bond is valid ( /*). And it may be valid, notwith- 
 standing the woman was a common prostitute for several years 
 before the obligor's acquaintance with her (f/). And, under some 
 circumstances, the bond may be supported, notwithstanding that, 
 at the time when it was given, the unlawful intercourse between 
 the parties was not broken off, and the woman afterwards re- 
 mained in the keeping of the obligor (h). But if the considera- 
 tion of the bond is future cohabitation, this circumstance will 
 vitiate it {i). 
 
 When, in the cases mentioned of seduction or incontinence, 
 the consideration of the bond is unlawful, an action cannot, at 
 law, be sustained on it (J). And in such action, the bad con- 
 sideration of the bond, and which does not appear on the face of 
 it, may be averred in a special plea (k). And although, in some 
 cases, a Court of Equity may dismiss a bill filed to deliver up the 
 bond, that cannot be supported at law (Z), yet certainly a Court 
 of Equity will not enforce the payment of it (m). When the 
 consideration of the bond is lawful, the money so secured may 
 be recovered by action at law (?«)• And against such a bond, a 
 Court of Equity will, in general cases, not relieve (o) ; but, on 
 
 (/) Whaley v. Norton, 1 Vern. 483. 
 See also Lloyd v. Carter, 2 Atk. 84. 
 
 (g) Hill V. Spencer, Amb. 641, and 
 ed. Blunt, Append. 836 ; Gray v. Mathias, 
 
 5 Ves. 286 ; Friend v. Harrison, 2 Carr. 
 
 6 P. 584. See Robinson v. Cox, 9 Mod. 
 5th ed. 263. 
 
 (h) Hill V. Spencer, above ; Dillon v. 
 Jo7ies, cited 5 Ves. 291, 293, 294 ; Gray 
 V. Mathias, and Friend v. Harrison, 
 above. See also Lloyd v. Carter, 2 Atk. 
 84. 
 
 (i) Walker v. Perkins, Franco v, Bolton, 
 Gray v. Mathias, and Friend v. Harrison, 
 above. See Quidihy v. Kelly, 1 Vern. & 
 Scriv. 515 ; where the Court seems to 
 have supported a rent-charge granted to 
 a woman, and the grant ol which was to 
 be void, if she should at any time after be 
 
 minded to quit or abscond from M. K. 
 (the person with whom she lived), so as 
 to cohabit with any other man, without 
 the consent and approbation of M. K. 
 
 (J) Walker v. Perkins, above. 
 
 (k) Collins V. Blantern, 2 Wils. 347 ; 
 Friend v. Harrison, above. 
 
 (0 Gray v. Mathias, 5 Ves. 286, on 
 the second bond. 
 
 (m) 5 Ves. 294. See Matthew v. 
 Hanbury, 2 Vern. 187, cited ib. 242, and 
 in Amb. ed. Blunt, 838. 
 
 (n) Turner v. Vavghan, 2 Wils. 339 ; 
 Friend v. Harrison, above. 
 
 (o) Whaley v. Norton, 1 Vern. 483 ; 
 Bainham v. Manning, 2 Vern. 242 ; Hill 
 V. Spencer, above ; Gray v. Mathias, 
 above, on the first bond.
 
 280 OF THE ORDER IN WHICH DEBTS ARE [CH. XXI. 
 
 the contrary, will support it, and decree the money to be paid (p) ; 
 and, when it is to be paid out of the assets of the obligor, it is 
 entitled to payment, after satisfaction of his simple contract 
 debts iq). And it may be added, that if the bond binds the heirs 
 of the obligor, his real assets are liable to satisfy the debt, in case 
 of a deficiency of his personal estate (r). In some cases, how- 
 ever, the bad character of the woman, previously to the obligor's 
 acquaintance with her, and circumstances of imposition on her 
 part, may constitute a ground, on which a Court of Equity will 
 relieve against the bond, and order a perpetual injunction to stay 
 proceedings at law upon it (s). 
 
 A distinction has, on the present subject, been drawn between 
 a deed, as a bond, and a parol promise. In Binnington v. Wallis, 
 an action brought on such a promise, the declaration stated, that 
 the plaintiff had cohabited with the defendant as his mistress, and 
 had, before the promise, wholly ceased to cohabit with him. The 
 Court held, — " The declaration is insuflficient ; it is not averred 
 that the defendant was the seducer, and there is no authority to 
 shew that past cohabitation alone, or the ceasing to cohabit in 
 future, is a good consideration for a promise of this nature. The 
 cases cited are distinguishable from this, because they are all cases 
 of deeds ; and it is a very different question, whether a considera- 
 tion be sufficiently good to sustain a promise, and whether it be 
 so illegal as to make the deed, which required no consideration, 
 void. There must, therefore, be judgment for the defendant" {t). 
 In Gibson v. Dickie^ an earlier case, and which, it seems, was not 
 noticed in the one last mentioned, the declaration stated, that the 
 defendant agreed, in case the plaintiff and defendant should sepa- 
 rate, that he, the defendant, would allow the plaintiff 30/. per 
 annum during her life. The defendant pleaded non assumpsit ; 
 and a verdict having been found for the plaintiff, it was moved, 
 
 (p) Marchioness of Annandale v. Harris, 
 2 P. W. 432, 1 Bro. P. C. ed. Toml. 250, 
 cited 9 Mod. 5th ed, 265. See also Gary 
 V. Stafford, Amb. 519, and ed. Blunt, 
 Append. 831. 
 
 (q) Crait v. Rooke, Cas. T. Talb. 153. 
 
 (r) Ibid. 
 
 (s) Clarke v. Periam, 2 Atk. 333, 
 337 ; Clark v. Peryam, S. C, 9 Mod. 
 5th ed. 340; Robinson v. Cox, ih. 263. 
 See Bodly v. Anon., 2 Ch. Cas. 15. 
 
 (0 4 Barn. & Aid. 650. On a suffi- 
 cient consideration to support a proujise, 
 see also 1 Madd. Rep. 564.
 
 CH. XXI.] PAYABLE OUT OF LEGAL ASSETS. 281 
 
 in arrest of judgment, that the agreement was void, because the 
 allowance of the annuity in case of separation was by way of 
 inducement to the plaintiff to continue the illicit cohabitation. 
 The Court held the agreement to be " a voluntary compensation, 
 by way of maintenance, made tO the plaintiff for the injury done 
 her by their past illicit connection" ; and said, " that so far from 
 its beins: an inducement to her to continue the cohabitation, it 
 was rather an inducement to separate." And the rule was re- 
 fused (u). These two apparently contradictory authorities seem 
 to leave it doubtful whether, in future cases, in which seduction 
 is not an ingredient, past cohabitation alone may be thought a 
 sufficient consideration to support an action on a parol promise 
 to provide for a mistress. 
 
 On securities intended to provide for a kept-mistress, several 
 other cases have occurred, where one of the parties was, at the 
 time of such connexion, a married person. 
 
 If a married man seduces a female, who at the time knows that 
 he is married, and she is afterwards kept by him, and he, when 
 the connexion between them ceases, gives, on some lawful con- 
 sideration, to her a bond, it is decided that this bond is, in a Court 
 of Law, valid (u). And, in many cases, a Court of Equity will 
 not afford relief against it{iv); but, on the contrary, will often 
 uphold it, and decree the money to be paid (x). When, however, 
 one of the parties is a married person, this circumstance, united 
 with some other cause to regard the woman in an unfavourable 
 light, may, in some cases, induce a Court of Equity to refuse to 
 aid her, and so to leave her to her remedy, if any, at law (?/) ; 
 and may, in other instances, incline the Court to interpose against 
 her, and to decree the bond or other security to be delivered up 
 to be cancelled (z). A case is reported, wherein a man married a 
 woman, who did not know that he had a wife then living ; and she 
 continued to live with him after the discovery that his first wife was 
 
 (u) 3 M. & S. 463. 
 
 (v) Nye V, Moseley, 6 Barn. & C. 133, 
 9 Dowl. & Ryl. 165. 
 
 (to) Spicer v. Hayward, Free. Ch. 114. 
 
 (i) Sjncer v. Hayward, above ; Knye 
 V. Moore, 1 Sim. & St. 61, 2 Sim. & St. 
 
 260; Nye v. Moseley, S. C, 2 Sim. 161. 
 
 (y) Priest v. Parrot, 2 Ves. 160, cited 
 6 M. & S. 138, and 2 Sim. & St. 264. 
 See Hunt v. Maunsell, 1 Dow. P. C. 211. 
 
 (:) Robinson v. Gee, 1 Ves. 254.
 
 282 OF THE ORDER IN WHICH DEBTS ARE [CH. XXI. 
 
 alive, and until, it seems, the time of his death. Some years after 
 that discovery, he gave her a bond to leave her lOOOZ. at his 
 death ; and, under the particular circumstances of the case, a Court 
 of Equity decreed this bond to be paid out of the husband's assets, 
 postponing it, nevertheless, to all his debts by simple contract («). 
 In another case, a married woman, separated from her husband, 
 was induced to live with an unmarried man ; and he, on discon- 
 tinuing this connexion, promised, in writing, to secure to her an 
 annuity for her life, and which he regularly paid until his death. 
 To a bill afterwards filed in equity against his executrix, to have 
 the annuity secured out of his assets, a general demurrer was 
 put in; and such demurrer was allowed by the Court, on the 
 ground that a bill does not lie to enforce a voluntary agree- 
 ment {b), and the promise in this case was merely voluntary, 
 not being founded on any good, meritorious, or valuable con- 
 sideration (c). 
 
 6. Here are to be noticed certain debts by judgment, decree, 
 and recognizance ; debt for rent ; and a simple contract debt of 
 a citizen of London. 
 
 When a creditor obtains against his debtor a judgment in any 
 Court of Record in England, this judgment, although of the Pie- 
 poudre Court, or Court of the most narrow jurisdiction, is equal 
 to the judgment of either of the Superior Courts in Westminster- 
 Hall {d). A debt by judgment, not docketed according to the 
 statute 4 and 5 W. & M., c. 20, is equal only to a debt by 
 simple contract (e). A debt recovered by a judgment in a foreign 
 country, as France, or Jamaica, is in England equal only to a 
 debt by simple contract (f). And a debt recovered by a judg- 
 ment in Ireland stands, it is probable, no higher (r/). A creditor 
 
 (a) Lady Coxs case, 3 P. W. 339. 
 See Gilham v. Locke, 9 Ves. 612. 
 
 {h) 1 Atk. 10; 12 Ves. 46, 47; 18 
 Ves, 99 ; Colman v. Sarrel, 1 Ves. jun. 
 50, 3 Bio. C. C. 12, cited 6 Ves. 662. 
 
 (c) Matthews v. L—e, 1 Madd. 558. 
 See also Knye v, Moore, 1 Sim. & St. 64, 
 
 (rf) 2 Vern. 89 ; Cas. T. Talb. 221 ; 
 3 Swanst. 575. 
 
 (e) Hickey v. Hayter, 6 Durn. & E. 
 384 ; Steele v. Rorke, 1 Bos. & P. 307 ; 
 Landon v. Ferguson, 3 Russ. 349. 
 
 (f) Dupleix V. De Roven, 2 Vern. 
 540; Walker v. Witter, Dougl. 1, 5; 
 Atkinson v. Lord Bruyhrooke, 4 Campb. 
 380, 1 Stark. 219. 
 
 (g) Harris v. Saunders, 4 Barn. & C. 
 411,413, 418, 6 Dowl. & Ryl. 471.
 
 CH. XXI.] PAYABLE OUT OF LEGAL ASSETS. 283 
 
 sued in the Lord Mayor's Court for his debt, and obtained judg- 
 ment to have execution of certain money in the hands of the gar- 
 nishee. It was determined that, in the administration of the gar- 
 nishee's assets, the money so recovered was not a judgment debt; 
 and it seems to have been held to be equal to a simple contract 
 debt only (A). 
 
 For the purpose of payment out of personal assets, a debt by 
 final decree (as distinguished from a decree Qjwd Computet, or 
 for an account (/),) in a Court of Equity, Chancery or Exchequer, 
 is in Equity equal to a judgment at law {j). 
 
 A debt by recognizance, not enrolled, has been held to be equal 
 only, and not superior, to a bond debt {k). 
 
 Rent reserved by a lease for years, and due from a testator 
 at the time of his death, is equal to a debt by specialty. And it 
 bears this equal rank, whether the lease is made by deed or 
 by parol, and notwithstanding it is determined before the testa- 
 tor's death (Z). To an action, therefore, brought at law for the 
 rent, the executor cannot plead that a debt by bond is unpaid (m). 
 But if a bond debt is paid before the action for the rent is 
 brought, he may plead this payment [n). And if a debt by bond 
 is due to the executor himself, he may plead his title to retain 
 it [o). Also if the executor has paid the rent before action 
 brought against him on a bond, he may to this action plead the 
 payment of the rent {p). If the rent is reserved half yearly, and, 
 after the death of the testator, rent becomes due for half a year, 
 beginning before and ending since his death, this rent is equal to 
 a debt by bond ; and, on an action brought by a bond creditor, 
 
 (/t) Holt V. Murray, 1 Sim, 485. 
 
 (j) Smith V. Eyles, 2 Atk. 385 ; Perry 
 V. P/ie/ips, 10 Ves. 34. 
 
 {j) Shafto V. Powel, 3 Lev. 356 ; Mor- 
 rice V. Bank of England, Cas. T. Talb. 
 217 ; Bhhop V. Godfrey, Prec. Ch. 179. 
 
 (k) Bothomly v. Lord Fairfax, 1 P. W. 
 334, 2 Vern. 750. See Glynn v. Thorpe, 
 1 Barn. & Aid. 153. 
 
 (I) Newport v. Godfrey, 3 Lev. 267, 2 
 Veatr. 184, 4 Mod. 44 ; Godfrey v. Kew~ 
 port, Comberb. 183 ; Godefrey v. Newton, 
 
 12 Mod. 7 ; Stonehouse v. Ilford, Com. 
 145 ; Brown v. Holyoak, 1 Barnes, 202 ; 
 Showell V. Coledrop, 17 May, 1745, 1 
 Madd. Chan. 2nd ed. 582, n. 
 
 (m) Ibid; 1 Ld. Raym. 516; 1 Salk. 
 326. 
 
 (rt) 1 Ld. Raym. 516 ; 1 Salk. 326. 
 
 (u) Cage, or Gage, v. Acton, 1 Ld. 
 Raym. 515, 1 Salk. 325, 1 Freem. 512, 
 Carth. 511, Cas. T. Holt, 309. 
 
 (p) Phillips V. Lee, 1 Freem. 262 ; 
 Willeit V. Earle, 1 Veni. 490.
 
 28-1 OF THE ORDER IN WHICH DEBTS ARE, &C. [CH. XXI. 
 
 the executor may, under the plea plene administravit, prove 
 payment of such rent {(j). 
 
 By the custom of London, a simple contract debt owing from 
 one citizen to another is equal to a debt by bond. And this 
 custom is valid against a stranger and no citizen, to whom the 
 party indebted by simple contract is indebted by bond (/•). 
 
 ((/) Thompson v. Thompson, 9 Price, I more v. Hearne, Andrews, 340. — Hob. 
 
 464. 86, Hardr. 303, 1 Rol. Abr. 555, M. pi. 
 
 (r) Snelling's case, or Snell'mg v. Nor- 1, 557, N. 
 ton, 5 Co. 82 b., Cro. Eliz. 409 ; Scuda- \
 
 285 
 
 CHAPTER XXII. 
 
 OF THE POWER OF AN EXECUTOR TO EXERCISE A PREFER- 
 ENCE BETWEEN CREDITORS. 
 
 Sect. I. — Of the Poiver of an Executor, where certain Creditors 
 are of equal Decree, and he is not sued hy either, to 
 pay one in Preference to another. 
 II. — Of the Poxoer of an Executor, ivhere Creditors are of 
 equal Degree, and he is sued at Law or in Equity, 
 to pay one in Preference to another. 
 III. — Of the Power of an Executor to confess Judgment to 
 one Creditor, and plead it to Action brought by 
 another Creditor. 
 
 SECTION I. 
 
 OF THE POWER OF AN EXECUTOR, WHERE CERTAIN CREDI- 
 TORS ARE OF EQUAL DEGREE, AND HE IS NOT SUED BY 
 EITHER, TO PAY ONE IN PREFERENCE TO ANOTHER. 
 
 When a testator owes to certain creditors debts of equal 
 degree, his executor, wlio is not by either of them sued at law (a), 
 or in equity {h), has the power to exercise a preference among 
 them, by paying, out of legal (c) assets in his hands, the whole 
 of one or more of the debts, notwithstanding he has notice of the 
 rest, and although this payment will quite exhaust the assets, and 
 leave the remaining equal debts mentioned wholly unsatisfied {d). 
 
 (a) Bro. Abr. tit. Executors, pi. 172 ; 
 1 M. & S. 403, 405, 407. 
 
 (6) Bright V. Woodward, 1 Vern. 369 ; 
 Robinson v. Tonge, 3 P. W. 401 ; Maltbn 
 V. Russell, 2 Sim. & St. 227. 
 
 (c) See Mason v. Williams, 2 Salk. 
 507, 
 
 (d) 10 Mod. 496 ; 3 Barn. & C. 322. 
 Of " Considerations in conscience, touch- 
 ing payment of debts, and the preferring
 
 28G OF THE POWER OF AN EXECUTOR, &C. [CH. XXI f. 
 
 And a demand made by one or more of the creditors for payment 
 does not take from the executor his power to pay any other of 
 them first (e). If, therefore, the equal debts are due on judg- 
 ments, bonds, or simple contracts; such judgments are not neces- 
 sarily payable in the order in which they were signed or entered 
 up against the testator, but the executor may prefer in payment 
 whichever judgment creditor he pleases, and may pay him first, 
 who last obtained judgment {f) ; and the like preference may 
 be shewn among the creditors by bond((y), or by simple con- 
 tract (A) ; presuming in the case of bond creditors, that the money 
 paid is, at the time of such payment, due under the bond ; for an 
 executor is not allowed to prefer before a bond, on which the 
 money is now due, a bond on which the money is payable at a 
 day to come only {i). 
 
 SECTION 11. 
 
 OF THE POWER OF AN EXECUTOR, WHERE CREDITORS ARE OF 
 EQUAL DEGREE, AND HE IS SUED AT LAW OR IN EC)UITY, 
 TO PAY ONE IN PREFERENCE TO ANOTHER. 
 
 When of two creditors of equal degree, namely, by bond, one 
 of them brings an action at law against the executor, here, until 
 the executor has notice of the action, he may in preference volun- 
 tarily pay, out of legal {j) assets, the debt of the other equal 
 
 or respect of persons," see Wentw. Off. 
 Ex. ch, 22. 
 
 (e) Wentw. Off. Ex. ch. 12, 14th ed. 
 p. .282. 
 
 (/) 1 Rol. Abr. 926, R. 3 ; 11 Vin. 
 Abr. 299, 301 ; Wentw. Off. Ex. ch. 12, 
 14th ed. p. 269, where the author of " The 
 Office and Duty of Executors" states — 
 '' Between one judgment and another had 
 against the testator, precedency or pri- 
 ority of time is not material ; but he, 
 which first sueth execution, must be pre- 
 ferred; and before any execution sued, it 
 is at the election of the executor, to pay 
 whom he will first. Yea, if each brino- a 
 scire facias upon his judgment, the exe- 
 
 cutor may yet confess the action of which 
 he will first notwithstanding the scire 
 facias was brought by the one before the 
 other." See Cro. Eliz. 735. 
 
 (g) Bro. Abr. tit. Executors, pi. 172 ; 2 
 P. W. 299 ; Wentw. Off. Ex. ch. 12, 
 Uthed. p. 277. 
 
 {h) 3 Barn. & C. 322, 324. 
 
 (0 Doct. & St. Dial. 2, ch. 10, ed. 
 1709, p. 158 ; Bro. Abr. tit. Executors, 
 pi. 172 ; 1 Rol. Abr. 926, Q. pi. 5 ; 
 Wentw, Off. Ex.ch. 12, 14th ed. p. 277, 
 278. 
 
 (j) See Mason v. Williams, 2 Salk. 
 507.
 
 S. II.] OF THE POWER OF AN EXECUTOR, &.C. '287 
 
 creditor, and in tlie action plead this payment (/i). And if tlie 
 action is brought by one of two creditors by simple contract, the 
 like payment before notice may be made to the other (/). But if, 
 in either of the two cases mentioned, the executor has notice of 
 the action, then after this notice he cannot lawfully prejudice the 
 creditor, by whom he is so sued, by a voluntary payment to the 
 other creditor, by whom he is not sued (m). But if this creditor 
 does not bring- an action against him, the executor may, before 
 judgment in the action brought, pay the debt there put in suit (n). 
 If after the one action brought, the other equal creditor also sues 
 at law the executor, here, after notice of both actions, the execu- 
 tor cannot voluntarily pay either creditor before judgment ob- 
 tained by him (o). But so soon as one has obtained judgment, 
 him the executor may immediately pay ; for he who first obtains 
 judgment is entitled to first payment (/?). 
 
 When there are two equal creditors, as by bond or simple con- 
 tract, and one of them, for payment of his own debt only, sues the 
 executor in a Court of Equity, and the Court does not take on 
 itself the general administration of the assets, then, whether after 
 notice of the bill filed, the executor may pay the debt of the 
 other creditor, by whom he is not at law or in equity sued, is 
 perhaps a point which it may be most safe to consider as doubtful. 
 Some of the authorities lead to the conclusion that he may not ((/), 
 
 (fc) Scarle's case, Mo. 678, cited Carter 
 Rep. 228 ; Corbet's case, 1 Leon. 312, 
 
 2 Leon. 60 ; Anon. M. 4 Eliz. 1 Dyer, 
 32 a., Ca. (2), n. ; Britton v. Bathurst, 
 
 3 Lev. 115, Wentw. Off. Ex. ch. 12, 
 14th ed. p. 282. 
 
 (/) Ibid. 
 
 (m) Scarle's case. Mo. 678.— Doct. & 
 St. Dial. 2, ch. 10, ed. 1709, p. 157 ; 
 Bro. Abr. tit. Executors, pi. 172 ; 1 Rol. 
 Abr. 926, Q. pi. 6, 7 ; 1 M. & S. 403, 405, 
 407 ; 2 Sim. & St. 228. See also 2 Vern. 
 300, and Parker v. Dee, 2 Ch. Gas. 201, 
 and 3 Swanst. 531, n. 
 
 (n) Bro. Abr. tit. Executors, pi. 172 ; 
 3 Barn. & C. 322, 324; 2 P. W. 299 ; 
 
 Wentw. Off. Ex. ch. 12, 14th ed. p. 277, 
 282. 
 
 (o) 1 Rol. Abr. 926, Q. pi. 9 ; Wentw. 
 Off. Ex. ch. 12, 14th ed. p. 282. See 
 Bro. Abr. tit. Executors, pi. 172, and 1 
 Rol. Abr. 926, Q. pi. 8. 
 
 (p) Doct. & St. Dial. 2, ch. 10, ed. 
 1709, p. 157 ; Bro. Abr. tit. Executors, 
 pi. 172; 1 Rol. Abr. 927, T. pi. 1 ; 
 Vaugh. 95 ; 3 Atk. 209 ; 2 Sim. & St. 
 228; Wentw. Off. Ex. ch. 12, 14th ed. 
 p. 282. 
 
 (q) Parker v. Dee, 2 Ch. Cas. 201, 3 
 Swanst. 531, n. ; Bright v. Woodward, 1 
 Vern. 369 ; Robinson v. Tonge, 3 P. W. 
 401. See also 2 Vern. 89,300. These au-
 
 288 OF THE POWER OF AN EXECUTOR, &C. [CH. XXII. 
 
 while others affirm that he may (r) ; and in the latter class must 
 be ranged the late case, Maltby v. Russell (s), which, nevertheless, 
 it is observable, was a creditors' suit, and appears to have been 
 one, wherein the bill was filed for the general administration of 
 the assets. 
 
 SECTION III. 
 
 OF THE POAVER OF AN EXECUTOR TO CONFESS JUDGMENT TO 
 ONE CREDITOR, AND PLEAD IT TO ACTION BROUGHT BY 
 ANOTHER CREDITOR. 
 
 Where there are two creditors of different degree, namely, 
 by bond and by simple contract, and the simple contract creditor 
 brings an action against the executor, here if, before notice of the 
 bond debt, the executor confesses judgment in this action, such 
 judgment may be pleaded in an action brought by the bond cre- 
 ditor against the executor {t). But if, after notice of the bond 
 debt, the executor confesses judgment in the action brought by 
 the creditor by simple contract, this judgment cannot be pleaded 
 in an action brought by the bond creditor against the exe- 
 cutor (?<). 
 
 Where there are two creditors of equal degree, namely, by 
 bond or by simple contract, and each equal creditor brings an 
 action against the executor, the executor may before pleading to 
 the one action confess judgment in the other; and this judgment 
 may be pleaded to the action brought by the other creditor, not- 
 withstanding it was confessed to him who last brought his action, 
 and the executor had, at the time of such confession, notice 
 of the action to which he now pleads it (u). And if in the first 
 
 thorities accord with the decree of the 
 Lord Keeper Wright, in the case of 
 Darston v. Earl of Orford, Prec. Ch. 
 188, 3 P. W. 401, n., a decree which 
 was, hflwever, reversed in the House of 
 Lords. 
 
 (r) Darston v. Earl of Orford, above ; 
 Mason v. Williams, 2 Salk. 507. 
 
 (s) 2 Sim. & St. 227. 
 
 (i) Davies v. Monkhouse, Fitzg. 76 ; 
 Harinan\. Harman,3 Mod. 115 ; Paler- 
 son V. Huddleston, I Barnard. 186 ; Saiv- 
 yer v. Mercer, 1 Durn. & E. 690. See 
 also 10 Mod. 428. 
 
 (u) Sawyer v. Mercer, 1 Durn.& E. 690. 
 
 (v) Scarle's case, Mo. 678. — Doct. & 
 St. Dial. 2, ch. 10, ed. 1709, p. 157, 
 158; 1 Rol. Abr. 926, Q. pi. 10 j Vaugh.
 
 a. III.] OF THE POWER OF AN EXECUTOR, &C. 289 
 
 action brought by one of two creditors of equal degree, as by one 
 of two specialty, or by one of tw^o simple contract creditors, issue 
 is joined, and after such issue the second action is commenced, in 
 this later action the executor may voluntarily suffer or confess 
 judgment, and, by the plea jmis' darrein continuance, plead this 
 judgment in answer to the first action ; and this plea may be 
 made, notwithstanding the executor had, before the commence- 
 ment of the first action, notice of the debt, on which the judgment 
 pleaded was recovered [tv). But where there are several debts 
 by simple contract, here if the executor confesses judgment to 
 one of them, in trust for the satisfaction of this creditor's own debt, 
 and of the debts of other particular creditors by simple contract, 
 this judgment is not allowed to prejudice the remaining simple 
 contract creditors of the testator; for if, after the judgment, one 
 of such remaining creditors brings an action against the executor, 
 he cannot to this action plead the judgment before confessed by 
 him {x). 
 
 95 ; 1 Sid. 21 ; 1 Ves. 212 ; 5 Burn. & E. 
 238, 239; 1 M. & S. 403, 405, 407 ; 3 
 B. & C. 322, 324, 325, 330. See also 
 Waters v. Ogden, Dougl. 435, 4th ed. 452, 
 Goodfellow V. Burchett, 2 Vern. 299, 
 and Smith v. Eyles, 2 Atk. 386. 
 
 (id) Prince v. Nicholson, 5 Taunt. 665, 
 6 Taunt. 45, 1 Marsh. 280 ; Lyttleton, or 
 Littleton, v. Cross, 3 B. & C. 317, 5 
 Dowl. & Ryl. 175. 
 
 (x) Tolputt V, Wells, 1 M. Sc S. 
 395.
 
 290 
 
 CHAPTER XXni. 
 
 OF PRIORITY BETWEEN TWO CREDITORS, BY ONE OR BOTH 
 OF WHOM THE EXECUTOR IS SUED AT LAW OR IN EQUITY. 
 
 If, after the deatli of a testator, a creditor by bond brings an 
 action against the executor, and obtains judgment, he may, by 
 taking out execution, acquire payment before other bond credi- 
 tors. And, in the like compulsory way, a creditor by simple 
 contract may acquire satisfaction, not only before other simple 
 contract creditors, but also before the bond creditors of the 
 testator {a). 
 
 If there are two creditors of different degree, namely, by bond 
 and by simple contract, and the simple contract creditor brings 
 an action against the executor, the executor may plead to this 
 action the debt by bond (h), and although the bond is for pay- 
 ment of money at a day to come (c). But if the simple contract 
 creditor obtains judgment, as he by this means makes himself a 
 creditor by judgment, he is entitled to be paid before the creditor 
 by bond (d). 
 
 And, by greater reason, if there are two creditors of equal 
 degree, namely, by bond, and one of them brings an action 
 against the executor, and obtains judgment, this judgment cre- 
 ditor is entitled to payment before the creditor by bond. And 
 the like priority may be gained by one of two equal creditors by 
 simple contract (e). The judgment may be pleaded to an action 
 brought by the other equal creditor (y). 
 
 (a) Vaugh, 94, 95 ; Doct. & St. Dial. 
 2, ch. 10, ed. 1709, p. 156, 157. 
 (6) 3 Lev. 114 ; Cas. T. Talb. 219. 
 
 (c) Buckland v. Brook, Cro. Eliz. 
 315 ; Lemun v. Fooke, 3 Lev, 57. 
 
 (d) Vaugh. 94, 95; 3 Mod. 115. See 
 
 Comberb. 318, and Britton v. Batthurst, 
 3 Lev, 113. 
 
 (e) Vaugh. 94, 95 ; 1 RoL Abr. 927, 
 T. pi. 1. 
 
 (/) Davies v. Monkhouse, Fitzg. 76.
 
 CH. XXIII.] OF PRIORITY BETWEEN TWO CREDITORS, &C. 291 
 
 If two creditors of equal degree both obtain judgment against 
 the executor, then, between the two judgments, tlie one, which 
 before the other is signed or entered up (7), is entitled to first 
 payment (k). And the same priority seems to take place, if two 
 creditors of different degree, as by bond and simple contract, 
 both obtain judgment (^). 
 
 If the executor is sued in equity, then, between two final 
 decree debts, that, which is due under the decree first pro- 
 nounced (J), is entitled to first payment (k). 
 
 (g) Cas.T. Talb. 223, 224 ; 3 Swanst. 
 582. 
 
 (h) Vaugh. 95 ; 1 Rol. Abr. 927, T. 
 pi. 1 ; 1 Ves. 214 ; 3 Atk. 209 ; Morrice 
 V. Bank of England, Cas. T. Talb. 217, 
 219, 220, 223, 226, 3 Swanst. 585. 
 
 (i) Vaugh. 95 ; Morrice v. Bank of 
 England, Cas. T. Talb, 217. 
 
 (j) Cas. T. Talb. 224 ; 3 Swanst. 
 580, 581. 
 
 (fe) Morrice v. Bank of England, Cas. 
 T. Talb. 217, 3 Swanst. 573, 585, 2 Bro. 
 P. C. ed. Toml. 465 ; Martin v. Martin, 
 1 Ves. 213, 214; Ashley v. Pocock, 3 
 Atk. 208. See Anon. 3 Atk. 602 , and 
 Abbis V. Winter, 3 Swanst. 578, n. 
 
 u 2
 
 U92 
 
 CHAPTER XXIV. 
 
 OF PRIORITY BETWEEN TWO CREDITORS, BY ONE OF WHOM 
 THE EXECUTOR IS SUED AT LAW, AND BY THE OTHER IN 
 EaUITY. 
 
 Sect. I. — Of the Equality of a Judgment at Law, and a Decree in 
 Equity. 
 II. — Of an Injunction by Equity, to restrain a Creditor's 
 Action at Late. 
 III. — Of Cases ivherein a Creditor's Action at Laio is unim- 
 peded and favoured in Equity. 
 
 SECTION I. 
 
 OF THE EQUALITY OF A JUDGMENT AT LAW, AND A DECREE 
 IN EQUITY. 
 
 Although it is certain that a decree of a Court of Equity 
 may cause tlie possession of land to be delivered to a person, 
 to hold until he has thereout levied a certain sum of money, and 
 in this sense the decree may bind the land (o), yet, when a Court of 
 Equity merely decrees a sum of money, as a debt or a legacy (5), 
 to be paid, this decree, although by a sequestration land may be 
 affected or bound by it(c), yet is not, like a judgment at law, 
 an immediate lien on land {d). In other respects, also, a final 
 decree, as distinguished from a decree quod computet, or for an 
 account («), may not be equal to a judgment (f). But, to some 
 
 (a) Lord Carteret v. Paschal, 3 P. W. 
 197, cited 3 Swanst. 575, and Cas. T. 
 Talb. 222. 
 
 (ft) Nanney v. Martin, 1 Ch. Rep. 
 233 ; Harding v. Edge, 1 Vern. 143. 
 
 (c) 3 P. W. 621, 622 ; 2 Freetn. 49, 
 
 (d) Bligh V. Earl of Darnley, 2 P. W. 
 621, 622 ; Morrice v. Banh of England, 
 
 Cas. T. Talb. 222 ; Foly's case, 2 Freem. 
 49; Astley v.Powis, 1 Ves. 496; Mil- 
 dred V. Robinson, 19 Ves. 583. 
 
 (e) Smith V. Eyles, 2 Atk. 385 ; Perry 
 V. Phelips, 10 Ves. 34. 
 
 (/) 3 Ch. Rep. 3; 2 Freem. 153; 
 Cas. T. Talb. 219. 223, 225 ; 3 Swanst. 
 576, 577, 581 ; 2 Atk. 386; 1 Ves. 212.
 
 S. II.] OF AN INJUNCTION BY EQUITY, &C. 293 
 
 intents, it certainly is so {(/). And, in particular, it is in many 
 ways equal to a judgment, when money, which it decrees to be 
 paid, is payable out of personal assets {h). 
 
 When the executor is sued by one creditor at law, and by 
 another in equity, and in the suit in equity the Court does not 
 assume the general administration of the assets, then, between a 
 judgment obtained by the one creditor, and a final decree by the 
 other, that which was first obtained enjoys the right to be first 
 paid (?'). And after priority gained by the decree, the Court of 
 Equity will secure the payment of this debt, by, if necessary, 
 issuing an injunction to stop the proceedings in the action 
 at law {j). 
 
 SECTION 11. 
 
 OF AN INJUNCTION BY EQUITY, TO RESTRAIN A CREDITOR'S 
 ACTION AT LAW. 
 
 When a suit is instituted in equity against an executor, 
 for payment of money owed by his testator, the bill is filed, 
 sometimes by a single creditor for payment of his own debt 
 only (A), sometimes by several creditors, for the like individual 
 
 (g) Nanney v. Martin, 1 Ch. Rep. 
 233, 1 Ch. Cas. 27; Elvard v. Warren, 
 2 Ch. Rep. 192 ; Morrice v. Bank of 
 England, 3 Swanst. 574, 575, 576, Cas. 
 T. Talb. 222, 223 ; Forbes v. Phipps, 1 
 Eden, 502, 507. 
 
 (/i) Shafto V. Powel, 3 Lev. 356; 
 Mason v. Williams, 2 Salk. 507 ; Jones 
 V. Bradshaw, 3 Ch. Rep. 2 ; Hard- 
 ing V. Edge, 1 Vern. 143 ; Searle v. 
 Lane, 2 Vern. 37, 88, 2 Freem. 103 ; 
 Bligh V. Earl of Darnley, 2 P. W. 621 ; 
 Joseph V. Mott, Prec. Ch. 79 ; Bishop v. 
 Godfrey, ib. 179 ; Morrice v. Bank of 
 England, Cas. T. Talb. 217 ; Martin v. 
 Martin, 1 Ves. 214 ; Astley v. Powis, ib. 
 496; Perry v. Phelips, 10 Ves. 37; 
 Mildred v. Robinson, 19 Ves. 588. 
 
 (j) Jones V. Bradshaw, 3 Ch. Rep. 2, 
 2 Freem. 153, Nels. 74, cited Cas. T. 
 Talb. 223, and 3 Swanst. 581 ; Morrice 
 V. Bank of England, Cas. T. Talb. 217, 3 
 Swanst. 573, 2 Bro. P. C. ed. Toml. 465, 
 cited 10 Ves. 37, 38 ; Anon. 2 Freem. 
 16, Simms v. Barry, S. C, Cas. T. Finch, 
 413, Sims V. Urry, S. C, 2 Ch. Cas. 
 225, cited 3 Ves. 580 ; Martin v. Martin, 
 1 Ves. 212, 213. See Peploe v.Swinburn, 
 Bunb. 48. 
 
 (j) Morrice v. Bank of England, Cas. 
 T. Talb. 217, 219, 226, 3 Swanst. 583 ; 
 Martin v. Martin, 1 Ves. 213. See also 
 10 Ves. 40. 
 
 (/c) Anon, cited 1 Ves. 213; Anon. 3 
 Atk. 572. It appears that formerly the 
 bill was brought merely for a discovery of
 
 294 OF AN INJUNCTION BY EJJUITY, [CH. XXIV. 
 
 satisfaction (l), and at other times, and more commonly, by one, 
 or more than one, creditor, for the payment of all the debts of 
 the testator {m). When the bill is filed for payment of all the 
 debts, the Court takes on itself the general administration of the 
 assets, and by a decree quod computet directs the Master to take 
 the accounts between the debtor and all his creditors (n). When 
 the bill is filed by one, or more than one creditor, for individual 
 satisfaction only, the Court may confine the administration of the 
 assets, and, accordingly, the decree to account, to the exclusive 
 object of the suit (o). But the Court has, it would seem, the 
 power, in the instance of this bill also, to assume a general 
 administration of the assets {])). The Court may likewise take 
 into its hands the general administration of the assets, where the 
 bill is filed by the executor, for the direction and indemnity of 
 the Court in payment of the debts (q) ; or, for the same purpose, 
 by trustees of the testator's estate (r) ; or, where it is filed by 
 residuary or other legatees in his will {s). 
 
 So soon as the Court has, by a decree, assumed the general 
 administration of the assets, it will, on motion only (^), and without, 
 
 assets, without praying an account ; and 
 that to prevent multiplicity of suits, an 
 account may now at the same time be 
 prayed, and the Court will accordingly 
 direct an account to be taken. (Amb. 55.) 
 And although on a bill for a discovery of 
 assets, the creditor has a double remedy, 
 namely, at law and in equity, yet equity 
 saves him this expense, and does not 
 oblige him to sue doubly, in one Court 
 for an account of assets, and in another 
 satisfaction, but itself decrees him satisfac- 
 tion. 2 Atk. 363 ; 2 Ves. 106 ; Amb. 331. 
 
 (/) Morrice v. Bank of England, Cas. 
 T. Talb. 217. 
 
 (m) Douglas v. Clay, 1 Dick. 393 ; 
 Terrewest v. Featherhy, 2 Mer. 480 ; Dyer 
 V. Kearsley, ibid. 482, n. See also 8 Ves. 
 620, 522. On cases where two creditors, 
 or other persons, separately file a bill in 
 equity, see Neve v. Weston, 3 Atk. 557 ; 
 Law v. Rigby, 4 Bro. C. C. 60 ; Jackson 
 
 V. Leaf, 1 Jac. & W. 231, 232 ; Clarke 
 V. Earl of Ormonde, Jacob, 108, 546. 
 And on a bill by some creditors, or lega- 
 tees, filed in the Exchequer, and by others 
 in Chancery, see Coysgarne v. Jones, Amb. 
 613, and Jackson v. Leaf, 1 Jac. & W. 
 229. 
 
 (n) Douglas v. Clay, 1 Dick. 393. 
 
 (o) Morrice v. Bank of England, Cas. 
 T. Talb. 217. 
 
 (p) Shepherd, or Sheppard, v. Kent, 
 Prec. Ch. 190, 2 Vern. 435; Anon. 3 
 Atk. 572. See also 1 Ves. 213, 214. 
 
 (q) Morrice v. Bank of England, Cas. 
 T. Talb. 217, 220, 226. 
 
 (r) Brooks v. Reynolds, 1 Bro. C. C. 
 183, cited 10 Ves. 39. 
 
 (s) 10 Ves. 39, 40 ; 3 Swanst. 544 ; 
 Jackson v. Leaf, 1 Jac. & W. 229; 
 Clarke v. Earl of Ormonde, Jacob, 108, 
 121, 123, 125. 
 
 (f) Paxton V. Douglas, 8 Ves. 520;
 
 S. 11.] 
 
 TO RESTRAIN A CREDITORS ACTION AT LAW, 
 
 '295 
 
 as formerly, a second bill filed for the purpose (m), interpose by 
 injunction, and stop in its progress to judgment an action at law 
 brought by any creditor for payment of his debt (v) ; and although 
 the name of this creditor was, without his consent, inserted in the 
 bill filed on behalf of all the creditors of the testator (to). And 
 the like injunction may be obtained^ not only where the bill is 
 filed by creditors, but also where it is filed by an executor to 
 have the directions of the Court for the execution of the will, 
 and to be indemnified (x) ; or, for the same purposes, by trustees 
 of the testator's estate {?/) ; or where it is filed by a residuary or 
 other legatee (r). And the injunction may be obtained on the 
 motion of an executor, where the bill is filed by creditors (a), or 
 by trustees {b) ; or on the motion of a creditor, plaintifi", the bill 
 being filed by creditors against the executor (c) ; or on the 
 motion of a legatee, by whom the bill is filed against the exe- 
 cutor (c?). And an injunction may be obtained to shelter bo7ia 
 tesfatoris, or assets, against execution under a judgment (e); as 
 where after the decree to account a creditor proceeds to trial at 
 law, and there obtains a verdict {f); or where after such decree 
 
 Gilpin V. Lady Southampton, 18 Ves. 
 469. 
 
 (u) Douglas V. Clay, 1 Dick. 393 ; 
 Hardcastle v. Chettle, 4 Bro. C. C. 163. 
 See also 1 Jac. & W. 232, and Jacob, 
 124. 
 
 (t)) Brooks V, Reynolds, 1 Bro. C. C. 
 183 ; Kenyon v. Wortkington, 2 Dick. 
 668; Goate v. Fryer, 2 Cox, 201, 3 
 Bro. C. C. 23 ; Hardcastle v. Chettle, 4 
 Bro. C. C. 164 ; Paxton v. Douglas, 8 
 Ves. 520 ; Gilpin v. Lady Southampton, 
 18 Ves. 469 ; Dyer v. Kearsley, 2 Mer. 
 482, n. ; Clarke v. Earl of Ormonde, 
 Jacob, 108 ; Lord v. Wormleighton, ib. 
 148 ; Fielden v. Fielden, 1 Sim. & St. 
 255. See also Drewry v. Thacker, 3 
 Swanst. 529. On an injunction to restrain 
 proceedings against real assets descended 
 to the testator's beir at law, see Martin v. 
 Martin, 1 Ves. 211, and Farnham v. 
 Burroughs, 1 Dick. 63. 
 
 (w) Douglas V. Clay, 1 Dick. 393, 
 cited 10 Ves. 40. 
 
 (x) Riish V. Higgs, 4 Ves. 638. 
 
 (i/) Brooks V. Reynolds, 1 Bro. C. C. 
 183, 2 Dick. 603, cited 10 Ves. 39. 
 
 (s) Jackson v. Leaf, 1 Jac. & W. 
 231 ; Clarke v. Earl of Ormonde, Jacob, 
 108. See also 10 Ves. 39. 
 
 (a) Lord v. Wormleighton, Jacob, 148. 
 On the duty of the executor to apply for 
 the injunction, and on his responsibility 
 if, after the decree to account, he permits 
 the creditor to obtain judgment, and to 
 take the property of the testator in execu- 
 tion, see Clarke v. Earl of Ormonde, 
 Jacob, 122. 
 
 (fc) Brooks V. Reynolds, 1 Bro. C. C. 
 183. See also 1 Jac. & W. 231, 232. 
 
 (c) Dyer v. Kearsley, 2 Rler. 482, n. ; 
 Cox V. King, ibid. 483, n. 
 
 (d) Clarke v. Earl of Ormonde, Jacob, 
 108, 122, 125. See also 3 Swanst. 544. 
 
 (e) Brook v. Ski/mer, 2 Mer. 481, n. ; 
 Clarke v. Earl of Ormonde, Jjrcob, 124. 
 
 (f} Lord V. Wormleighto7i, Jacob, 
 148.
 
 296 OF AN INJUNCTION BY EQUITY, [CH. XXlV. 
 
 the executor suffers judgment by default (//) ; although so far as 
 a judgment may aftect the bona propria of the executor, the 
 executor's own property, the Court will not interfere to protect 
 him (/<). And if a creditor has got a judgment before the de- 
 cree, then, after the decree, although such creditor may come in 
 and prove as a judgment creditor, yet the Court will on applica- 
 tion grant an injunction to prevent him from taking out execution 
 against the assets (?"). 
 
 In a late case an injunction was granted to restrain an action 
 brought by a lessor against executors, as executors, for breaches 
 of the covenant to repair contained in his lease ; and the Court 
 referred it to the Master, to ascertain whether any breach of 
 covenant had been committed, and the amount of the damages (7' ). 
 
 An injunction to restrain a creditor from proceeding at law 
 against assets was at first granted, where one creditor, by whom a 
 bill was filed for payment of his own debt only, had obtained a 
 final decree ; and another creditor sued at law for his debt ; and 
 then the injunction issued, to protect the creditor by final decree 
 against the eflfect of the action at law. And it was granted on 
 these principles, — That in a Court of Equity a final decree is, for 
 the purpose of payment outof personal assets, equal to a judgment 
 at law ; and that as the decree cannot, like a judgment, be pleaded 
 by the executor in an action at law against him, the Court of 
 Equity is called on to support its own jurisdiction, by supplying 
 a protection equivalent to the plea of a judgment [k). The like 
 injunction came afterwards to be used, and is now constantly 
 issued, in cases where the Court of Equity takes on itself the 
 general administration of the assets of a testator or intestate. 
 And here it is issued, before the final decree, and at any time 
 after the decree to account. The principle of the injunction in 
 this case is, that as the Court exercises a jurisdiction to decree a 
 
 {g) Dyer v. Kearsley, 2 Mer. 482, n. Smalley, 1 Vern. 3rd ed. 457, and n. (1). 
 
 (h) Brook v. Skinner, 2 Mer. 481, n. ; On restraining execution under a judg 
 
 Terrewest v. Featherby, ib. 480 ; Clarke v 
 Earl of Ormonde, Jacob, 124. See also 
 on a judgment de bonis propriis of a per- 
 sonal representative, Drewry v. Thucker, 
 3 Swanst. 529. 
 
 (i) Jacob Rep. 124. See Surrey v. 
 
 ment de bonis -propriis obtained before the 
 
 decree, see Drewry v. Thacker, 3 Swanst. 
 
 529. 
 
 (_/) Sutton V. Mashiter, 2 Sim. 513 
 (A) Martin v. Martin, 1 Ves. 212, 213 ; 
 
 Perry v. Fhelips, 10 Ves. 40.
 
 Sk II.] TO IIESTIIAIN A CREDlTOIl's ACTION AT LAW. 297 
 
 general administration of the assets, it is, if it desires to sustain 
 this jurisdiction, oblij^ed to support its own decree, and to save 
 tlie executor from the difficulty into M'hich he would be thrown, 
 if, when the decree calls on him to administer in a Court of Equity, 
 a creditor could call on him to administer out of it, by suing him 
 at law, where the decree cannot be pleaded (/). The same diffi- 
 culty to the executor, and necessity of supporting the juris- 
 diction of equity, are the causes that, in equity, the decree to 
 account is in nature of a judgment for all the creditors ; in the 
 sense, that afterwards all the creditors are so far equal, that no 
 one can now obtain priority by procuring judgment at \aw{7n). 
 
 This injunction proved, however, at one time, not only to be 
 the cause of considerable hardship to the particular creditor, 
 against whom it issued, but also to be in many cases an inlet to 
 much fraud and injury towards the whole body of creditors. As 
 it clearly may be the interest of the rest of the creditors to stop 
 the proceedings at law, and by this means to frustrate the medi- 
 tated priority over themselves, it can seldom be difficult to insti- 
 tute in equity a suit against the executor ; who is indeed allowed 
 to file, in the name of a creditor, a bill against himself (n). An 
 executor, therefore, whose object in the bill or injunction was 
 not to prevent the preference of one creditor, or to promote the 
 just payment of all, but from undue motives to keep the assets in 
 his own hands, out of which an execution at law might speedily 
 take them, a design furthered besides, in some instances, by a 
 friendly creditor, might formerly with great ease attain his object, 
 by means of a suit in equity, hastened with the ready aid of the 
 bulk of the creditors on to a decree and injunction (o). The 
 mischief which resulted from this state of the law led to a practice 
 introduced by either Lord Rosslyn (p) or Lord Eldon {q), and 
 which is, to take the opportunity afforded by the application for an 
 
 (/) 2 Dick. 669 ; 8 Ves. 520, 521 ; 
 10 Ves. 40; 18 Ves. 470; 1 Sch. & 
 Lef. 299. 
 
 (m) 2 Cox, 202 ; 8 Ves. 520, 521 ; 
 10 Ves. 40 ; 18 Ves. 470 ; Jacob, 123, 
 124; 1 Sch. & Lef. 299. 
 
 (n) 18 Ves. 469. 
 
 (o) 8 Ves. 520, 522; 18 Ves. 470 j 
 3 Swanst. 544 ; Jacob, 125. 
 (p) 8 Ves. 521. 
 (q) 18 Ves. 470; Jacob, 125.
 
 *298 OF CASES WHEREIN A CREDITOR'S ACTION AT LAW [CH. XXIV. 
 
 injunction, to endeavour to secure the assets, which the executor 
 has in his hands. The executor's answer to the bill ought to set 
 forth what the assets are (r) ; but where it does not do this, the 
 Court, when the injunction is asked for, endeavours by other 
 means to know the state of them (s). The means commonly- 
 used is, to require the executor to make an affidavit as to what 
 assets he has in his hands (t). It seems, however, not to be an 
 absolute rule to refuse an injunction, unless there is such an affi- 
 davit (?<). But when the assets are by some mode ascertained, 
 as by either the answer or affidavit, the Court when it grants the 
 injunction exercises a discretion on the disposal of them (u) ; 
 sometimes, and usually it is believed, compelling the executor 
 to bring them into Court, and making such order as the state of 
 the assets requires (tv). 
 
 SECTION III. 
 
 OF CASES WHEREIN A CREDITOR'S ACTION AT LAW IS UNIMPEDED 
 AND FAVOURED IN EQUITY. 
 
 The right, which a creditor has to sue at law an executor, is in 
 many instances unimpeded and favoured by a Court of Equity ; 
 notwithstanding it will, in certain cases, issue an injunction to 
 stop the proceedings at law. 
 
 Where creditors are of equal degree, as two bond creditors, 
 and one of them sues at law, and the other, for the payment of 
 his own debt only, files a bill in equity, and in the latter suit the 
 Court does not take on itself the general administration of the 
 assets ; here, notwithstanding the bill brought, the executor may 
 
 (r) 8 Ves. 522 ; 18 Ves. 470 ; Jacob, 
 125. On the responsibility of a solicitor, 
 concerned in an amicable suit of this 
 nature, if the assets are not set forth in 
 the answer, and they are afterwards 
 wasted by the executor, see 8 Ves. 522, 
 and 3 Swanst. 546. 
 
 (s) 3 Swanst. 546. 
 
 (() Paxton V. Douglas, 8 Ves. 520 ; 
 
 Gilpin V. Lady Southampton, 18 Ves. 470 ; 
 Clarke v. Earl of Ormonde, Jacob, 108, 
 125. 
 
 (w) 3 Swanst. 546. 
 
 («) Jacob Rep. 125. 
 
 (w) Paxton V. Douglas, 8 Ves. 520 ; 
 Gilpin V. Lady Southampton, 18 Ves. 
 470 ; Clarke v. Earl of Ormonde, Jacob, 
 125,
 
 S. III.] IS UNIMPEDED AND FAVOURED IN EQUITY. 299 
 
 afterwards confess judgment at law ; and payment by him of this 
 judgment debt will be allowed in equity (.r). 
 
 An important difference is taken between a Jinal decree, or 
 decree which orders a debt to be paid, and a decree quod computet, 
 or one by which reference is made to the Master to take the 
 account between the plaintiff and his debtor. Between a judg- 
 ment and final decree, the one which is first in time enjoys, it has 
 been seen, the right of first payment (?/). But when one credi- 
 tor sues at law, and another for payment of his own debt only 
 files a bill in equity, and in the latter suit the Court does not 
 assume the general administration of the assets, and a decree 
 quod computet, or to take an account between the ])laintiff and 
 his debtor, is obtained ; and after this decree, and before or after 
 the Master's report, or at any time before the final decree, the 
 suitor at law obtains there judgment; this judgment debt is 
 entitled to priority of payment before the debt that may be found 
 to be due on the account decreed {z) : and, accordingly, a Court of 
 Equity will decree it to be first paid (a), and the executor is jus- 
 tified in paying it, notwithstanding the previous decree to ac- 
 count (6). And the judgment bears this priority, at least in a 
 case where the two creditors are of equal degree, although such 
 judgment is confessed by the executor after the decree to ac- 
 count(c). 
 
 When a bill is filed on behalf of all the creditors of the testa- 
 tor, a suit in which the Court does assume the general adminis- 
 tration of the assets, here, until the decree quod computet, or other 
 decree which makes that assumption, is pronounced, a creditor, 
 at least one who is not expressly a consenting party to the 
 suit {d), has the power by gaining judgment at law to acquire 
 priority, so far as to come in under the decree, and prove as a 
 
 (x) Goodfellow v. Burchett, 2 Vera. 
 298, 299 ; Smith v. Eyles, 2 Atk. 385. 
 
 (2/) Morrice v. Bank of England, Cas. 
 T. Talb. 217. 
 
 (s) Mason v, Williams, 2 Salk. 507 ; 
 Martin v. Martin, 1 Ves. 213. See also 
 Anon. 2 Freem. 16 ; and Joseph v. Mott, 
 Tree. Ch. 79, cited 3 Swanst. 577. 
 
 (a) Smith v. Eyles, 2 Atk. 385 ; Fer- 
 rers v. Shirley, cited 10 Ves. 39. 
 
 (ft) Perry v. Phelips, 10 Ves. 34. 
 
 (p) Smith V. Eyles, 2 Atk. 385 ; Good- 
 fellow V. Burchett, 2 Vera. 299. 
 
 (d) See Shepherd, or Sheppard, v. Kent, 
 Free. Ch. 190, 193, 2 Vera. 435.
 
 800 CASES WHEREIN A CREDITOR'S ACTION AT LAW, &C. [CH.XXIV. 
 
 judgment creditor [e) ; but not, it seems, to the extent to prevent 
 after the decree an injunction against execution under the judg- 
 ment (/). 
 
 Where in an action at law brought by a creditor, the execu- 
 tor pleaded the general issue, non assumpsit, on which issue a 
 verdict was found for the plaintiff; and on a bill filed by the 
 executor for the direction and indemnity of the Court in the 
 execution of the will, the executor procured the common injunc- 
 tion ; and on the answer coming in an order for dissolving the 
 injunction Nisi was obtained; the Court, before it had Eissumed 
 the general administration of the assets by a decree to account, and 
 under which decree the creditor, and plaintiff at law, could come in, 
 refused to continue the injunction. And the consequence seems 
 to have been, that, at least until that decree, the creditor was 
 allowed to take the whole benefit which the law gave him under 
 the judgment; which, by reason of the plea of the general issue 
 and verdict for the plaintiff, was evidence of assets in the execu- 
 tor's hands {(/). 
 
 A creditor, who at law sues the executor, is entitled to be 
 paid out of the assets his costs of the action up to the time when 
 he had notice of the decree, by which the general administration 
 of the assets is assumed (A). 
 
 In many cases, it may here be repeated, the bona propria of 
 the executor are not protected in equity against execution under 
 a judgment at law (i). 
 
 (e) Douglas V. Clay, cited 10 Ves. 40, 
 and reported 1 Dick. 393 ; Clarke v. Earl 
 of Ormonde, Jacob, 124 ; Rodenhurst v. 
 Tudman, 1 Turn. & R. 305 ; Largaii v. 
 Bowen, 1 Sch. & Lef. 299. 
 
 (/) Jacob Rep. 124. 
 
 {g) Rush V. Higgs, 4 Ves. 638, cited 
 1 Sch. & Lef. 299. 
 
 (h) Goute V. Fryer, 2 Cox, 201, 3 
 Bro. C. C. 23; Paxton v. Douglas, 8 
 
 Ves. 520 ; Dyer v. Kearsley, 2 Mer. 
 482, n. ; Drewry v. Thacker, 3 Swanst. 
 538, 541 ; Jackson v. Leaf, 1 Jac. & W, 
 231 ; Clarke v. Earl of Ormonde, Jacob, 
 124, 125; Lord v. Wormleighton, ib. 
 148 ; and see Curre v. Bowyer, 3 Madd. 
 456. 
 
 (i) Terrewest v. Featherby, 2 Mer. 480 ; 
 Brook V. Skinner, ib. 481, n. ; Clarke 
 V. Earl of Ormonde, Jacob, 124.
 
 301 
 
 CHAPTER XXV. 
 
 OF THE COSTS OF AN ACTION BROUGHT BY A CREDITOR 
 AGAINST THE EXECUTOR; AND OF THE EXECUTOR'S 
 LIABILITY, IN CERTAIN CASES, TO PAY OUT OF HIS OWN 
 PROPERTY, SOMETIMES THE COSTS, AND SOMETIMES 
 BOTH DEBT AND COSTS. 
 
 When, to recover a debt due by a testator, an action is brouglit 
 against Iiis executor, the executor is often not, either personally 
 or out of present assets, liable to pay costs (a) ; although it 
 seems the creditor may sometimes be entitled to costs out of 
 assets qiiando acciderint {h). 
 
 In some cases the creditor is liable to pay to the executor his 
 costs of the action. And, on the contrary, the executor may, by 
 means of his pleading, become in other instances subject to pay 
 out of his own property, in an action of debt, sometimes the 
 damages and costs of the action, and in other cases, not only the 
 damages and costs, but the debt also; and in an action of as- 
 sumpsit sometimes the costs, and in other cases both damages and 
 costs (c). In assumpsit the damages constitute the debt reco- 
 vered [d) ; and in debt, although in reality the damages recovered 
 for the detention of the debt, and the costs, seem to be distinct 
 sums (e), yet both costs and damages may, it should seem, be 
 
 («) Baft V. Deschamps, 2 Tidd, 9th 
 ed. 980. 
 
 (b) De Tastet v. Andrade, 1 Chit. Rep. 
 629, n. ; 2 Tidd, 9th ed. 980 ; 1 Saund. 
 5th ed. 336 b. 
 
 (c) On an executor's relief in equity, 
 in cases where he has mispleaded at law, 
 see Anon. I Vern. 119 ; Robinson v. Bell, 
 2 Vern. 146 ; and Stephenson v. Wilson, 
 
 ib. 325. 
 
 (d) 1 Ld. Raym. 254 ; 2 Salk. 623 j- 
 12 Mod. 153 ; 3 Bl. Com. 155, 156- 
 
 (e) Mary Shipley's case, 8 Co. 134, 1 
 Rol. Abr. 928, Y. 1 ; Street v. Wise, 1 
 Rol. Abr. 930; Mounson v. Bourne, ib. 
 930, 933 ; Howard v. Jemmet, 1 W. Bl, 
 400 ; Burroughs v. Stevens, 5 Taunt. 
 554.— 12 Mod. 153 ; 2 Salk. 623.
 
 302 OF THE COSTS OF AN ACTION, AND OF [CH. XXV. 
 
 adjudged to be levied under the common name of damages {f), a 
 word that in other cases also seems to include costs {g). 
 
 If to an action of assumpsit the executor pleads j)lene adminis- 
 travit, and also pleads non assumpsit, or non assumpsit and the Sta- 
 tute of Limitations, or non assumpsit and ne ungues executor; and. 
 the plaintiff omits to pray judgment of assets quando acciderinf, 
 and joins issue on each of those pleas; and on the plea of non 
 assumpsit, or each of the pleas 7ion assumjmt and the Statute, or 
 no7i assumpsit and ne ungues executor, a verdict is found for the 
 plaintiff, but on the plea plene administravit for the defendant, the 
 plaintiff must pay the defendant, the executor, his general costs of 
 the action [h). 
 
 On the other hand, if to an action of assumpsit the defendant 
 pleads plene administravit and also non assumpsit ; and on the 
 plea plene administravit the plaintiff takes judgment of assets 
 quando acciderint (i) ; and on the plea non assumpsit a verdict is 
 found for the plaintiff ; here, as by the plea of 7ion assumpsit the 
 plaintiff was by the executor compelled to go down to trial, in 
 order to avail himself of the judgment of assets quando acciderint, 
 the plaintiff is entitled to judgment to levy the damages and 
 costs de bonis testatoris, et si non to levy the costs de bonis propriis 
 of the executor {j). And if in assumpsit the executor pleads 
 plene administravit, and plene administravit idtra what is due on 
 bond, and farther pleads non assumpsit ; and on the plea plene ad- 
 ministravit idtra the plaintiff takes judgment of assets quando 
 acciderint ; and on the plea plene administravit a verdict is found 
 for the defendant, but on the plea non assumpsit for the plaintiff; 
 here, for the like reason, the creditor is entitled to a similar 
 judgment {k). 
 
 Many other cases occur wherein, on an action against an exe- 
 
 (y) Erving v. Peters, 3 Durn. & E. 
 685, 688 ; Burroughs v. Steveiis, 5 Taunt. 
 554. 
 
 (g) PUf old's case, 10 Co. 115 b.; 
 Lawson V. Story, 1 Ld. Raym. 19 ; Phil- 
 lips V. Bacon, 9 East, 304. 
 
 CO ^ogg V. Graham, 4 Taunt. 135; 
 
 Ragg V. Weils, 8 Taunt. 129 ; Edwards 
 V. Bethel, 1 Barn. & Aid. 254. 
 
 (J) See Noell v. Nelson, 2 Saund. 214, 
 226. 
 
 (j) Marshall v. Willder, or Wilder, 9 
 B. & C. 655, 4 Mann. & Ryl. 607. 
 
 (k) Hindsley v. Russell, 12 East, 232.
 
 CH.XXV.] AN executor's LIABILITY TO PAY DEBT AND COSTS. 30JJ 
 
 cutor, the judgment to levy the debt is confined to the bona tcsta- 
 toris only (/) ; although, in these and other instances, the executor 
 may be liable to pay the creditor's costs of the action (m). 
 
 If in assumjisit the executor pleads plcne administravlt, or non 
 assumpsit and plc7ie administravit ; and on the single plea, or in 
 the other case on both pleas, a verdict is found for the plaintiff; 
 the judgment is not to levy the damages of the executor's goods 
 and chattels, but is to levy the damages and costs de bonis tes- 
 tatoris, et si non to levy the costs de bonis propriis of the execu- 
 tor (»). And if in an action of debt, as on a bond, the executor 
 pleads plane administravit, or non est factum and plene adminis- 
 travit ; and on the single plea, or in the latter case on both pleas, 
 a verdict is found for the plaintiff; the judgment is to levy the 
 debt, and damages, and costs de bonis testatoris, et si non to levy 
 the damages and costs de bonis propriis of the executor (o). 
 
 When, to recover a debt due by a testator, an action is 
 brought against the executor, and he puts in a single plea, 
 which, in the consideration of the Courts of Law, in other words, 
 which legally is within the executor's own knowledge false, 
 the judgment against him is, to levy the debt and costs de bonis 
 testatoris, et si non to levy both debt and costs de bonis pro- 
 priis [p). A false plea of ne iinques executor is a plea of the cha- 
 racter mentioned, and therefore draws to it such a judgment 
 de bonis propriis. And a false and single plea of a release ac- 
 tually executed to the executor seems to be of the like kind, and 
 to be followed by the same effect (q). And, in an action of debt 
 
 (0 1 Kol. Abr. 928, Y. 3, 5 ; 929, B. 
 1 ; 931, D. 1 ; 1 Brownl. & G. 50. 
 
 (to) Twisleton v. Thelwel, Hardr. 165. 
 See also 4 Dum. & E. 648, and 1 
 Brownl. & G. 50. 
 
 (h) Harrison v. Beecles, cited 3 Durn. 
 & E. 688 ; Lord v. Wormleighton, Jacob, 
 148 ; Fielden v. Fielden, 1 Sim. & St. 
 255 ; Marshall v. Willder, or Wilder, 9 
 B. & C. 658, 4 Mann. & Ryl. 609, 
 611. 
 
 (o) Mary Shipley's case, 8 Co. 134 ; 
 Howard \.Jemmet, 1 W. Bl. 400, 3 Burr. 
 
 1368 ; Erving v. Peters, 3 Durn. & E. 
 685, 688 ; Fielden v. Fielden, 1 Sim. & 
 St. 255. See Terrewest v. Featherby, 2 
 Mer. 480, cited Jacob Rep. 150. 
 
 (p) 1 Rol. Abr. 930, 933; Palm. 
 279, 280 ; 9 B. & C. 658 ; 4 Mann. 
 & Ryl. 609, 611 ; Burroughs v. Stevens, 
 or Stephens, 5 Taunt. 554, 1 Marsh. 211. 
 
 (g) Bull V. Wheeler, Cro. Jac. 647 ; 
 Bridgman v. Lightfoot, ib. 671 ; Anon. 
 
 Noy, 69 1 Anders. 150; Dalis. 71; 
 
 Jenk. Cent. C. 8, Ca. 23. See also 1 
 Rol. Abr. 930, 933; 1 Atk. 293; 5
 
 304 OF THE COSTS OF AN ACTION, AND OF [CII. XXV. 
 
 on a bond, a false and single plea of a judgment recovered against 
 the executor on the same bond, shares perhaps the same nature 
 and consequence (r). But a pica may be false in the popular 
 meaning of the word, and in this sense be within the executor's 
 own knowledge false, and yet not be legally false. A plea of 
 plene administravit , or non assumpsit, or no7i est factum, may be of 
 this nature. Although, popularly speaking, it may be false, and 
 known to be so by the executor, yet it is not legally false [s). 
 " What is a false plea within the executor's own knowledge, which 
 renders the executor liable de bonis propriis, is," observes Gibbs, 
 Ch. J., " a matter of very considerable difficulty. The pleas of ne 
 unques executor, and of release actually executed to the executor, 
 are such : but many pleas, as plene administravit, to the view of 
 an illiterate person appear such, which are not so; for many 
 cases hold, that yj/ewe administravit is not a plea of that cha- 
 racter" {t). 
 
 But, farther, an executor may become eventually liable to 
 satisfy a debt and costs out of his own property, although he has 
 not pleaded a plea legally false. This may happen where he has 
 wasted the property of the testator [u). It may happen where 
 the executor has confessed judgment, or suffered judgment by 
 default ; or where he has pleaded one or more than one plea, not 
 legally false, but has not by a plea j)lene administravit, or other 
 plea, denied assets ; and a verdict on the single plea, or, according 
 to the case, on each of the several pleas, is given against him {y). 
 The omission to plead a deficiency of assets is construed to be a 
 confession of assets {iv). And the judgment against the executor 
 is evidence of a devastavit [x). And it is a rule, that if a person, 
 when called on to plead to an action brought against him, is 
 
 Taunt. 556, 557 ; 9 B. & C. 658 ; 
 and Edwards v. Beihei, 1 Barn. 6c Aid. 
 254. 
 
 (r) Burroughs v. Stevens, 5 Taunt. 
 554, 556. See, however, Borret v. Boyes, 
 ] Rol. Abr. 931, D. 6. 
 
 (s) 1 Rol. Abr. 931, D. 5 ; 3 Durn. 
 & E. 688 ; 5 Taunt. 557 ; Jacob, 150 ; 
 1 Sim. & St. 255. 
 
 (0 5 Taunt, 556, 557. 
 
 (m) 1 Rol. Abr. 932, F. 
 
 (d) Ramsden v. Jackson, 1 Atk. 292 ; 
 Erving V. Peters, 3 Durn. & E. 685. 
 
 (w) 1 Salk. 310 ; 1 Ld. Raym. 590 ; 
 1 Atk. 294 ; 3 Durn. & E. 690, 691. 
 See also Rush v. Higgs, 4 Ves. 638. 
 
 {x) Erving v. Peters, 3 Durn. & E. 
 685.
 
 CH.XXV.] AN executor's LIABU4TY TO PAY DECT AND COSTS. 305 
 
 possessed of the knowledge of matter which he might then plead, 
 and omits to do so, and judgment is obtained against him, he 
 cannot afterwards plead that matter on a scire Jieri {i/) inquiry, 
 or action of debt on the judgment (z). And, therefore, if an 
 action of debt suggesting a devastfivit is brought on the judgment 
 obtained against the executor, he cannot now plead a deficiency 
 of assets,^or plcne administravit (a), or a judgment against his 
 testator (i), or against himself (c), or a debt by bond recovered 
 by judgment against him since the judgment in the former 
 action, and by which a simple contract debt was recovered {d). 
 And if the original action against the executor, and on the judg- 
 ment in which the present action suggesting a devastavit is brought, 
 was an actionW debt, and the executor did not in such original 
 action, by the plea plene administravit, or other plea, deny assets, 
 but put in several pleas not legally false, and a verdict on each 
 of them was found for the plaintiff, the judgment obtained in 
 that action is, it appears, to levy the debt and damages and costs 
 de bonis testatoris, et si non to levy the damages and costs de bonis 
 propriis of the executor [e). And in the action of debt suggesting 
 a devastavithvow^it on this judgment, the judgment seems to be, 
 to levy the debt and damages and costs de bonis testatoris, et si 
 non to levy the debt and damages and costs de bonis propriis of 
 the executor {f). 
 
 (i/) See 1 Saund. Rep. ed. Wms. 219, 
 n. (8), 5th ed. 219 a. ; and 2 T idd's Pr. 
 9th ed. 1025, 1113, 1114. 
 
 (z) 1 Ld. Rayra. 590 ; 2 Stra. 732 ; 
 1 Atk. 293 ; Cowp. 728 ; 3 Durn. & E. 
 689. 
 
 (a) Ramsden v. Jackson, 1 Atk. 292 ; 
 Skelton v. Hawling, 1 Wils. 258 ; Erving 
 V. Peters, 3 Durn. & E. 685. 
 
 (b) Earle v. Hinton, 2 Stra. 732. 
 
 (c) Rock V. Layton, or Leighton, 1 Ld. 
 Raym. 589, 1 Salk. 310, Com. 87 j and 
 
 stated from a Manuscript of Lord C. J. 
 Holt, 3 Durn. & E. 690. 
 
 (rf) Britton v. Batthurst, 3 Lev. 113. 
 
 (e) Erving v. Peters, 3 Durn. & E. 
 685, 638. 
 
 (/) Ibid. See also 1 Brownl. & G, 
 50, and 4 Durn. & E. 637 ; likewise 
 PetliJ'er's case, 5 Co. 32 ; IMounson v. 
 Bourn, Cro. Car. 518, 527 ; Merchant v. 
 Driver, 1 Saund. 307, 1 Ventr. 20 ; and 
 Blackmor v. Mercer, 2 Saund. 5th ed. 
 402 a., 1 Ventr. 221.
 
 :30() 
 
 CHAPTER XXVI. 
 
 OF A LESSOR'S ACTION FOR RENT, AND ON COVENANTS, 
 UNDER A LEASE FOR YEARS. 
 
 Sect. 1. — Of a Lessor's Action for Rent, due after the Lessee 
 has assigned the Term. 
 II. — Of a. Lessor's Action for Rent, due before the Lessee's 
 Executor lias assigned the Term. 
 III. — Of a Lessor's Action on Coveriants, broken before the 
 
 Lessee's Executor has assigned the Term. 
 IV. — Of a Lessor's Action for Rent, due after the Lessee's 
 Executor has assigned the Term. 
 V. — Of a Lessor's Action on Covenants, broken after the 
 Lessee, or his Executor, has assigned the Term. 
 
 SECTION I. 
 
 OF A lessor's action FOR RENT, DUE AFTER THE LESSEE 
 HAS ASSIGNED THE TERM. 
 
 Between a lessor and his lessee for years, there are a privity 
 of contract and a privity of estate (a). And, as to an action of 
 debt for the rent reserved in the lease, the privity of contract is 
 personal, and " holds only between the lessor himself and the 
 lessee himself" (Z»). If a lessee for years assigns the term, then, 
 on the privity of contract between the lessor and lessee, the 
 lessor may, until he has accepted of the assignee as his tenant, 
 bring an action of debt against the lessee, for rent due after the 
 
 (a) 3 Co. 23 a.; 8 Co. 42 b.; Co. 1 (fc) 3 Co. 23 a., 23 b., 24 a. See I 
 Litt. 271 a. ; Cro. Eliz. 556. \ Biod. & B. 263.
 
 S. II.] OF A lessor's action FOR RENT, &C. 307 
 
 assignment (t). 13ut this action of debt the lessor cannot main- 
 ttiin, after he has taken rent of the assignee, and so accepted him 
 as his tenant (d), for this acceptance extinguishes the privity of 
 contract (e). 
 
 If the lessee assigns the term, and dies, and the lessor has not 
 accepted of the assignee as his tenant, the lessor cannot, on a 
 privity of contract between himself and the executor of the lessee, 
 support against the executor an action of debt in the debet and 
 detmcf, for rent due after the lessee's death (f). But in this 
 case, on the privity of contract between the lessor and lessee, the 
 lessor may, it would seem, maintain against the executor of the 
 lessee an action of debt in the detitiet, for rent due after the 
 assignment, and in the lessee's life-time ; or for rent due after 
 the lessee's death (g). 
 
 SECTION II. 
 
 OF A lessor's action FOR RENT, DUE BEFORE THE LESSEE's 
 EXECUTOR HAS ASSIGNED THE TERM. 
 
 When a lessee for years dies, and the term devolves to his 
 executor, then for rent, wholly incurred in the lessee's life-time, 
 the lessor may bring against the executor an action of debt, not 
 in the debet and detinet, but, on the privity of contract between 
 the lessor and lessee, in the detinet only (h) ; and judgment for 
 the plaintiff is de bonis testatoris {i) . After the death of the 
 lessee, his executor, who accepts the executorship, and possesses 
 assets, cannot wave the term, and refuse to pay, so far as the 
 assets are sufficient, the rent that grows due after the lessee's 
 
 (p) Walker's ca.%e, or Walker v. Harris, 
 3 Co. 22, Mo. 351 ; Humble, or Ungle, 
 V, Glover, Cro. Eliz. 328, and stated 3 
 Co. 23 b., 24 a. ; Overtim v. Sydal, Cro. 
 Eliz. 556. 
 
 (d) Walker's case, 3 Co. 24 b.; Marsh 
 V. Brace, Cro. Jac. 334; Thurshy v. Plant, 
 1 Saund. 240, 1 Lev. 260; Avriol v. 
 Mills, 4 Durn. & E. 98. 
 
 (e) 1 Saund. Rep. 240. 
 
 (/) 3 Co. 24 a. ; Cro. Eliz. 556; 
 Palm. 117. 
 
 (g) Cro. Eliz. 556 ; 1 Lev. 127 ; 3 
 Mod. 326, 327 ; 1 Freem. 338. 
 
 (/() Bro. Abr. tit. Dette, 178 ; Cro. 
 Eliz. 712 : Style, 61 ; 1 Rol. Abr. 603, 
 S. pi. 9 ; Salter v, Codbnld, 3 Lev. 74. 
 
 (0 Sailer v. Codhold, 3 Lev. 74. 
 
 X 2
 
 308 OF A lessor's action for rent, due before [CH. XXVI. 
 
 deatli ; altliougli such rent is greater than the value of the 
 land (j ) : " an executor cannot wave a term so, but that he 
 shall be charged for the rent, if he has assets ; for he is bound to 
 perform all contracts of the testator, if he has assets, be the rent 
 above the value of the land or not" (k). But although on the 
 death of the lessee, his executor, who accepts the executorship, 
 cannot wave the term, in the sense that he cannot avoid the 
 vesting of it in him, and certain consequences of this vesting, yet 
 it appears that, if not in all cases, in some instances, and in par- 
 ticular if "the rent is more than the land is worth" (Z), the 
 executor may wave the occupation of the land, or, in other words, 
 is not obliged to enter (m). 
 
 If the executor does enter, then for rent incurred partly in the 
 lessee's life-time, and partly in the time of the executor, it appears 
 the lessor may bring against the executor an action of debt in 
 the debet and detinet (n). Also, for such rent, the lessor may sue 
 the executor in the detinet only (o). If the executor does not 
 enter, then for rent wholly incurred in the executor's time, the 
 lessor may, on the privity of contract between himself and the 
 lessee, bring against the executor an action of debt in the deti- 
 net {p). If the executor does enter, then between him and the 
 lessor there is a privity of estate {q) ; but, as to an action of 
 debt for rent, not a privity of contract (r). And therefore for 
 rent wholly incurred in the executor's time, the lessor cannot, on 
 a privity of contract between him and the executor, support 
 against the executor an action of debt in the debet and detinet {s). 
 
 (j) Bro. Abr. tit. Waiver, 49 ; Cro. 
 .Tac. 549 ; 1 Ventr. 271 ; 1 Freem. 394 ; 
 1 Salk. 297 ; 1 Mod. 186 ; Yelv. 103. 
 See also on waver of a term, Puule v. 
 Moodie. 2 Rol, Rep. 131 ; Moule v. 
 Moodie, Palm. 116; Bolton \. Canham, 
 Pollexf. 125 ; and Haydon v. Godsale, 
 Palm. 150. 
 
 (fc) 1 Lev. 127. 
 
 (/) Style, 61 ; Palm, 117. 
 
 (to) Lord Rich v. Frank, 1 Bulstr. 23 ; I (/) 3 Co. 23 a., 23 b. 
 Kale v. Jocelyne, Style, 61 ; Sackvill v. (s) 3 Co. 23 b.j Cro. Eliz. 556, 
 
 Evans, 1 Freem. 172. See also Moule v. I 
 
 Moodie, Palm. 117. 
 
 (?<) Bailiffs of Ipswich v. Martin, Cro. 
 Jac. 411 ; Jevens v. Harridge, 1 Saund. 1. 
 
 (o) Aylmer v. Hide, Selw. N. P. 8th 
 ed. 607. And see 4 M. & S. 125. 
 
 (p) Cro. Eliz. 556; 1 Bulslr. 23 ; 1 
 Lev. 127. See also Howse v. Webster, 
 Yelv. 103. 
 
 (5) Cro. Eliz. 556 ; Cormel v. Lissel, 
 2 Lev. 80.
 
 S. II.] THE lessee's EXECUTOR HAS ASSIGNED THE TERM. 009 
 
 To pay sucli rent, the profits of the land are, as well as the 
 lessee's general assets, liable. And so much are those profits 
 responsible for the rent, that it is the duty of the executor to 
 apply them in satisfaction of it (t), and the surplus only, which 
 remains after payment of the rent, is assets of the lessee (//). 
 And, for this cause, in an action of debt by the lessor against the 
 executor for such rent, wholly incurred in the executor's own 
 time, the executor may be charged, as assignee (v), in the debet 
 and detinet [w). And if to this action he pleads, that he has 
 fully administered the assets, pZe/ic administravit, the plea is 
 bad (x), and a cause of demurrer {y). And when in such action 
 of debt in the debet and detinet, judgment is given for the plain- 
 tiff, it is de bonis propi'iis of the executor (r). And here it may 
 be mentioned, that if a lessee for years assigns the term, and, on 
 the death of the assignee, the term devolves to his executor, who 
 enters, then, for rent wholly incurred after the assignee's death, 
 the lessor may sustain against his executor an action of debt in 
 the debet and detinet (a). 
 
 When an executor is charged in the debet and detinet, and the 
 rent is greater than the value of the land, he may aid himself by 
 specially pleading {b). Billinghurst v. Speerman is thus reported : 
 — " If an executor has a term, and the premises are of less value 
 than the rent reserved thereon, in an action brought against him 
 in the debet and detinet, he may plead the special matter, namely, 
 
 (t) 1 Salk. 317. 
 
 (m) 5 Co. 31 b. ; Cro. Eliz. 712 ; Mo. 
 566 ; 1 Salk. 79 ; 1 Freem. 337, 394 ; 
 10 Mod. 12. 
 
 (i-) 1 Bulstr. 23; 1 Salk. 317; 1 
 Freem. 337 ; Cormel v. Lmet, 2 Lev. 80. 
 
 (w) Bro. Abr. tit. Dette, 178 ; Bar- 
 rington v. Potter, 1 Dyer, 81b; Har- 
 grove's case, or. Body v. Hargrove, 5 Co. 
 31, Mo. 566, Cro. Eliz. 711, cited 
 Cro. Jac. 546, 549, and 1 Keb. 923; 
 Lord Rich v. Frank, Cro. Jac. 238, 1 
 Bulstr. 23 ; Bolton v. Camion, 1 Ventr. 
 271, 1 Freem. 393 ; Boulton v. Cannam, 
 3 Keb. 446, 466, 493 ; Bolton v. Canham, 
 Pollexf. 125; Cormel v. Liiset, 2 Lev. 
 
 80 ; Sackvill v. Evans, 1 Freem. 171; 
 Anon. 1 Mod. 185 ; _ Cro. Eliz. 556 ; 
 1 Rol. Abr. 603, pi. 10 ; 1 Lev. 128 ; 1 
 Salk. 297, 317 ; 1 Freem. 337, 338. 
 
 (x) 1 Salk. 317. 
 
 {y} Sackvill v. Evans, 1 Freem. 171 ; 
 Anon. 1 Mod. 185. See also Moule v. 
 Moodie, Palm. 116. 
 
 (z) Lord Rich v. Frank, 1 Bulstr. 23; 
 Sackvillv. Evans, 1 Freem. 171 ; Royston 
 V. Cordyre, Aleyn, 42, cited 3 East, 6 ; 
 Salter v. Codbold, 3 Lev. 74. — 1 Rol. 
 Abr. 931, C. pi. 10. 
 
 (a) Mawle v. Cacyffer, Cro. Jac. 549. 
 
 (b) Cro. Jac. 549; 1 Ventr. 271 ; 1 
 Salk. 297, 317.
 
 310 OF A lessor's action for rent, &C- [CH. XXVI. 
 
 that he has no assets, and that the land is of less value than the 
 rent, and demand judgment if he ought not to be charged in the 
 detinet oidy. This, Holt, Ch. J., said was his opinion, and 
 that Hale was of the same opinion, and it was but reasonable, 
 because an executor could not wave for the term only ; for he 
 must renounce the executorship in toto, or not at all" (c). And 
 in Buckley v. Pirk^ it was held, " That if the executor of a lessee 
 enters, the lessor may charge him, as an assignee, for the rent 
 incurred after his entry, in the debet and detinet ; and if the rent 
 be of less value than the lands, as the law jyrimd facie supposes. 
 So much of the profits, as suffices to make up the rent, is ap- 
 propriated to the lessor, and cannot be applied to any thing 
 else. And therefore, in such case, the defendant cannot plead 
 ■plene administravit^ for that confesses a misapplication, since no 
 other payment out of the profits can be justified, till the rent 
 be answered. On the other hand, if the rent be more worth 
 than the land, the defendant may disclose that by special plead- 
 ing, and pray judgment whether he shall be charged otherwise 
 than in the detinet only" (rZ). 
 
 When a lessee for years dies, and his executor enters, it 
 appears it is in the election of the lessor, in an action of debt 
 for rent wholly incurred in the executor's own time, to charge 
 the executor in the debet and detinet^ or in the detinet only ; and 
 that if he charges him in the detinet only, the judgment against the 
 executor is de bonis testatoris (e) . An action of debt lies not by 
 the lessor against the executor of the lessee for rent, to charge 
 him in the detinet for one sum due in the life-time of the testator, 
 and in the debet and detinet for another sum due in the executor's 
 own time ; because these charges require several judgments ; 
 namely, de bonis propriis for the arrears in the executor's own 
 time, and de bonis testatoris for the arrears incurred in the testa- 
 tor's time {f). In Remnant v. Bremridge, after the death of a 
 
 (c) 1 Salk. 297 ; Cas. T. Holt, 306. 
 See also Palm. 118. 
 {d) 1 Salk. 317. 
 (c) Boulton V. Canon, 1 Fieeni. 337 ; 
 
 Royston v. Cordyre, Aleyn, 42, cited 3 
 East, 6. See also 4 M. & S. 125. 
 (/) Salter v. Codbold, 3 Lev. 74.
 
 S. III.] OF A lessor's action ON COVENANTS, &C. 311 
 
 lessee for years, his administrator entered, and, for rent due after 
 the lessee's death, the owner of the reversion, by assumpsit for 
 use and occupation, sued the administrator as assignee. The 
 defendant pleaded the general issue ; and under it gave in evi- 
 dence, that the intestate's estate was insolvent, that the defendant 
 had received no profits from the premises, and that, eight months 
 after the intestate's decease, the defendant made to the plaintiff 
 a verbal offer to give up the premises to him. This evidence 
 was held to be a good defence to the action ; and, accordingly, 
 a nonsuit was entered (p) . 
 
 SECTION III. 
 
 OF A lessor's ACTION ON COVENANTS, BROKEN BEFORE THE 
 lessee's executor has ASSIGNED THE TERM. 
 
 When an action of covenant is brought against an executor, 
 for a breach of covenant by his testator, a judgment for the 
 plaintiff is de bonis testatoris (A) ; as, where a lessee covenants to 
 perform the covenants in his lease, and, after his death, his 
 executor is sued for breaches of covenant by the lessee in his 
 life -time; and if the executor of the lessee has no assets, ^jZewe 
 administravit may be pleaded to the action [i). 
 
 It is decided, that if in a lease for years the lessee covenants 
 to repair the premises (a covenant that runs with the land (J)), 
 and, after his death, his executor enters, and commits a breach 
 of the covenant, the lessor may sustain an action against him, 
 as assignee {k). It is also, it should seem, decided, that if the 
 lease is assigned, and after the death of the assignee his executor 
 enters, and commits a breach of the like covenant in the lease, 
 
 {g) 8 Taunt. 191, 2 J. B. Moore, 94. 
 
 (h) Holt V. Bore, 1 Rol. Abr. 931, 
 D. pi. 7. See Dean and Chapter of 
 Bristol V. Guyse, 1 Saund. ill. 
 
 (0 Wihon V. Wigg, 10 East, 313. 
 
 (J) Dean and Chapter of Windsor v. 
 
 399; 
 
 5 Co. 
 
 Hyde, 5 Co. 24 ; Mo. 
 17b; 1 Salk. 317. 
 
 (fc) Tilney v. Norris, 1 Lord Raym. 
 553, 1 Salk. 309. See also 1 Freein. 
 337 ; 3 Keb. 189 ; and 1 Wils. 5.
 
 312 OF A lessor's action on covenants, jjuoken [ch.xxvi. 
 
 the lessor may sue this executor, as assignee (Z). And, in either 
 of the cases mentioned, it appears the judgment against the 
 defendant is not against the testator's estate, de bonis testatoris, 
 but against the executor's own estate, de bonis propriis (m). And, 
 in confirmation of the same doctrine, it is held, that if, where a 
 lease for years is assigned by the executor of the lessee, the 
 assignee covenants to repair, and after his death his executor 
 enters, and commits a breach of the covenant, the covenantee, 
 the executor of the lessee, has, in an action on the covenant, his 
 election of charging the defendant as executor or assignee (n). 
 Some cases occur, wherein a lessee covenanted in the lease, and 
 after his death his executor entered, and broke the covenant; 
 and in an action against him on the covenant, it was decided, 
 the judgment must be de bonis testatoris ; as, where the executor 
 broke the covenant by not repairing the premises (o), and, in 
 another case, by assigning over the lease, without giving notice 
 thereof to the lessor (/?). But in these instances it can hardly 
 be collected to be the ground of the determination, that the 
 defendant was charged as executor, and not as assignee {q). In 
 farther cases, a judgment de bonis testatoris has been held to be 
 proper, where the lessee entered into a bond for performance of 
 covenants in the lease, and after his death his executor entered, 
 and, having broken a covenant, the lessor recovered against him, 
 in an action of debt on the bond ; as, where the executor broke 
 the covenant by ploughing of marsh land (r), and, in another case, 
 by not repairing the premises leased (s). It is decided, that 
 when a lessee covenants to pay the rent, and after his death his 
 executor enters, and breaks the covenant, by not paying rent 
 incurred in his own time, and the lessor brings an action of 
 covenant against him, charging him as executor ; here, if the 
 
 (0 Keeling v. Morrice, 12 Mod. 371. 
 See Dean and Chapter of Bristol v. Guyse, 
 1 Saund, 111. 
 
 (m) Tilney v. Korris, 1 Ld. Eaym. 
 553, 1 Salk. 309 ; Keeling v. Morrice, 12 
 Mod. 371. 
 
 (n) Buckley v. Pirk, 1 Salk. 316. 
 
 (o) Anon. 3 Dyer, 324 a., Ca, 34; 
 Collins V. Thronghgood, Hob. 188, 1 Rol. 
 
 Abr. 932, D. pi. 8. See 3 Keb. 189, 
 
 (p) Bridgman v. Lightfoot, Cro. Jac. 
 671, 1 Rol. Abr. 931, D. pi. 8. 
 
 (q) See also Holt v. Hore, 1 Rol. Abr. 
 931, D.pl. 8. 
 
 (r) Castilion v. Executor of Smith, 
 Hob. 283, 1 Rol. Abr. 932, D. pi. 9. 
 
 (s) Bull V. Wheeler, Cro. Jac. 647.
 
 S. III.] BEFORE lessee's EXECUTOR HAS ASSIGNED THE TERM. 313 
 
 executor has no assets, he may plead plene administravit, and, on 
 demurrer, it will be a ^ood plea to the action {t). 
 
 The following important case shews, that when a lessee for 
 years specifically bequeaths the premises, his executor is, after 
 his assent to the bequest, and possession taken by the legatee, 
 liable to an action on the lessee's covenant to repair, broken in 
 the time of the legatee. Curtis v. Hunt was an action of cove- 
 nant by the plaintiff, as representative of a lessor, against the 
 defendants, as executors of his lessee, for not repairing. The 
 defendants having pleaded plene administraveruuf, the probate of 
 the lessee's will was produced, by which it appeared the probate 
 duty had been paid for a sum between 2000/. and 5000/. The 
 premises in question were bequeathed by the will, and the 
 legatee had been let into possession. The action was brought at 
 the distance of twenty-eight years from the date of the probate, 
 and the plaintiff obtained a verdict ; Abbott, Ch. J., observing, 
 " The executors might have taken an indemnity from the legatee. 
 Here is prima facie evidence of assets to the amount of 2000/., 
 in the duty paid upon the probate. The executors also might 
 have kept the premises to answer the expenses of repairs. It is 
 unfortunate for the executors; but the lessor must not suffer, 
 because they neglected to do what they might have done" (u). 
 
 In Sutton V. Mashiter, the testator in the cause had held a farm 
 and buildings under a lease. The suit was instituted for the 
 administration of his estate. No claim of any debt or damages 
 having been brought in, the Master reported accordingly. The 
 cause was then heard for farther directions ; and, in pursuance of 
 the decree, the executors had paid into Court all their balances 
 belonging to the estate. The lessor afterwards commenced an 
 action against the executors, as executors, for breaches of the 
 covenant to repair contained in the lease, and was proceeding to 
 trial at the next assizes; but this action Sir L. Shadwell restrained 
 by injunction, saying, " It is clear that the Court will not allow 
 
 (t) Boulton V. Canon, or Camam, 1 
 Freem. 336, 3 Keb. 189; Lyddall v. 
 Dunlapp, 1 Wils. 4. See Dean and 
 
 Chapter of Bristol v, Guyse, 1 Saund. 
 Ill, and Wilson v. Wigg, 10 East, 313. 
 (u) 1 Carr. & P. 180.
 
 ^14 OF A lessor's action for rent, &.C. [CH. XXVI. 
 
 this person, who is in the character of a creditor, to go on with 
 his action. It may be ascertained by the Master, as well as it 
 could be by a jury, whether any breach of covenant has been 
 committed, and what is the amount of the damage; and there- 
 fore I shall grant the injunction, without costs, and refer it to the 
 Master, to ascertain the amount of the damages, in respect of 
 the alleged breaches of covenant" (v). 
 
 SECTION IV. 
 
 of a lessor's action for rent, due after the lessee's 
 executor has assigned the term. 
 
 When, after the death of a lessee for years, his executor 
 enters, then there is between the lessor and executor a privity of 
 estate (iv) ; and the latter is so far assignee, that the lessor may 
 maintain against him, as assignee, an action of debt in the debet 
 and detinet, for rent incurred in the executor's own time [x). If 
 the executor assigns the term, then immediately on the accept- 
 ance of the assignment, and before entry (?/), the assignee has an 
 estate (z), and there is between him and the lessor a privity of 
 estate (a), but not of contract [h) ; and between the lessor and 
 the executor of the lessee, there is not a privity of contract (c), 
 or of estate [d). And now, therefore, the lessor cannot, on a 
 privity of estate between him and the executor, maintain against 
 the executor, as assignee, an action of debt in the debet and deti- 
 net, for rent due after the assignment (e) ; and especially if the 
 
 (u) 2 Sim. 513. 
 
 (it)) Cro. Eliz. 556 ; Cormel v. Lisset, 
 2 Lev. 80. 
 
 (x) Overton v. Sydal, Cro. Eliz. 556; 
 Lord Rich v. Frank, Cro. Jac. 238 ; Cor- 
 mel V. Lisset, 2 Lev. 80 ; Sackvill v. 
 Evans, 1 Freem. 171. 
 
 (y) 1 Ld. Raym, 367 ; 1 Brod. & B. 
 263. 
 
 (:) 1 Ld. Raym. 367. 
 
 (a) 3 Co. 23 a. ; 1 Brod. & B. 263. 
 
 (6) 3 Co. 23 a., 23 b. See, however, 
 1 Brod. & B. 263. 
 
 (c) 3 Co. 23 a., 23b., Cro, Eliz. 556. 
 
 (d) 3 Co. 23 a., Cro. Eliz. 556. 
 
 (e) Overton v. Sydal, Cro. Eliz. 555, 
 also stated 3 Co. 24 a., and cited 1 Lev. 
 127 ; Boulton v. Canon, 1 Freem. 338 ; 
 Jenkins v. Hermitage, or Armitage, 1 
 Freem. 377, 3 Keb. 367 ; Cook v. Harris, 
 1 Ld. Raym. 367.
 
 S.V.J OF A lessor's ACTION ON COVENANTS, &C. 315 
 
 lessor has accepted rent from the assignee of the executor {f). 
 But, on the privity of contract between the lessor and lessee, the 
 lessor may, notwithstanding the assignment, and until he accepts 
 of tlie assignee as liis tenant, maintain against the lessee's exe- 
 cutor an action of debt in the detinct, for rent become due after 
 the assignment; and if the executor pleads, that before the rent 
 was due he had assigned the term, the plaintiif may demur [g). 
 To pay this rent so sued for, the lessee's assets are liable ; and, 
 therefore, judgment for the plaintiff is de bonis testatoris {h). 
 But it appears the action cannot be sustained, if the lessor has 
 made the assignee his tenant, by acceptance, from the hands of 
 the assignee, of rent due after the assignment (^). 
 
 SECTION V. 
 
 OF A lessor's ACTION ON COVENANTS, BROKEN AFTER THE 
 LESSEE, OR HIS EXECUTOR, HAS ASSIGNED THE TERM. 
 
 When, in a lease for years, the lessee enters into an express 
 covenant, and he assigns the term, and afterwards the covenant 
 is broken, in many cases the lessor may, notwithstanding the 
 assignment, bring an action of covenant against the lessee ; as, if 
 the covenant broken is to repair, and the lessee covenanted that 
 he and his assigns would repair (J). And the action may be sus- 
 tained against the lessee, although brought after the lessor has 
 accepted rent from the assignee, and so taken him to be tenant {k) ; 
 as, if the covenant broken is to repair, and the lessee covenanted 
 
 (f) Marrow v. Turpin, Cro. Eliz. 
 715, Mo. 600, and stated 3 Co. 24. 
 
 (o-) Helier v. Casebert, or Casehrook, 1 
 Lev. 127, 1 Keb. 679, 839, 923, cited 
 4 Mod. 76 ; Coghill v. Freelove, 2 Ventr. 
 209, 3 Mod. 325 : Coghile v. Fairlove, 
 1 Sid. 266 ; CogliiU v. Fructon, 1 Lev. 
 128, n. ; Boulton v. Canon, 1 Freem. 338. 
 
 (/^) 1 Lev. 127 ; 1 Keb. 924 ; 3 Mod. 
 326, 327 ; 1 Freem. 338, 377. 
 
 (0 Walker's case, 3 Co. 24 b. ; Marsh 
 \. Brace, Cro. Jac. 334; Thursby v. Plant, 
 1 Saund. 240, 1 Lev. 259 ; Auriol v. 
 Mills, 4 Durn, & E. 98. 
 
 (j) Bro. Abr. tit. Covenant, 32 ; 1 
 Rol. Abr. 522, N. 2. 
 
 (k) Thursby v. Plant, 1 Saund. 240, 
 1 Lev. 260 ; Auriol v. Mills, 4 Durn. & 
 E.98.
 
 316 OF A lessor's action on covenants, &C. [CH. XXVI. 
 
 for himself and his assigns (/) ; or the covenant broken is to pay- 
 rent (m). And in similar cases the lessor may, after the death of 
 the lessee, bring the action against his executor {n). And, 
 farther, when the assignment of the term is not by the lessee 
 himself, but by his executor, and after this assignment the lessee's 
 express covenant to pay the rent is broken, the lessor may sustain 
 an action of covenant against the executor, charging him as exe- 
 cutor. And if the defendant pleads that, before the rent became 
 due, he assigned over, the plaintiff may demur ; and judgment for 
 him is de bonis testa toris (o). Where a lessee covenanted for 
 himself, his executors, administrators, and assigns, to perform the 
 covenants in the lease ; and after his death his executors assigned 
 to D. A. ; in an action on the covenant against the executors, by 
 a first count, for breaches of covenant by the testator in his life- 
 time, and by a second count, for breaches by D. A., it was 
 decided, that the testator's funds were liable for any breaches 
 committed by himself, or his executors, or his assigns ; that D. A. 
 was an assignee of the testator ; and his executors were liable in 
 that character for breaches committed by him ; and therefore that 
 ple7ie administraverunt might be pleaded to the last count, as well 
 as to the first [p). 
 
 (/) Ventrice, or Varnis, v, Goodcheape, 
 1 Rol. Abr. 522, N. 1, cited Cro. Jac. 
 309 ; Barnard v. Godschall, Cro. Jac. 
 309 ; Norton v. Acklane, Cro. Car. 579. 
 
 (wi) Countess of Devon v. Collyer, and 
 Crofts V. Taylor, 1 Rol. Abr. 522, N. 1. 
 See Cro. Jac. 523. 
 
 (7^) Bachelour v. Gage, Cro. Car. 188. 
 See also Brett v. Cumberland, Cro. Jac. 
 521. See, likewise, 1 Meriv. 265. 
 
 (o) Jenkins v. Hermitage, or Arrnitage, 
 1 Freem. 377, 3 Keb. 367. See also 1 
 Meriv. 265. 
 
 (p) Wilson V. Wigg, 10 East, 313,
 
 317 
 
 CHAPTER XXVII. 
 
 OF EaUITABLE ASSETS (a). 
 
 One division of assets is into legal and equitable assets. Gene- 
 rally speaking, wlien a creditor by bond, or simple contract, can, 
 by action at law, reach assets, these assets are legal ; and, gene- 
 rally speaking, assets are eqnitable, when, to obtain payment out 
 of them, a creditor by bond, or simple contract, is obliged to go 
 into a Court of Equity [b). But, under some circumstances, 
 assets may be legal, although, to obtain payment out of them, 
 such a creditor is obliged to resort to a Court of Equity (c). 
 Legal assets a Court of Equity will distribute, according to the 
 order observed at law in paying the debts of a person deceased [d). 
 Equitable assets a Coiu't of Equity will distribute among cre- 
 ditors by bond and by simple contract (e), and, in some cases, by 
 judgment, bond, and simple contract {f), pan passu, or equally. 
 
 When a Court of Equity distributes, or administers, legal 
 assets', it allows the different creditors to enjoy the right of 
 priority which thay are entitled to at law {g). And, accordingly, 
 where such assets have consisted of personal estate, the Court has 
 followed the priority observed at law (A) ; and paid a debt by 
 decree in Chancery before debts by bond («), and debts by bond 
 before debts by simple contract {j). 
 
 (a) On this subject, see also Chapter 
 VIII, Sect. II., oa property by or in a 
 Court of Equity held to be assets ; and 
 Chapter XXVIII. Sect. II., on marshall- 
 ing assets for creditors. 
 
 (6) 2 Vern. 764 ; 3 P. W. 342 ; 2 Atk. 
 293, 294 ; Mos. 124, 330 : I Barn. & 
 C. 374; Silk V. Frime, 1 Bro. C. C. 
 138, n., 1 Dick. 384. 
 
 (c) 2 Vern. 764 ; 10 Mod. 427, 428 ; 
 3 P. W. 342, 343. 
 
 (d) 2 Vern. 764 ; 3 P. W. 342, 343 ; 
 
 2 Freem. 49, 50 ; 1 Barn. & C 371. 
 
 (e) Deg V. Deg, 2 P. W. 412. Case of 
 Creditors of Sir C. Coi, 3 P. W. 341. 
 
 (/) Wilson V. Fielding, 10 Mod. 426, 
 2 Vern. 763 ; Foly's case, 2 Freem. 49, 
 2 Eq. Cas, Abr. 459. See also 2 P. W. 
 416. 
 
 (g) 2 Freem. 49 ; 3 Salk. 83. 
 
 (/() Foly's case, 2 Freem. 49 ; Baily 
 V. Ploughman, Mos. 95. 
 
 (i) Fo/t/'s case, 2 Freem. 49. 
 
 (j ) Anon. 3 Salk. 83.
 
 318 OF EyUITAlJLK ASSPITS. [CH. XXVII. 
 
 In the payment of debts of a person deceased, a Court of 
 Equity also respects a specific lien on property liable, as equitable 
 assets, to debts. In Freemoult v. Dedire, a person on his marriage 
 covenanted to settle his lands in llumney Marsh on his wife for 
 her life ; after which he made a will, charging all his estate with 
 the payment of his debts ; and died indebted by bond and simple 
 contract. On a bill brought by the creditors, Lord Chancellor 
 Parker said, " With regard to the lands in Rumney Marsh, the 
 marriage articles, being a specific lien upon them, make the 
 covenantor, as to them, but a trustee, and, therefore, during the 
 life of the wife, they are not to be affected by any of the bond 
 debts" [k). And in several cases, where property mortgaged has 
 been decreed to be sold for the payment of debts, the first debt 
 which the Court has paid out of the produce of the sale has been 
 that of the mortgagee (Z). In the case also of a mortgage, a Court 
 of Equity respects the general lien of a creditor by judgment 
 against the deceased in his life-time ; the Court giving to such 
 judgment a priority before other debts (m). And when a testator 
 dies indebted by judgment, and land mortgaged by him descends 
 to his heir at law, and a great part, or the whole, of the mort- 
 gage debt is by the executor paid out of the personal estate, and 
 the simple contract creditors of the testator apply to a Court of 
 Equity to be paid, out of the land descended, so much as the mort- 
 gagee has received from the personalty, it appears that Lord 
 Chancellor Parker expressed an opinion that, out of the land, 
 the Court would, in the first place, pay the creditor by judg- 
 ment~(?z). 
 
 When assets are equitable, a Court of Equity, in the adminis- 
 tration of them, acts on the principle, that a debt by simple con- 
 tract, and a debt by specialty, are equal (o) ; in other words, that 
 
 (k) I p. W. 429. See Fmch\. Earl of 
 Winchelsea, ib. 277. 
 
 (I) Girling v. Lee, 1 Vern. 63, and 
 3rd.ed. 65, n. (5), ; Girling v. Lord Low- 
 ther, 2 Ch. Rep. 262 ; Plunket v. Pere- 
 son, 2 Atk. 290 ; Pope v. Givyn, 8 Ves. 
 28 11. 
 
 («) Morgan V. Lord Sherrard. 1 Vern. 
 
 293 ; Sharpe v. Earl of Scarborough, 
 4 Ves. 538. See also Foly's case, 
 2 Freem. 49. 
 
 (?i) Wilson V. Fielding, 10 Mod. 428. 
 See the decree in this case from the Reg. 
 B. 2 Vern. 3rd. ed. 764. n. 
 
 (o) VVilles, 524 ; IJac. 6c W. 45.
 
 CH. XXVII.] OF EQUITABLE ASSETS. 319 
 
 " a debt without specialty is as much a debt jure natural}, and in 
 conscience, as a debt by specialty" (/>), " all debts being, in a con- 
 scientious regard, equal, and equality the highest equity" {q). 
 And the same principle the Court extends to judgments (r). 
 And, accordingly, out of equitable assets, a Court of Equity 
 decrees to be paid equally, or, as it is usually termed, pari passu, 
 or, if the fund falls short, then in proportion, debts by bond and 
 by simple contractus), or debts by judgment, by bond, and by 
 simple contract {t). 
 
 Lord Chancellor Parker appears to have drawn a distinction 
 between property, which is assets in a Court of Equity only, and 
 certain property, which a creditor cannot come at without the aid 
 of a Court of Equity. He appears to have considered, that a 
 Court of Equity would distribute the former description of pro- 
 perty among creditors of different degree pari passu ; but would 
 distribute the latter kind of property, according to the creditors' 
 priority at law. In JVilson v. Fielding, land mortgaged by a testa- 
 tor descended to his heir at law ; and a great part of the mortgage 
 debt was, by the executor, paid out of the testator's personal estate. 
 After the testator's death, the plaintiff, one of his simple con- 
 tract creditors, brought an action at law against his executrix, and 
 obtained judgment; and his other simple contract creditors 
 applying to a Court of Equity, to stand in the place of the 
 mortgagee, and to receive from the land descended so much as 
 he had taken from the personal estate, the Court decreed these 
 creditors, and the creditor by judgment, to be paid equally, refu- 
 sing to give any preference to the latter. It is reported to be 
 in this case adjudged by Lord Chancellor Parker, that the plain- 
 tiff " being only relievable in equity, all the creditors should be 
 paid in proportion, for the judgment could not avail him at law, 
 
 no assets coming afterwards to the hands of the executors. 
 
 But 
 
 if there had been personal assets, as a lease for years, a bond, or 
 the grant of an annuity, in a trustee's name, then, although a 
 
 (p) I Ch. Cas. 248, 249. 
 
 (</) 3 P. W. 342. 
 
 (?•) 2 Freem. 49 ; 2 P. W. 416. 
 
 (s) Hickson v. Witham, 1 Freem. 305, 
 
 1 Ch. Cas. 248 ; Deg v. Deg, 2 P. W. 
 412 ; Wride v. Clarke, 1 Dick. 382. 
 
 (t) Folii's case, 2 Freem. 49, 2 Eq. 
 Cas. Abr. 459.
 
 320 OF EQUITABLE ASSETS. [CH. XXVII. 
 
 creditor could not come at it, without the aid of a Court of Equity, 
 yet the assets should be applied in a due course of administration. 
 But in this case, the compelling the heir to refund is a matter 
 purely in equity, and a raising of assets, where there were none 
 at law" (?/.). 
 
 And, in another case, it appears to have been to the like effect 
 stated by Sir Joseph Jekyll, that " where a bond is due to A., but 
 taken in the name of B., in trust for A., and A. dies, this must 
 be paid in a course of administration." And that " if a term for 
 years be taken in the name of B., in trust for A., this, on the 
 death of A., the cestui que trust, will be legal assets" [v). The 
 Statute of Frauds, it may here be noticed, makes a trust in 
 fee-simple, descended to the heir of the cestui que trust, legal 
 assets (w). 
 
 Several authorities shew, that formerly when an executor had 
 in his hands money, which he had raised by a sale of real estate 
 of his testator, pursuant to a devise or power given to him for 
 that purpose, the Courts of Law and of Equity held, that such 
 money was in a Court of Law assets for payment of the testa- 
 tor's debts {x). 
 
 A Court of Equity has formerly held real estate, or money 
 arising from a sale of it, to be in that Court legal assets, and, in 
 consequence, there applicable to pay debts of different degree, 
 according to their priority at law, — where the equity of redemp- 
 tion of real estate, mortgaged by a testator, was devised by 
 him to certain persons, and their heirs, in trust to sell for pay- 
 ment of debts, the will also appointing the trustees executors {y) : 
 where a man devised lands to be sold for payment of his debts, 
 
 (m) 2 Vern. 763, 10 Mod. 426, 
 
 (y) Case of Creditors of Sir C. Coi^, 3 
 P. W, 342, 2nd point. 
 
 (w) 29 Ch. II. c. 3, s. 10 ; King v. 
 Ballett, 2 Vern. 248. See 2 Atk. Rep. 
 293. 
 
 (i) 1 Eol. Abr. 920, G. pi. 2, 3, 6, 
 10 ; Dethicke v. Caravan, 1 Lev. 224 ; 
 Burwell v. Corrant, Hardr. 405 ; Hawker 
 
 V. Buckland, 2 Vern. 106 ; Blatch v. 
 Wilder, 1 Atk. 420. See also Germy's, 
 or Gering's, case, 1 Leon. 87, 2 Leon. 
 119; Allexander v. Lady Gresham, 1 
 Leon. 224 ; and Silk v. Prime, 1 Bio. 
 C. C. 138. n. 
 
 (y) Girling v. Lee, 1 Vern. 63, and 
 3id ed. 65, n. (5) ; Girling v. Lord Low- 
 ther, 2 Ch. Rep. 262.
 
 CH. XXVIl.] OF KOIJITAIJLF, ASSETS. 3*21 
 
 and made the devisees executors (z) : where a man devised lands 
 to A. and B., in trust to be sold for the payment of his debts, and 
 made the same persons executors (a) : where a man devised a 
 real estate to two trustees, and their heirs, to be sold for payment 
 of debts, &c., and made those two trustees, and a third person, 
 his executors {b) : where a person devised all his real and perso- 
 nal estate, whether freehold or copyhold, to be sold for payment 
 of his debts, and appointed executors, but gave the property to 
 be sold generally, without directing who should sell it (c) : where 
 a person by his will charged all his estate, real and personal, with 
 the payment of his debts, and died leaving his eldest son execu- 
 tor, to whom also the real estate, so charged with the debts, 
 descended {d) : where a person devised all his estates to his 
 brother (who was his heir at law) in fee, subject and liable to the 
 payment of his debts, and appointed him executor (e). 
 
 But some early authorities (f) are found to agree with the 
 modern {(/) law, that real estate is equitable assets, when, de- 
 scribed by the words, lands and tenements, or the like general 
 words, it is devised to persons, and their heirs, in trust to sell for 
 the payment of debts, and the same persons are appointed exe- 
 cutors. And also formerly (h) it was held, as it still is at the 
 present time (/), that real estate, or money arising from the sale of 
 it, is equitable assets, and therefore distributable among creditors 
 of different degree, pari passu, where the estate is devised, in 
 
 (s) Bickham v. Freeman, Prec. Ch. 
 136. 
 
 (a) Cutterhack v. Smith, Prec. Ch. 127. 
 See also ChalLis v. Casborn, ih. 407 ; 
 0} eaves v. Powell, 2 Vern. 248. 302; 
 and Anon. ib. 405. See, likewise, 1 Atk. 
 420, and the opinion of Sir T. Sevvell, 
 in Silk V. Prime, 1 Bio. C. C. 138, n. 
 
 (6) Lord Masham v. Harding, Bunb. 
 339. See Lord Massam v. Harding, 
 cited 2 Atk. 291. 
 
 (c) Blatch V. Wilder, 1 Atk. 420, 1 
 West Cas. T. Hardw. 322. 
 
 (rf) Freemoult v. Dedire, 1 P. W. 429. 
 
 (e) Young v. Dennet, 2 Dick. 452. See 
 
 also Plunket v. Penson, 2 Atk. 290. 
 
 (/■) Anon. 2 Vern. 133 ; Hall v. Ken- 
 dall, Mos. 328 ; Prowse v. Abingdon, 1 
 Atk. 482, 1 West Cas. T. Hardw. 312. 
 See also the judgment of Sir T. Sewell, 
 in Silk V. Prime, above. 
 
 {g) Silk V. Prime, above. 
 
 (/i) Anon., or Gell v. Adderly, 2 Ch. 
 Cas. 54 ; Anon. 2 Vern. 405 ; Bickham 
 V. Freeman, Prec. Ch. 136. See also 1 
 Vern. 64, 65, and Wolestoncroft, or 
 WoUsteucroft, or Woolstoncroft, v. Long, 
 1 Cb. Cas. 32, 3 Ch. Rep. 12, 2 Freem. 
 175, cited in Silk v. Prime, above. 
 
 (i) Silk V. Prime, above.
 
 322 OF EQUITABLE ASSETS. [CII. XXVII. 
 
 trust to sell for the payment of debts, and the trustees are not 
 also the executors of the will. 
 
 A Court of Equity inclines to construe assets to be equi- 
 table (j). And in many cases, where formerly they were, or 
 would be, determined to be legal, they are clearly now lield to be 
 equitable assets. " I think," says Lord Camden, " the old rule 
 is overthrown, and that wherever the land itself is devised to the 
 same persons, who are executors, the assets will be equitable. 
 And I hold the case to be the same, whenever the land is devised 
 to them, or to them and their heirs, for in both cases they are 
 equitable trustees. And I can hardly now suggest a case, where 
 the assets would be legal, but where the executor has a naked 
 power to sell qua executor " (k). And a Court of Law now 
 holds, " that if land be devised to trustees, to be sold for pay- 
 ment of debts, and the same persons are executors, the effect 
 of that is to create a charge upon the land to the amount of the 
 debts " ; and that when sold, the proceeds in the hands of the 
 executors are, at law as well as in equity, equitable, and not 
 legal, assets (Z). 
 
 Among other kinds of property by a Court of Equity held to 
 be equitable assets, may be particularly enumerated, — Real estate 
 by a will charged with the payment of debts (m) : real estate by 
 a will charged with the payment of debts, and, subject to this 
 charge, descended to the testator's heir at law {71) : an estate 
 charged by will with payment of debts, and which estate de- 
 scended, subject to the charge, to an infant heir (o) : money due 
 to a testator on a mortgage for years; the legal estate of the 
 term being conveyed to, and vested in, trustees for him (p) : 
 rents and profits in the hands of devisees ; in a case where lands 
 were devised, and charged by the will with the payment of debts, 
 
 (j) 3 P. W. 344 ; Silk v. Prime, 
 1 Bro. C. C. 138, n., 1 Dick. 387. 
 
 (fc) Silk V. Prime, above. 
 
 (/) 1 B. & C. 372, 373 ; 9 B. & C. 
 493. 
 
 (to) Burt V. Thomas, cited 7 Ves. 321, 
 323, and 8 Ves. 30 ; Bailey v. Ekins, 7 
 
 Ves. 319. 
 
 (?() Shiphard v. Luttvidge, 8 Ves. 26. 
 See also 2 P. W. 318. 
 
 (o) Hargrave v. Tindal, 1 Bro. C. C. 
 136, n., cited 7 Ves. 322. 
 
 (p) Ntigent V. Clifford, 1 West Cas. 
 T. Hardw. 494, 497, 1 Atk. 463.
 
 CH. XXVII.] OF EQUITABLE ASSETS. 323 
 
 and to satisfy which a naked power to sell the lands was given to 
 P. and M., or the survivor of them, or his heirs, P. and M. 
 being also appointed executors {(]) : and, it appears it may be 
 added, a lease renewed by executors in their own names (r). 
 
 In Clai/ V. Willis, a Court of Law held to be equitable assets, 
 money arising from a sale of real estate mortgaged, and, under a 
 power contained in the mortgage conveyance, sold after the death 
 of the mortgagor ; who by his will devised the equity of redemp- 
 tion to trustees, upon trust for payment of his debts, and ap- 
 pointed the trustees executors. And in the same case, it may 
 here be mentioned, the Court decided, that the surplus produce of 
 the sale, after satisfaction of the mortgage, having been paid to an 
 agent for such trustees, the administrators de bonis non of the tes- 
 tator could not maintain an action against the executor of the 
 agent, to recover the money so deposited with the latter ; that 
 money being equitable assets, and therefore such administrators 
 of the mortgagor not being entitled to receive it (s). In Barker v. 
 May, a Court of Law held to be equitable assets, money arising 
 from a sale of real estate, which a person devised to trustees, upon 
 trust to sell ; the testator directing the produce of the sale to be 
 deemed part of his personal estate, and appointing the trustees 
 executors. And a legatee having sued in the Ecclesiastical 
 Court for payment of his legacy, the Court of Law granted a 
 prohibition, on the ground that the produce of the sale of the 
 real estate was equitable assets {t). 
 
 Among other instances {u), a Court of Equity has paid cre- 
 ditors of different degree, pari jjassu, or equally, in cases where 
 the assets have consisted of, — Real Estate devised to trustees 
 (whom the testator also made executors) to be sold for payment 
 of his debts ; and the trustees refused to act, and renounced (??) : 
 
 (9) Silk V. Prime, 1 Bro. C. C. 138, n., 
 1 Dick. 384. 
 
 (r) Ray v. Bay, Coop. 264. See 
 Ttawe, or Bromjield, v. Chichester, Ambl. 
 715, 2 Dick. 480. 
 
 (s) 1 B. & C. 364 ; 2 Dowl. & Ryl. 
 539. 
 
 (0 9 B. & C. 489 ; 4 Mann. & 
 
 Ryl. 386. 
 
 (m) Earl of Kildare v. Kent, 2 Freem. 
 253 ; Kidney v. Coussmaker , 1 Ves. jun. 
 436, 2 Ves. jun. 267, 7 Bro. P. C. ed. 
 Toml. 573 ; Pope v. Gwyn, 8 Ves. 28 n., 
 2 Dick. 683. 
 
 (ti) Chambers v. Harvest, Mos. 123. 
 
 Y 2
 
 324 OF EgyiTABLE ASSETS. [CH. XXVII. 
 
 real estate devised to executors, and their heirs, in trust to pay 
 debts (w) : real estate devised to executors, in trust for the pay- 
 ment of debts (.r) : lands by a will first charged with the payment 
 of debts, and then devised, so charged, to a stranger, namely, an 
 aunt, who was not the testator's heir at law (?/) : lands devised, 
 and charged by the will with the payment of debts ; and where 
 to satisfy the debts, a naked power to sell the lands was given to 
 P. and M., or the survivor of them, or his heirs, P. and M. being 
 also appointed executors ; and where the direction to P. and M. 
 was to sell, in case the testator's personal estate should fall short 
 in payment of all his debts, and to apply the money arising 
 therefrom, together with the money arising from his personal 
 estate, for the payment of all his debts {z) : real estate devised 
 by a will, in which the testator, after a direction for the payment 
 of his debts, devised the rest of his estates, real and personal, 
 after payment of his debts, and liable thereto, to trustees, 
 upon trust to sell and dispose of the same, the money to arise 
 from the sale thereof to be deemed part of his personal estate {a). 
 
 Where equitable assets have 
 consisted of — 
 
 Lands devised in trust to sell ; 
 the devise being- to O. and S. in 
 trust to sell, and the will appoint- 
 ing' O. and S. the only executors ; 
 
 Lands devised to executors for 
 the payment of the testator's debts ; 
 
 A Court of Equity has paid out 
 of these assets, or the money arising- 
 by a sale of them, — 
 
 Debts on bond and on simple 
 contract, equally (b). 
 
 First, " Judgments that did 
 affect the land without any such 
 devise," and then, pari 2}assn, 
 " Debts of all kinds, whether l)y 
 judg-ments, bonds, or simple con- 
 tract" (c). 
 
 (tv) Hall V. Kendall, Mos. 328. 
 
 (a:) Bailii v. PImighman, Mos. 95. 
 See also 2 P. VV. 416, and Challu v. 
 Casborn, Free. Ch. 407. 
 
 (y) Kent v. Craig, cited 2 Atk, 291 , 293. 
 
 (z) Silk V. Prime, 1 Bro. C. C. 138, n., 
 1 Dick. 384. 
 
 («) Batson V. Lindegreen, 2 Bro. C. C. 
 94, cited 7 Ves. 323. 
 
 (&) Hickson V. Witham, Cas. T. Finch, 
 195, 1 Freem. 305 ; Hixon v. Wylham, 
 S. C, 1 Ch. Cas. 248. 
 
 (c) Foly's case, 2 Freem. 49, 2 F-q. 
 Cas. Abr. 459. See Wilson v. Fielding,
 
 CH. XXVII.] OF EQUITABLE ASSETS. 
 
 Real estate devised in trust to 
 sell ; the devise being to A. and B. 
 and their heirs, in trust to sell, and 
 thereout, in the first place, to pay 
 the testator's debts ; and the will 
 appointing A. and B. executors ; 
 
 Certain closes, which a testator 
 willed that his executrix should 
 sell, to pay his del)ts; and the inter- 
 mediate rents of those closes or- 
 dered to be sold ; 
 
 Estates, which a testator desired 
 should be sold forthwith ; he also 
 directing that, after payment of 
 several sums of money, the remain- 
 der might be vested in his execu- 
 tors for the payment of his debts ; 
 a devise " tantamount to giving 
 the executor a power to sell, and 
 to apply the money to the payment 
 of debts " ; 
 
 Lands devised to trustees for 
 payment of debts : in a case, where 
 A., indebted to divers persons, had 
 conveyed his lands to the use of 
 himself for his life, and after to the 
 use of his will ; and where the trus- 
 tees themselves were creditors of 
 the testator, and bound with him 
 as his sureties ; 
 
 325 
 
 Simple contract and specialty 
 debts, pari passu (d). 
 
 Creditors, whether by specialty 
 or simple contract, pari passu (e). 
 
 Creditors by specialty which 
 bound the heir, by specialty which 
 did not bind the heir, and by sim- 
 ple contract, equally (y). 
 
 Debts, by specialty and without 
 specialty, equally ; the Court de- 
 claring " debts without specialty 
 are to be in the same condition, 
 and equally regarded, as debts by 
 specialty. And the conveyance to 
 the trustees, being themselves cre- 
 ditors, and sureties for A., doth 
 not give them any preference be- 
 fore others " {g). 
 
 10 Mod. 426, 2 Vern. 763, and Woll- 
 slencroft v. Long, 3 Ch. Rep. 12, 1 Ch. 
 Cas. 32, 2 Freem. 175. 
 
 (//) Lewin V. Okeley, 2 Atk. 50, cited 
 from Reg. B. in Silk v. Prime, 1 Bro. C. 
 C. 140, 1 Dick. 387. 
 
 (e) Barker v. Boucher, 1 Bro. C. C. 
 14U, n. 
 
 (f) Newton v. Bennet, 1 Bro. C. C. 
 135. 
 
 (g) A>wn., or Cell v. Adderlu, 2 Clu 
 Cas. 54, cited in Silk v. Prime, 1 Bro. 
 C. C. 138, n. See also on retainer by 
 trustees or executors, sureties for the 
 testator, Silk v. Prime, 1 Dick. 384.
 
 326 
 
 OP EQUITABLE ASSETS. 
 
 [CH. XXVII. 
 
 An equity of redemption of lands 
 mortgaged ; in a case, where a per- 
 son had mortgaged some parts of 
 his estate thrice over, each time 
 for near the full value, and by both 
 deed and will conveyed and settled 
 all his lands upon trustees for pay- 
 ment of his debts, and died indebted 
 by mortgages, and by judgments, 
 statutes, bond, and simple contract ; 
 
 An equity of redemption of real 
 estate, and which equity was de- 
 vised to trustees, in trust to be 
 sold for payment of debts ; 
 
 Real estate mortgaged, and de- 
 vised to trustees upon trust to 
 pay debts ; 
 
 An equity of redemption of real 
 estate ; and which equity a per- 
 son indebted by mortgages, judg- 
 ments, bonds, and simple con- 
 tracts, devised to trustees for a 
 term of years, upon trust for pay- 
 ment of his debts ; 
 
 First, the real securities, and 
 then debts by bond and simple 
 contract ; the Court ordering that 
 " the real securities should be first 
 satisfied, and then the debts by 
 bond and simple contract to be 
 paid in average ; for that any other 
 method in this case would become 
 impracticable" (^). 
 
 Judgment creditors, and certain 
 mortgagees, " according to the 
 priority of their several securi- 
 ties " (^). 
 
 " First, the mortgages, then 
 the judgments and recognizances 
 affecting the land, and then other 
 debts " (J) ; or, according to ano- 
 ther report of the case, " First, 
 mortgages, judgments and recog- 
 nizances that affected the land, 
 and then other debts " (k). 
 
 Judgment creditors before cre- 
 ditors by simple contract ; the 
 Court saying, " A judgment cre- 
 ditor has a right to redeem. Where 
 there is a mortgage, then a judg- 
 ment, and then a second mort- 
 gage, the judgment creditor may 
 redeem the first mortgage. The 
 directions must be given upon the 
 principle, that the judgment cre- 
 ditors are to be paid in the first 
 instance " (I). 
 
 (/i) Child y. Stephens, 1 Vern. 101. 
 
 (i) Symmes v. Symonds, 4 Bro. P. C. 
 ed. Toml. 328 ; Earl of Bristol v. Hurt' 
 gerfnrd, S. C, 2 Vern. 524. See 4 Ves. 
 541, 642. 
 
 (j) Bothomly v. Lord Fairfax, 1 P. W. 
 334. 
 
 (k) 2 Vera. 750. 
 
 (/) Sharpe v. The Earl of Scarborough, 
 4 Ves. 538.
 
 CH. XXVII.] OF EQUITABLE ASSETS, 027 
 
 Lands devised, part to he sold, First, mortgages and judgments, 
 
 and part to be mortgaged, for pay- 
 ment of debts ; 
 
 An equity of redemption of real 
 estate mortgaged in fee by a cestid 
 que tt'ust, who, subject to the pay- 
 ment of his debts, devised such 
 equity of redemption to his son 
 and heir at law in fee ; 
 
 An equity of redemption of free- 
 hold estates mortgaged, and which 
 estates were devised in fee, and by 
 the will charged with the payment 
 of debts ; 
 
 An equity of redemption of land, 
 by a testator mortgaged in fee, 
 and devised in trust to sell to pay 
 all his debts, the trustees being 
 also the executors of the will ; 
 
 An equity of redemption of a 
 term of years mortgaged by a tes- 
 tator possessed of it ; 
 
 An equity of redemption of a 
 term of years mortgaged by a tes- 
 tator possessed of it ; 
 
 and then, equally, debts by bond 
 and by simple contract (m). 
 
 First the mortgage debts, and 
 then debts by bond and by simple 
 contract pari passu (ii). 
 
 First the mortgages, and then 
 debts by bond and by simple con- 
 tract joarj jt>a**M (o). 
 
 Debts by bond and by simple 
 contract equally (^). 
 
 Debts by bond and by simple 
 contract equally (5'). 
 
 In the first place, the mortgage 
 debt, principal and interest; and 
 then bond and other debts pari 
 passu (r). 
 
 In a case, where a Court of Equity decreed simple contract 
 creditors to stand in the place of a mortgagee, against the mort- 
 gage land descended, a great part of the mortgage debt having 
 
 (m) Anon. 3 Salk. 83. 
 
 (n) Plunket v, Penson, 2 Atk. 290. 
 
 (o) Wride V. Clarke, 1 Dick. 382. 
 
 (p) Deg V. Beg, 2 P. W. 412. Ac- 
 cording to the report of this case, it is said 
 to have been there resolved, that the equity 
 of redemption must go among all the cre- 
 ditors equally, "forasmuch as a debt by 
 Juilgmeiit and a debt by simple contract 
 are in conscience equal." {Ibid. 41(j.) But 
 
 it is observable the case does not make 
 any other mention of a judgment debt, 
 and the bill was brought by bond and 
 simple contract creditors. 
 
 (9) Case of Creditors of Sir C. Cox, 3 
 P. W. 341, cited 1 Bro. C. C. 137, 4 
 Ves. 542, and 1 B. & C. 372. See 
 Barthrop v. West, 2 Ch. Rep. 62. 
 
 (r) Hartwell v. Chitlers, Ambl. 308, 
 cited 1 B. .k C. 372.
 
 328 OF EQUITABLE ASSETS. [CH. XXVII. 
 
 been by the executor paid out of the testator's personal estate, 
 the Court paid out of the land the simple contract debts, and a 
 debt by judgment, equally ; such judgment having been, by a 
 simple contract creditor of the testator, obtained after his death 
 against his executor (s). 
 
 In Vernon's Reports it is said, but whether by the Court, or 
 by the reporter only, does not clearly appear, that " where credi- 
 tors are plaintiffs, the usual decree is, that the debts shall be paid 
 in course of administration ; but that is to be intended of legal 
 assets, and not of assets in equity, that are not assets at law" (t). 
 And in Ambler it is said, but perhaps by the reporter only, 
 " The general direction in the decree, to apply the assets in a 
 course of administration, does not confine such application to a 
 legal course ; but it is to be taken distributively, and understood 
 of legal or equitable, according to the nature of the assets" (u). 
 
 (s) Wilson V. Fielding, 10 Mod. 426, 
 2 Vern. 763. See, also, on judgments ob- 
 tained after a testator's death, Eari of 
 
 Kiidare v. Kent, 2 Freeni. 253. 
 (<) SoUey V. Gower, 2 Vein. 61. 
 (m) Hartwell v. Chitlers, Ambl. 308.
 
 329 
 
 CHAPTER XXVIII. 
 
 OF MARSHALLING ASSETS («). 
 
 Sect. I. — Of the General Principles of Marslialliuy two Funds. 
 II. — Of Marshalling for Creditors. 
 III. — Of Marshallin// for Legatees. 
 
 IV. — Of Marshalling for a JVidotv, in respect of her 
 Paraphernalia. 
 
 SECTION I. 
 
 OF THE GENERAL PRINCIPLES OF MARSHALLING TWO FUNDS. 
 
 When there exist two funds, and two claimants against 
 tliem, and at law one of these parties may resort to eitlier fund 
 for satisfaction, but the other can come upon one only, the Courts 
 of Equity exercise the power to marshal, as it is termed, the two 
 funds, and by this means to aid the party, whose remedy is at 
 law confined to one of them (Z»). A general principle of this 
 interposition is, an equity, which arises from the circumstance, 
 that without such interference, he, who has the double fund to 
 resort to, possesses an unreasonable power to disappoint the right 
 of him, whose remedy lies against the single fund only (c). The 
 way in which the Court interposes is, sometimes to turn the person, 
 having the double security, upon that fund which is not liable to 
 the other person's demand, and so to leave to this person the 
 other fund open [d) ; or, if satisfaction has already been taken out 
 of this fund by him, who has the double security, then to decree 
 the other party to stand in his place, and to draw from the 
 
 (a) For instances of marshalling, and 
 which may not be noticed in tliis Chapter, 
 see Index, at word " Marshal,'' or " As- 
 sets." 
 
 {l>) Aldrich V. Cooper, 8 Yes. 382, 
 Loid Eldon's judgment throughout. 
 
 (c) 8 Ves. 389, 394, 393, 396, 397 ; 
 
 9 Ves. 211 ; 4 Russ. 338, 340. 
 
 ((0 1 Vern. 455 ; 10 Mod. 462 ; 2 
 Atk. 446; 3 Atk. 273; Amb. 615; 5 
 Ves. 361; 8 Ves. 389, 391, 395; 1 
 Russ. iSc M. 187. See also Povue's case, 
 2 Freem. 51.
 
 330 OF THE GENERAL PRINCIPLES, &C. [CH. XXVIII. 
 
 remaining fund as much as has been taken from the other {e). 
 And very commonly the Court suffers him, who can come against 
 either security, to exercise his legal right of election ; and then if 
 he resorts to the only fund against which the other party can 
 claim, this person is, as in the last mentioned instance, decreed to 
 receive satisfaction pro tanto out of the other fund if)' 
 
 When there exist two funds of assets, one of which consists 
 of legal personal assets, and the other of equitable assets, and 
 against these funds there are two claimants, namely, specialty 
 and simple contract creditors ; here, if the specialty creditors, by 
 the exercise of their right to first payment, exhaust the assets 
 which are legal, another description of marshalling takes place ; 
 for a Court of Equity, before it permits the specialty creditors to 
 be paid the surplus of their debts out of the equitable assets, 
 decrees the creditors by simple contract to draw from the latter 
 fund, a sum equal to the money taken from the legal assets by 
 the specialty creditors [g). This kind of marshalling has, it 
 seems, taken place, on the principle, that a testator intended each 
 fund to be equally shared by both kinds of creditors {h) ; or that 
 he " intended all his creditors should be equally paid their 
 debts" (f); and, at other times, on the broad principle, " that by 
 natural justice and conscience, all debts are equal, and the debtor 
 himself is equally bound to satisfy them all" (j ). 
 
 Lord Hardwicke, speaking of the rule of the Court of Chan- 
 cery as to marshalling assets, and directing simple contract credi- 
 tors to stand in the place of specialty creditors joro tanto to receive 
 satisfaction, says that this marshalling " must be as between the 
 real and personal assets of a person deceased ; for the Court has 
 no right to marshal the assets of a person alive; it not being 
 subject to such a jurisdiction of equity till the death" {k). It is 
 observable, however, that although technically the term " mar- 
 
 (e) 9 Mod, 151 ; 3 Atk. 369 ; 7 Ves. 
 209, 2\\; Cromwell W.Griffith, 1 Barnard. 
 207. 
 
 (/) Barn. Ch. Rep. 229 ; 3 Atk. 
 467 ; 1 Dick. 383. 
 
 (g) 2 P. W. 416, 417, 418 ; Cas.T. 
 Talb. 220; 2 Vern. 436 ; Free. Ch. 193; 
 
 2 Atk. 294 ; 1 Dick. 383, 384 ; 7 Bro. 
 P. C. ed. Toml. 583. 
 
 (/i) 2 P. W. 417, 418. 
 
 (0 3 P. W. 323. 
 
 0) Cas. T. Talb. 220. 
 
 (Ji) Lacam v. Mertins, 1 Ves. 312.
 
 S. II.] OF MARSHALLING ASSETS FOR CREDITORS. 331 
 
 shal" is not applied except to assets, yet a species of mar- 
 slialling ttikes place in other cases also, and may be applied to the 
 property of a person living (Z). And this application seems to 
 have been made in the following case before Lord Cowper : — 
 " S. having several young children, and being much in debt, con- 
 veyed part of his lands, in trust for the payment of his debts ; and, 
 by another deed, conveyed other part to trustees for the main- 
 tenance of his children. This last conveyance, being voluntary, 
 was declared void as to creditors, and still liable to their demands 
 as before ; but it was good against S. himself, and should bind him ; 
 and therefore if his creditors should fall upon those lands for a 
 satisfaction of their debts, and thereby strip the children of their 
 maintenance, the children should have a recompence out of the 
 residue of the estate, which S. had reserved to himself for his own 
 maintenance ; and compared it to the case, where creditors, that 
 have a lien upon the land, take their satisfaction out of the perso- 
 nal estate, which was liable to other creditors of an inferior 
 nature, who have no lien upon the land, these creditors in equity 
 shall stand in the place of the other creditors, who had a lien 
 upon the land, and have a satisfaction out of that in their stead. 
 This case is the same, for though the conveyance was voluntary 
 in the father, yet he is bound by nature to provide for his chil- 
 dren, and it is a sort of a debt" (m). 
 
 SECTION II. 
 
 OF MARSHALLING ASSETS FOR CREDITORS. 
 
 Of Marshalling — 1. For Simple Contract Creditors, where Creditors 
 by Specialty have taken the Personal Assets ; — 2. For Specialty or 
 Simple Contract Creditors ; or, as the Case may be, for both of 
 them ; — 3. For Creditors, lohere the Funds to be marshalled consist 
 of Legal and Equitable Assets. 
 1. In the case of a deceased person, who, at the time of his 
 
 death, is, within the meaning of the bankrupt laws, a trader, his 
 
 (/) Aldrich V. Cooper, 8 Ves. 388, I (m) Sneed v. Lord Culpepper, 7 Vin. 
 389, 394. I Abr, 52, 2 Eq. Cas. Abr. 255, 260.
 
 832 OF MARSHALLING ASSETS FOR CREDITORS. [CH. XXVIII. 
 
 real estate is made liable to satisfy his simple contract debts — by 
 the statute 11 Geo. IV. and 1 W. IV., c. 47, s. 9, if the debtor has 
 died since the 16th July, 1830, the time of the passing of it, and 
 by the statute 47 Geo. III., stat. 2, c. 74, if he died before that 
 time. But except where these statutes apply, and they relate, it is 
 seen, to certain traders only, the simple contract debts of a person 
 deceased are governed by the common law ; under which they 
 are not payable out of his real estate, which either descends from, 
 or is devised by him, and which he has not made by his will, or 
 otherwise, a fund for the payment of his simple contract debts {a). 
 
 On the death of a person, who is, or is not, a trader within the 
 bankrupt laws, his creditors by specialty, in which his heirs are 
 bound, are entitled to payment, by the common law, out of his 
 freehold land descended to his heir at law (o) ; and by the sta- 
 tutes 3 & 4 W. & M., c. 14 (p), and 11 Geo. IV. and 1 W. 
 IV. c. 47, s. 2, out of his freehold land of inheritance devised 
 by him ; that is, by the latter statute, if the debtor has died since 
 the passing of it, and by the former, if he died before that time. 
 And when the legal assets of the debtor consist of both land and 
 personal estate, such specialty creditors are, by the common law, 
 entitled to payment out of either of these funds : at law they 
 may, at their election, take their remedy against the heir, or 
 against the executor {(j). 
 
 Out of legal personal assets, specialty creditors enjoy, at law, 
 the right to be paid before creditors by simple contract (r). And 
 when an executor has made this payment, he is in equity indem- 
 nified in making it, although there is not enough left to satisfy 
 the simple contract creditors (s). It is plain, therefore, where the 
 assets consist of freehold land of inheritance, descended or de- 
 vised, and personal assets, creditors by specialty, in which the 
 debtor's heirs are bound, may, by the exercise of the right men- 
 
 (n) 4 Ves. 550 ; 8 Ves. 384, 389, 39 1 , 
 394 ; 12 Ves. 154. 
 
 (o) 2 Bl. Com, 243, 244, 340. 
 
 (p) Made perpetual by 6 and 7 Will. 
 Ill.c. 14. 
 
 ((/) Cupel's case, 1 Andeis. 7, IJenl. 
 
 ed. 1689, p. 96.-3 P. W. 333 ; 2 Atk. 
 426, 435 ; 3 Atk. 406 ; 2 Ves. 52 ; 1 
 Cox, 11:8 Ves. 394. 
 
 (»■) 7 B. 6: C. 452; 3 Salk. 83. 
 
 (s) 1 Barnard. Rep. 207.
 
 S. II.] OF MARSHALLING ASSETS FOR CREDITORS. 333 
 
 tioned, if there is a deficiency of the personal assets, eitlier ex- 
 haust them entirely, or so much that they may not leave suffi- 
 cient to pay the simple contract creditors in full. To relieve, 
 therefore, these creditors, the Courts of Equity marshal the real 
 and personal assets ; and they may, it seems, do this, by direct- 
 ing the specialty creditors, who have at law both kinds of assets 
 to resort to, to take satisfaction out of that fund, upon which the 
 simple contract creditors have at law no claim (t) ; in other words, 
 by making the real estate pay as mnca of the specialty debts, as 
 will be necessary to obtain a fund from the personal estate for pay- 
 ment of the simple contract creditors (?/). It has, however, been 
 said, — " Where there is a debt by judgment or statute, which 
 chargeth the real estate, there a Court of Equity cannot hinder 
 the creditor's coming upon the personal estate, because he hath 
 right so to do by law ; and it is not in the testator's power to take 
 that right away ; but there the other creditors have an equity to 
 charge the real estate, for so much as is taken out of the personal 
 estate, and may prefer a bill for that purpose" {v). But consi- 
 derable doubt seems to be thrown on the former part of this 
 doctrine, by a case, where " there being a debt owing to the 
 king, it was ordered that the king's debt should be satisfied out 
 of the real estate, that the other creditors might be let in to have 
 satisfaction of their debts out of the personal assets " (iv). And 
 the same doctrine appears to be directly contradicted by the opi- 
 nion expressed by Lord Macclesfield, that the Court may decree 
 " a judgment creditor who has his election at law, to resort for his 
 satisfaction to either real or personal estate, to make such an elec- 
 tion, as simple contract creditors may not be defrauded" (x). 
 Still it appears that, generally speaking, a Court of Equity does 
 not break in upon the legal privilege of specialty creditors to come 
 first against the personal estate ; and, on the contrary, allows them 
 to do this ; and merely empowers the simple contract creditors to 
 
 (0 1 Vern. 455; 10 Mod. 462; 2 
 Atk. 446 ; 3 Atk. 273 ; Ambl. 615 ; 8 
 Ves. 389, 391, 395. See also 3 Salk. 83. 
 
 (w) 5 Ves. 361 . 
 
 (y) Colchester v. Lord Stamfonl, 2 
 
 Freem. 124. See Kearnan v. Fitz-Simon, 
 3 Rklgew. P.C. 1. 
 
 (u) Sagitaryv. Hyde, 1 Vern. 455. 
 
 (x) Mills V. Eden, 10 Mod. 489.
 
 334 OF MARSHALLING ASSETS FOR CREDITORS. [ciI.XXVIII. 
 
 take, from the real estate, a sum equal to tlie money, which the 
 specialty creditors have drawn from the personalty (?/). 
 
 A Court of Equity has marshalled assets, and decreed credi- 
 tors by simple contract to stand in the place of specialty creditors, 
 paid or to be paid out of personal estate, and to receive a satis- 
 faction fro tanto out of real estate, in the instances, amongst 
 others (2), where the Court has decreed simple contract creditors of 
 a testator to receive satisfaction,— out of freehold property de- 
 vised («) : out of real estate specifically devised, and not by the 
 will charged with the testator's debts {h) '. out of real estate de- 
 vised to the testator's eldest son and heir at law (c) : out of money 
 arising from the sales, directed by the Court, of an advowson in 
 p-ross descended, and of freehold estates in fee, and leasehold 
 estates -pur auter vie, devised {d) : out of freehold estates pur- 
 chased by the testator after the making of his will, and descended 
 to his heir at law (e). 
 
 When simple contract creditors are so decreed to stand in the 
 place of a specialty creditor of a person deceased, the special 
 contract binds the heirs of this person, and consequently such 
 specialty creditor has two funds to resort to. But when in a special 
 contract, as in a bond, the heirs are not so bound, this contract 
 will not, at law, affect the real assets, and the specialty creditor 
 can resort to one fund only, namely, the personal estate. In a 
 ease of this kind there is no marshalling ; " as there are not two 
 funds, and therefore no one is disappointed by the option of ano- 
 ther" {/). The Court cannot. Lord Hardwicke says, "extend 
 this relief to creditors further than the nature of the contract will 
 
 (1/) 9 Mod. 151 ; Barn. Ch. Rep. 
 229, 304 ; 2 Atk. 436 ; 3 Atk. 467 ; 
 1 Ves. 312 ; 1 Dick. 253. 
 
 (s) Charles v. Andrews, 9 Mod. 151 ; 
 Vernon v. Vawdreii, Bara. Ch. Rep. 
 280, 304, 2 Atk. 119. Kinaston, or Ky- 
 nasum, v. Clark, 2 Atk. 204, 206, and 
 stated from MS. 2 Cruise Dig. 2nd ed. 
 447 ; Lacam v. Mertins, 1 Ves, 312 ; 
 Cox V. Bateman, 2 Ves. 19 ; Gibbs v. 
 Ougier, 12 Ves. 413 ; Bridgen v. Lan- 
 
 der, 3 Russ. 346, n. See also Sanderson 
 V. Wharton, 8 Price, 680. 
 
 (a) Snelson v. Corbet, 3 Atk. 369. 
 
 (/)) Powell V. Robins, 7 Ves. 209. 
 
 (c) Scott V. Scott, 1 Eden, 458, Ambl. 
 ed. Blunt, 383, and n. (2). 
 
 (d) Westfaling v. Westfalhig, 3 Atk. 
 460, 467. 
 
 (e) Wride v. Clarke, 1 Dick. 382. 
 (/) 8 Ves. 389 ; 2 Bro. C. C. 107.
 
 S. II.] OV MARSHALLING ASSETS FOR CREDITORS. 335 
 
 support it ; therefore it must be a specialty creditor of the person 
 whose assets are in question ; such as might have remedy against 
 both real and personal, or either, of the debtor deceased ; it not 
 being every specialty creditor, in whose place the simple contract 
 creditors can come to affect the real assets, viz. where the spe- 
 cialty creditor himself cannot affect the assets, as where the heirs 
 are not bound" (/z). 
 
 In Neave v. Aldcrton, a person died intestate, indebted in 1 00/. 
 by bond, in which his heirs were bound, and to the plaintiff in 
 45L, by simple contract, and did not leave personal assets suffi- 
 cient to pay his debts. The defendant was his son and heir, and 
 had real assets, by descent, of the value of 100/., and he took 
 out administration to his father. And he having paid the debt by 
 bond out of the real assets, the simple contract debt was decreed 
 to be paid out of the personal assets (A). In Wilson v. Fielding, 
 an executrix, who had confessed judgment to a mortgagee, on 
 his mortgage bond, applied part of the personal assets in paying 
 off the mortgage. The plaintiff, W., who was a creditor by 
 simple contract, brought an action against the executrix, who 
 pleaded plene administravit, and he took judgment of assets, 
 quando acciderint. W., and the simple contract creditors of the 
 testator, being decreed to stand in the place of the mortgagee, 
 and to be paid by the testator's heir at law, to whom the mortgaged 
 land descended, and it being made a question, whether W., by 
 virtue of his judgment, was to be preferred to the other creditors 
 in payment, it was adjudged, that, W. being only relievable in 
 equity, all the creditors should be paid in proportion. The com- 
 pelling the heir to refund is a matter, it was said, purely in 
 equity {i). 
 
 2. In Gifford v. Manley, where an instrument under hand and 
 seal created a specialty debt, to affect the executor only, and not 
 the heir, it was decreed that such specialty creditor " should 
 stand in the room of such other creditors as had been satisfied out 
 of the personal estate, in case of deficiency " {j). And in Porey v. 
 
 (^) Lacam\. Merlins, 1 Ves. 312. 1 \i) 2 Vern. 763, 10 Mod. 426. 
 
 (/i) 1 Eq. Cas. Abr, 144. I (.;) Cas. T. Talb. 109. That a con-
 
 336 OF MARSHALLING ASSETS FOR CREDITORS. [CII. XXVIII. 
 
 Marshy where T., a judgment creditor, liad exhausted the per- 
 sonal estate of a testator, the Court inclined, it is said, to relieve 
 creditors by bond. These bonds did not, it is presumed, bind 
 the heir of the testator; and the creditors prayed to have the 
 benefit of T.'s security, or judgment, to follow the land {k). In 
 Lanoy v. Tlie Duke of Athol, where, under certain marriage 
 settlements, a widow was entitled to a jointure, and a daughter 
 to a portion, and the husband covenanted to pay the join- 
 ture, and by his will gave the residue of his estate, real and 
 personal, (after paying his debts,) to his wife, whom he appointed 
 sole executrix ; and in which case the Court directed the settled 
 estates to be sold, and the purchase money to be applied to pay, 
 first the jointure, and afterwards the portion ; the Court decreed, 
 that if the money arising by the sale should not be sufficient to 
 answer the portion, then the plaintiff (the daughter) was to stand 
 in the place of the defendant (the jointress), to have the benefit 
 of the covenant for payment of the jointure, and by virtue thereof 
 to receive satisfaction for the deficiency of her portion out of the 
 personal estate of her father ; and if the personal estate should 
 prove deficient, then out of the freehold and copyhold estate 
 devised by the will for payment of debts (/). In Aldrich v. Cooper, 
 the effect of a mortgage deed was to give the mortgagee a legal 
 estate in freehold, and an equitable estate in copyhold land, and 
 thereby to give him recourse to two funds for the payment of his 
 debt (m). The mortgagor died intestate. His widow took out 
 administration, and out of the personal estate paid to the mort- 
 gagee 767/., in part of the mortgage, and of two bonds by the 
 intestate to the mortgagee. The personal estate being exhausted, 
 the question seems to have arisen, wliether the intestate's credi- 
 tors by simple contract were entitled to stand in the place of 
 the mortgagee, in respect of what he had drawn from the per- 
 sonal estate, against the copyhold as well as the freehold estate. 
 
 tractmay be by specialty, though it does not 
 affect real estate, as a bond not mention- 
 ing heirs, see also 1 Ves. 312, and 8 
 Ves. 389. 
 
 (k) 2 Vern. 182. iiee Kearnanw, Fitz- 
 
 Siinon, 3 Ridgevv. P. C. 1. 
 
 (/) 2 Atk. ed. Sand. 444, n. (1). La 
 Noy V. Duchess of Athol, S. C, 9 Mod. 
 5th ed. 398. 
 
 (m) 8 Ves. 392.
 
 S. II.] OF MARSHALLING ASSETS FOR CREDITORS. 337 
 
 And Lord Eldon decided, that " If it is necessary for tlie pay- 
 ment of the creditors, that the mortgagee shoukl be compelled 
 to take his satisfaction out of the copyhold estate ; if he takes it 
 out of the freehold, those, who are thereby disappointed, must 
 stand in his place as to the copyhold estate (w). In Gwynne v. 
 Edwards^ a debt was secured by a mortgage of freehold land, and 
 by a subsequent mortgage of copyholds. A suit being instituted 
 by creditors for the administration of the mortgagor's estate, and 
 his personalty having been exhausted, his freehold property was 
 sold under the direction of the Court, and out of the purchase money 
 the mortgagee was, by an order of the Court, paid his debt. And 
 the residue of the proceeds of the sale being insufficient for the 
 payment of the specialty creditors, Lord Gilford stated, that this 
 case was governed by Aldrich \. Cooper^ and decided, that the 
 specialty creditors w^ere entitled to have raised, by sale of the 
 copyholds, the sum which the mortgagee received out of the 
 freeholds [o). In Selby v. Selhy, a person, having contracted for 
 the purchase of tithes, devised them by his will, and died before 
 the sale was completed. After his death, the purchase money 
 was paid out of his personal estate ; and this estate being insuf- 
 ficient to pay his simple contract debts also, the Court decreed 
 those creditors to stand, as against the devisees, in the place of 
 the vendor, and, in respect of the lien which the vendor had on 
 the tithes, to receive satisfaction out of this real fund (7;). 
 
 3. When assets consist of legal personal assets, and equitable 
 assets, distributable equally among creditors by specialty and by 
 simple contract, then, at law, the legal assets are applicable to 
 pay the whole of the specialty debts, before the debts by simple 
 contract (g'). And this legal right the Courts of Equity do not 
 take from the specialty creditors {r). If, however, the debts of 
 these creditors, who have so taken the legal assets, are not by 
 that fund wholly satisfied, and, to obtain payment of the surplus, 
 
 (n) 8 Ves. 382 ; which case overrules 
 Hobinson v. Tonge, 1 P. W. 5th ed. 
 68f1, n. 
 
 (o) 2 Russ. 289, n. 
 
 Z 
 
 (p) 4 Russ. 336. 
 (q) 3 Salk. 83 ; 7 B. & C. 452. 
 (r) 2 P. W. 416 ; AJos. 95 ; Cas. T. 
 Talb.220; 1 Barnard. Pep. 207.
 
 338 OF MARSHALLING ASSETS FOR CREDITORS. [CH. XXVIII. 
 
 they resort to the assets which are equitable, in this case a Court 
 of Equity interposes, and before it permits the specialty creditors 
 to touch this fund, allows the creditors by simple contract to take 
 from the equitable assets, a sum equal to the money, which the 
 specialty creditors have drawn from the assets, which are legal (.9). 
 A decree of this nature is expressed in these or the like terms : 
 " If any of the creditors by specialty have exhausted any part 
 of the testator's personal estate, in satisfaction of their debts, then 
 they are not to come upon, or receive any farther satisfaction out 
 of, the testator's real estate, until the other creditors shall thereout 
 be made up equal to them"(#). If the share so extracted by 
 the simple contract creditors is not sufficient to pay their debts, 
 then the effect of this interference of equity is, to oblige the 
 specialty creditors to bring into hotchpot the personal estate, 
 which they have exhausted (u). 
 
 In the case of specialty and simple contract creditors, a Court 
 of Equity has, in the manner mentioned, marshalled legal and 
 equitable assets, in the instances, amongst others (v), where the 
 assets, which were equitable, consisted — of an equity of redemp- 
 tion of land, and which equity was devised to trustees (who 
 were also executors), in trust to sell to pay debts (?y) : of real 
 estate devised to executors, in trust for the payment of debts (x) : 
 of lands devised to trustees to pay all the testator's debts (3/) : 
 of certain real estates, which the testator empowered his execu- 
 tors to sell, and whom he authorised to apply the money to 
 the payment of debts (z) : of an equity of redemption of a mort- 
 gage in fee, made by a cestui que trust of a real estate, and which 
 equity the mortgagor devised to his son and heir at law in fee, 
 subject to the payment of his debts (a) : of real estate, which was 
 
 (s) Cas, T. Talb. 220 ; 2 Vern. 436 ; 
 Prec. Ch, 193; 7 Bro. P. C. ed. Toml. 
 583. 
 
 (f) 2Atk. 294. 
 
 (u) Deg V, Deg, 2 P. W. 416, 417, 
 418. 
 
 (v) Case of Creditors of Sir C. Cox, 3 
 P.W. 5th ed. 341, and 344, n. (2) ; Low- 
 hiati V. Hassel, 4 Bro. C. C. 167 ; Kidncp 
 
 V. Coiissmaker, 7 Bro. P. C. ed. Toml. 
 573, 583. 
 
 (w) Deg V. Deg, 2 P. W. 412, cited 
 Mos. 95, 124, 329. 
 
 (x) Baily V. Ploughman, ]\los. 95. 
 
 (y) Haslewood v. Pope, 3 P. W. 323. 
 
 (:) Neivton v. Bennet, 1 Bro. C. C. 
 135. 
 
 (a) Plunhet v. Peufon, 2 Atk. 290.
 
 S. II.] or MARSHALLING ASSETS FOR CREDITORS. 339 
 
 mortgaged, and which the owner charged by his will with the 
 payment of his debts, and, subject thereto, devised to his wife in 
 fee {b) : of real estate devised, and charged by the will with the 
 payment of debts (c). 
 
 One of the first instances, in which a Court of Equity has 
 marshalled legal and equitable assets, is Dec/ v. Der^ {d), where 
 Lord King affirmed a decree made by the Master of the Rolls ; 
 and where the equitable assets consisted of an equity of redemp- 
 tion devised in fee, in trust to sell to pay debts ; and the grounds 
 of Lord King's decision seem to have been, the circumstances, 
 that the testator " had connected together his real and personal 
 estate, with a view that all should go equally to pay his debts ; 
 and he might give his equitable assets in what manner, and upon 
 what terms, he pleased" (e). And in Car v. The Countess of Bur- 
 Ungton, a case which had occurred some years before, and where 
 the Earl of B., owing debts by bond and by simple contract, made 
 a lease of his lands to trustees, in trust to pay all the debts, 
 which he should owe at his death, in just proportions, not pre- 
 ferring one person before another ; and the bond creditors had 
 been paid good part of their debts out of the Earl's personal 
 estate by his executors ; Lord Harcourt refused to marshal the 
 legal and equitable assets ; and for the reason, it seems, that the 
 Earl did not intend each fund to be equally shared by both kinds 
 of creditors ; his Lordship saying — " The bond creditors may 
 still come in to be paid the remainder of their debts, in proportion 
 with the simple contract creditors ; for the law gives them the 
 fund of the personal estate, and the party, namely, the late 
 Earl, gives them the fund of the trust term ; and the clause, 
 that no debts shall have preference, must be intended only with 
 regard to their satisfaction out of the trust term" {f). 
 
 The interposition of equity to marshal legal and equitable 
 assets appears to be put by Lord Talbot, in Haslewood v. Pope^ 
 
 (b) Wridev. Clarice, IDick. 382. 
 
 (c) Bradford v. Foley, 3 Bro. C, C. 
 351, n. 
 
 (d) 2 P. W. 412, 416. 
 
 (e) 2 P. W. 417, 418. See also 1 P. 
 W. 228, 229. 
 
 (/) 1 P. W. 228 ; cited 2 Atk. 110, 
 Barn. Ch. Rep. 229, and 2 Ves. 364. 
 
 z2
 
 340 OF MARSHALLING ASSETS FOR LEGATEES. [CH. XXVIII. 
 
 on the principle, that by the devise of lands to trustees, in trust 
 to ])ay all the testator's debts, the testator " intended all his 
 creditors should be equally paid their debts" {g). And, on 
 anotlier occasion, the same learned judge places the interference 
 of equity in these cases on the broad principle, " that by natural 
 justice and conscience all debts are equal, and the debtor himself 
 is equally bound to satisfy them all" (h). 
 
 The doctrine of marshalling the legal and equitable assets of a 
 testator extends to postpone a specialty creditor, although he is 
 also executor of the will, and the equitable assets consist of real 
 estate devised to the executor, in trust for the payment of debts. 
 As executor, he may retain the personal estate against all credi- 
 tors of equal degree ; but if, to pay the surplus of his debt, he 
 comes upon the real estate, he must give way to the other credi- 
 tors, until they have received enough to make them equal with 
 himself (?■). 
 
 A case is thus reported — " Decreed by Somers, Lord Chan- 
 cellor, that where a real estate is, upon an equitable title, made 
 subject by this Court to the payment of debts, and it appears that 
 there is a sufficient legal estate, i. e. goods and chattels, to satisfy 
 debts upon specialties, for which the creditors may have remedy 
 at law against the executor ; in such case, the debts upon simple 
 contract, for which there is no remedy at law, shall be first satis- 
 fied out of the equitable estate" (j). 
 
 SECTION III. 
 
 OF MARSHALLING ASSETS FOR LEGATEES. 
 
 1. When Legacies are bequeathed out of Personalty onhj, and Real 
 Estate is henejicially devised, or descends. — 2. JVJien bequeathed 
 out of Personalty only, and a Debt secured by Mortgage of Real 
 Estate is paid out of the Personal Assets. — 3. When bequeathed out 
 
 (g) 3 P. W. 323. I ■ (i) Baily y.Vlonghman,Mos.9b. 
 
 (h) Morrice v. Bank of England, Cas. (j) Feverstone v. Scetle, 3 Salk. 83. 
 
 T. Talb. 220. '
 
 S. HI. 
 
 OF MARSHALLING ASSETS FOR LEGATEES. 
 
 341 
 
 of Personalty only^ and the jmrcliase-money of Real Estate, houyht 
 by the Testator, is paid out of his Personal Assets. — 4. IVhen hc- 
 (pieathed out of Personalty only, and the Will devises Ileal Estate in 
 trust for, or chajyes Real Estate iQith, the payment of Debts, includ- 
 ing Debts by Simple Contract. — 5. When some are bequeathed out of 
 Personalty only, and others are charged on, as an auxiliary fund, 
 Real Estate. — 6. JFhen,by the Death of the Legatee before the Time 
 of payment, the Legacy is sunk into Real Estate, charged, as an 
 auxiliary fund, ivith the payment of it. — 7. When a Legacy 
 bequeathed to charitable uses is void under the Statute 9 George II. 
 c. 36. 
 
 1. When a will contains a beneficial devise of freehold land, 
 and bequeaths general legacies, and the testator dies indebted by 
 bond or covenant, in which his heirs are bound, and the creditor 
 by bond or covenant is paid out of the testator's personal assets, 
 which assets are, after this payment, not sufficient to pay the lega- 
 cies bequeathed, a Court of Equity will not marshal the assets, 
 and pay the legacies out of the land devised (A). Nor, it 
 appears, will it so pay them, although the land is devised by a 
 residuary devise of the rest and residue of the testator's real 
 estate (/). But although in these cases equity will not, against 
 a devisee, marshal the assets, yet if freehold land descends to the 
 testator's heir at law, such heir is not so favoured, and against 
 him the Court will marshal the assets, and to the amount of the 
 personal estate, which, to pay the bond or covenant debts, is 
 taken from the legatees, will satisfy them out of the land de- 
 scended (m). This difference between a devise and descent 
 necessarily raises an important question, when the devise is to 
 the testator's heir at law. A material inquiry then is, whether 
 
 ijti) Hernev. Meyrick, 1 P. \Y. 201, 
 203, 2 Salk. 416, cited Cas. T. Talb. 
 54 ; Cliftoa v. Burt, 1 P. VV. 678 ; Hasle- 
 wood V. Pope, 3 P. W. 322, 324 ; Hanby 
 V. Roberts, Amb. 127, 1 Dick. 104 ; -For- 
 rester V. Lord Leigh, Amb. 171 ; bcutt v. 
 Scott, 1 Eden, 438, Amb. 383 ; Aldrich 
 V. Cooper, 8 Ves. 397. 
 
 (/) Keeling \. Broun, 5 \''es. 359. Yet 
 
 see 1 Dick. 105, and Amb. 129. 
 
 (m) Heme v. Meyrick. 1 P. W. 201, 
 202 ; Tipping v. Tipping, ib, 729 ; 
 Hanby v. Roberts, Amb. 127, 1 Dick. 
 104 ; Forrester v. Lord Leigh, Amb. 171, 
 174; Scott V, Scott, 1 Eden, 458, Amb. 
 383 ; Fenhoidhet v. Passavant, 1 Dick. 253. 
 See also Bowaman v. Reeve, Prcc. Ch. 
 577, and Lucy v. Gardener, Bunb. 137,
 
 342 OF IMARSHALLING ASSETS lOIl LEGATEES. [cH. XXVIII. 
 
 the heir takes by descent or purchase ; for if the former, the 
 legatees are, and if the latter, are not, entitled to stand in the 
 place of the specialty creditors, and come upon the real estate 
 devised (n). 
 
 On the payment of legacies, when there are both simple eon- 
 tract creditors and legatees, to stand in the place of creditors by 
 specialty, it was held in Fenhoulhet v. Passavant — " If specialty 
 creditors exhaust the personal estate, the simple contract cre- 
 ditors are to receive a satisfaction j)ro tanto out of the real assets 
 descended. And if the debts of the simple contract creditors 
 shall not amount to the whole of the personal estate, which the 
 specialty creditors shall so exhaust, the legatees are to stand in the 
 place of such specialty creditors, for the residue of what they shall 
 exhaust out of the personal estate, and are to be ^2i\^pari ■passiC^ (o). 
 
 2. An important distinction is to be noticed between a bond 
 debt and a debt secured by mortgage. For if lands of inheritance 
 are mortgaged, and the personal assets of the mortgagor are not 
 sufficient to pay both the mortgage debt, and also legacies 
 bequeathed by him, and the mortgage is paid off out of the 
 personal estate, then the assets will be marshalled, and the 
 legatees empowered to receive their legacies out of the mort- 
 gaged estate, not only when this estate has descended to the 
 mortgagor's heir at law (/>), but even when it is beneficially 
 devised by the will {q). The ground of this distinction, between 
 a bond and mortgage debt, is, that a bond is not a lien on real 
 estate, even in the testator's hands; but a mortgage is a lien on 
 it in the hands of the testator, and of either his heir at law or 
 devisee (r). 
 
 3. The general principle of marshalling assets being, that 
 when two parties have claims to be paid out of assets, and for 
 payment one party can resort to two funds, as real and personal 
 
 (n) Heme v. Meyrick, 1 P. W. 201 ; 
 Scott V. Scott, 1 Eden, 458. 
 
 (o) 1 Dick. 253. 
 
 (p) Anon., 2 Cli. Cas. 4. See also Cas. 
 T. Talb, 54 ; Tipping v. Tipping, 1 P.W. 
 730 ; and Robinson v. Gee, 1 Ves. 252. 
 
 (9) Liitkins V. Leigh, Cas. T. Talb. 53 ; 
 Forrester v. Lord Leigh, Amb. 171, 174 ; 
 Norris v. Norris, 2 Dick. 542 ; Norman 
 V. Morrell, 4 Ves. 769 ; Aldrich v. Cooper, 
 8 Ves. 397. 
 
 (0 Cas. T. Talb. 54; Ainb. 174,
 
 S. III.] OF MARSHALLING ASSETS FOR LEGATEES. 343 
 
 estate, and the other party but to one fund, as the personal estate 
 only, the former party is not permitted, by the exercise of his 
 choice over the funds, to disappoint the payment of the latter (a) ; 
 this principle seems to apply to the case of a vendor of real 
 estate, and a legatee, when the vendor has, for his purchase- 
 money, a lien on the estate sold to the testator, by whom the 
 legacy is bequeathed ; and the inclination of late authorities may 
 perhaps be stated to be, that if a vendor, entitled to be paid out 
 of the real estate sold, and also out of the purchaser's personal 
 assets, takes to the latter fund for payment, and a legacy given 
 by the purchaser is bequeathed out of his personal estate only, a 
 Court of Equity will, if necessary, marshal the assets, and pay 
 the legatee out of the purchased estate, in the hands of the heir 
 at law, if not of a devisee, of the purchaser (t). Yet against 
 the application of the general principle to this case of a vendor 
 and legatee, there is, it is not to be forgotten, a decision by Lord 
 King, in Coppin v. Coppin {u), and the opinion of Lord Hard- 
 wicke, in Pollexfen v. Moore {y). 
 
 4. When a person devises real estate, in trust for the pay- 
 ment of debts, including debts by simple contract, and, by the 
 will, or a codicil (?/;), bequeaths legacies, specific or general, and 
 the personal assets are so far exhausted by the payment of either 
 specialty or simple contract debts, as to break in upon the lega- 
 cies, the legatees are allowed to stand in the place of the specialty 
 or simple contract creditors, and, to the amount of the personalty 
 exhausted by the debts, to receive their legacies out of the estate 
 devised for the payment of debts {x). And the legatees are 
 entitled to be so paid, when the real estate is not devised in 
 trust to pay the debts, but is beneficially devised, and is only 
 charged with the payment of them [y). 
 
 (s) Aldrich v. Cooper, 8 Ves. 388, 396, 
 397; Trimmer v. Bayne, 9 Ves. 211 
 Lucyv. Gardener, Bunb, 137. 
 
 (f) Austen v. Halsey, 6 Ves. 475 
 Trimmer v. Bayne, 9 Ves. 211, 4 Russ. 
 339, n. ; Mackreth v. Symmons, 15 Ves 
 338, 344, 345; Heudley v. Readhead 
 Coop. 50 ; Selby v. Selby, 4 Russ. 336. See 
 
 Sugd. Vend. & P. 6th ed. 531—537, and 
 Coote on Mortg. 254—259. 
 
 (u) Sel.Ca.Ch. 28, 2 P.W. 291, cited 
 4 Russ. 338. 
 
 (v) 3 Atk. 272, cited 4 Russ. 338. 
 
 (tu) A^orman v. Morrell, 4 Ves. 769. 
 
 (r) Haslewood v. Pope, 3 P. W. 323. 
 
 (y) Hanby v. Roberts, Anib. 129, 1
 
 344 OF iMAHSHAI,LING ASSETS FOU LEGATEES. [CH. XXVllI. 
 
 It has been said by Lord Hardwieke, that, when a person be- 
 queaths a legacy, and by liis will charges his debts on his real 
 and personal estate, the rule is that the debts shall be paid out of 
 the real estate, and the legatee shall come on the personal ; and 
 that a Court of Equity will marshal the assets, not by way of 
 standing in the place of creditors, but by turning the debts on the 
 real estate. And his Lordship adds, that there is no rule that, 
 where real and personal estates are charged with the payment 
 of debts, and the residue of the personalty is given to a legatee 
 or children, the Court will in such case turn the charge on the 
 real, to give the whole personal estate to the legatee (z). 
 
 5. When, of legacies bequeathed by a will, or will and codicil, 
 some are charged on, as an auxiliary fund, real estate, and others 
 are not charged on it, and the personal assets are not sufficient 
 to pay all the legacies, a Court of Equity will marshal the assets ; 
 and if the legacies charged on the real estate are paid out of the 
 personalty, will, to the amount of the sum so taken out of the 
 personal estate, pay out of the real estate the legacies not charged 
 on it (a). In several cases of this kind, the legatees, whose lega- 
 cies were not charged on the real estate, have been held entitled 
 to be, before the other legatees, paid out of the personal estate, 
 and to oblige the legatees, whose legacies were charged on the 
 real estate, to resort to this estate for payment {b). 
 
 In Beynish v. Martin, a person devised all her real estate, 
 subject to such charges as should be in her will after expressed. 
 On a conAiiion precedent of marriage with consent, she bequeathed 
 a legacy to A., which legacy was not limited over on breach of the 
 condition ; and the testatrix charged all her real estate with all her 
 
 Dick, 106 ; Foiter v. Cook, 3 Bro. C.C. 
 347 ; Bradford v. Foley, and Webster v. 
 Alsop, i'). 351, n. ; Norman v, Morrell, 
 4 Ves. 769 ; Aldrich v. Cooper, 8 Ves. 
 397. 
 
 (s) Arnold v. Chapman, 1 Ves. 110. 
 
 (a) Hanhit v. lioberts, Amb. 127 ; 
 Hamly v. Fisher, S. C, 1 Dick. 104 ; 
 Bligh V. Earl nfDarnlei], 1 P.W.619. See 
 
 also Iroinnoiiger v. Lussells, 1 West Cas. 
 T. Hardw. 143. 
 
 (h) Hiidev. Hyde, 3 Ch. Rep. 155, 
 160 ; Colchester v. Lord Stamford, 2 Freem. 
 124 ; Grise v. Goodwin, ib. 264 ; Mas- 
 ters V. Masters, 1 P. W. 421 ; Bligh v. 
 Earl ofDarnley, 2 P. W. 619 ; Norman 
 V. Morrell, 4 Ves. 769; Bonner v. Botiner, 
 13 Ves. 379. See Foy v. Foy, 1 Cox, 163.
 
 S. in.] OF MARSHALLING ASSETS FOU LEGATEES. 345 
 
 debts and legacies. A. married without the consent required ; and 
 Lord Hardwicke (and, it seems, the Master of the Rolls also) was 
 of opinion, that the legacy, depending- on a condition ]jrecedent, 
 never vested^ so far as respects the real estate ; but the lands not 
 being originally charged, but only liable to be so on performance 
 of the condition, that this case must be considered as a mere per- 
 sonal legacy. And as the testatrix's personal estate might be 
 exhausted by the payment of debts and other legacies, the next 
 question, his Lordship said, was, whether the Court could not 
 marshal the assets in such a manner, as to give the legatee a 
 remedy out of the real estate. And as the real estate was expressly 
 charged with the payment of all debts and legacies, and, by the 
 event which had happened, the legacy to A. fell out to be a 
 charge on the personalty only. Lord Hardwicke held, that the 
 legatee ought to stand in the place of such creditors or legatees, 
 as had received a satisfaction out of the personal assets ; and he 
 said that to order it so was the constant rule and practice of the 
 Court. His Lordship directed, that in case the personal estate 
 should be exhausted by the payment of debts, or other legacies, 
 the plaintiff (who was the husband and personal representative 
 of the legatee) should stand in the place of such creditors and 
 legatees, and receive a satisfaction pro tanto out of the real 
 estate (c). 
 
 6. When real estate is, as a fund auxiliary to the personal 
 assets, devised in trust for, or charged with, the payment of debts 
 and legacies, or legacies only, and a legacy is bequeathed to A., 
 to be paid at the age of twenty-one, and A. dies before that time, 
 and by which death the legacy becomes not payable out of the 
 real estate ; and there are not personal assets sufficient to pay all 
 the debts and legacies, or, as the case may be, legacies only; 
 then it appears a Court of Equity will not construe the legacy to 
 be charged on the personal estate only, and will accordingly not 
 marshal the assets, and first pay A.'s legacy out of the personal 
 estate, and by this means cause it to pass to A.'s personal repre- 
 
 (c) 3 Atk. 330, I Wils. 130, cited 3 Ves. 138.
 
 346 OF MARSHALLING ASSETS FOR LEGATEES. [CH. XXVIII. 
 
 sentative (d). From these cases, Reynish v. Martin, which has 
 just been iioticed, seems to be distinguishable by the circumstance, 
 that, in the latter case, the legacy was, by reason of the failure 
 of the condition precedent aimexed to it, construed to be a charge, 
 not on real estate, but on the testator's personalty only. 
 
 7. In this place is to be considered the subject of marshalling 
 assets in favour of a bequest to charitable uses: 1. By paying 
 debts or legacies out of real estate ; and 2. By paying them out 
 of leaseholds for years, or mortgage-money, or certain other 
 kinds of property. 
 
 1. The statute 9 Geo. II., c. 36, enacts, 
 
 " That no manors, lands, tenements, rents, advowsons, or 
 other hereditaments, corporeal or incorporeal, whatsoever, nor any 
 sum or sums of money, goods, chattels, stocks in the public 
 funds, securities for money, or any other personal estate whatso- 
 ever, to be laid out or disposed of in the purchase of any lands, 
 tenements, or hereditaments, shall be given, granted, aliened, 
 limited, released, transferred, assigned, or appointed, or any ways 
 conveyed or settled to or upon any person or persons, bodies 
 politic or corporate, or otherwise, for any estate or interest 
 whatsoever, or any ways charged or incumbered by any person 
 or persons whatsoever, in trust, or for the benefit of any chari- 
 table uses whatsoever; unless such gift, conveyance, appointment, 
 or settlement of any such lands, tenements, or hereditaments, 
 sum or sums of money, or personal estate (other than stocks in 
 the public funds) be and be made by deed indented, sealed, and 
 delivered in the presence of two or more credible witnesses, 
 twelve calendar months at least before the death of such donor 
 or grantor, (including the days of the execution and death,) and 
 be inrolled in his Majesty's High Court of Chancery within six 
 calendar months next after the execution thereof; and unless 
 such stocks be transferred in the public books, usually kept for 
 the transfer of stocks, six calendar months at least before the death 
 of such donor or grantor (including the days of the transfer and 
 
 (d) Prowse V. Abingdon, 1 Atk. 482, i 316; Orel v. Ord, 2 Dick. 439; Pearce 
 484, 486, 1 West Cas. T. Hardw. 312, | v. Loman, or Taylor, 3 Vcs. 135.
 
 S. III.] OF MARSHALLING ASSETS FOR LEGATEES. 347 
 
 death) ; and unless the same be made to take effect in possession 
 for the charitable use intended, immediately from the making 
 thereof, and be without any power of revocation, reservation, 
 trust, condition, limitation, clause, or agreement whatsoever, for 
 the benefit of the donor or grantor, or of any person or persons 
 claiming under him. 
 
 *' That all gifts, grants, conveyances, appointments, assurances, 
 transfers, and settlements whatsoever, of any lands, tenements, 
 or other hereditaments, or of any estate or interest therein, or 
 of any charge or incumbrance affecting, or to affect, any lands, 
 tenements, or hereditaments, or of any stock, money, goods, 
 chattels, or other personal estate, or securities for money, to be 
 laid out or disposed of in the purchase of any lands, tenements, 
 or hereditaments, or of any estate or interest therein, or of 
 any charge, or incumbrance affecting, or to affect, the same, to or 
 in trust for any charitable uses whatsoever, which shall at any 
 time from and after the 24th June, 1736, be made in any other 
 manner or form, than by this Act is directed and appointed, shall 
 be absolutely, and to all intents and purposes, null and void." 
 
 A legacy, which a person bequeaths to charitable uses, and 
 makes payable out of his personal estate, is valid {e). But a 
 legacy, given to charitable uses is, by the above statute, void, if 
 made payable out of real estate only, freehold or copyhold {f) ; 
 as if it is charged on real estate (^), or is charged on it by a 
 will, which bequeaths the legacy to the executors, and the residue 
 of the personal estate to the charity (A), or is given out of 
 the produce of a sale, which the testator directs to be made 
 of real estate {i). And when a legacy to charitable uses is 
 bequeathed out of personalty, and out of, as an auxiliary fund, 
 real estate, or the produce of real estate directed to be sold, this 
 legacy is void, so far as it is given out of the realty (j). 
 
 (e) Sorresby, or Soresby, v. Holiins, 
 9 Mod. 5th ed. 221, 2 Burn £. L. 7th ed. 
 556, and stated Amb. 211. 
 
 (/) Arnold v. Chapman, 1 Ves. 108, 
 cited 3 Barn. & Aid. 150. See also 
 1 Ves. 225. 
 
 (g) 1 Ves. 110; Amb. 24, 25. 
 
 (/t) Ar-nold v. Chapman, 1 Ves. 108, 
 cited 17 Ves. 466. 
 
 (i) Foster v. Blagden, Amb. 704 ; 
 Hilly ard v. Taylor, ib. 713. 
 
 (j) Attorney General v. Lord Wey-
 
 348 OF MARSHALLING ASSETS FOR LEGATEES. [CH. XXVIII. 
 
 A bequest of a residue of personal estate to charitable uses is 
 valid {k). But if a residue is made to consist of personalty, and 
 also of the ])roduce of real estate directed to be sold, the bequest 
 is void, so far as it affects this produce (Z). Where a residue of 
 personal estate has been bequeathed to charitable uses, a Court 
 of Equity has refused to marshal real and personal estate, and, by 
 throwing debts, or debts and legacies, on the real fund, to leave 
 the personalty clear for the charity, in instances where the real 
 fund was real estate descended to the testator's heir at law, 
 and charged by the will with debts, or debts and legacies; or 
 real estate devised in trust for, or charged with, the payment of 
 debts and legacies ; as, — in Arnold v. Chapman, where a testator 
 devised, " after payment of debts and legacies, the residue and 
 remainder of all his estate, freehold, copyhold, leasehold, plate, 
 rings, stock, &c., to the Governors of the Foundling Hospital, 
 and their successors for ever" (w) : in Mogcf v. Hodges, where a 
 testatrix " gave all her real estate in W. and M. to her executors, 
 in trust, at the end of five years after her decease, to sell the 
 same, and to apply the money arising from such sale, and the 
 rents in the meantime, to the uses in the will mentioned ; and 
 subjected her personal estate to the payment of her debts and 
 legacies; and, after some pecuniary legacies, declared her will, 
 that all the residue of her personal estate, and of that money that 
 should be raised by sale of her real, should be disposed of to such 
 charitable uses as her executors should think fit, desiring them to 
 have regard to the Infirmary at Bath, for the disposition of some 
 part thereof" (??) : in Foster v. Blagden, where a testatrix devised 
 her real and personal estate, after payment of her debts, to the 
 .plaintiffs, in trust to dispose thereof, and directed of this trust 
 money 500/. to be paid to the Corporation of the Sons of the 
 Clergy, and the residue to Christ's Hospital (o). And on the 
 
 mouth, Amb. 20, cited 1 Cox, 12 ; Carrie 
 V. Fye, 17 Ves. 462. 
 
 (fc) Mogg V. Hodges, 1 Cox 12, 13, 
 2 Ves. 52 ; Grimmett v. Grimmett, Amb. 
 210, 1 Dick. 251. 
 
 (0 ^iogg V. Hodges, 1 Cox, 9, 2 Ves. 
 
 52 ; Attorney General v. Lord Weymouth, 
 Amb. 20, 24, 25 ; Foster v. Blagden, 
 Amb. 704. 
 
 (»«) 1 Ves. 108. 
 
 (n) 1 Cox, 9, 2 Ves. 52. 
 
 (o) Amb. 704, and ed. Blunt, n. (2).
 
 S. III.] OF MARSHALLING ASSETS FOR LEGATEES. 049 
 
 authority of Fostc?- v. Blaz/dm, Lord Bathurst, in Hilhjard v. 
 Taylor^ reversed a decree made in this cause by Sir T. Clarke (/>). 
 But formerly, it appears, a distinction was made between a 
 residue and a Icr/actj. For when a person bequeathed a legacy 
 out of personal estate to charitable uses, and bequeathed other 
 legacies out of his personal estate, and, in aid of the personalty, 
 devised real estate in trust for, or charged with, the payment of 
 debts and legacies ; in this case, there being two funds appli- 
 cable to pay the debts and legacies, a Court of Equity did marshal 
 the assets in favour of the charity, by throwing the other 
 legacies (</), or, as the case might be, both debts and legacies (r), 
 on the real estate. On more than one occasion Lord Hardwicke 
 stated, and in this doctrine Lord Northington, it should seem, 
 concurred (5), that "when there are general legacies, and the tes- 
 tator has charged his real estate with payment of all his legacies, 
 if the personal estate is not sufficient to pay the whole, the Court 
 has said the legacy to the charity should be paid out of the per- 
 sonal estate, and the rest out of the real estate, that the will of 
 the testator may be performed in toto" {t). And, accordingly. Lord 
 Hardwicke, by a decision, turned both debts and legacies on 
 the real estate (?<), And a like decision Lord Northington made 
 in a case, where he " decreed the charity legacies to stand in the 
 place of the specialty creditors, for what they should exhaust of 
 the personal estate" [v). These authorities are, however, contra- 
 dicted, and must, it appears, be considered to be overruled by 
 some later decisions, in which this doctrine of marshalling assets, 
 by paying debts or legacies out of real estate, is said to be wholly 
 exploded, as an evasion of the statute (?«). 
 
 2. A bequest to charitable uses is void under the statute, if 
 it is of a leasehold for years {x), bequeathed either speci- 
 
 (p) Arab. 713 ; Hilliard v. Taylor, 
 S. C, 2 Dick. 475. 
 
 (?) Amb. 158, 217 ; 2 Eden, 211. 
 
 (r) Amb. 25. 
 
 (s) 2 Eden, 211. 
 
 (t) Amb. 158, 217. 
 
 (m) Attorney General, or James, v. Lord 
 Weymouth, Amb. 20, 25, cited 1 Cox, 12, 
 
 and 2 Ves. 52. 
 
 (v) Attorney General v. hard Mount- 
 morris, I Dick. 379. 
 
 (u)) Foy V. Foy, 1 Cox, 163 ; Ridges 
 V. Morrison, ib. 180 ; Makeham v. Hooper, 
 4 Bro.C. C.153. 
 
 (x) Attorney General v. Tyndall, 2 
 Eden, 207, Amb. 614 ; Shanley\. Baker,
 
 350 OF MARSHALLING ASSETS FOR LEGATEES. [CH. XXVIII. 
 
 fically (?/), or by a residuary clause, which bequeaths it either by 
 name (z), or under a general description of tlie testator's per- 
 sonal estate (a). A bequest to charitable uses is also void, when 
 made by a mortgagee of the mortgage money (b), his estate being 
 in fee (c), or for years {d). And a bequest to chai'itable uses is 
 likewise void, when made of several other kinds of property (e) ; 
 and has been held to be void in the instances of bonds of the com- 
 missioners of a turnpike (f), of money secured by a mortgage 
 of turnpike tolls {(/), and of money lent on the security of poor 
 rates and county rates (h). 
 
 In Attorney General v. Graves, where a residue of personal 
 estate was bequeathed to a charity, and in the residue a lease- 
 hold for years was by name included. Lord Hardwicke decreed, 
 that this leasehold was to be considered as part of the personal 
 estate undisposed of, and that the same was, in the first place, 
 applicable to the payment of the testator's debts and funeral 
 expenses, and that the residue of such leasehold belonged to the 
 testator's next of kin {i). Also, in Attorney General v. Tumkins, 
 where a residue of personal estate was bequeathed to a charity, 
 and under the general description of personal estate was included 
 a leasehold for years. Lord Hardwicke made the like decision ; 
 observing, that the leasehold shall be " first applied to payment 
 of the debts and legacies, as a real estate descending would be 
 before that part that is devised " ; and decreeing that the lease- 
 hold ought to be considered as personal estate undisposed of. 
 
 4 Ves. 732 ; Paice \i . Archbishop of Can- 
 terbury, 14 Ves. 368 ; Currie v. Pye, 17 
 Ves. 462 ; Johnston v. Swann, 3 Madd.457. 
 
 (y) Negvs v. Conker, Amb. ed. Blunt, 
 367, & 368, n. (2), 1 Dick. 326. 
 
 (s) Attorney General v. Graves, Amb. 
 ed. Blunt, 155, and 158, n. (3). 
 
 (a) Attorney General v. Tomkins, Amb. 
 216, 2 Kenyon, pt, 2, p. 129. 
 
 (fc) Attorney General v. Martin, stated 
 3 Bro. C. C. 377; Pickering v. Lord 
 Stamford, 2 Ves. jun. 272, 581, 4 Bro. C 
 C. 214; White v. Evans, 4 Ves. 21 ; 
 Howse V. Chapman, ibid, 542 ; Paice v. 
 
 Archbishop of Canterbury , 14 Ves. 368 ; 
 Currie v. Pye, 17 Ves. 462 ; Johnston v. 
 Swann, 3 Madd. 457, 
 
 (c) Attorney General v. Meyrick, 2Ves. 
 44. 
 
 (d) Attorney General v. Caldwell, 
 Amb. 635. 
 
 (e) Howse v. Chapman, 4 Ves. 542. 
 (/) Howse V. Chapman, 4 Ves. 542. 
 (g) Knapp V. Williams, 4 Ves. 430. 
 
 See also 10 Ves. 44. 
 
 (/i) Finch V. Squire, 10 Ves. 41. 
 
 (0 Amb. ed. Blunt, 155, and 158, 
 n. (3).
 
 S. III.] OF MARSHALLING ASSETS FOR LEGATEES. .351 
 
 and to be first applied towards payment of the testator's debts, 
 funeral expenses, and pecuniary legacies ( ;). A like decision 
 was made by Sir Thomas Clarke, in Netjus v. Coulter [k) ; and, 
 where a testatrix bequeathed all her leasehold estates to chari- 
 table uses, and gave the residue of her estate to the same uses, 
 " to such uses, intents, and purposes, as aforesaid ", by Sir 
 Thomas Clarke, in Attorney General v. Tyndall {I) ; and, where a 
 mortgage passed by a residuary bequest in the will of the mort- 
 gagee, by Sir Thomas Sewell, in Attorney General v. Caldwell {m), 
 and Attorney General \. Martin [n). 
 
 This doctrine, however, of marshalling assets, in the case of 
 leaseholds for years, or mortgage money, bequeathed to a charity, 
 appears to be overruled by several later decisions. It was, 
 perhaps, first shaken by Lord Northington's opinion, expressed 
 in Attorney General v. Tyndall, where his Lordship reversed the 
 decree of Sir Thomas Clarke i although there, it is observable, 
 the reversal did not take place on the point of marshalling only ; 
 for Lord Northington decided, not only that the specific bequest 
 of the leasehold for years was void, but that the bequest of the 
 residue was itself likewise void (o) ; and consequently there was, 
 under these circumstances, no room left for marshalling. Lord 
 HardAvicke's principles of marshalling, in the case of leaseholds 
 for years, or mortgage money, bequeathed to a charity, seem to 
 liave been, that the property was undisposed of, and belonged to 
 the testator's next of kin ; and, as assets applicable to the pay- 
 ment of debts and legacies, resembled land descended to a 
 testator's heir at law, and which land Lord Hardwicke took, in 
 Gallon V. Hancock (p), to pay a debt secured by mortgage of 
 lands devised {q). It may be doubted if these principles occurred 
 to Lord Northington, in Attorney General v. Tyndal, where his 
 Lordship said he did not understand the marshalling of one 
 
 {j) Arab. ed. Blunt, 216, and 218, 
 n. (5), cited 1 Dick. 327. 
 
 (fc) 1 Dick. 326, Arab. ed. Blunt, 
 367, and 368, n. (2). 
 
 (0 2 Eden, 207, Amb. 614. 
 
 (m) Amb. ed. Blunt, 635, and 636, 
 
 n. (5). 
 
 (n) Stated 3 Bio. C. C. 377. 
 (o) 2 Eden, 207, Amb. 614. 
 (p) 2 Atk. 430. 
 (g) Amb. 217, 218.
 
 352 OF MARSHALLING ASSETS FOR LEGATEES. [CH. XXVIII. 
 
 fund (r). It is clear that Lord Hard wi eke saw two funds ; 
 namely, the property undisposed of, and the residue (s). 
 
 Sir T. Sewell's decree in Attorneij GcJieral v. Martin was, it 
 appears, reversed by Lord Thurlow [t). And the Court has refused 
 to marshal assets in Waller v. Childs, where a person devised all 
 his real and personal estate to trustees, upon trust to sell and pay 
 debts and legacies, and to place out the surplus money at interest, 
 and disposed of this surplus to charitable uses ; in which case part 
 of the personal estate consisted of leaseholds for years (u) : and 
 in Attorney General v. Hurst, or Earl of- Winchelsea, where a re- 
 sidue of personal estate was bequeathed to charitable uses, and 
 part of such residue consisted of mortgages (v). Li Attorney 
 General v. Earl of Winchelsea, Sir R. P. Arden, by whom the 
 decision was made, " conceived this case to stand upon the same 
 ground, as if the testator^ had specifically bequeathed his mort- 
 gages to one person, and the other part of his personal estate to 
 another. In such a case they should contribute to the payment 
 of the debts and legacies, rateably according to the amount of 
 what they took. The next of kin, in this case, he considered as 
 if he had been a legatee of the mortgages ; and therefore decreed 
 that the payment of the debts and legacies should be made out of 
 the mortgages, and out of the rest of the personal estate, rate- 
 ably according to the amount of each of them respectively" (ic). 
 It was in form declared, that the debts, legacies, and costs 
 of suit, ought to be paid out of the testator's general personal 
 estate, and out of the monies secured upon mortgage, or other 
 real securities, pro rata ; that the surplus of the personal estate, 
 exclusive of such part thereof as shall appear to have been se- 
 cured by mortgage (after bearing the proportion of the testator's 
 debts, &c.,) be applied for the several charitable purposes men- 
 tioned in the will ; and that one moiety of so much of the per- 
 sonal estate as shall have arisen from mortgages, or any other real 
 
 (r) 2 Eden, 211. 
 
 (s) Amb. 217, 218. See also the de- 
 cree in Attorney General v. Graves, Amb. 
 ed. Blunt, 157, n. (3). 
 
 (0 3Bro. C.C.378. 
 
 (m) Amb. 524. 
 
 iy) 2 Cox, 364, 3 Bro. C. C. 373. 
 
 (w) 3 Bro. C. C. ed. Belt. 380, n, (3).
 
 S. IV.] OF MARSHALLING ASSETS, &.C. .*350 
 
 securities, (after payment of debts,) dotli belong to 11. D., one of 
 the next of kin, and the other moiety to E. C, as the represen- 
 tative of the other next of kin (a). This apportionment of the 
 charges between the different funds has been followed in other 
 decisions {y). 
 
 The conclusion that must be drawn from the modern authori- 
 ties on marshalling assets for a charity, either by paying debts or 
 legacies out of real estate, or by paying them out of leaseholds 
 for years, or mortgage money, or certain other kinds of property, 
 appears to be, that a Court of Equity, in general cases, certainly 
 will not, and probably in no case will, marshal assets in favour of 
 either a residue or legacy bequeathed to charitable uses {z). Sir 
 Lloyd Kenyon, in Ridges v. Mo7'rison, said, that " whatever dif- 
 ference of opinion there might have formerly been upon the sub- 
 ject, he considered it to have been the estahlished law of the 
 Court, from Lord Northington's time, not to marshal or arrange 
 assets in favour of a charity" (a). And in Makeham v. Hoojjer, 
 it was, to the like effect, said by Lord Commissioner Ashhurst, 
 that " he thought they were bound by the recent cases, with re- 
 spect to the question of marshalling ; that it did not appear what 
 was the reason of the turn in the cases, but as the decisions 
 had taken that course, they could not alter them" (Z»). 
 
 SECTION IV. 
 
 OF MARSHALLING ASSETS FOR A WIDOW, IN RESPECT OF 
 HER PARAPHERNALIA. 
 
 After the death of a husband, his creditors cannot take, in 
 satisfaction of their debts, his widow's necessary apparel (c). 
 But, with this exception, a widow's paraphernalia are, as before 
 
 (i) 3 Bro. C. C. ed. Belt, 380, 381, 
 2 Cox, 366. 
 
 {y) Huwse v. Chapman, 4 Ves. 542 ; 
 Paice V. Archbishop of Canteiburii, 14 
 Ves. 364, 372 ; Cwr(Js v. Hutton, ib. 537, 
 
 (e) Middleion v. Spicer, 1 Bro. C. C. 
 
 201 ; Ridges v. Morrison, 1 Cox, 180. 
 
 (a) 1 Cox, 181. 
 
 (6) 4 Bro. C. C. 156. 
 
 (c) Noy's Max. ch. 49; 2 Bl. Com. 
 436; 2 Ves. 7. 
 
 A A
 
 354 OF MARSHALLING ASSETS FOR A WIDOW, [CH. XXVIII. 
 
 it has been seen(ri), subject to the payment of lier husband's 
 debts (e), as by recognizance (f), specialty (q), or simple con- 
 tract (/«)• Yet, to preserve paraphernalia for a widow, and to 
 empower her to retain them, or, if they have already been taken 
 by her husband's creditors, to compensate the widow for the loss 
 of them, a Court of Equity will marshal the husband's assets {i). 
 Where they had not been taken by the creditors, a Court of 
 Equity has preserved for the widow her paraphernalia, by turning 
 a creditor by covenant on real assets descended to the husband's 
 heir at law (j) ; and a creditor by recognizance on real estate de- 
 vised by the husband {k); and, in other instances, by turning cre- 
 ditors on the real estate, where the husband by his will subjected 
 his real and personal estate to the payment of his debts (Z), and, 
 in another case, where he by his will empowered his wife (whom 
 he made executrix) to raise, by mortgage of a particular real 
 estate, a sufficient sum of money for payment of his debts, in aid 
 of his personal estate, and bequeathed to his wife the use of her 
 jewels for her life (m). 
 
 When creditors have already taken paraphernalia in satisfac- 
 tion of their debts, a Court of Equity will compensate the widow 
 for this loss, in instances where the personal estate has been ex- 
 hausted by specialty creditors, by decreeing her to stand in their 
 place, and, to the value of the paraphernalia taken (w), to 
 receive satisfaction out of the real estate descended to the hus- 
 band's heir at law (o), and perhaps, also, but this point is not 
 
 (d) Chapter X. 
 
 (e) Viscountess Bhulon's case, Rio. 213, 
 216; Sttibbs v. Stuhbs, Cas. T. Finch, 
 415; Willsnn v. Pack, Prec. Ch. 295; 
 Burton v. Pierpoint, 2 P. W. 78 ; Nicho- 
 las V. Southwell, Mos. 177 ; Ridout v. 
 Earl of Plymouth, 2 Atk. 104 ; Lord 
 Townshend v. Windham, 2 Ves. I, 7. 
 
 (/) Tynt V. Tynt, 2 P. W. 542. 
 
 (g) Tipping V. Tipping, 1 P. W. 729; 
 Snelson v. Corbet, 3 Atk. 369. 
 
 (h) Wilhon V. Pack, Prec. Ch. 295 ; 
 Snelson v. Corbet, 3 Atk. 369. 
 
 (?) Northey v. Northey, 2 Atk. 78, 79 ; 
 
 Aldrich v. Cooper, 8 Ves. 397. 
 
 (J) Tipping V. Tipping, 1 P. W. 729. 
 
 (k) Tynt V. Tynt, 2 P. W. 542. 
 
 (i) Bingham v. Erneley, 2 Eq. Cas. 
 Abr. 250, in marg. 
 
 (?n) Boynton v. Parkhurst, 1 Bro. C. 
 C. 576 ; Boyntun v. Boyntun, S. C, I 
 Cox, 106. See Parker v. Harvey, 11 
 Vin. Abr. 181. 2 Eq. Cas. Abr. 627, 4 
 Bro. P. C. ed. Toml. 604. 
 
 (n) 2 Atk. 79; 3 Atk. 438. 
 
 (o) Probert v. Clifford, 1 West Cas. 
 T. Ilardw. 638, 2 P. VV. 5th ed. 544, n., 
 Amb. 6; Probert v. Morgan and Clifford,
 
 S. IV.] IN RESPECT OF HER PARAPHERNALIA. .*355 
 
 free from doubt, out of real estate devised by the husband, and 
 whieli he has not by the will devised in trust for, or charged with, 
 the payment of his debts (p). And in instances where the per- 
 sonal estate has been exhausted by either specialty or simple con- 
 tract creditors, the Court will decree the widow to stand in their 
 place, and to receive satisfaction for her paraphernalia out of real 
 estate, devised by the husband in trust for the payment of his 
 debts (q), or by his will charged with the payment of them (r). 
 
 S. C, 1 Atk. 440 ; Snelson v. Corbet, 3 
 Atk. 369. On a widow's title to satis- 
 factioD for paraphernalia out of assets 
 fallen in after the paraphernalia have 
 been applied to pay debts, see BiirUm v. 
 Pierpoint, 2 P. W. 78. 
 
 (p) Tynt V. Tynt, 2 P. W. 542 ; Pro- 
 
 hert V. Clifford, above ; Ridout v. Earl 
 of Plymouth, 2 Atk. 104; Aldrich v. 
 Cooper, 8 Ves. 397. 
 
 (</) Indedon v. Northcote, 3 Atk. 430, 
 438. 
 
 (r) 3 Atk. 438. 
 
 A A 2
 
 35G 
 
 CHAPTER XXIX. 
 
 OF EXONERATION OF REAL ESTATE. 
 
 Sect. I. — Of Exoneration of Land mortcjaged. 
 
 II. — Of Exoneration of Land charged ; where the Prin- 
 ciple, on which mortgaged Land is exonerated, 
 is inapplicable. 
 III. — Of Exoneration of Land devised, charged with 
 Debts or Legacies ; tvhere the Devisee gives a 
 Bond, or Pi-omissory Note, to pay a Debt or 
 Ljcgacy charged. 
 IV. — Of Exoneration of Land descended ; where a Bond 
 Debt is paid by the Heir. 
 
 SECTION I. 
 
 OF EXONERATION OF LAND MORTGAGED. 
 
 1. Of Exoneration out of the Assets of the oi'iginal Mortgagor. — 
 2. Of Exoneration out of the Assets of the Heir at Laiv, or De- 
 visee, of the origijial Mortgagor. — 3. Of Exoneration out of 
 the Assets of a Purchaser of the mortgaged Land. — 4. Of 
 Exoneration out of the Assets of one, whose Covenant to pay the 
 Mortgage Money is a Surety only for the Land. — 5. Of Exone- 
 ration out of the Assets of a Husband, who has mortgaged his 
 Wife's Estate. — 6. Of the Title of a Devisee of mortgaged Land 
 to Exoneration out of Freehold Land descended, or Land devised, 
 in trust for, or charged with, the payment of Debts. — 7. Of the 
 Title of a Devisee of mortgaged Land to contribution from other 
 Land devised. — 8. Of the Title of an Heir at Laic of mortgaged 
 Land to exoneration out of Real Estate, charged by the Ancestor's 
 Will with the payment of Debts. — 9. Miscellaneous Points of the 
 General Sid>jecf of Exoneration of mortgaged Land.
 
 S. I.] OF EXONERATION OF LAND MORTGAGED. 357 
 
 1. On a loan of money on mortgage, the mortgagor contracts 
 a debt; by specialty, if the mortgagor enters into a bond, or 
 covenant, to pay the money, and by simple contract, if there is 
 no such bond or covenant (a). The mortgage creates a debt, 
 and, in a Court of Equity, the land mortgaged is a pledge only 
 for the money borrowed (b). And because the loan creates a 
 debt, and the land mortgaged is a pledge only, the mortgagee is, 
 in equity, entitled to be paid the debt out of the personal assets 
 of the mortgagor, although the latter has not entered into a bond 
 or covenant for the payment of it (c). And for the same reasons, 
 because the loan creates a debt, and the land is a pledge only (d), 
 if a mortgage of land of inheritance is made, and the mortgagor 
 also gives a bond or covenant to pay the money borrowed, and 
 the land descends to his eldest son, or other immediate heir at 
 law, such heir is entitled to have the mortgaged land exonerated, 
 by payment of the debt out of the mortgagor's personal assets {e). 
 And, contrary to an old decision if), a devisee of such mort- 
 gagor is now held to be entitled to the same benefit (g). And 
 when there is no bond or covenant to pay the mortgage money, 
 and the debt is a simple contract debt, in this case also the money 
 
 (a) Waring v. Ward. 7 Ves. 336 ; 
 Aldrich V. Cooper, 8 Ves. 394 ; Ex parte 
 Earl Dighu, Jacob, 239. 
 
 (6) Bartholomew v. May, 1 Atk. 487 ; 
 Waring v. Ward, 7 Ves. 336. 
 
 (c) Cope V. Cnpe, 2 Salk. 449 ; Lloyd 
 V. Thursby, 9 Mod. 5th ed. 463, and 
 stated from MS. 2 Cruise Dig. 2nd ed. 
 163; Waring v. Ward, 7 Ves. 336. 
 
 (d) 1 Atk. 487 ; 7 Ves. 336. 
 
 (e) Cope V. Cope, 2 Salk. 449 ; Cornish 
 V. Mew, 1 Ch. Cas. 271 ; Anon. 2 Ch. 
 Cas. 4 ; Popley v. Popley, ib. 84 ; White 
 V. White, 2 Vern. 43, and 3rd ed. 44, n. 
 (2) ; Wood V. Fenuick, 1 Eq. Cas. Abr. 
 270 ; Evlyn v. Evlyn, Sel. Ca. Ch. 80 ; 
 Fox V. Fox, 1 West Cas. T. Hardw. 162, 
 1 Atk. 463 ; Hill v. Bishop of London, 
 1 Atk. 621 ; Galton v. Hancock, 2 Atk. 
 435; Waring v. Ward, 7 Ves. 336; 
 Noel V. Lord Henleu, Dan. 329. See 
 
 also Hardr. 512, and Lucey v. Bromley, 
 Fitzg. 41. 
 
 (/) Cornish v. Mew, 1 Ch, Cas. 271, 
 cited 2 Aik. 436. See also Lovel v. 
 Lancaster, 2 Vera. 183, cited 1 Atk. 
 487. 
 
 (g) Pockley v. Pockley, 1 Vern. 36 ; 
 Popley V. Popley, S. C, 2 Ch. Cas. 84 ; 
 Starting v. Drapers' Company, Cas. T. 
 Finch, 401 ; Johnson v. Milksojip, 2 Vern. 
 112; Anon. 2 Freem. 204, Ca. 278 b.; 
 Evlyn V. Evlyn, Sel. Ca. Ch. 80 ; Par- 
 sons V. Freeman, Ainb. 115 ; Bartholomew 
 V. May, 1 Atk. 487, 1 West Cas, T. 
 Hardw, 255 ; Galton v. Hancock, 2 Atk. 
 424, 426, 437 ; Philips v. Philips, 2 Bro. 
 C. C. 273; Hale v. Coi, 3 Bro. C. C. 
 322 ; Astley v. Earl of Tankerville, 3 
 Bro. C. C. 545; AW \. Lord Henley, 
 Dan. 329, 336.
 
 358 OF EXONERATION OF LAND MORTGAGED. [CH. XXIX. 
 
 is, for the benefit of a devisee (A), or heir at law, payable out of 
 the mortg-agor's personal assets (/). 
 
 But it is observable, that against this exoneration of the real 
 estate by payment of a mortgage debt out of the mortgagor's 
 personal assets, a Court of Equity will protect the other credi- 
 tors of the mortgagor (j) ; a legatee, to whom a specific legacy 
 is bequeathed by the mortgagor ; and (a point which, at a distant 
 period, was " not yet settled " {k),) a legatee, to whom a general 
 legacy of part of his personal estate is bequeathed by him (/) ; 
 and, farther, the mortgagor's widow's paraphernalia {7n). 
 
 But such exoneration is allowed, although it may wholly defeat 
 the claims of the next of kin of the mortgagor on his intes- 
 tacy («), or the customary or orphanage part by the custom of 
 London (o) ; and, perhaps it may be stated, notwithstanding it 
 may partly defeat a legacy of all the mortgagor's personal estate, 
 in a case where it does not appear to be the testator's intention to 
 bequeath this legacy specifically (p). And the same exoneration 
 is allowed, although contrary, it should seem, to a former deci- 
 sion (q), notwithstanding it may wholly defeat a residuary be- 
 quest in the mortgagor's will (/"). 
 
 (h) King V. King, 3 P. Vv". 358. 
 
 (0 Cope V. Cnipe, 2 Salk. 449; Hoiuell 
 V. Price, 1 P. W. 291, 2 Vern. 701, and 
 3rd ed.n. (4), Piec. Ch. 423, 477, Gilb. 
 Eq. Rep. 106 ; Balsh v. Hyham, 2 P. W. 
 455 ; Meynell v. Howard, Prec. Ch. 61 ; 
 Earl of Tankerville v. Fawcett, 1 Cox, 
 239 ; Waring v. Ward, 7 Ves. 336. 
 
 (j) Anon. 2 Ch. Cas. 4 ; Rider v. 
 Wager, 2 P. W. 335; Bartholomew v. 
 May, 1 Atk. 487 ; Robinson v. Gee, 1 
 Ves. 252 ; Ticeddell v. Tweddell, 2 Bro. 
 C. C. 107 ; Hamilton v. Worley, 2 Ves. 
 jun. 65, 4 Bro. C. C. 204. 
 
 (k) White V. White, 2 Vern, 43. 
 
 (I) Cope V. Cope, 2 Salk. 449 ; Rider 
 V. Wager, 2 P. W. 335; Tiveddell v. 
 Tweddell, 2 Bro. C. C. 107 ; Earl of 
 Tankerville v. Fawcett, 1 Cox. 237, 2 
 Bro, C. C. 57; HamiUnn v. Worley, 2 
 Ves. jun, 65, 4 Bro. C, C. 204. 
 
 (?n) Tipping v. Tipping, 1 P. W. 729 ; 
 
 Puckering v. Johnson, ih. 731, n. 
 
 (h) Rider V. Wager, 2 P. W. 335 ; 
 Hale V. Cox, 3 Bro. C. C. 322 ; Waring 
 V. Ward, 5 Ves. 670. 
 
 (o) Rider V. Wager, 2 P. W. 335 ; 
 and Ball v. Ball, ih. 5th ed. n, (a). See 
 also Pockley v. Pockley, 1 Vern. 36, 
 Popley V. Popley, S. C, 2 Ch, Cas. 84, 
 on the widow's customary moiety in the 
 province of York. 
 
 (p) See, nevertheless, Bishop v. Sharp, 
 2 Freem. 276, cited ib. 278; in which 
 case, however, from the report of it in 2- 
 Vern. 469, the bequest appears to have 
 been, after legacies bequeathed, of the 
 residue of the testator's personal estate. 
 See Howe v. Earl of Dartmouth, 7 Ves. 
 137, and Lucey v. Bromley, Fitzg. 41. 
 
 (q) Biihop v. Sharp, 2 Vern. 469, 2 
 Freem. 276, cited 2 Freem. 278. 
 
 (r) Hawes v. Warner, 3 Ch. Rep. 206, 
 2 Vern. 477, 2 Freem, 277, 3 Bro. P. C
 
 S. 1.] OF EXONERATION OF LAND MORTGAGED. 359 
 
 When the mortgage debt lias been paid out of the personal 
 assets, equity will, if necessary, aid the other creditors of the 
 mortgagor (.s), and also the legatees, general or specific, in his 
 will (0, by marshalling the mortgagor's assets, and throwing 
 those debts or legacies on the real- estate, which, to the benefit or 
 either heir at law (?<)> or devisee {v), has been exonerated out of 
 the personal estate. 
 
 And where the mortgage debt had not yet been paid out of the 
 personal assets, equity has, in the case of a specific legacy, aided 
 the legatee, by decreeing the legacy to go to him, and the heir at 
 law to take the land, burthened with the debt charged on it (to). 
 
 The heir of an original mortgagor, or a person who himself 
 has made the mortgage, has, however, in some cases, and in two 
 instances where the mortgage was made to pay the debts of a 
 previous owner of the estate, been held not to be entitled to have 
 the mortgaged land exonerated out of his ancestor's personal 
 assets ; the intent of the mortgagor being plain, to make the 
 land the first fund for the payment of the money (x). 
 
 And it appears to be clear that, on a devise by a mortgagor, he 
 may, if he pleases, subject the land to discharge the incumbrance 
 on it ; and, except as against the mortgagee, exempt by this 
 means his personal estate, and consequently a residuary legatee 
 in the will, or, if such personal estate is there undisposed of, the 
 testator's next of kin, from the payment of the mortgage debt(?/). 
 On a devise, however, of land, " subject to the incumbrances that 
 
 ed, Toml. 21 ; Anon. 2 Freem. 204, Ca. 
 278 b.; White v. White, 2 Vern. 43; 
 Moare v. Earl of Meath, cited 2 Vern. 
 470; Rider v. Wager, 2 P. W. 335; 
 Robinson v. Gee, 1 Ves. 252 ; Fox v. Fox, 
 1 West Cas. T. Hardw. 162 ; P/ii/ips v. 
 Philips, 2 Bro. C. C. 273 ; Hamilton v, 
 Worley, 2 Ves. jun. 65, 4 Bro. C. C. 
 204. 
 
 (s) Robinson v. Gee, 1 Ves. 252. 
 
 (i) Anon. 2 Ch. Cas, 4 ; Lutkins v, 
 Leigh, Cas. T. Talb. 53; Tipping v. 
 Tipping, 1 P. VV. 729, 730 ; Rohinson v. 
 Gee, 1 Ves, 252 ; Forrester v. Lord Leigh, 
 Anib. 171, 174; Norris v. Norris, 2 
 
 Dick. 542; Norman v. Morrell, 4 Ves. 
 769 ; Aldrich v. Cooper, 8 Ves. 397. 
 
 (m) A7ion. 2 Ch. Cas. 4 ; Lntkins v. 
 Leigh, Cas. T. Talb. 54. 
 
 (v) Lutkins V. Leigh, Cas, T, Talb. 53. 
 
 (ui) Ojieal V. Mead, 1 P. W. 693, See 
 also Earl of Tankerville v. Fawcett, 1 
 Cox, 237, 2 Bro, C, C. 57. 
 
 (x) Hamilton v. Worley, 2 Ves. jun. 
 62, 4 Bro. C. C. 199 ; Earl of Tanker- 
 ville V. Fuwcelt, 1 Cox, 237, 2 Bro. C. C. 
 57 ; Perkyns v. Bayntun, 2 P. W, 5th 
 ed. 664, 11. See also Hancox v. Abbey, 1 1 
 Ves. 189. 
 
 (y) Mitncs v. Staler, 8 Yes. 295, 305.
 
 360 OF EXONERATION Ol' LAND MOll'l'OAGED. [CH. XXIX. 
 
 are or shall be upon it", or " subject to a mortgage of lOOOZ. and 
 interest to A.", — these terms only will not, it seems, be sufficient 
 to burthen tlio land widi a mortgage debt on it, and exempt the 
 testator's personal assets from the payment of the mortgage ; 
 such terms expressing no more than what is implied on a devise 
 of mortgaged land {z). 
 
 2. From the principle that a loan creates a debt, and the land 
 is a pledge only, it has followed that the heir, or devisee, of the 
 original mortgagor is entitled to throw the burthen of the debt on 
 such mortgagor's personal estate {a). But the same principle 
 does not lead to this farther consequence, that the debt contracted 
 by one person, the original mortgagor, is payable out of the per- 
 sonal assets of another person, namely, a succeeding mortgagor, 
 become so by either descent or devise. There is, indeed, a 
 principle which prevents this consequence. This principle is, 
 that such acquisition by descent or devise does not of itself 
 remove the personal debt of the original mortgagor from him, 
 and make it the personal debt of the party so afterwards become 
 the mortgagor {b). And hence it appears to have followed, that 
 where a mortgage of land is made, not by a testator himself, but by 
 an ancestor, namely, by the testator's father, here the heir at law, 
 or devisee, of the son is not entitled to have the mortgage land 
 exonerated out of the son's personal assets (c) ; although the son 
 has, on a transfer of the mortgage, entered into a bond, or cove- 
 nant, with the assignee of the mortgage, to pay the money (d) ; 
 and although the son desires in his will that all his debts be 
 
 (s) Serle v. St. Eloy, 2 P. W. 386, 
 and 5th ed. n. (I), cited 2 Alk. 437, and 
 1 Bro. C. C. 461 ; Astley v. Earl of 
 Tankervilte. 3 Bro. C. C. 545, 1 Cox, 82. 
 See Duke of Ancaster v. Mayer, 1 Bro. 
 C. C. 454 ; and, farther, on a devise, 
 ** subject to incumbrances," Earl of Kin- 
 noul V. Money, 3 Swanst. 202, n., and 
 Bariieuell v. Lord Cawdor, 3 Madd. 
 453. 
 
 («) 1 Atk. 487 ; 7 Ves. 336. 
 
 {b) 7 Ves. 336. 
 
 {c) Cope V. Cope, 2 Saik. 449 ; Laiv- 
 
 soii V. Hudson, or Laivson, 1 Bro. C. C. 
 58, 3 Bro. P. C. ed. Toml. 424 ; Woods 
 V. Huntingford, 3 Ves. 131 ; Waring v. 
 Ward, 1 Ves. 336 ; Koel v. Lord Henley, 
 Dan. 330, 336. See also Lord Howard 
 of Effingham v. Napier, 5 Bro. P, C. ed. 
 Toml. 221, cited 2 P. W. 664, and Han- 
 cox V. Abbey, 11 Ves. 189. 
 
 {d) Evelyn v. Evelyn, 2 P. W. 659, 
 664 ; Leman v. Newnham, 1 Ves. 51 ; 
 Earl of Tankerville v. Fawcett, 1 Cox, 
 239, 2 Bro. C. C. 57 ; Waring v. Ward, 
 7 Ves. 336.
 
 S. I.] OF EXONERATION OF LAND MORTGAGED. 3G1 
 
 discharged by his executor [e). The bond, or covenant, from the 
 son will make the mortgage debt his personal debt, so far as to 
 entitle the assignee of the mortgage to be paid out of the son's 
 personal assets (/) ; but, with reference to exoneration of the 
 land for the benefit of the heir at law, or devisee, of the son, the 
 same bond or covenant is an auxiliary security only, as a surety 
 for the land, and leaves the land first responsible {(/). 
 
 The personal assets of a devisee of land, mortgaged by his 
 testator, have been held not to be liable to exonerate such land, 
 although, on a transfer of the mortgage, the devisee covenanted 
 with the assignee to pay the mortgage money, and afterwards 
 agreed to raise the interest from four to five per cent., and cove- 
 nanted to pay such interest (A). 
 
 The personal assets of an heir at law, or devisee, of land, mort- 
 gaged by a former owner, will, however, be liable to exonerate 
 the estate from the mortgage debt, if by any means, as by a new 
 mortgage transaction, the heir or devisee makes such debt of the 
 former owner his own debt (i). 
 
 It has been seen, that the heir at law of the son and heir of 
 the original mortgagor is not entitled to have the land exonerated 
 out of the heir's or son's personal estate. And in Scott v. Beecher 
 it was decided, that the heir at law of a devisee of the original 
 mortofa<>:or was not entitled to have the land exonerated out of the 
 devisee's personal assets, namely, personal estate bequeathed by 
 the original mortgagor to the devisee of the land, notwithstanding 
 this personal estate constituted assets to pay the debts of the 
 original mortgagor. In the case mentioned, one J. T. mort- 
 gaged a copyhold estate, and by his will devised all his estate and 
 effects to his wife, and appointed her executrix. The wife died 
 
 (e) Leman v. Neivnhain, 1 Ves. 51 ; | (/i) Shafto v. Shufto, 1 Cox, 207, 2 
 Lawsmi v. Hudson, 1 Bro. C. C. 58. 1 P. W. 5th ed. 664, n., cited 7 Ves. 337, 
 
 (/') Leman v. Nnvnham, 1 Ves. 53; and Dan. 336 
 
 Vuke of Ancuster v. Mayer, 1 Bro. C. C. 
 464 ; BilLinghurst v. Walker, 2 Bro. 
 C. C. 608 ; Woods V. Hantingford, 3 
 Ves. 131. 
 
 (g) Eielijn V. Evelyn, 2 P. VV. 664. 
 
 (i) Donisthorpe v. Porter, 2 Eden, 
 162, Amb. 600 ; Lushington v. Sewell, 1 
 Sim. 435, 477, 478 ; Woods v. Hunting- 
 fm-d, 3 Ves. 131.
 
 362 OF EXONERATION OF LAND MORTGAGED [CH. XXIX. 
 
 intestate ; and it was held that her heir at law, to whom the 
 copyhold descended from her, was not entitled to have the land 
 exonerated ont of the mortgagor's personal estate bequeathed to 
 his wife ; and this decision was made chiefly, if not wholly, on 
 this ground, — that " by the gift to her as residuary legatee, the 
 personal estate of J. T. became lier personal estate ; but the 
 mortgage debt of J. T. was not Iter debt, and licr heir there- 
 fore has no equity to pay off this mortgage out of her personal 
 estate" {j). 
 
 3. The heir at law, or devisee, of a purchaser of mortgaged 
 land (A), or a legatee of a purchaser of mortgaged leaseholds for 
 years (Z), is not entitled to have the mortgage debt paid out of the 
 personal assets of such purchaser ; although, on the purchase, the 
 purchaser entered into a bond, or covenant, with the vendor, to pay 
 such debt (in) ; or after, on a transfer of the mortgage, he, not to 
 make the debt his own, but with the difterent view merely to 
 effect the transfer, covenanted with the assignee to pay it [n) ; and 
 notwithstanding the purchaser, by his will, devises or charges other 
 property, real or personal, with the payment of all his debts (o); 
 unless he has by some act [p), as by a part of the purchase 
 transaction [q), or by a new contract with the mortgagee (r), or, 
 
 {j) 5 Madd. 96. 
 
 (/c) Parsons v. Freeman, Arab. 115 ; 
 Duke of Ancaster v. Mayer, 1 Bro. C. C. 
 454, 464 ; Tweddetl v. Tweddell, 2 Bro. 
 C. C. 101, 152, cited 7 Ves. 337, and 14 
 Ves. 423 ; Billivghurst v. Wallier, 2 
 Bro. C. C. 604, cited 14 Ves. 425 ; Batt- 
 ler V. Butler, 5 Ves. 534 ; Warijig v. 
 Ward, 7 Ves. 332. See also Pockley v. 
 Pockley, 1 Vern. 36, cited 2 Bro. C. C. 
 107 ; Earl of' Belvedere v. Rochfort, 5 
 Bro. P. C. ed. Toml. 299, cited 2 Bro. 
 C. C. 107, and 3 Ves. 131 ; and Forrester 
 V. Lord Leigh, Amb. 171, 2 P. VV. 5lh 
 ed. 664, n. 
 
 (/) Duke of Ancaster V. Mayer, 1 Bro. 
 C. C. 454. See also Earl of Oxford v. 
 Lady Rodney, 14 Ves. 417. 
 
 (m) Tweddell v. Tweddell, 2 Bro. C. 
 
 C. 101, 152, cited 3 Ves. 131, 132; 
 Butler V. Butler, 5 Ves. 538 ; Waring v. 
 Ward, 7 Ves. 337. 
 
 (ji) Billinghurst v. Walker, 2 Bro. C. 
 C. 608 ; Waring v. Ward, 7 Ves. 336 ; 
 Forrester v. Lord Leigh, Amb. 173, 2 
 P. W. 5th ed, 664, n. 
 
 (()) Duke of Ancaster v. Mayer, 1 Bro. 
 C. C. 454; Btitler v. Butler, 5 Ves. 
 534. 
 
 (p) See Woods v. Huntingford, 3 Ves. 
 130, 132. 
 
 (5) Parsons v. Freeman, Amb. 115, 
 174, n. A., 2 P. W. 5th ed. 664, n.^ 
 Waring v. Ward, 5 Ves. 670, 7 Ves. 
 332. 
 
 (r) E<((7 of O.iford v. Lady Rodney, 
 14 Ves. 417.
 
 S. I.] OF EXONERATION OF LAND MORTGAGED. 363 
 
 by greater reason, by both these ways (s), manifested an inten- 
 tion to make the mortgage debt the debt of himself. 
 
 4. It has been shewn, that an heir at hiw, or devisee, of A., 
 the son and heir of the original mortgagor, is not entitled to exo- 
 neration out of the assets of A., although, on a transfer of the 
 mortgage, A. covenanted to pay the money. The principles are, 
 that the descent to A. does not remove the debt from his father, 
 and make it the personal debt of himself, and that the covenant 
 by A. is only as a surety for the land [t). The same principles 
 have been applied to a case, where a tenant in tail, under a settle- 
 ment of land mortgaged before the settlement, covenanted 
 on a transfer of the mortgage to pay the money. In this case. 
 Sir E. B. married the daughter of Sir T. W., and, for raising 
 the daughter's portion, the father mortgaged part of his estate ; 
 and died, leaving the daughter his heir. She afterwards joined 
 with her husband in a deed and fine, whereby she settled her 
 estate on her husband and herself, and the heirs male of the body 
 of her husband. The mortgagee wanting his money. Sir E. B., 
 the husband, joined in an assignment of the mortgage, and cove- 
 nanted that he, or his wife, would pay the money. And the 
 question being, whether by reason of the covenant from Sir E. B., 
 his personal estate should be liable to pay the mortgage debt, 
 it was decreed by Lord Cowper, " that this covenant by Sir E. 
 should not oblige his personal estate to go in ease of the mort- 
 gaged premises ; forasmuch as the debt being originally Sir 
 T. W.'s, and continuing to be so, the covenant, on transferring 
 the mortgage, was an additional security for the satisfaction 
 only of the lender, and not intended to alter the nature of the 
 debt"(M). 
 
 5. Where a husband and wife are seised of land in right of 
 the wife, and the husband borrows money for his own use, as to 
 pay his debts, or to buy an estate, or a commission in the army, 
 or an appointment to a place, and he and his wife join in a mort- 
 
 (s) Woods V. Hunting ford, 3 Ves. 130, 
 cited 5 Ves. 539 ; Ear/ of Oxford v. 
 Lady Rodneii, 14 Ves. 417. 
 
 (0 Evelyn v. Evelyn, 2 P. VV. 659, 
 664 ; Waring v. Ward, 7 Ves. 336. 
 ((() Bagot V. Oiighton, 1 l\ VV. 347.
 
 364 OF EXONERATION OF LAND MORTGAGED. [CII. XXIX. 
 
 gage of the land, and the money is accordingly applied to the 
 husband's use (v), such mortgage makes this debt the debt of the 
 husband, and his personal and real {w) assets must exonerate his 
 wife's estate so mortgaged {x). And if the land is mortgaged 
 for a term of years, and the husband afterwards pays off the 
 mortgage, and takes an assignment of the term in trust for him- 
 self, with the intent to continue the charge on the land, and to 
 entitle the husband to be repaid the mortgage money paid off by 
 him, equity will not allow this repayment, but will decree the 
 term to be assigned, in trust for the owners of the inheritance (?/). 
 The assets of the husband will not, however, be liable to 
 exonerate the estate of the wife, if the money borrowed was not 
 applied to the use of the husband, but to other purposes, as to 
 pay the wife's debts contracted before her marriage (z). And 
 parol evidence is admissible to prove the application of the 
 money, either to the use of the husband or of the Mdfe, or to 
 other purposes (a). And it seems that parol evidence is admis- 
 sible to prove that the money was not applied to the use of the 
 husband, and that, consequently, the exoneration of the wife's 
 estate may be prevented by this evidence, notwithstanding the 
 terms of the mortgage deed express, that the money was borrowed 
 for the husband's use (b). But parol evidence is, it appears, not 
 admissible to prove that money, applied to the use of the husband, 
 was intended to be a gift by the wife to him (c). And equity 
 
 (v) See 3 Bro. C. C. 209, and 1 Ves. 
 jun. 184. 
 
 (u)) liobinsmi v. Gee, 1 Ves. 252. 
 
 (x) Earl of Huntingdon v. Countess of 
 Huntingdon, 2 Vern. 437, 2 Bro. P. C. 
 ed. Toml. 1 ; Pocock v. Lee, 2 Vern. 
 604; Tate v. Austin, 1 P. W. 264, 2 
 Vern, 689 ; Lacam v. Mertins, 1 Ves. 312 ; 
 Partcriche v. Powlet, 2 Atk. 384 ; Earl 
 of Kinnoul v. Money, 3 Swanst. 202, n., 
 and cited 3 Bro. C. C. 206, 208, 211, 
 and 1 Ves. jun. 186; Astley v. Earl of 
 Tankerville, 3 Bro. C. C. 545, 1 Cox, 
 82. 
 
 (ly) Earl of Huntingdon v. Lady 
 Hunlingdon, 2 Bro. P. C. ed. Toml. 1. 
 
 (s) Lewis V. Wangle, 1 Cox, 240, 2 
 P. VV. 5th ed. 664, n,, Amb. 150, 3 
 Swanst, 212, n. ; Earl of Kinnoul v. 
 Money, 3 Swanst. 202, n. See also 
 liaiison, or Rauson,v. Sacheverel, I Vern. 
 41, and 3rd ed. n. (1), 2 Ch. Cas. 98. 
 cited 3 Bro. C. C. 210, and 1 Ves. jun. 
 185; and Ex parte Earl Digby, Jacob, 235. 
 
 (a) Earl of Kinnoul v. Money, 3 
 Swanst. 202, n. ; Clinton v. Hooper, 3 
 Bro. C. C. 209, 214, 1 Ves, jun, 184, 
 188. 
 
 {h) Clinton v. Hooper, 3 Bro. C. C. 
 209, 214. See 1 Ves. jun. 188. 
 
 (c) Clinton V. Hooper, 3 Bro. C, C. 
 214, 1 Ves. jun. 188.
 
 S. 1.] OF EXONERATION OF LAND MORTGAGKT). 365 
 
 will not exonerate the wife's estate out of the assets of the hus- 
 band, if after the husband's death she by lier declarations, 
 although by parol only, to his executor clearly disclaims her 
 right. On this ground was decided Clinton v. Hooper, where 
 Lord Thurlow likened the case to that of an heir at law seeking 
 exoneration out of his ancestor's personal assets. " Suppose," 
 he said, " the heir at law was to declare to the executor, that he 
 would not press him for payment of the debt ; and, upon that 
 assurance, the executor was to proceed in payment of the lega- 
 cies; such parol declarations would be sufficient to bar the heir 
 from coming into this Court for payment of the debt ; and my 
 opinion is, that the case of the wife is in toto the case of the 
 heir " {d). And to the same effect his Lordship, at the conclu- 
 sion of his judgment, stated, — " I cannot distinguish this case 
 from the case of the heir ; for if the heir will tell the executor to 
 pay the legacies, and that he will not press him for the exonera- 
 tion of his estate, and the executor pays upon that assurance, the 
 executor shall not be called upon afterwards, or the legatees be 
 obliged to refund. It would be contrary to the rules of equity, 
 to say that the heir should not be barred, by such a concession, 
 from his claim ; it would be countenancing, as it were, a mere 
 fraud upon the executor, if the heir was allowed to call upon him 
 after such a disclaimer. In this case the wife has, by her decla- 
 rations to the executor, clearly disclaimed her right ; and I do 
 not think it material, whether the legatee were paid before or 
 after this concession " [e). 
 
 When the mortgage debt is the debt of the husband, it is pay- 
 able before all legacies, general or specific, bequeathed by him 
 out of his personal estate; but all his other debts, although by 
 simple contract only, are, it seems, to be paid before this 
 mortgage debt (/"). And yet Lord Hard wi eke, it is material to 
 state, appears to have been of opinion, that if the mortgage has 
 been paid off out of the husband's assets, " none of his creditors 
 
 (d) 3 Bro. C. C. 210, 1 Ves. jun. 
 185. 
 
 (e) 3 Bro. C. C. 214, 1 Ves. jun. 189. 
 
 (/) Tate V. Austin, 1 P. W. 264, 2 
 Vern, 689, cited 3 Bro. C. C. 211.
 
 S66 OF EXONERATION OE LAIS^D MORTGAGED. [CH. XXIX. 
 
 have a right to stand in the place of the mortgagee, to come 
 round on the wife's estate" (//). 
 
 6. On a devise of mortgaged land by the original mortgagor, 
 the devisee is entitled not only to have the land exonerated out 
 of the mortgagor's personal assets (A), but it is decided also, that 
 if the mortgage debt is, as by means of a bond or covenant, a 
 specialty debt recoverable against the heir of the mortgagor, and 
 there is a deficiency of personal assets to pay off the mortgage, 
 the devisee of the mortgaged land is entitled to exoneration, or 
 to have the mortgage debt paid, out of real assets, as freehold 
 land, descended to the heir at law of the mortgagor (i). 
 
 It is also determined, that, whether the mortgage debt is one 
 by specialty or by simple contract only, the devisee of the mort- 
 gaged land is entitled to exoneration out of real estate devised 
 by the mortgagor, in trust for the payment of his debts (j), and 
 out of real estate devised by the mortgagor, and charged by the 
 will with the payment of his debts (k), and, it seems also, out of 
 real estate descended to the heir of the mortgagor, charged by 
 the will of the latter with the payment of his debts (/). 
 
 In Barnewell v. Lord Cawdor it was farther decided, that a 
 descended estate was liable to pay off the mortgages on the 
 estates devised, although the latter were devised " subject to the 
 incumbrances" on them, and although the will exempted the 
 testator's personal estate from the payment of those incum- 
 brances (m). 
 
 7. A devisee of real estate mortgaged is not only entitled to 
 exoneration out of personal estate, land descended, and land de- 
 vised for, or charged with, the payment of debts (w), but he has 
 
 (g) Robinson v. Gee, 1 Ves, 252, 
 
 (/t) 2 Atk. 436. 
 
 (i) Gallon V. Hancock, 2 Atk. 424. 
 427, 430; Davies v. Topp, 1 Bro. C. C. 
 624. See also King v. King, 3 P. W. 
 358. 
 
 (j) Serle V, St. Eloy, 2 P. W. 386, 
 and 5th ed. n. (1) ; Bartholomew v. May, 
 1 Atk. 487; Marchioness of Tweedale v. 
 Earl of Coventry, 1 Bro. C. C. 240. See 
 
 also Sir E. Moor's case, cited Prec. Cii. 
 61. 
 
 (k) Serle v. St. Eloy, 2 P. W. 386, 
 and 5th ed. n. (1) ; Bartholomew v. May, 
 1 Atk. 487, 1 West Cas. T, Hardw. 255. 
 
 (/) King V. King, 3 P. W. 358. 
 
 (m) 3 Madd. 453. 
 
 (n) Galton v. Hancock, 2 Atk. 430 ; 
 Serle v. St. Eloy, 2 P. VV. 386, and 5th 
 ed. n. (1).
 
 S. I.] OF EXONERATION OF LAND MORTGAGED. 367 
 
 also a ri^ht to contribution from a devisee of unmortgaged land, 
 if the mortgagor, by his will, charges all his real estate with the 
 payment of his debts. As, if a person seised of two manors, P. 
 and W., devises P. to A., and W. to B., and by his will charges 
 all his real estate with the payment of his debts, and afterwards 
 mortgages P.; A. is entitled to "contribution out of W., in 
 order to reimburse P. what that had paid beyond its proportion", 
 or, as it is differently expressed, A. " ought to have a propor- 
 tionable contribution out of the manor of W., towards the pay- 
 ment of the mortgage debt " (o). 
 
 8. In ///// V. The Bishop of London, Lord Hardwicke decided, 
 " that the plaintiffs, the heirs at law, are entitled to the copyhold 
 lands descended to them, disincumbered from a mortgage ; which 
 must be paid out of the personal estate, and, if not sufficient, 
 then out of the real estate, charged by the will of the testator 
 with his debts" (/>). 
 
 9. In Noel v. Lord Henley, the mortgage debt of an original 
 mortgagor was, by reason of his marriage settlement, the terms 
 of which declared his intention to be, that, as between the per- 
 sons entitled to his real and personal estate, the estate mortgaged 
 should bear the burthen of the debt, held to be payable, not 
 out of the personal assets of the mortgagor, but out of the money 
 to arise from the sale of another estate, which by his will he 
 directed to be sold for the purpose of paying off the mortgage 
 on the estate settled (</). In Bateman v. Bateman, a person pro- 
 vided in his will, that if his personal estate, and his house and 
 lands at W., should not pay his debts, then his executors should 
 raise the same out of certain copyhold premises before devised 
 by him. The testator, upon his marriage, had settled some free- 
 hold lands upon his wife and children, and covenanted that they 
 were free from incumbrances. It happened, however, tjaat these 
 lands were subject to a prior mortgage. And it was decreed 
 that the plaintiffs were entitled to have the settled estate exone- 
 
 (o) Carter v. Barnadiston, 1 P. W. | (q) Dan. 322, on appeal to H. L. 
 505, 509, 521, 3 Bro. P. C. ed. Toml. from the decision reported Dan. 211 and 
 64, 67, 68. See 2 Atk. 433. 7 Price, 241. 
 
 (p) I Atk. 621. '
 
 368 OF EXONERATION OF LAND CHARGED, &C. [cM. XXIX. 
 
 rated of the mortgage, out of tlie personal estate, and copyhold 
 estate devised for payment of debts (r). In Clarke v. Samson, 
 leaseholds for years, incumbered by mortgage, were devised to 
 tlie testator's son, who was also appointed executor. The son, 
 on liis marriage, settled this property ; and on the whole circum- 
 stances, which were special, of the case, the issue of that marriage 
 were held not to be entitled to have the mortgage paid off out of 
 their father's personal assets {s). 
 
 SECTION II. 
 
 OF EXONERATION OF LAND CHARGED; WHERE THE PRINCIPLE, 
 ON WHICH MORTGAGED LAND IS EXONERATED, IS INAPPLI- 
 CABLE. 
 
 When a person borrows money, and mortgages land to secure 
 the payment of it, the loan creates a debt ; and if the mortgagor 
 covenants to pay the money, it is not the covenant, but the loan, 
 by which the debt is created. The mortgagor covenants to pay 
 a debt, and the simple contract debt created by the loan is, by the 
 covenant, made a debt by specialty {t). 
 
 A debt may be created by a covenant to pay money which is 
 not borrowed (?<), and an action of debt may be brought on the 
 covenant {v). If, therefore, in a marriage settlement, A. con- 
 veys land to the use of trustees for a term of years, in trust to 
 raise portions for younger children, and A. covenants to pay the 
 portions, by this covenant A. makes himself a debtor [xv). 
 
 A covenant which is not to pay money, will also in some 
 cases create a debt, in this sense, — that the covenant, if broken, 
 will create a demand for a sum uncertain, namely, a demand for 
 damages. Thus, a covenant by a lessor with the lessee, for quiet 
 enjoyment during the term, entitles the lessee, if the covenant is 
 
 (r) 1 Atk. ed. Sand. 421, and n, (1). 
 (s) 1 Ves. 100. 
 
 (0 7 Ves. 336 ; 8 Ves. 394 ; Jacob. 
 238, 239. 
 
 (w) Sanders v. Miirkc, 3 Lev. 429; 
 
 Plnmer v. Marchant, 3 Burr. 1380. 
 
 (v) Sanders v. Marke, 3 Lev. 429. 
 
 (u') Lechmere v. Charlton, 15 Ves. 
 193.
 
 S. II.] OF E\ONi:RATrON C)l' LAND ClJAWtJKI), ikc. '>>VM 
 
 broken, to an action of covenant against the lessor, to recover 
 damages for the injury sustained by him. And if damages are 
 recovered, and judgment foHows, the lessee will be a judgment 
 creditor to the amount of those damages (x). 
 
 A covenant, which is not to pay money, will also, in some 
 cases, create a debt, in this sense, — that, if the covenant is broken, 
 then, notwithstanding an action at law has not been brought for 
 damages, the covenantee will, in equity, be a creditor, and by 
 specialty, and entitled to come in with other specialty creditors, 
 and be paid a sum of money equal to the estimated damages sus- 
 tained by him (?/). Thus, where a person on his marriage co> e- 
 nanted to settle on the wife, for her life, lands that should be of 
 the value of 60^. per annum, but did not make this settlement, 
 and by his will charged all his estate, real and personal, with the 
 payment of his debts ; here, on a bill brought by the creditors for 
 the satisfaction of their debts, Lord Chancellor Parker said, 
 " The covenant for settling lands of the value of 60/. per annum 
 on the wife for her life does not specially bind any lands ; where- 
 fore, as touching that, the wife must come in only as a specialty 
 creditor with the other specialty creditors. And in order to settle 
 the quantum of this demand, let the Master set an estimate on 
 the wife's estate for life, namely, at so many years' purchase, and 
 then the wife to come in as a creditor by specialty, for so much 
 money" (z). 
 
 A covenant to settle land, but which does not specifically bind 
 any land, may create, it has been seen, a debt, in the senses, that, 
 if broken, it will entitle the covenantee, at law to recover damages, 
 and in equity to come in and be paid as a specialty creditor. But 
 where there is a covenant to settle particular lands, and which 
 are in consequence specifically bound, here, although, if the cove- 
 nant is broken, the covenantee may at law be entitled to recover 
 
 (i) Earl of Bath v. Earl of Bradford^ 
 2 Yes. 587, See also 2 Bl. Com. 438. 
 
 (i/) Freemouit v. Dedire, 1 P. W. 
 429 J Parker v. Harvey, 11 Vin. Abr. 
 292, 2 Eq. Cas. Abr. 460; Sutton v. 
 
 Mashiter, 2 Sim. 513. See Whitchurch 
 V. Ladii Bayntun, 2 Vern. 272, and 
 Knight V. Knight, 3 P. W. 331. 
 
 (s) Freemouit v. Dedire, 1 P. W. 
 429. 
 
 B B
 
 370 OF EXONERATION OF LAND CHARGED, &C. [CH. XXIX. 
 
 damages (a), yet in equity this covenant makes the covenantor a 
 trustee of the land for the purposes of the covenant (b) ; and 
 where the covenantor so becomes trustee, it appears that, with 
 reference to exoneration, a debt is not, in equity, created by the 
 covenant. Thus, as the covenantor is, in equity, trustee, in equity 
 a debt is not, with reference to exoneration, created by his cove- 
 nant in marriage articles to settle particular lands for a join- 
 ture (c), or to settle particular lands, and to limit in the settle- 
 ment a term of years, in trust to raise portions for daughters {d). 
 
 It farther appears that a person does not make himself a debtor, 
 because, by virtue of a power to charge land with the payment 
 of money, he executes an appointment under it (e) ; or because 
 in a marriage settlement he limits a term of years, in trust to raise 
 portions for younger children (/*). 
 
 The exoneration of mortgaged land out of the assets of the 
 mortgagor, proceeds from the principle, that the loan creates a 
 debt, for the payment of which the land is, in equity, a pledge 
 only, in aid of the mortgagor's assets liable to satisfy the debt {ff). 
 
 This principle does not apply where there is no debt. And, 
 accordingly, where, under a power to charge land with money, an 
 appointment is made (h) ; or, if the appointment is revoked, the 
 charge is by some means kept on the land, which it is not meant 
 shall be withdrawn from the charge (i) ; in these cases, the owner 
 of the land is not entitled to exoneration. Also, if in a marriage 
 settlement A. creates a charge on land, by the limitation of a 
 term of years, in trust to raise the portions of younger children, 
 and A. does not covenant to pay the money ; here, likewise, the 
 land must bear the burthen imposed on it, and the owner has no 
 
 (a) 2 P. W. 438. 
 
 (ft) Freemoult v. Dedire, 1 P. W. 
 429 ; Edwards v. Freeman, 2 P. W. 
 438. 
 
 (c) Lady Coventi'y v. Lord Coventry, 
 1 Stra. 596, 603 ; Freemoult v. Dedire, 
 1 P. W. 429. 
 
 (rf) Edwards v. Freeman, 2 P. W. 
 437, 439. 
 
 (e) 1 Cox, 175. 
 
 (/') Burgoigne v. Far, 1 Atk. 575; 
 Burgoyne v. Benson, S. C, 1 West Cas. 
 T. riardw. 340 ; Lanoy v. Duke of Alhol, 
 2 Atk. 444, 445. 
 
 (g) 2 P. W. 438 ; 2 Atk. 445 ; Jacob, 
 238, 239. 
 
 (h) 1 Cox, 175. 
 
 (i) Wilson V. Earl of Darlington, 1 
 Cox, 172 ; cited in 4 Ves. 82, as Wilson 
 V. Lord Bath.
 
 S. II.] or EXONERATION OF LAND CHARGED, &C. 371 
 
 ground or pretence wliatever to have tlie estate disincumberedout 
 of the assets of A. (j). 
 
 The same principle does not apply, where a covenant creates 
 a specific lien on land, and in ecpiity makes the covenantor 
 a trustee, and not a debtor. Thus, where these effects follow a 
 covenant in marriage articles, to settle particular lands for a 
 jointure ; or to settle particular lands, and to limit in the settle- 
 ment a term of years, in trust to raise portions for daughters ; in 
 these cases, the owner of the land is not entitled to exoneration 
 out of the assets of the settler, (k). 
 
 And, farther, the same principle does not apply to a charge on 
 land, and covenant to pay the money charged ; and where the 
 covenant, although it creates a debt, is meant to be a security, 
 auxiliary only to the charge. Thus, where in a marriage settle- 
 ment A. creates a rent-charge of 500Z. per annum in lieu of 
 dower, and covenants to pay this annuity ; or, where in a mar- 
 riage settlement A. conveys to the use of trustees for a term of 
 years, in trust to raise portions for younger children, and cove- 
 nants to pay the portions ; in these, and the like cases, the cove- 
 nant by A. is, imless a contrary intention clearly appears, 
 construed to be a security auxiliary only to the land, and the 
 owner of the estate is consequently not entitled to have it exone- 
 rated out of the assets of A. (Z). 
 
 It is observable, that, in each of the cases, which have been 
 applied to the principle, on which the owner of mortgaged land 
 is entitled to exoneration, the charge on the land was not made 
 by mortgage. It remains to notice the case of a mortgage, 
 where the owner of the land may not be entitled to exoneration 
 out of the assets of the mortgagor. The case is, where, by virtue 
 
 (j) Burgoigne v. Fox, 1 Atk. 575 ; 
 Burgoyne v. Benson, S. C, 1 West Cas. 
 T. Hardw. 340; Lanoyv. Duke of Athol, 
 2 Atk. ed. Sand. 444, and n, (1), and 
 445, on the second settlement. See also 
 Ward V. Lord Dudley and Ward, 2 Bro. 
 C.C. 316. 1 Cox, 438. 
 
 (k) Conntess of Coventry v. F.arl of 
 
 B B 2 
 
 Coventry, 9 Mod. 12, 1 Stia. 596, 2 
 P.W. 222 ; Edwards V. Freeman, 2 P. W. 
 435, 437, 438 ; both cases cited 2 P. W. 
 665. 
 
 (/) Lanoy v. Duke of Athol, 2 Atk. ed. 
 Sand. 444, and n. (1) ; Lechtnere v. 
 Charlton, 15 Ves. 193.
 
 '372 OF EXONERATION OF LAND DEVISED, &C. [CH. XXIX. 
 
 of a power to charge contained in a settlement, a charge is by a 
 tenant for life created by a mortgage of a term of years, either 
 limited in the settlement, or created under the power, and, on 
 which mortgage, the mortgagor does not covenant to pay the 
 money. Here, notwithstanding the loan makes the mortgagor, 
 or donee of the power, a debtor, and the money is borrowed for 
 his use, and consequently the charge is a benefit to him, and his 
 personal estate ; yet the owner of the land is not entitled to 
 exoneration out of his personal assets. And it follows, that this 
 exoneration is not allowed, if the mortgage is made by a feme 
 covert, and does not make the charge her personal debt, and no 
 demand can be made on her for payment. And if the donee of 
 the power, who makes the mortgage, covenants to pay the 
 money ; the exoneration of the land will depend upon, whether 
 the personal security was meant to be the primary security, or 
 only collateral ; and it will, it should seem, be construed to be 
 collateral only, unless a contrary meaning is clearly apparent (m). 
 
 SECTION III. 
 
 OF EXONERATION OF LAND DEVISED, CHARGED WITH DEBTS, 
 OR LEGACIES, WHERE THE DEVISEE GIVES A BOND, OR 
 PROMISSORY NOTE, TO PAY A DEBT OR LEGACY CHARGED. 
 
 Where real estate is devised, charged with the payment of 
 debts, or of legacies, a bond or promissory note entered into by 
 A., the devisee, to secure the payment of a debt or legacy so 
 charged on the land, is, unless the intent of the bond or note is 
 clearly contrary [n), construed to be a security auxiliary only to 
 the land, and consequently will not create a debt, which, tp the 
 exoneration of the land charged, the heir at law, or devisee of A., 
 will be entitled to have paid out of A.'s personal assets (o). 
 
 (m) Ex parte Earl Digby, Jacob, 235, 
 (n) 2Bro. C. C.608. 
 (o) Basset v. Percival, 1 Cox, 268, 2 
 P. W. 5th ed. 664, n. ; Mattheaon v. I 
 
 Hardwicke, 2 P. W. 664, n. ; Billivg- 
 hurst V. Walker, 2 Bro. C. C. 604, 
 cited 14 Ves. 425.
 
 S. IV.] 
 
 078 
 
 SECTION IV. 
 
 or EXONEUATION OF LAND DESCENDED; WHEIIE A BOND DEBT 
 IS PAID BY THE HEIR. 
 
 Executors aiul administrators are bound by a bond, in which 
 the obligor binds himself, and not expressly his executors and 
 administrators (/>). But although the obligor binds himself, and 
 his executors and administrators, yet this obligation will not be 
 binding on his heir, who is not bound, unless he is for the pm- 
 pose expressly named in the bond {q). 
 
 When a person enters into a bond, as to perform covenants, 
 or pay a sum of money, and thereby binds himself, his heirs, 
 executors, and administrators, and the obligor dies, and it is 
 required to put the bond in suit, the obligee may, if he pleases, 
 first sue the heir, and need not first resort for satisfaction to the 
 personal assets of the obligor (r). But when the heir is sued, 
 and the obligor's real assets descended are in consequence taken 
 to satisfy the bond, in equity the heir is entitled to reimburse- 
 ment out of his ancestor's personal assets, in the hands of his 
 executor or administrator (s). The heir is, it seems, entitled to 
 this exoneration, notwithstanding it will wholly defeat a residuary 
 bequest in the ancestor's will (t). But it appears he is not 
 entitled to such exoneration, if it will prevent the payment of 
 the ancestor's other debts (m), or of a legacy, pecuniary or 
 specific, bequeathed by him (v), or if it will deprive his ancestor's 
 widow of her paraphernalia {iv). 
 
 {p) 1 P. W. 721 ; 2 P. W. 197 ; 1 
 Freem. 125. 
 
 (9) Barber v. Fox, 2 Saund. 136, 1 
 Ventr. 159 ; Porter v. Bilte, 1 Freem. 
 125 J Croiseing v. Honor, 1 \'ein. 180. — 
 Hardi. 512. 
 
 (r) Armitage v. Metcalf, 1 Ch. Cas. 
 74 ; Knight v. Knight, 3 P. VV. 333. 
 
 (s) Armitage v. Metcalf, 1 Ch. Cas. 
 74 ; Anon. 2 Ch. Cas. 4 ; Aiion. 1 Freem. 
 301, Ca. 364 b.; Anon. 2 Freem. 205, 
 Ca. 278 c. ; Knight v. Knight, 3 P. W. 
 331 ; Lutkins v. Leigh, Cas. T. Talb. 
 
 54 ; Mogg V. Ilo'lges, 2 Ves. 52, 1 Cox, 
 11 ; Wooils V. Huntingjord, 3 Ves. 130. 
 
 (t) Iluwes V. Warner, 3 Ch. Rep. 
 206, 3 Bro. P. C. ed. Toml. 21 ; Phitips 
 V. Philipi, 2 Bro. C. C. 273 ; Hamilton 
 V. Worlei], 2 Ves. jun. 65, 4 Bro. C. C. 
 204. 
 
 (?() Anon. 2 Ch. Cas. 4 ; Lntkins v. 
 Leigh, Cas. T. Talb. 54. 
 
 (y) Anon. 2Ch. Cas. 4; Tipping v. 
 Tipping, 1 P. \V. 730; Lulkins v. Leigh, 
 Cas. T. Talb. 54, 
 
 (w) Tipping V. Tipping, 1 P. W. 729.
 
 374 
 
 CHAPTER XXX. 
 
 OF THE ORDER IN WHICH ASSETS ARE, BY A COURT OF 
 EaUITY, TAKEN TO PAY DEBTS (a). 
 
 Where assets have, beyond the 
 general personal estate, consisted 
 
 of,- 
 
 Real estatedescended, and 2000^. 
 by will ajjpointed under a power to 
 charge an estate, and specifically 
 bequeathed in legacies ; 
 
 Land descended, and land spe- 
 cifically devised ; 
 
 Real estate in possession, real 
 estate in reversion, specific lega- 
 cies, and paraphernalia ; 
 
 Land descended, and parapher- 
 nalia ; 
 
 A CouuT of Equity has, to pay 
 debts, taken after the general per- 
 sonal estate, — 
 
 First, the real estate descended, 
 and then the 2000^. {b). 
 
 First, the land descended, and 
 afterwards the land specifically 
 devised (c). 
 
 First, the real estate in posses- 
 sion ; next, the real estate in re- 
 version ; then the specific legacies ; 
 and, lastly, the paraphernalia (d). 
 
 To pay a debt by covenant; first, 
 the land descended, and before the 
 paraphernalia {e). 
 
 (a) On the subject of this Chapter, 
 see, besides the cases after referred to, 
 also the following authorities, — Coie v. 
 Basset, 3 Ves. 155 ; Harmood v. Oglander, 
 6 Ves. 199, 206, 8 Ves. 106 ; Milnes v. 
 Slater, 8 Ves. 295 ; Brookjield v. Bradley, 
 Jacob, 632, 637 ; Hughes v. Doulben, 2 
 Bro. C. C. 614, 2 Cox, 170; Farnham 
 v. Burroughs, 1 Dick. 63 ; Beeves v. 
 Newenham, 1 Vern. & Scriv. 319, 482, 
 495, 2 Ridgew. P. C. 48 ; Thompson \. 
 Latvley, 2 Bos. & P. 303, 310. And see 
 likewise Chapter XXIX. of the piesent 
 'J'reatise. 
 
 (ft) Baintnn v. Ward, 2 Atk. ed. Sand. 
 172 and n. (2), also stated 2 Ves. 2, and 
 from Reg. B. 7 Ves. 503, n. 
 
 (c) Pitt V. Baymond, cited 2 Atk. 434 ; 
 Palmer v. Mason, 1 Atk. 505, (on another 
 point, reported by name of Palmer v. 
 Maysent, 1 Dick. 70, 1 West Cas. T. 
 Hardw. 161) ; Powis v. Corbet, 3 Atk. 
 556. See also Probert v. Clifford, 2 P. 
 W. 5th ed. 544, n., Amb. 6, and ed. 
 Blunt, n., 1 West Cas. T. Ilardw. 638, 
 and 1 Atk. 440. 
 
 ((/) Nicholas V. Southwell, Mos. 177. 
 
 («) Tippitig V. Tipping, I P. W. 729.
 
 en. XXX.] OF THE ORDEK IN 
 
 Land descended, and land dc- 
 vissd, and specific legacies ; 
 
 An advowson in fee in gross 
 descended, and freehold estates in 
 fee, and leasehold estates pur auter 
 vie, devised ; 
 
 Land devised for life, with re- 
 mainders over ; with power to 
 tenant for life to lease for lives, 
 by taking- fines, and reserving small 
 conventionai'y rents ; part of the 
 land being let by the tenant for 
 life in this manner, and part being- 
 let at rack-rents ; 
 
 Real estate, and paraphernalia ; 
 
 WHICH ASSETS ARE, &C. 375 
 
 To pay bond debts ; first, the 
 land descended, and before the land 
 devised, and also before the speci- 
 fic legacies {f). 
 
 • To pay specialty debts ; first, 
 tlie advowson descended, and then, 
 " proportionably in average", the 
 estates in fee, and pur auter vie, 
 devised {g). 
 
 To pay bond debts ; first, the 
 land let at rack-rents, and then the 
 land leased for lives at the small 
 conventionary rents {h). 
 
 Land devised by A. to B., who, 
 with C, was a surety for A., all 
 three joining- in a recognizance ; 
 Laud which A., before his marri- 
 age, settled as a jointure on his 
 
 To pay simple contract debts ; 
 first, the real estate, and then the 
 paraphernalia; the Court directing, 
 in case the personal estate had been 
 exhausted by specialty creditors, 
 then the simple contract creditors 
 to stand in their place, to receive 
 a satisfaction, pro tanto, out of the 
 testator's real estate; and declaring-, 
 that the paraphernalia should be 
 applied to make good the defici- 
 ency (i). 
 
 To satisfy the recognizance ; 
 first, the land devised by A. to B. ; 
 then, the jointure land ; next, the 
 paraphernalia ; and, lastly, the land 
 of B. not devised to him, and of C., 
 
 (/) Chaplin V. Chaplin, 3 P. W. 365, 
 367. 
 
 (g) Westfaling v. Westfaling, 3 Atk, 
 460, 
 
 (/i) Manaton v. Manaton, 2 P. W. 
 234. 
 
 (/) Snetsou v. Coilct, 3 Atk. 369.
 
 376 OF THE ORDER IN WHICH ASSETS ARE, BY A 
 
 wife, who was a purchaser without the other surety {j). 
 notice of the recognizance ; and 
 paraphernalia of the wife of A. ; 
 
 Real estate, by will devised to 
 trustees for the term of 500 years, 
 in trust for the payment of debts, 
 and, subject to this trust, devised 
 in remainders over ; real estate, 
 specifically devised by a codicil ; 
 and real 3state, descended ; 
 
 Paraphernalia ; and real estate, 
 which was subjected by will to the 
 payment of debts ; 
 
 Paraphernalia ; and real estate, 
 charged with the payment of debts, 
 by a will which empowered the 
 executrix to raise money for that 
 purpose, by a mortgage of the 
 estate ; 
 
 Real estate devised, and, by a 
 general charge in the will, made 
 subject to the payment of debts ; 
 and real estate, which, by the fail- 
 ure of a devise in the will, descend- 
 ed to the testator's heir at law ; 
 
 Real estate, which was subject 
 to a mortgage, and was devised, 
 and, by a general charge in the 
 will, made liable to the payment 
 of debts ; and a freehold estate, 
 purchased by the testator after 
 
 [CH. XXX. 
 
 First, the estate made subject to 
 the 500 years' term ; next, the 
 estate descended ; and, lastly, the 
 estate specifically devised by the 
 codicil {k). 
 
 First, the real estate, and after- 
 wards the paraphernalia {I). 
 
 First, the charged estate, and 
 before the paraphernalia (m). 
 
 First, the estate descended, and 
 before the estate devised {n). 
 
 First, the estate descended, 
 which, to pay the debts, was de- 
 creed to be sold or mortgaged ; 
 next, the rents and profits of the 
 same estate ; and then the estate 
 devised, and charged with the pay- 
 
 {j) Tynt V. Tynt, 2 P. W. 542. 
 
 (Ji) Fowls V. Corbet, 3 Atk. 556, cited, 
 as Corbet v. Kitnastov, 1 Bro. C. C. 527 ; 
 also cited 8 Ves. 303 ; and the will in 
 which case is, in 3 Ves. 116, n,, stated 
 from Kejr. B. >See also Morrow v. Bash, 
 1 Cox, lt35. 
 
 (/) Bingham v. Erneley, 2 Eq. Cas. 
 Abr. 250, in marg. 
 
 (m) Boynton v. Parkhurst, 1 Bro. C. 
 C. 576 ; Boyntun v. Boyntun, S. C, 1 
 Cox, 106. 
 
 (n) Williams v. Chitly, 3 Ves. 545.
 
 ClI. XXX.] COURT OF EOUITY, 
 
 making' the will, and descended to 
 his co-heiresses at law ; 
 
 Freehold and leasehold estates, 
 devised to trustees, in trust to sell 
 for payment of debts ; other free- 
 hold and leasehold estates specifi- 
 cally devised, and by the will 
 charg-ed with the deficiency, in 
 case the money to be raised by the 
 trustees should not be sufficient to 
 discharge the debts ; and a free- 
 hold estate, purchased by the tes- 
 tator after the making of his will, 
 and descended to his heir at law ; 
 
 A copyhold estate, which a tes- 
 tator willed that his executors 
 should sell, in trust for payment 
 of his debts ; and freehold estates, 
 specifically devised ; 
 
 Freehold and copyhold estates, 
 devised to different persons, the 
 copj'hold being surrendered to the 
 use of the will, and the testator 
 having by his will expressly charged 
 " all and singular his real estate" 
 with the jiavment of his debts ; 
 
 Real estates in the West Indies, 
 and which a person devised to 
 trustees, upon trust to receive the 
 rents and profits, and apply the 
 same in payment of his debts ; and 
 
 TAKEN TO PAY DE15TS. 
 
 ment of debts (o). 
 
 :377 
 
 First, the estates devised, in 
 trust to be sold to pay debts ; 
 then, the estates specifically de- 
 vised, and charged with debts ; 
 and afterwards the estate descen- 
 ded (jo). 
 
 First, the copyhold estate, and 
 before the freeholds ; and although 
 the copyhold was not surrendered 
 to the use of the will (jq). 
 
 Freehold and copyhold, without 
 priority ; that is, " rateably, ac- 
 cording to their value " (r). 
 
 First, and before the estate de- 
 scended, the estates devised, and, 
 by that devise or specific gift, 
 expressly appropriated to, and se- 
 lected for the purpose of paying. 
 
 (,.) Davies v. Topp, 1 Bro. C. C. 524, 
 cited 2 Bro. C, C. 262. A similar case 
 is Wride v. Clarke, 1 Dick. 382, 2 Bro. 
 C. C.261, n. Pyowe v. Beavis, 1 Dick. 
 178, contains this general statement, — 
 " Rents and profits of a real estate de- 
 scended are to be accounted for, and ap- 
 plied, before the inheritance is sold, and 
 applied". 
 
 (p) Bonne v. Lewis, 2 Bro. C. C. 257, 
 cited 8 Ves. 125. 303. 
 
 (q) B'lxlii, or Bixhij, v. £/ei/, 2 Dick. 
 698, 2 Bro. C. C. 325. 
 
 (r) Growcock v. Smith, 2 Cox, 397. 
 See Harris v. Ingledew, 3 P. W. 91 ; 
 also Chap. IV., Sect. IV., of the present 
 Treatise.
 
 378 OF THE ORDER IN WHICH ASSETS ARE, BY A [cil. XXX.. 
 
 an estate, which the testator pur- the debts (s). 
 chased after the making- of his will, 
 and which, the will not being- re- 
 published, descended to his heir ; 
 Real estate devised, and charged 
 by the will with the payment of 
 debts, and to sell which estate for 
 that purpose, a power was given 
 to the executors ; other real estate, 
 specifically devised ; and personal 
 estate, specifically bequeathed ; 
 
 Real estate, which a person 
 mortg-ag-ed, and devised by his 
 will ; and real estate, which he 
 afterwards purchased, and which, 
 the will not being republished, 
 descended to his heir at law ; 
 
 Copyhold lands, which a person 
 mortgaged, and devised to his 
 nephew, in fee ; and freehold lands, 
 which the testator devised to his 
 only son, in fee ; the words of the 
 latter devise being-, " after all the 
 testator's debts paid, the rest and 
 residue of all his real and personal 
 estate should go to his son " ; 
 
 First, the real estate charged 
 with the payment of debts ; ijext, 
 the rents and profits of the same 
 estate ; and if these funds were 
 deficient, then the deficiency to be 
 made good out of the personal es- 
 tate specifically bequeathed, and 
 the other real estate specifically 
 devised, and each to contribute in 
 proportion (t). 
 
 To pay the mortgage debt, 
 (which was a debt by specialty,) 
 first, the estate descended, and in 
 exoneration of the devised es- 
 tate (m). 
 
 To pay the mortgage debt ; first, 
 and in exoneration of the land 
 mortgag-ed, the real estate devised 
 to the son ; and then the rents 
 and profits of the real estate, that 
 had been received by the son since 
 the father's death (w). 
 
 (s) Mannmg v. Spooner, 3 Ves. 114. 
 On the word " selected " there used, see 
 8 Ves. 304. In the judgment in Man- 
 ning V. Spooner, Sir R. P. Arden said, 
 the heir could not avail herself of her right 
 not to be called upon to contribute until 
 the appropriated fund was exhausted, "ex- 
 cept by being reimbursed out of the rents 
 and profits of this trust fund. She can- 
 not postpone the creditors. That was the 
 case of Lingard v. Lord Derbii, 1 Bro. 
 C.C. 311. The testator may arrange be- 
 
 tween his heir and devisee ; but not so as 
 to take away from the creditor a fund he 
 has a right to come upon." (3 Ves. 118). 
 On Lingard v. Earl of Derby, and Lord 
 Loughborough's opinion there expressed, 
 see Chapter XV., Sect. I., of the present 
 Treatise. 
 
 (0 Silk V. Prime, 1 Dick. 384, 1 Bro. 
 C.C. 138, n. See 2 Bos. & P. 310. 
 
 (ji) Gallon V. Hancock, 2 Atk. 424, 
 435 ; cited 2 Bro. C. C. 263, 
 
 ((') King V. King, 3 P. W, 358.
 
 CH. XXX.] COURT OF EQUITY, TAKEN TO PAY DEBTS. 379 
 
 The authorities which have been mentioned, offer, it will 
 be seen, two principal classes of cases, — one, where a will does 
 not provide a real fund, or fund of real estate, for the payment 
 of debts ; and the other, where such a provision is contained in 
 the will; and, in each of which classes, the question, on the order 
 of the assets, lies between the testator's heir at law, and a party 
 who claims under the ancestor's will, namely, a specific legatee, 
 or a devisee. 
 
 When the will does not provide a real fund for the payment 
 of debts, then the authorities mentioned appear to afford this 
 general conclusion, — that in the case of debts by bond, or other 
 special contract, binding the testator's heir at law, and which are 
 not secured by mortgage, real estate descended is, to pay those 
 debts, taken before either a specific legacy (ly), or real estate, 
 which is specifically devised (x). 
 
 When the will does provide a real fund for the payment of 
 debts, then the authorities appear to afford these general conclu- 
 sions, in the case of debts by bond, or other special contract, 
 binding the testator's heir at law, and which are not secured by 
 mortgage, — 1. That to pay those debts, real estate purchased 
 after the making of the will, and descended to the testator's heir 
 at law, is taken before real estate devised, and, which devised 
 estate is, by &, general charge only, made by the will liable to such 
 debts {y) ; as where this charge is effected by an introductory 
 clause, containing the general words, " As to my worldly estate, 
 either real or personal, after payment of my debts, I give and 
 dispose thereof in manner following", and by these additional 
 words in a subsequent part of the will, — " I charge and make 
 chargeable all my real and personal estate with the payment of 
 my debts, and subject thereto, 1 devise ", &c. {z) ; or where the 
 
 {w) Chaplin V. Chaplin, 3 P. W. 365, 
 367 ; Bainton v. Ward, 2 Atk. ed. Sand. 
 172, and n. (2), also stated 2 Ves. 2, and 
 from Reg. B. 7 Ves. 503, n. 
 
 (i) Chaplin V. Chaplin, 3 P. W. 365, 
 3C)7-, Palmer v. Mason, 1 Atk. 505; 
 Westfaling v. WestfaUng, 3 Atk. 460. 
 
 (y) Davies v. Topp, 1 Bro. C. C. 524 ; 
 Wride v. Clarke, 1 Dick. 382 ; Williams 
 V. Chitty, 3 Ves. 545. See also 2 Bro. 
 C. C. 262—266, 3 Ves. 1)7, 118. 
 
 (:) 1 Bro. C. C. 524, cited 2 Bro. 
 C. C. 264
 
 380 OV THE OUDEIl IN WHICH ASSETS AKE, BY A [CH. XXX. 
 
 like charge is effected by the words, " I will that all my debts 
 shall be paid, and I cliarge all my estates with the payment 
 thereof, and, subject thereto, I devise", &c. («). — 2. That to 
 pay the like debts, real estate devised is taken before real 
 estate purchased after the making of the will, and descended 
 to the testator's heir at law, in instances where the devised 
 estate is, by a special charge, made liable to the debts (b). 
 
 Also, when the will does provide a real fund for the payment 
 of debts, then the authorities mentioned appear to afford these 
 farther general conclusions in the case of debts by bond, or other 
 special contract, binding the testator's heir at law, and which are 
 not secured by mortgage ; namely,, that, where a contrary inten- 
 tion does not appear in the will, a Court of Equity takes, to pay 
 those debts, a real fund created (c) for the purpose, and only for 
 the purpose (c?), of paying debts, before real estate devised, and, 
 by a special charge in the will, made liable to the debts (e) : and 
 real estate devised, and so specially charged, before real estate 
 descended (f) ; and whether such real estate descended was pur- 
 chased after the making of the will (//), or the testator was seised 
 of it at the time the will was made (/<) : and real estate descended 
 before real estate devised, and which devised estate is, by a 
 general charge only in the will, made liable to the debts (i); and 
 whether the real estate descended was purchased after the making 
 of the will (j), or the testator was seised of it at the time the will 
 was made (A), and, in the latter case, the cause of the descent 
 wa&a failure of a devise in the will (Z) : and real estate devised, 
 
 (a) 1 Dick. 382 ; 2 Bro. C. C. 261, n. 
 (6) Donne v. Lewis, 2 Bro. C. C. 
 257 ; Manning v. Spooner, 3 Ves. 114. 
 
 (c) 8 Ves. 304. 
 
 (d) 3 Ves. 118. 
 
 (e) Donne v. Lewis, 2 Bro. C. C.257, 
 cited 8 Ves. 125, 303. 
 
 (y) Donne V. Lewis, a.hove ; Powis \, 
 Corbet, 3 Atk. 556, cited, as Corbet v. 
 Kynaston, 1 Bro. C. C. 527, also 8 Ves. 
 303, and the will in which case is in 3 
 Ves. 116, n., stated from Beg. B. ; Blan- 
 ning V. S}Hioner,3 Ves. 114. 
 
 (g) Domie V. Lewis, Powis v. Corbet, 
 and Mannijig v. Spooner, above. 
 
 (h) 2 Bro. C. C. 262, 263, 265 ; 3 
 Ves. 118 ; 8 Ves. 303, 304. See 1 Bro. 
 C. C. 527, 528. 
 
 (0 Wride V. Clarke. 1 Dick. 382, 2 
 Bro. C. C. 261, n.; Davies v. Topp, 1 
 Bro. C. C. 524, cited 2 Bro. C. C, 262 ; 
 WiUiams v. Chitty, 3 Ves. 545. 
 
 (j) Wride v. Clarke, and Davies v. 
 Topp, above. 
 
 (k) 3 Ves. 552 ; 8 Ves. 304. 
 
 (/) Williams v. Chitty, above.
 
 CH. XXX.] COURT OF EQUITY, TAKEN TO PAY DEBTS. 381 
 
 and so generally charged, before real estate devised, and not made 
 by the testator a fund for the payment of his debts (m) : and, 
 consequently, to satisfy the debts mentioned, the different funds 
 stand in the following order to be taken to pay them, — 
 
 1. A real fund created for the" purpose, and only for the pur- 
 pose, of paying debts ; 
 
 2. Real estate devised, and, by a special charge in the will, 
 made liable to the debts ; 
 
 3. Real estate descended ; 
 
 4. Real estate devised, and, by a general charge only in the 
 will, made liable to the debts (w) ; 
 
 5. Real estate devised, and not made by the testator a fund 
 for the payment of his debts (o). 
 
 With regard to the place, which a testator's personal estate 
 occupies in the range of assets, to be taken to pay his debts, it 
 may farther be mentioned, that, except where the personalty is 
 exempted from this payment (7?), a Court of Equity takes to sa- 
 tisfy either specialty or simple contract debts, first, the personal 
 estate, which is not bequeathed in specific legacies (g) ; afterwards, 
 the specific legacies (r) ; and, lastly, the testator's widow's para- 
 phernalia (s). And to pay debts by specialty, in which the testa- 
 tor's heirs are bound, a Court of Equity takes, first, the personal 
 estate which is not specifically bequeathed {t) ; and, afterwards, 
 freehold land descended, and before either paraphernalia (w), or 
 specific legacies {v). And to pay the like debts, freehold land 
 
 (m) See 1 Bro. C. C. 527, and 8 Ves. 
 124, 125. 
 
 (n) 1 Bio. C. C. 527 ; 2 Bro. C. C. 
 263; 3 Ves. 117, 118; 8 Ves. 124. 125. 
 
 (o) See 1 Bro. C. C. 527, and 8 Ves. 
 124, 125. 
 
 (p) 1 Bro. C. C. 527; 2 Bro. C. C. 
 263; 3 Ves. 117. On Exemption, see 
 also in the present Treatise, Chapter III., 
 Sect, v., and Chapter IV., Sect. V. 
 
 (q) 2 Atk. 625 ; 2 Bro. C. C. 263 ; 3 
 Ves. 117 ; 1 Dick. 385 ; 8 Ves. 124. 
 
 (r) Nicholas v. Southwell, Mos. 177 ; 
 Duke of Devon v. Atkins, 2 P. W. 381 ; 
 
 Cotterell v. Chamherlain, Bunb. 32 ; 
 Parrott v. Worsfold, 1 Jac, & W. 594.— 
 2 Sch. & Lef. 544. 
 
 («) Nicholas \. Southwell, Mos. 177. — 
 1 P. W. 730. 
 
 (0 2 Atk. 624, 625 ; 1 Bro. C. C. 
 525, 526. 
 
 (m) Tipping V. Tipping, 1 P. W. 729. 
 —8 Ves. 397. 
 
 (v) Chaplin v. Chaplin, 3 P. W. 365, 
 367 ; Bainton v. Ward, 2 Atk. ed. Sand. 
 172, and n. (2), also stated 2 Ves. 2, and 
 from Reg. B. 7 Ves. 503, n. ; Davies v. 
 Topp, 1 Bro.C.C.524,— 2Sch.&Lef.544.
 
 382 or THE ORDER IN WHICH ASSETS ARE, BY A [CH. XXX. 
 
 beneficially devised is taken before paraphernalia {w). But it 
 appears that specific legacies, and freehold land beneficially and 
 specifically (.r) devised, are, to satisfy those debts, made to con- 
 tribute rateably, according to their respective values (y) ; except 
 the land devised is by the wall charged with the payment of debts, 
 in which case, it would seem, although the charge is general 
 only, the land devised is taken before the specific legacies (z). 
 
 In Choat v. Yeats, S. M., by her will, gave legacies of different 
 sums of stock, and other legacies, amongst which was one of 30/., 
 which she directed to be paid out of her funded property. And 
 she gave all the rest, residue, and remainder, of her funded pro- 
 perty, after payment of her debts, legacies, funeral, and testa- 
 mentary expenses, to the plaintiff, for his own use. All the rest, 
 residue, and remainder, of her real and personal estate, she gave 
 to trustees, upon certain trusts. On this will, Sir T. Plumer de- 
 cided, that if the stock should be insufficient to pay the debts and 
 legacies, the creditors and legatees would have a right to resort 
 to the other personal estate ; but that, as between those two funds, 
 the stock must be first applied (a). In Browne v. Groomhridge, 
 H. H. B., by his will, gave to his executors a specific fund, con- 
 sisting of exchequer bills, money at his bankers, money due on 
 policies of life insurance, money in the public funds, and debts 
 owing to him, upon trust, among other purposes, to pay his debts, 
 funeral and testamentary expenses, and also certain legacies; 
 
 (w) 8 Ves. 397. See also Nicholas v. 
 Southwell, Mos. 177, and Bingham v. 
 Erneley, 2 Eq. Cas. Abr. 250, in marg. 
 
 (s) That every devise of land, or real 
 estate, and whether made "in particular 
 or general terms", or " in form residuary", 
 is specific, " from this circumstance, that 
 a man can devise only what he has at the 
 time of devising", see 1 P. W. 679 ; 3 
 P. W. 324 ; Amb. 173 ; 7 Ves. 147 ; 8 
 Ves, 305 ; 10 Ves. 605 ; 1 Ves. & B. 
 175; and 1 Y. & Jerv. 310, 311, 
 
 (y) Long V, Short, 1 P, W. 403, and 
 5th ed. n. (1) ; Short v. Long, S. C, 2 
 Vern. 756 ; Silk v. Prime, 1 Dick. 384, 
 1 Bro. C. C. 138, n,; Oneal v. Mead, 1 
 
 P. W, 693, See Haslewood v. Pope, 3 
 P. W. 324, 5th point; and Warner v. 
 Hayes, 4 Vin, Abr. 468, 8 Vin. Abr. 
 442, 2 Eq. Cas, Abr. 493, 552 ; Warner 
 V. Hawes, 3 Bro. P. C. ed. Toml. 21, 3 
 Ch. Hep. 206, probably S, C, 
 
 (:) 8 Ves. 124, 125. In Davies v. 
 Topp, 1 Bro. C. C. 524, where lands 
 beneficially devised were, to pay debts, 
 taken before specific legacies, by the will 
 the lands were, by a general charge, made 
 liable to the debts, and the specific lega- 
 cies were exempted from the payment of 
 them. 
 
 («) 1 Jac. & W. 102.
 
 CH. XXX.] COURT OF EQUITY, TAKEN TO PAY DEBTS. 383 
 
 and he gave and bequeathed all the rest and residue of his estate 
 and effects to his wife. Sir J. Leach decided, that the debts and 
 legacies were not to be paid in the first instance out of the resi- 
 duary estate, and that the specific fund was first liable to pay 
 them ; his Honor holding, " that," by the clear expressions of the 
 will, the debts and legacies were immediately charged upon that 
 part of the personal estate, wdiich was comprised in the specific 
 gift" (i). 
 
 In an earlier case, Holford v. Wood, and which does not appear 
 to have been noticed in either of the two authorities last men- 
 tioned, a person by her will gave a specified fund, consisting of 
 leasehold premises, and certain other parts of her personal 
 property, to her sole executor, for his own use, " subject only 
 to the payment of the following annuities and legacies " ; which, 
 accordingly, in this place were bequeathed by the testatrix. Sir 
 R. P. Arden decided, that the specific bequest to the executor 
 " is not to be considered as the primary fund for the legacies 
 and annuities, but as an auxiliary fund, in case the general 
 personal estate is not sufficient" (c). This case appears to be 
 materially distinguishable from Choat v. Yeats, and Browne v. 
 Groombridge, by the circumstance, that the will in Holford 
 V. Wood contains no disposition of the residue of the testatrix's 
 personal estate ; and to this instance, therefore, appear to be 
 applicable. Lord Loughborough's words, " In the distribution of 
 assets, the Court always applies assets, not specifically given to 
 any one, before assets that are specifically given ", an observation 
 which his Lordship made in a case where he held, that, to pay 
 the debts of the testator, a descended estate was liable, before an 
 estate which was devised, and, by a general charge in the will, 
 made liable to the payment of them [d). 
 
 A legacy, which is most commonly called a specific, but which 
 is more properly an individual (e), legacy, appears to be a chattel, 
 personal or real, possessed by a testator, either at the time 
 
 (6) 4 Madd. 495. 
 
 (c) 4 Ves. 76. 
 
 (rf) WiUiams v. Chitty, 3 Ves. 552. 
 On first applying a fund left undisposed 
 of, see also Attorney General v, Tomkins, 
 
 Arab. ed. Blunt, 217, and 218, n. (5) ; 
 and Negus v. Coulter, 1 Dick. 326, Anib. 
 367, and ed. Blunt, 368, n. (2). 
 
 (e) 1 West Cas. T. Hardw. 482 ; 1 
 Atk. 417.
 
 384 OF TIIK ORDER IN WHICH ASSETS ARE," BY A [CH. XXX. 
 
 when the will is made, or at his death, and, when at his death, 
 then also at the time of making the will, or during some inter- 
 vening period ; and which chattel is by the will specifically- 
 selected out of the testator's estate so possessed by him, he mean- 
 ing that the very chattel thus selected shall be the subject of the 
 gift, and not that the gift may be supplied by, indifferently, 
 any part of his estate [f). It is necessary that the will contain 
 some word or expression, that is evidence of these two character- 
 istics of a specific legacy, namely, possession and selection {y) ; 
 and the expression, which, perhaps, most commonly affords this 
 evidence, is the possessive pronoun, my {h). 
 
 Amongst other (^) instances of a specific legacy of a chattel, 
 as of stock, or money in the public funds (j), of a debt (7^), of 
 money secured by mortgage (Z), and of a term of, or leasehold 
 
 (/) 1 West Cas. T. Hardw. 482, 483 ; 
 1 Atk. 417. On some advantages and 
 disadvantages, which attend a specific 
 legacy, see 1 Vern. 31 ; 1 P. W. 540, 
 679, 680 ; 3 P. W, 385 ; Cas. T, Talb. 
 152 ; Prec. Ch. 401 ; 1 West Cas. T. 
 Hardw. 483 ; 2 Ves. 624. And that a 
 Court of Equity leans against construing 
 a legacy to be specific, see Amb. 310 ; 4 
 Ves. 565, 572, 752 ; and 8 Ves. 413. 
 , {g) 1 West Cas. T. Hardw. 479, 482 ; 
 Amb. 59; 4 Ves. 573. SeelBro. C. C. 
 566, and 18 Ves. 466. 
 
 (/i) 1 West Cas. T. Hardw. 478, 479, 
 481, 482; 1 Atk. 416; 1 Ves. 425 ; 2 
 Ves. 562, 563, 624 ; 2 Bro. C. C. 112 ; 
 ) Jac. & W. 602. 
 
 (i) Ellis V. Walker, Amb. 310 ; Walker 
 V. Jackson, 2 Atk. 624 ; Pulsford v. Hun- 
 ter, 3 Bro. C. C. 416 ; Nishett v. Murray, 
 5 Ves. 149 ; Page v. Leapingwell, 18 
 Ves. 463. 
 
 (J) Ashton V. Ashton, Cas, T. Talb. 
 152, 3 P. W. 384, cited 1 West. Cas. T. 
 Hardw. 488, 1 Atk. 418, 1 Ves. 425,2 Ves. 
 564, and 4 Bro. C. C. 348. (When, in 
 9 Ves. 181, Sir W. Grant said, that 
 Ashton V. Ashton had been overruled by 
 modern decisions, he perhaps meant 
 
 merely that the case, as stated by Counsel, 
 had been overruled, for it was incorrectly 
 cited before him). Avelyn v. Ward, 1 
 Ves. 420, 424, and Belt's Supplem. 184, 
 2nd ed. 195, cited 4 Bro. C. C. 347, 348, 
 349; Sleech v. Thorington, 2 Ves. 560, 
 on the South Sea Annuities ; Jeffreys v. 
 Jeffreys, 3 Atk. 120 ; Cooper v. Martin, 
 1 West Cas. T. Hardw. 442 ; Cook v. 
 Martyn, S. C, 2 Atk. 2 ; Stafford v. 
 Horton, 1 Bro. C. C. 482; Morley v. 
 Bird, 3 Ves. 629 ; Richardson v. Brown, 
 4 Ves. 177; Barrington v. Tristram, 6 
 Ves. 345 ; Franklin v. The Bank of 
 England, I Russ. 575, 9 B. & C. 156, 4 
 Mann. & Ryl. 11; Evans v. Tripp, 6 
 Madd. 91 ; Fontaine v. Tyler, 9 Price, 
 94 ; Richards v. Richards, ib. 219. 
 
 (/c) Lord Castlelon v. Lord Fanshaw, 
 1 Eq. Cas. Abr. 298, cited 4 Ves. 566; 
 Chaworth v. Beech, 4 Ves. 555 ; Innes v. 
 Johnson, ih. 568 ; Gillaume v. Adderley, 
 15 Ves. 384, on the first legacy in the 
 will. On a legacy of a debt, and some 
 distinctions between a specific and a de- 
 monstrative legacy, see Chapter VI., 
 Sect. XIII., of the present Treatise. 
 
 (I) Parrott v. Worsfold, 1 Jac. & W. 
 594.
 
 CH. XXX.] COURT OF EQUITY, TAKEN TO PAY DEBTS, 385 
 
 for, years (w), the following bequests may be chosen for exam- 
 ples, — " 1 give all my personal estate in W., except my bed and 
 bedding, to J. S. " (w) : " I bequeath to E. B. all and singular 
 my household goods, household furniture, jewels, plate, pictures, 
 horses, chaise, linen, woollen, and all other moveables in my said 
 house and premises " (o) : " To my eldest son, J. II., I give and 
 bequeath unto him such part of my stock of horses, which he shall 
 select, to be fairly valued and appraised, to the amount of 800/." (p) : 
 " I bequeath to W. B. my capital stock of lOOOZ. in the India 
 Company's stock, with the dividend thereon arising, which dividend 
 is to pay for his education and maintenance till he is qualified for 
 holy orders, and then the capital to be laid out in the purchase of 
 a living for him in the Church. This stock is to be continued 
 or disposed of, at the discretion of my executors" (q) : "I bequeath 
 to J. C. B. 3000/. stock, in the three per cent, consols bank annui- 
 ties, being part of my stock now standing in my name in the Com- 
 pany's books, to be transferred to him by my executors herein- 
 after named, when he shall attain the age of twenty-one, the 
 interest thereof in the mean time to be applied towards his educa- 
 tion "(r): "I bequeath the sum of 11,000/. capital bank stock, 
 now standing in my name in the books of the Governor and 
 Company of the Bank of England, unto W. N. T. " (s) : " I 
 give to A. and B. all the stock which I have in the three per 
 cents., being about 5000/., except 500/., which I give to C. " {/) : 
 " I give to J. F. 10/. per annum for life, to be paid out of my 
 dividends of 400/. in the joint stock of South Sea annuities. 
 
 (to) Lord Castleton v. Lord Fanshaw, 
 1 Eq. Cas. Abr. 298 ; Bichards v. liich- 
 ards, 9 Price, 219. 
 
 (71) Sayer v. Sayer, Prec. Ch. 392, 
 Gilb. Eq. Rep. 87, 2 Vern. 688. 
 
 (0) Barf 07! V. Cooke, 5 Ves. 461, 464. 
 See also Gayre v. Gayre, 2 Vern. 538 ; 
 Earl of Shaftsbury v. Countess of Shafts- 
 bury, ib. 747 ; Kelly v. Powlet, Amb. 605, 
 1 Dick. 359 j Green v. Symo7ids, 1 Bro. 
 C. C. 129, n. ; Land v. Devaynes, 4 Bro. 
 
 C. C. 537. On a bequest of goods and 
 chattels on board a ship, see Cliapmun v. 
 Hart, 1 Ves. 271. 
 
 (p) Richards v. Richards, 9 Price, 219. 
 
 (5) Ashhurner v. Macguire, 2 Bro. C. 
 C. 108. 
 
 (7-) Barton v. Cooke, 5 Ves. 461. 
 
 (s) Morris v. Harrison, 2 Madd. 268, 
 279. 
 
 (t) Humphreys v. Humphreys, 2 Cox, 
 184, 1 P. W. 5th ed. 306, n, (2).
 
 386 OF THE ORDER, IN WHICH ASSETS ARE, BY A [CH. XXX. 
 
 now standing in the Company's books in my name; and I do 
 hereby charge my said annuity stock with payment thereof 
 accordingly. And I give to J. D. my 400/. East India stock ; 
 and also my 400/. joint stock in South Sea new annuities, 
 subject to the payment of said annuity, to M. B. " {71). 
 
 A general legacy, and which, when it consists of a chattel 
 personal, is often called a pecuniary {v) legacy, seems to be a 
 chattel, personal or real, the gift of which the testator intends 
 may be supplied by any part of his estate, capable of being the 
 subject of the gift (w). Several cases occur, wherein a legacy 
 has been held to be general, and not specific (a ). In the number 
 may be particularly mentioned the instances of, — a sum of money 
 bequeathed, in trust to lay it out in a purchase of land (j/) : 
 a specified sum of bank annuities, directed to be purchased out 
 of the testator's personal estate for persons named in his will (z) : 
 stock, or money in the public funds (a) : a sum of money which 
 a testator bequeathed out of his personal estate to A., to purchase 
 her an annuity for her life {b) : a life annuity, bequeathed out of 
 the testator's personal estate (c). Examples of a general legacy 
 I bequeath to R. F. and his wife, the sum of 50/. each. 
 
 are 
 
 (it) Diinkwater v. Falconer, 2 Ves. 
 623 ; where all the three legacies were 
 held to be specific. 
 
 {v) 1 Atk. 509 ; 1 Dick. 324 ; 1 Bro. 
 C. C. 566. 
 
 (w) 2 Ves. 563. 
 
 (x) Anon. V. Wilkinson, 2 Ch. Cas. 25; 
 Laioson V. .Stitch, 1 Atk. 507, 1 West 
 Cas. T. Hardw. 325 , Stirling v. Lydiard, 
 3 Atk. 199 ; Sleech v. Thorington, 2 Ves. 
 560, on the bequest of the East India 
 bonds ; Raymond v. Brodbelt, 5 Ves. 
 199 ; Howe V. Earl of Dartmouth, 7 Ves. 
 137 ; Sadler v. Turner, 8 Ves. 617, 624 ; 
 Lambert v. Lambert, 11 Ves. 607; Gil- 
 laum V. Adderley, 15 Ves. 384 ; Mann v. 
 Copland, 2 IMadd. 223 ; Willox v. Rhodes, 
 2 Russ. 452. 
 
 (y) Uinton V. Pinke, 1 P. W. 539. 
 
 (c) Gibbons v. Hills, 1 Dick. 324. 
 (a) Partridge v. Partridge, Cas, T. 
 Talb. 226, 1 Atk. 417, n., and also stated 
 by Lord Hardwicke, 1 West Cas. T. 
 Hardw. 484 ; Bronsdon v. Winter, Amb. 
 57, stated 3 Atk. 123, and cited 4 Bro. 
 C. C. 349 ; Siniimms v. Vallance, 4 Bro. 
 C. C. 345 ; Blackshaw v. Roberts, cited 
 ib. 349 ; Richardson v. Brown, 4 Ves. 
 177 ; Constantine v. Conslantine, 6 Ves. 
 100 ; Sibley v. Perry, 7 Ves. 522 ; Web- 
 ster V. Hale, 8 Ves. 410 ; Deane v. Test, 
 9 Ves. 146 ; Parrott v. Worsfold, 1 Jac. 
 & W. 594. 
 
 (&) Halton, or Alton, v. Medlicot, cited 
 3 Atk. 694, and 2 Ves. 417. 
 
 (c) Hume v. Edwards, 3 Atk. 693. 
 See Peacock v. Monk, 1 Ves. 127, 133, 
 and Lewin v. Lewin, 2 Ves, 415.
 
 CH. XXX.] COURT OF EQUITY, TAKEN TO PAY DEBTS. 387 
 
 for a riiig"(f/): "I give to A. S. 5000/. in the old annuity- 
 stock of the South Sea Company" (e): "I give to Storey's 
 Hospital 3400/. in the three per cents., the annual dividends of 
 which to be every half year divided betwixt four widows "(/"): 
 " I give to F. K. K. a legacy of 1000/. out of my reduced bank 
 annuities three per cents, by my executor within one month 
 from my decease " (g) : " I give to T. W. and W. W. 200/., 
 four per cent, consolidated bank annuities " (h). 
 
 ((/) Apreece v. Apreece, 1 Ves. & B. 
 364. 
 
 (e) Purse v. Snablin, or Snaplin, 1 
 West Cas. T. Hardw. 470, 1 Atk. 414, 
 cited, as Pierce v. Snaveling, in I Ves. 
 425. 
 
 (/') Bishop of Peterborough v. Mart- 
 lock, 1 Bro. C. C. 565. 
 
 (g) Kirby v. Potter, 4 Ves. 748. See 
 also Deane v. Test, 9 Ves. 146. 
 
 (h) Wilson V. Brownsmith, 9 Ves. 180. 
 
 c c 2
 
 388 
 
 CHAPTER XXXI. 
 
 OF TACKING TO A MORTGAGE. 
 
 Sect. I. — Of the Principle of Tacking. 
 
 II. — Of the Tacking of Costs, or Expenses. 
 III. — Of the Tacking of a Bond Debt. 
 IV.' — Of the Tacking of a Simple Contract Debt. 
 V. — Of the Extension of the Principle to compel — 1. A 
 Redemption of a different Mortgage of different 
 Land ; and 2. A Hedemption of the xchole of one 
 Mortgage. 
 
 SECTION I. 
 
 OF THE PRINCIPLE OF TACKING. 
 
 When land is mortgaged, on condition of redemption by 
 payment, at a certain day, of principal and interest ; while the 
 condition is neither fulfilled nor broken, the mortgagee is seised 
 or possessed of an estate in the land, liable to be defeated by the 
 performance of the condition [a). But so soon as the condition 
 is broken, at law that estate is forfeited to the mortgagee. In 
 equity, however, it is still considered to be a pledge only, which, 
 under certain restrictions, may, notwithstanding the forfeiture, 
 be redeemed {b). But although, in general cases, a Court of 
 Equity allows the pledge to be redeemed on payment of principal 
 and interest, yet where, in the opinion of the Court, the mort- 
 gagee has against the mortgagor an equity to be, at the time of 
 redemption, satisfied a farther claim against him, the Court will 
 
 (a) 15 Vin. Abr. 440, pi. 7. (fc) 2 Eden Rep. 79, 80; 2 Ves. jun. 377.
 
 S. II.] or THE TACKING OF COSTS, Oil EXPENSES. 089 
 
 not take from the mortgagee his legal right to the estate for- 
 feited, except upon terms considered by the Court to be an 
 equitable arrangement between the parties (c). The rule adopted 
 is, " He, that will have equity to help where the law cannot, shall 
 do equity to the same party against whom he seeks to be relieved 
 in equity" (d). The legal right, and that equity against the 
 mortgagor, constitute the principle of tacking: want of that 
 equity will prevent tacking [e). 
 
 SECTION II. 
 
 OF THE TACKING OF COSTS, OR EXPENSES. 
 
 A MORTGAGEE has not universally, but generally, and except 
 under particular circumstances (J"), an equity to claim out of the 
 mortgaged estate payment of all his costs, or expenses, to which 
 he has been put in consequence of the mortgage. And therefore 
 on redemption, he is, generally speaking, entitled to be paid 
 those costs, or expenses (</) ; as,— costs " in defending his mort- 
 gage at law " (A) : " expenses in law-suits to foreclose the mort- 
 gagor, and otherwise in relation to the estate " (i) : fines paid 
 on the renewal of a church lease mortgaged {j) : money ex- 
 pended " in supporting the right of the mortgagor to the estate, 
 where his title has been impeached " {k) : in some circumstances, 
 
 (c) Rayson, or Ruuson, v. Sacheverell, 
 
 1 Vern. 41, 2 Ch. Cas. 98; Saint John 
 V. Holford, 1 Ch. Cas. 97 ; Demandray, 
 or Demainljray, v. Metcalf, Prec. Ch. 
 419, 2 Vern. 691, 698 ; Jones v. Smith, 
 
 2 Ves. jun. 377 ; Wetherell v. Collins, 3 
 Madd. 255. 
 
 (d) 1 Ch. Cas. 97; Prec. Ch. 420; 2 
 Eden, 80. 
 
 (e) Bromley v. Hamond, 2 Ch. Cas. 23. 
 (_/') Mocatta v. Murgatroyd, 1 P. W. 
 
 393 ; Gilbert v. Golding, 2 Austr. 442 ; 
 Skipp V. Wyatt, 1 Cox, 353 ; Detellin v. 
 Gale, 7 Ves. 583 ; Ex parte Harris, cited 
 in Ex parte Trew, 3 Madd. 372 ; Barry 
 
 V. Wrey, 3 Russ. 465 ; Archdeacon v. 
 Bowes, M'Clel. 149 ; Morony v. O^Dea, 
 1 Ball & B. 109, 121. 
 
 (g) Hunt V. Fownes, 9 Ves, 70 ; Ex 
 parte Brightens, 1 Swanst. 3 ; Ellison v. 
 Wright, 3 Russ. 458 ; Wilson v. Metcalfe, 
 3 Madd. 45 ; Wetherell v. Collins, ib, 
 255 ; Ex parte Trew, ib. 372 ; Loftus v. 
 Swift, 2 Sch. & Lef. 642, 657 ; Webb v. 
 Rorke,ib. 661, 676. 
 
 (/t) Ramsden v. Langley, 2 Vern. 536. 
 
 (i) Lomax v. Hide, 2 Vern. 185. 
 
 (j) Manlove v. Bale, 2 Vern. 84; 
 Lucam v. Mertins, 1 Wils. 34. 
 
 (A) Godfrey v. Watson, 3 Atk. 518.
 
 390 OF THE TACKING OF A BOND DEBT. [CH. XXXI. 
 
 money paid to a bailiff, or receiver, to receive tlic rents of the 
 estate (l) : and, in some circumstances, money paid to a bailiff, 
 to manage the estate (w). 
 
 The general language of a Court of Equity is, — " At law, after 
 a mortgage is forfeited, the estate is the absolute property of the 
 mortgagee, and he may deal with it as his own ; and if the mort- 
 gagor comes for the redemption, which the equity of this Court 
 gives him, it must be upon the terms of indemnifying the mort- 
 gagee from all costs arising out of his legal acts" (n). 
 
 SECTION III. 
 
 OF THE TACKING OF A BOND DEBT. 
 
 When a mortgage is made by a person seised in fee, and the 
 mortgagor is farther indebted to the mortgagee by bond, entered 
 into before or after the mortgage (o), here, on payment of the 
 mortgage debt only, and without the bond debt, a Court of 
 Equity allows a redemption by — the mortgagor himself (j)) : by 
 a purchaser for a valuable consideration of the equity of redemp- 
 tion (q) : by a mortgagee of the equity of redemption (r): and 
 by the assignees of the mortgagor, become bankrupt {s) : and, 
 after the death of the mortgagor, — by one, who, for a valuable 
 consideration, has purchased the equity of redemption from the 
 
 (0 Godfrey v. Watsori, 3 Atk. 518 ; 
 Davis V. Bendy, 3 Madd. 170 ; Carew v. 
 Johnston, 2 Sch. & Lef. 301, 
 
 (m) Bonithon v. Hockmore, 1 Vern. 
 316. 
 
 (n) WethereLl v. Collins, 3 Madd. 255. 
 
 (o) Windham v. Jennings, 2 Ch. Rep. 
 247 ; Troughton v. Troughton, 1 Ves. 86. 
 
 (p) Monger v. Kelt, 12 Mod. 559; 
 ChalUs V. Cashorn, Prec. Ch. 407, 1 Eq. 
 Cas. Abr. 325 ; Shrapnell v. Blake, 2 
 Eq. Cas. Abr. 603, Ca. 34 ; Morret v. 
 Paske, 2 Atk. 53 ; Jones v. Smith, 2 Ves. 
 jun. 376. Formerly the mortgagor him- 
 self was not allowed to redeem, without 
 
 payment of the bond as well as the mort- 
 gage ; Baxter v. Manning, 1 Vern. 244 ; 
 A7ion. 3 Salk. 84 ; Gary's case, S. C, ib. 
 240 ; Peers v. Baldwyn, 2 Eq. Cas. Abr. 
 611. See also Halliley v. Kirtland, 2 
 Ch. Rep. 360. 
 
 (q) Troughton v. Troughton, 1 Ves. 
 87. 3 Atk. 659 ; Archer v. Snatt, 2 Stra. 
 1 107 ; Adams v. Claxton, 6 Ves. 226, 
 229. 
 
 (r) Anon. 3 Salk. 84 ; Gory's case, 
 S. C, ib. 240 ; Shrapnell v. Blake, 2 Eq. 
 Cas. Abr. 603, 1 West Cas. T. Hardw. 
 166. 
 
 (s) Shrapnell v. Blake, above.
 
 S. 111.] OF THE TACKING OF A BOND DEBT. 391 
 
 heir at law of tlie mortgagor {t) : by the mortgagor's specialty 
 creditors (?<) : by " intervening incumbrancers of a superior 
 nature between the mortgage and the bond " (v) : by creditors 
 " claiming under a deed of trust by the mortgagor in his life- 
 time conveying the equity of redemption " {w) : by the mort- 
 gagor's creditors, the equity of redemption being devised by 
 him, in trust for the payment of his debts (.*') : by, it seems, the 
 mortgagor's creditors, the equity of redemption being by his will 
 charged with the payment of his debts (?/) : and by trustees, to 
 whom the mortgagor's heir at law has conveyed the equity of 
 redemption, " in trust for payment of all the bond and simple con- 
 tract debts of his father equally" (z). 
 
 When a mortgage is made by a termor for years, and the 
 mortgagor is farther indebted by bond to the mortgagee, here, 
 also, on payment of the mortgage debt only, and without the 
 bond, a Court of Equity, after the death of the mortgagor, allows 
 a redemption by a person to whom the executor of the mort- 
 gagor has assigned the equity of redemption (a). 
 
 When a mortgage is made by a person seised in fee, and the 
 mortgagor is farther indebted to the mortgagee by bond, in 
 which his heirs are bound ; without payment of the bond, as well 
 as the mortgage, a Court of Equity does not allow a redemption 
 by the mortgagor's heir at law (b) ; or devisee of the equity of 
 redemption, if the devise is merely for the devisee's own benefit, 
 and is therefore, as against the bond creditor, void under the 
 
 (() Bayly v. Robson, or Robinson, Free, 
 Ch. 89, 1 Eq. Cas. Abr, 325, Ca. 9, n, 
 (b). See also Coleman v. Winch, 1 P. W. 
 775, Free. Ch. 511. 
 
 (w) Lowthian v. Hassel, 3 Bro. C. C. 
 162; Hamerton v. Rogers, 1 Ves. jun. 
 513. See also Anon., or Jackson v. Lang- 
 ford, 2 Ves. 662, and Jones v. Smith, 2 
 Ves. jun, 376. 
 
 (v) Powis V. Corbet, 3 Atk. 556. 
 
 {w) Anon,, or Jackson v. LangJ'ord, 2 
 Ves. 662. 
 
 (x) Heams v. Bance, 3 Atk. 630. See 
 also Powis V. Co-bet, ib. 556. 
 
 (^) Price V. Fastnedge, Amb. 685. 
 
 (s) Coleman v. Winch, or Wince, 1 
 F. W^. 775, Free. Ch. 511. 
 
 (a) Coleman v. Winch, 1 P. W. 776, 
 Free. Ch. 512. See also Vanderzee v. 
 Willis, 3 Bro. C. C. 21. 
 
 (6) Windham v. Jennings, 2 Ch, Rep. 
 247; Anon. 2 Ch. Cas. 164; Shuttleworth 
 V. Laycock, 1 Vern. 245 ; Challis v. Cas- 
 horn, Free. Ch. 407 ; Shrapnell v. Blake, 
 2 Efj. Cas. Abr. 603 ; Troughton v. 
 Troughton, 1 Ves. 86, 3 Atk. 659 j Powis 
 V. Corbet, 3 Atk. 556 ; Heams v. Bance, 
 ib. 630.
 
 392 OF THE TACKING OF A BOND DEBT. [CH. XXXI. 
 
 Statute 3 and 4 W. & M. c. 14, a<rainst fraudulent devises (c). 
 The principles on which the lieir is not allowed to redeem, 
 without payment of the bond, seem to be, — that the mortgaged 
 land, so soon as redeemed by the heir, would be assets in his 
 hands to pay the bond debt ; that the creditor might sue to be 
 paid out of this particular fund ; and that therefore a circuity of 
 action or suit is avoided, by obliging the heir to pay the bond at 
 the time of redemption (d). The same principles appear to 
 apply to a devisee of the equity of redemption, if, as against cre- 
 ditors, the devise to him is void under the statute 3 and 4 W. 
 & M. c. 14, against fraudulent devises (e), or the late Act 
 11 Geo. IV. and 1 Will. IV. c. 47. 
 
 An heir at law has been allowed to redeem a mortgage of copy- 
 holds, without payment of a judgment, that had been assigned to 
 the mortgagee. The reason given was, that copyhold lands are 
 not liable to an execution upon a judgment (J")- 
 
 When a mortgage is made by a termor for years, and the 
 mortgagor is also indebted to the mortgagee by bond, without 
 payment of the bond, as well as the mortgage, a Court of Equity 
 does not allow a redemption by the mortgagor's executor (^). 
 
 It remains to mention two cases, where the mortgagee was, in 
 different rights, creditor by mortgage and bond. In Blackwell v. 
 Symes, " a woman, bond creditor, married mortgagee, and died. 
 The husband took out administration to his wife, and, on bill 
 brought by him, was allowed to tack the bond to the mortgage, 
 against the heir at law " (A). In Price v. Fastnedye, E. F., seised 
 in fee, mortgaged to R. P. for years, to secure 1000/. R. P. 
 devised his real and personal estate to S., and made her executrix. 
 
 (c) Chains V. Casborn, Free, Ch. 407 ; 
 Heams v. Bance, 3 Atk. 630; Pi-ice v. 
 Fastnedge, Amb. 685. See also 3 Atk. 
 659. 
 
 (d) 1 Ves. 87 ; 2 Ves. 662 ; 2 Atk. 
 53 ; 3 Atk. 556, 630, 659 ; 3 Bro. C. C. 
 163 ; 2 Eq. Cas. Abr. 603 ; 1 West Cas. 
 T. Hardw. 167. 
 
 (e) Free. Ch. 407 ; 3 Atk. 659 ; Amb. 
 686. 
 
 (_/') Heir of Cannon v. Pack, 6 Vin. 
 Abr. 222, 2 Eq. Cas. Abr. 226. 
 
 {g) Anon. 2 Vern. 177 ; Eccles v. 
 Thawill, probably 6'. C, Free. Ch. 18 ; 
 Coleman v. Winch, 1 F. W. 776, Free. 
 Ch. 512. See also Halliley v. Kirtland, 
 2 (Jh. Kep. 360, where, perhaps, Halliley 
 was executor of Pack, the mortuagor. 
 
 {h) Cited Amb. 686.
 
 S. IV.] OF THi: TACKING OF A SIMPLE CONTRACT DEBT, 393 
 
 S. afterwards lent E. F. 500/., upon bond. E. F. by his will 
 charged the mortgaged lands with the payment of his debts. On a 
 bill by S. to be paid the money due on mortgage, and on the 
 bond, Sir T. Sewell decided that, because the equity of redemp- 
 tion was by the will of E. F. charged with the payment of his 
 debts, the bond debt could not bo tacked to the mortgage (i). 
 
 SECTION IV. 
 
 OF THE TACKING OF A SIMPLE CONTRACT DEBT. 
 
 Land, or leaseholds for years, conveyed in mortgage, may, it is 
 certain, be, by a written agreement, charged with the payment of a 
 simple contract debt due by the mortgagor to the mortgagee ; and 
 then the mortgagor will not be allowed to redeem, without pay- 
 ment of that money, as well as the original mortgage debt (J). 
 But, without that agreement, a mortgagee of land has not, in the 
 consideration of a Court of Equity, an equity against the mort- 
 gagor, to stand on his legal title and resist redemption until 
 payment, beyond the mortgage debt, of a simple contract debt 
 due to him from the mortgagor ; and, accordingly, the mortgagor 
 may redeem on payment of the mortgage debt only (k). And 
 he is also entitled to redeem without payment of the simple 
 contract debt, if the mortgage is of leaseholds for years (Z). Also, 
 on a mortgage of leaseholds for years, it appears that, after the 
 death of the mortgagor, on paying the mortgage debt only, 
 redemption may be made by a specialty creditor (m) ; by trustees, 
 to whom the mortgagor in his life-time assigned the equity of 
 redemption, in trust for the benefit of his creditors (n) ; and by 
 creditors, where a bill has been filed by them against the mort- 
 gagor's executor and heir at law, and a decree obtained for the 
 
 (0 Amb. 685. 
 
 (j) See Gordon v. Graham, 7 Vin. 
 Abr. 52, 2 Eq. Cas. Abr. 598. 
 
 (k) Neivhy v. Cooper, Cas. 'J'. Finch, 
 379 ; Monger v. Kelt, 12 Mod. 559. 
 
 (/) Ex parte Hooper, I Mer.7, 19 Ves. 
 477. 
 
 (m) Coleman v. Winch, 1 P. W. 777 ; 
 Vanderzee v. Willis, 3 Bro. C. C. 21. 
 
 (n) Adams v. Claxton, 6 Ves. 226.
 
 094 EXTENSION OF THE PRINCIPLE OF TACKING, &C. [CH. XXXI. 
 
 creditors to come in(o). But it seems that the executor of the 
 mortgagor cannot redeem, without payment of the simple con- 
 tract debts due from his testator to the mortgagee (/?). 
 
 SECTION V. 
 
 OF THE EXTENSION OF THE PRINCIPLE OF TACKING, TO 
 COMPEL, 1, A REDEMPTION OF A DIFFERENT MORTGAGE 
 OF DIFFERENT LAND; AND 2, A REDEMPTION OF THE WHOLE 
 OF ONE MORTGAGE. 
 
 1. If, by two different mortgages, A. mortgages two different 
 estates to B. ; except on the terms to pay off both mortgages, it 
 appears a Court of Equity will not decree a redemption, either 
 by A. himself (q), or, if A. becomes bankrupt, by the assignees 
 under the commission (r). The reason is stronger, where one 
 of the mortgages is defective. And therefore where a person is 
 a mortgagee, by two different mortgages of different land, and 
 one of them is a defective security, as where the debt is greater 
 than the value of the land (s), here, except on the terms to pay 
 off the defective security as Avell as the other, the Court will not 
 allow the latter to be redeemed by the mortgagor himself (t), or 
 by his heir at law {71), or, if the mortgagor becomes bankrupt, 
 by the assignees under the commission (u). 
 
 If, by two different mortgages, A. mortgages two different 
 estates to B., and, after both these mortgages, A. mortgages or 
 sells one of the estates to C, here, on a bill to redeem, or a bill to 
 foreclose (w), the Court will not allow C. to redeem B., except he 
 
 (0) Vanderzee v. Willis, 3 Bio. C. C. 
 21, cited 6 Ves. 229. 
 
 (p) Coleman v. Winch, 1 P. W. 776 ; 
 Eccles V. Thawill, Prec. Ch. 18 ; Deman- 
 dray v, Metcalf, Prec. Ch. 419, 421, 
 cited 2 Ves. jun. 378. See also Vander- 
 zee V. Willis, 3 Bro, C. C. 21, cited 6 
 Ves. 229. 
 
 (7) Willie V. Lugg, 2 Eden, 80 ; Jones 
 V. Smith, 2 Ves. jun. 376, 377, 379. 
 
 (r) Roe V. Soley, 2 W. Bl. 726 ; Jones 
 V. Smith, 2 Ves. jun. 377 ; Tribourg v. 
 
 Lord Pomfret, Amb. ed. Blunt, 733, n. 2. 
 
 (s) 1 Vera. -Id; 2 Vern. 207, 286 ; 2 
 Ves. jun. 377. 
 
 (f) Dictum of counsel in Purefoy v. 
 Purefoy, 1 Vein. 29, cited 2 Ves. jun. 
 376 ; Jones v. Sinith, 2 Ves. jun. 377. 
 
 (m) ShiUtleworth v. haycach, 1 Vern. 
 245 ; Margrave v. Le Hook, 2 Vern. 207. 
 
 (d) Pope V. Onslow, 2 Vern. 286, cited 
 2 Ves. jun. 376, and 1 Atk. 300. 
 
 (w) Tribourg v. Lord Pomfret, cited 
 Arab. 733.
 
 S. v.] EXTENSION OF THE PRINCIPLE OF TACKING, &C. .*395 
 
 will pay off both mortgages (x) ; and although C. purchased, 
 or became mortgagee, without notice of the mortgage on the 
 other estate (y). 
 
 2. It may here farther be noticed, that, in the case of one 
 mortgage, the mortgagee is entitled to be redeemed entire, and 
 not by parcels. And, therefore, if A. mortgages one estate to B., 
 and afterwards a part of it to C, C. cannot redeem that part 
 only (z). And a creditor by judgment cannot redeem a moiety 
 only, but must redeem the whole or none {a). And for this 
 reason, if a judgment creditor redeems a mortgage, the heir at 
 law of the mortgagor cannot redeem him, without payment of 
 both mortgage and judgment (b). 
 
 If A, makes one mortgage to B. of two estates, and afterwards 
 mortgages one of them to C, and after that the other to D., C. 
 or D. cannot redeem the estate mortgaged to himself, without 
 also redeeming B.'s mortgage on the other estate (c). And if C. 
 redeems B., it appears D. cannot redeem C, without paying off 
 both C.'s original mortgage, and the money paid by C. to 
 redeem B. {d). 
 
 If A. makes one mortgage to B. of two estates, D. F. and E. D., 
 and afterwards settles D. F. on G., and afterwards, on a sale of 
 part of D. F., settles E. D. (e) on G., G. cannot redeem E. D. 
 only(/). 
 
 (i) Tribourg v. Lord PomJ'ret, cited 
 Amb. 733, and stated from Reg. B. Arab. 
 ed. Blunt, 733, n. ; £x parte Carter, 
 Amb. 733 ; Cator v. Charlton, and Collet 
 V. Munden, cited 2 Ves. jun. 377 ; Ireson 
 V. Denn, 2 Cox, 425. 
 
 (i/) Ireson v. Denn, 2 Cox. 425. 
 
 (s) Titley V. Davis, 15 Vin. Abr. 447, 
 pi. 19, 2 Eq. Cas. Abr. 604, pi. 35; 
 Sish V. Hopkins, Amb. ed. Blunt, Append. 
 793. 
 
 (a) Sish V. Hopkins, above ; Stileman 
 
 V. Ashdoivn, Amb. ed. Blunt, 16, and 
 n. 6. 
 
 (6) Stileman v. Ashdown, above. 
 
 (c) Titley v. Davis, above, and cited 
 Amb. 733 ; Sish v. Hopkins, above. 
 
 (d) Titley v. Davis, 15 Vin. Abr. 447, 
 pi. 20, 2 Eq. Cas. Abr. 604, pi. 36. 
 
 (e) In the report it is West Dales, 
 and not East Dales, that is settled. But 
 from the context this seems to be a mis- 
 take. 
 
 (/) Willie V. Lugg, 2 Eden, 78.
 
 396 
 
 CHAPTER XXXII. 
 
 OF THE PRIORITY OF SUCCESSIVE INCUMBRANCERS OF 
 THE SAME LAND. 
 
 To successive incumbrancers of the same land applies the 
 rule, Qiii prior est tempore potior est jure ; a rule to which, 
 however, a Court of Equity allows many exceptions, grounded 
 on the principle, that when one incumbrancer is armed with an 
 equity only, and another with an equal equity and also the law, 
 the Court will leave the parties to combat at law, and will not 
 take from the latter incumbrancer any advantage, which the law 
 may give him («). 
 
 From this principle, and the rule mentioned, depends the law 
 of priority of successive incumbrancers of the same land. 
 
 To a mortgagee of the legal estate applies also, it will be seen, 
 the principle of tacking. 
 
 Sect. I. — Of the Rule, Qui prior est tempore potior est jure. 
 II. — Of the Principle, on which the Exceptions to that 
 Rule are grounded. 
 III. — Of several of the Exceptions themselves. 
 IV. — Of certain Cases, in lohich an Incumbrancer, although 
 he has the Laic on his side, may not have an equal 
 Equity. 
 V. — Of other Cases, in tvhich an Incumbrancer, although 
 he has the Laiv on his side, may not have any 
 Equity. 
 
 (a) Ilardr. 318 ; 2 Venti. 338 ; 2 P. VV. 491, 495; 2 Ves. 486 ; I Duin, 
 
 & E. 767, 768.
 
 S. I.] OF THE RULE, OUT PRIOR EST TEMPORE, &C. .'W7 
 
 \l. — Of two Cases, where a Mortrjagee of the Let/a I 
 Estate may not come within the principle of Tack- 
 inq, and tvhere, in consequence, a subsequent Incum- 
 brance acquired by him may not be entitled to 
 Priority before aninterveninef Incumbrance. 
 
 SECTION I. 
 
 OF THE RULE, OUT PRIOR EST TEMPORE POTIOR EST JURE. 
 
 The rule, (^ui prior est tempore potior est jure, applied to suc- 
 cessive iucumbrancers of the same land, is applicable to the three 
 cases, — 1. When the first incumbrancer is a mortgagee, or 
 creditor by statute, judgment, or recognizance, seised or possessed 
 of the legal estate : 2. When one of several incumbrancers 
 has the better right to call for the legal estate : 3. When, of 
 several incumbrancers, no one has the better right to call for 
 the legal estate. 
 
 In the first case, the order of payment is, first, to the mortga- 
 gee, or creditor, seised or possessed of the legal estate ; and 
 afterwards to the other incumbrancers by mortgage, statute, 
 judgment, and recognizance, in the order in which, in time, their 
 incumbrances stand {b). 
 
 In the second case, the order of payment is, first to the incum- 
 brancer who has the better right to call for the legal estate ; and 
 afterwards to the other incumbrancers by mortgage, statute, 
 judgment, and recognizance, in the order in which, in time, 
 their incumbrances stand (c). 
 
 In the third case, the only order of payment is, to all the 
 incumbrancers by mortgage, statute, judgment, and recognizance, 
 in the order in which, in time, their incumbrances stand {d). 
 
 (b) Turner v. Richiriond, 2 Vern. 81 ; 
 Earl of Bristol v. Hungerford, ih. 524 ; 
 Symmes v. Si^mouds, 4 Bro. P. C. ed. 
 Toml. 328 ; Brace v. Duchess of Marl- 
 borougli, 2 P. W. 495, seventh point; 
 Barnett v. Weston, 12 Ves. 130; Baker 
 V. Harris, 16 Ves. 397. 
 
 (c) Earl of Pomfret v. Lord Windsor, 
 2 Ves. 472, 486; Willoughby v. Wil- 
 loughby, 1 Durn. & E. 763, 768, 773. 
 See also Clarke v. Abbot, Barn. Ch. Rep. 
 457, 2 Eq. Cas. Abr. 606, Ca. 41. 
 
 (d) Brace v. Duchess of Marlbo7-ough , 
 2 P. W. 495, seventh point; Charlton v.
 
 398 OF THE PRINCIPLE OF EXCEPTIONS [CH. XXXII. 
 
 The rule mentioned applies, it may here be noticed, to a fourtli 
 case; — where the first incumbrancer is a judgment creditor, who 
 is also a mortgagee later than another judgment creditor inter- 
 vening between the first judgment and the mortgage. In a case 
 of this kind, where the mortgage was taken, without notice of 
 the second judgment, and the second judgment creditor filed a 
 bill, praying a sale of the estate, Lord Hardwicke refused to 
 decree a sale, unless the plaintiff consented to pay off, before his 
 own judgment, both the first judgment and the mortgage. If 
 he did not submit to these terms, he was left to take his remedy 
 at law, by extending the estate (e). 
 
 SECTION II. 
 
 OF THE PRINCIPLE, ON WHICH THE EXCEPTIONS TO THE RULE 
 OF PRIORITY ARE GROUNDED. 
 
 To the rule, Qui prior est tempore potior est jure, applied to 
 successive incumbrancers of the same land, a Court of Equity 
 allows many exceptions ; grounded on the principle, that where 
 one incumbrancer is armed with an equity only, and another 
 with an equal equity, and also the law, the Court will leave the 
 parties to combat at law, and will not take from the latter incum- 
 brancer any advantage, which the law may give him {/). 
 
 This principle, applied to particular cases, will be exemplified 
 by the several exceptions themselves, which it is intended to 
 notice in the third section of this Chapter ; and by the cases, after- 
 wards to be considered, in which an incumbrancer, although he 
 has the law on his side, may not have an equal, or any equity. 
 It may, therefore, be proper to make in this place some general 
 observations only. The principle mentioned has the effect to 
 give to a later incumbrance a priority before one, that, in order 
 
 Low, 3 P. W. 328 ; Earl of Pomfret v. 
 Lord Windiiv; 2 Ves. 486 ; Willoughbii 
 V. Willoiighbv, 1 Durn. & E. 773, 774, 2 
 Ves. 684 ; Beckett v. Cordley, 1 Bro. C. 
 C. 353, 358 ; Frere v. Moore, 8 Price. 475. 
 
 (e) Smithson v. Thompson, 1 Atk. 520. 
 
 (/) Hardr. 318 ; 2 Ventr. 338 ; 2 P. 
 W.491, 495 ; 2 Ves. 486 ; 1 Duin. & 
 E. 767, 768,
 
 S. II.] TO THE RULE OF PRIORITY. 399 
 
 of time, stands before that incumbrance. But to come within 
 such ])rinciple, either the creditor himself, or a trustee for him, 
 must be seised or possessed of the legal estate (g), or have the 
 best right to call for the legal estate (/<) ; wliich estate here 
 meant is, not a legal estate as distinguished from one that is 
 equitable, but the estate which, at law, is in the seisin or posses- 
 sion of a tenant, that is, one who at law is entitled to the present 
 possession of the land, and who may, if necessary, now obtain 
 that possession by ejectment (?') ; or one who at law is entitled to 
 receive from a tenant of the land a present yearly rent, or other 
 service, for it {j). The former kind of tenant may be a person 
 entitled to the present possession of land, extended (A) under a 
 statute (Z), judgment [m), or recognizance {n) ; or entitled to the 
 present possession, under a conveyance or assignment from a first 
 mortgagee (o) ; and such tenant is, it is well known, very often 
 a person possessed of a satisfied term of years (/j). And the 
 latter kind of tenant mentioned, or one who at law is entitled to 
 receive from a tenant a present yearly rent, or other service, may 
 be a tenant of land extended on a statute or judgment, and now 
 in the possession of a tenant entitled to the present possession of 
 
 it(<7)- 
 
 To come within the same principle, it is also essential that the 
 creditor,' who claims the priority, had not, at the time when he 
 advanced his money, notice of the earlier incumbrance. If he 
 
 {g) Marsh v. Lee, 2 Ventr. 337 ; 
 Brace v. Duchess of Marlborough, 2 P. 
 W. 495, seventh point ; Clarke v. Abbot, 
 Barn. Ch. Rep. 457, 461, 462, 2 Eq. 
 Cas. Abr. 606, Ca. 41. 
 
 (A) IViikes V, BoddingUm , 2 Vern. 
 699 ; Earl of Pomfret v. Lord Windsor, 
 2 Ves. 486 ; WiUoughby v. WilUmghby, 
 1 Durn. & E. 763, 768, 773. 
 
 (i) WiUoughby v. WiUoughby, 1 Durn. 
 & E. 767 ; Goodtitle v. Morgan, ib. 755 ; 
 Doe V. Wha^'ton, 8 Durn. & E, 2. 
 
 {j) Dighton V. Greenvil, 2 Ventr. 328 ; 
 Camhell's case, 1 Rol. Abr. 894 ; //«/•- 
 rhigUm V. Garroway, 2 Rol. Abr. 472. 
 
 (fc) See much learning on the nature 
 of tenancy under an extent, in Dighton v. 
 GreenvU, 2 Ventr. 321, 
 
 (i) Hedworth v. Primate, Hardr. 318 ; 
 Stanton v. Sadler, 2 Vern. 30. 
 
 (m) Higgon v. Syddal, 1 Ch. (^as. 149. 
 
 (n) Racket v. Wakefield, Hardr. 172. 
 
 (()) Marsh V, Lee, 2 Ventr. 337 ; Cockes 
 V. Sherman, 2 Freem. 13. 
 
 (p) WiUoughby v. WiUoughby, 1 Durn. 
 & E. 767 ; Goodtitle v. Morgan, ib. 755. 
 
 (q) Bro. Abr. tit. Stat. Merch. pi. 44 ; 
 1 Rol. Abr. 894, B. pi. 5 ; 2 Rol. Abr. 
 472, P. pi. 11 ; 2 Ventr. 328.
 
 400 OF THE PRINCIPLE OF EXCEPTIONS [CH. XXXII. 
 
 had not then notice, he is allowed to gain priority by afterwards 
 acquiring the legal estate, although with notice of the former 
 incumbrance (?•). And this acquisition may be made even pen- 
 dente lite, that is, pending a suit in equity, the end of which is to 
 redeem a mortgage, or to pay creditors, or to settle their priorities. 
 But here a distinction is to be noticed. The legal estate is 
 allowed to be got in at any time before a decree made to pay 
 creditors, or settle their priorities; and accordingly if obtained 
 before that decree, such legal estate may confer a priority (.s) ; 
 but the acquiring of the legal estate, after such decree made, is 
 not permitted to give any priority to the creditor, who has so 
 afterwards obtained that estate (/). 
 
 It remains to be observed, that, to come within the principle 
 which has been mentioned, the creditor must have taken his 
 security clearly hondjide [u) ; and must have not only the law on 
 his side, but also an equal {v) equity {w). 
 
 A mortgagee is a purchaser pro t.anto [x), or to the extent of 
 his claim against the property pledged to him. The law, there- 
 fore, which, on the protection afforded by the legal estate, applies 
 to a purchaser, extends also to a mortgagee. He who pur- 
 chases land bond fide, for a valuable consideration, and without 
 notice of a former purchase of, or incumbrance on it, and is 
 either himself, or by a trustee for him, seised or possessed of the 
 
 (?•) Marsh V. Lee, 2 Venlr. 337 ; Cockes 
 V. Sherman, 2 Freem. 14; Brace v. 
 Duchess of Marlborongh, 2 P. W. 495, 
 sixth point ; Wortley v. Birkhead, 2 Ves. 
 574 ; Mattliews v. Cartwright, 2 Atk. 
 347 ; Belchier v. Butler, 1 Eden, 529, 
 530. 
 
 (s) March v. Lee, 1 Ch. Cas. 162, 2 
 Ventr. 337 ; Hawkbis v. Taylor, 2 Vern. 
 29; Brace v. Duchess of Marlborough , 2 
 P. W. 491, first point ; Wortley v. Birk- 
 head, 2 Ves. 574 ; Belchier v. Butler, or 
 Renforth, \ Eden, 523, 5 Bro. P. C. ed. 
 Toml. 292 ; Eobinson v. Davison, 1 Bro. 
 C. C. 63 ; Ex parte Knott, 11 Ves. 619. 
 These cases seem to verify the proverb, 
 " One shall beat the bush, and anotlier 
 
 have the bird." Plowd. 57. 
 
 (t) Earl of Bristol v. Hungerford, 2 
 Vern. 525 ; Wortley v. Birkhead, 2 Ves. 
 574 ; El parte Knott, 11 Ves, 619 ; Sum. 
 ner v. Kelly, 2 Sch. & Lef. 398. 
 
 (u) Cockes V. Sherman, 2 Freeni. 13 ; 
 Willoughby v.WilUmghby, 1 Durn. & E. 
 767, 768, 774, 775. 
 
 (i') Melior est conditio possidentis, 2 
 Inst. 391. In tEqnalijure, melior est con- 
 ditio possidentis, 2 Fonbl. Treat. Eq. 5th 
 ed. 302. 
 
 (m)) Hedworth v. Primate, Hardr. 318 ; 
 Marsh v. Lee, 2 Ventr. 337 ; Hugshaw v. 
 Yates, 1 Stra. 240. 
 
 (x) 2 P. W. 491 ; 2 Ves. 684 ; 1 
 Durn. & E. 767, 770 ; 5 Ves. 134.
 
 S. II.] TO THE RULE OF PRIORITY. 401 
 
 legal estate, that is, the estate of a tenant of the land, or one who 
 at law is entitled to the present possession, and who may, if 
 necessary, now obtain that possession hy ejectment (?/), or one 
 who at law is entitled to receive from a tenant of the land a pre- 
 sent yearly rent, or other service, "for it (z), seems to be, through 
 that legal estate, and while in possession of and entitled to it, 
 fully protected at law against every former purchase of, or in- 
 cumbrance on, the property so bought by him. And because he 
 is a purchaser bond Jide, and for a valuable consideration, if also 
 he had not before, or at the time when, he paid his money, and 
 the vendor executed the conveyance to him (a), notice of such 
 former purchase or incumbrance, and so he has the law on his 
 side, and also an equal equity, a Court of Equity will not disturb 
 his security at law (b), and in particular, it may be mentioned, 
 will not oblige him to deliver up his title deeds, or discover his 
 title (c). A purchaser bojici Jide, for a valuable consideration, 
 and without notice, is so much favoured in equity, that cases are 
 found in which the Court has refused to oblige him to deliver up 
 deeds, or discover his title, although he got possession of the 
 deeds for a reward, or by trick, or other undue means (d) ; as in 
 
 (y) Willoughby v. Willoiighby , 1 Durn. 
 & E. 767 ; Goodtitle v. Morgan, ib. 755 ; 
 Doe V. Wharton, 8 Durn. & E. 2. 
 
 (s) Dighton v. Greejivil, 2 Ventr. 328 ; 
 Cambell's case, 1 Rol. Abr. 894 ; Ha7'. 
 rington v. Garroway, 2 Rol. Abr. 472. 
 
 (a) More v. Mayhow, 1 Ch. Cas. 34, 
 
 2 Freem. 175 ; Meynell v. Garraway, 
 Nels. 63 ; Jones v. Stanley, 2 Eq. Cas. 
 Abr. 685 ; Tourville v. Naish, 3 P. W. 
 307 ; Wigg V. Wigg, 1 Atk. 382, 384, 1 
 West Cas. T. Hardw. 680 ; Fitzgerald 
 V. Biirke, 2 Atk. 397 ; Story v. Lord 
 Windsor, ib. 630; Hardingham v. Nichotls, 
 
 3 Atk. 304. 
 
 (6) Hedworth v. Primate, Hardr. 318 ; 
 Harding v. Hardrett, Cas. T. Finch, 9 ; 
 Bassett v. Nosworthy, ib. 102, cited Free. 
 Ch. 249, and 2 Ves. jun. 457 ; Meynell 
 V. Garraway, Nels. 63 ; Culpeper's case, 
 cited 2 Freem. 124 ; Bishop of Worcester 
 V. Parker, 2 Vern. 255 ; Lowlher v. 
 
 Carleton, Cas. T. Talb. 187 ; Hagshaw 
 V. Yates, 1 Stra. 240 ; Jerrard v. Saun- 
 ders, 1 Ves. jun. 454. See Duke of Al- 
 bemarle V, Viscountess Purbeck, Cas. T. 
 Finch, 252. 
 
 (c) Sherly v. Fagg, 1 Ch. Cas. 68 ; 
 Higgon V. Syddal, ib. 149 ; Anon. 2 Ch* 
 Cas. 4 ; Perrat v. Ballard, ib. 73; Basset^ 
 V. Nosworthy, Cas. T. Finch, 102 ; Eve- 
 rendeii v. Vanacker, ib. 255 ; Day v. Arun- 
 del, Hardr. 510 ; Millard's case, 2 Freem. 
 43 ; Rogers v. Seale, ib. 84 ; Anon. ib. 
 275 ; Hall v. Atkinson, 1 Eq. Cas. Abr. 
 333, Ca. 4, 2 Vern. 463; Williams v. 
 Lane, 8 Bro. P. C. ed. Toml. Append. 
 291 ; Senhouse v. Earl, 2 Ves. 450 ; 
 Aston V, Aston, 3 Atk. 302 ; Siddon v. 
 CharneUs, Bunb. 298 ; Sweet v. Southcote, 
 2 Bro. C. C. m, 2 Dick. 671 ; Jerrard 
 V. Saunders, 1 Ves. jun. 454. 
 
 (rf) Sherly v. Fagg, 1 Ch. Cas. 68 ; 
 Sir John Fagg's case, cited 2 Ch. Cas. 
 
 D D
 
 402 OF THE PRINCIPLE OF EXCEPTIONS [CH. XXXII. 
 
 the instance of a man, who " got a ladder, and fetched a deed out 
 of a window" (e). The language of the reports is, that where 
 a purchaser has got a deed into his hands, " whether he doth it 
 by power or otherwise, if he had no notice of it, when he made 
 the purchase, he shall not be bound to discover it ; " and that a 
 purchaser, " having honestly paid his money without notice, may 
 use what means he can to fortify his title " {f). 
 
 The legal estate held under a statute may protect a purchaser 
 against a statute (^), or judgment (A), or mortgage (z), or settle- 
 ment for valuable consideration {j) ; held under a mortgage may 
 protect him against a judgment [k) ; held under an assignment of 
 a term of years mortgaged may protect him against a second 
 mortgage of the term (/) ; and held under his purchase deed may 
 protect him against marriage articles (m). A purchaser is, also, 
 so far protected against a judgment, that a Court of Equity 
 will not oblige him to discover what lands may be liable to the 
 judgment (w). 
 
 Not only a person who is seised or possessed of the legal estate, 
 but also, it is said, he who has the best right to call for that estate, 
 may shelter himself under the plea of purchase for valuable 
 consideration, and without notice (o). 
 
 A purchaser bond fide., for valuable consideration, and without 
 notice, and who claims under a conveyance, as distinguished from 
 articles only, although he may not be seised or possessed of the 
 legal estate, yet, if he is in possession of the land, is so far pro- 
 tected in equity, that if, to a claim against him, he pleads his 
 purchase, the Court will not oblige him to deliver up his title 
 deeds, or discover his title ; and consequently the purchaser may 
 
 23, 2 Freem. 123, 2 Vern. 159, and 2 
 Ves. jun. 457 ; Burnel v. Ellis, and 
 Harcourt v. Knowel, cited 2 Vern. 159. 
 
 (e) Anon, cited 2 Freem. 123. 
 
 (f) Sanders v. Deligne, 2 Freem. 123. 
 
 (g) Anon. 2 Ch. Cas. 208 ; Jefferson 
 V. Dawson, 1 Ch. Cas. 267^ 5. C, mis- 
 printed. 
 
 (h) Churchill v. Grove, 1 Ch. Cas. 35, 
 2 Freem. 176, Nels. 89. 
 
 (i) Ibid. 
 
 (j) Hedworth v. Primate, Hardr. 318. 
 
 (/c) See Greswold v. Marsham, 2 Ch. 
 Cas. 170, cited Amb. 154, and 3 Mer. 
 224. 
 
 (/) Meynell v. Garraway, Nels. 63. 
 
 (m) Bullock V. Sadlier, Amb. 764. 
 
 (n) Snelling v. Squib, 2 Ch. Cas. 47. 
 
 (o) Medlicott V. O'Donel, 1 Ball & B. 
 171.
 
 S. II.] TO THE RULK OF PRIORITY. 403 
 
 to this extent be protected ag;ainst a settlement, under which it 
 may appear the legal estate is vested in the party, who claims 
 against him (p). 
 
 Lord Loughborough created a distinction between the cases, 
 where the purchaser is, and where he is not, in possession of the 
 land. In Strode v. Blackhurne the purchaser, a mortgagee in fee, 
 was not in possession of the land, and to a bill filed against her 
 by the owner in possession, praying a delivery of the title deeds, 
 she pleaded her purchase. Lord Loughborough ordered this 
 plea to stand for an answer, with liberty to except ; and the de- 
 sign of this order seems to have been, to oblige the defendant to 
 discover and deliver up deeds, which might benefit the plaintiff, 
 and could not injure the defendant herself [q). This case 
 appears, however, to be overruled by a directly contrary decision 
 made by Lord Eldon in Wallwyn v. Lee. The purchaser, a mort- 
 gagee, was not in possession of the land, and to a bill filed against 
 him by the owner in possession, praying a delivery of the title 
 deeds, he pleaded his purchase ; and this plea was by Lord Eldon 
 allowed (r). 
 
 If a purchaser claims under articles only, as distinguished from 
 a conveyance, and therefore is seised or possessed of an equitable 
 estate only, and not of the legal estate, it appears he cannot, 
 although he is in possession of the land, defend himself in equity 
 by the plea of purchase without notice {s). 
 
 It is clear that a purchaser, who at the time he pays his money, 
 or when the conveyance is executed, has notice of a trust, is 
 bound by that trust {t). But if a purchaser, who at the time he 
 
 {p) Sherly v. Fagg, 1 Ch. Cas. 68 ; 
 Burlace v. Coolce, 2 Freem. 24. See also 
 Parker v. Blytkmore, Piec. Ch. 58, 2 Eq. 
 Cas. Abr. 79 ; Kelsall v. Bennett, 1 Atk. 
 522, 1 West Cas. T. Hardw. 22 ; Warrick 
 V. Warrick, 3 Atk. 291 , 292 ; Siddon v. 
 CharneUs, Bunb.298 ; Jerrard v. Saunders, 
 
 2 Ves. jun. 454 ; Utrode v. Blackburne, 
 
 3 Ves. 225 ; WaUwyn v. Lee, 9 Ves. 
 24 ; Pennington v. Beechey, 2 Sim. & 
 St. 282 J and Jackson v. Rowe, ih., 472, 4 
 
 Russ.514. 
 
 (?) 3 Ves. 222. 
 
 (?•) 9 Ves. 24. 
 
 (s) Fitzgerald v. Fauconbridge, or 
 Fauconherge, Fitzg. 207, 2 Eq. Cas. Abr. 
 677, Ca. 3, 6 Bio. P. C. ed. Toral. 295, 
 cited 3 Atk. 377, 378 ; Brandlyn v. Ord, 
 
 1 Atk. 571, 1 West Cas. T. Hardw. 512 ; 
 Hart V. Middlehurst, 3 Atk. 371. 
 
 (t) More V. Mayhow, 1 Ch. Cas. 34, 
 
 2 Freem. 175; Bovy v. Smith, 2 Ch 
 
 D D 2
 
 404 OF THE PTITNCIPLE OF EXCEPTIONS [CH. XXXII. 
 
 paid Ills money, and the conveyance was executed, had not notice 
 of a particular trust (as distini>;uished from a trust which attends 
 tlie inheritance), afterwards with notice of it procures a convey- 
 ance of the legal estate from the trustee, it appears not to be 
 certain, that this legal estate will not so far protect him, that a 
 Court of Equity, although it will not " assist him in any thing," 
 will "let him make the best of it he can at law "(?/). The 
 trustee, it cannot be doubted, will be liable to make satisfaction 
 to the cestui que trust {v) ; but the purchaser himself seems to be 
 as much entitled to favour, as is he, who, having notice of a legal 
 estate, protects himself against it, by acquiring possession of a 
 deed, for a reward, or by trick, or by theft {xv). 
 
 If a purchaser is not seised or possessed of the legal estate, a 
 Court of Equity cannot afford him relief against a party, in whom 
 the legal estate is rightfully vested, and who needs not the aid of 
 equity to obtain possession at law {x). And accordingly such 
 purchaser, although without notice, may be evicted imder an old 
 settlement of the property {y). 
 
 As a mortgagee is a purchaser pro tanto, and his title to 
 priority often depends wholly on the protection afforded by the 
 legal estate, the foregoing statement on the protection, which a 
 purchaser frequently receives from that estate, may not be thought 
 irrelevant to, or an unnecessary digression from, the main subject 
 of the present Chapter. 
 
 This section of that Chapter it may be allowed to close by 
 noticing the following distinctions offered by dower. Dower 
 forms an exception to the doctrine of notice to a purchaser. 
 A purchaser bond fide, and for a valuable consideration, may, 
 
 Cas. 124, 1 Vern. 144 ; Black v. Cock, 
 Cas. T. Finch, 449 ; Attorney General 
 V. Gower, 2 Eq. Cas. Abr. 685 ; Walley 
 V, Wallet), 1 Vern. 484; Pye v. Gorge, 
 1 P. W. 128 ; Mainell v. Mansell, 2 P. 
 W. 678, 681 ; Willoughhy v. Willotighby, 
 1 Durn. & E. 771 ; Pearce v. Newlyn, 
 3 Madd. 186 ; Kennedy v. Daly, 1 Sch. 
 & Lef. 355. 
 
 (u) Sanders v. Dfligne, 2 Freem. 123: 
 
 Saunders v. Dehew, S. C, 2 Vern. 271. 
 
 (v) See 1 Durn. & E. 771. 
 
 (w) Shertey v. Fagg, 1 Ch. Cas. 68, 
 cited 2 Freem. 123, 2 Vern. 159, 2 Ves. 
 jun. 457 ; Burnel v. Ellis, and Harcourt 
 V. hnowel, cited 2 Vern. 159 ; Ano7i. 
 cited 2 Freem. 123. 
 
 (,r) Collins v. Archer, 1 Russ. & M. 
 284. 
 
 ()/) Needier v. Wright, Nels. 57.
 
 S. JI.] TO THE RULE OF PUIOHITY. 405 
 
 by procuring an assignment of an outstanding satisfied term, pro- 
 tect himself against the dower of the wife of his vendor, although 
 at tlie time of his purchase he had actual notice that the vendor 
 was married, and that his wife was entitled to dower {z). 
 In many cases, it has been seen, a Court of Equity will not 
 assist an equitable title against a purchaser in possession of the 
 legal estate ; or a claim grounded on the legal estate, against a 
 purchaser who may not be in possession of that estate. Between 
 this title or claim, and a bill in equity to set out dower. Lord 
 Thurlow created a distinction in Williams v. Lamhe. A bill for 
 dower stated that the plaintiff was married to W. W. ; that 
 W. W., being seised of lands, &c., in D. during the coverture, 
 sold the same to the defendant; and prayed a discovery of the 
 lands, and that the defendant might assign to her one third part 
 as her dower. The defendant pleaded to the discovery and 
 relief, that he was a purchaser of the estate for valuable consi- 
 deration, without notice of the vendor being married. Lord 
 Thurlow said, " The only question was, whether a plea of pur- 
 chase, without notice, would lie against a bill to set out dower ; 
 that he thought where the party is pursuing a legal title, as 
 dower is, that plea does not apply, it being only a bar to an 
 equitable, not to a legal claim". He therefore overruled the 
 plea [a). According to another note of this judgment. Lord 
 Thurlow said, " The jurisdiction of this Court in assigning dower 
 is founded on a pure legal title of the dowress, (so pure, that it 
 does not attach upon an equitable estate,) which this Court can 
 give effect to, with a greater degree of convenience, than can be 
 had before a jury on a writ of dower" {b). The ground of this 
 decision seems to be, that the dowress was not come into equity, 
 to ask the Court to help her to recover at law, but was come 
 there to pray the Court to exercise its own jurisdiction to assign 
 dower. 
 
 (z) Bodmin, or Radnor, v. Vande- I drell, 10 Ves. 246, 2t)l, 271 ; Mole v. 
 
 bendy, 1 Vern. 356, 2 Ch. Cas. 172, Smith, Jacob, 496. 497. 
 
 Prec. Ch. 65, Show. P. C. 69 ; Swan- i (a) 3 Bro. C. C. 264, cited 1 Russ. & 
 
 nock V. Lyford, Amb. 6 ; Hill v. Adams, M. 292. 
 
 S. C, 2 Atk. 208 ; Wynne v. Williams, \ (b) 3 Bro. C. C. ed. Belt, 265, n. 
 
 6 Ves. 130, 134; Manndrell v. Maun. '■ (2).
 
 406 
 
 [CH. XXXII. 
 
 SECTION III. 
 
 OF SEVERAL EXCEPTIONS TO THE RULE OF PRIORITY. 
 
 1. It may, in the first place, be mentioned, that the law, and an 
 equal equity, may give priority to a farther charge, on which 
 money is lent by a mortgagee of the legal estate. This farther 
 charge will be payable before a mortgage, or incumbrance, 
 intervening between such charge and the original mortgage (c). 
 
 2. The law, and an equal equity, may give priority to a 
 statute or judgment, on which a mortgagee of the legal estate 
 has lent more money. The statute, or judgment, will be pay- 
 able before a mortgage, or incumbrance, intervening between 
 such statute or judgment and the original mortgage (d). 
 
 3. The law, and an equal equity, may, it would seem, give 
 priority to a farther charge, on which a mortgagee of the legal 
 estate has lent money, and whose original mortgage is made to 
 secure not only a sum of money already lent, but also such other 
 sums as shall hereafter be lent. Such after lent sums will be 
 payable before a mortgage, or incumbrance, intervening between 
 this loan and the original mortgage (e). 
 
 4. The law, and an equal equity, may give priority to a mort- 
 gage, or judgment, bought by a mortgagee of the legal estate. 
 This mortgage or judgment bought will be payable before a 
 mortgage, or other incumbrance, intervening between the incum- 
 brance so bought and the original mortgage (f). And the whole 
 
 (c) Hedworthv P7-imate, Hardr. 318 ; 
 Goddard v. Complin, 1 Ch. Cas. 119; 
 Blackston v. Morelnnd, 2 Ch. Cas. 20 ; 
 Anon. 2 Freem. 6, pi. 7 ; IVviglitson v. 
 Hudson, 2 Eq. Cas. Abr. 609 ; Bedford 
 V. Backhouse, or Bacchus, ib. 615 ; 
 Hasket v. Strong, 1 Stra. 689 ; Barnett 
 V. Weston, 12 Ves. 130. See Cooper v. 
 Cooper, Nels. 153. 
 
 ((/) Brace v. Duchess of Marlborough, 
 2 P. W. 494, fourth point. Shepherd v. 
 
 Titley, 2 Atk. 348, 352 ; Anon., or 
 Jackson v. Larigford, 2 Ves. 662 ; Ex 
 parte Kjiott, 11 Ves. 617. See also 
 Cason V. Round, Prec. Ch. 226, 2 Eq. 
 Cas. Abr, 594. 
 
 (e) Gordon v. Graham, 7 Vin. Abr. 
 52, 2 Eq. Cas. Abr. 598. 
 
 (/) Morret v. Paskc, 2 Atk. 52 ; 
 Anon., or Jackson v. Langford, 2 Ves. 
 662. These cases appear to contradict 
 Brcerton v. Jones, 1 Eq. Cas. Abr. 326.
 
 S. 111.2 OF SEVERAL EXCEPTIONS, &.C. 407 
 
 amount of the incuinbrance will, it seems, be payable, although 
 bought for a sum less than that amount (y). It may here be 
 added, that if a stranger purchases a mortgage (A), or a mort- 
 gagee buys in an incumbrance (z) ; although either incumbrance 
 is bought for a sum less than the amount of it, the whole of that 
 amount must be paid by the mortgagor, or his heir at law, who 
 comes to redeem (j). 
 
 5. The law, and an equal equity, may give priority to a third 
 or later mortgagee, who has paid oflf the first mortgagee, seised 
 or possessed of the legal estate, and obtained from him a convey- 
 ance of that estate. Here the third or later mortgage is, as 
 well as the first, to be paid before any mortgage or incumbrance 
 intervening between the first mortgage and the original mortgage 
 of the third or later mortgagee, by whom the first was paid off (k). 
 Such third or later mortgagee has on his side an equal equity, 
 and also the law, namely, the legal estate, which, as a plank from 
 the wreck, tabula in naufragio (Z), justifiably seized on for self-pre- 
 servation, a Court of Equity allows him to keep {mi). And the same 
 mode of self-preservation is allowed to an equitable mortgagee, 
 
 (g) Uorret v. Va^ke, 2 Atk. 54. 
 
 (K) Philips V. Vaughan, 1 Vern. 336 ; 
 William's v. Springfeild, ib. 476 ; Anon. 
 1 Salk. 155. 
 
 (i) Baker v. Hellett, or Kellet, Nels. 
 117, 3 Ch. Rep. 23 ; Darcy v. Hall, 1 
 Vern. 49; Ascough v. Johnson, 2 Vern. 
 66. 
 
 (j) On an incumbrance bought for 
 less than its value, by an heir, trustee, 
 executor, or agent, see Darcy v. Hall, 1 
 Vern. 49 ; Brathivaite v. Brathwaite, 
 ib. 334 ; Long v. Clapton, ib. 464 ; 
 Anon, 1 Salk. 155 ; Morret v. Paske, 2 
 Atk. 54. 
 
 (k) Marsh, or March, v. Lee, 2 Ventr. 
 337. 1 Ch. Cas. 162, and Shelly's case, 
 or Medleto7i v. Shelleh, there cited ; Mid- 
 dleton V. Shelly, 1 Lev. 197 ; Bovey v. 
 Skipwith, 1 Ch. Cas. 201 ; Anon. 2 
 Freem. 6, pi. 7 j Caches v. Sherman, ib. 
 
 13 ; Sherman v. Cox, 3 Ch. Rep. 83 ; 
 Sherjner v. Rabbins S^ Cox, Cas. T, Finch, 
 406 ; Hawkins v. Taylor, 2 Vern. 29 ; 
 Brace v. Duchess of Marlborough, 2 P. 
 W. 491, first point; Belchier v. Butler, 
 or Eenforth, 1 Eden, 523, 5 Bro. P. C. 
 ed. Toml. 292 ; Robinson v. Davison, 1 
 Bro. C. C. 63 ; Cator v. Cooley, 1 Cox, 
 182. See the question put by Lord El- 
 don, in Mackreth v. Symmons, 15 Ves. 
 335. The authorities referred to in this 
 note make it doubtful, if that question is 
 correctly reported. 
 
 (I) This expression is universally at- 
 tributed to Sir M. Hale ; but the author 
 has not met with the occasion, on which 
 that learned judge made use of it. 
 
 (m) 2 Ventr. 338, 339, 2 P. W. 491, 
 2 Ves. 573, 574, 1 Eden, 529, 530, 1 
 Durn. & E. 767.
 
 408 OF SF.VERAL EXCEPTIONS TO [CH. XXXII. 
 
 or one who has lent money on an agreement in writing to secure 
 it by mortgage (n). 
 
 To the mortgagee in the five preceding cases seised or pos- 
 sessed of the legal estate applies also, it would seem, the principle 
 of tacking. He has the legal right under the forfeiture, and an 
 equal equity to be paid the subsequent incumbrance. He has, 
 therefore, the law on his side, and an equal equity; and, by 
 reason of that equity, he is allowed to stand on his legal title, and 
 resist redemption, until payment of both incumbrances. 
 
 6. The law, and an equal equity, may give priority to a mort- 
 gagee of the legal estate, who obtained this security after an 
 equitable mortgage made by an agreement to mortgage (o), or 
 by a deposit of title deeds (/>). 
 
 7. The law, and an equal equity, may give priority to a second 
 or later mortgagee, who has bought in a statute entered into by 
 the mortgagor {q). 
 
 Of statutes, there are a statute-merchant and a statute-staple. 
 Each is a security for a debt, and consists of a recognizance, and 
 of an obligation sealed; and such security is called a statute, 
 because it was by statute, or Act of Parliament, ordained to be a 
 security. 
 
 The recognizance and obligation, called a statute-merchant, 
 were made a security by the Statute of Merchants, 13 Edw. I., 
 St. 3, c. 1 ; which gave a particular force to such security, when 
 the debt was acknowledged before the Mayor of London, or 
 certain other persons (?•). The recognizance and obligation, 
 called a statute-staple, were made a security by the Statute of 
 the Staple, 27 Edw. HI., st. 2, c. 9; which gave a particular 
 force to such security, when the debt was acknowledged before 
 the Mayor of a Staple ; that is, of a place by the statute 27 Edw. 
 
 (w) Matthews v. Cartwright, 2 Atk. 
 347. 
 
 (o) Morecock v. Dickins, Amb. 678. 
 See Right v. Bucknell, 2 B. & Adol. 278. 
 
 (p) Plumb V. Fhiht, 2 Anstr, 432. 
 
 (5) Marsh, or March, V.Lee, 2 Ventr. 
 337, 1 Ch. Cas. 162 ; Anon. 2 Ch. Cas. 
 
 208 ; Jefferson v. Dawson, S, C, mis- 
 printed, 1 Ch. Cas. 267 ; Windham v. 
 Lord Richardson, 2 Ch. Cas. 212 ; Stan- 
 ton V, Sadler, 2 Vern. 30. 
 
 (r) On a statute-merchant, and the 
 statute de Mercatoribus, see Meskin v. 
 Hickford, Bridgm. 16, 19.
 
 S. III.] THE RULE OF PRIORITY. 409 
 
 III., St. 2, c. 1, appointed to be a staple or mart of certain mer- 
 cliandize (s). If the debt is not paid pursuant to the recognizance 
 and obligation, then under each of the statutes, 13 Edw. I., st. 3, 
 c. 1, and 27 Edw. III., st. 2, c. 9, the lands of the debtor may be 
 extended, that is, appraised, and delivered to the creditor, to hold 
 until by the ordinary profits, according to the extended value, or 
 by them and by casual profits, such as mines, or felling of trees, 
 the whole debt, that is, the whole pain or penalty of the statute, 
 and also certain damages and costs of the conusee, are levied (t). 
 These Acts of Parliament authorise, it appears, execution of 
 lands in ancient demesne (?<) ; but not, it should seem, of copy- 
 holds held at the will of the lord (u). At law, the debtor is 
 entitled to an account of the receipt of the ordinary profits, and 
 of the casual profits, and may, by means of a writ of scire facias 
 ad computandiim, compel the creditor to render it. But this 
 account, which, of the ordinary profits, the creditor may be com- 
 pelled to give, is of such profits at the extended or appraised 
 value only of the land. If, by the ordinary profits at that value, 
 or by them and by casual profits, more than the penalty of the 
 statute has been levied, then the debtor is entitled to the surplus ; 
 deducting, however, out of this surplus, certain damages and 
 costs which the creditor may retain. But if the land is extended 
 below its true value, then after the penalty of the statute, and 
 certain damages and costs of the creditor, have been paid by 
 the ordinary profits at the extended value, or by them and by 
 casual profits, at law the creditor is entitled to keep all the sur- 
 plus ordinary profits, composed of the difference between the 
 extended and the true value {iv). In a Court of Equity, however, 
 
 (s) On the word Staple, see 4 Inst. 
 238, 282, and Spelm. Gloss, v. Stapula. 
 And see forms of an obligation of a sta- 
 tute-merchant and statute- staple, Mad. 
 Form. Angl. p. 361, 366. 
 
 (t) Fuiwood's case, 4 Co. 67, 67, b. ; 
 Hedworthv. Primote, Hardr. 318 j Marsh 
 V. Lee, 2 Ventr. 337 ; Brace v. Duchess of 
 Marlborough, 2 P. W. 493, third point. 
 
 (u) Hunting/eld's case, 2 Inst. 397 ; 
 
 Martin v.Wilks, Mo. 21 1.— Bro. Abr. tit. 
 Faux, de Recov. pi, 25, tit. Au7ic. Dem. 
 pi. 37, lit. Execution, pi. 91, 2 Rol. Abr. 
 tit. Statutes, P. pi. 8, 4 Inst. 270, Hob. 
 48. 
 
 (v) Heydon's case, Mo. 128, 3 Co. 8 ; 
 2 Shep. Touch, ed. Prest. 360. 
 
 (ly) Fulwood''s case, 4 Co. 67 b., 
 Marsh v. Lee, 2 Ventr. 338.
 
 410 OF SEVERAL EXCEPTIONS TO [CH. XXXII. 
 
 the debtor may have an account of the ordinary profits, at their 
 true value ; and after the real debt, it is presumed, as distin- 
 guished from the penalty of the statute, and also the conusee's 
 damages and costs, are by the ordinary profits at their true value, 
 or by them and by casual profits, paid ; in that Court, the debtor 
 is entitled to the surplus profits received (;r). 
 
 A second, or later mortgagee, who buys in a statute, seems to 
 obtain a priority of the following nature. Because the land is 
 taken in execution, and under the delivery the mortgagee, who 
 purchased in the statute, is possessed of the legal estate ; for this 
 reason, and because such mortgagee has also on his side an equal 
 equity, a Court of Equity leaves the parties to law, and will not 
 interpose to compel an account of the ordinary profits at the true 
 value of the lands. The mortgagee, who bought the statute in, 
 is therefore at law and in equity entitled to keep possession of the 
 lands, until by the ordinary profits at the extended value, or by 
 them and by casual profits, the whole penalty of the statute, and 
 also certain damages and costs of the conusee, are satisfied ; and 
 such mortgagee may apply the surplus ordinary profits, composed 
 of the diff'erence between the extended and the true value, in or 
 towards payment of the money paid by him for the statute, and 
 of his mortgage debt (?/). When, however, by the ordinary 
 profits, at the extended value, or by them and by casual profits, 
 the penalty of the statute, and the conusee's damages and costs, 
 are satisfied, then the statute may be vacated ; and so soon as it 
 is vacated, the legal estate, and consequently the advantage gained 
 by it, may be withdrawn from the mortgagee who bought it 
 in (z). 
 
 8. The law, and an equal equity, may give priority to a 
 farther charge made on land taken in execution under a statute. 
 Until by the ordinary profits at the extended value, or by them 
 and casual profits, the penalty of the statute is levied, the farther 
 
 (x) Marsh V. Lee, 2 Ventr. 338. 
 
 (i/) Hedworth v. Primate, Hardr. 318 ; 
 Marsh v. Lee, 2 Ventr. 337 ; Brace v. 
 Duchess of Marlborough. 2 P. W. 491, 
 
 third and fifth points, 
 
 (s) Brace v. Duchess of Marlborough, 
 2 P. W. 493, third point. See also Earl 
 of Huntington v. Greenville, 1 Vern. 52.
 
 S. 111.] THE IIULE OF PUIOIUTV. 411 
 
 charge will be payable before any mortgage or incumbrance 
 intervening between the statute and the farther charge. But so 
 soon as the penalty of the statute is levied, that priority is 
 gone (a). The conusee has not then the law on his side, but an 
 equity only. 
 
 9. The law, and an equal equity, may, it seems, give priority 
 to a second or later mortgagee, who has bought in a recognizance 
 or obligation in the nature of a statute-staple (b). And the 
 nature of the priority, which may be gained by buying in such 
 recognizance, is, it is presumed, the same, as that of the priority 
 obtainable by the purchase of a statute-staple. The recogni- 
 zance in the nature of a statute-staple was introduced by the 
 statute 23 Hen. VIII., c. 6 (c). The statute-staple was meant 
 to be a security only between merchant and merchant of the same 
 staple-town, and for merchandize of that staple. But in the course 
 of time, such statute grew to be a common security adopted by 
 other persons also. As, however, the Act of Parliament, which 
 originated the statute-staple, did not authorise, and as several 
 inconveniences had followed from, such different use of it, the 
 statute, 23 Hen. VIII., c. 6, put a stop to that practice, and 
 again confined the use of the statute-staple to merchants and 
 merchandize of a staple-town ; and at the same time provided a 
 new description of recognizance or obligation to secure the pay- 
 ment of debt. This recognizance may be used between any 
 persons, and may be taken by the Chief Justice of the King's 
 Bench, or of the Common Pleas, and, in their absence out of 
 term, by the Mayor of the Staple of Westminster, and the 
 
 (a) Hedivorth v. Primate, Hardr. 318, 
 and Poole v. Dudley, there cited. In the 
 latter part of the report of Hedworth v. 
 Primate, it is said, " The Chief Baron 
 and the whole Court held, that the de- 
 fendant here should not be relieved in 
 equity, for any money lent since the set- 
 tlement upon the credit of his former 
 security, for then no purchaser could be 
 safe." As this passage clearly contradicts 
 the former part of the report, it ought 
 
 perhaps to be read with this correction — 
 " that, beyond the penalty of the statute, 
 the defendant here, &c." 
 
 (6) Hacket V. Wakefield, Hardr. 172. 
 
 (c) The statute itself prescribes liie 
 form of the recognizance or obligation. 
 See also the same form in 2 Orl. Bridgm. 
 Conv. 53. And see forms of an assign- 
 ment of a recognizance or obligation in 
 the nature of a statute-staple, Orl. Bridgm. 
 Conv. 1 vol. 89, 265, 2 vol. 64, 223.
 
 41'2 OF SEVERAL EXCEPTIONS TO [CH. XXXII. 
 
 Recorder of the city of London, jointly together ; and in default 
 of payment of the debt, the conusee may have against the 
 land of the conusor the same execution, to which a conusee of 
 a statute-staple is entitled under the statute, 27 Edw. III., 
 St. 2, c. 9. 
 
 10. The law, and an equal equity, may give priority to a 
 second or later mortgagee, who has bought in a judgment {d). 
 
 Possession of land by means of a judgment is provided by 
 the Statute Westminster 2, 1-3 Edw. I., c. 18. It is by 
 it enacted, " When debt is recovered or knowledged in the 
 King's Court, or damages awarded, it shall be from henceforth in 
 the election of him that sueth for such debt or damages, to have a 
 writ of Jieri facias vmto the sheriff for to levy the debt of the 
 lands and goods ; or that the sheriff shall deliver to him all the 
 chattels of the debtor, and the one half of his land, until the debt 
 be levied upon a reasonable price or extent." If the creditor 
 elects to have one-half of the land, the writ directed to the sheriff 
 is called an elec/iL And he to whom the land is delivered by 
 ele^ity under a judgment for debt, is possessed of a chattel estate, 
 until out of the ordinary profits of the land, at the extended 
 value, or out of them and by casual profits, the debt is levied (e). 
 And so soon as the debt is levied out of such ordinary profits, the 
 debtor may enter (f). At law, the debtor is entitled to an 
 account at the extended value only (^) ; which, generally speak- 
 ing, is much below the true value {h). And if, on taking such 
 account, it is found that the creditor is satisfied, the debtor may 
 then enter (f). But, in a Court of Equity, the debtor may have 
 an account at the true value of the land (J). At law, the creditor 
 may keep the surplus profits, composed of the difference between 
 
 (d) Higgon V. Syddal, 1 Ch. Cas. 149 ; 
 Edmunds v. Povey, 1 Vern. 187. See 
 Cockes V. Sherman, 2 Freem. 14, 15. 
 
 (e) 2 Inst. 396 ; Co. Litt. 42 a., 43 b. ; 
 2B1. Com. 161. 
 
 (/) 2 Inst. 396; 4 Co. 67 b.; Cro. 
 Car. 598 ; 2 Ventr. 336. See Doughty 
 V. Styles, Cas. T. Finch, 115. 
 
 {g) 2 P. W. 494 ; 2 Atk. 53 ; 3 Atk. 
 
 517; 1 Yes. 250; 3 Y. & Jerv. 395. 
 See Price v. Varney, 3 B. & C. 733. 
 
 Qi) 3 Atk. 517 ;" 2 P. W. 494 ; 3 Y. 
 & Jerv. 395. 
 
 (0 2 Inst. 396; 4 Co. 67 b.; Cro. 
 Car. 598 ; 2 Ventr. 336. See Price v. 
 Varney, 3 B. & C. 733. 
 
 (j) 3 Atk. 517 ; 1 Yes. 250 ; 3 Y. & 
 Jerv. 395.
 
 S. III.] THE RULE OF PRIORITY. 413 
 
 the extended and the true vahie ; but in equity that surplus is 
 applied in payment of the debt {k). 
 
 A judgment debt is, it is observable, a chose in action; a pro- 
 perty which, in some sense, is not assignable at law (Z). It is 
 there assignable ; but if the assignee seeks payment of it at law, 
 he must do this, not in his own name, but in the name of the 
 assignor (m) ; and, accordingly, a power for that purpose is 
 commonly put into the instrument of assignment (w). 
 
 A second or later mortgagee, who buys in a judgment debt, 
 may gain a priority, if the land in mortgage is taken in execution 
 imder the writ of elegit. The priority so gained seems to be of 
 this nature. — By means of the elegit, the mortgagee either is 
 himself in possession of a moiety of the land, or is entitled to 
 receive from a tenant the rent of a moiety (o). If he himself is 
 in possession, or if he has the right to receive rent from a tenant, 
 he is at law entitled, in the one case, to hold the possession and 
 take the profits, and, in the other, to receive the rent, until, on an 
 account of the ordinary profits, at the extended value, or of them 
 and of casual profits, the judgment debt is satisfied (/?). As at 
 law he cannot be brought to account except at the extended 
 value, and which usually is much below the true value, such 
 mortgagee may at law, after the judgment debt is satisfied by the 
 true value, apply the surplus, composed of the difference between 
 the extended and true value, in or towards payment of his debt 
 by mortgage. And because he has in this way the law on his 
 side, and has also an equity equal to that of a former mortgagee 
 or incumbrancer, a Court of Equity will not disturb that advan- 
 tage gained by him at law {q). And if at law he can hold the 
 possession, or procure payment of the rent, after the judgment 
 debt is, at the extended value, satisfied, or, perhaps it may be 
 
 (/c) 3 Atk. 517 ; 1 Ves. 250 ; 3 Y. & 
 Jerv. 395. 
 
 (0 Co. Liu. 214 a; 2 BL Com. 442. 
 
 (in) Bro. Abr. tit. Chose in Act., pi. 
 3 ; 2 Bl. Com. 442. 
 
 (7i) See a form of an assignment of a 
 judgment debt, 1 Orl. Bridgm. Conv, 
 315. 
 
 (o) Cambell's case, 1 RoL Abr. 894 ; 
 Doe V. Wharton, 8 Durn. & E. 2. 
 
 (p) 2 Inst. 396; 3 Atk. 517; 1 Ves. 
 250 ; Price V. Varney, 3 B. & C. 733. 
 
 (5) Brace v. Duchess of Marlborough, 
 2 P, W. 494, fifth point ; Morret v. Paske, 
 2 Atk. 53 ; Wortley v. Birkhead, 2 Ves. 
 574.
 
 414 or SEVERAL EXCEPTIONS TO [CH. XXXII. 
 
 stated, even after that satisfaction is entered on the record, a 
 Court of Equity will, it seems, leave this mortgagee and the 
 former mortgagee or incumbrancer to combat at law, and will 
 not interpose to let the latter in upon the estate, until, by the 
 profits at their true value, the mortgagee, who has obtained an 
 advantage at law, is paid, not only the judgment debt bought by 
 him, but also his debt on mortgage (r). 
 
 11. The law, and an equal equity, may, it seems, give priority 
 to a second or later mortgagee, who has bought in a common law 
 recognizance or obligation, before some Court of Record entered 
 into for the payment of debt (s). 
 
 When a debt secured by this kind of recognizance is not paid, 
 a moiety of the land of the conusor may be taken in execution 
 under the writ of elegit, which is by the Statute Westminster 
 2, provided as well for this recognizance as for a judgment {t). 
 
 The nature of the priority, which may be gained by buying in 
 a common law recognizance, is, it is presumed, the same, as that 
 of the priority obtainable by the purchase of a judgment. 
 
 12. The law, and an equal equity, may, it appears, give priority 
 to a second or later mortgagee, who has bought in a satisfied 
 incumbrance {71) ; as a mortgage (v), statute (w), or judgment {x). 
 
 The advantage that may be gained by the possession of the 
 
 (r) Higgon v. Syddal, 1 Ch. Cas. 149, 
 cited 2 P. W. 493 ; Edmunds v, Fovey, 
 1 Vern. 187 ; Brace v. Duchess of Marl- 
 borough, 2 P. W, 494, fifth point ; Mor- 
 ret V. Paske, 2 Atk. 53. See also Stan- 
 ton V. Sadler, 2 Vern. 30 ; Hitchcock v. 
 Sedgwick, ib. 158, 159 ; Sanders v. De- 
 ligne, 2 Freem. 123 ; Collet v, De Gals, 
 Cas. T. Talb. 69 ; and Stanhope v. Earl 
 Verney, 2 Eden, 85. 
 
 (s) Hacket v. Wakefield, Hardr. 172. 
 On this kind of recognizance, see Bro. 
 Abr. tit. Recognimnce, pi. 8, 14, Vaugh. 
 102, 103, Hob. 195, 2 Bl. Com. 341, 
 Finch L. p. 51, ed. 1759, p. 162. 
 
 (t) 2 Inst. 395 ; Cio. Car. 598 ; 
 Hardr. 172. 
 
 (w) Lord Chief Justice Holt v. Mill, 
 
 2 Vern. 279. See also Sir John Fogg's 
 case, cited 2 Vern. 58, and Hitchcock v. 
 Sedgivick, ib. 153, 159. Generally on 
 the satisfaction or determination of a sta- 
 tute, or execution by elegit, see Ful- 
 wnod's case, 4 Co. 64 b. ; Dighton v. 
 Greenvil, 2 Ventr. 332, 33.'), 336 ; Marsh 
 V. Lee, ib. 338, and Burwell v. Har- 
 well, Cro. Car. 597. 
 
 (v) Turner v. Richmond, 2 Vern. 81. 
 
 (w) Anon. 2 Ch. Cas. 208, probably 
 misprinted Anon., instead of the next 
 case in same page. Jefferson v. Dawson, 
 S. C, misprinted, 1 Ch. Cas. 267 ; Stan' 
 ton V. Sadler, 2 Vern. 30. 
 
 (x) Edmunds v. Povey, 1 Vern. 187, 
 cited 2 P. W. 494. See Prec. Ch. 495, 
 and Caches v. Sherman, 2 Freem. 13, 14.
 
 S. III.] THE RULE OF PRIORITY. 415 
 
 legal estate, conferred by either of those satisfied securities, con- 
 sists perhaps in the circumstance, that so long as the mort- 
 gagee, who has bouglit it in, can at law retain that estate, a 
 Court of Equity will leave him, and any intervening mort- 
 gagee or incumbrancer, to combat at law, and will not interpose 
 to take from him any aid, which the law may give him to procure 
 payment of his mortgage debt (?/). 
 
 13. The law, and an equal equity, may give priority to a second 
 or later mortgagee, who has procured an assignment of a satisfied 
 term of years. 
 
 The principle is, that the assignment makes the assignee a 
 tenant; namely, the tenant entitled to the present possession of 
 the land, and therefore to enter, or, if necessary, to obtain that 
 possession by ejectment {z). At law, the term is what is called 
 a term in gross (a) ; and when the assignee of it is tenant in 
 possession, at law he may hold, and take the yearly rents and 
 profits, until the term is determined (b), and apply those rents 
 and profits in or towards satisfaction of the mortgage debt. And 
 because this mortgagee has the law on his side, and also an 
 equity equal to that of any other incumbrancer, a Court of Equity 
 will not take from him the advantage gained by him at law (c). 
 
 Where there is a satisfied term, a trust to attend the inherit- 
 ance is- often expressly annexed to it; and when such trust is 
 not expressly annexed to it, then, by construction of a Court of 
 Equity, the term may attend the inheritance (d). 
 
 A distinction was, it seems, once attempted to be introduced, 
 that a satisfied term constructively attendant might be assigned 
 to, or in trust for, a particular purchaser or mortgagee ; but that 
 a satisfied term, when it had been once assigned to attend the 
 inheritance, could not afterwards be assigned to, or in trust for, 
 
 (y) Anon. 2 Ch. Cas. 208 ; Stanton v. 
 Sadler, 2 Vera. 30 ; Caches v. Sherman, 
 2 Freem. 13. See also Higgon v. Syddal, 
 1 Ch. Cas, 149, and Brace v. Duchess of 
 Marlborough, 2 P. W. 493. 
 
 (s) Willoughby v. Willoughby, 1 Durn. 
 & E. 767 ; Goodtitle v. Morgan, ib. 755 ; 
 Right V. Bucknell, 2 B. & Adol. 278. 
 
 (a) I Durn. & E. 765; 1 Bro. C. C. 
 
 69, 70 ; 7 Ves. 577. 
 (/)) 1 Durn. & E. 765. 
 
 (c) Wiilovghby v. WilLotighby, 1 Durn, 
 & E. 763, 767, 770, 772 ; Evans v. 
 Bicknell, 6 Ves. 184, 185 ; Manndrell v. 
 Maundrell, 10 Ves. 260, 270 ; Mole v. 
 Smith, Jacob, 496. 
 
 (d) 1 Durn. & E. 766, 768 ; 1 Bro. 
 C. C. 70 ; 10 Ves. 259, 260, 270.
 
 416 
 
 OF SEVERAL EXCEPTIONS TO 
 
 [CH. XXXII. 
 
 any particular purchaser or mortgagee (e). But this distinction 
 was not allowed; and clearly the term may in either case be 
 assigned for such protection (/'). 
 
 It is certain that a second or later mortgagee is, both at law 
 and in equity, allowed to protect himself by procuring an assign- 
 ment of a satisfied term. But although in him this conduct is 
 unimpeachable, it is perhaps doubtful whether the trustee, if he 
 is aware of an earlier mortgage, is safe in making that assign- 
 ment. Lord Hardwicke appears to have thought such assign- 
 ment to be a breach of trust, for which the trustee ought to make 
 satisfaction {g). His Lordship, it is said, considered the question 
 to be, not whether the purchaser {Ji) should hold under the breach 
 of trust, but whether the trustee should be punished [i). He 
 thought the piirchaser would be safe in taking the assignment, if 
 he could get it, but would not say the trustee would be safe [j). 
 Contrary to this doctrine. Lord Eldon seems to have expressed 
 an opinion, that if the purchaser would be safe, the trustee ought 
 to be so {k). 
 
 14. The law, and an equal equity, may give priority, before a 
 mortgagee, to a judgment creditor whose incumbrance is earlier 
 than the mortgage, and who has procured a conveyance of the 
 legal estate from a satisfied mortgagee (Z), or an assignment of a 
 satisfied term of years {m). 
 
 15. When a satisfied term of years is still outstanding, namely, 
 
 (e) 1 Durn. & E. 768 ; Amb. 284. 
 By the former report, Lord Hardwicke, in 
 stating the distinction, is made to divide 
 it into two branches ; but t]iis is perhaps 
 a mistake, for the second seems to be a 
 mere repetition in other words of the first. 
 The same distinction, stated in 1 Collect. 
 Jurid. 357, 358, is evidently incorrect. 
 The distinction in question was attempted 
 by counsel, and will be found in 1 Col- 
 lect. Jurid. 341. 
 
 (/) Oxwick v. Biochett, 1 Eq. Cas. 
 Abr. 355 ; Willoughby v. Willoughby, 1 
 Durn. & E. 763, 770, 771.772; Stan- 
 hope V. Earl Verney, 2 Eden, 81, 85. 
 
 (g) 1 Durn. & E. 771 ; 10 Ves. 261 ; 
 11 Ves. 613. 
 
 {h) In this word Lord Hardwicke in- 
 cluded a mortgagee. 1 Durn. & E. 767. 
 
 (i) " Lord Hardwicke says, the ques- 
 tion is not, whether the trustee shall be 
 punished, but whether the purchaser shall 
 hold under the breach of trust." 11 Ves. 
 613. The context in the same page 
 seems to require the transposition, which 
 the author has ventured to make of the 
 two questions. 
 
 (j) 11 Ves. 613. 
 
 (k) 11 Ves. 613, 614. 
 
 (/) Turner v. Richmond, 2 V^ern. 81. 
 
 (to) Earl of Bristol v. Hungerford, 2 
 Vern. 524 ; Turner v. Richmond, ih, 
 81.
 
 S. III.] THE RULE OF PRIORITY. 417 
 
 either in the original termor, or his representative, or assignee, or 
 in a person to whom it has been assigned generally in trust to 
 attend the inheritance, and it has not been assigned to or in 
 trust for any particular mortgagee or incumbrancer, the first 
 benefit of, or priority conferrible by it, belongs to that incum- 
 brancer who, in order of time, is the first incumbrancer on the 
 estate; as a mortgagee (n), or creditor by judgment (o). In 
 these cases, a Court of Equity applies the rule, qui prior est 
 tempore p)otior est jure {p), unless some other party has a better 
 right to call for the legal estate ; that is, to call for an assignment 
 of it to or in trust for himself («/); for where this better right 
 exists, the person who owns it is entitled to priority (r), as a 
 mortgagee (s), or jointress (t), or children entitled to portions 
 under a marriage settlement (?<), or other persons claiming under 
 such a settlement (v). 
 
 A person may, in several ways, acquire the better right to 
 call for the legal estate. In Maundrell v. Maundrell, Lord Eldon 
 anonymously cited a case determined by Lord Cowper, (and 
 which is probably Wilkes v. Boddington {w\) "where the trus- 
 tees of the term joined in a conveyance to a purchaser, not con- 
 veying the term, but making themselves parties ; which was 
 therefore considered as a declaration, that they would hold for 
 that purchaser. A subsequent purchaser tried to get a convey- 
 ance, but was not permitted, as upon the foot of the contract the 
 trustees had given the other a better right to call for a convey- 
 ance" {x). A mortgagee may also acquire the better right to call 
 for the legal estate, if he has used the diligence to possess 
 
 (n) Brace v. Duchess of Mariborough, 
 2 P. W. 491, 495, seventh point; Wil- 
 loughhifv. WUbiighby.l Durn. & E. 773. 
 
 (o) Charlton v. Low, 3 P. W. 328. 
 
 (p) 2 P. W. 495;2 Ves. 486. 
 
 (9) 10 Ves. 270; 11 Ves. 618. 
 
 (r) Earl of Pomfret v. Lord Windsoi-, 
 2 Ves. 472, 486 ; Maundrell v. Maun- 
 drell, 10 Ves. 270; Ex parte Knott, 11 
 Ves. 618. See also Clarke v. Abbot, 
 Barn. Ch. Rep. 457, 2 Eq. Cas. Abr. 
 
 £ 
 
 606, Ca. 41, and Ingrain v. Pelham, 
 Amb. 153. 
 
 (4) Stanhope v. Earl Verney, 2 Eden, 
 81. See Clarke v, Abbot, Bain. Ch. Rep. 
 457. 
 
 (f) Willoughby v. Willottghby, 1 Durn. 
 & E. 763, 774, 775. 
 
 (m) Ibid. 
 
 (w) Wilkes V. Boddington, 2 Vern.599. 
 
 (wi) 2 Vern. 599. 
 
 (,r) 10 Ves. 270.
 
 418 OF AN INCUMBRANCER, AVHO HAS THE [CH. XXXII. 
 
 himself of the deed that creates a satisfied term, which is that 
 estate (?/) ; and therefore, by greater reason, he will acquire that 
 right, if such a term has been assigned generally in trust to 
 attend the inheritance, and he obtains possession of the deeds, by 
 which the term was created and so assigned (z) ; or if such a term 
 has been assigned generally in trust to attend the inheritance, 
 and, on a mortgage afterwards made, the mortgage conveyance 
 contains a declaration, that the trustees shall stand possessed of 
 the term in trust for the mortgagee, and the deeds respecting the 
 term are delivered to the mortgagee (a). 
 
 It remains to be noticed, that a later mortgagee, who has pro- 
 cured an assignment of a satisfied term to a trustee in trust for 
 himself, may, notwithstanding this assignment, be obliged to 
 yield priority to a former mortgagee, if there are circumstances 
 that give this incumbrancer a better right to call for an assign- 
 ment (b) ; as if the second mortgagee became an incumbrancer 
 maldjide, and with notice of a jointure, by means of which mala 
 fides and notice the jointress, who is the first mortgagee, may 
 demand the term to be assigned to a new trustee for her, and 
 then compel the second mortgagee to redeem not only the join- 
 ture, but also her mortgage (c). 
 
 SECTION IV. 
 
 OF CERTAIN CASES, IN WHICH AN INCUMBRANCER, ALTHOUGH 
 HE HAS THE LAW ON HIS SIDE, MAY NOT HAVE AN E^UAL 
 EQUITY. 
 
 Of incumbrancers, who, although they have the law on their 
 side, may not have an equal equity, it may be mentioned, 
 
 1. If a judgment creditor buys in a mortgage of the legal 
 
 (3/) Maimdrell v. Maundrell , 10 Ves. 
 260,262, 271; Ei parte Kiiott , U Ves. 
 612. 613 ; Moiev. Smith, Jacob, 497. 
 
 (s) Willougliby v. Willoiighby, 1 Durn. 
 & E. 772. 
 
 (o) Stanliope\. Earl FerHev.2Eden, 81. 
 
 (ft) Maundrell v. Maundrell, 10 Ves. 
 270. 
 
 (c) Willougliby v. Willoughby, 1 Durn, 
 & E. 763, 773, 774, Amb. 282, 1 Col- 
 lect. Jurid. 337.
 
 S. IV.] LEGAL ESTATE, HUT NOT AN EOUAL EQUITY. 419 
 
 estate, he will not, it appears, thereby gain for the judgment debt 
 a priority before a mortgagee who, in order of time, is an incum- 
 brancer between the judgment and the mortgage bought in (d). 
 The chief reason assigned for disallowing such priority of the 
 judgment debt is, that this creditor did not lend his money on the 
 security of particular land (e) ; in other words, " on the credit of 
 the land " (f), or " upon the immediate view or contemplation of 
 the conusor's real estate" (y). The equity of the intervening 
 mortgagee seems to be greater than that of the judgment creditor, 
 because the former did, and the latter did not, lend his money on 
 the security of the particular land. For the distinction which is 
 made between a mortgagee, who buys in a mortgage of the legal 
 estate, and who may by that means gain a priority for his own 
 mortgage debt, and a judgment creditor who makes that purchase, 
 these reasons are assigned, — that a mortgagee lends his money on 
 the security of particular land, but "the judgment creditor does 
 not lend his money upon the immediate view or contemplation of 
 the conusor's real estate, for land afterwards purchased may be 
 extended on the judgment; nor is he deceived or defrauded, 
 though the conusor had before made twenty mortgages of all his 
 real estate ; whereas a mortgagee is defrauded or deceived, if the 
 mortgagor before that time mortgaged his land to another " (A). 
 
 2. A mortgagee, or other incumbrancer, although he has the 
 law on his side, may not have an equal equity, if, at the time he 
 lent his money, he had notice of a former mortgage or incum- 
 brance {i). Clearly the former mortgagee or incumbrancer hath 
 the greater equity. 
 
 If a third mortgagee lends his money, with notice of the second 
 mortgage, and afterwards buys in the legal estate of the first 
 
 (a) Brace v. Duchess of Marlborough, 
 2 P. W. 491, Mos. 50, cited 11 Ves. 617. 
 See Wright v. Pilling, Free. Ch. 494. 
 
 (e) Mos. 53 ; 11 Ves. 617. See also 
 Burgh V. Fra7icis, Cas. T. Finch, 28, 
 1 Eq.Cas. Abr.320, 3 Swanst. 536, n. 
 
 (/) 2P. W. 493. 
 
 (g) 2 P. W. 492; Mos. 51. 
 
 (h) 2 P. W. 492; Mos. 51, 53, 55 ; 
 11 Ves. 617. On fraud towards a mort- 
 gagee, by not giving him notice of prior 
 mortgages, judgments, statutes, or recog- 
 nizances, see the stat. 4 and 5 W. & M. 
 c. 16, and Stafford v. Selby, 2 Vern. 589. 
 
 (i) WiUoughbyv. Willoughby, 1 Durn. 
 &E. 767, 771,2 Ves. 684. 
 
 E E '2
 
 420 OF AN INCUMBRANCER, WHO HAS THE [CH. XXXII. 
 
 mortgagee, the second mortgagee may redeem the legal estate on 
 payment of the first mortgage only (j). And if, with notice of 
 a second mortgage, the first mortgagee lends, on a statute, more 
 money to the mortgagor, the second mortgagee may redeem on 
 payment of the first mortgage only {k). If a mortgagee, with 
 notice of a judgment subsequent to his mortgage, lends more 
 money to the mortgagor on farther charge, this farther charge is 
 not entitled to priority before the judgment (Z). If a second, or 
 later mortgagee, lends his money with notice of a former mort- 
 gage, and afterwards obtains the legal estate by procuring an 
 assignment of a satisfied term, such estate will not give him 
 priority before the mortgage of which he had notice (m). 
 
 It may here be mentioned, that in Parry v. Wright^ an incum- 
 brancer, who advanced his money with constructive notice of a 
 second mortgage, and out of that money paid the first mortgage 
 off, but did not keep this security on foot, was held not to be 
 entitled, against the second mortgagee, to stand in the place of 
 the first mortgagee ; and this failure to keep the first security 
 on foot had the effect to make the second mortgagee the first 
 incumbrancer on the estate {n). 
 
 SECTION V. 
 
 OF CERTAIN CASES IN WHICH AN INCUMBRANCER, ALTHOUGH 
 HE HAS THE LAW ON HIS SIDE, MAY NOT HAVE ANY EQUITY. 
 
 Of mortgagees who, although they have the law on their side, 
 may not have any equity, two kinds may in particular be men- 
 tioned. One who fraudulently conceals his own incumbrance; 
 the other who fraudulently neglects his duty to take or keep the 
 title deeds of the estate. 
 
 (j) Brothers v. Bence, Fitzg. 118; 
 Caches v. Sherman, 2 Freem. 14 ; Toul- 
 min V. Steere, 3 Mer. 224. 
 
 (k) Cason V. RounH , Free. Ch. 226, 
 2 Eq. Cas. Abr. 594. 
 
 (/) Sisli V. Hopkins^ Amb. ed. Blunt, 
 Append. 793. 
 
 (m) Willoughbyv.Wiiloughby, I Durn. 
 & E. 771 ; Mole v. Smith, Jacob, 496. 
 
 (rt) 1 Sim. & St. 369.
 
 S. v.] LECIAL ESTATE, BUT NOT ANY EQUITY. 4*21 
 
 1. If a mortgagee, who is seised or possessed of the legal 
 estate, knows that a person is about to lend money on mortgage 
 of the same property, and fraudulently conceals from that person 
 his own incumbrance, such person may, in equity, postpone this 
 incumbrance to his own mortgage (o). On the same principle, 
 equity will protect a purchaser against a concealed mortgage (p) ; 
 and also a purchaser (q), or mortgagee (r), against a misrepre- 
 sented (s) or concealed settlement of the estate. In Horlock v. 
 Priestley, there was in a particular manor no limited time for pre- 
 senting surrenders made out of Court; and therefore it was 
 decided, that fraudulent intention or concealment was not im- 
 putable to a mortgagee, whose conditional surrender had not been 
 enrolled, and who was not admitted, until after a subsequent sur- 
 render to another incumbrancer; and that, accordingly, as the 
 mortgagee was seised of the legal estate, he was entitled to 
 priority before the subsequent incumbrancer, although the latter 
 advanced his money without notice of the mortgage [t). 
 
 2. If a mortgagee, who is seised or possessed of the legal 
 estate, fraudulently leaves the title deeds to that estate in the 
 custody of the mortgagor, or, after their delivery to the mort- 
 gagee, fraudulently lends them to the mortgagor, a subsequent 
 mortgagee, who, by such possession of the title deeds, is led to 
 believe that the property is unincumbered, and therefore to ad- 
 vance his money, may in equity postpone the former mortgage 
 
 (o) Ckres case, cited 9 Mod. 38 ; 
 Clare v. Earl of Bedford, apparently 
 S. C, cited 2 Vero. 151 ; Anon., perhaps 
 S. C, cited Barn. Ch, Rep. 102 ; Dra- 
 jier V. Borlace, 2 Vern. 370 ; Ihbotson v. 
 Rhodes, ib. 554 ; Mocatta v. Murgatroyd, 
 1 P. W. 393. See also Beckett v. Cord- 
 ley, 1 Bro. C, C. 353. 
 
 (p) Amy's case, cited 2 Ch. Cas, 128, 
 probably Dr. Amyas' case, cited 2 Vern. 
 151; Anon. 1 Ereem. 310, Ca. 379; 
 Berrysford v. MUlward, Barn. Ch. Rep. 
 101, 2 Atk. 49. 
 
 (q) Savage v. Foster, 9 Mod. 35 ; 
 Hobbs V. Norton, 1 Vern. 136, 2 Ch. 
 Cas. 128 ; Hunsdcn v. Cheyney, 2 Vern. 
 
 150; Raw V. Pote, or Potts, ib. 239, 
 Free. Ch. 35 ; Teasdale v. Teasdale, Sel. 
 Ca. Ch. 59, 2 Eq. Cas. Abr. 391. 
 
 (r) Watts V. Cresswell, 9 Vin. Abr. 
 415, 2 Eq. Cas. Abr. 515, Ca. 3 ; Anon., 
 before Lord Cowper, cited 1 Ves. 96. 
 See also Marquis Cholmoiideley v. Lord 
 Clinton, 2 Mer. 313, 362. 
 
 (s) Beverley v. Beverley, 2 Vern. 131, 
 133; Hunsden V. Cheyney, ib. 150. See 
 also Arnot v. Biscoe, 1 Ves 95 ; Pearson 
 V. Morgan, 2 Bro. C. C. 388 ; Mere, 
 wether v. Shaw, 2 Cox, 124 ; and Barret 
 V. Wells, Free. Ch. 131. 
 
 (0 2 Sim. 75.
 
 422 OF AN INCUMBRANCER WHO MAS NOT, &C. [CH. XXXI I. 
 
 to his own security (it). It is not, however, a fraud, merely to 
 leave the title deeds in the custody of the mortgagor (v), or, 
 after their delivery, merely to lend them to him (iti). But it is 
 the duty of a mortgagee of the legal estate, to which possession 
 of the title deeds is legally incident (x), to take and keep the 
 title deeds (y) ; and although the mere leaving or lending them 
 is not fraud, yet fraud will be constituted by the mortgagee's 
 " gross neglect" or " gross negligence" in leaving or lending the 
 deeds [z), or by his "voluntary leaving" of them (a), or by his 
 " gross and voluntary negligence " in leaving them (b), or, in 
 leaving them, by his failure " to use reasonable diligence for his 
 own protection " (c) ; expressions which seem to mean a leaving 
 or lending, accompanied by an unreasonable want of care to pre- 
 vent injury or fraud to himself or others. 
 
 If a mortgagee of the legal estate innocently leaves the title 
 deeds in the custody of the mortgagor, yet if afterwards a second 
 mortgage is made, and the deeds are delivered to this mortgagee, 
 a Court of Equity, although it will not postpone the first mort- 
 gagee, will not compel the second to give the title deeds up to 
 him (d). 
 
 If when a mortgage is made the mortgagee does not take or 
 
 (m) Peter v. Russell, 1 Eq. Cas. Abr. 
 321, Ca. 7. 2 Vern. 726; Evans v. Bick- 
 nell, 6 Ves. 192 ; Clifford v. Brooke, 13 
 Ves. 132. 
 
 (v) Head V, Egerton, 3 P. Vi. 280 ; 
 Plumb V. Fluitt, 2 Anstr. 440 ; Tourle v. 
 Raud, 2 Bro. C. C. 650 ; Evans v. Bick- 
 nell, 6 Ves. 190, 191 ; Harper v. Faulder, 
 4 Madd. 138 ; Anon. (29 July or Janu- 
 ary, 1802), cited 4 Madd. 135, and 3 
 Russ. 39 ; Barnett v. Weston, 12 Ves. 
 130, 133. These authorities contradict 
 the old doctrine expressed by the opinions 
 of Burnet, J., 1 Ves. 360, and Builer, J., 
 1 Durn. & E. 762. See 6 Ves. 183, 194. 
 
 (w) Peter v. Russell, 1 Eq. Cas. Abr. 
 321, Ca. 7, Gilb. Eq. Rep. 122, 2 Vern. 
 726, cited 6 Ves. 191 ; Martinez v. 
 Cooper, 2 Russ. 198. See also Ex parte 
 Meux, 1 Glyn & J, 116. 
 
 (.r) 2 Bro. C. C. 652; 4 Madd. 
 138. 
 
 (y) 3 P. W. 281 ; 1 Durn. & E. 762, 
 772. 
 
 (s) Peter v. Russell, 1 Eq. Cas. Abr. 
 321, Ca. 7; Tourle v. Rand, 2 Bro. C. 
 C. 652 ; Evans v. Bicknell, 6 Ves. 190, 
 191 ; Martinez v. Cooper, 2 Russ. 217. 
 
 (a) Penner v. Jemmatt, or Jemmett, 2 
 Bro. C. C. 652, n., I Fonbl. Treat. Eq. 
 5th ed. 166, n. 
 
 (6) Plumb V. Fluitt, 2 Anstr. 440. 
 
 (c) Harper v. Faulder, 4 Madd. 138. 
 
 (d) Head V. Egerlon, 3 P. W. 280, 
 cited 2 Ves. & B. 83; Evans v. Bicknell, 
 6 Ves. 191 ; Anon. (29 July or January, 
 1802), cited 4 Madd. 135, and 3 Russ. 
 39 ; Wi:>eman v. Westland, 1 Y. & Jerv. 
 117.
 
 S. VI.] OF A MORTGAGE ACQUIRED AS EXECUTOR, &C. 423 
 
 require possession of the title deeds, his not taking or requiring 
 possession of them at that time is not a fraud, and therefore 
 lie cannot on that ground be postponed, if at the time of his 
 mortgage the possession of the title deeds was not legally inci- 
 dent to the estate conveyed to him in the property (<?). And 
 with much stronger reason he cannot be postponed, if not only 
 the custody of the title deeds is not legally incident to his estate, 
 but the mortgage to him is made by trustees, in whom it would 
 have been a breach of trust, " to have given to one incumbrancer 
 those instruments, which they were bound to keep for the com- 
 mon security of all the persons advancing money upon the credit 
 of their trust" (/). 
 
 SECTION VI. 
 
 OF TWO CASES, WHERE A SUBSEQUENT INCUMBRANCE ACQUIRED 
 BY A MORTGAGEE MAY NOT BE ENTITLED TO PRIORITY. 
 
 If a mortgagee of the legal estate acquires a subsequent mort- 
 gage, as executor of a mortgagee of the equity of redemption, or 
 by assignment in trust for another person, it appears that, in either 
 case, such subsequent mortgage cannot be tacked to the legal estate, 
 to the prejudice of intervening incumbrancers {(/). Here, it seems, 
 although the equity of the testator, or cestui que trust, may be equal 
 to that of the intervening incumbrancer, yet the mortgagee of the 
 legal estate has not, in the consideration of a Court of Equity, an 
 equity to stand on his legal title, and resist redemption, until 
 payment not only of his own mortgage, but also that held by 
 him as executor or trustee ; and, therefore, after redemption of 
 the mortgage of the legal estate, the rule qui prior est tempore 
 potior est jure is applicable ; and the intervening incumbrance is, 
 under that rule, entitled to priority before the subsequent mort- 
 gage acquired in the character of executor or trustee. 
 
 (e) Tourle v. F,and, 2 Bro. C. C. 650 ; 
 Barrier v.Faulder, 4 Madd. 138. 
 (/) Harper v. F(xulder, 4 Madd. 129. 
 
 (g) Burnett v. Weston, 12 Ves. 130. 
 Morret v. Paske, 2 Atk. .53.
 
 424 
 
 CHAPTER XXXIII. 
 
 OF A MORTGAGEE'S WILL, DISPOSING OF THE MORTGAGED 
 PROPERTY, OR MONEY SECURED BY IT. 
 
 Sect. I. — Of disposing of the Land contained in a Mortgage 
 in Fee 
 II. — Of disposing of the Money secured by the like Mortgage. 
 III. — Of a Mortgage for Years. 
 IV. — Of the Interest of Mortgage Money. 
 V. — Of a Mortgage, of which the Equity of Redemption is 
 foreclosed. 
 
 SECTION I. 
 
 OF DISPOSING OF THE LAND CONTAINED IN A MORTGAGE 
 
 IN FEE. 
 
 So soon as the condition of redemption of a mortgage in fee 
 of land is broken, tlie estate in fee is, with an exception presently 
 to be noticed, at law the absolute property of the mortgagee. 
 Yet in equity it continues to be redeemable, notwithstanding the 
 forfeiture. It follows, that, after the condition is broken, the 
 mortgagee sustains the two characters of absolute owner at law, 
 and of mortgagee in equity. As absolute owner, the land and 
 legal estate in fee in it are subject to the law, as distinguished 
 from equity. As mortgagee, they are a pledge only, over 
 which, and the mortgage money, a Court of Equity exercises a 
 particular government. 
 
 At law, if the mortgagee makes a will, freehold land in mort- 
 gage will not pass by it, unless it is executed according to the
 
 S. I.] OF DISPOSING OF THE LAND, &C. 425 
 
 Statute of Frauds, 29 Charles II., c. 3 {a). But if so executed, it 
 will at law pass by a will, wherein the mortgagee devises " all 
 his estate in such [the particular] land," or mentions that he has 
 such land mortgaged in fee, and devises his "mortgage" (i). 
 In Crips V. Grt/sil, a Court of Law decided on a will made by a 
 mortgagee in fee before the mortgage was forfeited, that the 
 particular words of the will, wherein the testator said, " The rest 
 of my goods not bequeathed, my money, bills or bonds, mortgages 
 or specialities for money, I do give unto R. K. my son, and do 
 make him my full and sole executor, yea, and also my heir of this 
 freehold," made a good devise of the lands mortgaged (c). In 
 Silberschildt v. Schiott, which arose on the will of a person who 
 had been mortgagee in fee, and who had obtained a decree of 
 foreclosure, Sir W. Grant made this observation — The testator 
 seems " not very well to have understood the effect of a fore- 
 closure ; and still continues to describe as a mortgage the interest 
 he had. If his interest had been really such, there is no doubt a 
 gift of the money would have carried his interest in the land 
 upon which it was secured" (d). By these words. Sir W. Grant 
 has been understood to mean in an unqualified manner to say, 
 that the will of a mortgagee " disposing of the money, carries 
 his interest in the land." On a careful examination, however, 
 of the whole of the judgment, in which the passage mentioned is 
 found, there seems to be reason to suppose that he intended to 
 say merely, that, in the particular case, where the testator spoke 
 of his interest " sometimes as money, sometimes as land, some- 
 times of the farms as representing the money, sometimes of the 
 money as representing the farms," the context of the will would 
 have made the gift of the money carry the land and the fee simple 
 in it, had the mortgage not been foreclosed when the will was 
 executed. In Roivoize v. Cooper, W. T., after certain devises of 
 his real estate, gave all the residue of his freehold lands, tene- 
 
 (a) 2 Atk. 272. 
 
 (6) Wilkinsonv. Merryland, or Meream, 
 Cro, Car. 447, 449, 450, 1 Rol. Abr- 
 834, 835, pi. 15, 16, W. Jones, 380. 
 
 (r) Cro. Car. 37, and stated, from tlic 
 
 record of the special verdict, in Galliers 
 V. Moss, 9 Bain. & C. 282. 
 
 (ri) 3 Ves. & B. 49. See Martin v. 
 Mowlin, 2 Burr. 969.
 
 426 OF DISPOSING OF THE LAND [CII. XXXIII. 
 
 ments, and hereditaments, whatsoever and wheresoever, to his wife, 
 her heirs and assigns, to sell and dispose of as she pleased. And 
 after certain legacies, " as to all the residue of his estates, book- 
 debts, bills, bonds, mortgages, and other securities for money, 
 funded property, and effects, whatsoever and wheresoever," he 
 bequeathed the same to his wife. Certain estates were mortgaged 
 in fee to the testator, and forfeited before the will was made ; and 
 the legal estate in fee was, by Sir John Leach, held to pass under 
 the latter clause in the will. " It may be," he said, " that the 
 mortgaged fee will not pass to the wife by the residuary devise 
 of the freehold estate, because, having no mortgage for years, the 
 subsequent gift of mortgages to the wife marks this testator's 
 intention that it should not pass by that devise. But if this be 
 so, I am of opinion that the mortgaged fee will pass to the wife 
 by the subsequent gift of mortgages, and other securities for 
 money, though coupled with personal property. In substance, 
 money secured by a mortgage in fee is personal property, and a 
 gift of a mortgage security for money is a gift of all the testa- 
 tor's interest in the money and security, and will therefore pass 
 the fee" {e). In Galliers v. Moss, a mortgagee in fee by his will 
 bequeathed in the words, — " I give all my stock in trade, cotton- 
 mill, machinery, cupola-furnace, mineral- tools, implements, and 
 utensils, ready money, and securities for money, debts, personal 
 estate and effects of what nature and kind soever and whereso- 
 ever, unto J. T., T. S.,and J. A., their executors, administrators, 
 and assigns," upon trust to " sell any said stock in trade, cotton- 
 mill, machinery, cupola-furnace, mineral tools, implements and 
 utensils, personal estate and effects, and collect in, and receive all 
 such sum and sums of money as shall be owing to me at the time 
 of my death, and lay out the same in the purchase of freehold 
 lands", &c., which the testator directed to be conveyed to certain 
 uses. The Court of King's Bench decided, that, by this clause 
 of the will, the mortgaged lands or legal estate did not pass, 
 because the words used " are not adequate to the passing of such 
 property" (/). 
 
 (e) 6 Madd.37I. (/) 9 Barn. & C. 267; 4 Mann.& Ryl. 2f)8.
 
 S.I.] 
 
 CONTAINED IN A MORTGAGE IN FEE. 
 
 427 
 
 The exception, which before has been alluded to, is, that even 
 at hiw the mortgagee is now, in some cases, considered to be a 
 trustee. For notwithstanding the different opinion of Lord 
 Hardwicke, and a decision by him accordingly (^), a Court of 
 Equity has in several later cases held, what is clearly the present 
 law on the subject, that at law the lands contained in a forfeited 
 mortgage in fee will not pass by general words of description of 
 land, as — " all the rest, residue, and remainder of my estate and 
 effects, whatsoever and wheresoever" {h) : or, "all and singular 
 my messuages, tenements, lands, hereditaments, and premises, 
 and all my real estate, of what nature, kind, or quality soever, 
 and wheresoever the same are situate" (^) : or, "all the rest and 
 residue of my freehold, leasehold, and copyhold estates, which I 
 may be seised of at the time of my decease, either in possession 
 or reversion, together with all and singular my goods, chattels, 
 monies, bonds, mortgages, and debts, which may be owing to me at 
 the time of my decease" (J) : or, " all other my freehold, copyhold, 
 leasehold, and other messuages, lands, and tenements, and all and 
 singular my money, securities for money, and all other my estate 
 and effects, whatsoever and wheresoever " (k) : or, " all and 
 singular my real and personal estate, of whatever kind and sort, 
 situate in the county of S., or elsewhere in Great Britain, that I 
 shall be' seised of or entitled unto at the time of my decease " (/) : 
 or, " all the rest, residue, and remainder of and in all and sin- 
 gular the property, estate, and effects, which I shall be possessed 
 of, or entitled to, or over which I shall have a disposing power, 
 at the time of my decease, of what nature or kind soever the 
 same may be" (m) ; — used in the will of the mortgagee, if the 
 disposition made is inconsistent with property, which is not 
 beneficially his own (n), or, as it is expressed, " inconsistent with 
 the disposition of that which is not his own " (o), or, " inconsist- 
 
 (g) Ex parte Bowes, 1 Atk. ed. Sand. 
 605, n., cited 3 Ves. 349. 
 (h) 3 Ves. 348. 
 (0 10 Ves. 101. 
 0) 10 Price, 78. 
 {k) Ibid. 
 
 {I) 10 Price, 78. 
 
 (m) M'Clel. & Y. 293, 
 
 («) See Attorney General v. Vigor, i 
 Ves. 276; Wall v. Bright, 1 Jac. & \V. 
 498 ; and Harrison's case, 3 Anstr. 836- 
 
 (o) 10 Ves. 103.
 
 4'28 OF DISPOSING OF THE LAND [CH. XXXUI. 
 
 ent with the nature of trust property " (7^) ; as where such in- 
 consistency appears by limitations in strict settlement (</) ; or by 
 the creation of certain trusts on the lands so generally devised (r) ; 
 or by a bequest of an annuity out of the lands so devised (s) ; 
 or by a charge of debts and an annuity on the lands so devised, 
 and a bequest of the mortgage money, upon certain trusts {t); 
 or by a charge of debts, legacies, annuities, and funeral ex- 
 penses (u). In The Duke of Leeds v. Mu7iday^ Ex parte Morgan, 
 and Ex parte Horsfall, where a Court of Equity held the mort- 
 gaged lands did not pass by the general words in the will, the 
 Court determined the legal estate to be descended to the mort- 
 gagee's infant heir at law, who might be directed to convey that 
 estate under the statute 7 Anne, c. 19. It has, moreover, been 
 in a late case decided by a Court of Law, that the lands contained 
 in a forfeited mortgage in fee will not pass by general words of 
 description of land, as, " all my messuages, lands, tenements, 
 hereditaments, and estate," if the lands are limited " to uses 
 not applicable to mortgage property" {v). 
 
 In late cases a Court of Equity has expressed an opinion, that 
 lands contained in a forfeited mortgage in fee will at law pass 
 under the mortgagee's will, wherein he devises land by general 
 words of description, if the disposition made is not inconsistent 
 with property, that is not beneficially his own {w). And the 
 same opinion seems also to have been expressed by a Court of 
 
 (p) 1 Jac. & W.498. 
 
 (g) Thflinjjson v. Grant, 4 Madd. 438. 
 
 (?•) Sihester v. Jarman, 10 Price, 78, 
 87, on the wills of James and John Bone ; 
 HorsfaWs ease, M'Clel. & Y. 292. 
 
 (s) Winn v. Littleton, 1 Vern. 3, 2 
 Ventr. 351, 2 Ch. Cas. 51 ; Ex parte Mor- 
 gan, 10 Ves. 101. 
 
 («) Duke of Leeds v. Munday, 3 Ves. 
 348, 5 Ves. 341, n., cited 8 Ves. 433. 
 
 (m) Silvester v. Jarman, 10 Price, 78, 
 85, cited 9 Barn.& C.278, 281. 
 
 (v) Galliers v. Moss, 9 Barn. & C. 
 267, 281, 282, 4 Mann. & Ryl. 268. 
 That the legal estate of a trustee will not, 
 in the like cases, pass by words of general 
 
 description is decided by a Court of Law in 
 Koev. Reade, 8 Durn. &c E. 118, and by 
 a Court of Equity in Lord Braiibroke v. 
 Inskip, 8 V^es. 417, and Exparte Morgan, 
 10 Ves. 101, on the second will there. 
 See also 1 Jac. & W. 498, and 10 Price, 
 85. 
 
 (w) Ex parte Sergison, 4 Ves. 147, 
 cited 8 Ves. 432 ; Lord Braybroke v. hi- 
 skip, 8 Ves. 435 ; ^Ex parte Whitacre, I 
 Sand. Uses, 3rd. ed. 285 ; Wail v. Bright, 
 1 Jac. & W. 498 ; Silvester v. Jarman, 
 10 Price, 85. See also Attorney General 
 V. Vigor, 8 Ves. 276 ; and Renvoize v. 
 Co(7;er,6 Madd. 371.
 
 S. I.] CONTAINED IN A MORTGAGE IN FEE. 429 
 
 Law {.i). When a Court of Equity holds that, by such a devise, 
 the land, that is, the legal estate, passes at law, it appears at the 
 same time to decide that, by that devise, the land, or legal 
 estate, passes in equity also. In Casbcmie, or Inglis, v. Scarje, 
 Lord Hardwicke seems to have expressed a different opinion (?/), 
 although it has been doubted if the dictum there imputed to 
 him is correctly reported (z). But the context of that dictum 
 furnishes strong evidence, that Lord Hardwicke spoke of the 
 legal estate, and did not refer to the mortgage money or benefi- 
 cial estate only, and meant to draw a distinction between law and 
 equity, and to say, tliat, by general words, the legal estate would 
 not in a Court of Equity pass. By, however, a case which oc- 
 curred a few years after, it appears his Lordship had then changed 
 his opinion, for he here held, that, in a Court of Equity, the legal 
 estate passed by general words contained in a devise to uses, 
 under which the legal estate became vested in an infant tenant 
 in tail, whom he directed to convey under the statute 7 Anne, 
 c. 19 (a). 
 
 It appears to be clear, that when a mortgagee in fee devises 
 land by general words, as, " my lands and tenements," or, " my 
 real estates," and the devise is not inconsistent with property, 
 which is not the mortgagee's own, the mortgaged lands will, 
 both at- law and in equity, pass to the devisee, although the tes- 
 tator has other lands, which might satisfy the words of the 
 will {b). 
 
 It may here lastly be mentioned, that a Court of Equity holds, 
 " a testator may, if he pleases, give by his will all his interest in 
 mortgages, to which he may be entitled at the time of his death, 
 because a mortgage is in substance a chattel interest" (c). 
 
 (x) Galliers v Moss, 9 Baru. & C.278, 
 280. 
 
 {y) 1 Atk, 605; 1 West Cas. T. 
 Hardw. 225 ; 2 Jac. & W. 194 ; 7 Vin. 
 Abr, 156. 
 
 (0 8 Ves. 437. 
 
 (a) Ex parte Bowes, 1 Atk. ed. Sand. 
 605, n. 
 
 (6) Littleton's case, 2 Ventr. 351 ; 
 Marlow V. Smith. 2 P. W. 198 ; Lord 
 Bray broke v. Inskip, 8 Ves. 417, 421, 
 432. See, nevertheless, Chester v. Ches- 
 ter, 3 P. W. 62. 
 
 (c) 4 Madd. 447. See also 2 Bos. 
 &P. 314.
 
 430 
 
 [CH. XXXIII. 
 
 SECTION II. 
 
 OF DISPOSING OF THE MONEY SECURED BY A MORTGAGE IN FEE. 
 
 It may, it seems, be stated, that money secured by a forfeited 
 mortgag-e in fee may pass by tlie will of the mortgagee, although 
 this will is not executed according to the Statute of Frauds, 29 
 Charles II., c. 3, but is sufficient to bequeath personal property 
 (<-/); that it may pass by a bequest of all his personal estate (e), 
 or all his mortgages (/"), or all his mortgages and other securities 
 for money {ff), or by the phrase, money due on mortgage (A). 
 And it appears farther, that if the land in mortgage is devised 
 by its own exclusive description, or by the description of land in 
 a place where the testator has not any other land, this devise of 
 the land will certainly, if, at the time when the will is made, the 
 mortgagee is in possession, and probably if he is not, entitle the 
 devisee to the money secured by the mortgage (i). 
 
 SECTION III. 
 
 OF A MORTGAGE FOR YEARS. 
 
 If a mortgagee of a term of years after forfeiture of the 
 mortgage makes his will, and therein says, I give " all my mort- 
 gages " to A., a Court of Equity holds, that, by those words, the 
 legal estate may pass, and the legatee be entitled to the mort- 
 gage money ( j). 
 
 (d) 2 Burr. 978. 
 
 (e) Martin v. Mowliii, 2 Burr. 969, 
 cited 5 Durn. & E. 655. 
 
 (_/) Attorney General v. Meyrick, 2 
 Ves. 46 ; Renvoize v. Cooper, 6 Madd. 
 373. 
 
 (g) lienvoize v. Cooper, 6 Madd. 373. 
 
 (/i) Attorney General v. Meyrick, 2 
 Ves. 46. 
 
 (t) How V. Vigtires, 1 Ch. Rep. 32 > 
 
 Clarke v. Abbot, Barn. Ch. Rep. 457, 
 461, 2 Eq. Cas. Abr. 606 ; Woodhouse v. 
 Meredith, 1 Mer. 450. See Knollys v. 
 Shepherd, cited 1 Jac. & VV. 499. 
 
 (j) Davis V. Gibbs, 3 P. W. 26, Mos. 
 269, 278, Fitzg. 116, cited 2 Bos. & P. 
 314, and 1 Mer. 457 ; Attorney General 
 V. Meyrick, 2 Ves. 46 ; Renvoize v. 
 Cooper, 6 Madd. 373.
 
 S. IV.] OF THE INTEREST OF MORTGAGE MONEY. 431 
 
 On a question, if the legal estate of a mortgagee for years 
 passes by a general description of land, as " lands and tene- 
 ments," devised by the mortgagee, the rule in Rose v. Barthtt 
 must not be forgotten. This rule is, " If a man hath lands in 
 fee, and lands for years, and deviseth all his lands and tenements, 
 the fee simple lands pass only, and not the lease for years ; and 
 if a man hath a lease for years, and no fee simple, and deviseth 
 all his lands and tenements, the lease for years passeth, for other- 
 wise the will should be utterly void " {h). 
 
 SECTION IV. 
 
 OF THE INTEREST OF MORTGAGE MONEY. 
 
 On the intention found in the following wills, a bequest of 
 the principal of mortgage money was held not to carry the in- 
 terest; and of " arrears of my mortgage" not to carry the prin- 
 cipal. O. R. by his will said, " I give to T. R. 300Z., which I 
 have at interest, secured by a mortgage on the estate of M. ; and 
 also I give him all the messuages, lands, and tenements, secured 
 for the payment of that money, till the same be paid and dis- 
 charged." Lord Hardwicke decided, that only the principal sum 
 contained in the mortgage passed by this will, and that the in- 
 terest due at the testator's death did not pass by it (Z). A person 
 having a mortgage upon an estate, of which her brother was 
 tenant for life, and having also his bond for 120/., arrears of in- 
 terest upon that mortgage, made this disposition in her will, — " I 
 give to my brother L. the arrears of my mortgage upon his estate ; 
 likewise a bond from him in my possession, to be delivered to 
 him." Lord Loughborough said, the testatrix " could not have 
 spoken more clearly. The arrears of a mortgage does not mean 
 the mortgage itself, but what may be then due for interest ; in 
 a will, what may be due at the death" (m). 
 
 (/c) Cro. Car. 292. On this rule, see, 
 in particular, Lord Eldon's elaborate 
 judgment in Thompson v. Lawleq, 2 I5os. 
 & P. 308. 
 
 (/) Roberts v. Kyffyn, or Kuffin, Barn. 
 Ch. Rep.259, 2Atk. 112. 
 
 (m) Hamilton v. Lloyd, 2 Ves. juiii 
 416.
 
 43-2 
 
 [cH. xxxin. 
 
 SECTION V. 
 
 OF A MORTGAGE, OF WHICH THE EQUITY OF REDEMPTION 
 IS FORECLOSED. 
 
 If, while the equity of redemption exists, a mortgagee in fee 
 of land makes his will, and thereby devises the land in mortgage, 
 a Court of Equity holds, that such devise of the land is a gift 
 of only a security for money; and that if, after the will is exe- 
 cuted, the testator acquires by foreclosure the absolute estate in 
 fee, this acquisition is like a new purchase of land, which cannot 
 pass by a will made before it was bought (n). The consequence 
 is, that, in a Court of Equity, the devise of the mortgaged land 
 is, by the foreclosure, revoked, and will not entitle the devisee to 
 it, unless the will is afterwards republished. And if it is not re- 
 published, the devisee, to whom at law the legal estate is given 
 by the will, will in equity be a trustee for the heir at law of the 
 testator (o). In Attorruy General v. Vigor, lands, that had been 
 mortgaged, were by a Court of Equity held to pass under a 
 will, on the ground of presumption, that, before the execution 
 of the will, a release of the equity of redemption had been ob- 
 tained (/»). In Silberschildt v. Schiott, where a will was made after 
 a decree of foreclosure of a mortgage in fee, it appears the lands, 
 that were contained in the mortgage, were, on the intention to be 
 collected from the whole wall, held to pass under a bequest of the 
 money secured by the mortgage (q). 
 
 («) Unless the will is republished 
 (^Barnes v. Crowe, 1 Ves. jun. 486), land 
 bought, or acquired, as by devise . or 
 descent, after a will is made, will not 
 pass by it, although the terms of the will 
 clearly express this intention ; as, if the 
 testator says, "1 devise and bequeath all 
 my estate, both real and personal, which 
 I shall die possessed of, interested in, or 
 entitled unto." Theliusson v. Woodford, 
 13 Ves. 209; Buck v. Kett, Jacob, 534 ; 
 
 Churchman v. Ireland,! Russ. & M. 250. 
 
 (o) Strode, or Litton, v. Falkland, or 
 Russell, 3 Ch. Rep. 169, 186, 187, 188, 
 2 Vern. 621, 625 ; Casburne v. Inglis, or 
 Scarfe, 1 West Cas. T. Hardw. 226, 227, 
 1 Atk. 606, 2 Jac. & W. 194 ; Thompson 
 V. Grayit, 4 Madd. 438. 
 
 (p) 8 Ves. 273—278, 288; Attorney 
 General v. Bowyer, S. C, 3 Ves. 725, 
 730, 5 Ves. 303. 
 
 (q) 3 Ves. & B. 45.
 
 433 
 
 CHAPTER XXXIV. 
 
 OF THE STATUTE OF LIMITATIONS, 21 JAMES I., c. 16. 
 
 Sect. I. — Certain enactments of the Statute. 
 
 II. — Of the Time from ichich the Statute runs. 
 III. — Of a7i Executor's commencing a neto Action under 
 
 Section IV. of the Statute. 
 IV. — Of an Achioioledgment of and Promise to pay^ a 
 Debt ; and of the Statute 9 George IF., c. 14, 
 called Lord Tenterden's Act, 
 V. — Of the Power of an Executor to revive a Debt 
 barred by the Statute. 
 VI. — Of the Power of an Executor to xoave the ■protection 
 of the Statute. 
 VII. — Of the Effect of the Statute in certain cases of Trust. 
 VIII. — Of Cases, where the Statute has become a Bar pending 
 a Suit in Equity. 
 
 SECTION I. 
 
 CERTAIN ENACTMENTS OF THE STATUTE. 
 
 The statute 21 James I., c. 16, enacts by 
 
 Section III., That all actions of account and upon the case, 
 other than such accounts as concern the trade of merchandize 
 between merchant and merchant, their factors or servants, all 
 actions of debt, grounded upon any lending or contract without 
 specialty, and all actions of debt for arrearages of rent, shall be 
 commenced and sued within six years next after the cause of 
 such actions or suit, and not after. 
 
 Sect. IV. That if, in any the said actions or suits, judg- 
 ment be given for the plaintiff, and the same be reversed by 
 error, or a verdict pass for the plaintiff, and, upon matter alleged 
 
 F F
 
 34 OF THE TIME FROM WHICH THE STATUTE RUNS. [CH. XXXIV 
 
 in arrest of judgment, the judgment be given against the plaintiff, 
 that lie take nothing by his plaint, writ, or bill, or if any the said 
 actions shall be brought by original, and the defendant therein be 
 outlawed, and shall after reverse the outlawry; that in all such 
 cases the party, plaintiff, his heirs, executors, or administrators, 
 as the case shall require, may commence a new action or suit 
 from time to time, within a year after such judgment reversed, or 
 such judgment given against the plaintiff, or outlawry reversed, 
 and not after. 
 
 Sect. VII. That if any person or persons, that is or shall be 
 entitled to any such actions of account, or actions of debts, 
 be or shall be, at the time of any such cause of action given, 
 or accrued, fallen, or come, within the age of twenty-one 
 years, feme covert, no7i compos mentis, imprisoned, or beyond 
 the seas, that then such person or persons shall be at liberty 
 to bring the same actions, so as they take the same within 
 such times as are before limited, after their coming to or being 
 of full age, discovert, of sane memory, at large, and returned from 
 beyond the seas, as other persons, having no such impediment, 
 should have done. 
 
 SECTION II. 
 
 OF THE TIME FROM WHICH THE STATUTE RUNS. 
 
 To sustain an action under the third section of the statute, it 
 must be commenced within six years next after the cause of the 
 action. And, in consequence, the time when the cause of action 
 arose, marks the period from which the six years begin to run (a). 
 Therefore, if the cause of action is a breach of contract, the six 
 years will begin to run from the time when the contract was 
 broken (/>). In an action by executors on several promises, all 
 laid to be made to the testator in his life-time, and where the de- 
 fendant pleaded nan assumpsit infra sex annos, and the plaintiffs 
 
 (a) Wehb\. Martin, 1 Lev. 48; Hick- f (ft) Baitlei/ v. Faulkner, 3 Barn. & 
 
 man v. Walker, Willes, 27; Witter- Aid. 288; Short v. M'Carthy, ib. 626 ; 
 
 sheim v. Counters of Carlisle, 1 H. BU Howell v. Youni^, 5 Barn. & C. 259; 
 
 631 ; Holmes v. Kerrhon, 2 Taunt. 323. I Brown v. Howard, 2 Broil. & 15. 73.
 
 S. II.] OF THE TIME FROM WHICH THE STATUTE RUNS. 43.5 
 
 replied that within six years they obtained probate, by which the 
 action accrued to them within that period, tlie Court decided that 
 the replication was not good, " for the time of limitations must 
 be computed from the time, when the action first accrued to the 
 testator, and not from the time of proving the will. The proving 
 of the will gave no new cause of action, and therefore the time 
 of proving the will is perfectly immaterial" (c). 
 
 The 19th section of the statute 4 Anne, c. 16, enacts — That 
 if any person or persons, against whom there shall be any cause 
 of action upon the case, or of debt grounded upon any lending 
 or contract without specialty, be or shall be, at the time of any 
 such cause of action given or accrued, fallen or come, beyond 
 the seas, that then such person or persons, who is or shall be en- 
 titled to any such action, shall be at liberty to bring the said actions 
 against such person and persons, after their return from beyond 
 the seas, so as they take the same, after their return from beyond 
 the seas, within such times as are respectively limited for the 
 bringing of the said actions, by the Act, 21 James I., c. 16 [d). 
 
 An interpretation of great importance put on the statute, 21 
 James I., c. 16, is, that, to make the six years commence from 
 the cause of the action, there must, when such cause arises, be a 
 person in existence capable of suing ; a Court of Law holding, 
 that " it cannot be said that a cause of action exists, unless there 
 be also a person in existence capable of suing" (e). And, accord- 
 ingly, where a bill of exchange was drawn on the 20th January, 
 1809, payable to W. H. three months after sight, and directed to 
 the East India Company, and was accepted from the 20th July, 
 1809 ; and on the 14th March in that year, W. H. was drowned, 
 and, there being no executor named in his will, administration 
 with the will annexed was, on the 13th February, 1812, granted 
 to J. M., and an action on the bill was commenced on the 
 27th August, 1816; and, on these facts, the question arose, 
 whether the time of limitation began to run from the date of the 
 
 (c) Hickman v. Walker, Willes, 27, 
 cited 3 Bing. 641. 
 
 ((/) On this enactment, see Williams 
 
 F F 2 
 
 V.Jones, 13 East, 439. 
 (e) 5 Barn. & Aid. 214.
 
 436 OF THE TIME FROM WHICH THE STATUTE RUNS. [CH. XXXIV. 
 
 defendants' acceptance, or the day of payment, at which time 
 there was no person in existence, who could acquire a right of 
 action by the acceptance and non-payment, or from the date of 
 the administration, wliereby a person was brought into existence, 
 who might acquire a riglit of action by the non-payment ; the 
 Court of King's Bench decided, that the time of limitation did 
 not Ijegin to run until the grant of the administration {f). And 
 a farther interpretation put on the statute is, that although an 
 injury complained of has existed more than six years, yet there 
 is no cause of action, until there is some person within the 
 realm against whom the action can be brought. " Cause of 
 action is the right to prosecute an action with effect; no one 
 has a complete cause of action, until there is somebody that he can 
 sue " {(j). And, therefore, in a case where, when a cause of 
 action arose against H., he was in India, whence he never re- 
 turned to England, but in the year 1817 died in India, having 
 made his will, and appointed F. his executor, and F. did not 
 prove the will, or in any way act as executor, until 1824, and 
 in an action against F. he pleaded the Statute of Limitations, it 
 was determined that this plea was not a bar to the action, it 
 being brought within six years next after F. took upon himself 
 the execution of the will {h). If an executor, before he takes 
 out probate, acts as executor, then he may be sued before pro- 
 bate (i). And, accordingly, in a case where W. W., indebted 
 to T. W., died in 1786, and the person appointed the executor 
 of W. W. proved his will in 1802, but previously to 1792 
 possessed himself of the estate and effects of the testator, and 
 by so doing acted as executor, and after six years from the 
 time the executor so acted, a bill was filed in equity for pay- 
 ment of the debt, the Court allowed the plea of the Statute of 
 Limitations put in by the executor {j). 
 
 In Wells V. Horton, a person who was applied to for a debt 
 
 (_/) Murraij v. The East India Com- 
 ■pany, 5 Barn. & Aid. 204. See also 
 Pratt V. Swaine, 8 Barn. & C. 285. 
 
 (^) 4 Bing. 704. 
 
 (/() Douglas V. Forrest, 4 Bing. 686, 
 
 1 Moore & P. 663. See also Jolliffe v. 
 Pitt, 2 Vern. 694. 
 
 (i) 4 Bing. 704. 
 
 (J) Webster v. Webster, 10 Ves. 93, 
 cited 4 Bing. 705.
 
 S. 111.] OF AN executor's COMMENCING A NEW ACTION. 437 
 
 owing by him, in consideration that the plaintiff" would forbear to 
 proceed against him for the recovery of the money during his, 
 the debtor's life-time, verbally undertook and promised the plain- 
 tiff, that his executor should, after his decease, pay to the plaintiff 
 the money. Best, Ch. J., ruled, that to this case the Statute of 
 Limitations did not apply, as the undertaking was to do some- 
 thing on a certain event, which event had occurred within the six 
 years. And the same case was, by the Court of Common Pleas, 
 held not to be within the fourth section of the Statute of PVauds, 
 29 Charles II., c. 3 {k). 
 
 SECTION III. 
 
 OF AN executor's COMMENCING A NEW ACTION UNDER 
 SECTION IV. OF THE STATUTE. 
 
 If, before the expiration of six years next after the cause of 
 action, a testator himself sues at law to recover a debt, and dies 
 before judgment, and, at or after his death, the six years are 
 expired, then, upon the equity of the fourth section of the statute, 
 *21 James I., c. 16, his executor may bring a new action against 
 the debtor (Z). But within what time after the death of the tes- 
 tator, the executor must, to come within the statute, commence 
 his action, appears to be a point that remains undecided (m). A 
 learned writer expresses an opinion, that " the statute is the 
 best guide upon the subject, and as that provides that a new 
 action, in the cases enumerated in it, must be commenced within 
 a year, so an executor ought also to bring a new action within 
 that period." And he farther states, that " it seems prudent for 
 the executor to bring a new action as soon as he possibly can 
 after the death of his testator, and at all events not to delay it 
 beyond a year" (w). 
 
 (fc) 2 Car. & P. 383, 4 Bing. 40. 
 See also Feiitun v. Emblers, 3 Burr. 
 1278, 1 W- Bl. 353. 
 
 (0 2 Salk. 425 ; Willes 29. 
 
 (m) Kinsey v. Heyward, 1 Lord Raym. 
 432, 1 Lutw. 256; Hayivard v. Kinsey, 
 12 Mod. 568; Wilcocks v. Huggins, 2 
 Stra. 907, Fitzg. 170, 15 Vin. Abr. 103, 
 
 in marg., 1 Eq. Cas. Abr. 305, in marg. j 
 Lethbridge v. Chapman, 15 Vin. Abr. 
 103, in marg. ; Carver, or Cawer, v. James, 
 Willes, 255, Bull. N. P. 147. See also 
 Willes, 29, and Selw. N.P. 8th ed. 151, n. 
 (n) Note by Mr, Serj. ■Williams to 
 Hodsden v. Harridge, 2 Saund. 5th ed. 
 63 g., 63 h.
 
 438 
 
 [CH. XXXIV. 
 
 SECTION IV. 
 
 OF AN ACKNOWLEDGMENT OF, AND PROMISE TO PAY, A DEBT; 
 AND OF THE STATUTE 9 GEORGE IV., C. 14, CALLED LORD 
 TENTERDEn's ACT. 
 
 Certain general constructions, which, with reference to a 
 debt, and an action of assumpsit (o) to recover it, have been put 
 on the Statute of Limitations, are, that the statute does not destroy 
 or bar the debt, but the remedy only (j)) ; that when the statute 
 is a bar, it is a bar on the supposition, or presumption, that the 
 debt has been paid, and the vouchers, or evidence of pay- 
 ment, lost (</) ; that, consequently, such presumption may be re- 
 butted, and that, when rebutted, the bar does not arise (r) ; that if, 
 either before (s) or after {t) the expiration of six years from the cause 
 of action, the debtor acknowledges the debt is owing, this ac- 
 knowdedgment rebuts the presumption mentioned, and prevents 
 the bar, or, as it is expressed, takes the case out of the statute {u); 
 and that the legal effect of the ackowledgment is, to raise a new 
 or fresh promise to pay the debt, the law implying such new 
 promise, when an acknowledgment of the debt is proved (v). 
 And formerly the acknowledgment was construed to imply an 
 absolute and unconditional new promise to pay, although at the 
 time it was made, the debtor, in express terms, sheltered himself 
 under the statute, and refused to pay (iv), or qualified his acknow- 
 
 (o) See 1 Barn. & Aid. 93 ; 6 Barn. & 
 C. 605, 606 ; and 3 Bing. 331, 640. 
 
 (p) 5 Burr. 2630; 2 W. Bl. 703; 13 
 East, 450,451; 15 Ves. 491, 492; 1 
 Sim. 398. 
 
 (q) 5 M. & S. 75, 76 ; 1 Barn. & Aid, 
 693; 3 Barn. & Aid. 142, 295, 296; 
 2 Barn. & C. 154 ; 6 Barn. & C. 604. See 
 also 4 M. & S. 461 ; 3 Bing. 332, 652 ; 
 15 Ves. 492 ; 2 Ves. & B. 290. 
 
 (i) 2 Bing. 308 ; 6 Barn. & C. 604. 
 
 (s) Mcmntstephea v. Bnwke, 3 Barn. 
 & Aid. 141 ; Frnst v. Bettgovgh, 1 Bing. 
 
 266. See Scales v. Jacob. 3 Bing. 638. 
 
 (i) Rucker v. Hannay, 4 East, 604, n. 
 
 (h) 16 East, 423 ; 5 M. & S. 75, 76 ; 
 3 Barn. & Aid. 142 ; 2 Barn. & C. 154, 
 157; 2 Bing. 308. 
 
 (i') 1 Barn. & Aid. 93 ; 2 Barn. & Aid. 
 761 ; 3 Barn. & Aid. 142 ; 1 Barn. & C. 
 250 ; 2 Barn. & C. 157 ; 6 Barn. & C. 
 606 ; 6 Taunt. 211 ; 3 Bing. 332. 
 
 (w) Bryan v. Horseman, 4 East, 599, 
 cited 4 M. & S. 459, 461, 4 Taunt. 614, 
 and 1 Bing. 267 ; Leaper v. Ttitton, 16 
 East, 420 ; Dmnhicaitc v. Tibbiil, 5 !\I.
 
 S. IV.] OF AN ACKNOWLEDGMENT, &C. 439 
 
 ledgment by expressing liis inability to pay (x). But, according 
 to the doctrine contained in later cases, the Courts will not, 
 from an acknowledgment that the debt is owing, imply a new 
 promise to })ay, if the terms of such acknowledgment, as when it 
 is accompanied by a refusal to pay," directly repel the inference of 
 that promise {■//). And an absolute and unconditional new promise 
 to pay will not now be implied, if the acknowledgment is qualified 
 by a promise to pay when of ability to do it (2'). 
 
 As the statute bars the remedy, not the debt, a creditor may 
 have a right to the satisfaction of his demand out of money or 
 property on which he has a lien, and by means of this lien may 
 recover his debt, notwithstanding his remedy by action is barred 
 by tlie statute (a). 
 
 Words, which do or do not amount to an acknowledgment 
 sufficient to take a case out of the statute, necessarily vary with 
 the particular circumstances of each case. Several instances 
 occur, wherein certain expressions used have been held not to 
 constitute such an acknowledgment (b) ; as where the words made 
 use of were, — " I owe you not a farthing, for it is more than six 
 years since " (c) ; and, in another case, " I thought I had paid it 
 at the time, but I have been in so much trouble since that time, 
 that I really do not recollect it" (d). And the instances are 
 many, in which particular expressions have been held to amount 
 to that acknowledgment, and consequently to take the case, in 
 which they were used, out of the statute (e). 
 
 & S. 75.-2 Barn. & Aid. 761, 762 ; 2 
 Barn. & C. 154; 6 Bain. & C. 604; 
 3 Bing. 651. 
 
 (ac) Leaper v. Tatton, 16 East, 420. 
 
 {y) A'Court v. Cross, 3 Bing. 329, 
 cited 6 Barn. & C. 610, and 9 Dovvl. 
 & Ryl. 556 ; Brydges v. Plumptre, 9 
 Dowl. & Ilyl. 746. See also 8 Bing. 42. 
 
 (s) Tanner v. Smart, 6 Barn. & C. 
 603, 9 Dowl. & Ryl. 549, cited 9 Dowl. 
 and Ryl. 747; Ayton v. Bolt, 4 Bing. 
 105 ; Fearn v. Lewis, 6 Bing. 349 ; 
 llaydon v. Williams, 7 Bing. 163. See 
 Scales V. Jacob, 3 Bing. 638. 
 
 («) Spears v. Hartly, 3 Esp. 81 ; 
 Iiiggins\. Scott, 2 Barn. & Add. 413. 
 
 (b) Rowcroft V. Lomas, 4 M. & S. 457 ; 
 Swann v. Sowell, 2 Barn. & Aid. 759 ; 
 Fearn v. Lewis, 6 Bing. 349 ; Snook v. 
 Mears, 5 Price, 636. See Bickriell v. 
 Keppelt, 1 Bos. & P. N. Rep. 20, and 
 Collyer v. Willock, 4 Bing. 313. 
 
 (c) Coltman v. Marsh, 3 Taunt. 380. 
 (rf) Hellings V. Shaw, 7 Taunt. 608. 
 
 On ceitain propositions laid down in this 
 case by Gibbs, Ch. J., see 4 jiarn. & Aid. 
 571, and 3 Bing. 651. 
 
 (c) Heylin, ox Heyling, or Hyleing v
 
 440 OF AN ACKNOWLEDGMENT OF, [CH. XXXIV. 
 
 A case may be taken out of the statute by an acknowledgment 
 made after the commencement of an action brought to recover 
 the debt(y*), or by an acknowledgment made to a third person (^). 
 
 In Tanner v. Smart, which was assumpsit upon a promissory 
 note, the promises in the declaration were absolute and uncon- 
 ditional, to pay when thereunto afterwards requested. The 
 defendant pleaded actio non accrevit infra sex annos, upon which 
 plea issue was joined. At the trial, the plaintiff proved that the 
 note was produced to the defendant, and payment of it demanded, 
 and that the defendant said, " I cannot pay the debt at present, 
 but I will pay it as soon as I can." There was no proof, how- 
 ever, of any ability on the part of the defendant to pay the debt. 
 A verdict having been given for the plaintiff, a rule Nisi for a 
 new trial was obtained ; and this rule was made absolute, the 
 Court being of opinion, that, as there was no evidence of ability 
 to pay, so as to raise that, which, in its terms, was a qualified 
 promise, into one that was absolute and unqualified, there was not 
 any promise which would support the promises in the declara- 
 tion (Ji). A similar decision has since been made in Hay don v. 
 Williams, where a written promise, contained in a letter, so closely 
 corresponded with the parol promise in Tanner v. Smart, that the 
 Court held themselves governed, in the construction of it, by the 
 decision in that case {i). 
 
 If, in assumpsit by an executor upon a promise to his testator, 
 the defendant pleads non assumpsit infra sex annos to the testator, 
 and upon evidence it appears, that, after the death of the testator, 
 and after six years elapsed from the time of the contract, the 
 defendant owned the debt to the executor, and promised to pay 
 
 Hastings, 1 Salk. 29, 1 Lord Raym. 389, 
 421, 12 Mod. 223, Com. 54, cited 6 
 Barn. & C. 606 ; Rucker v. Hunnaif, 4 
 East, 604, n. ; Gibbons x, M'Casland, 1 
 Barn. & Aid. 690 ; Frost v. Bengough, 1 
 Bing.266; Colledgev. iforra, 3 Bing.l 19; 
 Rendell v. Carpenter, 2 Y. & J. 484 ; 
 Baillie v. Sibhald, 15 V^es. 185. See also 
 Lloyd V. Maand. 2 Durn. & E. 760 ; and 
 Bicknell v.Keppel, 1 Bos. & P.N. Rep. 20. 
 
 (/) Yea V. Fouraker, 2 Burr. 1099. 
 (g} Mountstephen v. Brooke, 3 Barn. 
 & Aid. 141 ; Clark v. Hotigham, 2 Barn. 
 
 6 C. 149; CoUedge v, Horti, 3 Bing. 
 119. 
 
 (h) 6 Barn. & C. 603, 9 Dowl. & 
 Ryl. 549, cited 9 Dowl. & Ryl. 747, and 
 
 7 Bing. 167. See Scales v, Jacob, 3 
 Bing. 638. 
 
 (0 7 Bing. 163.
 
 S. IV.] AND PROMISE TO PAY, A DEBT. 441 
 
 it, this evidence will not maintain the issue, the promise being 
 made to tlie executor, and no promise being made to the testator 
 within six years (j). In an action by an executrix, the declaration 
 averred only promises to pay the testator. The defendant having 
 pleaded the Statute of Limitations, the only evidence to take the 
 case out of the statute was a note without date, written by the 
 defendant to the executrix, in which the defendant said, " The 
 testator always promised not to distress me for it." And this 
 evidence, it was held, did not sustain the issue, it not proving 
 any promise made by the defendant within six years to pay the 
 testator {k). Perham v. Raynal was an action against R., F., 
 and M., as the joint makers of a promissory note. They pleaded 
 the Statute of Limitations. M., it appeared, was only a surety, 
 and had made no acknowledgment of the debt within six years ; 
 but an acknowledgment by one of the other defendants within that 
 time was proved. And it was decided, that this acknowledgment 
 by one party only of the joint debt bound the others, and prevented 
 the operation of the Statute of Limitations (/). Li Whitcomh v. 
 JVhitmf/, W. and three others entered into a joint and several 
 promissory note, and in an action against W. alone, he pleaded 
 710JI assumpsit infra sex annos. And the plaintiif having proved 
 payment, by one of the others, of interest on the note, and part 
 of the principal, within six years, this payment by one was decided 
 to be an admission by all of the debt, and sufficient to take the case 
 out of the statute (?«). This case has been followed in Jackson 
 v. Fairbanks which was an action against W. F. on a joint and 
 several promissory note, made by him and J, F. J. F. became a 
 bankrupt, and the plaintiff received several dividends vnider the 
 commission, in respect of the money secured by the note. And 
 
 {j) Green, or Dean, v. Crane, 2 Lord | 1 Barn, & C. 248, cited 6 Barn. & C. 
 Raym. 1101, 6 Mod. 309, 11 Mod. 37, 608 
 
 1 Salk. 28, cited 1 Barn. & C. 250 ; Sarell 
 V. Wine, 3 East, 409, S. P. on assumpsit 
 by an administrator. Manton, or Munton, 
 V. Scuithorpe, Trin. 1818, cited 1 Barn. 
 6c C. 252, 6 Barn. & C. 608, 9 Dowl. 
 & Ryl. 554, S. P. Sue also Hickman v. 
 
 (/c) Ward V. Hunter, 6 Taunt. 210, 
 cited 1 Barn. &C. 25 1. 
 
 (/) 2 Bing. 306. See also 8 Barn. 
 &C. 40, 41. 
 
 (m) Doug. 629, 4th ed. 651 a, 652, 
 cited 1 Barn. & Aid. 467, 2 Barn. & C. 
 
 IKa/Aer,VVilles,27 ; and Pittam v. Fuster, 1 28,30, and 2 Bing. 309, 312.
 
 442 or AN ACKNOWLEDGMENT OF, [CH. XXXIV. 
 
 the Court were clearly of opinion, that the payment of a dividend 
 within six years was such an acknowledgment of the debt, as took 
 the case out of the statute (n). The two last mentioned cases 
 governed the decision in Barleir/h v. Stott^ which was an action 
 by the executors of 11. B. against the administratrix of T. S., on 
 a joint and several promissory note made by T. B. aiul T. S. (as 
 the surety of T. B.) to R. B. The plaintiffs proved payment by 
 T. B. to R. B. of interest on the note, and part of the principal, 
 in the life-time of T. S., and within six years before the action 
 brought. And it was decided the plaintiffs were entitled to recover; 
 the Court being of opinion, that a part payment by one was an 
 admission by both that the note was unsatisfied, and that it 
 operated as a promise by both to pay according to the nature of 
 the instrument, and, consequently, as a promise by the defen- 
 dant's intestate to pay on this his several promissory note (o). 
 By later cases also it is established, that the payment of interest, 
 by one of joint promisors in a promissory note, takes the case 
 out of the Statute of Limitations as to all {jj). Atkins v. 
 Trechjold was an action of assumpsit by the executors of J. A. 
 against R. T. and others, executors of J. T. ; the action being 
 brought on three promissory notes, by which J. T. and the said 
 R. T. jointly or severally promised to pay to J. A. the several 
 sums therein mentioned. The declaration stated, that the de- 
 fendants, as executors, promised payment to J. A. The defen- 
 dants, the executors, pleaded that they didnot promise, and, farther, 
 that they did not, within six years, promise ; on each of which 
 pleas issue was joined. J. T. died in 1810. R. T. continued to 
 pay interest on the notes after the death of J. T., and the last pay- 
 ment made by R. T. was in May, 1816; and it appeared by his 
 books produced in evidence, that those payments were made by 
 him out of his private estate, on his own account, as the joint maker 
 of the notes, and not in his character of executor. The action 
 against the executors was commenced in January, 182'2. It was 
 
 in) 2 H. Bl. 340, cited 1 Barn. & Aid. 
 468,469,470. 
 
 (o) 8 Barn. & C. 36. 
 
 (p) Manderstonv. Robertson, 4 Mann. 
 & Ryl. 440; Pease v. Hirst, 10 Barn. 
 & C. 122.
 
 S. IV.] AND rUOMISE TO PAY, A DEBT. 448 
 
 decided, that the payment of interest within six years by 11. T. in 
 his own right, and not in his character of executor, did not raise an 
 implied promise by all the executors, as executors, to pay, and 
 sufficient to take the case out of the Statute of Limitations (q). 
 Slater v. Laicson was an action of assumpsit brought by the execu- 
 tor of the payee of a joint and several promissory note, made by the 
 defendant and one W. deceased. The only evidence in answer 
 to the plea of the Statute of Limitations was, that of W.'s execu- 
 trix, who proved that she had paid interest on the note after his 
 death, and within four years of the commencement of the action. 
 And this payment, it was decided, did not take the case out of the 
 statute ; the Court expressing an opinion, that " where a joint 
 contract is severed by the death of one of the contractors, nothing 
 can be done by the personal representative of the other to take 
 the debt out of the statute, as against the survivor. The contract 
 here was severed by the death of W., and the act of his executrix 
 could not bind the defendant" (r). 
 
 In Tullock V. Dunn, an action against two executors, the 
 declaration contained the usual money counts, stating promises 
 by the executors. The testator died more than six years before 
 the action was brought, and both the executors had within six 
 years acknowledged that the plaintiff's demand was due, and one 
 of them expressly promised that it should be paid. The other 
 had made no such promise, there being some doubt, whether the 
 payment would be sanctioned by the testator's family. Abbott, 
 Lord Ch. J., nonsuited the plaintiff, his Lordship saying, " I 
 think, as against an executor, an acknowledgment merely is 
 not sufficient to take the case out of the statute ; there must be 
 an express promise. The promise by one only is not enough to 
 entitle the plaintiff to recover ; there ought to be a promise by 
 both" {s). 
 
 M'Cidloch V. Dawes, was assumpsit against two executors, to 
 recover a debt incurred by their testator, and averring promises 
 by the defendants, as executors. To take the case out of the 
 
 (q) 2 Bain. & C. 23, cited 1 Barn. & 
 Adol 397, and 2 Bing. 310. 
 
 (r) 1 Barn. & Adol. 396. 
 (s) Ryan & Moody, 416,
 
 444 OF AN ACKNOWLEDGMENT OF, [CH. XXXIV. 
 
 statute, evidence was produced, by wliich it appeared, that shortly 
 before the action was brought the plaintiff called upon the defen- 
 dant D., stated his claim upon the testator's estate, and expressed 
 a hope that the executors would see it settled. D. admitted that 
 the debt was a just one, and that it had never been paid; and 
 said he should be happy to serve the plaintiff in the matter if he 
 could, but that he could not do any thing without the consent of 
 the testator's family. It was decided, that this acknowledgment 
 of the debt by one of the executors did not raise an implied pro- 
 mise on behalf of himself and his co-executor to pay it, and did 
 not take the case out of the statute {t). 
 
 The statute 9 George IV., c. 14, called Lord Tenderden's 
 Act, recites and enacts as follows — 
 
 Whereas, by an Act passed in England in the twenty-first 
 year of the reign of King James the First, it was, among other 
 things, enacted, that all actions of account, and upon the case, 
 other than such accounts as concern the trade of merchandize 
 between merchant and merchant, their factors or servants, 
 all actions of debt grounded upon any lending or contract 
 without specialty, and all actions of debt for arrearages of 
 rent, should be commenced within six years next after the cause 
 of such actions or suit, and not after : And whereas a similar 
 enactment is contained in an Act passed in Ireland, in the tenth 
 year of the reign of King Charles the First : And whereas various 
 questions have arisen in actions, founded on simple contract, as 
 to the proof and effect of acknowledgments and promises offered 
 in evidence, for the purpose of taking cases out of the operation 
 of the said enactments; and it is expedient to prevent such 
 questions, and to make provision for giving effect to the said 
 enactments, and to the intention thereof: Be it therefore 
 enacted, 
 
 That in actions of debt, or upon the case, grounded upon 
 any simple contract, no acknowledgment or promise by words 
 only shall be deemed sufficient evidence of a new or continuing 
 contract, whereby to take any case out of the operation of the 
 
 (0 9 Uowl. & Ryl. 40.
 
 S. IV.] AND PROMISE TO PAY, A DEBT. 445 
 
 said enactments, or either of tliem, or to deprive any party of 
 the benefit thereof, unless such acknowledgment or promise shall 
 be made or contained by or in some writing to be signed by the 
 party chargeable thereby; and that where there shall be two or more 
 joint contractors, or executors or administrators of any contrac- 
 tor, no such joint contractor, executor, or administrator, shall lose 
 the benefit of the said enactments, or either of them, so as to be 
 chargeable in respect or by reason only of any written acknow- 
 ledgment or promise made and signed by any other or others of 
 them : Provided always, that nothing herein contained shall 
 alter or take away or lessen the effect of any payment of any 
 principal or interest made by any person wliatsoever : Provided 
 also, that in actions to be commenced against two or more such 
 joint contractors, or executors, or administrators, if it shall appear 
 at the trial, or otherwise, that the plaintiff, though barred by either 
 of the said recited Acts, or this Act, as to one or more of such 
 joint contractors, or executors or administrators, shall neverthe- 
 less be entitled to recover against any other or others of the 
 defendants, by virtue of a new acknowledgment or promise, or 
 otherwise, judgment may be given and costs allowed for the 
 plaintiff, as to such defendant or defendants against whom he shall 
 recover, and for the other defendant or defendants against the 
 plaintiff. 
 
 II. That if any defendant or defendants in any action on any 
 simple contract shall plead any matter in abatement, to the effect 
 that any other person or persons ought to be jointly sued, and issue 
 be joined on such plea, and it shall appear at the trial that the 
 action could not, by reason of the said recited Acts, or this Act, 
 or of either of them, be maintained against the other person or 
 persons named in such plea, or any of them, the issue joined on 
 such plea shall be found against the party pleading the same. 
 
 III. That no indorsement or memorandum of any payment, 
 wi'itten or made, after the time appointed for this Act to take 
 effect, upon any promissory note, bill of exchange, or other writing, 
 by or on the behalf of the party to whom such payment shall 
 be made, shall be deemed suflficient proof of such payment, so as 
 to take the case out of the operation of either of the said statutes.
 
 446 OF AN ACKNOWLEDGMENT, &C. [CH. XXXIV. 
 
 IV. That the said recited Acts, and this Act, shall be deemed 
 and taken to ap})ly to the case of any debt on simj)le contract 
 alleged by way of set-off on the part of any defendant, either 
 by plea, notice, or otherwise. 
 
 VIII. That no memorandum or other writing made necessary 
 by this Act shall be deemed to be an agreement within the mean- 
 ing of any statute relating to the duties of stamps. 
 
 IX. That nothing in this Act contained shall extend to Scotland. 
 
 X. That this Act shall commence and take eifect on the first 
 day of January, 1829. 
 
 Towler v. Chatterton decides, that an action commenced after 
 the first of January, 1829, to recover a debt, which is at the 
 time the action is brought of above six years' standing, cannot 
 be maintained upon a verbal promise, which, before the day 
 mentioned, the time when the Act began to run, the defendant 
 made to pay the debt {u). In Hay don v. Williams, which was 
 an action of assumpsit to recover a debt incurred in 1820, the 
 declaration was of Michaelmas Term, 1828, and the promise 
 laid in it was absolute. At the trial after Hilary Term, 1830, 
 the plaintiff called a witness, who stated, that about Midsummer, 
 1823, he had received a letter from the defendant, which he had 
 since lost, and in which letter the defendant, referring to a de- 
 mand for payment of his debt, said, that he was incapable then of 
 paying the money, but would pay as soon as he had it in his 
 power. It was held, that of this letter, signed by the defendant, 
 secondary evidence was rightly admitted at the trial ; that the 
 same letter was such an acknowledgment or promise in writing, 
 as falls within the meaning of the statute 9 Geo. IV., c. 14; but 
 that the promise by the defendant, being guarded with the con- 
 dition of his being able to pay, was a departure from the abso- 
 lute promise laid in the declaration. And the consequence was, 
 the plaintiff was nonsuited {v). Willis v. Newham was assumpsit 
 against the defendant as the maker of a promissory note. He 
 pleaded non assumpsit infra sex annos. And at the trial the 
 plaintiff called two witnesses, who proved verbal acknowdedg- 
 
 («) 6Bing.258. | (d) 7 Bing. 163.
 
 S. v.] POWER OF AN EXECUTOR TO REVIVE A DEBT. 447 
 
 ments by tlie defendant, that he had witliin six years paid money 
 in respect of the note. It was decided, that, although proof of 
 actual payment of interest would be an answer to the Statute of 
 Limitations, within the provisions of the statute 9 Geo. IV., c. 14, 
 yet evidence of an acknowledgment of payment was within the 
 mischief, which the latter statute was intended to prevent, and 
 therefore that the verbal acknowledgment, which the defendant had 
 made of payment, did not sustain the action ; the Court expressing 
 an opinion, that the first enactment in the statute, 9 Geo. IV., c. 
 14, must be engrafted upon the proviso, which saves the effect of 
 payment of principal or interest, " and that the whole must be 
 taken together, namely, that the payment must be proved, not 
 by a verbal acknowledgment, but by evidence of an actual pay- 
 ment, or by a writing such as the Act requires, and that, being so 
 proved, it shall have the same effect, as it had before the passing 
 of the Act" (w). In Kennett v. Milbank, it was decided, that the 
 particular case was not taken out of the Statute of Limitations, 
 21 James L, c. 16, by means of a deed to which the defendant 
 was a party, and which recited that the defendant was indebted 
 to the plaintiff, but did not specify the amount of the debt, and 
 which deed had become void under a proviso contained in it (.r). 
 
 SECTION V. 
 
 OF THE POWER OF AN EXECUTOR TO REVIVE A DEBT BARRED 
 BY THE STATUTE. 
 
 An executor may, it is certain, take a case out of the Statute of 
 Limitations, by his acknowledgment of, and promise to pay, the 
 particular debt sought to be recovered out of the assets ; and 
 whether the debt was barred at the testator's death, or the six 
 years have expired since that time (y). 
 
 (w) 3 Y.& J. 518. 
 (x) 8 Bing. 38. 
 
 (?/) M'Czilloch V. Danes, 9 Dowl. & 
 Ryl. 40 ; Tullock v. Dunn, Ryan & M. 
 
 416; Atkins v. Tredgold, 2 Barn. & C. 
 23. See- also Staggers v. Welby, cited 2 
 Yes. & B. 282, and Avit v. Goodrich, 4 
 Russ. 430, 432.
 
 448 POWER OF AN EXECUTOR TO REVIVE A DEBT. [CH. XXXIV. 
 
 In Andreios v. Brown, one V. D. gave a promissory note, and 
 afterwards became a bankrupt, and went into France, and " long 
 after six years and the deatli of V. D." Sir C. D., his brother 
 and executor, recovering a debt of 5 or £6000, which was due to 
 V. D., put out an advertisement in the Gazette, for all persons, 
 who had any debts owing from his brother, to come to him, and 
 make them out, and they should be paid. The plaintiif, having 
 the note mentioned, sued in equity after the advertisement, to 
 recover the money ; and he obtained a decree for £300, which 
 was the money due by the note, and interest allowed from the 
 time of the bill brought {z). And it is reported to have been in 
 the same case held clearly, that " if a man has a debt due to him 
 by note, or a book-debt, and has made no demand of it for six 
 years, so that he is barred by the Statute of Limitations ; yet if the 
 debtor, or his executor, after the six years puts out an advertise- 
 ment in the Gazette, or any other newspaper, that all persons, 
 who have any debts owing to them, may apply to such a place, 
 and that they shall be paid ; this, though general, and therefore 
 might be intended of legal subsisting debts only, yet amounts to 
 such an acknowledgment of that debt, which was barred, as will 
 revive the right, and bring it out of the statute again" (a). If, 
 after the expiration of six years from the death of a testator, and 
 when a debt owing by him is barred by the statute, the statute 
 having been a bar in the testator's life-time, or become so since 
 his death, his executor puts into a newspaper an advertisement, 
 which, in an unqualified manner, invites all creditors to apply for 
 payment, and also, in an unqualified manner, undertakes to pay 
 them ; Aiidreics v. Broivn appears to be an authority, that such 
 advertisement will revive a debt, barred either before or since 
 the testator's death, and will bind his executor to pay it out 
 of the assets. In Jones v. Scott, a testator died in July, 1816, 
 and in January, 1 822, the defendant, his administratrix with his 
 will annexed, published in the Gloucester newspaper the follow- 
 
 (s) Prec. Ch. 385, 1 Eq. Cas. Abr. 
 305, cited 2 Ves. & B. 28 3, andl Russ. 
 & M. 269, 270. 
 
 (a) 1 Eq. Cas. Abr. 305, pi. 15, Prec. 
 Ch. 385.
 
 S. Va.] POWER OF AN EXECUTOR TO WAVE THE STATUTE. 449 
 
 ing advertisement : — " Notice is hereby given by me, C. A. S., 
 of T., in the county of G., administratrix with the will annexed 
 of R. D., of T., aforesaid, to all persons having, or claiming to 
 have, any demand upon the estate of the said R. D., by specialty 
 or otherwise, that they send in their several and respective state- 
 ments of their demands, and also attested copies of their several 
 and respective securities, to Messrs. C, R., & M., or to Mr. B., on 
 or before the 24th day of April next, for their examination, prior 
 to the same being laid before J. H. A., of B., by whom I expect 
 that the persons claiming to be creditors of the said R. D. do 
 submit to be examined touching and concerning the same, if the 
 said J. H. A. shall see occasion, in order to their respective claims 
 being approved and paid, or rejected, if such latter course be 
 deemed expedient." The plaintiffs were creditors of R. D. on 
 the balance of a banking account, which had been ascertained in 
 1815; and to a bill filed by them in 1824, the defendant, by her 
 answer, insisted on the statute. Sir John Leach decided, that the 
 plaintiffs' debt was not revived by the advertisement published 
 in the newspaper; " in as much as Mr. A. might have rejected 
 any debt, upon the ground that the Statute of Limitations had 
 run against it." {b). 
 
 SECTION VL 
 
 OF THE POWER OF AN EXECUTOR TO WAVE THE PROTECTION 
 OF THE STATUTE. 
 
 When an executor is sued at law to recover a debt due from 
 his testator, and to which debt the statute is a bar, either before 
 the testator's death or after it, it is certain the executor may, if 
 he thinks proper, plead the statute (c). But if he desires to pay 
 the debt, and to wave the protection which the statute would 
 
 (6) 1 Russ. & M. 255, 261. And see 
 ib, 269, 270, Lord Brougham's observa- 
 tions on the advertisement in this case, 
 and on the authority of Andrews v. Brown. 
 
 G G 
 
 (c) M'CuUoch V. Dawes, 9 Dowl. &, 
 Ryl. 40 ; Tullock v. Dunn, Ryan & M. 
 416.
 
 450 OF THE POWER OF AN EXECUTOR [CH. XXXIV. 
 
 afford against it, it may be doubtful in wliat cases he may at law, 
 with safety to himself, omit to plead the statute. Lord Hardwicke, 
 indeed, is reported to have, in a Court of Equity, said, " No 
 executor is compellable, either in law or equity, to take advan- 
 tage of the Statute of Limitations against a demand otherwise 
 well founded" (d). But, although it is clearly in the power of 
 an executor to take a ease out of the statute, by his acknowledg- 
 ment of, and promise to pay, the debt sued for (r), yet, in 
 M'-CuUoch V. Dawcsy where the testator had incurred the debt in 
 1796, and he died in 1804, and the action against the executors 
 was brought in 1826, and where consequently the testator had 
 been dead more than twenty years, and the debt claimed was 
 thirty years old, and where the plaintiff failed to prove that the 
 executors had acknowledged and promised to pay the debt, 
 Bayley, J., observed, that executors " are bound, if possible, 
 to resist such a claim ; they have no right to wave any legal 
 defence to such an action ; and if they did, and were to pay a 
 debt, against the recovery of which there was any legal bar, 
 they would render themselves liable over to those, who were 
 interested in the testator's property" {f). 
 
 The Courts of Equity, it is observable, are not within the 
 Statute of Limitations, 21 James L, c. 16 {g). This, Lord Redes- 
 dale has remarked, is true in one respect; they are not within 
 the words of the statute, because the words apply to particular 
 legal remedies ; but they are within the spirit and meaning of the 
 statute, and have been always so considered. And the same 
 learned judge expresses an opinion, that it is a mistake in point 
 of language to say, that Courts of Equity act merely by analogy 
 to the statute : they act in obedience to it. " I think," he says, 
 " Courts of Equity are bound to yield obedience to the Statute 
 of Limitations, upon all legal titles and legal demands, and can- 
 not act contrary to the spirit of its provisions. I think the statute 
 
 (d) Norton v. Frecker, 1 Atk. 526, 1 
 West Cas. T. Hardw. 207. 
 
 (e) M'Culloch V. Dawes, 9 Dowl. & 
 "Ryl. 40; Tullock v. Dunn, Ryan & M. 
 416 ; Atlumy. Trotlgnhl, 2 Barn. & C. 23 ; 
 
 Foster V Blakelock, b Barn. & C. 328, 
 8 Dowl. & Ryl. 48. 
 
 (/) 9 Dowl. & Ryl. 43. 
 
 (g) 10 Ves. 467, 15 Ves. 496, 19 
 Ves. 470, 1 Sim. 393.
 
 S. VI.] TO WAVE THE PROTECTION OF THE STATUTE. 451 
 
 must be taken virtually to include Courts of Equity ; for when 
 the legislature by statute limited the proceedings at law in certain 
 cases, and provided no express limitations for proceedings in 
 equity, it must be taken to have contemplated that equity 
 followed the law, and that it nmst be taken to have virtually 
 enacted, in the same cases, a limitation for Courts of Equity 
 also" (h). To a suit, therefore, in a Court of Equity, to recover 
 a debt due from a testator, his executor is at liberty to put in a 
 plea of the Statute of Limitations {i). But in equity, as well as 
 at law, satisfaction may be recovered out of the assets, if the case 
 is taken out of the statute, by the testator's acknowledgment of, 
 and promise to pay, the debt (J). Although to a suit in equity 
 an executor has the power to plead the statute, yet it appears he 
 is not in all cases bound to do it, and on the contrary may, cer- 
 tainly in some cases, wave the benefit of such a plea. For in Ex 
 parte Dewdney, it is said by Lord Eldon, — " Li the administra- 
 tion of assets under a creditor's bill, executors are not bound to 
 plead the Statute of Limitations ; and if they do not, the creditor 
 filing the bill will have a decree on behalf of himself and all other 
 creditors, and will be paid. But the constant course in the 
 Master's ofiice is, to take the objection against other creditors, 
 and to exclude from the distribution those, who, if legal objec- 
 tions are brought forward, cannot make their claims effectual" {k). 
 In Lord Castleton v. Lord Fanshaw, a bill was brought by a resi- 
 duary legatee, to have an account of the testator's estate, and 
 the benefit of the surplus. And it appears that there having been 
 a doubt, whether a sum of 4,000/. should be accounted assets or 
 not, and while that point was undecided, several of the creditors 
 of the testator compounded with the executors, to take less than 
 their full debts. The 4,000Z. was afterwards adjudged to be assets ; 
 and the executors were desirous that the creditors might have 
 their full debts ; but that was opposed by the plaintiff, who insisted 
 that most of the creditors' debts were barred by the statute. 
 
 (h) 2 Sch. & Lef. 630, 631. j Dick. 163. 
 
 (i) Webster v. Webster, 10 Ves. 93. (k) 15 Ves. 498. 
 
 (j) Gahray v. Earl of Barrymore, 1 [ 
 
 G g2
 
 452 POWER OF AN EXECUTOR TO WAVE THE STATUTE. [CH. XXXIV. 
 
 The defendants, the executors, would not, however, plead the 
 statute. And it is reported that two points to be determined 
 (and it is presumed both points are confined to the creditors who 
 had compounded) were — 1. Whether the creditors who had made 
 compositions for less than their full debts, upon a supposition of 
 a defect of assets, should now be held to that composition, when 
 the executors did not desire it: — 2. Whether the creditors should 
 be sent to law to recover their debts, and the plaintiff be ordered 
 to make defence in the executors' place, and so be enabled to bar 
 them, by pleading the statute, which the executors would not do. 
 And, according to the same report, Lord Somers said, " I cannot 
 set aside the composition the creditors have made ; they have no 
 bill for that purpose, and only come in before the Master; there- 
 fore they must abide by the composition. But I cannot consent 
 that the Statute of Limitations should be pleaded ; therefore their 
 debts must be paid" (/). The following case shews, that when in 
 a suit in equity an executor refuses to set up the statute, other 
 parties may, under some circumstances, do it. Sheiven v. Vander- 
 horst was a suit instituted by a residuary legatee, for the purpose 
 of having the real and personal estates of a testator administered, 
 and the trusts of the will carried into execution. Under the usual 
 decree, directing, among other things, an account to be taken of 
 the debts, a creditor of the name of P. went in to prove a debt, 
 against which it was admitted, that the statutory period had run 
 before the testator's death. The executor did not object to the 
 proof in the Master's office; but the objection that it was barred 
 by the Statute of Limitations was taken and insisted on by the 
 plaintiff, and the Master accordingly disallowed the claim. The 
 Master's opinion having been afterwards confirmed by the 
 judgment of the Master of the Rolls, the creditor appealed to 
 Lord Brougham. His Lordship, in pronouncing judgment, first 
 observed on Castleton v. Fansltav), in 1 Equity Cases Abridged, 
 that that case goes only to the extent, " that where an executor 
 is sued at law, a Court of Equity will not compel him to plead 
 the statute, a proposition which, in fact, amounts to no more than 
 
 (/) Prec. Ch. 99, 1 Eq. Cas. Abr. 305, cited 1 Russ. & M. 352.
 
 S. VII.] EFFECT OF THE STATUTE IN CASES OF TRUST. 453 
 
 this, that the Court will not call upon him, in administering the 
 estate here, to set up the statute as a bar to any demands that 
 may be made against the assets." And his Lordship continued, — 
 " But the question here is, whether, when a decree has been 
 pronounced, taking possession of the estate, and vesting it in the 
 Court for the purpose of distribution, a decree by which the 
 accounts are directed to be taken, and the assets are to be admi- 
 nistered in the Master's office, and after which the common law 
 must be altogether silent ; whether, under these circumstances, if 
 the objection that the statute has barred the remedy be raised 
 against a debt, and in whatsoever way, or by whomsoever, being 
 parties in the suit, be they creditors, or executors, or even volun- 
 teers, the objection be raised, it must not be considered fatal. 
 And without at present saying how far the Master is himself 
 entitled to set up the objection, I can see no reason, certainly, 
 why it may not be competently taken by a creditor, or a volun- 
 teer, as well as by the personal representative. The order of the 
 Master of the Rolls must, therefore, be affirmed" (m). 
 
 SECTION VII. 
 
 OF THE EFFECT OF THE STATUTE, IN CERTAIN CASES OF TRUST. 
 
 If a debtor creates a trust to pay his debts, this trust will, 
 under some circumstances, take a case out of the Statute of 
 Limitations, 21 James I., c. 16 (/?). 
 
 When a will contains a devise of real estate, in trust for the 
 payment of debts, and a simple contract debt is contracted, or by 
 a promise to pay is revived, withir^ six years before the death of 
 the testator, and consequently at his death is not affected by the 
 statute, then, in a Court of Equity, this real fund will be liable to 
 
 (m) 1 Russ. & M. 347. 
 
 (n) 1 Dick. 163; 15 Ves. 497; 6 
 Madd. 326 ; 2 Glyn & J. 47 ; Anon. 1 
 Salk. 154, cited 2 Ves. & B. 281 ; Hal. 
 sted V. Little (Hil. 1632), Toth. tit. 
 
 Debt, ed. 1820, p. 53, and which case 
 states, — "Debts, though beyond the 
 Statute of Limitations, ordered to be paid, 
 because directed to be paid by will,"
 
 454 EFFECT OF THE STATUTE IN CASES OF TRUST. [CII. XXXIV. 
 
 pay the debt, although after the expiration of the six years from 
 the cause of action, or time when the debt was contracted or 
 revived, the remedy at law may be gone (o). And the same 
 effect will be produced by a trust, which a will creates by 
 means of a charge on real csUite {jj). 
 
 When, however, a simple contract debt is, at the death of the 
 testator, barred by the statute, and he, for the purpose of paying 
 his debts, provides by his will a real fund, auxiliary to his per- 
 sonal estate, such real fund being real estate, which he either 
 devises in trust for, or charges with, the payment of his debts, in 
 this case, the debt, which is at the testator's death barred by the 
 statute, will not be payable out of the real estate [q). 
 
 In Jones v. Scott, a person, reciting in his will that he was 
 seised in fee of an estate at T., thereby devised that estate to 
 trustees and their heirs, and, for the purpose of paying his debts, 
 made it a fund auxiliary to his personal estate ; he directing by 
 the will, that, in case his debts could not be paid off from his 
 personal estate, then his real estate at T. should be either 
 mortgaged or sold for the purpose of discharging his debts. 
 The testator died in 1816, and his general personal assets having 
 been found to be not nearly sufficient for the payment of his 
 debts, steps were taken to sell the T. estate ; and it was then 
 discovered that the testator's interest in the property, instead of 
 being freehold, as he had imagined, was only leasehold for a 
 long term of years. The plaintiffs were creditors of the testator 
 on the balance of a banking account, which had been ascertained 
 in 1815. Sir J. Leach decided, that their debt, being to be 
 claimed against the executors, and not under the trust, was 
 barred by the statute. " The law," he said, " does not permit a 
 testator to create a special trust of his personal estate, so as to 
 withdraw it from the administration of his executors. Whatever 
 
 (o) Hughes V. Wynne, 1 Turn. & R. 
 307 ; j^ult V. Goodrich, 4 Russ. 430 ; 
 Rendell v. Carpenter, 2 Y. & Jeiv. 484. 
 .—1 Sch. & Lef. 110, 2 Ves. & B. 280, 
 281, 1 Russ. & M. 269. 
 
 (p) Morse v. Laiigham, blaled 2 Ves. 
 
 & B. 286 ; Hargreaves v. Michell, 6 
 Madcl. 326 ; Executors of Fergus v. Gore, 
 1 Sch. & Lef. 107. 
 
 (?) Burke v. Jones, 2 Ves. & B. 275, 
 cited 6 Madd. 326, and 1 Russ. 6c M. 
 274.— 1 Sch. & Lef. 109, 110.
 
 S. VIII.] OF CASES, WHERE THE STATUTE, &C. 455 
 
 lie may attempt to do in that respect, all claims must neverthe- 
 less be made against the executors, and trustees named in a will 
 can receive only the residue, after all demands on the personal 
 estate are satisfied. The debt of the plaintiffs being, therefore, 
 to be claimed against the executors, and not under the trust, is 
 barred by the Statute of Limitations" (r). His Honor dismissed 
 the bill with costs. But this decree has been reversed by Lord 
 Brougham ; and it appears his Lordship's reversal does not turn 
 on the circumstance, that, in the particular case, the testator had 
 mistaken the nature or tenure of the property which he made a 
 fund, auxiliary to his personalty, for the payment of his debts ; 
 but is a decision to the general eifect, that if a person by his 
 will expressly affixes to his personal estate a trust for the pay- 
 ment of his debts, in a Court of Equity this trust prevents the 
 operation of the statute against the testator's simple contract 
 debts, which were not barred by it at the time of his death (s). 
 
 SECTION VHL 
 
 OF CASES, WHERE THE STATUTE HAS BECOME A BAR PENDING 
 A SUIT IN EQUITY. 
 
 When a creditor files a bill in equity to recover his debt, and, 
 pending the suit, the Statute of Limitations runs against it, and 
 afterwards the bill is dismissed ; in such a case, the Court will, 
 perhaps, under some circumstances, preserve the plaintiff's right, 
 and will not suffer the statute to be pleaded at law in bar to his 
 demand (t). But it seems to be certain that, generally speaking, 
 when a creditor files a bill in equity, and pending the suit his 
 debt is barred by the statute, and then the bill is dismissed, the 
 Court will not interpose to prevent the setting up of the statute, 
 as a defence to an action afterwards brought at law to recover 
 
 (r) 1 Russ. & M. 261. l 2 Atk. 610, 615. See also Ano7i. 2 Ch. 
 
 (s) Ibid. 255. I Cas. 217, and Mackenzie v. Marquis of 
 
 (t) Anon. 1 Vein. 73 ; Gilbert v. Poivis, 7 Bro. P. C. ed. Toml. 282. 
 Emerton, 2 Vern. 503 ; Sturt v. Mellish, |
 
 456 OF CASES, WHERE THE STATUTE HAS BECOME [CH. XXXIV. 
 
 the debt {u). And, although the time limited by the statute has 
 expired since the commencement of the suit in equity, yet where 
 there is a ground to dismiss the bill, the Court will do it, not- 
 withstanding the effect of the dismissal may be, that, in an action 
 at law, the plaintiff will be met by a plea of the statute (v). 
 
 Sirdefield v. Price was a suit instituted by a person, claiming 
 to be a creditor in respect of two several promissory notes, and a 
 memorandum, or I. O. U., against executors, for payment of his 
 debt, and the usual accounts of the debtor's estate. The answer 
 questioned the validity of the debt, and stated circumstances 
 inducing a presumption of satisfaction. At the hearing, the 
 Court, feeling some doubt on the subject, retained the bill for a 
 year, with liberty for the plaintiff to bring an action at law. 
 The plaintiff accordingly brought an action in the Court of 
 Common Pleas, to which the defendant pleaded the general issue, 
 and also the Statute of Limitations. The first note was dated 
 the 12th March, 1817, for 209/.; the second, the 21st June, 
 1817, for the like sum; and the I. O. U. was dated a few days 
 subsequently, and was for 100/. The bill was filed on the 26th 
 March, 1823. By Alexander, L. C. B.,— "I understand the 
 case to be this : the bill seeks to enforce the payment of three 
 several notes, and the equity raised to support this bill is a gene- 
 ral account and administration of assets. Now, this being the 
 equity here, the suit is brought to a hearing, and a decree made 
 for an account. It happens, that in the interval between the 
 filing of the bill and the decree, the Statute of Limitations takes 
 effect. The bill was filed on the 26th March, 1823, the first 
 note being dated the 12th March, 1817, and as to which, there- 
 fore, the remedy was clearly barred by the statute before the 
 bill was filed. As to the other instruments, however, the statute 
 did not accrue till after the filing of the bill. It would be in the 
 highest degree unjust, and would be contrary to all the practice 
 
 (u) Craddock v. Marsh, 1 Ch. Rep. 
 205; Hurdret v. Calladm, ih. 214; 
 Anon. 2 Ch. Cas. 217. See also Peeres 
 V. Bellamy, cited 2 Vein. 504 j Lake v. 
 
 Hayes, or Hales, 1 Atk. 282, 1 West Cas. 
 T. Hardvv. 7 ; Anon., S. C, 2 Atk. 1. 
 
 (v) Hurdret v, Calladon, 1 Ch. Rep. 
 214.
 
 S. VIII.] A BAR PENDING A SUIT IN EQUITY, 457 
 
 of this Court, and to the merits of the case, if the defendant 
 were to be allowed to avail himself of the statute, as to the two 
 last notes. As I would have made a decree for the payment of 
 them at the hearing, had this been a clear legal demand, and an 
 objection had not been made to it in the course of the proceed- 
 ings, I will not permit the party now to set up the statute, which 
 has accrued since the filing of the bill. If there be any stated 
 account, as alleged by the answer, that will be a good defence at 
 law." The Court ordered, that the defendant be restrained from 
 insisting at law upon the Statute of Limitations, with regard to 
 the note, dated the 21st June, 1817, and to the subsequent de- 
 mand for lOOZ. (iv). 
 
 In Stemdale v. Hankinson, a bill in equity was filed on the 5th 
 May, 1812, by several persons on behalf of themselves and all 
 other the creditors of G. H., deceased. G. H. died intestate, 
 and was, at his death, a trader within the meaning of the bank- 
 rupt laws. The bill prayed for the usual accounts of the debts 
 due to the plaintiffs, and the other creditors who should come in, 
 &c., and of the intestate's real and personal estates ; and that those 
 estates might be applied in payment of the debts of the plaintiff's, 
 and the other creditors of the intestate, who should come in, &c. 
 On the 14th April, 1818, the decree, which is usual in suits of 
 the like- nature, was made. The Master reported that several 
 persons had come in before him, and claimed debts to be due to 
 them from the intestate, none of which he had thought fit to 
 allow, except one, which had been proved by the plaintiff's B. 
 and H ; and that his reason for disallowing the debts claimed by 
 the other persons was, that the testator died in 1810, and that 
 the decree was not made until eight years afterwards, and that no 
 proceedings had been taken for the recovery of those debts, 
 whereby the claimants were, as he conceived, barred of any 
 remedy. Three of the persons, whose claims had been dis- 
 allowed, excepted to this report. And this exception was by Sir 
 
 («,') 2 Y. & Jerv. 73. A note by the 
 reporter states, that " it appeared subse- 
 quently, that the bill was not a bill for 
 
 the general administration of assets, but 
 confined to the plaintifF's particular de- 
 mand."
 
 458 OF CASES, WHERE THE STATUTE HAS BECOME [CH. XXXIV. 
 
 A. Hart allowed. " That the commencing proceedings in equity 
 will not prevent the operation of the Statute of Limitations is", 
 he said, " indisputable. If a creditor's bill is dismissed, the pen- 
 dency of the suit will not prevent the defendant from taking the 
 benefit of the statute. As Courts of Equity will not entertain 
 stale demands, they have thought proper to adopt the limit of six 
 years, in analogy to the statute ; and pleas of the statute are admitted 
 in these Courts by analogy only. Where the circumstances of a 
 case are such, as to make it against conscience to apply the rule 
 founded upon this analogy, the Court will not enforce it. It has 
 been said, that if a creditor files a bill on behalf of himself and 
 others, and permits it to be dismissed before decree, the statute 
 would apply. I dissent from this proposition ; for I think that 
 the Court would protect a creditor against any accident of that 
 kind. I have no doubt, that if a creditor file a bill, and it appears 
 that the rule adopted by analogy to the statute would affect his 
 demand, but that a bill had been before filed by another creditor, 
 and that the plaintiff in the second suit had, in confidence that 
 the former suit would be prosecuted, abstained from filing his 
 bill, the Court would not apply its rule. Every creditor has, to 
 a certain extent, an inchoate interest in a suit instituted by one 
 on behalf of himself and the rest ; and it would be attended with 
 mischievous consequences to estates of deceased debtors, if the 
 Court were to lay down a rule, by which every creditor would be 
 bound either to file his bill, or bring his action. Suits have been 
 instituted in which creditors, in consequence of the deaths of 
 parties, and a variety of other circumstances, have been unable 
 to procure a decree for two or three years, although every rea- 
 sonable diligence may have been used ; and if the schedules to 
 most of the reports made in suits of this nature were looked 
 through, it would be found, by comparison of dates, that two-thirds 
 of the creditors might have been shut out, by a strict application 
 of the rule. It has been said, that every creditor, who files a bill 
 on behalf of himself and the other creditors, may dismiss his bill 
 if he pleases. But this proposition is not true, to the extent to 
 which it has been stated. I apprehend that it is not the rule of
 
 S. VIII.] A BAR PENDING A SUIT IN EQUITY. 459 
 
 the Court, that a creditor may, under all circumstances, dismiss 
 his bill, I recollect instances in which a creditor, who has filed 
 a bill on behalf of himself and the other creditors, has worked a 
 benefit to himself by the orders of the Court, and has attempted 
 to dismiss his bill ; but I have a- strong impression that Lord 
 Eldon said, that, having given the Court possession of the suit by 
 a decretal order, it was not competent to him to defeat any other 
 creditor by dismissing his bill. I entertain no doubt that every 
 creditor has, after the filing of the bill, an inchoate interest in the 
 suit, to the extent of its being considered as a demand, and to 
 prevent his being shut out, because the plaintiff has not obtained 
 a decree within the six years ; and, therefore, I am clearly of 
 opinion that this exception must be allowed" {x), 
 
 (a) 1 Sim. 393.
 
 460 
 
 CHAPTER XXXV. 
 
 OF THE SATISFACTION OF A DEBT BY A LEGACY. 
 
 If a person bequeaths a legacy of money, and is, at tlie time 
 of the bequest, indebted to the legatee in a sum, which is greater 
 than the legacy, then, the legacy being less than the debt, the 
 bequest is interpreted not to be a part satisfaction of it, and the 
 legatee is entitled to be paid both the debt and the legacy (a). 
 And if, after a bequest of money, the testator contracts a debt 
 with, or becomes indebted to, the legatee, in this case the bequest 
 is not a satisfaction of the debt, and the legatee will be entitled 
 to both debt and legacy, although the sum bequeathed is greater 
 than the debt (i). 
 
 If, however, a person bequeaths a legacy of money, and is, at 
 the time of the bequest, indebted to the legatee in a sum, which 
 is less than the legacy, then, the legacy being greater than the 
 debt, the bequest is, generally speaking, and under the mere 
 circumstances mentioned, interpreted to be a satisfaction of it, 
 and the legatee is not entitled to be paid both the debt and the 
 legacy (c). And the same interpretation and eiFect take place, if 
 the legacy is not greater than, but is equal only to, the debt {d). 
 
 (a) Minuel v. Sarazine, Mos. 295 ; 
 Stanway v. Styles, 2 Eq. Cas. Abr. 355 ; 
 
 Slanning v. Style, S. C, 3 P. W. 334 
 
 2 Salk. 508, 2 P. W. 616. 
 
 (6) Cranmer's case, 2 Salk. 508 ; 
 Cuthbert V. Peacock, 2 Vern. 593, 1 Salk. 
 155 ; Thomiis v. Bennet, 2 P. W. 341, 
 fourth point ; Fowler v. Fowler, 3 P. W. 
 
 353 ; Robins v. Cope, cited 1 Ves. 324 
 
 1 P. W. 299. See also Gaynon v. Wood, 
 1 Dick. 331. 
 
 (c) Talbotty, Duke of Shrewsbury, Prec. 
 
 Ch.394 J Reech v.Kennegal, 1 Ves. 123 ; 
 Gaynon v. Wood, 1 Dick. 331, 1 P. VV. 
 5th ed. 409, n.; Davison v. Goddard, 
 
 Gilb. Eq. Rep. 65 1 Ves. 263, 2 Atk. 
 
 301, 493, 3 Atk. 68, 3 Ves. 564. 
 
 (d) Brown v. Dawson, Prec. Ch. 240, 
 2 Vern. 498 ; Talbutt v. Dtike of Shrews- 
 bury, Prec. Ch. 394; Gibson v. Scudamore, 
 Mos. 7 ; Willoughby v. Earl of Rutland, 
 
 Nels. 38 3 P. W. 354 ; 1 Ves. 263 ; 2 
 
 Ves. 636 ; 2 Atk. 301, 493 ; 3 Atk. 68 ; 3 
 Ves. 564.
 
 CH. XXXV.] OF THK SATISFACTION OF A DEBT BY A LEGACY. 461 
 
 And, in either case, the same construction and eflfect follow, 
 although the legacy is bequeathed by a father to his child (e), 
 or by a husband to his wife {f). And as a debt of a gross sum 
 may be satisfied by a legacy of greater amount, so may an 
 annuity, given by bond, be satisfied by a greater annuity be- 
 queathed by the obligor's will (^7). 
 
 The cases which establish this doctrine of satisfaction constitute 
 a rule, which, when it was introduced, seems to have been 
 grounded on a maxim, that a man ought to be just, before he is 
 bountiful (A). But it is a rule, which many judges have ex- 
 pressed their disapprobation of (^) ; Lord King saying, " he did 
 not see any great reason, why, if one owed 100/. to A. by bond, 
 and should afterwards give him a legacy of 500/., this legacy 
 must go in satisfaction of the debt; for if so, the whole 500/. 
 would not be given, in regard 100/. of it would be paid towards 
 a just debt, which the testator could not help paying, and there- 
 fore the whole 500/. would not be given, against the express 
 declaration of the testator, who says he gives the same " (j). It 
 is nevertheless a rule, which is universally acknowledged to be 
 law, and cannot now, as a general rule, be overturned (A). But 
 while it is admitted so far to be binding, the Courts lean very 
 much to create exceptions out of it, and eagerly lay hold of any 
 minute circumstance, which, in a new case, may authorise them 
 to do so (/). And, accordingly, several instances occur, wherein 
 the legatee has been decreed to be paid both the le-gacy and the 
 debt [m) ; as — in Cuthhert\. Peacock, where the testator, indebted 
 
 (e) Willoughhy v. Earl of Rutland, 
 Nels. 38 ; Pktme v. Plume, 7 Ves. 258. 
 See also Tolson v. Collins, 4 Ves. 483. 
 
 (/) Fowler V. Fowler, 3 P. W. 353. 
 
 (g) Graham v. Graham, 1 Ves. 262. 
 
 (h) 1 Salk. 155 ; 1 P. W. 410 ; 3 P. 
 W. 354. 
 
 (i) 1 Salk. 155; 2 Vern. 594 j 2 P. 
 W. 616 ; 3 P. W. 354 ; 1 Ves. 520 ; 2 
 Ves. 636; 3 Atk. 68 ; 3 Ves. 466, 529,564. 
 
 (j) 1 P. W. 410. 
 
 (fc) 1 P. W. 410; 3 P. W. 354; 2 
 Ves. 636; 2 Atk. 301 ; 3 Atk. 68 ; 3 
 Ves. 529. In Cranmer's case, 2 Salk. 
 
 508, the rule, if it was then established, 
 appears to have been wholly disregarded 
 by Lord Harcourt, when, as to the debt 
 contracted before the will, he reversed the 
 decree of the Master of the Rolls. 
 
 (Z) 2 Ves. 636 ; 2 Atk. 301 ; 3 Atk. 
 68, 97, 98 ; 3 Ves. 466, 529. 
 
 (m) Atkinson v. Webb, Prec. Ch. 236, 
 
 2 Vern. 478 ; Goodfellow v. Burchett, 2 
 Vern, 298 ; Mathews v. Matheivs, 2 Ves. 
 635 ; Richardson v. Greese, 3 Atk. 65, 
 cited 11 Ves. 547, 548 ; Clark v. Sewell, 
 
 3 Atk. 96 ; Hobbs v. Taiie, 1 West Cas. 
 T. Hardw. 582. cited 11 Ves. 548, 549 ;
 
 462 OF THE SATISFACTION OF A DEBT BY A LEGACY. [CH. XXXV. 
 
 to his niece F. 100/. by bond, by will gave her 300Z., to be paid 
 in eighteen months after his decease, and, if not then paid, to be 
 paid with interest till paid ; and by the will he gave 200/. a-piece 
 to her sisters; and afterwards, by a codicil, reduced the legacies 
 of 200/. to 100/. a-piece to his other nieces, but said nothing as 
 to his niece F., and afterwards borrowed of his niece F. 100/. 
 more ; and where Lord Cowper decreed the 300/. legacy to be paid, 
 over and above the debt ; on the grounds, that there were assets, 
 and that, according to the parol evidence admitted, F. was the tes- 
 tator's favourite niece, and that he did not intend that she should be 
 reduced to a less legacy, than what was given to her sisters (n) : 
 in Chancey's case, where one being indebted for wages to a maid- 
 servant, who had lived with him for a considerable time, gave her 
 a bond for 100/., and, in the condition of the bond, it ap- 
 peared to be for wages ; and afterwards he by his will, among 
 other things, gave a legacy of 500/. to this maid-servant, and it 
 was mentioned in the will to be given to her, for her long and 
 faithful services; and in which case, under a decree by Lord 
 King, the legatee had both her debt and legacy; his Lordship 
 relying principally on tlie circumstance, " that the testator, by 
 the express words of his will, had devised ' that all his debts and 
 legacies should be paid'; and this 100/. bond being then a debt, 
 and the 500/. being a legacy, it was as strong, as if he had 
 directed that both the bond and legacy should be paid " (o) : in 
 Nicholls V. Judson, where W. L., to reward the good services of 
 A. M., who had lived with him a great number of years, gave 
 her a bond in 1728, for payment of 300/. and interest on a day 
 fixed, and in 1731 paid her 100/., part of the 300/., and all 
 interest; and, in which case, W. L. in 1736 made his will, and 
 thereby gave to Mr. M. all his lands, &c., in B., to hold for 
 200 years, upon trust to raise and pay to A. M., within two 
 
 Field V. Mostin, 2 Dick. 543 ; Tolson v. 
 Collins, 4 Ves. 483, a case of a legacy by 
 a father to his daughter; Wallace v. 
 Pomfret, 1 1 Ves. 542. See also Raivlins 
 V. Powel, 1 P. W. 297 ; Anon. v. Powell, 
 S. C, 10 Mod. 398 ; Barret v. Beckford, 
 
 1 Ves. 519. 
 
 (n) 2 Vein. 593, an 1 3id ed. n. (4), 
 1 Salk. 155. 
 
 (()) 1 P. W. 408, Chancy v. Wootton, 
 S. C, Sel. Ca. Ch. 44.
 
 CH, XXXV.] OF THE SATlSrACTlON OF A DEBT BY A LEGACY. 463 
 
 years after his death, 2001. ; and also devised other lands to 
 the same trustee for 300 years, upon trust to pay 200/. to 
 A. M., within one year after his death ; and likewise gave to 
 A. M., plate, linen, and other legacies; and where Fortescue, 
 M. R., decided, that the two legacies of 200Z. were not a satis- 
 faction of the bond ; his Honor being of opinion, that the case 
 was taken out of the general rule by the circumstances, that the 
 legacies were not made payable at the testator's death, but at a 
 future time, and, being charged on land, would have sunk into 
 it, if the legatee had died before the time of payment {p). 
 
 In Carr v. Eastahrooke, Sir R. P. Arden, admitting the general 
 rule, that " simpliciter, a legacy to a creditor of equal or greater 
 amount than the debt is an extinguishment," refused to carry 
 the rule farther, and to hold a legacy to be an extinguishment of 
 a negotiable security [q). 
 
 A case is thus reported — " A. made his two brothers executors, 
 and gave a legacy of lOOZ. to B., the daughter of one of them. 
 The executors settled an account, and divided the assets, and 
 then the uncle executor by his will gave B. 200Z., and died. And 
 on a bill for these legacies, it was held by Sir J. Jekyll, that as 
 the lOOZ. legacy was the debt of both the executors, the gift of 
 200/. by the dead executor could not be intended to discharge it, 
 there being no reason to suppose that he designed to make satis- 
 faction for the debt of his co-executor " (r). 
 
 Many authorities shew, that, to take a case out of the general 
 rule, which makes a legacy greater than, or equal to, a debt to 
 be a satisfaction of it, a ground that may be relied on is,— that 
 the thing given by the will is of a nature different from that of 
 the debt [s), as where the subject of the gift is land [t) ; that the 
 legacy is given upon condition (?/) ; that it is given upon a con- 
 tingency [v) ; that it is made due not at the testator's death, but 
 
 (f) 2 Atk. 300. 
 
 (g) 3 Ves. 561. 
 
 (>•) Garrat v. Garrat, 2 Eq. Cas. Abr, 
 356. 
 
 (s) 2 Salk. 508; 1 Atk. 428;[Stanway 
 V. Styles, 2 Eq. Cas. Abr. 355 j Slauvhig 
 
 V. Style, S. C, 3 P. W. 334. 
 
 (£) 2 Salk. 508 ; 2 P. W. 616 ; 1 Atk. 
 428 ; Goodfellmu v. Burchett, 2 Vern. 
 298. 
 
 («) 2 Salk. 508. 
 
 (i') Tulbott V. D^lke of Slirewslniry,
 
 464 OF THE SATISFACTION OF A DEBT BY A LEGACY. [CH. XXXV. 
 
 at a future day (w) ; that it is charged upon land, and made pay- 
 able at a future day, and therefore may be lost to the legatee, if 
 he dies before the time of payment (x) ; that the will directs, 
 that all the testator's debts and legacies shall be paid ( ?y) ; that the 
 testator's disposal of his estate is preceded by tlie words, " after 
 my debts are discharged, I give, &c.," or, " after 'debts and 
 legacies are paid, I give," &c. (z) ; that the debt was upon an 
 open and running account between the testator and legatee, so 
 that it might not be known to the testator, whether he did 
 owe any money to the legatee, or not (a) ; and that, in the case 
 of an annuity given, and secured by a bond, in the testator's life- 
 time, and an equal annuity given by his will, the one given by 
 the will is not so advantageous to the annuitant as the other ; the 
 one secured by the bond being payable quarterly, and that given 
 by the will half yearly, the former, also, free from all deductions, 
 the latter being payable out of land, and therefore liable to 
 taxes {b). 
 
 With respect to the admission of parol evidence to take a case 
 out of the general rule, and to rebut the presumption that a 
 legacy greater than, or equal to, a debt is meant to be given in 
 satisfaction of it, in other words, " to shew that the testator 
 designed to give such legacy, exclusive of the debt," an opinion 
 that it ought not to be admitted appears to have been expressed by 
 Lord Talbot (c), and Lord Hardwicke (d), the former learned 
 judge acknowledging, indeed, that in some cases such evidence 
 had been allowed. It has before been seen, that Lord Cowper 
 permitted it to be used in Cuthhert v. Peacock (e) ; and this autho- 
 
 Prec. Ch. 394 ; Tolson v. Collins, 4 Ves. 
 
 483 2 Atk. 493 ; 3 Atk, 98. See also 
 
 Crompton v. Sale, 2 P. W. 553, 1 Eq. 
 Cas. Abr. 205. 
 
 (w) Nicholls V. Juchon, 2 Atk. 301 ; 
 Clark V. Sewell, 3 Atk. 98. 
 
 (t) Nicholls V. Judson, 2 Atk. 300 ; 
 Richardson v. Greese, 3 Atk. 65. 
 
 (y) Chancey's case, 1 P. W. 410, 
 cited 1 Dick. 332, and 4 Madd. 331 ; 
 Field V. Mostin, 2 Dick. 543 ; Tolson v. 
 
 Collins, 4 Ves. 483. 
 
 (s) Ricliardson v. Greese, 3 Atk. 65, 
 cited 11 Ves. 548. 
 
 (a) RaivLins v. Powel, 1 P. W. 297, 
 299; Anon. v. Powell, S. C, 10 Mod. 
 398. 
 
 (6) Atkinson v. Webb, Prec. Ch. 236, 
 2 Vern. 478. 
 
 (c) 3 P. W. 354. 
 
 (rf) 3 Atk. 68. 
 
 (e) 2 Vern. 593, 1 Salk. 155.
 
 CH. XXXV.] OF THE SATISFACTION OF A DEBT BY A LEGACY. 465 
 
 rity appears to agree with the following ease of Wallace v. Pom- 
 fret, determined by Lord Eldon, and which decides, that even 
 where the presumption of satisfaction, under the general rule, is 
 aided by some expression in the will, parol evidence may be 
 admitted to rebut that presumption. In Wallace v. Pomfret, 
 R. J. M. by his will, after giving to G. W. 500Z., over and 
 above what the testator might owe him on balance of any account, 
 or otherwise, at the testator's death, proceeded to give the follow- 
 ing legacies, — " And to my servant J. S., if in my service at the 
 time of my decease, lOZ., over and above all such monies as I 
 shall owe him for wages, or otherwise. And I give to my 
 housekeeper, M. P., lOOOZ." The bill was filed by the executors 
 against M. P., praying that the legacy of 1000/. might be 
 declared to be a satisfaction of the sum of 1*25/. \2s. 6d. claimed 
 by the defendant, as wages due to her from the testator. In this 
 case. Lord Eldon admitted parol evidence to repel the presump- 
 tion, upon the rule of law, that the legacy greater than the debt 
 was meant to be in satisfaction of it, although, upon the whole 
 will, an inference arose, that satisfaction was intended, but which 
 inference was not strong enough to require a decision to that 
 effect. The testator, his Lordship said, " imposes a condition 
 as to another servant, of being in his service at his death ; a con- 
 dition not imposed as to the legacy to this defendant. To that 
 other servant he gives 10/., in addition to all such monies as he 
 shall owe him for wages, or otherwise: that legacy connecting 
 itself, not only with the debt due at that time, but with any debt 
 the testator might owe at his decease to that servant. Then 
 immediately afterwards comes this legacy of lOOOZ. to the de- 
 fendant. As to two persons, standing in the same relation to 
 him, and having demands of the same nature, he says the legacy 
 to one is to be in addition to wages, and does not say that as to 
 the other. The presumption, therefore, not upon the rule of law, 
 but upon the whole will, is, that this legacy is not in addition to 
 wages ; the testator having expressly directed, that the other shall 
 be in addition. The question, whether the evidence is admissible, 
 or not, turns upon the point, whether the inference from the 
 
 H H
 
 466 or THE SATISFACTION OF A DEBT BY A LEGACY. [CH.XXXV. 
 
 express direction, that the other legacy shall be in addition to 
 wages, is strong enough to require a decision, tliat, as to this 
 legacy, the addition to wages is, upon the face of the will, neces- 
 sarily excluded. If it is not, then, upon the rule as to satisfaction 
 of portions, &c., these declarations may be admitted. If admitted, 
 they are to be looked at with great attention ; to see, whether the 
 necessary effect is to beat down the fair inference from the written 
 context ; which is the most solemn declaration he can make ; 
 particularly, as the parol declaration is not cotemporary." The 
 effect of the evidence, which Lord Eldon admitted in this case, 
 was, that his Lordship decided, the legacy was not a satisfaction 
 of the debt (/). 
 
 A description of debt, to which also the doctrine of satisfaction 
 is applied, is one that arises from a contract made by a hus- 
 band, as by bond or covenant, to make a provision for his wife, 
 in the event of her surviving him. In these cases, a question 
 sometimes arises, whether a bequest, or other cause, from which 
 the wife becomes entitled to a sum of money, or other property, 
 out of her husband's estate, is to be construed to be a satisfaction 
 or performance of the contract entered into by him {(/) ; and on 
 which question depends the title of the wife to take under the 
 contract only, or a double provision, both the one under the con- 
 tract, and also the farther provision claimed by her out of her 
 husband's estate. 
 
 A satisfaction or performance of the contract has been held to 
 take place, amongst other instances (A), — in Blandy v. Widmore, 
 where, upon the marriage of A. with B., there were articles 
 reciting that, in consideration of the marriage and of the portion, 
 it was agreed that if B. the wife should survive A., her intended 
 husband, A. should leave B. 620/. ; and accordingly A. cove- 
 
 (/) 11 Ves. 542. 
 
 (g) On this subject, see, besides the 
 authorities after referred to, Davila v. 
 Davila, 2 Vera. 724, cited 10 Ves. 18 ; 
 Oliver v. Brighouse, or Brickland, cited 1 
 Ves. 1, 3 Atk. 420 ; Kirkman v. Kirkman, 
 2 Bro. C. C. 95 ; also Barret v. Beckford, I 
 
 1 Ves. 519 ; and Jeacock v. Falconer, 1 
 Bro. C. C. 295, 1 Cox, 37. 
 
 (/i) Corus V. Farmer, 2 Eq. Cas. Abr. 
 34 ; Garthshnre v Chalie, 10 Ves. 1 ; 
 Goldsmid v. GoLdsmid, 1 Swanst. 211, 1 
 Wils. 140.
 
 CH. XXXV.] OF THK SATISFACTION OF A DEBT BY A LE(iA(JY. 467 
 
 nanted with trustees that his executors, within three months 
 after his decease, should pay B. 620/. if she should survive him ; 
 and in which case A. died intestate, and without issue ; and 
 thereupon B. became, by the Statute of Distribution, entitled 
 to a moiety of her husband's personal estate ; and where Lord 
 Cowper decided, that such moiety, which was much more than 
 620/., " shall be accounted as in satisfaction of, and to include in 
 it, her demand by virtue of the covenant, so that she shall not 
 come in first as a creditor for the 620/., and then for a moiety of 
 the surplus" (i) : in Lee v. D'Aranda and Cox, where, in a deed 
 previous to the marriage of M. with her first husband L., in 
 consideration of the marriage, and of the marriage portion of M., 
 L. covenanted that he would in his life-time, either by his will 
 or by some sufficient assurance in the law, grant to M. 1000/., 
 to be paid to the said M. after the decease of L. in case she 
 should survive him ; and in case L. should not by will, or other- 
 wise, in his life-time assure to M. the said 1000/., that then the 
 executors or administrators of L. should, within the space of six 
 months next after the decease of L., pay to M. the sum of 
 1000/. ; and in which case L. died, without making any will, or, 
 pursuant to the covenant, any deed ; and where Lord Hardwicke 
 decreed, that M. " is not entitled to the said 1000/. by virtue of 
 the said marriage articles, as a debt out of the intestate's estate, 
 and also to a distributory share of her husband's personal estate, 
 in case it shall amount to, or be more than, the sum of 1000/." 
 {j ) : in Wathen v. Smith, where J. W. in his marriage settle- 
 ment covenanted, that in case E. S,, his intended wife, should 
 survive him, his heirs, &c., should, within six calendar months 
 next after his decease, pay or cause to be paid to the said 
 E. S., her executors, &c., the sum of 1000/. sterling, to and for 
 her and their own use and benefit ; and where J. W. by his 
 will, in addition to several other bequests to his wife, bequeathed 
 as follows : — " I also give and bequeath unto my said dear wife 
 E. W. the sum of 1000/ of lawful money of Great Britain, to 
 be paid to her within three calendar months next after my 
 
 (i) 1 P. W. 324, 2 Vcrn. 709. 
 (J) 3 Atk. 419, and ed. Sand. 422, n. (1), 1 Ves. 1. 
 H H 2
 
 468 OF THE SATISFACTION OF A DEBT BY A LEOACY. [CH. XXXV. 
 
 decease, for her own use and benefit;" and in which case Sir 
 J. Leach decided, that the legacy was a satisfaction or perform- 
 ance of the covenant (k). 
 
 A satisfaction or performance of the husband's contract has 
 been held not to take place, amongst other instances (Z), — in 
 Haines v. Mico, where, upon the marriage of J. and S. M., the 
 husband gave a bond to trustees, to leave to the wife 300/., pay- 
 able in a month after his decease, in case she should survive 
 him; and where the husband by his will gave to his wife 500/,, 
 payable within six months after his decease ; and in which case 
 Lord Thurlow decreed, that the legacy of 500/. was not a satis- 
 faction of the 300/. secured by the bond (m) : in Forsijth v. 
 Grant, where W. G., by a bond made previous to his marriage 
 with G. L., became bound in the sum of 4000/., with a condition 
 reciting that the said W. G. had agreed to leave to the said 
 G. L., or the child or children of the marriage, the sum of 2000/., 
 and which condition of the bond was, that if the heirs, &c., of 
 W. L. should, within three months after his decease, pay to the 
 trustees the sum of 2000/,, in trust that the trustees should place 
 out the same at interest, and, in case there should be any children, 
 should then pay the interest in manner therein mentioned, or, if 
 there should be no child or children living at the death of the 
 said W. G., in trust, as to tlie said principal sum of 2000/., for 
 the sole use and benefit of the said G. L., then the bond to be 
 void, and, in which case of Forsi/th v. Gi^ant there was no issue 
 of the marriage, and W. G. by his will gave to trustees all the 
 estate, real and personal, he was then, or might happen to die, 
 possessed of, in trust to pay to his beloved wife, G. G., the 
 annual rent or yearly profits of all his said estate, real and perso- 
 nal, yearly and every year, by equal portions, and, after her 
 decease, to divide the estate among the plaintiifs; and where 
 Lord Thurlow decided, that the wife should take both the sum 
 secured by the bond, and her life estate under the will (//). 
 
 (fc) 4 Madd, 325. 
 
 (0 Perry v. Perry, 2 Vern 50 'i ; 
 Eastwood V. Vinhe, 2 P. W. 614 , Devese 
 V. Pontet, 1 Cox, 188 ; Richardson v. 
 Elphinstone, 2 Ves, jun, 463 ; Couch v. 
 
 Stratum, 4 Ves. 391 ; Adams v. Lavender, 
 M'Clel. & Y. 41. 
 
 (m) 1 Bro. C. C. 129. 
 
 (n) 3 Bro. C. C. 242 ; Forsight v. 
 Grant, S. C, 1 Ves. jun. 298.
 
 469 
 
 CHAPTER XXXVI. 
 
 OF AN EXTINGUISHMENT, OR RELEASE, OF A DEBT BY A 
 TESTAMENTARY ACT. {a) 
 
 A TESTAMENTARY act, as a declaration or clause contained in 
 a will, cannot at law operate as a release of a debt owing to the 
 testator (b) ; but, in a Court of Equity, it may have the effect of 
 extinguishing the debt (c). And, even in equity, a testamentary 
 act is not permitted to operate as an extinguishment, as against 
 the creditors of the testator (d). 
 
 A mere bequest of a legacy will not extinguish a debt owing 
 by the legatee to the testator; and if the legacy is greater than 
 the debt, the executor may deduct the latter from it ; and if it is 
 less, he may retain the legacy in part discharge of the debt (e). 
 And when a clause in a will fails to operate as an extinguish- 
 ment of a debt, and is merely a bequest of a legacy ; in this case, 
 if the -legatee dies in the life-time of the testator, a Court of 
 Equity holds that the legacy is lapsed, and that the debt still 
 subsists, and may be claimed against the estate of the debtor (f). 
 
 A clause in a will was construed to extinguish a debt in the 
 following case of Sibthorp v. Moxom. A person by her will 
 gave lOZ. a-piece to the legatees for mourning, and afterwards 
 
 (a) On a release, or an extinguish- 
 ment, of a debt owing to a testator, see, 
 besides the authorities after referred to, 
 Eden v. Smyth, 5 Ves. 341 ; Aston v. Pye, 
 ib. 350, n., and also stated ib. 354 ; 
 Beeves v. Brymer, 6 Ves. 516. 
 
 (6) 1 Ventr. 39 ; 1 Salk. 304 : 1 P. 
 W. 85; 2 P. W. 332; 3 Atk. 581; 1 
 Ves. 50. 
 
 (c) 3 Atk. 581 ; 1 Ves. 50 ; IP. \V. 
 85. 
 
 (d) 2 P. W. 332 ; 3 Atk. 581 ; 1 
 Ves. 50, 
 
 (e) Jeffs V. Wood, 2 P. W. 128; 
 Ranking v. Barnard, 5 Madd. 32. See 
 Gould V. Adams, 1 Vern. & Scriv. 258. 
 
 (/) Elliot V. Davenport, 1 P. W. 83, 
 2 Vern. 521 ; Toplis v. Baker, 1 Cox, 
 118, 1 P. W. 5th ed. 86, n. ; Mahland 
 V. Adair, 3 V'^es. 231 ; hoii. v. Butler, 2 
 Price, 34,
 
 470 OF AN EXTINGUISHMENT, OR RELEASE, OF [CH. XXXVI. 
 
 said, " I likewise forgive my son-iii-law R. C. a debt of 500/. 
 due to me upon bond, and all interest that shall be due for the 
 same at my decease, and desire my executor to deliver up the 
 bond to be cancelled ;" and she made her son J. P. sole exe- 
 cutor. R. C. having died intestate in the life-time of the testatrix, 
 a question was made, whether the clause was of a legatory nature, 
 or to operate by way of extinguishment. Lord Hardwicke was 
 of opinion, that it was an extinguishment of the debt, and should 
 enure to the benefit of the representative of the person whose 
 debt it was; and his Lordship decreed the bond to be delivered 
 up to the administratrix of R. C. to be cancelled (y). 
 
 A testamentary clause, which bequeathed a legacy to a debtor 
 of the testator, was, in Wilmot v. Woodhouse, held not to amount 
 to an extinguishment of the debt. In this case, the will of 
 Admiral B. contained the following bequest : As I have paid 
 and advanced considerable sums of money for my son J. B., and 
 my daughter Lady W., I direct that my trustees and executors 
 shall pay, within twelve months after my death, the sum of 2000/. 
 to my said daughter Lady W. Lady W. was the widow of the 
 testator's son J. B., and the testator had lent to her 800/., on the 
 security of her bond. She survived the testator, and married the 
 plaintiff, and he on her death procured letters of administration to 
 her. The defendant was the executor of Admiral B., and, on 
 being applied to by the plaintiff for his late wife's legacy, insisted 
 on deducting from it the 800/, due on bond. This raised the 
 question, whether the bequest amounted in equity to a release of 
 the bond. And Lord Loughborough decided that it did not. 
 " A gift of a legacy," his Lordship said, " may certainly be so 
 framed, as to be a release of a demand, but it must be clear. But 
 this case can be raised no higher than an absence of intention ; 
 and a mere absence of intention can never be construed into a 
 release. My opinion therefore is, that the defendant has a right 
 to have the amount of the bond deducted" (h). 
 
 In Elliot v. Davenport (/*), Toplisv. Baker (J.), Maitlandv. 
 
 (g) 3 Atk. 580 ; Sibthorp v. Moxton, 
 S. C, 1 Ves. 49, cited 2 Cox, 121. 
 (h) 4 Bro. C. C. 227. 
 
 (0 1 p. W. 83, 2 Vern. 521. 
 
 (j) 1 Cox, 118 ; 1 P. W. 5th ed. 
 
 86, n.
 
 CH. XXXVI.] A DEBT BY A TESTAMENTARY ACT. 471 
 
 Adair (A), and Izon v. Butlei- (/), a testamentary clause, that gave 
 a legacy to a debtor of the testator, was construed not to operate 
 as an extinguishment of the debt, but to be merely a bequest of a 
 legacy ; and, the legatee having died in the testator's life-time, the 
 Court held that the legacy was lapsed; and the consequence 
 seems to have been, that the debt subsisted, and was payable out 
 of the legatee's, or debtor's, estate. In Maitland v. Adair, the 
 will of J. A. contained the following words : — " I devise to my 
 brother, the Rev. Mr. A., 2000Z. I also return him his bond for 
 400/., with interest due thereon, which he owes me." It appeared 
 by the Master's report, that the bond mentioned in the will was a 
 joint bond, in the Scotch form, by the testator's brother and his son 
 T. A. And on the question, whether the disposition of the bond 
 by the will amounted to a release, or was only a legacy, and 
 therefore lapsed by the death of the testator's brother in his life- 
 time, the bond remaining in force against T. A. the co-obligor and 
 executor of his father, Lord Loughborough held, that the words 
 in the will amounted to a legacy only, which was lapsed; his 
 Lordship saying, " There is not the least doubt as to the bond. 
 It is distinctly a legacy to the brother. There is no founda- 
 tion therefore for T. A. to have the bond delivered up" (m). In 
 Izonx. Bidler, a bill was filed by I., who had been the partner 
 in trade, and T. W., who was the son and executor, of T. W., 
 against the executors of C. A., to compel them to give up to 
 be cancelled a joint bond, which had been entered into by the 
 partners, I. and W., to C. A. In 1777, 500Z. was borrowed of 
 C. A., for which I. and T. W. (the father of the plaintiff T. W.) 
 gave to her their joint bond. In 1805, C. A. made her will, 
 which contained the following clause : — " I remit and forgive to 
 Mr. T. W., the elder, the sum of 500/., which he stands indebted 
 to me on his bond, and I direct said bond to be delivered up to 
 him and cancelled." The testatrix died in 1810; T. W. the 
 elder died in 1807. The interest on the bond had been duly 
 paid by I. and W. (the obligors) during W.'s life, and by I. 
 
 (/c) 3 Ves. 231. 1 (7») 3 Ves. 231, cited 2 Price, 43. 
 
 (0 2 Price, 34.
 
 472 EXTINGUISHMENT, OR RELEASE, OF A DEBT. [CH. XXXVI. 
 
 ever since his death, to C. A., the testatrix, until her decease. 
 The Court held, that the clause in the will amounted to a legacy; 
 and decided, that *•' the bequest to W. was [a] personal legacy, 
 intended for his benefit only, and that it must follow the nature of 
 legacies in general ; and, consequently, that the party demand- 
 ing the bond to be delivered up is not entitled to the prayer of 
 the bill, the legacy having lapsed by the death of W. in the life- 
 time of the testatrix" {n). 
 
 In The Attorney General v. Holbrook, the will of T. H., made 
 in 1810, contained the following clause : — " And, moreover, I 
 hereby forgive the bond debt, both principal and interest, due to 
 me, and entered into by J. W. and my brother J. H., with and 
 for him, for the said J. W.'s paying to me the principal sum of 
 4000/., and interest at 4/. per cent., and do order the said bond 
 at my decease to be delivered up and cancelled." The testator 
 died in August, 1811. By the bond referred to in the will, 
 J. W. and J. H., as surety for J. W., became jointly and severally 
 bound to the testator in 8000/., with a condition for the pay- 
 ment by J. W. and J. H., or either of them, their or either of 
 their executors or administrators, to T. H., his executors, admi- 
 nistrators, or assigns, of 4000/. on the 1st of January, 1794, with 
 interest at four per cent. The interest was paid by J. W. to T. H., 
 the testator, in his life-time, to the time of the death of J. W., 
 which happened in 1807, and from that time by his executors to 
 the 1st of January, 1811. On this case it was decided, that the clause 
 in the will amounted to a legacy to J. H., and therefore that such 
 legacy was liable to the payment of the legacy duty, payable by 
 a person standing in the relation of a brother to the testator (o). 
 
 («) 2 Price, 34. (o) 3 Y. & Jerv. 114.
 
 473 
 
 CHAPTER XXXVII. 
 
 OF AN EXECUTOR'S ALIENATION OF ASSETS. 
 
 Sect. I. — Of the General Power of an Executor before Probate. 
 II. — Of an Executor's Power^ at Law and in Equity^ over 
 
 Assets. 
 III. — Of taking Assets in Execution for the Private Debt of 
 
 the Executor. 
 IV. — Of following Assets ; and of the Interference of Equity 
 against an Executor's Disposal of them. 
 
 SECTION I. 
 
 OF THE GENERAL POWER OF AN EXECUTOR BEFORE PROBATE. 
 
 With some exceptions, and, in particular, relative to an 
 action or suit (a), it may be stated, that an executor derives his 
 power from the will itself, and not from the probate of it {b). 
 Before probate he is called, and is, executor (c) ; and, by the 
 death of the testator, the property of his goods is cast upon and 
 vested in the executor [d). Before probate he may take pos- 
 session of the testator's chattels personal (e), or his terms of, or 
 
 (a) Plowd. 278 a., 280 ; 5 Co. 28 a. ; 
 9 Co. 38 a.; Co. Litt. 292 b.; 1 Rol. 
 Abr. 917, A,2 ; 1 Freem. 520 ; 11 Mod. 
 39, 41 ; 1 Salk. 301, 302, 303, 307 ; 1 
 Durn. & E. 480 ; 3 P. VV. 351 ; 1 Atk. 
 461 ; 2 Atk. 285, 286 ; Wentw. Off. Ex. 
 ch. iii. ; Humphreys v. Ingledon, I P. 
 W. 752 ; Comber's case, ib. 766 ; Dun- 
 eombe v. Waiter, 1 Freem. 539. 
 
 (6) 9 Co. 38 a. ; 1 Salk. 302 ; Com. 
 151 ; 1 Freem. 520 ; 1 Duin. & E. 480 ; 
 3 Barn. & Aid. 365; 5 Barn. & Aid. 
 
 746 ; 1 Atk. 461 ; 1 Crompt. & Jerv. 
 369 ; Wentw. Off. Ex. ch. iii. See also 
 4 Bing. 704, and Parteri v. Baseden, 
 1 Mod. 213. 
 
 (c) Plowd. 280; 11 Mod. 39. 
 
 (d) Plowd. 280, 281 ; 1 Salk. 302, 
 307 ; 1 Durn. & E. 480 ; 8 Barn. & C. 
 335 ; Adams v. Cheverel, Cro. Jac. 113 ; 
 WooUey v. Clark, 5 Barn. & Aid. 744, 1 
 Dowl. & Ryl. 409. 
 
 (e) 1 Salk. 301 ; Wentw. Off. Ex. ch. 
 iii. See also 2 Ball & B. 492.
 
 474 POWER OF AN EXECUTOR BEFORE PROBATE. [CH. XXXVII. 
 
 leaseholds for, years {f) ; and may receive debts due to the 
 testator, and give a sufficient receipt for them (r/). Before pro- 
 bate also he may pay debts (A) ; and assent to (z), or, it is pre- 
 sumed, pay legacies ; dispose of the testator's personal estate (j), 
 as leaseholds for years (A) ; and exercise many other parts of his 
 duty (/). 
 
 In Allen v. Dimdas^ where a debtor to a person, who died 
 intestate, paid his debt to one, who had obtained probate of a 
 forged will, and which will and probate were afterwards annulled 
 by the Prerogative Court of Canterbury, it was decided, that 
 the administrator of the intestate could not support an action 
 to compel the debtor to pay his money a second time ; a decision 
 which the Court grounded on the circumstances, that the pro- 
 bate was the judicial act of a Court having competent jurisdic- 
 tion, and that, therefore, the money was paid to a person, who 
 had at the time a legal authority to receive it [m). And in a late 
 case, in which, on the discovery of a second will, the probate of 
 an earlier will was revoked, and a probate of the second will 
 obtained, it seems to be admitted, that a creditor would be pro- 
 tected, who had, while the first probate was unrepealed, paid a 
 debt to him, by whom that probate was irregularly obtained {n). 
 Although an executor may before probate sell his testator's per- 
 sonal property, yet to prove, in a Court of Law, the executor's 
 title to sell, it is not sufficient to offer the will in evidence, but it 
 is necessary to produce the probate of it (o). 
 
 (/) Anon. 3 Dyer, 367 a., Ca. 39 ; 
 The King v. The Inhabitants of Stone, 6 
 Durn. & E. 295. 
 
 (g) 9 Co. 38 a. ; 11 Mod. 41 ; 1 Salk. 
 301, 306; 1 Atk. 461} 2 Atk. 285; 
 Stokes V. Porter, Mo. 14. 
 
 (ft) Wolfe V. Heydon, Hutt. 31 ; 
 Wangford v. Wangford, 11 Mod. 41 — 
 Wentw. Off. Ex. ch. iii., 14th ed. p. 81. 
 
 (i) 1 Salk. 301 ; Wentw. Off. Ex. ch. 
 iii., 14th ed. p. 82; Anon.2 Freem. 23. 
 
 (j) Plowd. 280 ; 1 Salk. 301 ; 1 P. 
 W. 768; 3 Atk. 239; Pinney v. Pin- 
 ney, 8 Barn. & C. 335. See also 2 Ball 
 & B. 492. 
 
 (k) I Atk. 461 ; 3 Atk. 239. 
 
 (/) 5 Co. 28 a.; 1 Salk. 301, 302, 
 307. Generally on acts that may be 
 done before probate, see Wentw. Off. 
 Ex. ch. iii., and 11 Vin, Abr. 202—205. 
 
 (to) 3 Durn. & E. 125, which over- 
 rules Grevesv. Weigham, 1 Rol. Abr. 919, 
 and Anon. Com. 150. " The case in 
 Com. seems to be grounded on a false 
 principle, namely, that the probate of a 
 will gives no authority to the executor." 
 By Grose, J., 3 Durn. & E. 132. 
 
 (n) Woolley v. Clark, 5 Barn. & Aid. 
 746. 
 
 (o) Pinney \. Pinney, 8 Barn. & C. 
 335.
 
 S. II.] 
 
 475 
 
 SECTION II. 
 
 OF AN executor's POWER, AT LAW AND IN EQUITV, OVER 
 
 ASSETS.. 
 
 Immediately on the death of the testator (jy), and conse- 
 quently before the will is proved (</), the executor is, for the 
 purpose of enabling him to execute his trust (r), as to pay the 
 testator's debts (s), empowered by his office to dispose of the 
 testator's personal estate {t), as by sale {u), and, in a great 
 variety of cases, by mortgage {v), or pledge {to). And if more 
 than one executor is appointed, each is, independently of the rest, 
 invested with the like power, and in consequence may exercise 
 it by himself alone, and without the concurrence of any other 
 executor of the will {x). 
 
 On a sale of assets by an executor, the purchaser is, gene- 
 
 (p) 4 Durn. & E. 644 ; 5 Barn. & Aid, 
 746. 
 
 (9) Mead V. Lord Orrery, 3 Atk, 239. 
 
 (r) 4 Uurn. & E. 644 ; 17 Ves. 154. 
 
 (s) 4 Durn. & E. 644 ; 2 P. W. 148, 
 149. 
 
 (0 4 Durn. & E. 644. 
 
 (w) 2 P. W. 148, 149 ; Barn. Ch 
 Rep. 81 ; 1 West Cas. T. Hardw. 497 
 1 Atk. 463; 17 Ves. 154. 
 
 (v) Humble v. Bill, 2 Vern. 444 
 Savage V. Humble, S. C, 3 Bro. P. C 
 ed. Toral. 5 ; Mead v. Lord Orrery, 3 
 Atk. 235, 240 ; Scott v. Tyler, 2 Dick 
 725 ; Bonney v. Ridgard, 1 Cox, 145, 
 148; Watkins v. Cheek, 2 Sim. & St 
 205. See Andrew v. Wrigley, 4 Bro, 
 C. C. 125, 138. 
 
 (w) 2 Dick. 725 ; 17 Ves. 154, 159 
 4 Madd. 357. 
 
 (x) Anon. 1 Dyer, 23 b., Ca. 146 ; 
 Pannel v.Fenn, Cro. Eliz. 347 ; Kelsock, 
 or Kelsick, v. Nicholson, ib. 478, 496, 
 
 2 Rol. Abr. 46 ; Bacon v. Bell, Toth. 87 ; 
 Fair V. Newman, 4 Durn. & E. 632 ; 
 Hudson V. Hudson, 1 Atk. 460 ; Jacomb 
 V. Harwood, 2 Ves. 267, 268 ; Scott v. 
 Tyler, 2 Dick. 712, 725, cited 14 Ves. 
 360 ; M'Leod v. Drummond, 14 Ves. 
 354, 355. On a similar power in the 
 case of administrators, see Hudson v. 
 Hudson, 1 Atk. 460, 1 West Cas. T. 
 Hardw. 155, and Jacomb v. Harwood, 2 
 Ves. 267, 268, and Willand, or Willan, v. 
 Fenn, there cited, and, in 1 West Cas. 
 T. Hardw. 159 n., stated from Mr. Ser- 
 jeant Hill's Viner. See also Shepp. 
 Touchst. 484, 485. Sir VV. Blackstone, 
 speaking of the office and duty of execu- 
 tors and administrators, says, — '* These 
 in general are very much the same in 
 both executors and administrators ; ex- 
 cepting, first, that the executor is bound to 
 perform a will, which an administrator is 
 not, unless where a testament is annexed 
 to his administration, and then he differs
 
 476 or AN executor's power over assets, [ch. xxxvii. 
 
 rally speaking, absolved from all inquiry with respect to debts or 
 legacies (3/), and may presume the sale is made for the payment 
 of debts, or other purpose, for which the law gives an executor 
 the power of sale {z) ; and, also, in general cases, the like 
 presumption may be made, where the alienation is by mort- 
 gage {a), or deposit {h), or pledge (c). With reference to a 
 mortgage. Sir R. P. Arden has said, " Mortgaging is not the 
 natural way of paying debts, though in some cases it may be 
 the most proper way ; but it would lead to an inquiry as to the 
 circumstance of the testator's estate " (d). On a sale, or other 
 alienation, that may be presumed to be made in performance of 
 the executor's duty, the purchaser, or alienee, is not bound to see 
 to the executor's application of the money (e) ; except, possibly, 
 in some instances of a particular trust created of the personal 
 estate (/"). 
 
 An executor's power to alien assets extends to an equi- 
 table as well as to a legal estate (^) ; and it is of no consequence, 
 
 still less from an executor ; and, secondly, 
 that an executor may do many acts before 
 he proves the will, but an administrator 
 may do nothing till letters of adminis- 
 tration are issued ; for the former derives 
 his power from the will, and not from the 
 probate ; the latter owes his entirely to 
 the appointment of the ordinary." 2 
 Bl. Com. 507. And, to the like eflfect, is 
 the observation of Abbott, C. J., on the 
 difference mentioned, — " There is a mani- 
 fest distinction between the case of an 
 administrator and an executor. An ad- 
 ministrator derives his title wholly from 
 the Ecclesiastical Court. He has none 
 until the letters of administration are 
 granted, and the property of the deceased 
 vests in him only from the time of the 
 grant. An executor, on the other hand, 
 derives his title from the will itself, and 
 the property vests in him from the mo- 
 ment of the testator's death." 5 Barn. 
 
 & Aid. 745. Generally on similarities 
 and distinctions between executor and ad- 
 minstrator, see Wentw. Off. Ex. ch. xxi., 
 and Wankford v. Wankford, 1 Salk. 299. 
 
 (y) 2 Kenyon, pt. 2, p. 58 ; 4 Madd. 
 357 ; 2 Sim. & St. 205 ; Watts, or 
 Mutts, v. Kancie, Toth. 77, 161. 
 
 (:)3 Atk. 240; 17 Ves, 154, 159; 
 4 Madd, 357 ; 2 Sim. & St. 205. 
 
 (a) 3 Atk. 240; 1 Cox, 148; 2 Sim. 
 & St. 205. 
 
 (b) 17 Ves. 159. 
 
 (c) 4 Madd. 357. 
 
 (d) 4 Bro. C. C. 138. 
 
 (e) 1 Cox, 147, 148; 2 Dick. 725; 
 17 Ves. 154 ; 2 Sim. & St. 205 ; Watts, 
 or Mutts, V. Kancie, Toth. 77, 161. 
 
 (/)Barn. Ch.Rep. 81; 17 Ves. 161, 
 162. See also 3 Atk. 239. 
 
 (g) Nugent V. Giffm-d, 1 Atk. 464, 1 
 West Cas. T. Hardw. 497, cited 17 Ves. 
 163 ; Scott v. Tyler, 2 Dick. 712, 2 Bro.
 
 S. II.] OF AN executor's POWER OVER ASSETS. 477 
 
 with reference to this power, whether the testator's personal estate 
 is bequeathed upon a trust, or not (A). 
 
 In Hall V. Hallet, a purchase of assets by an administrator 
 was set aside, and the administrator and his trustee were turned 
 into trustees for the benefit of the intestate's family {i). 
 
 An executor cannot by his will dispose of assets {j). On his 
 death, they devolve to the testator's personal representative {k); 
 who may be, if the executor makes a will, his executor therein 
 named (/), or, if he dies intestate, an administrator de bonis non 
 of the testator (?;«). If on the death of a testator, adminis- 
 tration with his will annexed is granted, when this administrator 
 dies, his executor is not the representative of the first testator, 
 but he, to whom administration de bonis non of the first testator is 
 granted, is his representative {ri). 
 
 In Finney v. Pinney, an executor before probate sold a perso- 
 nal chattel to the plaintiflf ; and, in an action of trover, it was held, 
 that, to prove the title of the plaintiff, it was necessary to produce 
 the probate of the will ; that the production of the will itself was 
 not sufficient for the purpose (o). 
 
 In Franklin v. The Bank of England^ the Court of King's Bench 
 decided, that, under the circumstances of the case, the executor 
 had a right of action against the Bank, for not permitting the 
 transfer by him of a sum of stock, which his testator had specifi- 
 cally bequeathed upon certain trusts, and to which bequest the 
 executor had not assented (p). 
 
 If a lease for years made to A. contains a condition, that A. is 
 not to assign the term without the license of the lessor, it appears 
 that, in this case, the devolution of the term at A.'s death to his 
 
 C. C: 431, cited 14 Ves. 360; M'Leod 
 V. Druvimnnd, 14 Ves. 360. 
 
 (h) 17 Ves. 161. 
 
 (0 1 Cox, 134, 139. 
 
 (j) Wentw. Off. Ex.ch. vii., 14th ed. 
 p. 193 ; 4 Durn. & E. 628. 629 ; Branshy 
 V. Grantham, Plowd. 525. 
 
 (k) Plowd. 525, 526. 
 
 (/) Plowd. 525 ; 1 Atk. 461 ; 2 Bl. 
 
 Com. 506 ; Went. Off. Ex. ch. xx. 
 
 (m) 4 Durn. & E. 628 ; 2 Bl. Com, 
 506. 
 
 (n) CnbbiJge v. Boatwright, 1 Russ. 
 549. 
 
 (o) 8 B. & C, 335. 
 
 (p) 9 B.& C. 156 ; 4 Mann.& Ryl. 
 11. See 5. C, 1 Russ. 575.
 
 478 or AN executor's power over assets, [ch. xxxvii. 
 
 executors is not such an alienation, as will create a forfeiture of 
 the lease ; that the terms of the condition are construed to con- 
 fine the restraint to an assignment by A. himself only ; and that 
 therefore his executors may dispose of the lease, without incur- 
 ring a forfeiture {q). These appear to be the points determined in 
 Seers v. Hind, in which it was a question, whether executors were 
 warranted in disposing of a lease, as assets of the testator, where 
 there was a proviso against alienation by the lessee. Lord 
 Thurlow said, " If A. lets a farm to B., with covenant not to 
 alien, and B. dies, may not his executors dispose of it? I think 
 it has been determined that they may ; and I have always taken 
 it as clear law. It is an alienation by the act of God. I 
 remember Lord Camden entered into the question much in the 
 same way. He took it to be clear law, that an alienation by 
 death could not be a forfeiture. In case of a lease for years to 
 A., it goes to his executor, not by way of limitation, as in the 
 case of a remainder over, &c., but it goes to him as coming in the 
 place of the lessee. I understood it to be well settled, as 1 have 
 stated." And here his Lordship added, " But I do not mean to 
 lay down, that a man may not by a clause in his will provide, 
 that, in case of a devolution to executors, it shall not be alienable 
 by them; but it must be very special for that purpose " (?•). 
 
 It appears, however, that the condition of a lease for years 
 may be broken by an executor's, or, as the case may be, 
 administrator's assignment of the term, if the condition expressly 
 extends to executors or administrators. Sir William More's 
 case is thus reported, — " A lease is made for years, upon con- 
 dition that the lessee, his executors, or assigns, shall not alien 
 without assent of the lessor. The lessee dieth intestate, and 
 the ordinary grants administration to J. S., who assigneth 
 without license. It was adjudged that the condition was broken, 
 for he is an assignee in law" {s). And in agreement with this 
 
 (q) Parry v. Harbert, 1 Dyer, 45 b. ; 
 Anon. ib. 65 b, Ca. 8. See also 2 
 Burn. & E. 429 ; and Cox v. Brown, 1 
 Ch. Rep. 170. 
 
 (r) 1 Ves. jun. 295. See also Cox v 
 
 Brflwn, 1 Ch. Rep. 170. 
 
 («) Cro. Eliz. 26, and apparently cited 
 in Thornhil v. King, ib. 757. See Moor 
 V. Farrand, 1 Leun. 3.
 
 S. II.] OF AN executor's POWER OVER ASSETS. 479 
 
 case seems to be Boe v. Harrison, where a lease for years contained 
 a proviso, that in case the lessee, his executors, or administrators, 
 should at any time during the term set, let, or assign over the 
 premises, without the license of the lessor, the lease should be 
 void, and it should be lawful for the lessor, his executors, admi- 
 nistrators, and assigns, to enter. The administratrix of the lessee 
 having underlet the premises for a part of the term, the condition 
 was held to be broken ; and a devisee of the lessor recovered 
 possession by ejectment [t). On the part of the defendant, the ad- 
 ministratrix, it was argued, that, in order to determine this under- 
 lease to be a forfeiture, " the Court must decide, that a proviso 
 not to assign, on pain of forfeiting the lease, binds the execu- 
 tors and administrators of the lessee. But in the case of Doe 
 dem. Lord Stanhope v. Skeggs, the Court were equally divided 
 upon that question. And there are strong reasons why an assign- 
 ment by an executor or administrator should not be considered as 
 a forfeiture, because in many cases it may be absolutely neces- 
 sary, for the purpose of paying the debts of the testator or intes- 
 tate" (?^). But on this argument it was observed by Ashhurst, J., — 
 " It was objected that this proviso not to assign does not extend 
 to persons, who come into possession by operation of law, but 
 only to prevent an assignment in fact by the party ; and the case 
 oi Lord Stanhope v. Skeggs was cited. But there the term was 
 taken in execution, and it does not apply to this case. Here it is 
 impossible to argue against the express stipulation of the parties; 
 there is no doubt but that it was competent to the parties to bind 
 their representatives ; and the covenant is, that neither the 
 lessee, nor his executors, nor administrators, shall let, &c. There- 
 fore, for the purpose of this assignment, this term never could be 
 considered as legal assets in their hands. If indeed the word 
 ' executors ' had not been inserted in the proviso, but it had been 
 confined to an assignment by the lessee himself, it might have 
 
 (0 2 Burn. & E. 425. See North- \ (u) 2 Durn. & E. 428. 
 cote V. Duke, 2 Eden, 319, Amb. 511.
 
 480 OF AN executor's rOWER OVER ASSISTS. [CH. XXXVII. 
 
 been doubted whether the restriction would have extended to the 
 present case" (v). 
 
 The condition of a lease for years will, it appears, be broken 
 by the lessee's bequest of the term, if, among other instances of 
 such bequest (w), the condition is, that " it shall not be lawful 
 for the lessee to alien his term, without the assent of the 
 lessor " (:r) : that " the lessee shall not devise the land, or assign 
 over his term " (y) : " if the lessee, his execucors, or assignees, 
 do demise the lands for more than from year to year, that 
 then the lease shall cease and be void" (z). A case is thus re- 
 ported : — " A lease for years was upon condition, that the 
 lessee should not grant over the land at will, or otherwise. 
 He devised the same to his executors, who accepted the same 
 only as executors, and not as devisees. And yet it was the 
 opinion of the Justices, that the condition was broken, because 
 he had done as much as lay in him to have devised the land" (a). 
 But, according to another case, — " Lease was made to B., 
 upon condition that he should not assign his term, wdthout the 
 assent of Lord W. ; B. devised his term to his son and wife, and 
 made them his executors ; and in that case it was said, that if they 
 had not been executors, the condition would have been broken" (/>). 
 And it appears to have been agreed on another occasion, — " If 
 lessee for years, on condition not to alien without the assent of 
 the lessor, makes his executor, and devises it [the lease] to him ; 
 and the executor enters generally, the testator not being in debt 
 to any one, this is a forfeiture of the condition" (c). From the 
 authorities that have been mentioned, it appears that in some 
 instances a condition not to assign a lease may be broken, as 
 
 (v) 2 Durn, & E. 429. See also ib. 430. 
 On Doe dem. Lord Stanhope v. Skeggs, 
 see, farther, ib. 134, 135, 138, 140. 
 
 (w) Parry v. Harbert, 1 Dyer, 45 b ; 
 Horton v. Horton, Cro. Jac. 74, 1 Rol. 
 Abr. 428 V. pi. 1, 2, and 844, L. pi. 3. 
 
 (x) Knight V. Mory, Cro. Eliz. 60. 
 
 (y) Barry v. Stanton, Cro. Eliz. 330. 
 
 (z) Berruv. Taunton, Cro. Eliz. 331. 
 
 (o) Anon. 3 Leon. 67 ; Parry v. 
 Herbert, S, C, 4 Leon. 5. 
 
 (ft) Lord Windsor v. Burry, 1 Dyer, 
 45, b., n. (3). 
 
 (c) Dumpere v. Symms, 1 Rol. Abr. 
 429. See Dumpor's case, or Dwnpor, 
 or Dtimper, v. Symms, 4 Co. 119 b, Cro. 
 Eliz. 815.
 
 s. II.] or AN executor's power over assets. 481 
 
 well by tlie lessee's devise of it to his executor, as by his devise 
 of it to any other person. But from the two authorities last 
 transcribed it may also perhaps be collected, that the condition 
 will not be broken if the executor enters as executor, and not 
 as devisee, and the devolution of the lease to the executor, and 
 his power to dispose of it, are necessary for the payment of the 
 lessee's debts. Yet this conclusion is opposed, it should be 
 mentioned, by a farther case, in which it seems to have been 
 held by three Justices, — If a lease for years be on condition not 
 to devise it to any person, and the lessee devises the term to his 
 executor for payment of his debts, " although this devise is void, 
 because the law would have vested it in him for the same pur- 
 pose, yet inasmuch as he has endeavoured to pass it by devise, 
 this is a forfeiture" (d). A lease contained a proviso for re-entry 
 on breach of covenant, and a covenant by the tenant, that he, 
 his executors, administrators, or assigns, would not assign, except 
 by his or their will, without the license of the lessor. The 
 lessee devised the lease to his widow, and appointed her and 
 others his executors ; and all his executors made an assignment of 
 the lease. And on this case an opinion seems to have been ex- 
 pressed, that the assignment by the executors, not made by will, 
 fell within the covenant, and not within the exception ; that the 
 lessee's assignment by will was good, and the assignment by the 
 executors bad (e). 
 
 It remains to notice the following case, which has occurred 
 on relief in equity against an executor's forfeiture of a lease. 
 In Northcote v. Duke, where a lease for years, determinable on 
 lives, contained a clause of re-entry, if the lessee, his executors, 
 administrators, or assigns, should let the premises for any longer 
 term than seven years, without the license of the lessor ; and the 
 plaintiff being entitled under the will of his father, and being his 
 executor, made a lease for fourteen years without license ; and the 
 lessor threatening to bring an ejectment. Lord Northington, on 
 the plaintiff's bill to be quieted in possession, and to restrain the 
 
 (d) Burton v. Horton, 1 Rol. Abr. | (e) L/ovrf v. Ctispe, 5 Taunt. 249, 254. 
 428, V. pi. 2. I
 
 482 OF TAKING ASSETS IN EXECUTION EOll [CH. XXXVII. 
 
 defendant from proceeding at law, expressed an opinion, that a 
 Court of Equity might afford him this relief; and a principal 
 ground of this opinion seems to be, that the executor had not 
 notice of the condition ; his Lordship saying, " the executor, 
 who made this lease for fourteen years, took the general personal 
 estate under the will, without knowing the particular circum- 
 stances relative to the lease of this estate. The lease itself ap- 
 pears to have been in the hands of another person ; in this state 
 of ignorance, he grants this lease for fourteen years." "The 
 plaintiff taking the estate as executor is like the case of an 
 heir taking a freehold, and ought to have notice of the condi- 
 tion, in order to affect his interest by way of forfeiture for breach 
 of the condition "(/*). 
 
 SECTION III. 
 
 OF TAKING ASSETS IN EXECUTION FOR THE PRIVATE DEBT 
 OF THE EXECUTOR. 
 
 In Whale v. Booth, a creditor of a testator was, in a Court of 
 Law, not allowed to follow assets, which a creditor of the ex- 
 ecutors had, under a writ of Ji. fa., levied for satisfaction of his 
 debt. The Court relied on the circumstances, — that the testator 
 died three years before this transaction, and during all that time 
 no demand was made by the testator's creditor ; that such dis- 
 posal of the assets was by execution and bill of sale ; that the 
 executors, by being parties to the bill of sale, assented to it; 
 and that the bill so assented to was equal to a purchase, and the 
 same as an alienation by the executors. And this decision was 
 made, notwithstanding it was stated the creditor of the executor 
 knew the goods were the goods of the testator ; the Court con- 
 sidering that this circumstance did not make a fraud, as it was not 
 stated such creditor knew the testator's debts were unpaid {fj). 
 
 (/) 2 Eden. 319, Arab. 511. See 
 B-oe V. Harrison, 2 Durn. & E. 425. And 
 on relief in equity against an executor's 
 forfeiture of a lease, see, farther, Cox v. 
 Brmvn, 1 Ch. Rep. 170. 
 
 (g) 4Durn. &E. 625, n., 4 Doug, 
 ed. Frere & R. 36 ; cited 4 Durn. & E. 
 632, 641, 642, 645, 649, 650, 7 Ves. 
 168, 17 Ves, 154, 165, and Coop. 267.
 
 S. III.] THE PRIVATE DEBT OF THE EXECUTOR. 483 
 
 In Tarr v. Neicman, a creditor of the husband of an executrix 
 obtained judgment against him ; and, for satisfaction of this debt, 
 the sheriff under a writ oiji.fa. seized certain goods of the wife's 
 testator. But before the sheriif sold such goods, and com- 
 pleted the execution, a creditor of the testator obtained judgment 
 against the executrix; and, to levy this debt of the testator, 
 delivered ay?. ya. to the sheriff; and he having returned nulla 
 bona, or that there were not any goods of the testator in the 
 hands of the husband and wife to be administered, it was decided 
 that the testator's creditor might support an action against him 
 for a false return. And the effect of this determination seems to 
 be, that, upon the like facts as there occurred, and perhaps gene- 
 rally speaking, the assets of a testator cannot be seized in satis- 
 faction of a private debt of the executor (A). But Farr v. 
 Netvman is not to be understood to create a universal rule, that 
 the goods of a testator in the hands of his executor cannot be 
 seized in execution for a debt due from the executor in his own 
 right (/). In Mot/ v. jKoj/, where an executor renewed a lease 
 for years of his testator, and by which renewal it became 
 assets in equity, although not at law, and afterwards a credi- 
 tor of the executor seized this leasehold in execution for the 
 executor's own debt, a Court of Equity, on a bill filed by a credi- 
 tor of the testator, refused to interfere with the right at law, and 
 to restrain by injunction a sale under the execution; the Court 
 relying on the particular circumstances of the case, and especially 
 on the length of time, between six and seven years, during 
 which the plaintiff had forborne to claim his debt ; he lying by, 
 and not ever making any claim, until the creditor of the execu- 
 tor started up (j). 
 
 (/i) 4 Durn. & E. 621 ; cited 17 Ves. 
 168, 169, and Coop. 267. 
 
 (0 Coop. 267. 
 (.;• ) Ibid. 264. 
 
 I 1 2
 
 484 
 
 [CH. XXXVII. 
 
 SECTION IV. 
 
 OF FOLLOWING ASSETS ; AND OF THE INTERFERENCE OF EQUITY 
 AGAINST AN EXECUTOR's DISPOSAL OF THEM. 
 
 1. — When Assets are aliened by the Executor. 
 2. — When Money is by the Executor laid out in a purchase 
 of Land or other Property. 
 
 1. — When, for a valuable consideration, an executor disposes of 
 the personal estate of the testator, and, as against the testator's 
 creditors, this disposition is effected without fraud or collusion (k) 
 between the executor and him to whom such disposition is 
 made ; at law, this disposal of the assets is valid, and a creditor of 
 the testator cannot follow them (Z). Mr. Justice Buller has said, 
 " At law, there is no such thing as a fiiJid in the hands of an 
 executor being the debtor ; but the person of the executor, in 
 respect of the assets which he has in his hands, is the debtor" (m). 
 And to the like effect Lord Hardwicke has stated, — " By law, 
 undoubtedly, the executor has power to dispose of and alien 
 all the assets of the testator ; and when he has done so, no credi- 
 tor of the testator can, in point of law, follow those assets ; for 
 the demand is not at law a lien or charge upon the assets, but is 
 a demand against the executor, in right of the testator, in respect 
 of the assets, and so is a personal demand" (??). And on another 
 occasion his Lordship observed, — " Creditors have a demand 
 against an executor for the whole assets of the testator, after the 
 account is made up, but not by way of specific lien on the 
 assets " (o). And to these opinions Lord Eldon has subscribed 
 
 (/c) 4 Duin. & E. 644 ; 1 Atk. 463 ; 
 3 Atk. 237. 
 
 (/) 4 Durn. & E. 632, 644 ; 1 Atk. 
 463 ; 1 West Cas. T. Hardw. 496, 497 ; 
 3 Atk. 237. Whuk v. Booth, 4 Durn. & 
 K, 625. n., 4 Doug. ed. Frere & R. 36 ; 
 
 cited 4 Durn. & E, 632, 641, 649, and 
 17 Ves. 154 and 165. 
 
 (m) 4 Durn. & E. 637. 
 
 (n) 1 West Cas. T. Hardw. 496, 497; 
 1 Atk. 463 ; 2 Ves. 269. 
 
 (o) 3 Atk. 238. See also 1 Ves. 283.
 
 S. IV.] OF FOLLOWING ASSETS, &C. 485 
 
 by saying, — " It is certainly true, as laid down in Nugent v. 
 Gifford {p), that a creditor has no lien upon the assets" {q). 
 
 When he, to whom, for a valuable consideration, an executor 
 has disposed of assets, cannot at law be dispossessed of them, a 
 person, who seeks in a Court of Equity to follow them, must, to 
 enable this Court to interfere, disclose some sufficient equity (r). 
 To this purpose, with reference to the particular assignment by 
 the executors in Mead v. Lord Orrery, Lord Hardwicke said, — 
 " If good at law, the question is, whether there are sufficient 
 grounds to set it aside in equity, so as to enable the residuary 
 legatee to follow the assets into the hands of the assignees" {s). 
 And, to the like effect, it seems to be said by Sir W. Grant in 
 M^Leod V. Drummond, where executors had pledged to the defen- 
 dants certain bonds of the testator, — " I presume that the plaintiffs 
 have no legal means, by which they can compel the defendants 
 to deliver to them the possession of the bonds, or to make com- 
 pensation by damages for their value. If the plaintiffs have any 
 legal remedy, it is unnecessary for them to come here ; as if the 
 defendants have obtained possession of the bonds by such a title, 
 that they have no right at law to retain the possession, the whole 
 amount of the sum secured by those bonds might be recovered in 
 an action of detinue or trover. If, on the other hand, the defen- 
 dants have the legal possession, of which they could not be de- 
 prived at law, this Court will not, except upon some equitable 
 ground, take it from them. Mere defect of title is not a ground 
 for the interference of this Court " {t). 
 
 An equity to follow assets in the hands of an alienee, who can- 
 not at law be dispossessed of them, depends on the particular 
 circumstances of each case {u). There seems to be no " general 
 
 (p) 1 Atk. 463. 
 
 (g) 17 Ves. 163, Lord Eldon ap- 
 pears to have inclined to the opinion, that, 
 after all the testator's debts have been 
 paid, the residuary legatee, who can call 
 for a transfer in equity, has in equity a 
 lien on the residue. 17 Ves. 163, 169, 
 170, See 3 Atk. 238. 
 
 (r) 2 P. W. 149 J Amb. ed. Blunt, 
 Append. 797 ; 1 Ves. 215 ; 2 Dick. 724, 
 
 725 ; 4 Ves. 42, 43; 17 Ves. 167. Gene- 
 rally on following assets, see Nicholson 
 V. Sherman, 1 Ch. Cas. 57, 2 Freem. 
 181 ; Stiddolph v. Leigh, 2 Vern. 75 ; 
 Hawkins v. Day, Amb. ed Blunt, 804 ; 
 Ex parte Morton, 5 Ves. 449. 
 
 (s) 3 Atk. 240. 
 
 (0 14 Ves. 359. 
 
 (u) Taner v. Ivie, 2 Ves. 469, cited 17 
 Ves. 164.
 
 486 OF FOLLOWING ASSETS [CH. XXXVU. 
 
 principle that an assignee or person taking security of an estate 
 from an executor is not to be answerable" (v); and, on the other 
 hand, there appears to be no " general rule, that if an executor 
 sell a term for years, or a chattel, for money owing by himself, 
 that such sale shall be bad, or that chattels shall be affected, in 
 the hands of a purchaser, with debts of the testator" (w). 
 
 Particular circumstances did not furnish a sufficient equity to 
 enable a Court of Equity, — in Ewer v. Corbet, to allow a specific 
 legatee of a term of years to follow the term sold by the execu- 
 tor; in other words, to decree the purchaser to be a trustee for 
 the legatee [x) : in Burling v. Stonard, to allow a general legatee 
 to follow a term of years sold by the executrix (y) : in Nugent v. 
 Gifford, to allow creditors under a marriage settlement to follow 
 a sum of money, that, being due on a mortgage for years made in 
 trust for the testator, the executor assigned for better securing 
 certain bond debts due from the executor personally (z) : in 
 Elliot V. Merryman, to allow creditors of the testator to follow 
 terms of years sold by the executor (a) : in Mead v. Lord Orrery, 
 to allow certain residuary legatees to follow a mortgage assigned 
 by executors ; in other words, to relieve them against such 
 assignment, and to compel an account; the assignment having 
 been made as a security for a receivership, to which one of the 
 executors had been appointed {h) : in Taner v. Ivie, to charge 
 and make answerable a party, to whom an executor had assigned 
 a mortgage (c) : in Bonney v. Ridgard, to allow specific legatees 
 of leaseholds for years to follow them in the possession of a party, 
 to whom the executrix had mortgaged them {d) : in M'Leod v. 
 
 (v)2 Ves. 469. 
 
 (w) 1 West Cas. T. Hardw. 498. 
 
 (x) 2 P. W. 148. See also Langley v. 
 Earl of Oxford, Amb. ed. Blunt, Ap- 
 pend. 797. These authorities accord 
 with the judgment delivered in Chancery 
 in Humble v. Bill, 2 Vern. 444 ; Savage 
 V. Humble, S. C, 3 Bro. P. C. ed. Toml. 
 5, by which the decree ia Chancery 
 was reversed in the House of Lords ; on 
 which case, see 3 Atk.241, 4 Bro. C. C 
 137, and 17 Ves. 160, 161. 
 
 (.J/) 2 P. W. 150. 
 
 (:) 1 West Cas T. Hardw. 494, 1 Atk. 
 463, 2 Ves. 269; cited 3 Atk. 241, 1 
 Ves. 215, 2 Ves. 469, 4 Bro. C. C. 
 136, 7 Ves. 166, and 17 Ves. 163, 164. 
 
 (a) Barn. Oh. Rep. 78, 81, 83, 2 Atk. 
 41, cited 1 Cox, 147. 
 
 (6) 3 Atk. 235; cited 1 Cox, 148, 
 4 Bro. C. C. 136, 7 Ves. 167, and 17 
 Ves. 164. 
 
 (c) 2 Ves. 466. 
 
 {<!) 1 Cox, 145, 148.
 
 «. IV.] ALIENED BY AN EXECUTOR. 487 
 
 Drummond, to decree bankers to deliver to two executors, by 
 whom the bill was filed, certain bonds which R. and O., two 
 co-executors, had by deposit pledged to the bankers, by way of 
 security for money, which, at the time of the deposit, they 
 advanced to R.andO. (e). 
 
 Particular circumstances did furnish a sufficient equity to enable 
 a Court of Equity, — in Crane v. Drake, to decree a creditor of 
 the testator to follow a leasehold estate sold by the executor {f): 
 in Scott V. Tyler, to decree .bankers to deliver to a legatee certain 
 bonds specifically bequeathed to her, and which an executrix had 
 by deposit, and without assignment, pledged to the bankers, as a 
 security for her own private debt, namely, monies by them 
 already advanced, or to be advanced, to her {g) ; a suit which, 
 however, ended by compromise {h): in Hill v. Simpson, to per- 
 mit general pecuniary legatees to follow certain stock or public 
 funds, which an executor of an executrix of the original testator 
 had transferred to his the executor's bankers, as a security for 
 his own private debt, that is, for such sums as he then owed, or 
 might afterwards owe, them {i) : in Doivnes v. Poioer, to restrain 
 the defendants from proceeding at law against the plaintiffs, for 
 the recovery of the amount of certain promissory notes; the 
 circumstances of the case being, that on a purchase [j ) by an 
 executrix of the stock in trade of the testator, J. C, she and her 
 brother passed the notes in question, payable to M. C. as execu- 
 tor of J. C. ; and it was at the same time agreed, that the notes 
 should be deposited with M. C, in trust for the children of the 
 testator, pursuant to his will ; and these notes, so made payable 
 to M. C. as executor, M. C. afterwards lodged with an agent of 
 the defendants, P. & Co., as a security for cash to be advanced 
 
 (e) 14 Ves. 353, 17 Ves. 152. 
 
 (/) 2 Vern. 616; cited 1 Atk. 464, 1 
 West Cas. T. Hardw. 498. 499, 3 Atk. 
 240, 4 Bro. C. C. 137, and 17 Ves. 161. 
 162. The Anonymous case noticed Prec. 
 Ch. 434, and cited 4 Bro. C. C. 137, and 
 17 Ves. 162, is probably Crane v. Drake, 
 before Lord Cowper in 1708 (2 Vein. 
 3rd ed. 616, n.), and who, when in 1715 
 
 he decided Pagetl v. Hoskins, Prec. Ch. 
 431, was a second time Chancellor. 
 
 (g) 2 Dick. 712, 715, 724, 2 Bro. C. 
 C. 431, 487 ; cited 7 Ves. 169, 14 Ves. 
 360, 361, and 17 Ves. 166—168. 
 
 (/O 2 Bro. C. C. 489; 17 Ves. 166. 
 
 (0 7 Ves. 152 ; cited 13 Ves. 104, 
 14 Ves. 354, 361, and 17 Ves. 169. 
 
 (J) See Hall v. Hallet, 1 Cox, 134, 139.
 
 488 OF FOLLOWING ASSETS [CH. XXXVll. 
 
 by them to M. C, for a purpose totally foreign to the trusts he 
 was to discharge, namely, for the purpose of extending the trade 
 he was carrying on on his own account (k). 
 
 Particular circumstances did also furnish a sufficient equity to 
 enable a Court of Equity,— in Bonney v. Ridgard, to allow specific 
 legatees of leaseholds for years to follow them in the possession 
 of a purchaser from the executrix ; that is, to turn the purchaser 
 into a trustee for the legatees ; but in this case the Court, by 
 analogy to the Statute of Limitations, refused relief, on the 
 ground of the length of time which had elapsed between the 
 plaintiffs' right occurring, and their prosecuting that right (/) : 
 and in Andretv v. Wiigley, to allow specific legatees of leaseholds 
 for years to follow them in the possession of purchasers from an 
 administratrix with the will annexed ; but in this instance also 
 the Court refused relief, by reason of length of time ; as here 
 the plaintiffs, who were legatees after the death of the adminis- 
 tratrix, to whom the premises were bequeathed for life, did not 
 apply for relief, until after the death of the administratrix, and 
 the lapse of twenty years from the time of the sale [m). 
 
 On the interposition of a Court of Equity against an executor's 
 alienation of assets, the cases and authorities appear to warrant 
 these general conclusions; — that the Court will not interfere merely 
 on the ground, in the case of a sale or mortgage, that the purchaser 
 or mortgagee had notice of the will {n), or that the property 
 was assets (o), or was specifically bequeathed {p) : where the 
 alienee has, for a valuable consideration, gained the legal 
 estate, it must be a very powerful equity to take it from him {q) : 
 where the alienation is made for the executor's own benefit, 
 an argument in support of it is, that the executor was the sole 
 residuary legatee (r), or one of several residuary legatees {s) ; 
 
 (k) 2 Ball &B. 491. 
 
 (/) 1 Cox, 145; also stated 4 Bro. C. 
 C. 130; and cited ih. 138, and 17 Ves. 
 165. 
 
 (to) 4 Bro. C. C. 125. 
 
 (n) 2 P. W^. 149; 3 Atk. 238; 4 
 Madd. 356. 
 
 (o) 1 Atk. 464 ; 1 West Cas. T. 
 
 Hardw. 497, 498. 
 
 (p) 2 P. W. 149 ; Amb. ed. Blunt, 
 Append. 797 ; 4 Madd. 357. 
 
 (q) 3 Atk, 238. 
 
 (r) 4 Bro. C. C. 136 ; 17 Ves. 163, 
 164. 
 
 (s) 3 Atk. 241 ; 4 Bro. C. C. 136, 
 137; 7 Ves 167; 17 Ves. 164.
 
 S. IV.] ALIENED BY AN EXECUTOR. 489 
 
 and, if there are more executors than one, that they all joined in 
 the alienation, although one only was interested in it (^) ; and, 
 where such alienation is made by an executor and residuary lega- 
 tee, and some time, as more than two years, after the testator's 
 death, a farther argument in support of it may be drawn from a 
 supposition, that the executor might in that period, by advances 
 on account of the trust, have entitled himself to reimbursement 
 out of the assets (u) : where the property is pledged by the 
 executor, an argument to sustain the transaction is, that the 
 pledge was made, not for a debt antecedently due by the execu- 
 tor, but for money advanced at the time of the pledge (u) : with 
 reference to a pledge, a Court of Equity excludes the broad and 
 general proposition, that no man can advance money upon a bond, 
 or other chose in action, of the testator, without implying a frau- 
 dulent collusion with the executor to misapply the assets (iv) : 
 the remedy of a legatee, who is deprived of his legacy by a 
 wrongful alienation by the executor, is against the executor 
 himself (x). 
 
 A cause of the interference of equity is some fraud or collusion 
 between the executor and alienee (y) ; as, if the alienee is " a 
 party and consenting to, and contriving, a devastavit" {z); or if, 
 in the case of a sale, it is made at a nominal price (a), or fraudu- 
 lent undervalue {b). And in some cases, perhaps, a cause for the 
 interposition of equity may be, a particular trust, on which the 
 property is bequeathed by the testator (e). And, at least in some 
 instances, an argument for the like interference, in favour of a 
 
 (0 3 Atk. 241, 242, 244; 4 Bro. C. 
 C. 137 ; 7 A'es. 167. 
 
 («) 7 Ves, 166, 167, 168; 14 Ves. 
 363. See 17 Ves. 155, 156. 
 
 (v) 2 Dick. 725; 14 Ves. 355, 361, 
 362; 17 Ves. 155, 170; 4 Madd. 357, 
 358. 
 
 (w) 14 Ves. 363. 
 
 (x) 2 Vern. 445 ; 2 P. W, 149 ; 7 
 Ves. 165. 
 
 (y) 1 West Cas. T. Hardw. 497 ; 1 
 Atk. 463 ; 1 Cox, 147 ; 2 Dick. 725 ; 
 
 17 Ves. 167 ; 3 Atk. 240; 2 Ves. 268, 
 269; Barn. Ch. Rep. 81. 
 
 (s) Crane v. Drake, 2 Vern. 616, 18 
 Vin. Abr. 121, in marg. ; cited 1 West 
 Cas. T. Hardw. 498, 3 Atk. 240, and 17 
 Ves. 162. 
 
 (a) 2 Dick. 725 ; 17 Ves. 167. 
 
 (b) 2 P.W. 149; Amb. ed. Blunt, 
 Append. 797; 2 Dick. 725; 17 Ves. 
 167. 
 
 (c) Barn. Ch. Rep. 81 ; 3 Atk. 239; 
 17 Ves. 161, 162.
 
 490 OF FOLLOWING ASSETS [CH. XXXVII. 
 
 specific legatee, is, that the sale was to one, who had notice there 
 were no debts, or that all the debts were paid(c?). 
 
 In the case of a pledge of a personal chattel, farther arguments 
 for the interposition of equity are, — that the pawnee must know 
 it is the property of the testator (e) : that he took it as a pledge 
 for the private debt of the executor (/"), or debt incurred in a 
 transaction having no reference to the testator's affairs (f/) : that 
 he took it as a pledge, not for money then lent, or advanced at 
 the time, but as a pledge for a debt contracted by the executor 
 before (A), or by way of security for future advances {i) : that 
 the pledge was made by deposit only, and not by assignment of 
 the chattel (j) : that it was made within a very short time, as in a 
 month, after the testator's death {h) : that the pawnee acted on 
 the faith of the executor's representation, by which he was induced 
 to believe, that by the will the property pledged was actually the 
 executor's own, and that the pawnee was guilty of gross negli- 
 gence in not looking at the will, instead of taking the executor's 
 word as to his right under it (/). 
 
 As the result of the authorities. Sir John Leach has stated, — 
 " Every person, who acquires personal assets by a breach of trust 
 or devastavit in the executor, is responsible to those who are 
 entitled under the will, if he is a party to the breach of trust. 
 Generally speaking, he does not become a party to the breach of 
 trust, by buying, or receiving as a pledge, for money advanced to 
 the executor at the time, any part of the personal assets, whether 
 specifically given by the will or otherwise, because this sale, or 
 pledge, is held to be, prima facie, consistent with the duty of an 
 executor. Generally speaking, he does become a party to the 
 breach of trust, by buying, or receiving in pledge, any part of the 
 
 (d) 2 P. W. 149 ; Amb. ed. Blunt, 
 Append. 797; 17 Ves. 162. 
 
 (e) 2 Dick. 725 ; 7 Ves. 169 ; 14 
 Ves. 362; 17 Ves. 168. 
 
 (/) 2 Dick. 726; 7 Ves. 168; 14 
 Ves. 354. 
 
 (g) 2 Dick. 725, 
 . {h) 2 Dick. 725; 7 Ves. 168; 14 
 Ves. 354, 355, 361, 362; 17 Ves. 155, 
 
 170 ; 4 Madd. 358. 
 
 (0 7 Ves. 153, 168; 14 Ves. 354 
 17 Ves. 170. 
 
 (,/) 2 Dick. 725, 726; 14 Ves. 360 
 17 Ves. 167. 
 
 (k) 7 Ves. 168; 14 Ves. 354, 361 
 17 Ves. 170. 
 
 (/) 7 Ves. 170; 14 Ves. 361.
 
 S. IV.] ALIENED BY AN EXECUTOR. 491 
 
 personal assets, not for money advanced at the time, but in satis- 
 faction of his private debt, because this sale or pledge is, jjrimd 
 facie, inconsistent with the duty of an executor. I preface both 
 these propositions with the term 'generally speaking,' because 
 they both seem to admit of exceptions" (m). And the same 
 learned Judge has elsewhere said, — " A mortgagee or purchaser 
 from the executor, of a part of the personal property of the tes- 
 tator, has a right to infer that the executor is, in the mortgage or 
 sale, acting fairly in the execution of his duty, and is not bound 
 to inquire as to the debts or legacies. But if the nature of the 
 transaction affords intrinsic evidence, that the executor, in the 
 mortgage or sale, is not acting in the execution of his duty, but 
 is committing a breach of trust, as where the consideration of the 
 mortgage or sale is a personal debt, due from the executor to the 
 mortgagee or purchaser, there such mortgagee or purchaser, being 
 a party to the breach of trust, does not hold the property discharged 
 from the trusts, but equally subject to the payment of debts and 
 legacies, as it would have been in the hands of the executor " (w). 
 
 On the subject of the interference of a Court of Equity, it 
 remains to notice the following cases : — 
 
 In Taylor v. Hawkins, where certain leasehold premises were 
 specifically bequeathed to an executor, and he, in seven months 
 after the testator's death, mortgaged the same, as security for a 
 debt owing by himself personally, and for other sums to be ad- 
 vanced on his private account ; and afterwards the premises were 
 sold ; the Court held, the mortgagees were entitled to be paid out 
 of the purchase -money, before a bond creditor of the testator; the 
 answer of this creditor not saying, he believed the mortgagees knew 
 there were debts of the testator unpaid, or containing any other 
 ground of inquiry into fraud or collusion on the part of the mortga- 
 gees (o). In Keane v. Roharts, where the defendants R. and 
 De L. were held not to be responsible to legatees and creditors for 
 assets, Sir J. Leach distinguished the case from one of purchase 
 or pledge from the executors; saying, " It is the case of agents of 
 
 (m) 4 Madd. 357. 
 (») 2 Sim. &; St. 205. 
 
 See also Lou>- 
 
 llier V. Lord I.owther, 13 V^es. 104. 
 {0) 8 ^'es. 200.
 
 492 OF FOLLOWING ASSETS, BY AN EXECUTOR [CH. XXXVII. 
 
 the executors receiving money by the authority of the executors, 
 and remitting it to them in the course of their duty as agents, and 
 in the proper forms of business, leaving the application of it to the 
 purposes of the will wholly in the power of the executors" (/?). 
 In Cuhhidge v. Boatiorighf, the Court, on a bill filed by an adminis- 
 tratrix de bonis non of C, set aside an assignment of a leasehold 
 house, which H., an administrator with the will annexed of C, 
 had made to secure an annuity, and also a subsequent sale of the 
 house by H.'s executrix ; on the grounds, that, under the circum- 
 stances of the case, it was impossible to say the property had 
 been administered by H., and consequently, on H.'s death, it 
 did not pass to H.'s executrix, but to the administratrix de bonis 
 non of the original testatrix [q). In Drohan v. Drohan, a Court 
 of Equity set aside a lease of a farm, which a widow and adminis- 
 tratrix had made at an undervalue, and to a lessee who had 
 express notice, that the administratrix, and the children of the 
 intestate by a former wife, had agreed to divide the property of 
 the intestate, according to the Statute of Distributions, and that 
 the administratrix was, by the children, called on to sell the intes- 
 tate's interest in the farm (r). 
 
 2. — The Statute of Frauds, 29 Ch. II., c. 3, enacts bysection 7, 
 that " all declarations or creations of trusts of any lands, tene- 
 ments, or hereditaments, shall be manifested and proved by some 
 writing, signed by the party who is by law enabled to declare 
 such trust, or by his last will in writing." But provides by its 
 next section, " That where any conveyance shall be made of any 
 lands or tenements, by which a trust shall or may arise or result 
 by the implication or construction of law, then such trust shall 
 be of the like force and effect, as the same would have been, if 
 this statute had not been made." 
 
 If an executor lays out money, which is assets, in a purchase 
 of land, a Court of Equity will not follow these assets into the 
 land, if, in the consideration of the Court, there is not sufficient 
 evidence to make the executor a trustee [s). But to prove that 
 
 (p) 4 Madd. 332, 359. 
 (v) 1 Riiss. 519. 
 
 (r) 1 Ball & B. 185. 
 
 (s) Halcott V. Murkaiit, Prec. Cii.
 
 S. IV.] LAID OUT IN A PURCHASE. 493 
 
 the land was bought with the assets, and to create such a trust, 
 parol evidence is admitted (t), and although the executor is him- 
 self dead (u). And if the evidence proves a trust, the Court 
 will decree the executor to be a trustee for a legatee, or other 
 party, entitled to the money laid out in the purchase (u). 
 
 In a case where certain stock belonging to a testator was sold 
 out, and the money invested in South Sea stock, Lord Hard- 
 wicke, with reference to following the money, stated in the 
 Court of Chancery, — " It has been objected, on the part of the 
 plaintiff, that money has no ear-mark, and therefore upon that 
 account the stock, which has been purchased, cannot be considered 
 as part of the estate of Sir N. This objection has been enforced 
 by saying, that if an executor sells part of a testator's estate, and 
 converts the money into stock, a creditor of the testator shall not 
 be allowed to follow that money into the stock wherein it was so 
 converted, and consider the stock as assets in the hands of the 
 executor, but shall only be allowed to charge the executor with a 
 devastavit ; and undoubtedly that is the general rule, not only at 
 law, but in this Court likewise. But there are many cases wherein 
 that rule does not hold in this Court, and the creditor shall be 
 allowed to follow the stock specifically. And if stock belonging 
 to a testator is given by his will subject to a contingency, the 
 Court dpes not presume that the stock will always remain in the 
 same plight. And if it is converted into other stock, the stock 
 into which it is so converted shall be subject to the same contin- 
 gency " (w). 
 
 168 ; Kinder v. Miller, ibid, 171 ; Ken- 
 dar V, Milward, S. C, 2 Vern. 440, 
 — 2 P. W. 414. See Heron v. Heron, 
 Prec. Ch. 163, 2 Eq. Cas. Abr. 744, 
 and Hooper v. Ei/les, 2 Vern. 480. 
 
 (0 Prec. Ch. 169; 2 Vern. 441; 1 
 Atk, 59, 60; Amb. 412; 10 Ves. 517; 
 2 Atk. 71. 
 
 (u) Prec. Ch. 169 ; 2 Vern. 440, 441 ; 
 
 1 Atk. 59. 
 
 (v) Anon. Sel. Ca. Ch. 57, 2 Eq. Cas. 
 Abr. 749 ; Balgney v. Hamilton, Amb. 
 414; Ryall v. Rmll, 1 Atk. 59, also 
 stated Amb. 413, and cited 10 Ves. 518. 
 See also Willis v. Willis, 2 Atk. 71. 
 
 (w) Batten v. Whorewood, Barn. Ch. 
 Rep. 422 ; Waite v. Whorwood, S. C, 2 
 Atk. 159.
 
 494 
 
 CHAPTER XXXVIII. 
 
 OF THE PERSONAL LIABILITIES OF AN EXECUTOR. 
 
 Sect. I. — A general View of the Subject of this Chapter. 
 II. — Of an irregular Preference of a Creditor. 
 III. — Of accepting Security in place of Payment of a Debt. 
 IV. — Of an Executor's Promise to pay a Debt. 
 V. — Of an Executor's Liability for Interest. 
 VI. — Of accounting for Profits made of the Testator's Estate. 
 VII. — Of Losses in case of Loan or Investment. 
 VIII. — Of parting with Property to a Co-Executor. 
 IX. — Of an Executor's Liability for Property placed with 
 Bankers. 
 X. — Of an Executor's continuing the Trade of his Testator. 
 XL — Of an Executor's Liability, where he is obliged to refund 
 Money received, and afterwards paid away by him. 
 XII. — Of Submission to Arbitration. 
 XIII. — Of an Executor s Liability in certain instances of Trusts. 
 XIV. — Of an Executor's concurring in certain Acts. 
 
 XV. — Of Admission and Evidence of Assets. 
 XVI. — Of paying Legacies before Debts. 
 XVII. — Of instances where an Executor's Liability is not in- 
 curred. 
 XVIII. — Of a Clause of Indemnity in a Will. 
 
 SECTION I. 
 
 A GENERAL VIEW OF THE SUBJECT OF THIS CHAPTER. 
 
 When, by the wrongful act of an executor, assets are lost to 
 a party, as a creditor or legatee, entitled to them, the executor
 
 S. I.] GENERAL VIEW OF THE SUBJECT OF THIS CHAPTER. 495 
 
 is, in technical language, said to have wasted the assets, or to be 
 guilty of a devastavit {a). This waste he may be compelled to 
 make good out of his own property ; as to either a creditor (b), 
 or legatee (c), or to the person entitled to the residue of the tes- 
 tator's personal estate (d). 
 
 Among other acts, which, at law, may be a devastavit, or may 
 draw on an executor personal liability or loss (e), it may particu- 
 larly be mentioned, that it appears that by the decision of, or 
 an opinion expressed in, a Court of Law, as distinguished from a 
 Court of Equity, at law a devastavit may be committed, or the 
 executor's personal liability or loss incurred, — by executing a 
 release (f), as a release of a debt owing to the testator (^), or a 
 release to an administrator durante minore estate of all demands, and 
 which administrator has at the time assets in his hands (h) : by paying 
 a bond made on an usurious contract (^) : by paying a legacy before 
 a debt of record ; or by paying a legacy before a bond or simple 
 contract debt, of which the executor has notice {J) : by letting 
 interest on a debt grow in arrear, and then suffering judgment 
 for principal and interest {k) : by appointing an agent to receive 
 
 (a) Doct. & St. Dial. 2, ch, 10, ed. 
 1709, p. 158; God.;Orp.Leg.2d ed. 203. 
 
 (b) Doct. & St. Dial. 2, ch. 10, ed. 
 1709, p. 158 ; Bro. Abr, tit. Administra- 
 tors, pi. 50, 4it. Executors, pi. 116. 
 
 (c) Adye V. Feuilleteau, 1 Cox, 24. 
 See also Watts v.Kancie, Toth. 77. 
 
 (d) Townsend v. Barber, 1 Dick. 356 ; 
 Lowson V. Copeland, 2 Bro. C. C. 156 ; 
 Powell V. Evans, 5 Ves. 839. In Dyose 
 V. Dynse, 1 P. VV. 305, it was held, on 
 tiie particular circumstances of the case, 
 that the residuary legatee should not suf- 
 fer, by the devastavit there committed, 
 more than in proportion with the other 
 legatees. See Humphreys v. Humphreys, 
 2 Cox, 186, and 1 P. W. 5th ed. 306, n. 
 
 (e) Doct. & St. Dial. 2, ch. 10, ed.l709, 
 p. 158 ; Wentw. Off. Ex. ch. xiii ; God. 
 Orp. Leg. part 2, ch. 26; Bro. Abr. tit. Ex- 
 ecutors, pi. 172 ; 1 Rol. Abr. 927, S. pi. 4, 
 5 ; Keilw. 64 b. ; 2 Brownl. & G. 185 ; 3 
 Mod. 240; 12 Mod. 573; 3 Salk. 125, 
 
 tit. Devastavit, pi. 2 ; 2 Kenyon, part 1, 
 p. 295 ; Carter v. Love, Mo. 358 ; Yate 
 V. Alexander, Godb. 284. See also Wood- 
 cock V. Hern, Gouldsb. 142. 
 
 (/) RusseVs case, 5 Co. 27. 
 
 {g) Anon. Dalis. 89, Ca. 4, Owen, 36. 
 — Hob. 66. See also 1 Vern. 455 ; Rus- 
 seVs case, 5 Co. 27 ; and Kniveton v. 
 Latham, Cro. Car. 490. 
 
 CO Vegheiman v. Kighley, 1 Anders. 
 138 ; Brightman v. Keighley, Cro. Eliz. 
 43 ; Kightley v. Kightley, 3 Leon. 102 ; 
 Kittley's case, Godb. 29. 
 
 (0 1 Brownl. & G. 33 ; Hob. 167 ; 3 
 Salk. 125, tit. Devastavit, pi. 1. 
 
 (j) Doct. & St. Dial. 2, ch. 10, ed. 
 1709, p. 158; Bro. Abr. tit. Administra- 
 tors, pi. 37, tit. Executors, pi. 116 ; 
 Keilw. 63 b. ; 3 Salk. 125, tit. Devastavit, 
 pi. 2. See also 1 Mod. 175. 
 
 (/c) Seaman v. Dee, 2 Lev. 39, 1 Ventr. 
 198, 3 Salk. 125. See Anon. 2 Eq. Cas. 
 Abr. 455, L. Ca. 4, and ib. 456, Ca. 6.
 
 496 A GENERAL VIEW OF THE [CH. XXXVIII. 
 
 a debt, who receives it, but will not repay (l) : by, in certain 
 cases, a conversion of the testator's property, as where the execu- 
 tor uses it as his own (m) : and, generally speaking, by, it is 
 presumed, any expenditure, which, as against creditors, is inad- 
 missible ; as extravagant funeral expenses (w), or money paid for 
 clothes, and other necessaries, and schooling provided, for the 
 testator's children since his death (o). 
 
 Among other instances (p), it may be mentioned, that it ap- 
 pears, by the decision of, or an opinion expressed in, a Court of 
 Equity, in equity a devastavit may be committed, or the execu- 
 tor's personal liability or loss incurred, — by neglecting to call in 
 a debt, secured by bond to the testator [q), or out on personal 
 security (r) : by allowing interest to run on a debt, as on a debt 
 by bond, when the executor has sufficient assets in his hands to 
 discharge the principal of the debt (s) : by a conversion of, that 
 is, by altering the nature of, the testator's estate (t) : by, perhaps 
 it may be stated, losing a bond on which a debt is owing to the 
 testator (u) : by paying out of his own pocket, and beyond the 
 personal assets, bond debts of the testator (v) : by, in some cases, 
 payment of legacies (iv) : by, when a legacy is given to an in- 
 fant, paying it either to the infant liimself, or to his father during 
 the infancy (a) : by, when a legacy is bequeathed to a married 
 
 (i) Jenkins v. Plomhe, 6 Mod. 93. See 
 Pistor V. Dunbar, 1 Anstr. 107. 
 
 (m) Quick V. Staines, 2 Espin. 657, 1 
 Bos. & P. 293, 
 
 (n) 1 Salk. 296 ; God. Orp. Leg. 2d ed. 
 204 ; 2 Bl. Com. 508. 
 
 (o) Giles V. Dyson, 1 Stark. 32. 
 
 (p) Gibbs V. Herring, Free. Ch. 49 ; 
 Charlton v. Low, 3 P. W. 330 ; Keylinges 
 case, 1 Eq. Cas. Abr. 239 ; Duchess of 
 Hamilton v. Incledon, 11 Vin. Abr. 279, 
 Ca. 53, 2 Eq. Cas. Abr. 456, Ca. 8; 
 Horsley v. Chaloner, 2 Ves. 83, 85 ; Car- 
 sey V. Barsham, stated I Sch. & Lef. 344; 
 Doyle V. Blake, 2 Sch. &c Lef. 231. 
 
 (q) Lowson V. Copeland, 2 Bro. C. C. 
 156, cited 1 Madd. Rep. 298 ; Powell v. 
 Evans, 5 Ves. 839. See Orr v. Newton, 
 2 Cox, 274, 276. 
 
 (r) 8 Ves. 467. 
 
 (s) Anon. 2 Eq. Cas. Abr. 455, L. 
 Ca, 4; Anon. ib. 456, Ca. 6. See also 
 Seaman v. Dee, 2 Lev. 39, 1 Ventr. 198, 
 3 Salk. 125, pL 6. 
 
 (t) Batten, or Waite, v. Whorewood, 
 Barn. Ch. Rep. 422, 2 Atk. 159. 
 
 (w) Goodfellow V. BMrc/ietf,2Vern.299. 
 
 {v) Robinson v. Tonge, 3 P. W, 398, 
 
 (u)) Hodges V, Waddington, 2 Ch. 
 Cas. 9 ; Hawkins v. Day, Amb. 160, 
 and ed. Blunt, Append. 803, 1 Dick. 
 155, cited 3 Meriv. 554. See 3 Salk. 
 125, tit. Devastavit, pi. 2 ; Necton and 
 Sharpe's case, 1 Rol. Abr. 928, X. pi. 1, 
 2 ; Nectar and Sharp v. Gennet, Cro. 
 Eliz. 466. 
 
 (t) Holloway v. Collins, 1 Ch. Cas. 
 245 ; Dyke v. Dyke, Cas. T. Finch, 94 ;
 
 S. I.] SUBJECT OF THIS CHAPTER. 497 
 
 woman generally, and not for her separate use, payment of it to 
 herself, instead of to her husband (y): by permitting specific 
 legatees to retain or possess the effects specifically bequeathed to 
 them, and which, to pay creditors, are afterwards required to 
 make up a deficiency of assets (z). 
 
 An executor has by a Court of Equity been held to be person- 
 ally answerable for money as received by his agent, in a case 
 where the testator directed E. P. to carry on his business, and 
 the money received was debts in the trade due before the death 
 of the testator, and which the executor permitted E P. to get in, 
 no intention that E. P. should collect them being apparent or 
 hinted at in the will (a). 
 
 An executor may in some cases be personally responsible for 
 the loss caused to his testator's estate, if goods in the executor's 
 possession become impaired, or are sold by him at an undervalue; 
 or he omits to sell them at a good price, and afterwards a less 
 sum only can be obtained for them (b). And here it may be 
 mentioned, that in Hall v. Hallet, Lord Thurlow, in noticing a 
 sale of ships by an administrator, observed, " He sold many of 
 the ships before their arrival, and before he could possibly know 
 the most advantageous method of disposing of them. This could 
 not be justified, but upon a very pressing occasion" (c). In 
 Crosse v. Smith, where counsel contended, that, for damage done 
 to goods, or for their loss by robbery, without default of the 
 executor, he is not liable more than a common bailee, Lord 
 EUenborough scouted the idea, that in a Court of Law an execu- 
 
 Dagley, or Doytey, v. Tolferry, 1 P, W. 
 285, 1 Eq. Cas. Abr. 300, cited 2 Atk. 
 81, and 3 Bio. C. C. 97 ; Dawley v. 
 Ballfrey, Gilb. Eq. Rep. 103 ; Philips 
 V. Paget, 2 Atk. 80, cited 1 Ves. jun. 
 249 ; Cooper v. Thorvton, 3 Bro. C. C. 
 96, 186; Davies v. Austen, 1 Ves. jun. 
 247, 3 Bro. C. C. 178 ; Lee v. Brown, 4 
 Ves. 362. The statute 36 Geo. III. c. 
 52, s. 32, empowers an executor to pay 
 the legacy of an infant into the Bank, 
 with the privity of the accountant-general 
 
 KK 
 
 of the Court of Chancery ; Whopham v. 
 Wingfield, 4 Ves. 630. On the appli- 
 cation of dividends for an infant's main- 
 tenance and education, see stat. 1 Will. 
 IV. c. 65, s. 32. 
 
 (j/) Palmer v. Trevor, 1 Vern. 261. 
 
 (s) Spode V. Smith, 3 Russ. 511 . 
 
 (a) Pistor v. Dunbar, 1 Anstr. 107. 
 
 (6) Wenlw. Off. Ex. ch. xili. 14th ed. 
 p. 302 ; Jenkins v. Plombe, 6 Mod. 181. 
 
 (c) 1 Cox, 138.
 
 498 A GENERAL VIEW OF THE [CH. XXXVIII. 
 
 tor miglit be considered a mere ordinary bailee ; and took it to 
 be clear, that no case at law had decided, "that an executor, 
 once become fully responsible, by actual receipt of a part of his 
 testator's property, for the due administration thereof, can found 
 his discharge in respect thereof, as against a creditor seeking 
 satisfaction out of the testator's assets, either on the score of 
 inevitable accident, as destruction by fire, loss by robbery, or the 
 like, or reasonable confidence disappointed, or loss by any of the 
 various means, which afford excuse to ordinary agents and bailees 
 in cases of loss, without any negligence on their part" (d). In a 
 Court of Equity, an executor may, in some cases, not be personally 
 answerable for a loss occasioned by his employment of an agent ; 
 as where the executor sends money to a person in the country, to 
 pay the testator's debts there (<?). In Morleij v. Morley, a trustee 
 for an infant lost a sum of money by theft out of his house ; and, 
 in a Court of Equity, Lord Nottingham allowed the money in 
 the trustee's account, saying, " he was to keep it but as his 
 own" (_/*). And this doctrine is confirmed by Jones v. Letvis, 
 where a decree had been obtained against the defendant's husband 
 (to whom she was administratrix) for a general account of assets, 
 and for payment of the balance. The defendant excepted to the 
 report; for that certain goods, which had been delivered by her 
 to her solicitor, and offered to the plaintiff, had been since stolen 
 from her solicitor. And Lord Hardwicke allowed this exception. 
 " I will now," said his Lordship, " consider this case as if the 
 robbery had been without any tender of the goods at all to the 
 plaintiff. It is certain, that if bailee of goods, against whom 
 there is an action of account at law, loses the goods by robbery, 
 that is a discharge in an action of account at law ; and it is proved, 
 (and, I think, reasonably, ) that if a trustee is robbed, that robbery 
 properly proved shall be a discharge, provided he keeps them so as 
 
 (d) 7 East, 246, 255, 258, 3 Smitli, 
 203. On destruction of assets by fire, 
 see also Holt v. Holt, 1 Cli. Cas. 190, 
 ecitd 1 Vern. 92, and 2 Vern. 57, And 
 on the question, whether an executor is 
 bound to renew his testator's policy of 
 
 insurance against fire, see Parry v. Ash- 
 ley, 3 Sim. 97, 100. 
 
 (e) Bacon v. Bacon, 5 Ves. 331 ; Cham- 
 bers V. Minchin, 7 Ves. 193. See Pistor 
 V. Dunbar, 1 Anstr. 107, 
 
 (/) 2 Ch. Cas. 2.
 
 S. I.] SUBJECT OF THIS CHAPTER. 499 
 
 he would keep his own. So it is as to an executor or administrator, 
 who is not to be charged further than goods come to his hands ; 
 and for these not to be charged unless guilty of a devastavit ; 
 and if robbed, and he could not avoid it, he is not to be charged, 
 at least in this Court. How it would be at law, I know not ; for 
 I know no case of that at law. The defendant is administratrix : 
 supposing these goods had been in her own custody, and she had 
 been robbed, I am clear of opinion, if that fact be made out, 
 (which can only be by circumstances, as it is probably made out 
 here,) she ought to have been discharged of these goods ; and that 
 notwithstanding no tender thereof, for that was a superabundant 
 act ; for it is a decree against her husband, not for delivery of the 
 goods, but for a general account of assets, and nothing directed 
 to be paid but what was found on the balance. The only doubt 
 then is, tliat they were not lost out of her custody, but her solici- 
 tor's, where they were put by her for a particular purpose. 1 do 
 not know that a bailee, executor, administrator, or trustee, are 
 bound to keep goods always in their own hands. They are to 
 keep them as their own, and take the same care. If, therefore, a 
 man lodged trust-money with a banker; if lost, in many cases 
 the Court has discharged the trustee, especially if lost out of the 
 banker's hands by robbery. In the present case, what has been 
 done is, what she would have done with her own — leaving them 
 with her solicitor in order to be delivered to plaintiif, when proper 
 so to do; and why might she not do that? It is the same as if 
 they had been in her own custody ; and there is no pretence that 
 they were collusively put into the hands of her solicitor. It would 
 be too hard to charge her with these things lost" {(/). 
 
 When there are two or more executors named in a will, and 
 they all, or two or more only, accept the executorship ; for many 
 purposes, each executor so undertaking the office represents the 
 person of the testator, and is wholly independent of the rest (h). 
 Each is able to receive a debt due to the testator, and alone, 
 and without the signature of another executor, to give a sufficient 
 
 (g) 2 Ves. 240. (h) 2 Ves. 267 ; 1 Eden, 359 ; 1 Dick. 357. 
 
 K K 2
 
 500 A GEN. VIEWOF THE SUBJECT OF THIS CHAPTER. [CH.XXXVIII. 
 
 receipt for the money {i). Each also possesses the power to make 
 disbursements, as in payment of the testator's debts ( j). And each, 
 without the concurrence of anotlier executor, is able to sell a per- 
 sonal chattel (k), or leasehold for years, belonging to the testator; 
 and in either case to sign a sufficient receipt for the purchase money; 
 and, in the instance of the leasehold for years, to execute a valid 
 conveyance or assignment of it (Z). As, therefore, each executor 
 is for many purposes independent of the rest, reason points out, 
 and, it is accordingly acknowledged and decided, that when an 
 executor exercises his independent power over the estate of the 
 testator, although this executor may be personally responsible 
 for the effect of the act done, as a loss or injury occasioned by it 
 to the testator's estate (m), yet a co-executor, who did not concur 
 in the act, is not answerable with him (ii). 
 
 In the event of the death of an executor, by whom a devastavit 
 is committed, it appears that at law the waste was formerly con- 
 sidered to be a personal wrong, which died with the executor (o). 
 This state of the law has however been altered by the legisla- 
 ture (p). And the statute 4 and 5 W. & M., c. 24, s. 12, enacts, 
 that the executor of an executor, who shall waste the estate of 
 his testator, shall be liable and chargeable in the same manner as 
 his testator should or might have been. In equity, the waste con- 
 stitutes a simple contract debt, payable out of the personal assets 
 of him, by whom it is committed (q). A debt created by a devas- 
 tavit was, in Price v. Morgan, held not to be such a debt as was 
 
 (i) 4 Durn. & E. 632 ; 2 Ves. 267 ; 
 7 Ves. 198 ; Westley v. Clarke, 1 Eden, 
 357. 
 
 0') 2 Ves. 267, 268. 
 
 (Ji) Bio. Abr. tit. 'Executors, 66 ; 4 
 Durn. & E. 632 ; 2 Ves. 267. 
 
 (/) Anon. 1 Dyer, 23 b., Ca. 146 ; 
 Funnel v. Fenn, Cro. Eliz. 347, 1 Rol. 
 Abr. 924 ; Westley v. Clarke, I Eden, 
 357. 
 
 (m) Langford v. Gascoyne, 11 Ves. 
 333. 
 
 (w) Hardr.314; Toth. ed. 1820, p.88 ; 
 1 Dick. 357; 2 Bro. C. C. 116 ; 4 Ves. 
 
 607 ; Darwell v. Darwell, 2 Eq. Cas. Abr. 
 456 ; Langford v. Gascoyne, 11 Ves. 336, 
 as to the executor Lambert. 
 
 (o) Tucke's case, 3 Leon. 241 ; Brown 
 V. Collins, 2 Lev. 110; Astry v. Keuit, 
 ih. 133 ; Anon., 1 Ventr. 292.— 1 Ch. 
 Cas. 303; 2 Ch. Cas. 217. 
 
 (V) Stat. 30 Ch. II. c. 7 ; 4 and 5 
 W. & M. c. 24, s. 12. 
 
 (q) Bathurst's case, 2 Ventr. 40 ; 
 Frice V. Morgan, 2 Ch, Cas. 215; 
 Charlton v. Low, 3 P. W. 330. 331 ; 
 Townsend v. Barber, 1 Dick. 356.
 
 S. II.] OF AN IRREGULAR PREFERENCE OF A CREDITOR. 501 
 
 within the meaning of the particular will, by which lands were 
 devised to be sold to pay the debts of the testator (?•). 
 
 In particular cases, an executor who commits a devastavit in 
 law may be relieved in equity (.s). And at law relief has been 
 afforded to an administratrix, by setting aside a judgment con- 
 fessed by her ; a simple contract creditor having taken advantage 
 of her want of knowledge of the law, and prevailed on her, who 
 had notice of a bond debt, to confess judgment to creditors by 
 simple contract (t). 
 
 SECTION II. 
 
 OF AN IRREGULAR PREFERENCE OF A CREDITOR. 
 
 It appears that, by the decision of, or opinion expressed in, a 
 Court of Law, at law a devastavit may be committed, or the execu- 
 tor's personal liability or loss incurred, — by paying a debt of a lower 
 before one of a higher degree {u) ; as a bond or simple contract 
 debt before a debt by judgment obtained against the executor (u), 
 or a simple contract debt before a debt by bond (wj), of which the 
 executor has notice (.r) : by first paying the later of two judg- 
 ments obtained against the executor (?/) : by paying a bond debt, 
 after notice of an action brought against the executor by another 
 bond creditor (z) : by paying a bond debt, the day of payment of 
 which is not yet come, before a bond debt, the day of payment 
 of which is past (a) : by confessing judgment to a simple contract 
 
 (r) 2Cli. Cas. 215. 
 
 (s) Executors of Lady Croft v. Lyndsey, 
 2 Freem. 1. See 7 East, 258, and Holt 
 V. Holt, 1 Ch. Cas. 190. 
 
 (t) Anon., 2 Kenyon, part 1, p. 294. 
 
 (w) Bearblock v. Read, 2 Brownl. & 
 G. 81. See 6 Mod. 144. 
 
 (v) Vaugh. 94, 95. See also 2 Salk. 
 507. 
 
 (w) Doct. & St, Dial. 2, ch. 10, ed. 
 1709, p. 158 ; Bro. Abr. tit. Administra. 
 
 tors, pi. 50; Vaugh. 94. 
 
 (x) Vaugh. 94; Fitzg. 78; 3 Lev. 
 115 ; 1 Mod. 175 ; 3 Mod. 115; Amb. 
 ed. Blunt, Append. 803 ; 1 Dick. 157. 
 
 (y) Vaugh. 95 ; Bro. Abr. tit. Execu- 
 tors, pi. 103 ; 1 Rol. Abr. 927, T. pi. 1 . 
 
 (s) Scarle's case, Mo. 678 ; Anon. 
 Keilw. 74 a., Ca. 20. 
 
 (a) Bro. Abr. tit. Executors, pi. 172 ; 
 1 Rol. Abr. 926, Q. pi. 5.
 
 502 OF AN IRREGULAR PREFERENCE OF A CREDITOR. [CH. XXXVIII. 
 
 creditor, after notice of a debt by bond (b) : by paying a simple 
 contract creditor, after another in equal degree has sued an 
 original (c). 
 
 And by a Court of Equity it is held, that in equity a devastavit 
 may be committed, by paying a debt of a lower before one of a 
 higher degree {d), as a bond debt before a debt by final decree 
 obtained against the executor {e). 
 
 To charge an executor with a devastavit, on account of pay- 
 ment of debts by simple contract before a debt by bond, some 
 notice of the bond debt must in equity (y ), as well as at law, be 
 proved {(/). But of debts of record an executor is bound to take 
 notice (A). And therefore if before a debt of record, as a Crown 
 debt (i), or judgment (j) docketed pursuant to the statute 4 and 
 5 W. & M., c. 20 (h), or final decree in equity (/), he out of legal 
 assets pays a debt by bond or simple contract, he is guilty of a 
 devastavit {m), notwithstanding this payment was made without 
 notice of the debt of record (w). At law, to a scire facias against 
 executors upon a judgment against their testator in debt, it is not 
 any plea to plead, that, before they had any conusance of this 
 judgment, they had fully administered in paying debts on obliga- 
 tions (o). Also at law, to a scire facias on a decree in the 
 Exchequer, a plea of payment of a bond is not any bar (/>). 
 
 (6) Anon. 2 Kenyon. part 1, p. 294. 
 See Vaugh. 95, and Sawyer v. Mercer, 1 
 Durn. & E. 690. 
 
 (c) 2 Kenyon, part 1, p. 294, 295. 
 
 (d) Cliapviun v. Derby, 2 Vein. 117. 
 
 (e) Mason v. WiUiayns, 2 Salk. 507. 
 (/) Hawkins v. Day, Amb. 160, 1 
 
 Dick. 155. 
 
 {g) Vaugh. 94; Fitzg. 78; 3 Lev. 
 115; 1 Mod. 175; 3 Mod. 115; Amb. 
 ed. Blunt, Append. 803 ; 1 Dick. 157. 
 See 1 Barnard. Rep. 186. 
 
 {h) Cro. Eliz. 793 ; 2 Vern. 89 ; 2 
 Freem. 104; 3 P. W. 117; 1 Barnard. 
 Rep. 186 ; 4 Barn. & C. 416, n.; Anon. 
 1 Dyer, 32 a. n. 
 
 (i) Cro. Eliz. 575 ; 1 Rol, Abr. 927, 
 S. pL 5; 16 East, 281 ; 4 Barn. & C. 
 
 416, n. See also Bro. Abr. lit. ExeciUors, 
 pi. 116. 
 
 (j) Ordwey v. Godfrey, Cro. Eliz. 
 675 ; Littleton v. Hibbins, ib. 793. — 3 P. 
 W. 117. 
 
 (/c) Hickey v. Hayter, 1 Espin. 313, 6 
 Durn. & E. 384; Steele v. Rorke, 1 Bos. 
 & P. 307. 
 
 (/) Shafto V. Powel, 3 Lev. 355; 
 Mason v. Williams, 2 Salk. 507 ; Searle 
 V. Lane, 2 Vern. 37, 88, 2 Freem. 103 ; 
 Bishop V. Godfrey, Prec. Ch. 179. 
 
 (m) Otway v. Ramsay, 4 Barn. & C. 
 416, 417, n. 
 
 (n) 2 Vern. 37, 89. 
 
 (o) Littleton v. Hibbins, Cro. Eliz. 
 793. 
 
 (;>) Shafto V, Rowel, 3 Lev. 355.
 
 S. 111.] OF ACCEPTING SECURITY, &,C. 503 
 
 And, in equity, if an executor pays a bond debt before a debt 
 by final decree, the Court will not allow that payment in his 
 account (q). 
 
 SECTION III. 
 
 OF ACCEPTING SECURITY, IN PLACE OF PAYMENT OF A DEBT. 
 
 If, in the place of payment of a debt due to a testator, his 
 executor accepts a security from the debtor to himself for pay- 
 ment of it, in many cases this act of the executor makes the debt 
 present assets in his hands, although, under such new security, 
 the money is not payable to him until a future day (/•). The 
 security so taken by the executor may be an agreement by 
 articles (s), or a promissory note (t), or a bond. (u). And by 
 reason of such constructive present assets in the hands of the 
 executor, he is, before he has received the money secured to him, 
 personally liable to satisfy, to the extent of such assets, the cre- 
 ditors of the testator ; and they may avail themselves of this 
 liability by either action at law (v), or, it is presumed, suit in 
 equity {ic), against him. And it is farther to be mentioned, that 
 if an executor sells goods of the testator, and, instead of present 
 payment of the purchase money, he takes from the purchaser a 
 security to pay it, it seems the money so secured is present assets, 
 and, to their extent, the executor is, before receipt of the money, 
 personally liable at law to satisfy the demands of the testator's 
 creditors {x). 
 
 (o) Bishop V. Godfrey, Prec. Ch. 179. 
 
 {r) 2 Lev. 190; 2 Freem. 100; Cas. 
 T. Holt, 297 ; 12 Mod. 346. 
 
 (s) Norden v. Levit, 2 Lev. 189. See 
 Goring v. Goring, Yelv. 10. 
 
 (f) Barker v. Talcot, 1 Vern. 473. 
 
 (u) Anon. Cas. T, Holt, 297, 12 Mod. 
 346. 
 
 (d) Norden v. Levit, or Leven, 2 Lev. 
 189; .4r(or!., adjudged byPemberton,C. J., 
 
 cited 1 Vern. 474 ; Anon. Cas. T. Holt, 
 297, 12 Mod. 346. 
 
 (w) Barker v. Talcot, 1 Vern. 473 ; 
 Anon., S. C, 2 Freem. 100; Hilliard v. 
 Gorge, 2 Ch. Cas. 235. See Armitage 
 v. Metcalf, 1 Ch. Cas. 74 ; which, it is 
 observable, was not the suit of a creditor. 
 
 (x) Norden v. Levit, or Leven, 2 Lev. 
 189, T. Jones, 88, 1 Freem. 442; cited 
 1 Vern. 474, and 2 Freem. 100.
 
 o04 
 
 [ClI. XXXVIII. 
 
 SECTION IV. 
 
 OF AN executor's PROMISE TO PAY A DEBT. 
 
 An executor may make himself liable to pay, out of his own 
 pocket, a debt due from his testator, if in certain cases he pro- 
 mises to pay the debt. But to incur this personal responsibility, 
 the agreement, or some memorandum or note of it, must be in 
 writinQf. For the Statute of Frauds, 29 Ch. II., c, 3, enacts by 
 section 4, that " no action shall be brought, whereby to charge 
 any executor or administrator upon any special promise to answer 
 damages out of his own estate ; or whereby to charge the de- 
 fendant upon any special promise to answer for the debt, default, 
 or miscarriages of another person ; unless the agreement upon 
 which such action shall be brought, or some memorandum or 
 note thereof, shall be in writing, and signed by the party to be 
 charged therewith, or some other person thereunto by him law- 
 fully authorized." Under this enactment, not only the promise 
 itself (?/), but the consideration of it, must be set down or appear 
 in writing {z). 
 
 Although an executor promises to pay a debt of his testator, 
 yet if the creditor brings an action, not against him personally on 
 his promise, but against him as executor, and to recover the 
 demand out of the testator's effects, by this action the debt can- 
 not be recovered except out of assets, and the executor is not 
 personally liable to pay it (a). If the action is brought against 
 the executor personally, on his promise, then such promise must 
 be supported by a sufficient consideration ; otherwise an action of 
 assumpsit cannot be maintained on it against the executor (b). 
 
 (y) Grindall v. Davies, 1 Fieem. 532. 
 See also Philpot v, Briunt, 4 Bing. 717, 
 721. 
 
 (s) Wain v. Warlters, 5 East, 10 ; 
 Saunders v. Wakefield, 4 Barn. & Aid. 
 595 ; Jenkins v. Reijnolds, 3 Brod. & B. 
 14 ; Russell v. Mnseley, ih. 211 . 
 
 (a) Pearson v.Heiirii. 5.Duin.& F..6,8. 
 
 (ft) Kitchinman v. Bishop of Ossory, 1 
 llol. Abr. 24 ; Forth v. Stanton, 1 Saund. 
 210, 1 Lev. 262 ; Day v. Cawdrey, 1 
 Freein. 434; Day v. Garely, 3 Keb. 710; 
 Beech v. Kennegal, 1 Ves. 126; Rann v. 
 Hughes, 7 Durn. & E. 350, n. ; Saundera 
 V. Wakejield, 4 Barn, & Aid. 600,
 
 S. IV.] OF AN executor's PROMISE TO PAY A DEBT. 505 
 
 The consideration necessarily depends on tlie particular circum- 
 stances of each case, and is accordingly found to be of various 
 kinds, in instances where an executor or administrator has, by his 
 promise, made himself personally liable to pay the debt of his 
 testator or intestate (c) ; as where the promise was made in con- 
 sideration that the creditor, or plaintiff, would deliver to the 
 defendant, an administratrix, a certain quantity of goods (^), or 
 that the creditor had, at the request of the executor, accounted 
 with him (e). 
 
 Two kinds of consideration, the one, possession of assets, the 
 other, forbearance to sue, claim particular notice. If an executor 
 promises to pay a debt of his testator, and, at the time of his 
 promise, he has in his hands assets sufficient for the purpose, and 
 there is no other consideration for the promise, such assets con- 
 stitute a consideration, that is able to sustain it. And, accordingly, 
 an action of assumpsit lies on such promise against the executor 
 personally; and the judgment against him is de bonis propriis, by 
 which he becomes personally liable to pay the debt {/). But if 
 the executor does not at the time of the promise possess assets, 
 then, if there is no other consideration, an action cannot be sup- 
 ported on such promise (^). 
 
 Many authorities establish, that a forbearance to sue is a suffi- 
 cient consideration to sustain an executor's promise to pay a debt 
 of his testator (A). 
 
 (c) Moore v. Bray, 1 Rol. Abr. 24. 
 
 (d) Wheeler v. Collier, Cro. Eliz. 406, 
 Mo. 419. 
 
 (e) Hawes v. Smith, 2 Lev. 122 ; Anon. 
 S. C, I Ventr. 268. See Secar v. Atkin- 
 son, 1 H. Bl. 102 ; where also Hawes v. 
 Smith is cited. 
 
 (f) Trewinian v. Howell, Cro. Eliz. 
 91, cited Cowp. 293 ; Beecher v. Mount- 
 joy, stated 9 Co. 90, 1 Rol. Abr. 930, C. 
 
 pi. 1 ; Hodgson v. Maynard, 3 Leon. 67, 
 4 Leon. 5 ; Beech v. Kennegal, 1 Ves. 
 126. See Kitchinman v. Bishop of Ossory, 
 1 Rol. Abr. 24, and Bigg v. Malin, 
 Hutt. 28. 
 
 (g) Trewinian v. Howell, Cro. Eliz. 
 91 ; Bigg V. Malin, Hutt. 28 ; Browne's 
 case, 1 Freem. 409 ; Mercer v. Brown, 3 
 Keb. 514 ; Hodgson v. Maynard, 3 Leon. 
 67, 4 Leon. 5 ; Rann v. Hughes, 7 Durn. 
 & E. 350, n. See also 5 Durn. & E. 8. 
 
 (/i) Treford v. Holmes, Hutt. 108 ; 
 Gardener v. Fenner, 1 Rol. Abr. 15 ; 
 Walker v. Wittell, ib. 28 ; Russell v. 
 Haddock, 1 Lev. 188 ; Johnson v. Gardi- 
 ner, 10 Mod. 254 ; Frederick v. Wynne, 
 11 Vin. Abr. 428, 2 Eq. Cas. Abr. 456 ; 
 Reech v. Kennegal, 1 Ves. 126; Rann v. 
 Hughes, 7 Durn. & E. 350, n .
 
 506 OF AN executor's promise to pay a debt. [ch. XXXVIIl. 
 
 When an executor is applied to for payment of a debt due 
 from his testator, and, on the creditor's agreeing to forbear for a 
 definite time, as until a certain day, to bring an action at law 
 against the executor for it, the executor promises payment, and 
 when this promise is made, the executor has in his hands assets 
 sufficient to pay the debt, such forbearance to sue and possession 
 of assets constitute a sufficient consideration to support the 
 executor's promise, and on it an action of assumpsit lies against 
 the executor, and the judgment against him is general, ox de bonis 
 propriis (i). In the declaration it is not necessary to aver assets; 
 the promise to pay implies them (j). And, contrary to an 
 opinion of Sir E. Coke (k), it is yet farther decided, and is now 
 fully established, that the creditor's forbearance to sue is by 
 itself, and without possession of assets at the time of the promise, 
 sufficient consideration to support that promise (/). 
 
 A consideration of forbearance is good, when the time it is to 
 endure is definite or certain (m). It is likewise sufficient, 
 although the creditor is to forbear generally, no time being men- 
 tioned (?z), a perpetual or absolute forbearance being perhaps 
 then in law intended (o) ; or if the creditor is to forbear for a 
 reasonable time, " per rationahile tempus " (p). But it seems 
 that if he is to forbear for a short or a little time, " pe?' paululum 
 
 (i) Banes' case, or Baines v. Paine, 9 
 Co. 93 b., Jenk. Cent. C. 7, Ca. 27 ; 
 Bond V. Payne, S. C, Cro. Jac. 273 ; 
 Fisher, or Fish, v. Richardson, ib, 47, 
 Yelv. 55. 
 
 (J) LinghilL or Lingheii,v. Broughton, 
 Mo. 853, 1 Rol. Abr. 26 ; Banes' case, 
 9 Co. 94, 1 Rol. Abr. 921, I. pi. 3 ; 
 Davies v. Warner, Cro. Jac. 593 ; Bothe 
 V. Crampton, ib. 613 ; Porter v. Bille, I 
 Freetn. 125. See Bard v. Bard, Cro. 
 Jac. 602, and Evans v. Warren, ib. 604. 
 
 (k) 9 Co. 94 ; 2 Rol, Abr, 684, pi. 5. 
 See Lord Graye's case, 1 Rol. Abr. 28, 
 pi. 57. 
 
 (/) 2 Rol. Abr. 684, pi. 5, Johnson 
 V. Whilchcott, 1 Rol. Abr. 24; Davis v. 
 
 Wright, or Heyner, 1 Ventr. 120, 2 Lev. 
 3 ; Smitli's case, Clayt, 85. See also 
 Yelv. 11. 
 
 (m) Banes' case, 9 Co. 93 b. ; Cham- 
 bers V. Leversedge, Cro. Eliz 644 ; Tis- 
 dale's case, ib. 758. 
 
 (n) May v. Alvares, Cro. Eliz. 387 ; 
 Mapes V. Sidney, Cro. Jac. 683. See 
 Saclcf'ord v. Phillips, or Philips y. Sack- 
 ford, 1 Rol. Abr. 27, Cro. Eliz. 455; 
 Mature v. West, Cro. Eliz. 665, and 
 Theme v. Fuller, Cro. Jac. 397. 
 
 (o) 1 Rol. Abr. 27, pi. 45 ; Cro. Jac. 
 684. 
 
 (f) Linghill, or Lingheuj v. Broughton, 
 Mo. 853, 1 Rol. Abr. 26; Johnson v. 
 Whitchcntt, 1 Rol. Abr. 24.
 
 S. IV,] OF AN executor's PROMISE TO PAY A DEBT. 507 
 
 tempus" {q), or for some time, ^'pro aliquo tempore" (r), such for- 
 bearance is not a sufficient consideration to support the executor's 
 promise. 
 
 As forbearance to sue at law is a sufficient consideration to 
 sustain an action of assumpsit oil an executor's promise of pay- 
 ment, so likewise, it would seem, is forbearance to sue the execu- 
 tor in equity {s). 
 
 An executor may, it appears, confine his promise to pay, to 
 payment out of assets {t). And then such promise does not 
 make the executor personally responsible; as if the promise is 
 expressed in the words, " Stay awhile until the testator's estate 
 is come in, and I will pay you" [u) ; or the promise is to pay the 
 debt, "so soon as any debt due to the testator comes to his, the 
 executor's, hands, to the value of the debt" (u). And it would 
 seem that, in these cases, the executor is not personally responsible, 
 although there exists a consideration, as possession of assets, that 
 would be sufficient to support a promise of payment generally (?«). 
 In Childs v. Monins, executors made a promissory note in the 
 words — " As executors to the late T. T. we severally and jointly 
 promise to pay to Mr. N. C. the sum of 200/. on demand, 
 together with lawful interest for the same. J. M., P. B., execu- 
 tors;" and this promise was held not to be limited to payment out of 
 the testator's estate, but to make the executors personally answer- 
 able for the debt ; and on the grounds, it would seem, that the 
 words " on demand " admitted assets ; and the engagement to 
 pay interest imported payment at a future day, and compensation 
 for forbearance to sue {x). 
 
 (g) Mo. 854 ; Cro. Eliz. 759 ; Cro. 
 Car, 438 ; 1 Rol. Abr, 23, pi, 26 ; Lut- 
 wich V. Hussey, Cro. Eliz, 19 ; Brian v, 
 Salter, 1 Rol, Abr. 23 ; which authorities 
 seem to contradict Cooks v. Doiize, Cro. 
 Car. 241, and Scovell v. Covell, 1 Rol, 
 Abr. 27, pi. 46, 47, See also GUI v, 
 Harewood, 1 Leon. 61, and Tolhurst v. 
 Brickenden, Cro. Jac. 250. 
 
 (r) Tolson v. Clerk, Cro. Car. 438; 
 Tilston V. Clark, S. C, 1 Rol. Abr, 23. 
 
 (s) Dowdenay y. Olayid, Cro. Eliz, 768; 
 
 Coulston, or Colston, v. Carr, ib, 848, 1 
 Rol. Abr. 26 ; Pooley v. Gilbert, 1 Rol. 
 Abr. 19. 
 
 (0 2 Brod. & B. 462, 463 ; Dowse v. 
 Coxe, 3 Bing. 20, 
 
 (u) Anon. 1 Veutr. 268, 
 
 (u) Kitchinman v. Bishop of Ossory, 1 
 Rol. Abr. 24. 
 
 (iv) IVentr. 268 ; 1 Rol. Abr. 24, pi. 
 32. 
 
 (x) 2 r.rod. &: B. 4C0, 5 J. B, Moore, 
 282.
 
 508 OF AN executor's promise to pay a debt. [Cll. XXXVIII. 
 
 An executor, who, under a promise to pay a debt of his testator, 
 lias out of his own property satisfied it, is entitled to repayment 
 out of assets that may come into his hands (?/). 
 
 It may in tins place be mentioned, that, for a legacy given out 
 of personal property, an executor may be sued in either a Court 
 of Equity, or the Ecclesiastical Court {z). Some doubt, however, 
 exists on the subject of an action in a Court of Law, to recover 
 a general or pecuniary legacy, payable out of personal estate {a). 
 Farish v. Wilson, which was tried at Nisi Prius, was assumpsit for 
 money had and received, and brought to recover a sum of bank 
 stock, being a legacy left to the plaintiff's wife. The defendant 
 was the agent of the plaintiff, and had, as stated by the plaintiff, 
 received the money ; but the latter, not proving the case stated, 
 was nonsuited. And Lord Kenyon, before whom the cause was 
 tried, said — " Had this action been against the trustee or executor, 
 I am clearly of opinion it could not be maintained. It is highly 
 convenient and beneficial, that Courts of Equity should have the 
 sole jurisdiction in these cases. Those Courts make provision for 
 children, infants, married women, &c., according to the situation 
 of the parties, and circumstances of the case ; whereas a Court of 
 Law can only proceed according to the strict rules of law, without 
 at all consulting the convenience of the parties. This is not the 
 present case : I only took this opportunity of delivering my 
 opinion, lest it should be thought that I was of opinion, that in any 
 case an action at law would lie for a legacy" {h). This opinion, 
 which Lord Kenyon thus took occasion to express at Nisi Prius, 
 is, to at least a certain extent, confirmed by his Lordship and the 
 other judges of the Court of King's Bench, who decided a case 
 that occurred about three years after Farish v. Wilson. The case 
 referred to is Deeks v. Strutt, where the executor did not expressly 
 promise payment of a general legacy, as distinguished from one 
 that is specific ; and it was decided, a Court of Law would not 
 
 (</) 9 Co. 94; Frederick v. Wynne, 
 11 Viu. Abr. 428, 2 Eq. Cas. Abr. 456. 
 
 (z) Cowp. 287, 288, 289, 292; 5 
 Durn. & E. 692, 693 ; 3 Atk. 346. See 
 also Aleyn, 40. 
 
 (a) On an action for a legacy charged 
 on land, see 6 Mod. 26, 2 Ld. Raym. 
 937, 2 Salk. 415, Cas. T. Holt, 419, 
 4 M. & Sel. 119. 
 
 (/') 1 Peake Rep. 73, 3rd ed. 103.
 
 S. IV.] OF AN executor's PROMISE TO PAY A DEBT. 509 
 
 raise an implied promise to pay, and the legatee could not at law 
 recover the legacy (c). In a recent case, where there was not, 
 grounded on a consideration, a promise to pay a distributive share 
 of an intestate's property, it was held that such share could not be 
 recovered in a Court of Law(r/), In Gregory y. Harman, the 
 defendants, who were executors, after payment of debts and 
 legacies rendered an account of the residue of the testator's per- 
 sonal estate to the four residuary legatees ; three of whom 
 received from them their several proportions ; and they all exe- 
 cuted a general release to the defendants, as executors. The 
 plaintiff, the remaining residuary legatee, at the request of the 
 executors, lent to them his share, and permitted them to retain it. 
 This share, it was decided, the plaintiff might afterwards recover 
 by action at law ; and on the grounds, that after the account 
 rendered, and the payment to the three other legatees, and the 
 general release, and the loan to the defendants, the money so 
 lent was not held by the defendants as executors, but by way of 
 loan {e). 
 
 If an executor promises to pay a general legacy, given out of 
 personal estate, and this promise is sustained by a sufficient con- 
 sideration, then, according to certain decisions, the legacy may be 
 recovered at law by an action of assumpsit against the executor 
 personally on his promise; and the judgment against him is c?e 
 bonis propriis (f), a judgment that subjects him to pay the legacy 
 out of his own pocket. According, also, to decided cases, a con- 
 sideration that will support the promise may be, the possession at 
 the time of the promise of sufficient assets to satisfy the legacy (g) ; 
 
 (c) Deeks v. Strutt, 5 Duin. & E. 
 690, cited 8 Duin. & E. 593, 3 East, 
 123, 124, 126, 7 Bam. & C. 544, 4 J. 
 B. Moore, 540, and 1 Moore & P. 215. 
 See also 2 Ves. jun. 676, and 5 Ves. 
 .516, 517. 
 
 (rf) Jones V. Tanner, 7 Bain. & C. 542, 
 1 Man. & Ryl. 420. 
 
 (e) 1 Moore&P.209,3Car. &P,205. 
 
 (/) Buthe V. Crampton, Cro. Jac. 613 ; 
 
 Davis V. Wvioht, 1 Ventr. 120 ; Davis 
 V. Remer, S. C, 2 Lev. 3, 2 Keb. 744. 
 758; Jikins v. Hill, Cowp. 284; Hawkes 
 V. Saunders, ib. 289, cited 8 Durn. & E. 
 593. See Bard v. Bard, Cro. Jac. 602. 
 And on an executor's bond for payment of 
 a legacy, see Goodwyn v. Goodwyn, Yelv. 
 39. 
 
 (g) Atkins V. Hill, Cowp. 284; Hawkes 
 V. Saunders, ibid. 289.
 
 510 OF AN executor's PROMISE TO PAY A DEBT. [CH. XXXVIII. 
 
 or it may be, forbearance to sue the executor (A) ; and, in the 
 latter instance, it is not necessary to aver assets at the time of the 
 promise (i) ; forbearance to sue will sustain the action, although, 
 at the time of the promise, the executor had not assets in his 
 hands (j). 
 
 It is, however, to be recollected, that the forbearance of suit 
 intended in the cases cited seems to be, forbearance to sue in a 
 Court of Law ; and that those cases occurred before the decision 
 made in Decks v. Strutt, where the executor had not promised 
 payment of the particular legacy, and it was held an action did 
 not lie against him in a Court of Law for it. Since this case, 
 a forbearance to sue, to be a sufficient consideration for a pro- 
 mise of payment of a legacy, must, perhaps, refer to a suit in a 
 Court of Equity or in the Ecclesiastical Court. 
 
 Although in the cases mentioned it is clearly decided, and in 
 Atkins V. Hill and Hmvkes v. Saunders Lord Mansfield and Mr. 
 Justice Buller expressed in forcible language their approbation 
 of the doctrine, that if an executor promises to pay a general 
 legacy, and this promise is grounded on a sufficient consideration, 
 an action lies against him in a Court of Law for it, yet it cannot, it 
 is considered, be taken to be free from all doubt, that such is the 
 state of the law at the present day. For in Joiies v. Tanne7\ 
 where counsel, after citing Atkins v. Hill and Hawkes v. Saimders, 
 distinguished from them the case of Deeks v. Strutt, decided by 
 Lord Kenyon, and Ashhurst, J., and Grose, J., " for there the 
 executor had not made an express promise to pay, which circum- 
 stance was particularly noticed by Grose, J. " ; Mr. Justice Lit- 
 tledale interposed this important observation, — " The judgment 
 of Lord Kenyon, C. J., did not proceed upon that distinction, 
 and has always been considered as an unqualified decision, that 
 an action at law cannot be maintained for a legacy" (k). And 
 in Kni(jlits v. Quarles, Mr. Justice Burrough took occasion to ob- 
 
 (/j) Bothe V. Crampton, Cro, Jac. 613 ; 
 Davis V. Wright, or Beyncr, 1 Ventr. 120, 
 2 Lev. 3. 
 
 (j) Boihe. V. CramplPii, Cro. Jac. 613. 
 
 (J) Davis V. Wright, or lieyner, 1 
 Ventr. 120, 2 Lev. 3. 
 (/c) 7 Barn. & C. 544.
 
 s. IV.] or AN executor's promise to pay a debt. 511 
 
 serve, — " In Atkins v. Hill it was held that assumpsit lay upon a 
 promise by an executor to pay a legacy in consideration of assets, 
 as such promise was grounded on a good and sufficient considera- 
 tion, viz. that the defendant had assets to discharge the legacy. 
 But in Decks v. Strutt it was decided, that legacies were not 
 recoverable at law, but only in equity " (/). There may, never- 
 theless, be some room for doubt, if Lord Kenyon meant in Decks 
 v. Strutt to overrule Atkins v. Hill and Hmvkes v. Saunders, and 
 the like cases, on an express promise; or, indeed, if he did so 
 mean, whether Decks v. Strutt does in fact overrule them ; and it 
 is certain that many years after Decks v. Strutt, the Court of 
 King's Bench considered that that case turned on the circum- 
 stance, that there was not there an express promise to pay the 
 legacy. For in Doe v. Gut/, where it was decided, that, after the 
 executor has assented to the bequest, an action at law lies against 
 him to recover a chattel, personal or real, specifically be- 
 queathed (m). Lord Ellenborough stated that the question before 
 the Court in Decks v. Strutt was, " whether the law would raise 
 an implied promise on proof of an acknowledgment of assets by 
 the executor, so as to sustain an action against him." And in 
 the same case, Grose, J. (who, it may be remarked, was one of the 
 Court by whom Decks v. Strutt was decided,) said, " The only 
 question in the case of Decks v. Strutt was, whether the law 
 would raise an implied assumpsit to pay the annuity, upon proof 
 of the executor's acknowledgment of assets. I thought it would 
 not." And Le Blanc, J., observed, that it formed a ground of 
 objection with the judges to the action in Decks v. Strutt, " that 
 it was a novel attempt to contend that the law w^ould raise an im- 
 plied assumpsit against an executor, merely from the possession 
 of assets." And a similar observation was made by Mr. Justice 
 Lawrence [n). It is material farther to mention, that Gorton v. 
 Dyson, decided many years after Decks v. Strutt, and com- 
 paratively a late determination, appears to be an authority, that 
 if, where there is a bequest of a sum of money, the executor 
 
 (0 ^ J. B. Moore, 540. I 9 Barn. & C. 160. 
 
 (m) 4 Espin. 154, 3 East, 120 ; cited | («) 3 East, 123—127.
 
 512 OF AN EXFCUTOR's IJABII.ITY FOR INTEREST. [CH. XXXVIII. 
 
 acknowledges that tlie money constitutes a debt or sum in which 
 he stands indebted to the legatee, as and for the legacy be- 
 queathed, an action at law lies against the executor for money 
 had and received by him to the use of the legatee (o). And in a 
 recent case, Mr. Justice Gazelee observed on Deeks v. Strutt, 
 that Lord Kenyon there " merely expressed himself as to the 
 general policy of the law; but if it were a general principle that 
 no action could in any event be maintained for a legacy, many 
 subsequent decisions could not be supported" (p). 
 
 SECTION V. 
 
 OF AN executor's LIABILITY FOR INTEREST. 
 
 A DECREE in equity may often be obtained against a trustee, 
 or trustee in whom is united the character of executor also, to 
 pay out of his own property interest on money or balances in his 
 hands, or on money which he is decreed to pay {(ji) ; as " if a 
 trustee empowered to put money to interest let the money lie by 
 him " (r) ; and as in the instances, — where by an order made by 
 consent, a trustee was ordered by the Court of Chancery to pay 
 a certain sum into Court, but he never complied with that 
 order (s) : where a testator directed his estate to be laid out, and 
 the interest, and after a certain time the principal, to be paid to 
 certain persons in the will mentioned ; and the executor, instead 
 of laying out the balances, kept them in his hands (t) : where the 
 
 (o) 1 Brod. & Bing. 219. 
 
 (p) Gregory v. Harinan, 1 Rloore & P. 
 215. 
 
 (q) Parrot v. Treby, Free. Ch, 254 ; 
 Dawson v. Parrot, 3 Bro. C, C. 236; 
 Yoimge V. Combe, 4 Ves. 101 ; Longmore 
 V. Broom, 7 Ves. 124, 129 ; Ashburnham 
 V. Thompson, 13 Ves. 402, cited 1 Madd. 
 Eep. 303 ; Underwood v. Steve/is, 1 JMer. 
 712; Tebbs v. Carpenter, 1 Madd. 290; 
 Bonev. Cook, M'Clel. 168, 178, 13 Price, 
 332. On Interest, see, farther. Earl of 
 Lincoln v. Allen, 4 Bro. P. C. ed. Toml. 
 
 553; Treves v. Townshend, 1 Bro. C. C. 
 384, 1 Cox, 50; Foster v. Foster, 2 Bro. 
 C. C. 616 ; Browne v. Southouse, 3 Bro. 
 C. C. 107 ; Hanhey v. Garret, 1 Ves. 
 jun. 236, 3 Bro. C. C. 457 ; Ex parte 
 Strutt, 1 Cox, 439 ; Bruere v. Pemberton, 
 12 Ves. 386 ; Pearse v. Green, 1 Jac. & 
 W. 135.— 1 Ves. jun. 452. 
 
 (r) 10 Mod. 21. 
 
 (s) Sammes v. Richnan, 2 Ves. jun. 
 36. 
 
 (0 Rocke V. Hart, 11 Ves. 58, and 
 stated from Reg. B. 1 Madd. Rep. 305.
 
 vS. v.] OF AN executor's LIABILITY FOR INTEREST. 513 
 
 money of the testator was well placed out upon good securities, 
 and unnecessarily called in by an executor, on pretence to pay 
 debts, but otherwise converted (ii) : where an executor committed 
 a breach of trust, by not calling in a debt which was bequeathed, 
 and the executor was obliged to pay this legacy out of his own 
 pocket (v) : where a trustee lent money on a promissory note, 
 and the borrower having become a bankrupt, the trustee was 
 decreed to be personally liable to make good the loss (w). 
 
 In other cases also an executor may be compelled to pay, out 
 of his own property, interest (x) ; as if " money placed out at 
 interest is called in by the executor without any cause " (?/) ; and 
 in the instances, — where executors lent money on bond, and the 
 security failed by the obligor's becoming insolvent, and the exe- 
 cutors were in consequence personally obliged to make good the 
 money lent (2^): where executors had, without a cause, kept money 
 for some years in their hands (a) : where executors had kept 
 money for many years in their hands, and longer than it was 
 necessary to keep the money to answer the exigencies of the tes- 
 tator's affairs (b) : where an executor had kept money a long time 
 in his hands, and applied it in the course of his trade (c) : where 
 an administrator had kept money for four or five years in his 
 liands, and had mixed it with his own money, and from time to 
 time had laid out the mixed fund in government securities (d) : 
 where an executor had for many years received the dividends of 
 stock, and from time to time paid the same, with other monies, 
 
 (u) Haslewood v. Baldwin, Cas. T. 
 Finch, 457. 
 
 (tj) Mucklow V. Fuller, Jacob, 198, 
 200. 
 
 (w) Ryder v. Bickertnn, 3 Swanst. 
 80, n. 
 
 (i) Ratcliffe v. Grayer, 1 Vern, 196, 
 2 Ch. Cas. 152 ; Goodere, or Goodyere, v. 
 Lake, I West Cas.T. Hardw. 490, Amb. 
 684 ; Hall V. Hal let, 1 Cox, 134 ; Seers 
 V. Hind, 1 Ves. jun. 294 ; Langj'ord v. 
 Gascoyne, 11 Ves. 333, 337; Turner v. 
 Turner, 1 Jac. & W. 39, 43 ; S'pode v. 
 Smith, 3 Russ. 511; Stewart v. Lord 
 
 Blaney, 2 Ridgew. P. C. 204, See also 
 1 Bali &B. 231. 
 
 (y) Taylor v. Gerst, Mos. 99. See 1 
 Bro. C. C.361. 
 
 (s) Holmes \. Bring, 2 Cox, 1. 
 
 (a) Franklin v. Frith, 3 Bro. C. C. 
 433. 
 
 (/>) Littlehales v. Gascoyne, 3 Bro. C. 
 C. 73. 
 
 (c) Newton v. Bennet, 1 Bro. C. C. 
 359, cited 1 ]\Iadd. Rep. 304. 
 
 (d) Perkins v. Bayntun, 1 Bro. C. C. 
 375. 
 
 L L
 
 514 OF AN executor's liability for interest, [ch. XXXVIII. 
 
 into the hands of his bankers, and had neglected to accumulate 
 them by investment (c). 
 
 The rate, at which, in the instances mentioned, and in similar 
 cases, interest is obliged to be paid, is in ordinary cases 4.1. per 
 cent. ; and when payable by either a trustee {/), or executor {(/). 
 But, in particular cases, 51. per cent, interest is decreed against a 
 trustee, or executor {h) ; as where a trustee or executor, or one 
 who sustains both these characters, sells out stock, and the person 
 beneficially entitled to the property, who may elect to have the 
 stock replaced, or to claim the money for which it was sold, with 
 interest, elects to take such produce of the sale (i) ; and in the 
 instances, — where a testator gave all his personal estate to a person, 
 whom he appointed his executor, upon trust to place the same 
 out in the public funds, or on mortgage, or other sufficient secu- 
 rity, and to pay the dividends and interest to certain persons for 
 their lives ; and, instead of following the directions of the will, 
 the executor called in part of the property, that was out upon 
 security, and used the property generally in his trade, and in 
 various transactions in the public funds, paying only the dividends 
 of the stock to the persons entitled under the will for life, and lent 
 part of the property to his son upon the same terms (j) : where 
 an executor in trust for infants called nearly the whole of the 
 testator's property from securities, as to the validity of which there 
 was no imputation ; and upon which it was producing interest, 
 generally speaking 51. per cent. ; calling it in, not only for no 
 purpose connected with the execution of the will, but for no other 
 purpose than that of keeping the money in his own hands, and 
 treating it as part of his own general funds (k) : where a person 
 
 (e) Goodchild v. Fenton , 3 Y. & Jerv. 48 1 . 
 
 (/) 4 Ves. 104; 11 Ves. 582; 1 
 Mer. 717. 
 
 (g) 1 Cox, 138 ; 2 Cox, 2 ; 1 Bro. C. 
 C. 375; 11 Ves. 582; 1 Madd. 306; 
 1 Russ. 151 ; Rocke v. Hart, 11 Ves. 58, 
 cited 1 Madd. 305. 
 
 (h) Bird V. Lockey, 2 Vern. 743; 
 Dornford v. Bornford, 12 Ves. 127, 
 and stated from Reg. B. 1 Madd. 301 ; 
 
 Bate V. Scales, 12 Ves. 402 ; Heathcote 
 V. Hulme, 1 Jac. & W. 122, 134, 135 ; 
 Brown v. Sansome, M'Clel. & Y. 427 ; 
 Attorney General v. Solly, 2 Sim. 518. 
 See also Rocke v. Hart, 11 Ves. 58. 
 
 (i) Pocock V. Reddington, 5 Ves. 794 ; 
 Limg V. Stewart, ib. 800, n. See also 
 Bate V. Scales, 12 A'es. 402. 
 
 (j) Piety V. Stace, 4 Ves. 620. 
 
 (A) Mosley v. Ward, 11 Ves. 681.
 
 S. v.] OF AN executor's LIABILITY FOR INTEREST. 515 
 
 by his will directed his executor to invest his personal property 
 in the public funds, upon certain trusts for the benefit of the tes- 
 tator's wife and children ; and the executor, instead of doing this, 
 unnecessarily first sold out a part, and afterwards the remainder 
 of the stock standing in the testator's name, the produce of which 
 he did not re-invest, but kept for many years in considerable 
 balances in his own hands (Z) : where an executor being a trader 
 paid the balances, which remained in his hands in respect of 
 assets, into his banker's, and there mixed them with his own 
 money (/«). 
 
 In Forbes v. Ross, where a testator directed trustees to lay out 
 the residue of his estate at such rate of interest as they should 
 judge reasonable ; and after his death one of the trustees bor- 
 rowed a part of the fund at 41. per cent.; the Court added \l. 
 per cent, to the interest, charging the trustee, who borrowed the 
 money, with 5/. per cent, interest on it {11). 
 
 When an executor or trustee is compelled to pay interest, 
 payment of the principal with rests, or compound interest, will 
 in particular cases be decreed (0). But in several instances the 
 Court has refused to make this order [p). 
 
 An executor may be decreed to pay interest in the case, 
 amongst others, of a bill filed by a creditor {q), or by a legatee, 
 general (r) or residuary [s). Interest has been charged against 
 the estate of an executor, in whom was united the character of 
 trustee also, and who became a bankrupt {t). 
 
 (/) Crackelt V. Bethune, 1 Jac. &.W. 
 586. 
 
 (m) Sutton \. Sharp, 1 Russ. 146, 150. 
 See also Hilliard's case, 1 Ves. jun. 89. 
 
 (?0 2Cox, 113, 2Bro. C.C. 430. Ac- 
 cording to Brown's statement of the will, 
 the trustees were directed to lay out 
 the money " at sucli rate of interest as 
 they slioukl think reasonable " ; but, ac- 
 cording to the same reporter, the judgment 
 of the Court proceeded on the ground, 
 that the will directed the trustees to pro- 
 cure " the best and utmost interest," and 
 the case is so cited, 1 Madd. 304. 
 
 (o) Raphael v. Boehn, 11 Ves. 92, 13 
 
 LL 
 
 Ves. 407, 590, cited 1 Madd. 300, and 2 
 Sim. 519 ; Stacpoole v. Stacpoole, 4 Dow 
 P. C. 209. 
 
 (p) Dornford v. Dornford, 12 Ves. 
 127, cited 1 Madd. 301, 303; Ashbum- 
 ham V. Thompson, 13 Ves. 402, cited 1 
 Madd. 303 ; Tebbs v . Carpenter, 1 Madd. 
 290,307; Crackelt v. Bethune, 1 Jac.&W. 
 586; Attorney Generalx. Solly, 2Sim. 518. 
 
 (g) Crackelt v. Bethune, 1 Jac. & W. 
 586. 
 
 (7-) Holmes V. Dring, 2 Cox, 1. 
 
 (s) Seers v. Hind, 1 Ves. jun. 294 ; 
 Langford v. Gascoyne, 11 Ves. 333. 
 
 (t) Ex parte Brooke, cited 12 Ves.
 
 516 OF ACCOUNTING FOR PROFITS, &C. [CH. XXXVIII. 
 
 In some instances a Court of Equity has refused to oblige an 
 executor to pay interest (m), as — " for money admitted by the 
 account to be in his hands" (v) : for arrears of rent, which exe- 
 cutors had neglected to recover, and with which the Court 
 charged tliem (iv) : and for rents and profits of real estate, that 
 was devised to an executor in trust (;r). 
 
 SECTION VI. 
 
 OF ACCOUNTING FOR PROFITS MADE OF THE TESTATOR's ESTATE. 
 
 An executor, who makes profit of assets in his hands, is ac- 
 countable for it, as part of the testator's estate (?/). Also when a 
 trustee, or executor who is likewise trustee, makes any profit of 
 the trust fund, this profit belongs to the cestui que trust, and not 
 to the trustee or executor himself (2-). A profit so accountable 
 for may be interest made of assets, or of the trust fund (a), or a 
 sum greater than the interest (J), as profit produced by employ- 
 ing money in trade (c), which may be a trading adventure, in 
 which the executor embarks the money (c?), or may be the testa- 
 tor's trade continued by the executor (e). 
 
 128, 130 ; Dornford v, Dornford, 12 Ves. 
 127, cited 1 Madd. 301. 
 
 (u) Stewart v. Lord Blaney, 2 Ridgew. 
 P. C. 204; Bruere v. Pemberton, 12 Ves. 
 386. See also Wilkins v. Hunt, 2 Atk. 
 151, and Ryves v. Coleman, ib. 439. 
 
 (v) Lowson V. Copeland, 2 Bro. C. C. 
 156. 
 
 (w) Tebbs V. Carpenter, 1 Madd. 290. 
 
 (x) Haslewood v. Baldwin, Cas. T. 
 Finch, 457. 
 
 (y) Ratclife v. Graves, 1 Vern. 196, 2 
 Ch. Cas. 152 ; Lee v. Lee, 2 Vern. 548 ; 
 Harcock v. Wrenham, 1 Brownl. & G. 
 77. See Grosvenor v. Cartwright, 2 Ch. 
 Cas. 21, cited ib. 152, and 1 Vern. 197. 
 The doctrine contained in Adams v. Gale, 
 2 Atk. 106, and in Child v. Gibson, ib. 
 603, is overturned by many modern cases ; 
 I Madd. 303, 304. The difference 
 
 taken in Bromfielf v. Wytherley, Prec. 
 Ch. 505, is likewise overruled ; 1 Cox, 
 25. 
 
 (z) Lee V. Lee, 2 Vern. 548 ; Piety v. 
 Stace, 4 Ves. 622 ; Adye v. Feuilleteau, 1 
 Cox, 25. 
 
 (a) Ratcliffe v. Graves, 1 Vern. 196, 
 2 Ch. Cas. 152 ; Lee v. Lee, 2 Vern. 
 548 ; Horsley v. Chaloner, 2 Ves. 83, 85. 
 See Linch v. Cappy, 2 Ch. Cas. 35. 
 
 (6) Pocock V. Reddington, 5 Ves. 794, 
 799, 800. 
 
 (c) Godb. 32. 
 
 {d) See Brown v. Litton, 1 P. W. 140, 
 10 Mod. 20. 
 
 (e) Luntley v. Royden, Cas. T. Finch, 
 381 ; Heathcote v. Hulme, 1 Jac. & W. 
 128, 131. See Walker v. Woodward, 1 
 Russ. 107 ; and see, likewise, 9 fllod. 5th 
 ed.460.
 
 S. VII.] OF LOSSES, IN CASE OF LOAN OR INVESTMENT. 517 
 
 When stock, or money in the public funds, is sold by a trustee 
 contrary to his trust, the cestui que trust has a right to elect to 
 have the stock restored, or to have the produce of the sale paid to 
 him {f). And if he elects to have the stock restored, the trustee is 
 not allowed to benefit by the circumstance, that he can replace the 
 stock at a less price than that at which he sold it. It must be 
 restored in such a manner, that he cannot get any money by the 
 transaction [g). For if the stock can be replaced for a sum less 
 than that for which he sold, he will be ordered to invest the sur- 
 plus in the same stock for the same uses (Ji). If the cestui que 
 trust elects to have the produce of the sale paid to him, it is pay- 
 able with interest (z), at 5/. per cent, (j), or at a greater rate if 
 the trustee has made more than 5Z. per cent, interest (/c). 
 
 SECTION VII. 
 
 OF LOSSES, IN CASE OF LOAN OR INVESTMENT. 
 
 It is decided by a Court of Equity, that an executor or trustee 
 is not by the general power of his office, authorised to lend an 
 infant's money on personal security (/); and that therefore he 
 renders his own property liable to make good any loss occasioned 
 by his lending such money on the security of either a bond (m), 
 or promissory note (n). And the like responsibility is incurred, 
 although the money lent belongs not to an infant, but to an adult 
 
 (/) Harrison y, Harrison, 2 Atk. 121 
 Bostock V. BLakeney, 2 Bro. C. C. 656 
 Ex parte Shakeshaft, 3 Bro. C. C. 197 
 Forrest v. Elwes, 4 Ves. 497. 
 
 (g} Earl Powlet v. Herbert, 1 Ves. 
 jun. 297. 
 
 (h) Ibid. 
 
 (i) Forrest v. Elwes, 4 Ves. 497. 
 
 (j) Pocock V. Reddington, 5 Ves. 794 ; 
 Long V. Stewart, ib. 800, n. ; Bate v. 
 Scales, 12 Ves. 402. 
 
 (k) Pocock V. Reddington, 5 Ves. 799, 
 800. 
 
 (0 1 Cox, 25 ; 2 Cox, 1 ; 3 Swanst. 
 87, 
 
 (m) Adye v. Feuilleteau, 1 Cox, 24, 3 
 Swanst. 84, n, ; Holmes v. Bring, 2 Cox, 
 1 ; which cases contradict Harden v. 
 Parsons, I Eden, 145, cited 3 Swanst. 
 62, and 86, n. ; Harvey v. Parsons, S. C, 
 cited 1 Cox, 24, 25. 
 
 (n) See the cases in the last note, and 
 Ryder v. Bickerton, 3 Swanst. 80, n., 1 
 Eden, 149, n. ; Vigrass v. Binfield, 3 
 Madd. 62 ; and Keble v. Thompson, 3 
 Bro. C. C. 112.
 
 518 OF LOSSES, IN CASE OF LOAN OR INVESTMENT. [CH. XXXVIII. 
 
 person. In Adye v. FeuiUeteau, executors were held to be per- 
 sonally responsible for infants' money, which they had lent on 
 bond; and counsel inquiring of Lord Loughborough, — " Does 
 your Lordship decide upon the ground of its being infants' 
 money?" Lord Loughborough replied, — "Upon the ground 
 of its being trust money. The circumstance of their being in- 
 fants only affects the case, inasmuch as it is impossible there can 
 be any circumstances of conduct in them, which can authorise the 
 executor, as there might have been, had they been adults" (o). 
 
 Executors have, by a Court of Equity, been held not to be 
 authorised to lend trust money on personal security, although 
 the will empowered them to act and do, as they should think 
 would be most for the advantage of the cestui que trust or 
 legatee [p) ; and, in another case, although the will empowered 
 them to lay out a legacy " in the funds, or on such other good 
 security as they could procure and think safe " (q). And in a 
 third case, where a person bequeathed 500/. to his executors, in 
 trust to place out the same upon real or personal security, as 
 should be thought good and sufficient; and the executors lent 
 the money to a trader on his bond; it was decided, that the 
 authority given to the executors did not extend to an accom- 
 modation, or to empower them to accommodate a trader with a 
 loan of the money (r). And, in the first and last of these three 
 cases, the borrower having become a bankrupt, the executors 
 were decreed to be personally answerable for the loss. 
 
 It is, however, to be mentioned, that in a late case a Court of 
 Law seems to have expressed an opinion, that, at law, an executor 
 may not be guilty of a devastavit, by lending, on private and per- 
 sonal security, money which is not wanted for present purposes, 
 the executor exercising in the loan a fair and honest discre- 
 tion (s). 
 
 In Mai'sli V. Hunter, it appears Sir John Leach ruled, " that 
 if trustees may invest in stock, or on real security, and they lend 
 
 (o) 3 Swanst. 87, n. 
 (?)) Terry v. Terry, Prec. Cli. 273, 
 Glib. Eq. Rep. 10. 
 
 (g) Wilkes v. Steward, Cooper, 6. 
 
 ()■) Langston v. Ollivunt, Coop. 33. 
 See 1 Ves. & B. 359, 
 
 (s) Webster v. Spencer, 3 Barn. & Aid. 
 363, 364.
 
 S. VII. J OF LOSSES, IN CASE OF LOAN OR INVESTMENT. 519 
 
 on personal security, and thereby the money is lost, they shall be 
 answerable, not for the amount of stock, which might have been 
 purchased, but for the principal money lost. If real security had 
 been taken, the principal money only would have been forthcoming 
 to the trust, and the want of real security is all that is imputable to 
 the trustees" (^). On investing money on real security, it may 
 here be added, that Lord Harcourt seems to have expressed an 
 opinion, that an executor, who puts out money on real security, 
 is not personally answerable for a loss occasioned by a failure of 
 that security, if it was one, which, at the time of the investment, 
 there was no ground to suspect («). 
 
 When the Court of Chancery invests trust money in the public 
 funds, it, except in particular cases {v), constantly invests it in 
 the three per cent, consolidated bank annuities (w). And as the 
 Court will protect an executor or trustee in doing what it would 
 itself order him to do {x), the stock mentioned is that, in which an 
 executor or trustee, whose duty leads him to lay out money in the 
 public funds, will, in general cases, if he acts prudently, invest it. 
 
 (0 6 Madd. 295. 
 
 (w) 1 P. W. 141. It may here be 
 mentioned, that the words "real secu- 
 rity," in their common sense and accep- 
 tation, mean mortgages, or other incum- 
 brances, arffecting land. " The word 
 real," Lord Hardwicke says, " is a term 
 adopted in the law, and [real securities] 
 can never be understood in any other 
 sense than landed securities ; as, for in- 
 stance, in the distinction which has been 
 made between real composition and mo- 
 dusses ; real composition does not mean 
 any substantial, permanent security for 
 the payment of the composition, but land 
 substituted in lieu of tithes, or a rent- 
 charge issuing out of land." 3 Atk. 808, 
 809, 
 
 (v) Caldecott v. Caldecott, 4 Madd. 
 189, where a will directed dividends to 
 be paid at Lady-day and Michaelmas ; 
 and, for this reason, the Court ordered the 
 trust-money to be laid out in the three 
 per cent, reduced annuities, the dividends 
 
 of this stock being payable at the times 
 mentioned. In Lord v. Godfrey, 4 Madd. 
 455, the Court would not permit executors 
 to change bank long annuities, an ex- 
 piring fund, into three per cent, consols., 
 as by this means the relative interests of 
 the legatees would be altered. In Davies 
 V. Wattier, 1 Sim. & St. 463, a sum of 
 navy five per cent, annuities was ordered 
 to be transferred to the Accountant Ge- 
 neral, the Court appropriating this money 
 for the payment of an annuity bequeathed. 
 
 (w) Hancom v. Allen, 2 Dick. 498 5 
 Peat V. Crane, ib, 499, n- ; Franklin v. 
 Frith, 3 Bro. C. C. 433 ; Howe v. Earl 
 of Dartmouth, 7 Ves. 137, 151 ; Holland 
 V. Hughes, 16 Ves. 114, 3 Meriv. 685 ; 
 Norbury v. Norbury, 4 Madd. 191. 
 
 (x) Ex parte Champion, cited 3 Bro^ 
 C. C. 147, and 7 Ves. 150 ; Franklin v. 
 Frith, 3 Bro. C. C. 434 ; Hancom v. 
 Allen, 2 Dick. 498. See also 4 Ves. 
 369.
 
 520 OF PARTING WITH PROPERTY [CH. XXXVIII. 
 
 If laid out in the three per cent, consolidated bank annuities, 
 and the stock happens afterwards to fall in its price, the cestui que 
 trust, or party beneficially entitled to the trust money, is, although 
 an infant, bound, and the executor or trustee is not answerable 
 for the loss {y). But by the decision of, or opinion expressed in, 
 a Court of Equity, it appears an executor or trustee is personallj'^ 
 responsible for a loss occasioned to the trust estate, by his laying 
 out trust money in any other stock (2), as in bank stock (c/), bank 
 long annuities (6), or South Sea stock (c). 
 
 SECTION VIII. 
 
 OF PARTING WITH PROPERTY TO A CO-EXECUTOR. 
 
 In Crosse v. Smith, G. executed a bond to R., and by his will 
 appointed M. and S. executors, who proved the will, and adminis- 
 tered. The defendant S. lived at Southampton, and the de- 
 fendant M. resided in London. R. wrote to M. requiring 
 payment of the bond. The defendant S., having 400/. of G.'s 
 effects in his hands, remitted that sum to M. for the purpose of 
 paying this bond, of which he had notice from M. At the time 
 of the remittance, M. was in good credit ; and S. knew that he was 
 a simple-contract creditor of G. to a larger amount than 400/. 
 M. applied the 400/. towards the payment of the simple-contract 
 debt due from G. to him. Afterwards M. became bankrupt. In 
 an action brought by a creditor, namely, on the bond, against the 
 executors, a Court of Law stated the question to be, " whether S., 
 
 (y) Ex parte Champion, cited 3 Bro. 
 C. C. 147, and 7 Ves. 150; Peat v. 
 Crane, 2 Dick. 499, n. See also 1 Dick. 
 126. 
 
 (z) Hancom v. Allen, 2 Dick. 498. 
 See Allen v. Hancom, 7 Bro. P. C. ed. 
 Toml. 375. 
 
 (a) 3 Atk. 444 ; 7 Ves. 150, 151, 15-2, 
 193. On bank annuities, see 3 Atk. 
 444. 
 
 (b) See 7 Ves. 193, and Lord v. God- 
 frey, 4 Madd. 455. 
 
 (c) Trafford v. Boehm, 3 Atk. 440, 
 444. On South Sea annuities, see 3 
 Atk. 444, and Adie v. Fennilitteau, 2 
 Dick. 499, n. The correct name of this 
 case is probably Adye v. Feuilleteau, 
 which, on another point, is reported in I 
 Cox, 24, and 3 Swanst. 84, n.
 
 S. VIII.] TO A CO-EXECUTOR. 521 
 
 having once, as executor of G., had 400/. of G. in his hands, 
 liable to the payment of R.'s bond debt, and capable of being- so 
 applied, is discharged in point of law, by having paid that money 
 over to his co-executor, M., for the purpose of being applied by such 
 co-executor in payment of this bond, but who was afterwards guilty 
 of a devastavit in respect thereto." And the Court decided, that 
 " S., having once received, and fully had under his control, assets 
 applicable to the payment of this bond debt, was responsible for 
 the application thereof to that purpose; and such application 
 having been disappointed by the misconduct of his co-executor, 
 whom he employed to make the payment in question, he is liable 
 for the consequences of such misconduct, as much as if the mis- 
 application had been made by any other agent, of a less accredited 
 and inferior description." And, accordingly, a verdict, which liad 
 been found against S., was adjudged to stand (d). 
 
 The remaining cases noticed in this section have occurred in a 
 Court of Equity. 
 
 In a case before Lord King, it was in argument stated by 
 counsel, that his Lordship "adjudged in the case of Lane v. 
 Wroth, that if one executor pays over to another executor money 
 of the testator he has received, this shall not discharge him of it. 
 And in the case of Stanley v. Darington, the Master of the Rolls 
 was of the same opinion, it coming before him in judgment on 
 the Master's special report in 1727 " (e). In Townsend v. 
 Barber, a person by his will appointed three executors ; who all 
 proved. S. principally acted, and possessed the estate, and, 
 among other particulars, fourteen East India bonds, which he 
 permitted W., another of the executors, to get into his possession, 
 who disposed of them, and afterwards became a bankrupt, 
 whereby they were lost to the testator's estate. Sir T. Clarke 
 decided, and in favour, it should seem, not of creditors, but resi- 
 duary legatees, that the assets of S. were liable to make good the 
 loss of the bonds. And this decision he grounded on the circum- 
 stances, that S. possessed the bonds, and had a right to keep pos- 
 session, and that he voluntarily and unnecessarily permitted W. 
 
 (d) 7 East, 246, 3 Smith, 2(;3. | («) Mosely, 36.
 
 522 OF PARTING WITH PROPERTY L^^H* XXXVIII. 
 
 to take them, and carry them away {f). In Sadler v. Hohbs, 
 Lord Thurlow stated, — " I take it to be clear, that where by any 
 act, or any agreement, of the one party, money gets into the 
 hands of his companion, whether a co-trustee or co-executor, they 
 shall both be answerable " {g). And again, — " Where one exe- 
 cutor takes the money but of his own authority, his companion 
 shall not be charged (A) ; but if he puts the money into the hands 
 of his companion, he shews he had it in his power to secure it, 
 and that his companion, for some reason, was permitted to obtain 
 possession of the money " [i). In Balchen v. Scott, T. and W- 
 were executors. Both proved the will, but the former alone 
 acted, and afterwards became insolvent. W. received a letter by 
 the post, from a debtor to the estate, inclosing a bill of exchange 
 for lOOZ., on account of his debt; which bill he immediately sent 
 to the acting executor. On the ground that VV. was not an act- 
 ing executor, Lord Loughborough decided that W. was not 
 liable, in favour of the residuary legatee, to make good the money 
 lost {j). In Bacon v. Bacon, B. and K. were executors of a 
 person who lived in Suffolk. B. resided in London, and K. at 
 Ipswich. K. called on B. in London, and requested an advance 
 of 700/., to enable him to discharge the funeral expenses, and to 
 pay such of the creditors of the testator as lived in the neighbour- 
 hood; with which request, K. informing B. he had no money 
 belonging to the testator in his hands, B. immediately complied ; 
 knowing that considerable debts were owing from the testator to 
 persons in the neighbourhood of K. And, under similar circum- 
 stances, B. at another time advanced 500/. to K. K. died insol- 
 vent ; and the Master having allowed B. only 787/. 2s. 2d., being 
 the amount of the debts actually paid by K., B. excepted to the 
 report. And Lord Loughborough, by allowing this exception, 
 discharged B. from the loss occasioned to the estate. His Lord- 
 
 (/) I Dick. 356. 
 
 (g) 2 Bro. C. C. 116. See also Capell 
 V. Gostow, Toth. 88. 
 
 (/^) To this effect, see also Herbage v. 
 Backslmw, Toth. 86, and John v. Kings- 
 ton, ib. 87. 
 
 (0 2 Bro. C. C. 116. See also Dines 
 V. Scott, 1 Turn. & R. 360, 361, and 
 Crisp V. Spranger, Nels. 109. 
 
 (j) 2 Ves. jun. 678; cited 7 Ves. 
 193.
 
 S. VIII.] TO A CO-EXECUTOR. 523 
 
 ship relied on the facts, that " K. was in no insolvent circum- 
 stances ; was a man in business at Ipswich ; had been the attor- 
 ney of the testator ; was acquainted with all his affairs ; had his 
 accounts in his hands; and the first payment was three weeks 
 after his death ; and the payment \vas made by B. only because 
 he happened to have money of the testator's in his hands at the 
 time." His Lordship appears also to have thought, that as B. 
 lived in London, it was, " in the ordinary management of exe- 
 cutor," necessary and lawful to remit the money to K., to pay 
 the debts ; and that it was not in B.'s power " to pay the funeral 
 expenses, and the number of small debts appearing on the books 
 of the testator, without sending the money " {k). In Langford v. 
 Gascoyne, G., S., and L., the defendants, were executors ; and the 
 Master charged all of them with the receipt of 761 Z. 55., under 
 these circumstances, proved by the affidavit of a witness; stating 
 that the day after the testator's funeral, the three executors met 
 at the house of the testator ; and Mrs. L., the widow, left the 
 room to fetch a bag of money ; and, upon her return with it, 
 asked the deponent, to which of the defendants she should deliver 
 it; and the deponent, not then having a good opinion of G.'s 
 circumstances, advised her to deliver it to S. ; upon which she 
 passed by G. and L., and delivered the bag into the hands of S., 
 who counted the money over, and then delivered it into the hands 
 of G. Sir W . Grant held, that S., having possessed the money, 
 and, without a sufficient excuse, delivered it out of his possession 
 to G., was answerable for what afterwards became of it, and 
 therefore for the loss, which that parting with the money occa- 
 sioned. As to the other executor, L., he said, " It is impossible 
 to charge him ; he has neither done nor said any thing, that in 
 any degree contributed to the loss of the money, or to its getting 
 into the hands of G. It is not incumbent upon one executor by 
 force to prevent its getting into the hands of another" (Z). In 
 Davis V. Spurting, W. B. and J. B. were entitled, as tenants in 
 common in fee, to a freehold estate. W. B., by his will, 
 appointed J. B., and C. and S., his executors ; and empowered 
 
 {k) 5 Ves. 331 ; cited 7 East, 258, 7 ! Sch. & Lef. 341, and 3 Sim. 272. 
 Ves. 193. 11 Ves. 335, 16 Ves. 481, 1 j (/) 11 Ves. 333.
 
 524 PARTING WITH PROPERTY TO A CO-EXECUTOK. [CH. XXXviii. 
 
 J. B. to sell his, the testator's, moiety of the freehold estate ; and 
 directed the purchase-money to be applied and disposed of in the 
 same manner as his personal estate, subject to the payment of his 
 funeral and testamentary expenses, and debts. The three exe- 
 cutors proved the will ; and J. B. sold the freehold estate, as well 
 W. B.'s moiety as his own, and in the sale employed, as his 
 agent, his co-executor C. And on the execution of the con- 
 veyance by J. B., C. received the price of the estate from the 
 purchaser, and paid it over to J. B.'s banker, on J. B.'s sepa- 
 rate account. The money was afterwards misapplied by J. B. ; 
 and for this misapplication Sir J. Leach held, " that C. was 
 not answerable ; that C. had no legal right to retain the price of 
 W. B.'s moiety of the estate ; for it was in his hands, not as exe- 
 cutor, but simply as agent of J. B., who alone had the power to 
 sell that moiety, and to receive the price of it " (m). 
 
 From Crosse v. Smith it is, perhaps, to be inferred, that a Court 
 of Law is less lenient, than a Court of Equity is, to an executor, 
 who parts with assets to his co-executor. And from the remain- 
 ing authorities, that have been noticed in this section, these 
 general conclusions may, it seems, be drawn, — that, in a Court 
 of Equity, it is, generally speaking, the duty of an executor not 
 to part with assets to a co-executor ; but that, in some instances, 
 this transfer may be safely made ; and that whenever it is made, 
 the executor who so disposes of the assets cannot, in case of loss, 
 justify the act, unless it is done from some reasonable cause. 
 These conclusions appear to be expressed by Sir W. Grant, when 
 he says, — " The rule in all the cases is, that if an executor does any 
 act, by which money gets into the possession of another executor, 
 the former is equally answerable with the other : not where an 
 executor is merely passive, by not obstructing the other in receiv- 
 ing it. But if the one contributes in any way to enable the other 
 to obtain possession, he is answerable, unless he can assign a 
 sufficient excuse, as tliere was in Bacon v. Bacon a justifiable 
 object" (n). And the same doctrine seems to be thus expressed 
 by Sir J. Leach, — " Where an executor, possessing assets of his 
 testator, hands over those assets to a co-executor, and they are 
 
 (m) 1 Russ. & M. 64. | (h) 11 Ves. 335.
 
 S.IX.] LIABILITY FOR PROPERTY PLACED WITH BANKERS. 525 
 
 misapplied by that co-executor, there the executor, who so hands 
 them over, shall be answerable for their misapplication ; because 
 he had a legal right to retain them, and might have preserved 
 them, and it was his duty to do so ; unless, indeed, they were so 
 handed over for the express purpose of a special administration 
 by the co-executor, as for the payment of a particular debt " (o). 
 
 SECTION IX. 
 
 OF AN executor's LIABILITY FOR PROPERTY PLACED WITH 
 
 BANKERS. 
 
 If an executor or trustee places money, or other assets, or trust 
 estate, to account in a bank, and afterwards the bankers become 
 insolvent or bankrupts, such executor or trustee may, in some 
 cases, not be personally responsible for the loss by this means 
 occasioned, if the deposit was made hondjide, and from a sufficient 
 cause, as for the purpose of temporary security of the property {p). 
 And a circumstance favourable to the exoneration of an executor 
 is, that money paid by him into a bank was paid to the bankers, 
 with whom the testator in his life-time chose to entrust his 
 money (^). 
 
 Executors or trustees, who, in the event of a loss by means of 
 the failure of a bank, claim to be free from personal liability to 
 make it good, may rest this claim on the principle, that a Court of 
 Equity " does not expect them to take more care of the property 
 entrusted to them, than they would do of their own " (r). 
 Such an executor or trustee is, however, ajffected by this principle 
 also, — " If you desire to deal for me as you would for yourself, it 
 must be so, that the dealing for me, if unfortunate, shall not be 
 
 (o) 1 Russ. & M. 66. 
 
 (p) Churchill v. Hohson, 1 Eq. Cas, 
 Abr. 241 ; Attorney General v. Randall, 
 21 Vin. Abr. 534, 2 Eq. Cas. Abr. 742; 
 Knight V, Earl of Plymouth, 1 Dick. 120, 
 126, 3 Atk. 480, cited Amb. 219, 3 Ves. 
 566, and 1 1 Ves. 380 ; Ex parte Belchier, 
 
 Arab. 219 ; Adams v. Claxton, 6 Ves. 
 226, 228, 231. Salway v. Salway, 4 
 Russ, 60. 
 
 (9) Churchill V. Hobson, 1 P. W. 243 ; 
 Knight V. Earl of Plymouth, 1 Dick. 120, 
 3 Atk. 480, cited 3 Ves. 566. 
 
 (r) 1 Jac. & W. 247.
 
 526 LIABILITY FOR PROPERTY PLACED WITH BANKERS. [CH.XXXVI II. 
 
 more so to me, than it would have been to you, if it had been for 
 yourself" (s). The dealing maybe unfortunate, in the event of 
 the bankruptcy of the executor or trustee himself. And then if 
 money, paid by the executor or trustee into a bank, was paid to 
 his own private or general account there, this dealing for the 
 cestui que trust may be more unfortunate to the latter, than the 
 like dealing would have been to the executor or trustee, if he had 
 dealt for himself. On the failure of the executor or trustee, his 
 estate has all the benefit of the money ; the parties for whom he 
 acts have none : he does not therefore deal for them as he would 
 for himself (/). The result of the dealing is not as beneficial to 
 them, as the like dealing would have been to the executor or 
 trustee, if he had dealt for himself (?/). And when money is by 
 an executor or trustee paid into a bank, it is consequently a cause 
 to charge him personally with the loss occasioned by the failure 
 of the bankers, that the money was paid in, not to an account of 
 the trust estate, but to the executor's or trustee's own private 
 credit or account (?;). In Fletcher v. Walker^ a person by her 
 will bequeathed two houses to her executor, in trust to sell, and 
 apply the produce in payment of her debts, and to place the 
 residue on real or government security, and apply the interest for 
 the benefit of certain legatees. The executor sold the houses, 
 and out of the purchase-money made some payments, and placed 
 the residue in the hands of his banker, who afterwards failed. 
 The executor was decreed to make good the sum, with interest ; on 
 the grounds, that, instead of investing the money according to the 
 directions in the will, he placed it in a banker's hands, not appro- 
 priating it to the account of the legatees, but placing it generally 
 in their hands, with other monies of his own; and that as the 
 testatrix's debts were all paid, he had no excuse for placing the 
 money at the banker's {w). In Boivth v. Horvell, a testator directed 
 his executors with all convenient speed to convert all his property 
 
 (s) 1 Jac.& W. 248. I Madd. 74; Massey v. Banner, 4 Madd. 
 
 (0 Ibid. 413, 1 Jac. & W. 241. See also 11 Ves. 
 
 (w) 1 Jac. & W. 247. 61. 
 
 (v) Wren v.Kirton, 11 Ves. 377, cited (w) 3 Madd. 73. 
 1 Jac. & W. 247 ; Fletcher v. Walker, 3 |
 
 S. X.] AN executor's CONTINUING HIS TESTATOR's TRADE. 527 
 
 into money, and to apply the same first in paying his debts, and 
 then to lay out the residue in mortgages. At the death of the 
 testator, certain stock, bills, and bonds, and other negotiable 
 securities, part of his property, to a considerable amount, were 
 standing in the name and in the hands of his banker, trans- 
 ferred and indorsed to him by the testator, and in which 
 banker the testator had great confidence. After the testator's 
 death, and without the knowledge of the executors, the banker 
 sold several of the securities, and soon afterwards died insolvent. 
 Lord Loughborough held, that the executors were not to be 
 charged with the loss. The banker, his Lordship observed, was 
 possessed by the testator's act of the disposable securities (x). 
 
 SECTION X. 
 
 OF AN executor's CONTINUING THE TRADE OF HIS TESTATOR. 
 
 1. When this continuance of the trade is not directed by the 
 will of the testator. 
 
 2. When it is so directed. 
 
 L — Generally speaking, the office of an executor does not 
 authorise him to continue the trade of the testator ; and, on the 
 contrary, he commits a breach of trust by continuing the testa- 
 tor's property in it (?/). " A trade," says Lord Mansfield, " is 
 not transmissible : it is put an end to by the death of the trader. 
 Executors eo nomine do not usually carry on a trade ; if they do 
 so they run great risk ; and, without the protection of the Court 
 of Chancery, they would act very unwisely in carrying it on. I 
 remember many instances of trade being carried on under the 
 direction of the Court of Chancery" (z). The only way in 
 which an executor can safely proceed to continue his testator's 
 trade seems to be, to file a bill in Chancery, and to have by this 
 means an inquiry directed, whether it would be for the benefit of 
 
 (x) 3 Ves. 565. 
 
 (3/) Barker v. Parker, 1 Durn. & E. 
 
 295 ; Ex parte Watson, 2 Ves. & B. 415. 
 (s) 1 Durn. & E. 295.
 
 528 or AN executor's continuing [ch. xxxviir. 
 
 the parties beneficially interested, that the trade should be con- 
 tinued {a). In fViq/itman v. Totvnroe, T. and D. were in part- 
 nership with W. in trade. W. died; and after his death his 
 executors continued his share of the property in the trade, for the 
 benefit of his infant daughter. The trade was thenceforth carried 
 on under the same firm of T. and Co., as before W.'s death. In 
 making up the accounts, the executors divided the profit and loss 
 of the business with the other partners T. and D. ; carrying on 
 the business solely for the benefit of the daughter of W. ; 
 charging her in their account as executors with the loss ; giving 
 her credit for the profits of the trade ; and taking no part of the 
 profits to their own use. The business was managed by T., and 
 it did not appear that the executors ever interfered, except in 
 settling the accounts. The bill of exchange, stated in the decla- 
 ration, was drawn by the plaintiff in favour of T. and Co., at the 
 request of T., and for the use of the firm of T. and Co., upon an 
 undertaking, which they did not fulfil, to provide money for it 
 when it should become due. It was afterwards indorsed by T. 
 in the name of the firm of T. and Co., and was paid away in dis- 
 charge of a debt of the firm. For the payment of this bill, the 
 executors were held to be at law personally liable, as partners in 
 the trade. " The executors," it was said, " by embarking the 
 property in trade in the first instance, contracted a responsibility in 
 a Court of Law, which their subsequentHipplication of the profits 
 to purposes not of personal benefit cannot afterwards vary. At 
 law they became the legal proprietors in respect of every thing 
 belonging to the trade, and consequently are liable to the legal 
 debts" {b). An executor who continues his testator's trade, and 
 by his dealings makes himself a trader within the meaning of the 
 bankrupt laws, may be made a bankrupt (c). But if an executor 
 only disposes of the stock of his testator, this exercise of his duty 
 will not make him a trader, and liable to a commission of bank- 
 ruptcy. And even if an executor is the representative of a wine- 
 cooper, and, finding it necessary to buy wines to refine the stock 
 
 (o) 1 Jac. & W. 130. I (c) Ex parte Kutt, 1 Atk. 102 ; Ei 
 
 (6) 1 M. & Sel. 412. \ parte Watson, 2 Ves. & B. 414.
 
 S. X.] THE TRADE OF HIS TESTATOR. 529 
 
 left by the testator, makes this purchase, this dealing* will not 
 make him a trader (d). In Ex parte Watson, where a widow and 
 administratrix of her husband entered into partnership with her 
 husband's partners, and agreed that the whole of his share and 
 property in the former partnership should continue in the new 
 one, and a joint commission of bankruptcy issued against this 
 firm ; she was allowed as administratrix to prove, as a debt under 
 the commission, a sum of money, the amount of principal and in- 
 terest due from the partnership to her children, in respect of 
 certain shares of their father's property by the custom of York (e). 
 Parties beneficially entitled to the capital and stock, employed 
 by an executor in his testator's trade, may compel him to render 
 an account of the profits made in the trade, during the time it 
 was carried on by him. To these profits they, and not the ex- 
 ecutor, are entitled (/*). And they are, moreover, at liberty to 
 elect to take either those profits, or interest on the capital, and value 
 of the stock, employed {g). If they decide to have interest, they 
 are entitled to it at the rate of 5Z. per cent. (A). In Heathcote v. 
 Hulme, the plaintiifs insisted on their right to profits up to a cer- 
 tain time, and to interest from that period. A right of this kind 
 might entitle the party to claim profit for the period the trade 
 was productive, and interest for the time losses were incurred in 
 it(z). And on the circumstances in Heathcote \.Hulme, Sir T. 
 Plumer decided, the plaintiffs could not call for profits for one 
 period and interest for another ; but must take either interest for 
 the whole time that the trade was carried on, or profits for the 
 whole time [j) ; although it seems to be there acknowledged, 
 that in some instances the Court might be disposed to allow the 
 time to be divided. " Circumstances," it was said, " might 
 come to the knowledge of the executors, that would make it un- 
 
 (J) Ex parte Niitt, 1 Atk. 102. 
 
 (e) 2 Ves. & B. 414. 
 
 (/") Luntley v. Royden, Cas. T. Finch, 
 3bl ; Heathcote v. Hulme, 1 Jac. & W. 
 128, 131. See also Brown v. Litton, 1 
 P. W. 140, 10 Mod. 20. 
 
 (g) Ex parte Watson, 2 Ves. & B. 415; 
 
 Heathcote v. Hulme, 1 Jac. & \V. 122 ; 
 Burden V. Burden, cited ih. 134. 
 
 (/t) Heathcote v. Hulme, 1 Jac. & VV, 
 134, 135. See also Attorney General v. 
 Solly, 2 Sim. 518. 
 
 {i) 1 Jdc. e»: \V. 128, 129. 
 
 (j) 1 Jac. & \V. 122. 
 
 M M
 
 530 OF AN executor's continuing [CH. XXXVIII. 
 
 conscientious to continue the property longer in the trade ; they 
 might embark it in a new trade, or at a different place, or in ad- 
 ventures substantially new at the same place." And without 
 saying what would be the effect of such occurrences, it was ad- 
 mitted " it might then be argued, that it was a perfectly new 
 concern, and gave to the cestuis que trust a new right to adopt or 
 relinquish it" (k). 
 
 On the power or duty of executors to complete work, which, 
 in the way of his trade, a testator has begun, or to fulfil an agree- 
 ment entered into by the testator to perform certain work, and 
 which at the time of his death was not begun, there occurs the 
 following case of Marshall v. Broadhurst. In this cause, which 
 was an action of assumpsit, the declaration contained two sets of 
 counts. The first was for work and labour done, and materials 
 found, and goods sold and delivered by the testator, laying the 
 promises to the testator ; and the second was for work and labour 
 done, and materials found and used about such work and labour, 
 and goods sold and delivered by the plaintiffs, as executors, laying 
 the promises to the plaintiffs, as executors. The defendant 
 pleaded Non assumpsit. At the trial before Tindal, C. J., the 
 following appeared to be the facts of the case : — The defendant 
 employed the testator to erect a temporary gallery, and other 
 wood-work, for the purposes of a public dinner. Shortly after 
 the order was given, and before it was begun, the testator died, 
 and the plaintiffs, as executors, performed the work, using the 
 materials of the testator. Upon these facts, it was objected, that 
 the plaintiffs could not recover ; that there was no evidence to 
 support the first set of counts ; and, with respect to the second 
 set of counts, that there was no evidence of goods sold ; that the 
 work and labour were done on the personal contract of the ex- 
 ecutors, for which they could only sue in their individual capa- 
 city, and that the materials alleged to have been supplied for 
 such work and labour could not be separated from the work and 
 labour. The learned Chief Justice was of opinion, that the plain- 
 tiffs could not recover for the work and labour, but thought that 
 
 (h) 1 Jac. & W. 133.
 
 S. X.] THE TRADE OF HIS TESTATOR. 531 
 
 they might for the materials, because the allegation was divisible ; 
 and the plaintiffs had a verdict for the amount of the materials, 
 with liberty for the defendant to move to enter a nonsuit. Such 
 a motion was accordingly made; and "Per Curiam.— It is a 
 plain rule, that, whenever the subject matter of the action 
 would, when recovered, be assets, the executor may sue in 
 his representative character ; Ord v. Fenioick (Z), Cornell v. 
 Watts (vi). If a party contract for himself and his executors 
 to build a house, and die, the executors must go on, or they 
 would be liable to damages for not completing the work; if 
 they go on, it is work and labour done by them as executors ; 
 they may recover as executors, and the money, when recovered, 
 will be assets in their hands. Suppose a party to have engaged 
 to build a house, and to have procured all the necessary materials ; 
 in the event of his death may not the executors complete the 
 work, or must they dispose of the materials at a loss to the 
 estate? Or if a man build half a house, and die, if the ex- 
 ecutors complete the work, are there to be two actions in respect 
 of the same job? Such a rule would, in many cases, operate 
 much to the detei'ioration of property. If, for instance, a book- 
 seller undertake to publish a work in parts, and, before the com- 
 pletion, die, a subscriber has a claim upon his estate to complete 
 the work, for otherwise those parts which he has purchased, upon 
 the faith of the work being completed, are useless. When the 
 law speaks of executors not carrying on the business of their tes- 
 tator, it means that they are not to buy and sell. We do not 
 say that executors are bound to go on to an indefinite extent, but 
 it is reasonable that they should do so to a certain extent. For 
 instance, if a man make half a wheelbarrow, or half a pair of 
 shoes, and die, the executors may complete them, and they are 
 not bound to sacrifice the property of their testator by selling 
 articles in an imperfect state. It is otherwise where the testator 
 enters into a personal engagement to be performed by himself 
 only. In the absence of authority to the contrary, it seems 
 
 (/) 3 East, 110. (m) 6 East, 405 
 
 M M 2
 
 532 OF AN executor's continuing [cm. XXXVIII. 
 
 reasonable that the plaintiffs should recover under the circum- 
 stances of this case " (»). 
 
 2. — A will sometimes directs the executors to carry on the trade 
 of the testator (o) ; and then the testator authorises the trade to 
 be carried on either with the whole of his assets, or with a certain 
 portion only, set apart for that purpose. In either case, if tlio 
 executor continues to carry on the trade, he makes not only the 
 testator's estate, so employed under the will (/>), but himself per- 
 sonally, and his own property, liable to debts incurred in the trade 
 after his commencement to carry it on (</) ; and moreover makes 
 himself personally liable to the bankrupt laws (r). 
 
 If a testator authorises his trade to be continued with the whole 
 of his property, then the whole of it is accordingly subject to the 
 debts contracted in the trade (s). But if, as it more frequently 
 perhaps happens, the testator limits the property he means to be 
 so employed, then this portion only, which he so sets apart, is 
 responsible to the creditors, and his general assets are not liable 
 to their debts (t). Such portion may be the testator's capital in 
 the trade {//,), or a specific sum by the will authorised to be traded 
 with (t-), or it may be, after legacies bequeathed, the residue of 
 the testator's personal estate (w). 
 
 If a person bequeaths legacies, and directs his trade to be, 
 after his death, carried on with a particular part only of his pro- 
 perty, but without limitation of time, it appears tliat if the party, 
 who under the will continues the trade, becomes a bankrupt, only 
 the property declared to be embarked in the trade is answerable 
 
 (ji) 1 Crompt. & Jerv. 403. 
 
 (o) See Wilkinson v. .Stafford, 1 Ves. 
 jun. 32. 
 
 (/)) 10 Ves. 122; Buck, 209; 3 
 Madd. 157. 
 
 (q) Hankey v. Tow good, Cooke B. L. 
 67, and 8th ed. 78, in marg. ; Ex parte 
 Garland, 10 Ves. 119, 120, 121; Et 
 parte Richardson, 3 Wadd. 157, Buck, 
 209. 
 
 (r) Ilankey v. Towgood, and Ex parte 
 Garlnnd, above; Vinerw. Ca'/e//. 3 Espin. 
 88. 
 
 (6) 10 Ves. 120, 122 ; 3 Madd. 157. 
 
 (0 10 Ves. 122 ; 3 Madd. 157. 
 
 (li) Ex parte Richardson, 3 Madd. 
 138, Buck, 202, 421. 
 
 (ii) Ex parte Garland, 10 Ves. 110, 1 
 Smith, 220, cited 3 Madd. 157. 
 
 (jd) Hankey v. Hammond , or Hammock, 
 Cook B. L. 67, and 8th ed. 78, in maig., 
 3 Madd. 148, n., Buck, 210; cited 10 
 Ves. 119, 1 Smith, 225, 3 Madd. 157, 
 and Buck, 210 ; Hankey v. Towgood, 
 Cook B. L. 67, and 8th ed. 78, in marg.
 
 S. X.] THE TRADE OF HIS TESTATOIl. 533 
 
 to the creditors ; and that " the creditors of the trade, as such, 
 have not a claim against the distributed assets in the hands of 
 third persons under the direction of the same will, which has autho- 
 rised the trade to be carried on for the benefit of other persons" (x). 
 In a case of this kind, the question, it seems to be stated, goes 
 to this — whether " where a testator directs a trade to be carried 
 on, and without limitation, all the other purposes of his will are 
 to stand still, or all the administration under it to be so checked, 
 that every person taking is in effect to become a security in pro- 
 portion to the property he takes, and to the extent of all time, 
 for the trade, which the testator has directed to be carried on. 
 The inconvenience would be intolerable ; amounting to this, that 
 every legatee is to hold his legacy upon terms, connected with 
 transactions, by which he cannot benefit, which he cannot control, 
 and which may cut down all his hopes, as far as they are founded 
 upon his receipt of that bounty" (y). And on a case of this 
 nature Lord Eldon expressed his opinion, that " it is impossible 
 to hold that the trade is to be carried on, perhaps for a century ; 
 and at the end of that time, the creditors dealing with that trade 
 are, merely because it is directed by the will to be carried 
 on, to pursue the general assets, distributed perhaps to fifty 
 families " (z). 
 
 When an executor, directed by the will to carry on the testa- 
 tor's trade, employs in it, out of the assets, a sum of money not 
 applicable for the purpose, and he becomes a bankrupt, the money 
 so employed may be proved as a debt under the commission («). 
 When a testator desires his trade to be carried on by a parti- 
 cular person, to whom he directs his executors to lend a limited 
 sum for the purpose, and upon a particular trust ; and such person 
 after the money lent becomes a bankrupt; the executors may 
 come in and prove for the debt so incurred, but in payment are 
 postponed to all the other creditors of the bankrupt (b). 
 
 (x) Ex parte Garland, 10 Ves. 
 122, 1 Smith, 220, 
 (y) 10 Ves. 119. 
 (s) 10 Ves. 122. 
 
 110, 
 
 (a) Ex parte Garland, 10 Ves. 1 10 j Ex 
 parte Richardson, 3 Madd. 138, Buck, 202, 
 
 (h) Ex parte Garland, 10 Ves. 110, 
 1 12, 1 Smith, 220. See Buck, 209.
 
 534 [CH. xxxviii. 
 
 SECTION XL 
 
 Oli" AN executor's LIABILITY, WHERE HE IS OBLIGED TO 
 REFUND MONEY RECEIVED, AND AFTERWARDS PAID AWAY 
 BY HIM. 
 
 In Poolcy v. Hay^ a sum of 700/., supposed to be due on mort- 
 gage, was, after the death of Sir J, C, the mortgagor, paid to 
 J. R. the executor and brother of C. R. the mortgagee. After- 
 wards it appeared by a copy of an account under the mortgagee's 
 own hand, that a part of the money had been paid by the mort- 
 gagor in his life-time. And on a bill brought to be relieved 
 against this over-payment, the defendant, the executor of the 
 mortgagee, answered and insisted that, before any notice of the 
 plaintiflf's demand on account of this over-payment, the defendant, 
 as executor of the mortgagee, had paid away the 700Z. in the 
 debts of his testator. Nevertheless, the Master of the Rolls 
 decreed the money overpaid to be paid back by the executor; 
 and he to be at liberty to sue such creditors, as through mistake 
 he had paid, to make them refund. And, on appeal. Lord Cowper 
 affirmed the decree ; " declaring, that though this might be a 
 hard case, yet if the plaintiffs had a right to be repaid their money, 
 which they had overpaid on the mortgage, this right could not be 
 overthrown by the defendant the executor's applying the money 
 in any manner he should think lit ; any more, than if an executor 
 at law should recover a debt, and pay the testator's debts with it, 
 and afterwards this judgment recovered by the executor is 
 reversed in error; the executor must restore the money to the 
 plaintiff in error ; and his having paid it away in debts of his 
 testator will not excuse him from paying it back. So, in the 
 same manner, if there were a decree for the executor to be paid 
 a sum of money by the defendant, and the executor, having 
 received the money, pays it away in debts ; and then the defen- 
 dant, against whom the executor had recovered the decree, brings 
 an appeal, and reverses the decree ; the plaintiff in the appeal 
 shall be restored to the money, ^ecus^ if the defendant had
 
 S. XII.] OF SUBMISSION TO ARBITRATION. 535 
 
 delayed the appeal, and willingly stood by, whilst the executor 
 paid away this money to the testator's creditors ; for this would 
 be drawing the executor into a snare ; but nothing of this kind 
 appearing in the present case, affirm the decree." And from the 
 Registrar's book it appears, " His Lordship was of opinion, that 
 although the defendant R.'s payment of 700Z. amongst his brother's 
 creditors be an accident, which falls hard upon him, yet it is 
 impossible for the plaintiff to make them parties. And there 
 being an evident mistake in the former account, there ought to 
 be a refunding by the defendant R., of what he has been over- 
 paid, although he hath applied the same in satisfaction of his bro- 
 ther's debts ; and the rather, for that it is doubtful whether he 
 did not know how the accounts stood between his brother, the 
 testator, and Sir J. C, before such application made " (c). 
 
 SECTION XII. 
 
 OF SUBMISSION TO ARBITRATION. 
 
 In some cases, an executor may incur personal responsibility 
 to creditors of his testator, by referring matters to arbitration (d). 
 In Barry v. Rush, which was an action of debt on bond, the plea 
 first craved oyer of the bond (by which the defendant, as adminis- 
 trator, bound himself, his heirs, executors, and administrators, to 
 the plaintiff as executrix), and then of the condition, which (after 
 reciting that the plaintiff and defendant had agreed to submit to 
 arbitration certain disputes, which had before arisen between the 
 plaintiflf and the defendant's intestate, touching certain articles of 
 agreement between the intestate and the plaintiff's testator) was 
 for the performance of an award, to be made by arbitrators con- 
 cerning the matters aforesaid, and also concerning all other 
 matters, accounts, &c. between the said parties, or either of them. 
 
 (c) 1 p. W. 355, and 5th ed. 357, n. 
 (1) J cited 2 Ves. jun. 93, 583. 
 (rf) Anon. 3 Leon. 53, Ca. 77.— 12 
 
 Mod. 11 ; 11 Vin. Abr. 308, pi. 23; 
 Wentw. Off. Ex, Ch. 13, 14tli ed. p. 304.
 
 536 OF SUBMISSION TO ARBITRATION. [CII. XXXVIII. 
 
 It then set forth that the arbitrators had awarded, that the defendant, 
 as administrator, should pay to the pLiintiff, as executrix, 298/. 
 on the 17th June following, and that the parties should execute 
 general releases. The defendant tlien pleaded that he had fully 
 administered, and that at the time of entering into the bond, or 
 afterwards, lie had no assets. And, on demurrer, this plea was 
 held to be bad. The Court was of opinion, the defendant had by 
 the obligation bound himself personally, and gave judgment for 
 the plaintiff ; Ashhurst, J., saying, — " The entering into the bond 
 amounts to an admission of assets, and the defendant shall not 
 afterwards be permitted to dispute it. The bond given by the 
 defendant to abide by the award was an undertaking to pay what- 
 ever sum the arbitrator should award, without any regard to 
 assets" (e). This case is not an authority, that the mere circum- 
 stance of an executor's entering into an arbitration bond amounts 
 to an admission of assets ; but was determined on the ground, that 
 there the bond was a personal engagement by the defendant to 
 perform the award, and he submitted, in broad terms, to pay what- 
 ever should be awarded {/). And in Pearson v. Henry, a sub- 
 mission by the defendant, an administrator, to an award was held 
 not to be, in the circumstances of that case, evidence to charge 
 the defendant with assets ; a clear decision, that a submission to 
 arbitration by an executor or administrator is not of itself an 
 admission of assets [g). In Pearson v. Henry, the arbitrator only 
 ascertained the amount of the debt due from the intestate, and did 
 not direct the defendant to pay it; and there was no ground, 
 which made it possible to say, that the arbitrator decided that the 
 defendant had assets {h). These circumstances distinguish 
 Pearson v. Henry from Wortldnyton v. Barloio, where by the 
 terms of a submission to arbitration by the defendant, an adminis- 
 tratrix, the submission was a reference not only of the cause of 
 
 (e) 1 Durn, & E. 691, cited 5 Durn. 
 & E. 7, 8, 
 
 (/) 5 Durn. & E. 7, 8. 
 
 (g) 5 Durn. & E. 6 ; cited 7 Durn. & 
 E. 453. See hove v. Honeybourne, 4 
 Dowl.& Kyi. 814, 815 ; Davics v. Ridge, 
 
 3 Espin, 101 ; and In re Wanshorough, 2 
 Chitt. 40. And see, farther, 5 Bing. 206, 
 208. 
 
 (/() 5 Durn. & F. 7; 7 liuru. & E. 
 453
 
 S. XII.] OF SUBMISSION TO ARBITRATION. 537 
 
 action, but also of the other question, whether or not the adminis- 
 tratrix had assets. And as the arbitrator awarded the defendant 
 to pay the amount of the plaintiff's demand, it was held to be 
 equivalent to determining, as between these parties, tliat the 
 administratrix had assets to pay the debt. She was, it was held, 
 concluded by this award ; and accordingly, although it was stated 
 she had no assets, she was compelled by attachment to pay 
 the sum, which the arbitrator had directed her to pay (i). In 
 Mobson V. Anonymous, the plaintiffs, who were assignees of a 
 bankrupt, moved that so much of an award as directed the pay- 
 ment by them of a sum of money, and the costs of the reference, 
 might be set aside; upon the ground, that their bankrupt's 
 estate and effects were exhausted. The motion was refused by 
 Lord Eldon, who said, — " If an executor or administrator think 
 fit to refer generally all matters in dispute to arbitration, without 
 protesting against the reference being taken as an admission of 
 assets, it will amount to such an admission. I see no distinction 
 in the case of an assignee of a bankrupt" ( ;'). In Riddell v. Sutton, 
 an agreement stated, that disputes and differences had arisen, and 
 were depending, between the plaintiff and the defendant, as 
 executrix, respecting certain unsettled accounts between them ; 
 therefore, for the finally settling such disputes and differences, it 
 was agreed that the said matters in dispute should be, and they 
 were thereby, referred to the final award of T. R. and T. B. The 
 arbitrators found that there remained a balance due from the 
 defendant to the plaintiff, and by their award they therefore 
 directed the payment of such balance. To an action of debt on 
 this award, the defendant pleaded plene administravit, and, on 
 demurrer, this plea was held not to be an answer to the plaintiff's 
 demand, and judgment was given for the plaintiff; Park, J., 
 saying, — " Looking at the recital in the submission, and at the 
 whole of the case, I think it clear that the defendant admitted 
 assets, and submitted to a final settlement of all disputes : that 
 could not be but by paying what should be found due" {k). 
 
 (0 7 Durn, & E. 453. | (/<) 5 Bing. 200, 2 Moore & P. 345. 
 
 (j) 2 Rose, 50, cited 5 Bing. 206.
 
 5(38 
 
 [CH. XXXVIII. 
 
 SECTION XIII. 
 
 OF AN EXECUTORS LIABILITY IN CERTAIN INSTANCES OF 
 
 TRUSTS. 
 
 Numerous cases occur, inwlxich, by the decision of, or opinion 
 expressed in, a Court of Equity, trustees, or trustees in whom 
 was united the character of executors also, have been held to be 
 responsible out of their own property for a breach of trust, or 
 acts done by them, which occasioned a loss to the beneficial owners 
 of the trust estate (l) ; as in the instances — of money raised out of 
 an estate limited for the payment of debts and legacies, and con- 
 verted to the trustees' own use (m) : of a loss occasioned by 
 trustees under a will to their testatrix's estate, through an omis- 
 sion of the trustees to re-invest certain stock immediately, which 
 had been sold, and the produce for some time placed in the hands 
 of their bankers (?^) : of money paid to a person under an express 
 power for the purpose, but without the previous consent of a 
 third party, as required by the power (o) : of money laid out in a 
 purchase of real estate, bought by the trustee for himself (/>) : of 
 money kept by a trustee in his own hands, contrary to a trust to 
 
 (/) Tilsiy V. Throckmnrton, 2 Ch. Cas. 
 132 ; Palmer v. Jones, 1 Vern. 144 ; 
 Jevon V. Bush, ib. 342; Emelie v. Emelie, 
 7 Bro. P. C. ed. Toml. 259; Anon. 12 
 Mod. 560 ; Gifford v. Mauley, Cas. T. 
 Talb. 109; Earl of Litchfield's case, 1 
 Atk. 87, 1 West Cas, T. Hardw. 201 ; 
 Ivie V. Me, 1 Atk. 429, 1 VV^est Cas. T. 
 Hardw. 318 ; Okeden v. Okeden, or Wal- 
 ter, 1 Atk. 550, 1 West Cas. T. Hardw. 
 514 ; Vernon v. Vaivdrey, Barn, Ch. Rep. 
 280, 303, 304, 2 Atk. 119; Boardman 
 V. Mosman, 1 Bro. C. C. 68 ; Cooper v. 
 Douglas, 2 Bro. C. C 232 ; Cafrey v. 
 Darby, 6 Ves. 488 ; Walker v. Symonds, 
 3 Swanst. 1 ; Anon, cited 3 Swanst. 79, n. ; 
 Ex parte Greenhouse, 1 Madd. 92 ; Dimes 
 V. Hcoit, 4 Russ. 195 ; Carsey v. Bar- 
 
 sham, stated 1 Sch. & Lef. 344. See 
 also Smith v. French, 2 Atk. 243 ; Traf- 
 ford V. Boehm, 3 Atk. 440, 444 ; Wilkin- 
 son V. Stafford, 1 Ves. jun. 32 ; Vez v. 
 Emery, 5 Ves. 141 ; Anon. v. Osborne, 6 
 Ves. 455. See, moreover, Henriques v. 
 Franchise, Free. Ch. 205; Thayer v. 
 Go^dd, 1 Atk. 615, cited 2 Atk. 245 ; 
 and Conyngham v. Conyngham, 1 Ves. 
 522. And, farther, 2 Atk. 406, 1 Sch. 
 & Lef. 272, and Ashby v. Blackwell, 2 
 Eden, 299, Amb. 503. 
 
 (»») Anon. 1 Salk. 153. 
 
 (n) Bone V. Cook, M'Clel. 168, 173, 
 316 c. 
 
 (o) Bateman v. Davis, 3 Madd. 98. 
 
 (;)) Cox V. Bateman, 2 Ves. 19. See 
 Kirk V. Webh, 2 Freem. 229.
 
 S.XIV.] OF AN EXKCUTOR's CONCURRING IN CERTAIN ACTS. 539 
 
 invest it (7) : of arrears of rent, which trustees neglected to 
 recover (r) : of a legacy of a debt due to a testatrix, and which 
 debt, owing by an executor of the will, a co-executor neglected 
 to call in (s). 
 
 SECTION XIV. 
 
 OF AN executor's CONCURRING IN CERTAIN ACTS. 
 
 All executors appear to be trustees, inasmuch as the duty to 
 execute the will is a trust {t). Yet they may, perhaps, be called 
 mere executors, when they possess the general personal estate of 
 the testator, upon the general trusts only of an executorship. And 
 they seem to be peculiarly executors in trust, and to be so denomi- 
 nated, when they possess a certain part of the testator's property, 
 upon particular trusts only («). By proving the will, an executor 
 has been held to have accepted the trusts annexed to a legacy 
 bequeathed {v). 
 
 Some acts done in a trusteeship, or mere executorship, or 
 executorship in trust, require the concurrence of all the trustees 
 or executors. Acts of this kind are, the signing of a receipt 
 for trust-money (?<;), and the transferring of stock or money in the 
 public funds (1). An executor's or trustee's concurrence in the 
 act of a co-executor or co-trustee often draws to it responsibility. 
 In Hovey v. Blakeman, an executor in trust was held to be 
 responsible for money come to the hands of his co-executor, on 
 the ground tliat he concurred in the application of that money {y). 
 
 (q) ByrchaU v. Bradford, 6 Madd. 13, 
 235 ; Broion v. Sansome, M'Clel. & Y. 
 427. 
 
 (r) Tebbi v. Carpenter, 1 Madd. 290, 
 297. 
 
 (s) Mucklow V. Fuller, Jacob, 198. 
 
 (t) Farringioii v. Knightly, 1 P. W. 
 548, 549 ; Bachfield v. Careless, 2 P. W. 
 161 ; Clare v. Almuty, 2 Eq. Cas. Abr. 
 420; Anon. Com, 151. 
 
 (m) Wind V. Jckyl, 1 P. W. 575 ; 
 Sadler v. Hobbs, 2 Bro. C. C. 114 ; Scur. 
 
 field V. Hoices, 3 Bro. C. C. 90, and Belt's 
 ed. 95, where the judgment is reported 
 from Lord Colchester's manuscript note ; 
 Hovey v. Blakemati, 4 Ves. 596, 607 ; 
 Chambers v. Minchin, 7 Ves. 197 ; Byrch- 
 aU V. Bradford, 6 Madd. 240, 241. 
 
 (j)) Mitchlow V, Fuller, Jacob, 198. 
 
 (w) 3 Atk. 584 ; 3 Swanst. 63. 
 
 (i) 3 Bro. C. C. 94 ; 7 Ves. 197 ; 11 
 Ves. 253, 254 ; 16 Ves. 479. 
 
 (t/) 4 Ves. 596.
 
 540 OF AN executor's CONCUniMNC; [CII. XXXVIII. 
 
 And responsibility may, in certain cases, follow an act, which is 
 done by a trustee or executor from necessity or for conformity 
 only ; but who in the transaction is in some way guilty of a 
 neglect of duty, or breach of trust (2). This will fully appear in 
 the progress of the ])resent Section; in which it is ])r()posed to 
 consider the law on concurrence, 
 
 1. — When the act is the signing of a receipt; 
 
 2. — When, by the act concurred in, money comes into the 
 hands of one of several executors or trustees ; 
 
 3. — When this act, by which an executor or trustee obtains 
 possession of money, is the selling out of stock. 
 
 1. — When trust-money is paid to trustees, or to one only or 
 more of them, it is in many cases necessary that the receipt for 
 it be signed by all the trustees («). " At law," says Lord Eldon, 
 " where trustees join in a receipt, prima Jacie all are to be con- 
 sidered as having received the money. But it is competent to a 
 trustee, and, if he means to exonerate himself from that inference, 
 it is necessary for him, to shew, that the money, acknowledged 
 to have been received by all, was in fact received by one, and 
 the other joined only for conformity" (b). When, therefore, one 
 trustee receives the money, and it is shewn that a co-trustee re- 
 ceived no part of it, but merely for the sake of conformity joined 
 in signing the receipt, this co-trustee does not by such act render 
 himself responsible for the due application of the money by him 
 who received it (c). And if each trustee receives a part, then, 
 although they join in a receipt for the whole, each is answerable 
 for that part only, which he himself received {d). When, how- 
 
 (:) Scurjield v. Howes, 3 Bro. C. C. 
 90; Brice v. Stokes, 11 Ves. 319; Lord 
 Shipbrook v. Lord Hinchinbronk, 1 1 Ves. 
 252, 16 Ves. 477. 
 
 (a) 1 P. W. 83 ; 2 Vern. 516 ; Amb. 
 219 ; 3 Atk. 584 ; 7 Ves. 198 ; 3 Swanst. 
 63 ; Brice v. Stokes, 11 Ves. 325. 
 
 (6) 11 Ves. 324. 
 
 (c) Townley v. Chalenor, or Sherhorn, 
 Cro. Car. 312, Bridgm. 35, cited 2 Bro. 
 C. C. 1 17, and 3 Bro. C, C. 94 ; Healon 
 V. Marrlot, cited Piec. Ch. 173, 1 P. W. 
 
 82, and 2 Vern. 504 ; Churchill v. Hop- 
 son, 1 Salk. 318 ; Attorney General v. 
 Randall, 21 Vin. Abr. 534, 2 Eq. Cas. 
 Abr. 742 ; Ex parte Belchier, Amb. 218 ; 
 Westley v. Clarke, 1 Eden, 359 ; Leigh 
 V. Barry, 3 Atk, 584 ; Sadler v. Hobbs, 
 2 Bro. C. C. 117 ; Chambers v. Minchin, 
 7 Ves. 198 ; Brice v. Stokes, 1 1 Ves. 
 324. See Spalding v. Shalmer, I Vern. 303. 
 (d) Felloios V. Mitchell, or Oiuen, 1 P. 
 W. 81, 2 Vern. 504, 515, 2 Freem. 283, 
 286.
 
 S. XIV.] IN CERTAIN ACTS. 541 
 
 ever, after signing the receipt, it is the fluty of him, who, from 
 necessity or for conformity only, put his name to the receipt of 
 the whole, to see the money received by his co-trustee duly ap- 
 plied, and this duty is neglected, and he knows that the fund is 
 misapplied, in this case the trustee, who received no part of the 
 money, or a share only of it, may be responsible for the money 
 received by his co-trustee [e). 
 
 Where there are several mere executors, and money is paid 
 on account of the testator's estate, any one of the executors is 
 empowered by law to receive it, and can sign a sufficient receipt 
 for it if)' And if another executor, by whom no part of the 
 money is received, joins in signing the receipt, this concurrence 
 is at law, it is said, an act which alone makes him responsible for 
 the money (r/) ; on the ground, that such act is an unnecessary 
 one, the receipt of him only, to whom the money is actually 
 paid, being sufficient (A) : the joining in the receipt is taken to 
 be conclusive evidence, that the money came to the hands of all 
 the executors [i). And the same doctrine appears to have for- 
 merly obtained in equity (j). There, however, the rule is now 
 altered ; and the bare act of a mere executor joining in signing a 
 receipt for money, paid to a co-executor, is not in equity enough 
 to make him, who actually received no part of the money, an- 
 swerable for it (7i). 
 
 When of the whole or a part of a testator's property executors 
 are executors m trust ; they being not only executors, but of a 
 certain fund, and, for particular purposes, trustees also ; then if 
 
 (e) Brice v. Stokes, 11 Ves. 319. 
 
 (/) 1 Salk. 318; Arab. 219; 1 Atk. 
 460 ; 2 Ves, 267. 
 
 (g) 1 Salk. 318 ; I P. W. 243 ; Amb. 
 219 ; 1 Eden, 148 ; 2 Bro. C. C. 117. 
 
 (h) 1 Salk. 318 ; Amb. 219 ; 3 Atk. 
 584 ; 1 Eden, 360 ; 11 Ves. 325. 
 
 (0 1 Eden, 147 ; 3 Bro. C. C. 9^. 
 
 (j) Amb. 219 ; 3 Atk. 584 ; 2 Bro. 
 C. C. 117 ; 7 Ves. 198. See Aplyn v. 
 Brewer, Prec. Ch. 173. 
 
 (fc) Churchill v. Hobson, or Hopson, 1 
 
 P. VV. 241, 1 Salk, 318, cited 1 Eden, 
 147, and 2 Bro. C. C. 117; Harden v. 
 Parsons, 1 Eden, 145 ; Westley v. Clarke, 
 
 1 Eden, 357, 1 P, W, 5th ed, 83 n., 1 
 Dick. 329, 2 Kenyon, part 1, p. 541 ; 
 cited 2 Bro. C. C. 117, 3 Bro. C. C. 94, 
 4 Ves. 608, 609, and 2 Sch. & Lef. 242 ; 
 Scurjield v. Howes, 3 Bro. C. C. 94, 95 ; 
 Walker v. Symonds, 3 Swanst. 64 ; Joi/ 
 V. Campbell, 1 Sch.& Lef. 341, 3 Bligh 
 P. C. (N. S.) 110, n. ; Doyle v. Blake, 
 
 2 Sch. & Let'. 242, 243.
 
 542 OF AN executor's concurring [en. XXXVIII. 
 
 one of such executors receives money, and a co-executor joins in 
 signing a receipt for it, the latter may, in some instances, become 
 responsible for the due application of the money. A case of this 
 kind seems to be Scurfidd v. Howes. Here S. F., being entitled 
 to 500Z. secured on mortgage, by will directed her executors to 
 permit S. to take the interest for life ; and if the mortgage should 
 be paid off, she directed the money to be laid out in government 
 securities, upon certain trusts ; and appointed B. and H. executors. 
 After the testatrix's death, the mortgage was paid off, and B. and 
 H. joined in the re-conveyance, and in a receipt for the money ; 
 and it appears that H. alone received the money, and that B. did 
 not receive any part of it. H. afterwards became insolvent. Sir 
 R. P. Arden decided, that B. was answerable for the legacy, 
 and decreed it to be paid out of his assets. And this de- 
 cision he seems to rest on the circumstances, — that the money 
 being paid to one of the executors, and the other joining in 
 the receipt, both neglected to lay it out ; that this neglect 
 charged both, for leaving the fund in the hands that became in- 
 solvent, and on personal security, against their trust ; and that, 
 beyond the mere purpose of holding assets to pay debts, B. suf- 
 fered his co-executor to retain the money for years, and to pay 
 interest, when he ought to have laid it out (J). 
 
 2. — In Gill V. The Attorney General^ this opinion is expressed 
 by the Court of Exchequer; — " In the case of joint executors, 
 none is chargeable for more than comes to his hands severally. 
 But yet in that case, if by agreement amongst themselves one be 
 to receive and intermeddle with such a part of the estate, and 
 another with such a part, each of them will be chargeable for the 
 whole, because the receipts of each are pursuant to the agreement 
 made betwixt both"(w). And on this opinion delivered in Gill 
 V. The Attorney General^ Lord Thurlow has, in the Court of Chan- 
 cery, stated, " The rule as laid down in that case, and adhered to 
 in subsequent ones, remains the same as at law ; and there is no 
 authority in this Court to contradict it. For where one executor 
 
 (J.) 3 Bro. C. C. 90 ; and ed. Belt, 95, I Colchester's manuscript note, 
 where the judgment is reported from Lord I (w) Ilardr. 314.
 
 S. XIV.] IN CERTAIN ACTS. 543 
 
 takes the money but of his own authority, his companion shall 
 not be charged ; but if he puts the money into the hands of his 
 companion, he shews he had it in his power to secure it; and that 
 his companion, for some reason, was permitted to obtain the pos- 
 session of the money". And his. Lordship also said, "I take it 
 to be clear, that where, by any act, or any agreement of the one 
 party, money gets into the hands of his companion, whether a co- 
 trustee or co-executor, they shall both be answerable " {n). In 
 Viner's Abridgment it is said to have been held in Chancery in 
 the case of Serjeant Webb's will, that " if one trustee directs the 
 payment of the trust-money over to the other, and joins in the 
 deed, he charges and makes himself liable for the default of the 
 other "(o). In Sadler v. Hobbs, W. S. by his will, gave the 
 residue of his personal estate to Reeve and Davies, his executors, 
 in trust for the plaintiff, an infant. At the testator's death, 
 T. and Co. were indebted to him in 7000Z. Reeve, the executor, 
 was in partnership with Devonshire, as merchants. Reeve and 
 Davies, as executors of S., drew two bills, or drafts, for 5000Z. 
 and 2000Z. on T. and Co., payable to the house of Devonshire 
 and Reeve ; and these drafts were signed by both the executors. 
 T. and Co. paid the 7000Z. to Devonshire and Reeve, who gave 
 credit for it in their books to the estate of W. S. In 1766 
 Devonshire died; and in 1769 Davies died ; and it appeared that 
 Davies had never acted in the execution of S.'s will, (although he 
 had proved it,) except by drawing the two bills on T. and Co. 
 In 1773 Reeve became a bankrupt; the 7000Z. having remained 
 in his hands from 1766 to the time of the bankruptcy. On a bill 
 filed, it was ordered that whatever appeared to have come to the 
 hands of Davies should be answered by his executors. And the 
 Master having charged the estate of Davies with one moiety of 
 the 7000/., the defendants excepted to the report. Lord Thurlow, 
 however, held Davies to be answerable. And he appears to have 
 so decided for these reasons, — that Davies joined in the act, the 
 
 (m) 2 Bro. C. C. 116. See also 1 Sch. j Free. Ch. 173, cited 2 Bro. C. C. 117. 
 &Lef. 341, and Doyle v. Blake, 2 Sch. (o) 21 Vin. Abr. 534; 2 Eq. Cas. 
 
 & Lef. 231 ; and, farther, Aplyn\. Brewer, \ Abr. 742, in marg.
 
 544 OF AN executor's concurring [CH. XXXVIII. 
 
 signing of the drafts, by virtue of which the money came into 
 the possession of Reeve ; and that Davies " suffered the money 
 to be out for a very Um^ time in the hands of a tradesman, and 
 neglected to call it in, notwithstanding the party interested in 
 the fund was an infant " {p). In Brice v. Stokes, a settlement of 
 real estate contained a power to trustees, M. and F., to sell. 
 The trustees sold under the power, but without necessity. It 
 did not appear for what purpose the sale was made, except for the 
 mere purpose of converting real estate into personal. Both trus- 
 tees joined in a receipt for the purchase-money ; but it was paid 
 to F. only. F. did not invest it pursuant to the trusts of the 
 settlement, and died insolvent. Lord Eldon held M. to be 
 answerable for the loss. And the reasons of this decision appear 
 to be,— that the sale was made without necessity ; that it was an 
 act, that never could have been done by the mere exercise of 
 the judgment of one of the trustees, enabling him to determine 
 that it was necessary ; that there was no necessity, in respect of 
 which the other should join ; and that after the receipt of the 
 money by F., it was the duty of M. to take care, that F. did not 
 retain the money beyond the time, during which the transaction 
 required retainer ; and that M., distinctly informed of F.'s mis- 
 application of the money, neglected his duty to bring it back 
 into their joint custody, pursuant to the trusts (q). In Bone v. 
 Cook, trustees under a will were held to be liable to make good 
 the loss, which had been occasioned to the testatrix's estate, by 
 their default, in allowing certain purchase-money of real estate to 
 be received and retained by a co-trustee, who afterwards became 
 a bankrupt (r). 
 
 3. — It remains to notice the cases on responsibility occasioned 
 by concurring in a sale of stock, or money in the public funds ; 
 which, when standing in the names of persons, who are trustees, 
 or mere executors, or executors in trust, cannot, it has already 
 
 {p) 2 Bro. C. C. 114, cited 3 Bro. C. 
 C, 94, and 4 Ves. 609. 
 (7) 11 Ves. 319. See also Bnuhcell 
 
 V. Cutclipole, 3 Swanst. 78. 
 
 (/) iAl'Ciel. 168, 316 c.; 13 Price, 
 332.
 
 S. XIV.] IN CERTAIN ACTS. 545 
 
 been mentioned, be transferred without the concurrence of all 
 the executors or trustees (s). 
 
 In Murrell v. Cox, the plaintiffs, as residuary legatees, brought 
 their bill against the executors, C. and P., for an account. In a 
 schedule to their answer, the executors made themselves jointly 
 debtors for 200/., East India stock. After the answer put in, 
 the executors sold that stock, and divided the money, the one 
 receiving 106Z., and the other the like sum. C, after this, 
 became insolvent ; and P. insisted he ought to be charged only 
 with 106^., which was all he received. But it was decided, that 
 P. was liable to pay the whole {t). 
 
 In Ex parte Shakeshaft, K. and S., executors in trust, joined 
 in selling out stock, and K. permitted S. to take it to his own 
 use, upon giving an undertaking in writing to replace it upon 
 demand. S. died insolvent, and K. became a bankrupt. And 
 the parties beneficially interested in the trust-money were allowed 
 to prove their debt under K.'s commission [u). In Chambers v. 
 Minchin, M. and G. were executors, and the will expressly made 
 them trustees also. G. was induced by M. to execute a power 
 of attorney, enabling the latter to sell out certain long annuities, 
 part of the testatrix's estate. M. made the sale, and absconded 
 insolvent. And, under the circumstances. Lord Eldon held G. 
 to be answerable for the loss, so occasioned to the cestui que trust. 
 This decision seems to be made chiefly on the grounds, — that G. 
 was a trustee ; that, in the transaction between him and M. rela- 
 tive to the sale, G. did not take common precaution ; that he did 
 not endeavour to learn what the purpose of the sale was, or that 
 the power of attorney was to enable M. to execute a purpose 
 connected with the due execution of the trust ; and that it could 
 not possibly be said, that G. did more than leave it to M. to do 
 what he pleased with the property {v). In French v. Hohson, 
 executors in trust joined in a sale of stock, and lent the produce 
 to one of themselves, and his partner in trade, upon their under- 
 
 (s) 3 Bro. C. C. 94; 7 Ves. 197 ; 11 
 Ves. 253, 254 ; 16 Ves. 479. 
 
 (t) 2 Vern. 570, 1 Eq. Cas. Abr. 247, 
 248. ited I P. W. 83, and 3 Bro. C. 
 
 N N 
 
 C. 94. 
 
 (u) 3 Bro. C. C. 197. 
 {v) 7 Ves. 186.
 
 546 executor's CONCURRING IN CERTAIN ACTS. [CII. XXXVIII. 
 
 taking to replace it. And these partners having failed, all the 
 trustees were charged wntli the loss {w). In Lo?'d Shipbrook v. 
 Lord Hinchinhrook, under a decree directing an account of the 
 personal estate of A. M. L., the Master's report charged all the 
 executors with 1200/,, 3Z. per cent, reduced bank annuities, and 
 interest, and one of them separately with 281 9Z. bs. \0d. received 
 by him. The defendants, three of the executors, took exceptions 
 to the report for charging them with the 1200/., and the interest; 
 alleging, in their discharge, that they joined in executing a power 
 of attorney to the fourth executor for the sale of that stock, upon 
 his request, and representation that it was required for the pur- 
 pose of paying debts ; whicli stock he sold. He was permitted 
 to manage the affairs of the estate ; and, at the time of the sale, 
 had in his hands the balance, Avith which he was charged sepa- 
 rately. Lord Eldon held the three executors, who enabled the 
 fourth to sell the stock, to be responsible. And the principal 
 reasons for this decision seem to be, —that during two years and 
 a half from the death of the testatrix, until the power to sell the 
 stock was executed, the executor, who sold it, had been acting in 
 the executorship, and, in doing so, trusted by the other exe- 
 cutors ; that the law supposes, that, in executing the duty of an 
 executor, something is to be done in a year ; and that these exe- 
 cutors, entrusting their co-executor for two years and a half, 
 ought, when asked to join in a sale of the stock, at least to have 
 made some inquiry, what had been doing in the affairs ; but, 
 making no inquiry, were satisfied with the information, which 
 proved groundless, that the applicant wanted the money for the 
 purpose of paying debts ; information which ought to have led 
 them to ask, how that could be. Lord Eldon considered the 
 case to be one of executors, who, making no inquiry whatever, 
 permitted their co-executor to do just what he pleased. His 
 Lordship appears, however, to have made this distinction in their 
 favour — to have charged them with the produce of the sale by 
 their co-executor unapplied to the payment of debts, but not to 
 have charged them with so much of such produce, as was so duly 
 
 (w) 9 Ves. 103.
 
 S. XV.] OF ADMISSION AND EVIDENCE OF ASSETS. 547 
 
 applied by him {x). The last-mentioned case lias, under similar 
 circumstances, been followed in Undennood v. Stevens (?/). In a 
 recent case, Hanhury v. Kirkland, two trustees in a marriage 
 settlement were decreed to re-invest certain stock, which by a 
 letter of attorney they had empowered a co-trustee to sell out, 
 on his representation that he had an opportunity of investing the 
 property on mortgage ; and which co-trustee applied the proceeds 
 of the sale to his own use, and absconded. The decree was 
 made on the grounds, — that the co-trustees were guilty of most 
 culpable negligence ; omitting their duty to inquire what was the 
 intended security, and who was to be the mortgagor ; and, bestow- 
 ing not a thought upon the subject, without farther inquiry, and 
 without exercising a single act of discretion, executed the power 
 of attorney [z). 
 
 SECTION XV. 
 
 OF ADMISSION AND EVIDENCE OF ASSETS. 
 
 If an executor admits that he has assets in his hands, this 
 admission is evidence against him, to prove that he either does 
 now possess, or has possessed, assets (a). And, by means of the 
 same admission and evidence, he may become personally liable 
 to the payment of money; as to a creditor (J), or legatee (c), of 
 his testator. It is, therefore, a matter of importance to ascertain 
 some of the circumstances, that may have the effect to fix that 
 admission upon him. 
 
 An admission, then, of assets may be fixed on an executor, 
 amongst other means (c?), — by a letter written by him to a credi- 
 
 (x) 11 Ves. 252, 16 Yes. 477. 
 
 (3/) 1 Meriv. 712. See also Brice v. 
 Stokes, 11 Ves. 319, 328, on responsibility 
 for so much only of a trust fund, as is ac- 
 tually misapplied. 
 
 (s) 3 Sim. 265. 
 
 (a) 1 Ves. 75, 76. 
 
 (ft) Erving v. Peters, 3 Durn. & K. 
 685. 
 
 N 
 
 (c) The Corporation of Clergymen's 
 Sons V. Swainson, 1 Ves. 75 ; Harsley v. 
 Ckaloner, 2 Ves. 83. 
 
 (d) Parker v. Atfield, 1 Ld. Raym. 
 678, 1 Salk. 311, 12 Mod. 496, 527; 
 Hinton v. Parker, 8 Mod. 168; Horsley 
 V. Chaloner, 2 Ves. 83, Belt's Supplem. 
 280, 2nd ed. 295; Orr v. Kaines, 2 Ves. 
 194 ; Campbell v, Ett)7 of liadnor, 1 Bro. 
 
 N 2
 
 548 OF ADMISSION AND EVIDENCE OF ASSETS. [CH. XXXVIII. 
 
 tor of the testator, ana wherein he mentions a sum of money as 
 due on a mortgage to the testator {e) : by an inventory, which he 
 has made of the testator's effects, and exhibited in the Spiritual 
 Court (y) ; as when an item in the inventory is, a debt due to 
 the testator, and such debt is construed to be sperate, because the 
 executor does not, in the inventory, distinguish it as desperate (p) : 
 by the stamp, which is affixed to the probate of the will (h) : by, 
 if the testator is indebted by simple contract, the executor's 
 giving his bond for the debt (i) : by, in some cases, the executor's 
 paying interest on a debt owing by the testator {j), or on a legacy 
 bequeathed by him (k) : by the executor's owning that, to pay a 
 legacy, money lies ready for the legatee, whenever he will call 
 for it (Z) : by promising to pay a legacy (m) : by, in some cases, 
 a submission to arbitration (n) : by, in an action against him, 
 omitting to plead a deficiency of assets ; as if he confesses judg- 
 ment, or suifers judgment by default, or if, supposing he pleads, 
 he does not, by a plea plene administravit, or other plea, deny 
 assets (o) : by his answer to a bill filed in equity against him [p). 
 
 C. C. 271 ; Ridout v. Bristow, 1 Crompt. 
 & Jerv. 231, 234, I Tyrwh. 84. 
 
 (e) Robinson v. Bell, 2 Vern. 146. 
 
 (/) Hickey v. Hayter, 1 Espin. 313, 
 6 Durn. & E. 384. 
 
 (g) Shelley's case, 1 Salk. 296 ; Young 
 V. Cawdrexi, or Cordery, 8 Taunt. 734, 3 
 J. B. Moore, 66. On sperate debts, see 
 Chapter VIII. Section I. of the present 
 Treatise. 
 
 (/i) Foster v. Blakelock, 5 Barn. & C. 
 328, 8 Dowl. & Ryl. 48 ; Hancock v. 
 Podmore, 1 Barn. & Adol. 260 ; Curtis 
 V. Hunt, ] Carr. & P. 180. 
 
 (0 Maytin v. Hoper, Ridgew. Cas. T. 
 Hardw. 206, 209. 
 
 (j) Robinson v. Savile, Sel. Ca. Ch. 
 61 ; Cleverly v. Brett, slated 5 Durn. & 
 E. 8,— Lofft, 68, 69; 2 Ves. 85. 
 
 (/c) Campbell's case, Lofft, 68 ; The 
 Corporation of Clergymen's Sons v. Swain- 
 son, 1 Ves. 75.-2 Ves. 85. 
 
 (/) Camden v. Turner, cited Cowp. 
 293. 
 
 (m) Bathe v. Crampton, Cro. Jac. 613. 
 
 (n) Barry v. Rush, 1 Durn, & E. 691 ; 
 Worthington v. Barlow, 7 Durn. & E. 
 453 ; Robson v. Anon., 2 Rose, 50. See 
 also Section XII. of the present Chapter. 
 
 (o) Legate v. Pinchion, Cro. Jac. 294, 
 9 Co. 86 b. ; Treil v. Edwards, 6 Mod. 
 308 ; Rock v. Lay ton, or Leighton, 1 Ld- 
 Raym. 589, 1 Salk. 310, Com. 87; Rook 
 V. Sheriff of Salisbury, perhaps S. C, 12 
 JMod. 411 ; Ramsden v. Jackson, 1 Atk. 
 292 ; Skelton v. Howling, 1 Wils. 258 ; 
 Erviyig v. Peters, 3 Durn. & E. 685 ; 
 Kilhee v. Gore, 1 Vern. & Scriv. 230. 
 See also Cro. Eliz. 102, and 4 Durn. & 
 E. 637 ; and, farther. Chapter XXV. of 
 the present Treatise. 
 
 (p) Cook V. Martyn, 2 Atk. 2 ; Cooper 
 V. Martin, S. C, 1 West Cas. T. Hardw. 
 442; Orr v.A'ames, 2 Ves. 194; Roberts 
 V. Roberts, 2 Dick. 573, also stated 1 
 Bro. C. C. 487 ; Wall v. Bushby, 1 Bro. 
 C. C. 484 ; Foster v. Foster, 2 Bro. C. C. 
 616; Dagley v. Crump, 1 Dick. 35, 2
 
 S. XV.] OF ADMISSION AND EVIDENCE OF ASSETS. 549 
 
 Parsons v. Hancock was an action of debt against executors, 
 Vfho all pleaded that tliey had fully administered. The plaintiff 
 produced, as evidence of assets, an inventory of the goods of the 
 deceased, signed by two of the three defendants, as executors. 
 The three defendants had proved the will. By Parke, J. — " I 
 think the defendant, who did not sign the inventory, is entitled 
 to a verdict. The substance of the plea, as far as she is con- 
 cerned, is, that she administered all that ever came to her hands 
 for that purpose ; and there is no evidence that any ever did so. 
 I think the plaintiff can only have his verdict against the two, 
 who signed the inventory" [q). 
 
 In Williams v. Lines, which was an action against executors on 
 a covenant by their testator, the defendants pleaded that they had 
 fully administered. To prove assets in their hands, an account 
 rendered by them to the plaintiff was given in evidence, in which 
 they stated that lOOOZ. had been awarded, as due to the testator's 
 estate from a person, who had been jointly concerned with him 
 in underwriting policies of insurance. Lord Ellenborough held 
 this not to be sufficient proof of assets, as it did not shew that 
 any part of the sum awarded had been received by the executors. 
 A letter from the defendants to the plaintiff was then put in, 
 stating to her, that if she wanted any farther information con- 
 cerning the affairs of the deceased, she should apply to a Mr. R., 
 a merchant in the city. It was next proposed to adduce the 
 plaintiff's attorney, to prove that, by her desire, he had called 
 upon Mr. 11., who informed him that the whole of the lOOOZ. had 
 actually been received by the defendants. The counsel for the 
 defendants objected to the admissibility of this evidence, as not 
 being the best, which the nature of the case admitted of, and 
 contended that R. himself should be called ; but by Lord Ellen- 
 borough, — " If a man refers another upon any particular business 
 to a third person, he is bound by what this third person says or 
 
 Bro. C. C. 619 n. ; Tew v. Lord Winter- 
 ton, cited 4 Ves. 606 ; Pullen v. Smith, 
 5 Ves. 21 ; Johnson v. Aston, 1 Sim. & 
 St. 73 ; M' Williams' case, 1 Sch. & Lef. 
 169. See also Norton v. TurvilL 2 P. 
 
 W. 144, dind Freeman v. Fairlie, 3 Rleriv. 
 29. See, likewise, 3 Swaiist. 548. 
 
 (q) 1 Moody & Malk. 330. See BeU 
 lew V. Juckleden, 1 Rol. Abr. 929, B. 
 pi. 5.
 
 650 OF PAYING DEBTS BEFORE LEGACIES. [CH. XXXVIII. 
 
 does concerning it, as much as if that had been said or done by him- 
 self ". Upon the recommendation of the Chief Justice, the cause 
 was afterwards compromised (?-)• In Hindsley v. Russell, which 
 was an action against an executor on a promissory note given by 
 the testator, the defendant pleaded plene administravit. At the 
 trial before Lawrence, J., the evidence, as to this plea, was, that 
 the defendant admitted that the debt was just, and should be paid 
 as soon as he could. But the learned Judge having great doubt, 
 whether this admission were evidence of assets on that plea, 
 thougli he suffered the plaintiff to take a verdict, gave leave to 
 the defendant to move the Court to set it aside. And on this 
 motion being made, " The Court were satisfied that the admission 
 proved was not evidence to charge the defendant with assets. 
 They said that his admission must be taken with a reasonable 
 intendment ; for he could not mean to pledge himself to commit 
 a devastavit, by paying this debt before others of a higher 
 nature" {s). 
 
 SECTION XVI. 
 
 OF PAYING DEBTS BEFORE LEGACIES. 
 
 In general cases, it is the duty of an executor to discharge, 
 out of legal personal assets {t), the debts owing by liis testator, 
 before he pays any legacy given by his will ; a duty which he is 
 bound, both at law (m) and in equity (u), to observe ; and if he 
 
 (r) 1 Campb. 364. 
 
 (s) 12 East, 232. 
 
 (t) On paying debts before legacies, 
 when, by a will, real estate is devised in 
 trust for, or charged with, the payment of 
 debts and legacies, see Hixon, or Hickson, 
 V. Wytham, 1 Ch. Cas. 248, Cas. T. 
 Finch, 195, 1 Freem. 305 ; Whitton v. 
 Lloyd, 1 Ch. Cas. 275 ; Foly's case, 2 
 Freem. 49, 2 Eq. Cas. Abr. 459 ; Herbert 
 V. Herbert. 2 Freem. 270, Ca. 339; 
 Wollstencroft v. Long, 3 Ch. Rep. 12, 1 
 Ch. Cas. 32, 2 Freem. 175j Go.ling v 
 
 Dorney, 1 Vern. 482 ; Anon. 2 Vern. 
 133; Greaves v. Powell, ib. 248, 302; 
 Anon. ib. 405 ; Powell's case, Nels. 202 ; 
 Bradgate v. Ridlington, Mos. 56 ; Wal- 
 ker V. Meager, 2 P. V\r. 550, Mos. 204 ; 
 Lloyd V. Williams, 2 Atk. Ill ; Maytiu 
 V. Hoper, Ridgew. Cas. T. Hardw. 
 206, 209 ; Kidney v. Coussmuker, 12 Ves. 
 154. 
 
 (?t) 9 Co. 90, b. ; 1 Rol. Abr. 927, U. 
 pi. 2, 5 ; VVentw. Off. Ex. Ch. 19. 
 
 (v) Anon. 2 Freem. 134, Ca. 163, b. ; 
 Anon. ib. 137, Ca, 169.— 3 Weriv. 38.
 
 S. XVI.] OF PAYING DEBTS BEFORE LEGACIES. 5.51 
 
 neglects such duty, and first pays a legacy before a debt, and 
 tliere is afterwards an insufficiency of assets to satisfy the debt, 
 then, in many instances, he may be personally responsible to the 
 creditor, and obliged to pay the debt out of his own pocket (w) ; 
 for it is a devastavit, a wasting of the assets, to pay, or assent to, 
 legacies before payment of debts (x). 
 
 The following cases occur on an executor's paying a legacy, 
 or residue, while there exists a contract, bond, or covenant, by 
 which, on a contingency, the testator may become indebted (?/). 
 
 Curtis V. Hunt was an action of covenant against the executors 
 of a lessee, for not repairing. The defendants haviug pleaded 
 plene administraverunt, the probate of the lessee's will was pro- 
 duced, dated 27 May, 1796, and by which it appeared his pro- 
 perty was sworn under 5000Z. ; and, on a reference to the Stamp 
 Act of that time, it was shewn that the next lowest sum was 
 2000/., that is, that the probate duty was paid for a sum between 
 2000/. and 5000/. The premises in question were bequeathed 
 by the lessee's will, and the legatee had been let into possession. 
 The plaintiff obtained a verdict ; Abbott, C. J., saying, — " The 
 executors might have taken an indemnity from the legatee. 
 Here is, prima facie evidence of assets to the amount of 2000/., in 
 the duty paid upon the probate. The executors also might have 
 kept the premises, to answer the expenses of repairs. It is un- 
 fortunate for the executors; but the lessor must not suffer, be- 
 cause they neglected to do what they might have done " [z). In 
 Chelsea Water-tvorks' Company v. Coioper^ an action of debt was in 
 1795 brought upon bond against the defendant, as executor of 
 
 {w) Doct. & St. Dial. 2, Ch. 10, ed. 
 1709, p. 158 ; Bro. Abr. tit. Administra. 
 tors, pi. 37, tit. Executors, pi. 116; 
 Swinb. part 3, s. 16; God. Orph. Leg. 
 part 2, ch.26. 
 
 (x) Doct. & St. Dial. 2, Ch. 10; 
 Swinb. part 3, s, 16; Wentw. Off". Ex. 
 Ch. 13 ; God. Orph. Leg. part 2, ch. 26 ; 
 1 Peake Rep. 152, 3rd ed. 204. 
 
 (y) On this subject, see also Harrison's 
 
 case, 5 Co. 28 b. ; Eeles v. Lambert, 
 Style, 37, 54, 73, Aleyn, 38; I^ecton and 
 Sharpe v. Gennet, Cro. Eliz. 466, 1 Rol. 
 Abr. 928, X. pi. 1, 2, Mo. 413; Hawkins 
 V. Bay, Amb. 160, ed. Blunt, Append. 
 803, 1 Dick. 155, 3 Mer. 555, n. ; and 
 Graham v. Kehle, 2 Bligh P. C. (1 Ser.) 
 126. See, likewise, 3 Salk. 125, tit. 
 Devastavit , pi. 2. 
 (s) 1 Carr. & P. 180.
 
 552 OF PAYING DEBTS BEFORE LEGACIES. [cil. XXXVllI. 
 
 iSir G. L. In 1768 Sir G. L., having procured for B. the place 
 of collector under the company, had joined in the present bond 
 as a surety for the faithful accounting and paying over to the 
 company of the sums collected by B. in the course of his duty. 
 Upon the issue of plene administravit, the defendant's counsel ad- 
 mitted that the defendant had assets from Sir G. L. sufficient to 
 satisfy the debt ; but stated, that twenty-two years ago he had 
 paid over the whole of Sir G. L.'s property, which he had then 
 in his hands, to the Duke of B., as residuary legatee ; and that 
 he had now nothing remaining in his hands, nor had he, till the 
 bringing of the present action, any notice that there was such a 
 claim, as that now made, subsisting against the estate. Lord 
 Kenyon said, that " he was of opinion, that where an executor 
 or administrator has satisfied the debts and legacies aifecting the 
 testator's or intestate's estate, and paid over the remainder to the 
 residuary legatee ; and has had no notice of any other subsisting 
 demand, provided he had not done it too precipitately, that it was 
 a good answer to an action, such as the present; that the 
 statute (a), having directed that no legacies should be claimed 
 before the end of one year from the testator's death, seemed to 
 have meant to give that time for creditors to the estate to make 
 their claims, or at least to give notice to the executor or admi- 
 nistrator that there were such claims subsisting ; and that, as in the 
 present case, the debt was of such long standing, and unclaimed 
 for such a number of years, and the remainder of the estate paid 
 over to the residuary legatee, he was of opinion that it was complete 
 evidence of ple7ie administravit in favour of the executor; but his 
 Lordship added, he would reserve that point "(i). In Simmons 
 V. Bolland, the mayor and commonalty of C, in 1798, leased to S. 
 for thirty years, at a certain rent, and under covenants for pay- 
 ment of rent and taxes, and for repairs, &c. The lessee by his 
 will gave all his real estates, and all his leaseholds and personal 
 estate, to the defendant B. and another (whom he also appointed 
 his executors), upon trust to sell ; and, after payment thereout of 
 
 (a) Ste the Statute of Distribution of 
 Intestates' Estates, 22 and 23 CI . 11 c. 
 
 10, s. 8, and 1 Salk. 415. 
 {}>) 1 Espin. 275.
 
 S. XVI.] PAYING DEBTS BEFORE LEGACIES. 553 
 
 debts and legacies, to invest the produce in their names upon 
 certain trusts ; subject to vi^hich he gave the entire residue of his 
 estate to the phaintiff, on his attainment of the age of twenty-five 
 years. The testator died in 1807, leaving the plain tiif, his son, 
 then a minor. The trustees and executors proved the will, pos- 
 sessed themselves of the whole of the testator's estate, real and 
 personal, and paid the debts and legacies, without resorting to a 
 sale of the real estate, or of the leaseholds, into the possession 
 of which (including the premises demised by the lease to S.) the 
 plaintiff, on his attaining twenty-five, entered ; at which time, 
 also, the entire residue of the personal estate was transferred to 
 him by the executors, except a bond for 1000/. from the mayor 
 and commonalty of C. to the testator, and a sum of 800/. five 
 per cents., which were still retained by them out of the surplus, 
 and for the recovery of which the present bill was filed. To this 
 bill the defendant, the surviving trustee and executor, by his an- 
 swer submitted that he was entitled to retain the property in 
 question, " for the purpose of protecting himself from any claim 
 which might be made against him as devisee in trust and execu- 
 tor of S., in respect of rent due, or thereafter to accrue due, for 
 the premises demised by the said indenture, or of the present or 
 any future breach or non-performance of any of the covenants 
 therein contained ; the payment of which rent, and performance 
 of which covenants, the defendant was advised he was liable to 
 under the said indenture ;" and had actually then lately received 
 a notice to that effect from the corporation. He at the same time 
 admitted, that there were then no subsisting breaches of covenant, 
 in respect of which he was so liable, and that no rent was then 
 due or in arrear for the premises; but insisted that, under the 
 circumstances, he was entitled to retain as aforesaid, in respect 
 of any future contingent demands, to which the notice given by 
 the corporation also extended. By Sir W. Grant : — " The 
 equitable relief sought in this case depends upon a legal ques- 
 tion, — whether an executor can safely make payment of legacies, 
 or deliver over a residue, while there is an outstanding covenant 
 of his testator, which has not yet been, and never may be.
 
 554 OF PAYING DKBTS BEFOUE LEGACIES. [CH. XXXVIII. 
 
 broken." And, after commenting on Eehs v. Lambert (c), Nec- 
 ton V. Gennet [d), and Haivkins v. Day (<?), his Honour continued, 
 — " In this state of the authorities, it would be too mucli for me to 
 order the executor to transfer and pay, without having security 
 given him, in case of judgment being recovered against him at 
 law, for any future breach of the covenant. No decree, that I 
 can make, will bind the corporation of C, or protect the executor 
 against their demand, if the bond should hereafter be forfeited. 
 All that I can do is, to order the funds to be made over, on the 
 plaintiff giving a sufficient indemnity ; and it must be referred to 
 the Master to settle the terms of such security" {f). In Vernon 
 v. Earl of Egmont, the respondent, being residuary legatee under 
 the will of his father, filed a bill in equity against the appellant, 
 the executor, for payment. By the Master's report, it appeared 
 that certain estates stood limited to the use of the testator for life, 
 remainder to such uses as the testator and the respondent should 
 jointly appoint; and, in default thereof, to such uses as the re- 
 spondent should appoint; and, in defeult thereof, to the use of the 
 respondent for life, remainder to the use of his first son in tail male, 
 with remainders over; and with powers to the testator to lease 
 for twenty-one years, reserving the best yearly rent, without taking 
 any fine. The testator executed many leases, which contained 
 covenants on his part for quiet possession ; but such leases were 
 not in conformity with his powers of leasing, inasmuch as they 
 were for longer terms, and that some of the tenants paid fines for 
 the granting of their leases. On the ground that the tenants, if 
 evicted, might sustain an action against the appellant, he objected 
 to paying over the residue, without indemnity from the respon- 
 dent; and the Master of the Rolls having decreed payment, 
 without that indemnity, such decree was reversed by the House 
 of Lords. "Lord E.", it was observed by Lord Eldon, "has the 
 power to dispute or to confirm the leases : may he not be 
 required, before he receives the assets, to confirm the leases ? If 
 
 (c) Style, 37, 54, 73 ; Aleyu, 38. I (e) Arab. 160. 
 
 (d) Cro. Eliz. 466 ; 1 llol. Abr. 92f', | (./) 3 Meriv. 547. 
 Mo. 413.
 
 S. XVI.] OF PAYING DEBTS BEFORE LEGACIES. 555 
 
 a creditor, having a present debt, omits to claim it under the 
 decree, lie may be excluded. But this is the case of creditors, 
 who are not qualified to claim — even upon ejectment, not till 
 after judgment. A residuary legatee, having the power to dis- 
 turb leases made by the testator, should confirm, or undertake not 
 to disturb, them, before he takes the assets. Some security is 
 necessary, notwithstanding all the inconvenience attending that 
 course of proceeding." On another occasion Lord Eldon said, 
 that " if it were necessary to decide the general principle, 
 although he was inclined to think that the appellant had a title, 
 he should take much time for consideration : but that the case 
 was special, as the respondent had the power to confirm, or to 
 disturb, the leases, and that he ought not to take the funds out of 
 the hands of the executor, without giving indemnity against any 
 action, which might be brought by the tenants in case of evic- 
 tion, on which special ground he should advise the House to 
 reverse the decree." The declaration of the Lords was, " that 
 before the residue of the testator's personal estate shall be paid 
 to the respondent, the Earl of E,, or his assigns, the said Earl of 
 E. ought either to confirm, or, in case he is unable to confirm by 
 his own act, to procure to be confirmed, the said leases granted 
 by the said testator not in conformity with his powers, or other- 
 wise give a satisfactory indemnity to the appellant against any 
 claims, which might be made against him in respect of the said 
 leases, and all costs, charges, damages, and expenses, which the 
 appellant might incur, or be subjected to, in respect thereof" (^). 
 Dando v. Dando (a case, which it may not be improper to insert 
 in this place,) was a suit instituted to carry into effect the will of 
 a testator, who died in 1817, having bequeathed his personal 
 estate to trustees, in trust to convert it into money, to lay out the 
 proceeds on government or real securities, and to pay the income 
 to the plaintiff, his widow, for life. The executor admitted, in 
 his answer, that all the testator's debts and funeral expenses had 
 been paid ; and a balance, which he had paid in under an order 
 of the Court, had been laid out. For the plaintiff it was moved, 
 
 (g) 1 Bligh P. C. (N.S.)554.
 
 556 WHEKE executor's liability not incurred. [cH. XXXVIII. 
 
 that the dividends then accrued due, and thereafter to accrue due, 
 on the stock purchased with the balance, might be paid to her. 
 Sir A. Hart said, — " If an executor admits assets, he does it at 
 his peril; and therefore I shall make the order as prayed" (A). 
 
 SECTION XVII. 
 
 OF INSTANCES, WHERE AN EXECUTOR's PERSONAL LIABILITY IS 
 NOT INCURRED. 
 
 Among other acts which may not be a devastavit, or that may 
 not draw on an executor personal liability or loss (z), it appears 
 that, by the decision of, or opinion expressed in, a Court of Law, 
 at law a devastavit may not be committed, — and the executor's 
 personal liability or loss may not be incurred, — by paying debts by 
 simple contract before a bond debt of which the executor has not 
 notice (j) : by paying a debt now due on bond, in disregard 
 of a statute or recognizance to perform covenants not yet broken, 
 
 (h) 1 Sim. 510. 
 
 (i) Bereblock v. Read, or Rede v. Bere- 
 bloch, Cro. Eliz. 734, 822, 2 Brownl. & 
 G. 81, Yelv. 29, 4 Co. 59, b.; Aiion. 2 
 Anders. 157 ; ^nore. Keilw. 51, a., Ca. 5; 
 Eveiiiig V. Leveson, Gouldsb, 115 ; Brit' 
 ton V. Batthurst, 3 Lev. 113, cited Amb., 
 
 ed. Blunt, Append. 805 Gouldsb. 181, 
 
 3 Salk. 125, tit. Devastavit, pi. 3. If 
 Britton v. Batthurst is understood, one 
 point decided in it appears to be, that if 
 an executor confesses judgment to a cre- 
 ditor by simple contract, and afterwards 
 discovers a bond creditor, whom he pays, 
 then, as at the time of confession of the 
 judgment the executor had not notice of 
 the bond, the payment of such bond debt 
 before satisfaction of the judgment is not 
 a devastavit. 
 
 (j) Vaugh. 94; Fitz-Gib. 78; Britton 
 V. Batthurst, 3 Lev. 115, cited Amb., ed. 
 Blunt, Append. 805 ;■ Brui>ki7ig v. Jen- 
 nings, 1 Mod. 175 ; Harmun v. Harman, 
 3 Mod. 115, 2 Show. 492. See the last- 
 
 mentioned case in Comberb. 35 ; and see 
 also 1 Barnard. Rep. 186. In Brooking 
 v. Jennings, Vaughan, C. J., expressed 
 an opinion, in which Atkyns, J., and 
 Ellis, J., agreed, that " debts upon sim- 
 ple contracts may be paid before bonds, 
 unless the executors have timely notice 
 given them of those bonds ; and that 
 notice must be by action." 1 Mod. 175. 
 This opinion appears to be opposed by 
 the numerous authorities, which affirm, in 
 general terms, that at law debts by bond 
 are payable before debts by simple con- 
 tract. 9 Co. 88, b.; Cro. Eliz. 316; 7 
 Barn. & C. 452. And notwithstanding 
 the considerable opinion referred to, it is 
 believed that, to affect an executor by no- 
 tice of a bond, it needs not to be by action, 
 and that many kinds of notice will be suf- 
 ficient for the purpose. 3 Lev. 115 ; Amb. 
 162, and, ed. Blunt, Append. 805 ; 1 
 Dick. 157. On the other hand, creditors 
 need not demand but by an action, 7 
 Ves. 193 ; and it is the business of the
 
 S. XVIII.] OF A CT-AUSE OF INDEMNITY IN A WILL. 557 
 
 or defeazanced for payment of money at a day yet to come {k) : 
 by an act, which is a devastavit in a co-executor only (/) : or by 
 preferring, Lord Ilardwicke seems to have thought, the debt of a 
 subject to a debt due to the king, in case the king's debt is not 
 upon record ()/<). 
 
 And, among other instances (n), it may be mentioned, that it 
 appears that, by the decision of, or opinion expressed in, a Court 
 of Equity, in equity a devastavit may not be committed, and the 
 executor's personal liability may not be incurred, — by paying debts 
 by simple contract before a debt by bond, of which the executor 
 has not notice : or by paying debts by simple contract before a 
 breach of the condition of a bond to perform covenants, and of 
 which bond the executor has not notice : or by paying debts by 
 simple contract ofte?- a breach of the condition of a bond to per- 
 form covenants, and of which bond the executor has not notice : 
 or by paying debts by simple contract before a breach of the con- 
 dition of a bond to perform covenants, and of which bond the 
 executor has notice (o). 
 
 SECTION XVIII. 
 
 OF A CLAUSE OF INDEMNITY IN A WILL. 
 
 A WILL frequently contains a declaration purporting to be an 
 indemnity to the executors or trustees named in the will, against 
 
 executor to find out the creditors. 7 Ves. 
 193; Wentw. Off. Ex. Ch. 13, 14th ed. 
 p. 305. When, therefore, an executor 
 pays simple contract debts, he must, to 
 avoid personal responsibiUty, take care 
 both that he is not possessed of any notice 
 of bond debts, and that he pays the sim- 
 ple contract creditors " in a reasonable 
 way," 1 Dick, 157, and is not guilty of 
 laches, or neglect of duty, in his search 
 after creditors by bond. Ibid, Wentw. 
 Off. Ex. Ch. 13, 14th ed. p. 304, 305. 
 
 {k) Anon. Mo. 752, Jenk. Cent. C. 6, 
 Ca. 94 ; Harrison's case, 5 Co. 28 b. : 
 
 Philips V. Echard, Cro. Jac. 8, 35. 
 
 (/) Hargthorpe v. MUforth, Cro. Elis. 
 
 318 1 Dick, 157; Wentw. Off. Ex. 
 
 ch. 13, 14th ed. p. 306. See Champneys 
 V, Browne, 1 Barnes, 323, 
 
 (m) Otway v. Ratnsay, 4 Barn. & C. 
 416, n. See, however, Parker Rep. 101. 
 
 (n) Gibbs v. Herring, Free, Ch, 49 ; 
 Blue V. Marshall, 3 P, W. 381 ; Orr v. 
 Newton, 2 Cox, 274 ; Langford v. Gas- 
 coyne, 11 Ves. 333, 336, as to the execu- 
 tor Lambert ; Turner v. Turner, 1 Jac, & 
 W. 39, 44, 
 
 (o) Hawkins v. Day, Anib, 160, and.
 
 558 OF A CLAUSE OF INDEMNITY IN A MMLL. [CH. XXXVIII. 
 
 losses that may happen to the trust estate. And it appears that 
 wliove a clause of this kind is omitted in a will, it is taken to be 
 implied in, or is infused into, it by the Court of Chancery (p). 
 And it may perhaps be considered, that executors or trustees are 
 not more indemnified by the usual express clause of indemnity, 
 than they are by tlie Courts of Equity, althouf^h this clause is 
 wholly left out of the will (q). Where there is not fraud or 
 a breach of trust, trustees and executors appear to be in every 
 case anxiously protected by the Courts of Equity (r). Generally 
 speaking, the express declaration of indemnity contained in a will 
 is not meant to be a defence against an act, which, in the consi- 
 deration of a Court of Equity, amounts to fraud or a breach of 
 trust (s). And it is certain that executors or trustees may, in 
 many cases, be responsible for a loss occasioned to the estate 
 entrusted to them, notwithstanding a clause of indemnity inserted 
 in the will (t). Responsibility for losses has accordingly been 
 incurred, — in the instance of a loan of trust-money, although the 
 will declared that the trustees " should not be answerable for any 
 loss which might happen, without their wilful neglectordefault"(?<) : 
 and in the instance of concurring in a sale, joining in a receipt 
 for the purchase-money, and permitting a co-trustee to retain the 
 money ; although the instrument, which created the trust, de- 
 clared that the trustees " should not be chargeable with, or 
 accountable for, any more of the trust-monies, than he or they 
 
 ed. Blunt, Append. 803, 1 Dick. 155, 3 
 Meriv. 555, n. This case contradicts 
 Greenwood v. Bj-udnish, Prec. Cli. 534. 
 
 (p) 18 Ves. 254 ; 2 Atk. 126. 
 
 ((/) 2 Atk. 126; 3 Atk. 444, 584; 
 Amb. 219; 1 Dick. 126; 8 Ves. 8; 18 
 Ve-. 254. 
 
 (r) Crookshanks v. Turner, 7 Bro. P. 
 C. ed. Toml. 255 ; Alle)i v. Hancom, ib, 
 375 ; Blue v. Marshall, 3 P. W. 381 ; 
 Aiwn. 12 Mod. 560 ; Jackson v. Jackson, 
 1 Atk. 513, 1 West Cas. T. Hardw. 31 ; 
 Bruere v. Pemherton, 12 Ves. 386 ; Birls 
 
 V. Betty, 6 Madd. 90 1 P. W. 141 ; 5 
 
 Ves. 843; 11 Ves. 107; 13 Ves. 410, 
 412 ; 3 Meriv. 42. 
 
 (s) Hide V. Hayivood, 2 Atk. 126; 
 Mucktow V. Fuller, Jacob, 198. As 
 against creditors, a clause could not, it is 
 presumed, be framed, effectual to protect 
 against a breach of trust ; although as 
 against volunteers, as legatees in the will, 
 it is probable such a declaration of in- 
 demnity would be permitted to have the 
 force intended. 1 Salk. 318 ; 1 P. W. 
 243 ; 1 Eden, 360 ; 2 Sch. & Lef. 239, 
 240,245. See2Bro. C. C. 117. 
 
 (0 Sadler v. Hobbs, 2 Bro. C. C. 114 ; 
 Mucklow V. Fuller, .lacob, 198 ; Bone v. 
 Cook, M'Clel. 168, 13 Price, 332. 
 
 (it) Langston v. Ollivant, Cooper, 33.
 
 S. XVIII.] OF A CLAUSE OF INDEMNITY IN A WILL. 559 
 
 should actually receive, nor with or for any loss which should 
 happen of the same monies, or any part thereof; so as such loss 
 happened without his or their wilful default ; nor the one for the 
 other of them, but each of them only for his own acts, deeds, 
 receipts, disbursements, and defaults " (u) : and in the instance 
 of allowing certain purchase-money to be received and retained 
 by a co-trustee ; and of a loss occasioned by trustees, through 
 their omission to re-invest certain stock immediately, w'hich had 
 been sold, and the produce for some time placed in the hands of 
 their bankers ; notwithstanding- the will contained a proviso, that 
 " the trustee or trustees should not be answerable or accountable 
 for any trust-money, further than each person for what he should 
 actually receive, and not the one for the other or others of them, 
 or for the acts, receipts, or defaults of the other or others of them ; 
 but each person for his own acts, receipts, and defaults only ; and 
 not for any involuntary loss whatsoever " (20) : and in instances of 
 joining in a sale of stock, although the will declared, in one case, 
 that the executors and trustees " should be indemnified from all 
 costs and charges in and about the execution of the will " (x) ; 
 and, in another case, that " the trustees and executors respectively 
 should be answerable only for such monies as they should 
 respectively receive, and should not be answerable or accountable 
 for the acts, receipts, or defaults of each other, or for any loss, 
 misfortune, or damage, which might happen in the execution of 
 the will, except the same should happen through their wilful 
 default respectively "(?/). 
 
 (v) Bricev. Stokes, 11 Yes. 319. 1 (a) Chambers v. Minchin, 7 Ves. 186. 
 
 (w) Bo/ze V. Coo/c, M'Clel. 168, 316, c, (y) Underwood v. Stevens, 1 Meriv. 
 
 13 Price, 332. I 712.
 
 5(i() 
 
 CHAPTER XXXIX. 
 
 OF INTEREST ON DEBTS. 
 
 Section I. — Of allowing Interest in a Court of Law. 
 
 II. — Of allowing Interest in a Court of Equity. 
 
 SECTION I. 
 
 OF ALLOWING INTEREST IN A COURT OF LAw(a). 
 
 At law, interest is payable on a debt, in cases wliere there is 
 a contract, express or implied, to pay interest (Z»). Also, under 
 especial circumstances, interest is, in the shape of damages, 
 allowed by a Court of Law, when a debt is detained from the 
 creditor (c). 
 
 An agreement to pay interest may be implied in a contract, from 
 the nature of the security given to pay the debt {d) ; or from the 
 usage of the trade, to which the contract relates [e)\ or from some 
 dealings between the debtor and creditor [f). If the security 
 given is a bill of exchange, then, because it is the usage of trade 
 
 (a) Generally on tliis subject, see, 
 besides the authorities after referred to, 
 Orr V. Churchill, 1 Hen. Bl. 227 ; Treluiv- 
 ney v. Thomas, ih. 303 ; Dixon v. Parkes, 
 1 Espin. 110; Shipley v. Hammond, 5 
 Espin. 114; Kingston v. M'Intosh, 1 
 Campb. 518 ; Becher v. Jones, 2 Campb. 
 428, n. ; Dawes v. Pinner, ib. 486, n. ; 
 Gantt V. Mackenzie, 3 Campb. 51 ; Flar- 
 rison v. Dickson, ib. 52, n.; Dent v. Dunn, 
 ih. 296; Hellier v. Franklin, 1 Stark. 
 291 ; Moore v. Vovghlon, ib. 487. 
 
 (6) 15 East, 229 ; 2 Barn. & C. 349. 
 
 (c) Hilhouse v. Davis, 1 M. & Sel. 
 169; Arnott v. Redfern, 3 Bing. 353, 
 cited 4 Man. & Ryl. 309.— 3 Camb. 297 ; 
 7 Taunt. 595 ; 8 Taunt. 54, 55. See 
 also Sweatland v. Squire, 2 Salk. 623. 
 
 (d) 3 Bing. 359 ; 2 Barn. & C. 349, 
 351; 9 Barn. & C. 381. 
 
 (e) Doug. 361, 4th ed. 376 ; 3 Bing. 
 359 ; 2 Barn. & C. 349, 351 ; 4 Barn, 
 & C. 723, 730 ; 9 Barn. & C. 381. 
 
 (/) 4 Barn. & C. 723, 730.
 
 S, I.] OF ALLOWING INTEREST IN A COURT OF LAW. 561 
 
 to pay interest on this mercantile security, a contract to pay 
 interest is implied from that usage [g). 
 
 Except under particular circumstances (A), a bill of exchange 
 carries interest from the time when it becomes due (^). And 
 when, in a promissory note, the promise is to pay the debt on a 
 day certain, the note carries interest from that day (j) . And when, 
 in such a note, the promise is to pay the debt on demand, it 
 appears the note carries interest from the time of the demand 
 made {k). 
 
 If, in a bill of exchange, or promissory note, it is expressed 
 that the bill or note is to carry interest, then, after the principal 
 money is due, the interest is a part of the debt {I). But when 
 interest is payable on a bill of exchange, or promissory note, 
 which does not mention interest, in this case the interest is not a 
 part of the debt {m). It is only damages for the detention of the 
 debt («). To give these damages it is the province of a jury (o) ; 
 but the creditor is not, it appears, subject to their caprice (/?), 
 and is entitled to their verdict for interest as damages {q), except 
 in a peculiar or extraordinary case, where such interest may be 
 properly withheld (r). " Although by the usage of trade," it is 
 observed by Bayley, J., " interest is allowed on a bill, yet it 
 
 (g) 2 Barn. & C. 351 ; 9 Barn. & C. 
 381. 
 
 Qi) Murray v. East India Company, 
 5 Barn. & Aid. 204, 
 
 (i) 2 \V. Bl. 761 ; 8 Taunt. 249; 2 
 Dow & Clark, 299. See 6 Mod. 138. 
 
 O) 2 W. Bl. 761; 3 Wils. 206: 
 8 Taunt. 249 ; 5 Ves. 803 ; 17 Ves, 28, 
 29 ; Laing \. Stone, 2 Mann.& Ryl. 561. 
 
 (k) Upton V. Lord Ferrers, 5 Ves. 
 801, 803; HachiiHt v. Webber, stated in 
 Adams V. Gale, 2 Atk. 106.— 2 W. Bl. 
 761; 17 Ves. 28, 29. See 6 Mod. 
 138. 
 
 (/) 2 Barn. & Aid. 309 ; 2 Barn. & 
 C. 352. See also 1 Atk. 151, and 2 
 Barn. & Aid. 307, 308. 
 
 (m) 2 Barn. & Aid. 308, 309 ; 1 
 Dovvl. & Ryl. 19; 2 Mann. & Ryl. 
 
 562. See 2 Barn. & C. 352. As the interest 
 is not a part of the debt, it cannot be 
 added to the principal, so as to make a 
 good petitioning creditor's debt, on which 
 to ground a commission of bankruptcy. 
 Burgess's case, 8 Taunt. 660 ; Cameron 
 V. Smith, 2 Barn. & Aid. 305. 
 
 («) 1 Atk. 151 ; 2 Barn. & Aid. 307, 
 308, 309 ; 1 DowL & Ryl. 17, 19, 20 ; 
 
 5 Ves. 803; 1 Rose, 401, 402, 
 
 (o) 1 Dow). & Ryl. 17, 19 ; 2 Barn. 
 
 6 Aid, 308. 
 
 (p) 2 i¥ann, & Ryl. 562, 563. 
 
 (q) Laing v. Stone, 2 Mann. & Ryl. 
 561.— 3 Ves. 134, 135. 
 
 (r) Du Belloix v. Lord Waterpark, 1 
 Dowl. & Ryl. 16.— 2 Barn. & Aid. 308; 
 2 Mann. & Ryl. 563. 
 
 o o
 
 562 OF ALLOWING INTEREST [CH. XXXIX. 
 
 constitutes no part of the debt, Imt is in the nature of damages, 
 which must go to the jury, in order that they may find the 
 amount ; and it is competent for them either to allow five per 
 cent., or four per cent., according to their judgment of the value 
 of money, or they may even allow nothing, in case they are of 
 opinion that the delay of payment has been occasioned by the 
 defanlt of the holder" {s). 
 
 A general rule is now firmly established, that, in a Court of 
 Law, interest is not allowed on a debt, as a'book-debt (t), or shop- 
 debt (u), or money lent {v), or money owing for goods sold (w), 
 or money sued for by an action for money had and received (x)^ 
 unless it is payable by a contract express, or that may be implied 
 from some cause, as the usage of trade, or the dealings between 
 the parties (?/). This general rule is fully expressed in the fol- 
 lowing opinions, delivered on the Bench : — " It is now established 
 as a general principle, that interest is allowed by law only upon 
 mercantile securities, or in those cases where there has been an 
 express promise to pay interest, or where such promise is to be 
 implied from the usage of trade, or other circumstances " (z). 
 " The general rule is, that interest is not due by law for money 
 lent ; unless, from the usage of trade, or the dealings between 
 the parties, a contract for interest is to be implied" (a). " It is 
 clearly established by the later authorities, that, unless interest 
 be payable by the consent of the parties, express, or implied 
 
 (s) 2 Barn. & Aid. 308. 
 
 (0 Doug. 361, 4th ed. 376 ; 15 East, 
 227; 1 Campb. 51, 519. 
 
 (u) 3 Ves. 135. 
 
 (v) Calton V. Bragg, 15 East, 223 ; 
 Shaw V. Picton, 4 Barn. & C. 715. 723. 
 —3 Catnpb. 259; 2 Barn. & C. 350, 
 351 ; 9 Barn. & C. 380 ; 4 Mann. & Ryl. 
 307. 
 
 (w) Vernon v. Chnlmondeley , Bunb. 
 119; Pinock v. Willett, Barnes, 3rd ed. 
 228; Gordon v. Swan, 12 East, 419.— 2 
 W. Bl. 761 ; 3 Wils. 206 ; 13 East, 
 99; 15 East, 227, 229; 7 Taunt. 
 595; 1 Campb. 51 ; 2 Campb. 473. See 
 
 Moimtford v. Willes, 2 Bos. & P. 337, 
 cited 2 Campb. 430, n. 
 
 (x) Walker v. Constable, 1 Bos. & P. 
 306 ; Tappenden v. Randall, 2 Bos. & P. 
 467.— 15 East, 227. See Anon, cited by 
 Lawrence, J., 3 Taunt. 159, and by 
 Gibbs, C. J., 6 Taunt. 117. 
 
 (y) Doug. 361, 4th ed. 376 ; 15 East, 
 226, 229 ; 9 Barn. & C. 381 ; 4 Mann. 
 & Ryl. 308; 3 Bing. 359. 
 
 (s) By AbboU, C. J., 2 Barn. & C. 
 349. 
 
 (a) By Abbott, C. J,, 4 Barn. & C. 
 723.
 
 S. I.] IN A COURT OF LAW. 563 
 
 from the usage of trade (as in tlie case of bills of exchange), or 
 other circumstances, it is not due by common law" (/>). 
 
 Under the general rule mentioned, a debt may not carry 
 interest, although it is contracted in writing, and this contract 
 makes it payable at a day certainj as at six months (c) ; or is 
 secured by a deed, as a single bond, which does not mention the 
 time of payment (d), or which does mention it, and makes the 
 debt payable at a day certain, namely, by instalments, at three, 
 five, and seven months from the date (e) ; or is secured by a deed 
 of covenant, under which the debt becomes payable at a day 
 certain (f) ; or although the debt is rent, which is reserved 
 payable on a day certain {(/). 
 
 It has been mentioned (A), that, under especial circumstances, 
 a Court of Law allows interest, when a debt is detained from the 
 creditor. But with respect to allowing interest by reason of deten- 
 tion, there appears to be a difference of opinion, which makes it 
 difficult to collect any definite rule on the subject. Lord Mans- 
 field has held, " that though, by the common law, book debts 
 do not of course carry interest, it may be payable in consequence 
 of the usage of particular branches of trade; or of a special 
 agreement ; or in cases of long delay under vexatious and 
 oppressive circumstances, if a jury in their discretion shall think 
 fit to allow it" («). And in a case, where, in a Court of Equity, 
 Lord Thurlow allowed interest on a simple contract debt detained, 
 his Lordship observed, " It is the constant practice at Guildhall, 
 (I do not speak from my own experience, but from conversations 
 I have had with the Judges on the subject,) either by the con- 
 tract, or in damages, to give interest upon every debt de- 
 tained "(J). Lord Ellenborough states that, in some cases, 
 interest is "recovered in the shape of damages for money impro- 
 
 (b) By Holroyd, J., 2 Barn. & C. 351. 
 
 (c) Gordon v.Swan, 2 Carapb. 429, n., 
 12 East, 419. 
 
 (d) Hogan V. Page, 1 Bos. & P. 337, 
 
 (e) Foster v. Weston, 6 Bing. 709. 
 (/) Higginsv. Sargent, 2 Barn. & C. 
 
 348, cited 6 Bing. 714. 
 
 o o 2 
 
 (g) 15 East, 225; 6 Bing. 714. 
 
 (/i) p. 560. 
 
 (t) 'Eddowes v. Hopkins, Doug. 361, 
 4th ed. 376. 
 
 (j) Craven v. Tickell, 1 Ves. jun. 60, 
 63.
 
 5()4 OF ALLOWING INTF.KEST [CTI. XXXIX. 
 
 perly rotained It, the debtor, contrary to tlie request of the 
 creditor" (A). " The nde of law," it is said by Le Blanc, J., " is 
 affirmative, that where a sum is ascertained, and judgment 
 afterwards pronounced thereon in a Court of Record, if an action 
 of debt be brought on that judgment, the jury may give interest 
 by way of damages for the detention of the debt'' (l). Best, 
 C. J., has expressed an opinion, — " However a debt is contracted, 
 if it has been wrongfully withheld by a defendant, after the 
 plaintiff has endeavoured to obtain payment of it, the jury may 
 give interest in the shape of damages for the unjust detention of the 
 money" (m). And the same learned Judge states, that, from the 
 words above transcribed of Lord Thurlow, " it appears there are 
 two principles, on which interest is given in our Courts ; first, 
 where the intent of the parties, that interest should be paid, is to 
 be collected from the terms or nature of the contract; secondly, 
 where the debt has been wrongfully detained from the creditor." 
 And he continues, — "Our law would not do what it professes to 
 do, namely, provide a remedy for every act of injustice, if it did 
 not allow damages to be given for interest, where a creditor has 
 been kept out of his debt (he using all proper means to recover it) 
 by his debtor. Upon the principle, that the debt has been im- 
 properly detained, juries are allowed to give interest in actions on 
 judgments. It is immaterial in such actions, whether the original 
 debt bear interest or not. In cases where the original debt did 
 not bear interest, there is neither an express nor implied contract, 
 enabling the Court to allow interest on an action on the judg- 
 ment." And the learned Chief Justice farther says, and, in doing so, 
 delivers, it appears, the opinion of the whole Court of Common 
 Pleas — "The Court, mHillhouse v. Davis, and we, now, say, that 
 although it [interest] be not due ex contractu, a party may be 
 entitled to damages, to the amount of interest, for any unreason- 
 able delay in the payment of what is due under the contract" {n). 
 From a part of the doctrine here laid down. Lord Tenterden dis- 
 sents in Page v. Newman, where the Court refused to allow 
 
 {k) 3 CampU. 297. 
 (0 1 IVT. & Sfl. 17") 
 
 (m) Arnott v. Bedfern, 3 Ring. 35.0. 
 («) Jhid. 360, 361.
 
 S.I.I 'N A COURT OF LAW. 565 
 
 interest on a simple contract debt, secured by a written instru- 
 ment, and the payment of which was detained. His Lordship 
 observes, — " If we were to adopt as a general rule that, which 
 some of the expressions attributed to the Lord Chief Justice of 
 the Common Pleas, in the report of Arnott v. Jledfej-n, would 
 seem to warrant, namely, that interest is recoverable in every 
 case where the principal has been wrongfully detained, after the 
 creditor has endeavoured to obtain payment of it, it would neces- 
 sarily become a question at the trial, whether the detention w^as 
 wrongful, and whether proper endeavours had been made to 
 obtain payment; and the opening such a question to the jury 
 would, in my opinion, be productive of much inconvenience, and 
 some danger. I think it safer and more convenient to adhere to 
 the long established rule, that interest is not payable upon money 
 secured by a written instrument, unless it appears upon tlie face 
 of the instrument, that it M^as intended that interest should be 
 paid, or unless such an intention may be implied from the usage 
 of trade, as in the case of mercantile instruments" (o). 
 
 A Court of Law has refused to allow interest on a debt, 
 amongst other instances (p), — in Pinock v. Willett, where the 
 debt was for goods sold and delivered (</) : in Gordon v. Sican, 
 where the debt was for goods sold and deli\'ered, and was con- 
 tracted in writing, and the contract made it payable at six months, 
 and a claim was made to interest from the expiration of the six 
 months, for which the credit was given (r) : in Chalie\. The Duke 
 of York, where tlie debt was for goods sold and delivered, and 
 where, in 1800, an account had been settled between the parties, 
 and a balance struck in favour of the plaintiff; and in which case, 
 it being contended that the plaintiff was entitled to interest on 
 the account so settled from the year 1800, Lord Ellenborough 
 ruled, that " where the action was for pfoods sold and delivered. 
 
 (o) 4 Mann. & Ryl. 308; 9 Barn. & 
 C. 380. 
 
 (p) Hare V. lUckanh, 7 Bing. 254, 
 5 Moore. & P. 35 ; Du Belloix v. Lord 
 Waterpark, 1 Dowl. & RvL 16, cited 2 
 Mann. & Kyi. 563. 
 
 (?) Barnes, 3rd ed., 228. 
 
 ()•) 2 Campb. 429, n., 12 East, 419. 
 cited 2 Campb. 473, 13 East, 99, and 2 
 Barn. & C. 352. See also 15 East, 227 ; 
 and, farther, 8 Taunt. 2'19.
 
 566 
 
 OF ALLOWING INTEREST 
 
 fCH. XXXIX. 
 
 the mere settling the balance did not entitle the party to 
 interest from that time ; nor was he so entitled, unless a time was 
 fixed for the payment of the money, from which time only interest 
 could be claimed" (s) : in De Havilland v. Boiverbank, where the 
 debt was money received by the defendant, as agent for the 
 plaintiff, and in which case a demand of payment was made, but 
 where, to establish a right to interest, there was not a specific 
 agreement to that effect, nor any thing from which a promise to 
 pay interest might be inferred, nor any proof given of the money 
 being used (t) : in Crockford v. Winter, where the debt was money 
 which the defendant had by fraud obtained from the plaintiff" {u) : 
 in De Bernales v. Fuller, where the debt was money which the 
 acceptors of a bill of exchange had paid to the defendants, for the 
 purpose of taking up a bill of exchange held by the plaintiff"; and 
 in which case payment was requested, but where there was no con- 
 tract, express or implied, to pay interest (w): in Harington v. 
 Hoggart, where the debt was money, which, on the sale of an 
 estate by the plaintiff" to one S., was by S. deposited with the 
 defendant, an auctioneer, who, not having sold the property on 
 its being put up to auction, disposed of it by private contract to 
 S. ; and where, the purchase having been completed, it was 
 decided the plaintiff was not entitled to recover from the defendant 
 interest on the deposit, the Court holding the defendant to be not 
 a mere agent, but a stakeholder iic) : in Calton v. Bragg, where 
 the debt was money lent by the plaintiff" to the defendant ; and 
 where, it should seem, the Court considered the case to be one, 
 in which there was no contract, expressed or implied, for interest; 
 a case of a mere simple contract of lending, without an agreement 
 for payment of the principal at a certain time, or for interest to 
 run immediately, and without any special circumstances, from 
 whence a contract for interest was to be inferred {x) : in Page v. 
 Neivman, where the debt was money lent by the plaintiff to the 
 
 (s) 6 Espin. 45. 
 
 (0 1 Campb. 50 ; cited 2 Carapb. 427, 
 429. 
 
 (u) 1 Campb. 124. 
 {vj 2 Campb. 426. 
 
 (m) 1 Barn. & Adol. 577. See 
 also Lee v. Munn, Holt, 569, 8 Taunt. 
 45. 
 
 (x) 15 East, 223.
 
 S. I.] IN A COUUT OF LAW. 567 
 
 defendant, and secured by a written instrument, made in France 
 in the following form, — " In one month after my arrival in 
 England, 1 promise to pay Captain P., or order, the sum of IQ51, 
 as sterling, for value received " ; and in which case Lord Tenter- 
 den, C. J., observed, — " The language of the instrument is such, 
 as rather tends to the conclusion, that the parties intended that in- 
 terest should not be payable. The sum secured is 135/. only ; it is 
 payable upon a contingency, namely, in a month after the defen- 
 dant's arrival in England ; and there is no provision for the pay- 
 ment of interest up to that period. If there had been such a provi- 
 sion, that would have gone far to support the argument, that the 
 parties also intended that interest should be paid from the time when 
 the principal became due to the time of actual payment ; but the 
 omission of any such provision in the instrument is, to my mind, 
 conclusive to shew, that the sum of 135/. was the only sum in- 
 tended to be paid under any circumstances" (y) : in Atkinson v. Lord 
 Brayhrooke^ where the debt was a judgment of the Supreme Court 
 of Jamaica; this judgment constituting only a simple contract 
 debt (r) : in Hogan v. Page, where the debt was secured by a 
 single bond, which did not mention the time of payment (a) : in 
 Foster v. Weston, where also the debt was secured by a single 
 bond, but which bond did mention the time of payment, and made 
 the debt payable at three, five, and seven months, from the 
 date (Z») : in Higgins v. Sargent, where the debt was secured by a 
 policy of assurance, by which the defendants covenanted to pay to 
 the plaintiff 4000Z., at the expiration of six months after due proof 
 of the death of R. C. B. ; and where the Court decided, that the 
 plaintiff was not entitled to interest on the money so secured (c). 
 A Court of Law has allowed interest on a debt, amongst other 
 instances [d), — in Laing v. Stone, where the debt was money 
 
 {y) 4 Mann. & Ryl. 305, 9 Barn. & 
 C. 378. 
 
 (s) 4 Campb. 380, 1 Stark. 21S. See 
 also Hunter v. Bowes, stated 1 M. & Sel. 
 173. 
 
 (a) 1 Bos. & P. 337. 
 
 (6) 6 Bing. 709. 
 
 (c) 2 Barn. & C. 348. 
 
 ((/) Robinson v. Bland, 2 Burr. 1077, 
 1085, 1 W. Bl. 234, 256; Blaney v. 
 Hendricks, 2 W. Bl. 761, 3 Wils. 205, 
 cited 15 East, 228, and 2 Barn. & C. 
 349 ; Blake v. Lawrence, 4 Espin. 147 ; 
 Slack V. Lowell, 3 Taunt. 157 ; Anon.
 
 568 OF ALLOWING INTEREST [CH. XXX IX. 
 
 secured by a promissory note, payable three months after date, 
 and where at the trial it was admitted that the principal had been 
 satisfied, and that the action was brought for the interest ; and in 
 which case the Court decided, that the note carried interest after 
 the three months (e) : in Nichol v. Thompson, where the debt 
 was the balance of an account, and, on inspecting the account, it 
 appeared that interest had been allowed on former balances, 
 which evidenced the mode of dealing between the parties {f) : 
 in Bruce v. Hunter, where the debt was the balance of an account 
 arising from mercantile business transacted by the plaintiffs, as 
 agents for the defendant ; the circumstances of the case being, 
 that the plaintiffs delivered an account to the defendant annually, 
 and at the close of each year, from the expiration of the first, 
 charged interest, and at each rest the interest of the preceding 
 year was added to the principal ; and in which case, it being proved 
 that, for several years, when tlie annual accounts were rendered, 
 the defendant did not object to the charge of interest, the accounts 
 afforded sufficient evidence of a promise, on the defendant's part, 
 to pay interest in the manner charged (g) : in Marshall v. Poole, 
 where the debt was money owing for goods sold and delivered, 
 and where the sale was made on an agreement for payment in 
 bills, at two months, and the defendants, the purchasers, broke 
 their contract by not giving the bills (/*) : in Porter v. Palsgrave, 
 where the circumstances of the case were similar to those in the 
 one last mentioned, and the Court allowed interest from the day 
 the bill, if accepted, would have become due [i) : in Boyce v. 
 Warhurton, also a like case, but where the defendant broke his 
 contract, not only by not giving the bill, but by not accepting 
 the goods purchased ; and where also the Court allowed interest 
 on the amount of the stipulated price, from the time the bill, if 
 given, would have become due {j) : in De Bernales v. Wood, 
 where the debt was money, which, on the purchase of an estate. 
 
 cited by Lawrence, J., 3 Taunt. 159, and 
 by Gibbs, C. J., 6 Taunt. 117. 
 
 (e) 2 Mann. & Ryl. 561. 
 
 (/) I Campb. 52, n. 
 
 {g) 3 Campb. 467. 
 (/() 13 East, 98. 
 (i) 2 Campb. 472. 
 ij) 2 Campb. 480.
 
 S. I.] IN A COURT OF LAW. 569 
 
 the plaintiff deposited according to the conditions of sale, and 
 which dejiosit the plaintiff recovered from the defendant, the 
 vendor {k), it being clearly proved tliat the estate was incnmbered 
 with judgments, so that a good title could not be made; and 
 where the Court allowed interest from the day, when the purchase 
 ought to have been completed (/) : in Farquhar v. Farley^ where 
 the debt was money, which, on the purchase of a reversionary 
 interest in certain bank stock, the plaintiff deposited with the 
 auctioneers, whom after four years, the title not being satisfac- 
 torily deduced, the plaintiff sued for principal and interest, and 
 recovered the principal only ; and in which case of Farquhar v. 
 Farley the plaintiff sued the vendor, and where it was decided 
 the plaintiff was entitled to recover, in tlie shape of damages, 
 what he had lost of interest on his deposit (m) : in Pinhom v. Tuck- 
 ington, where the debt was money due on a balance of accounts, 
 and which money the defendant was, by an award, ordered to 
 pay to the plaintiffs on a certain day, and at a particular place ; 
 and on a demand made on the day at the place appointed, the 
 money was not paid pursuant to the award ; and, in which case, 
 the Court allowed interest from the day, on which the money 
 was by the award to be paid {n) : in Farquhar v. Morris, where 
 the debt was money secured by a bond dated on a day certain, 
 in the penal sum of 800/., conditioned to pay 400/. ; and in which 
 bond no day of payment was expressly named, nor interest 
 reserved in terms ; and where the Court said, " This bond is 
 payable at a day certain, for it is payable on the day of the date, 
 no other time being mentioned for payment " ; and decided, that 
 interest was payable from the time of payment, namely, from the 
 date, though not expressly reserved (o). 
 
 When, by a bond, a person binds himself in a certain sum of 
 
 (k) See 8 Taunt. 55, and 7 Taunt. 
 595. 
 
 (/) 3 Campb. 258. See Walker v. 
 Constable, 1 Bos. & P. 306, where a pur- 
 chaser failed to recover interest on a de- 
 posit, under a count for money had and 
 received. 
 
 (w) 7 Taunt. 592. See also 1 Barn. 
 & Adol. 588, 590. 
 
 (n) 3 Campb. 468. See also Churcher 
 and Stringer's case, 2 Barn. & Adol. 777. 
 
 (o) 7 Durn. &: E. 124, cited 15 East, 
 225.
 
 570 OF ALLOWING INTEREST IN A COURT OF LAW. [cil. XXXIX. 
 
 money, and to the bond there is annexed a condition, making the 
 bond void on the doing of some particular act, as the payment of 
 a smaller sum of money, or the performance of covenants ; in this 
 case the sum, in which the obligor is bound, is a penalty, which 
 the obligor binds himself to pay, if the terms of the condition are 
 not fulfilled, and from which penalty he is discharged if the same 
 terms are fulfilled by him (/;). If to a bond, by which a person 
 binds himself in a certain sum of money, there is not annexed 
 any condition making that sum a penalty, the bond is called a 
 single one, simplex obligatio ; and the sum, in which the obligor 
 is so bound, constitutes a debt from him to the obligee {q). And 
 interest on or beyond that sum is not recoverable in an action at 
 law, unless there is some farther contract, express or implied, to 
 pay interest (r). When a bond is made with a penalty, and the 
 condition is broken, then, notwithstanding some authorities to the 
 contrary (5), the modern doctrine clearly is, that, in an action at 
 law on the bond, it is not allowed to recover damages beyond the 
 penalty {t) ; or, if the condition is to pay a sum of money with 
 interest, to recover for principal and interest a sum greater than 
 the penalty {u). But after judgment obtained in an action on a 
 bond conditioned to pay a sum of money, the nature of the demand 
 is altered ; and, in an action on the judgment, it is competent to 
 the jury to allow interest to the amount of what is due for prin- 
 cipal and interest, although this amount exceeds the penalty of 
 the bond ; and in this respect there is no difference between a 
 foreign judgment and a judgment in a Court of Record here {v). 
 
 (p) 2 Bl. Com. 340. 
 
 (g) Co. Liu. 172 a.; 2 Shep. Touchst. 
 367 ; 2 Bl. Com. 340 ; 6 Bing. 713. 
 
 (r) Hogan v. Page, 1 Bos. & P. 337 ; 
 Foster v. Weston, 6 Bing. 709. 
 
 (s) Lord Lonsdale v. Church, 2 Durn. 
 & E. 388. 
 
 (t) White V. Sealy, Doug. 49 ; Brang- 
 
 win V. Perrot, 2 W. BJ. 1190; Wilde v. 
 Clarkson, 6 Durn. & E. 303 ; Shutt v. 
 Procter, 2 Marsh. 226. 
 
 (m) M'CUire v. Dunkin, 1 East, 436. 
 —1 Dick. 308. 
 
 (u) M'Clure v. Dunkin, 1 East, 436; 
 cited 6 Ves. 415, and 1 Ball & B. 310. 
 See 2 Ves. jun. 162, 165.
 
 S. II.] 
 
 571 
 
 SECTION II. 
 
 OF ALLOWING INTEREST IN A COURT OF EQUITY. 
 
 Generally speaking, a Court of Equity allows interest on a 
 debt, due on a security, which, at law, carries interest (iv). It 
 therefore allows interest on a bill of exchange (x) ; on a pro- 
 missory note {3/), which promises to pay the debt on a day 
 certain (z), or on demand (a) ; and on a bond in a certain sum by 
 way of penalty, and made to secure the payment of a smaller 
 sum (b). 
 
 Excepting money due on a bill of exchange, or due on a pro- 
 missory note, payable at a day certain, or on demand ; and 
 except, perhaps, the case of a promise in writing to pay money 
 on a day certain (c), and, under particular circumstances, the 
 case of a debt detained from the creditor [d] ; generally speaking, 
 a Court of Equity does not allow interest on a simple contract 
 debt (e), as where the money owing is a book-debt {J'), or is 
 secured by a promissory note, payable neither on a day certain, 
 nor expressly on demand (^), or is "a balance of an open and 
 mutual account" (A), or is due "upon a balance of accounts" (i). 
 
 Cra- 
 
 (w) Grosvenor v. Cook, 1 Dick. 305, 
 308 ; Parker v. Hutchinson, 3 Ves. 133 ; 
 Upton V. Lord Ferrers, 5 Ves. 803 ; 
 Dornford v. Bornford, 12 Ves, 129. 
 See Righy v. Macnamara, 2 Cox, 420. 
 
 (i) Montgomery v. Bridge, 2 Dow & 
 Clark, 299, 300. 
 (y) See Lithgow v. Lyon, Coop. 29. 
 (z) Lowndes v. Collens, 17 Ves. 27. — 
 5 Ves. 803. See Righy v. Mac7iamara, 
 2 Cox, 420. 
 
 (a) Upton V. Lord Ferrers, 5 Ves. 
 801.— 17 Ves. 28, 29. See also Adams 
 V. Gale, 2 Atk. 106. 
 (&) 2 Atk. 440. 
 
 (c) Parker v. Hutchinson, 3 Ves. 133, 
 apparently cited 5 Ves. 803 ; Loiundes v. 
 Collens, 17 Ves. 27 ; Tunstall v. Trappes 
 (^Goslings' case), 3 Sim. 306. See also 2 
 Bro. C. C. 3. 
 
 (d) 1 P. W. 396 ; 1 Dick. 428 , 
 ven V. Tickell, ] Ves. jun. 60. 
 
 (e) 2 Ves. 588 ; 2 Atk. 110 ; 2 Ves. 
 jun. 161, 165; Lloyd v. Baldwyn, 1 Dick. 
 139 ; Bedford v. Coke, ib., 178, cited ib., 
 308, 309, and 2 Ves. jun. 166. 
 
 (f) Grosvenor v. Cook, 1 Dick. 305, 
 308.— 3 Ch. Rep. 64, 65; Nels. 136; 2 
 Freem. 133. 
 
 (g) Grosvenor v. Cook, or Coke, 1 Dick. 
 305, cited 2 Ves. jun. 168. and 3 Ves. 
 134. See 2 Bro. C. C. 3 ; 3 Ves. 135 ; 
 12 Ves. 129 ; and Lithgow v. Lyon, 
 Coop. 29. 
 
 (h) Borret v. Goodere, I Dick. 428. 
 
 (i) Ryves v. Coleman, 2 Atk. 439. 
 See Ashton v. Smith, 14 Vin. Abr. 458, 
 cited 15 East, 225 ; Boddam v. Riley, 2 
 Sro. C. C. 2, 4 Bro. P. C. ed. Toml. 561 ; 
 and Barvoell v. Parker, 2 Ves. 365.
 
 572 OF ALLOWING INTEREST [CH. XXXIX. 
 
 When a bond is made with a penalty, and the condition is 
 broken, in general eases a Court of Equity will not decree 
 damages beyond the penalty ( /), or, if the condition is to pay a 
 sum of money with interest, decree the payment, for principal 
 and interest, of a sum greater than the penalty (k). And, in 
 general cases, the Court will not go beyond the penalty, although, 
 in an action at law, judgment has been entered up on the 
 bond (/) ; or although the obligor has by his will devised his land, 
 in trust for, or charged it with, the payment of his debts (m). 
 
 In particular cases, however, a Court of Equity will decree 
 the payment of interest, or other sum of money, beyond the 
 penalty of a bond (n) ; the Court affording this relief to the 
 obligee, on the ground, in some instances, that the obligor has 
 made the Court the instrument of delaying payment to the 
 obligee ; or, according to different expressions of that ground, — 
 that the party " is by injunction prevented from recovering his 
 debt at law" (o) : "that the party was prevented from going on 
 at law, while the demand was under the penalty " (/>) : '" that a 
 party, who had been restrained from proceeding at law, while 
 the debt was under the penalty, liad a right, in a Court of Equity, 
 to principal and interest beyond the penalty of the bond " {q) : 
 
 {j) Davis V. Curtis, 1 Ch. Cas. 226. 
 
 (fc) Stewart v. Rumhall, 2 Vern. 509 ; 
 Bromley v. Goodere, 1 Atk. 75, 80 ; 
 Grosvenor v. Cook, I Dick. 305 ; Gibson 
 V. Egerton, ib., 408 ; Kettlehy v. Kettlehy, 
 2 Dick. 514, also stated 3 Bro. C. C. 492, 
 and cited 2 Anstr. 527, and 2 Ves. & B. 
 288 ; Tew v. Earl of Winterton, 3 Bro. 
 C. C. 489 ; Knight v. Maclean, 3 Bro. 
 C. C. 496, 2 Dick. 516, n. ; Lloyd v. 
 Hatchett, 2 Anstr. 525 ; Mackworth v. 
 Thomas, 5 Ves. 329, cited 3 Sim. 141. 
 See Hale v. Thomas, 1 Vern. 349, 2 Ch. 
 Cas. 182, 186. 
 
 (/) Gibson v. Egerton, and Bumsted v. 
 Stiles, 1 Dick. 408 ; Tew v. Earl of Win- 
 terton, 3 Bro. C. C. 489 J Sharpe v. Earl 
 of Scarborough, 3 Ves, 557 ; Clarke v. 
 Selon, 6 Ves. 411 ; Moore v. M'Namura, 
 1 Ball & B. 309. 
 
 (m) Anon., 1 Sulk. 154, cited 2 Ves. 
 & B. 281 ; Kettlehy v. Kettleby, 2 Dick. 
 514, cited 2 Anstr. 527; Tew v. Earl of 
 Winterton, 3 Bro. C. C. 489. 
 
 (n) Anon., 1 Salk. 154, cited 2 Ves. 
 & B. 281 ; Elliot v. Davis, Bunb. 23 ; 
 Duvall V. Terrey, Show. P. C. 15, cited 
 6 Ves. 79, 415, 416, 3 Russ. 607, and 3 
 Sim. 363 ; Atkinson v. Atkinson, 1 Ball 
 & B. 238 ; Grant v. Grant, 3 Russ. 598, 
 3 Sim. 340 ; Jeudwine v. Agate, 3 Sim. 
 129. See also 1 Vern. 350, 6 Ves. 92, 
 415, and 1 Rose, 401. On the question, 
 whether the excess of the debt, beyond 
 the penalty, is a debt by specialty or by 
 simple contract, see 3 Bro. C. C. 500, 
 and 3 Russ. 609. 
 
 (o) 1 Ball & B. 239. 
 
 (/)) 6 Ves. 79, 3 Sim. 363. 
 
 (7) 3 Russ, 607.
 
 S. II.] IN A COUHT OF KOUITY, 573 
 
 " that if a person, indebted in a sum of money by bond, files his 
 bill for an injunction, statinj^ that he is entitled, by reason of 
 equitable circumstances, to be relieved from the obligation which 
 presses him at law, and there is no neglect or default on the part 
 of the defendant, this Court [Chancery] has a right to consider 
 the bond-creditor [debtor] as submitting to do equity, when he 
 asks equity " (r) : " that if a party chooses, by improper pro- 
 ceedings, to prevent a creditor from having payment as soon as 
 the creditor ought, those proceedings shall not operate to the 
 prejudice of the creditor; but he shall be considered as entitled 
 to receive what is really the amount due to him ; and, notwith- 
 standing there is a form of penalty in the bond, that shall not be 
 the limitation of what shall be recovered by him " [s). 
 
 If a creditor has two securities for the same debt, one by bond, 
 the other by mortgage, the mortgage being to secure the payment 
 of the principal, together with all interest that may grow due 
 thereon ; in this case, if the creditor resorts to the mortgage for 
 payment, he is entitled to be paid the whole amount of principal 
 and interest, although it exceeds the penalty of the bond (/). 
 
 When a person is a creditor by judgment, as by judgment 
 obtained in an action of covenant, or trespass on the case upon 
 promises, then, in general cases, and except under particular cir- 
 cumstances (u), a Court of Equity, when it decrees payment of 
 such debt, does not allow interest on it (u). In Deschamps v. 
 Vanneck, interest was not allowed on a judgment against assets 
 quando acciderint [w). Berrington v. Evans was a creditors' suit, 
 in which it had been referred to the Master to take the usual 
 accounts. An exception to the Master's report was taken by 
 certain creditors, on the ground that the Master had disallowed a 
 
 (r) 3 Russ. 609. 
 
 (s) 3 Sim. 364. 
 
 (t) Clarke v. Lord Abingdon, 17 Ves. 
 106 ; Kerwin v. Blake, 14 Vin. Abr. 460, 
 2 Eq. Cas. Abr. 533 ; Kirwane v. Blake, 
 4 Bro. P. C. ed. Toml. 532. See also 
 Godfreitv. Watson, 3 Atk. 517. 
 
 (i() Earl of Batit v. F.arl of Bradford , 
 
 2 Ves. 587.-3 Y. & Jerv. 395, 399. 
 See Wainwright v. Healy, 2 Dick. 444. 
 
 (i>) Gibson v. Egerlon, and Biimsted v. 
 Stiles, 1 Dick. 408; Styles v. Attorney 
 General, 1 Vilest Cas. T. Haidw. 132; 
 Lewes v. Morgan, 3 Y. & Jerv. 394, 395, 
 399.-2 Ves.jun. 718, 719. 
 
 (w) 2 Ves.jun. 716.
 
 574 OF ALLOWING INTEREST [CH. XXXIX. 
 
 claim of interest on judgments, obtained by the creditors several 
 years back, and wliieli they had been prevented from rendering 
 available, by the decree and subsequent proceedings in this suit. 
 By Lord Lyndhurst, — " It does not appear that any case can be 
 found, in which interest has been allowed on a judgment, merely 
 because the progress of the cause has created some delay. Sup- 
 pose there are assets outstanding, requiring considerable time to 
 render them available ; is there any case in which that alone has 
 been considered a ground for interest on a judgment? The 
 question would necessarily arise in every suit, more or less". 
 The exception was accordingly overruled [x). When, however, 
 a judgment is entered up with a penalty, and is defeazanced to 
 pay a certain sum and interest, the creditor is entitled to the 
 amount of principal and interest up to the extent of the penalty (y). 
 And although the defeazance does not specify any thing about 
 interest, yet if the security is given for the payment of a parti- 
 cular sum on a certain day, it appears that, in a Court of Equity, 
 that sum will carry interest from the day on which it is to be 
 paid {z). 
 
 As, generally speaking, a Court of Equity will not decree 
 payment beyond the penalty of a bond, so likewise in general 
 cases it will not go beyond the penalty of a recognizance («), or 
 judgment (h). Particular circumstances created an exception to 
 this rule in Atkinson v. Atkinson, where the Court allowed to a 
 judgment creditor interest beyond the penalty (c). Interest 
 beyond the penalty was likewise allowed in Godfrey v. Watson {d). 
 
 When, by a will, freehold land is devised in trust for, or charged 
 with, the payment of debts, the creditors are, out of this fund, 
 entitled to be paid with interest on debts which carry interest (e). 
 
 (x) 1 Younge, 276, 280. 
 
 (y) ^unstalL v. Trappes (Lawson's 
 case), 3 Sim. 299. 
 
 (z) Tunstall V. Trappes (^Goslings' 
 case), 3 Sim. 306. 
 
 (a) Bidlake v. Lord Arundel, 1 Ch. 
 Rep. 93 ; Jevon v. Bush, 1 Vern. 342. 
 
 (h) 1 Rail & R. 238, 239. 
 
 (c) 1 Rall& R.238. 
 
 (d) 3 Atk. 517, apparently cited 3 Y. 
 & Jerv. 395. See Lloiid v. Hatchett, 2 
 Anstr. 525, and Clarke v. Lord Abingdon, 
 17 Ves. 106. And on allowing interest 
 on a judgment, which may be tacked to a 
 mortgage, see, farther, 3 Y. & Jerv. 399. 
 
 (e) 2 Atk. 110.
 
 S. II.] IN A COURT OF EQUITY. 575 
 
 but in general cases, and except under particular circumstances (y), 
 not, it would seem, on debts by simple contract, wliicli otherwise, 
 or if payable out of legal personal assets, do not carry interest {</). 
 In Tait v. Lord Nortlnvick^ a simple contract creditor was held not 
 to be entitled to interest on his debt, although the will of the 
 debtor contained a devise of real estate, upon trust to pay all 
 debts, which the testator should at the time of his death owe to 
 any person " by mortgage, bond, or other specialty, or by simple 
 contract, or otherwise howsoever, and all interest thereof" {h). 
 
 When, by a decree, it is referred to the Master, to take an 
 account of the debts of a person deceased, testator or intestate, 
 and to compute interest on such of the debts as carry interest ; 
 and, on the cause coming on to be heard for farther directions, it 
 is referred back to the Master, to compute subsequent interest on 
 the debts from the foot of his report ; then, it appears, it is the 
 duty of the Master, to compute subsequent interest on the debts, 
 on which he had before computed interest, from the foot of his 
 report, but not to compute interest on simple contract debts, not 
 carrying interest, although such debts are liquidated by the 
 former report, which has been confirmed (^). 
 
 The rate of interest allowed by a Court of Equity on debts 
 seems to be four per cent. ( j), unless a different rate is expressly 
 contracted for, or the security carries at law five per cent., when 
 this different rate of interest appears to be allowed by the 
 Court [k). 
 
 (/) Lloyd V. Williams, 2 Atk. 108, 
 Barn. Ch. Rep. 224.-2 Ves. 588. 
 
 (g) Dolman v. Pritman, 3 Ch. Rep. 
 64 ; Dolben, or Dalbin, v. Prittiman, 
 S. C, Nels. 136, 2 Freem. 133 ; Lloyd 
 V. Williams, 2 Atk. 110, Barn. Ch. Rep. 
 224 ; Barwell v. Parker, 2 Ves. 363 ; 
 Earl of Bath v. Earl of Bradford, ib., 
 588 ; Stewart v. Noble, 1 Vern. & Scriv. 
 528, 536. See Car v. Countess of Bur- 
 lington. 1 P. W. 5th ed. 228, and 229, n. 
 (1); Bothomly v. Lord Fairfax, 1 P. W. 
 334; and Shirley v. Earl Ferrers, 1 Bro. 
 C. C 41. 
 
 (h) 4 Ves. 816, 823. 
 
 (i) Lloyd V. Baldwyn, 1 Dick. 139; 
 Bedford v. Coke, ib., 178 ; Creuie v. Hun- 
 ter, or Lowth, 2 Ves. jun. 157, 4 Bro. 
 C. C. 157, 316. See Bickham v. Cross, 
 2 Ves. 471, cited 2 Ves. jun. 160; Neal 
 V. Attorney General, Mos. 246; and 
 Wainwright v. Healy, 2 Dick. 444. 
 
 (J) Bickham v. Cross, above ; Grosve- 
 nor V. Cook, 1 Dick. 305, 309 ; Parker 
 V. Hutchinson, 3 Ves. 133. 
 
 (k) Bickham v. Cross, above ; Upton 
 V. Lord Ferrers, 5 Ves. 801 , 803 ; Lowndes 
 v.Collens, 17 Ves. 27.
 
 57G OF ALLOWING INTEREST IN A COURT OF EOUITY. [CH. XXXIX. 
 
 In Lady Montgomery v. Bridye, a widow entered into an 
 engagement to pay the whole of her deceased husband's debts, 
 and executed a minute, and afterwards a formal instrument, to 
 that effect. And it was decided, that the engagement extended 
 to the payment of interest on such debts, as ex contractu or ex lege 
 bore interest, and that therefore the creditors were entitled to 
 interest, as well on bills of exchange as on debts secured by 
 bond (Z). 
 
 (/) 2 Dow & Clark, 297.
 
 577 
 
 CHAPTER XL. 
 
 OF DEBTS PAYABLE OUT OF A SEPARATE ESTATE, THE ASSETS 
 OF A MARRIED WOMAN. 
 
 A POWER of disposition is naturally incident to property ; and, 
 generally speaking, therefore, and in particular except so far as 
 that power may be limited by a clause against anticipation con- 
 tained in a settlement («), a married woman is, by virtue of the 
 same power, at full liberty to dispose of her separate estate, and 
 an express authority to make this disposition is unnecessary (b). 
 And where there is not such express authority, a wife may, it is 
 clear, alien her separate estate, in whatever legal manner she 
 pleases (c). 
 
 When real estate is settled to the separate use of a married 
 woman, she is entitled without the concurrence of her trustees (c?), 
 unless this concurrence is required by the settlement (e), in com- 
 mon cases to sell ( /*), or mortgage {</), this separate estate, or 
 convey it for the purpose of securing the repayment of future 
 
 (a) Tha't, when desired, it is legal on 
 settling a separate estate, real or personal, 
 to prevent any disposition of it by way of 
 anticipation, see 3 A.tk. 542, 3 Bro. C. C. 
 347, 4 Bro. C. C. 486, 9 Ves. 494, 524, 
 11 Ves. 221, and 18 Ves. 434, A clause 
 against anticipation is found in Jackson v. 
 Hohhfluse, 2 IMer. 483 ; Ritchie v. Broad- 
 bent, 2 .Tac. & W. 456 ; and Barton v. 
 Briscoe, Jacob, 603. In the following 
 cases, the terms of the particular settle- 
 ments were held not to be preventive of 
 anticipation ; Pybus v. Smith. 3 Bro. C. 
 C. 340, 1 Ves. jun. 189; Wagstaff v. 
 Smith, 9 Ves. 520; Acton v. White, 1 
 Sim. & St. 429 ; Gtyn v. Baster, 1 Y. & 
 Jerv. 329. 
 
 (b) 2 Ves. 191 ; Amb. ed. Blunt, 841 ; 
 1 Ves. jun. 48, 49 ; 10 Ves. 581 ; 1 
 
 Madd. 261 ; 3 Madd. 389; 5 Madd. 418 ; 
 
 1 Sim. & St. 432. 
 
 (c) Hulnie v. Tenant, I Bro. C. C. 16, 
 
 2 Uicls. 560 ; Burnuby v. Griffin, 3 Ves. 
 266. 
 
 ((/) Peyine v. Peacock, Cas. T. Talb. 
 41 ; Grighy v. Coj, 1 A'^es. 517; Pybus 
 V. Smith, 1 Ves. jun. 189, 3 Bro, C. C. 
 340 ; Essex v, Atkins, 14 Ves. 542, 547. 
 
 (e) 1 Ves. 518; 1 Bro. C. C. 17; 1 
 Ves. jun. 193, 194 ; 14 Ves, 547. 
 
 (/) Grigby v. Cox, 1 Ves. 517, cited 
 1 Bro. C. C. 20; Parkes v. White, II 
 Ves. 209; Witts v. Dawhins, 12 Ves. 
 501 ; Acton v. White, 1 Sim. & St. 429 ; 
 Davidson v. Gardner, Sugd. Vend. & P. 
 6th ed. 574, 575. 
 
 (g) Penne v. Peacock, and Pybus v. 
 Smith, above. 
 
 P P
 
 578 or DE13TS PAYA15LK OUT OF A SKPAIIATE ESTATE, [CH. XL. 
 
 advances of money (h), or charge it with the payment of an 
 annuity (/). 
 
 So when personal estate is settled to the separate use of a 
 married woman, she is entitled without the concurrence of her 
 trustees {j ), unless their concurrence is required by the settle- 
 ment (/i), in common cases to sell (/), or mortgage (m) this sepa- 
 rate estate, or convey it for the purpose of securing the repay- 
 ment of future advances of money {n), or to charge it with the 
 payment of an annuity (o). 
 
 A married woman may, moreover, affect her separate estate, 
 by means of her bond (p), bill of exchange (q), or promissory 
 note (r). And where she has both an interest and power, as 
 where real or personal estate is vested in trustees, in trust for 
 her appointees, to be named by deed or instrument in writing, 
 and, in default of appointment, in trust for her separate use for 
 life, an instrument executed by her, as a bond or promissory note, 
 may affect her interest or estate in the property, although it may 
 not be valid as an appointment under the power (s). It appears 
 to be clear, that an appointment under a power to appoint a 
 separate estate must, like an appointment of property which is not 
 
 (h) Pybus V. Smith, 1 Ves. jun. 189. 
 
 (i) Jones v. Harris, 9 Ves. 486 ; Essex 
 V. Atkins, 14 Ves, 542, 547; Poioer v. 
 Bailey, 1 Ball & B, 49; Gl.yn v. Baster, 
 1 Y. & Jeiv. 329. See Mores v. Huish, 
 5 Ves. 692. 
 
 (j) Grigby v. Cat, 1 Ves. 517, and 
 Essex V. Atkins, above. 
 
 (fc) 1 Ves. 518; 1 Bro. C. C. 17; 14 
 Ves, 547, 
 
 (/) Sturgis V, Corp, 13 Ves. 190; 
 where the separate properly was an estate 
 in remainder, expectant on a limitation 
 in trust for another party for life. Brow)te 
 V. Like, 14 V^es. 302 ; IJeaden v, Rosher, 
 M'Clel. & Y. 89, See also Machorro, 
 or Macheilan, v. Slonehouse, cited 1 Bro, 
 C. C. 18, 19, and 2 Dick. 561; and 
 Whistler v. Newman, 4 Ves. 129. 
 
 (m) I'enne v. Paicuc/c, Cas.T. Talb. 41. 
 
 (n.) Pybus V. Smith, above. 
 
 (o) Wagstaff V, Smith, 9 Ves. 520; 
 Essex V. Atkins, 14 Ves. 542, 547 ; Agui- 
 lar \. Aguilar, 5 Madd. 414; Glyn v, 
 Baster, 1 Y, & Jerv, 329. 
 
 (p) Norton V. Turvill, 2 P. W. 144; 
 Hulme V. Tenant, 1 Bro. C. C. 16, 2 
 Dick. 560, cited 8 Ves. 175, 9 Ves, 492, 
 493, 497 ; Ileatley v, Thomas, 15 Ves, 
 596. 
 
 {q) Stuart v. Lord Kirkwall, 3 Madd. 
 387. 
 
 (?) Bullpin V. Clarke, 17 Ves, 365, as 
 to the personal estate in this case settled. 
 
 (s) Standford v. Marshall, 2 Atk. 68 ; 
 Bullpin V. Clarke, 17 Ves. 365, as to the 
 real estate in this case settled. See also 
 Alien V. Papworth, 1 Ves. 163, Belt's 
 Supplem. 2nd ed. 91, 96 ; Ellis v. Atkin- 
 son, 3 Bro. C. C. 346, n., 565 ; Clarke 
 V. Pistor, 3 Bro, C. C. 346, n. ; and 
 Chesslyn v. Smith, 8 Ves. 183.
 
 ril.XL.] THE ASSETS OF A MAUIUED WOMAN. 579 
 
 a separate estate, pursue the terms of the power, and will not be 
 valid unless such terms arc complied witli (t). 
 
 It must be stated to be doubtful, whether a separate estate of 
 a married woman is liable to the payment of debts, verbally only, 
 and not in writing, contracted byher(?<). 
 
 When a married woman's separate property consists of either 
 real or personal estate, she may dispose of or affect it by her 
 agreement in writing, such her intention being expressed in the 
 agreement (v). But it has been repeatedly decided, that a moral 
 obligation, in other words, a married woman's general engage- 
 ment, or implied assumpsit, is not sufficient to sustain a claim against 
 her separate estate {lo). To this effect, it has been determined in 
 several cases, that if, when a married woman has a separate 
 estate, she grants an annuity out of it, the consideration money 
 paid for the annuity is not recoverable back out of her separate 
 property, if the grant becomes void through the negligence of 
 the grantee to perfect the grant according to the provisions in 
 the Annuity Act {x). The following observations of Sir John 
 Leach occur in Greatley v. Noble, — " In this view of the case, it 
 is not necessary to determine the general point, as to the liability 
 of a feme covert's separate estate to answer general demands upon 
 
 («) Gold V. Rutland, 1 Eq. Cas. Abr. 
 346, Ca. 18 ; Earl of Dorset v. Powle, 2 
 Ch. Rep. 411 ; Reid v. Shergold, 10 
 Ves. 370.— 1 Ves. jun. 193, 194 ; 9 Ves. 
 497 ; 1 Madd, 261. 
 
 (if) Clerk V. Miller, 2 Atk. 379; Clin- 
 ton V. Willes, Sugd. Pow. 3rd ed. 115, n. 
 See also 1 Bro. C. C. 20, and 3 Madd. 
 88,92. 
 
 (v) Master v. Fuller, 4 Bro. C. C. 19, 
 1 Ves. jun. 513. See also 2 Dick. 562, 
 and 1 Bro. C. C. 20. 
 
 (w) Duke of Bolton v. Williams, 2 Ves. 
 jun. 138, 4 Bro. C. C. 297, cited 9 Ves. 
 498, and 1 Ball & B. 52 ; Jones v. Harris, 
 9 Ves. 486; Angell y. Hadden, 16 Ves. 
 202, 2 IMer. 164, 169 ; Aguilar v. Agai- 
 lar, 5 Madd, 414. See also Francis v. 
 Wigzell, 1 Madd. 258, Great ley v. Noble, 
 
 3 Madd. 79, and Stuart v. Lord Kirkwall, 
 ib, 387. It may be noticed, that in Lord 
 Thurlow's observations in Hulme v. 
 Tenant, 1 Bro. C. C. 16, his Lordship 
 seems to include a bond in the term 
 " general engagement," since that case 
 arose on a bond of the wife. See also 
 observations of counsel, 3 Madd. 92, 93, 
 on this expression of Lord Thurlow. But, 
 that a bond, or piomissory note, or bill of 
 exchange, is not a general engagement in 
 the modern meaning of the phrase general 
 engagement, see Healley v. Thomas, 15 
 Ves. 596, Bullpin v. Clarke, 17 Ves. 
 365, and Stuart v. Lord Kirkivalt, 3 
 Madd. 387. 
 
 (x) Duke of Bolton v. Williams, Jones 
 V. Harris, Angell v. Hadden, and Aguilar 
 V. Aguilar, above. 
 
 r2
 
 580 OF DEBTS PAYABLE OUT OF A SEPARATE ESTATE, [CH. XL. 
 
 lier. At law there can be no sej)aratc enjoyment of property by 
 a feme covert; in equity there may; and, as incident to the power 
 of enjoyment, she has a power of charging her separate property. 
 Wliere a wife, as in Hidme v. Tenant^ and other cases, joins with 
 lier husband in a security, it is implied to be an execution of her 
 power to charge her separate property. If it were necessary now 
 to decide the point, I think it would be difficult to find either 
 principle or authority for reaching the separate estate of a feme 
 covert, as if she were a feme sole, without any charge on her 
 part, either express or to be implied" (?/). And in Stuart v. 
 Lord Kirhcall, the same learned judge repeated, — " I had occa- 
 sion to consider this doctrine fully in the case of Greatley v. Nolle. 
 I then was, and now am of opinion, that a feme covert being 
 incapable of contract, this Court [Chancery] cannot subject her 
 separate property to general demands " {z). And in a later case, 
 Sir John Leach, after observing that the cases had fully established, 
 that there could be no lien on a married woman's separate estate 
 for the consideration of an annuity granted out of it, proceeded, — 
 " And the reason M^as plain ; a feme covert could not, by the 
 equitable possession of separate property, acquire a power of 
 contract ; she had a power of disposition, as incident to property, 
 and her actual disposition or appointment of the property would 
 bind her. This Court [Chancery] would apply her separate pro- 
 perty in payment of an annuity which she had charged upon it, 
 but it could not apply her separate property in repayment of the 
 consideration of that annuity, which she had not charged upon it. 
 Being incapable of contract or general engagement, this Court 
 could not fasten on her separate property those equities, which 
 arise out of contract and general engagement " {a). 
 
 Besides the modes of disposition before mentioned, a married 
 woman may also in the life-time of her husband, and indepen- 
 dently of his consent, dispose of her separate personal estate by 
 her will (h). In a case where a married woman had a power to 
 
 (y) 3 Madfl. 94. 
 (2) 3 Madd. 388, 
 (fl) 5 Mudd. 418 
 
 (ft) Norlon v. Turvill, 2 P. W. 144 ; 
 Anon, cited 2Ves. 192 ; Fettiplace\. Gor- 
 ges, 1 Ves. jun. 46, 3 Bro. C. C. 8 ; Hales
 
 CH. XI..] THE ASSETS OF A .MAUUIEI) WOMAN. 581 
 
 dispose by will of a sum of money, which, for want of appoint- 
 ment, was limited to her executors or administrators ; and she 
 made a will, and named an executor, but made no particular 
 appointment of the money ; such money was held not to devolve 
 to her husband, who survived her, but to belong to her executor, 
 and to be part of her assets (c). 
 
 Out of a separate estate, which are the assets of a married 
 woman deceased, a Court of Equity pays her debts by bond and 
 by simple contract pari jjussn, or equally ; " the bond, considered 
 merely as a bond, being void " [d). But out of the same estate, 
 a Court of Equity has, it seems, given her executor a preference 
 before her other creditors, by permitting him to retain his own 
 debt {e). 
 
 Generally speaking, a husband is under a " strict legal necessity " 
 of burying his wife (/"). And probably, in general cases, this 
 duty falls on him, notwithstanding the wife is possessed of an 
 estate to her separate use (^7) ; although, in particular instances, 
 he may have the right to throw her funeral expenses on that 
 estate (It). In Gregory v. Lockyer, the separate estate of a feme 
 covert was by the decree directed to be applied in payment of 
 her debts and funeral expenses. The husband, having actually 
 paid them, claimed before the Master to have the money repaid 
 by her executor. And Sir John Leach made the order, con- 
 sidering himself as bound by the decree ; but expressed a doubt 
 whether, generally, the husband has a right to throw the wife's 
 funeral expenses upon her separate estate (z). 
 
 V. Margerum, 3 Ves. 299 ; Rich v. 
 Cockell, 9 Ves, 369, 375, 379. See also 
 3 Atk. 160, 2 Ves. 191, and 4 Taunt. 
 297 ; and Rex v. Beltesworth, 2 Stra. 
 1118. 
 
 (c) Churchill v. Dibben, 2 Kenyon, 
 part 2, p. 68, 86, Sugd. Pow. 3rd ed. 
 284, n. 
 
 (d) Anon., Mos. 328 ; Anon., 18 Ves. 
 258. 
 
 (e) Anon., Mos. 328. Tliat generally 
 speaking, however, an executor is not 
 
 allowed to retain, out of equitable assets, 
 his own debt, see the authorities referred 
 to at p. 271 of the present Treatise. 
 
 (/) Jenkins v. Tucker, 1 H. Bl. 90.— 
 9 Mod. 32. 
 
 (g) Bertie v. Lord CheUerJield, 9 Mod. 
 31. 
 
 {h) Anon., Mos. 328 ; Poole v. Har- 
 rington, Toth. tit. Feme Covert, ed. 1820, 
 p. 97. 
 
 (i) 6 Madd. 90.
 
 582 OF DEBTS PAYABLE OUT OF A SEPARATE ESTATE. [CIl. XL, 
 
 111 Norton V. Turiy'iU., vvliore the bond and otlier creditors of a 
 married woman were decreed to be paid out of her separate 
 estate, the Court, with reference to the order, in wliich her assets 
 should be taken, held, that to the purpose of paying the debts, 
 " such part of the separate estate, as is undisposed of by the will, 
 ought to be first applied ; in the next place, if that be not 
 sufficient, the creditors are to be paid out of any money legacies 
 given by the feme covert; and lastly, supposing there is still 
 a deficiency, all the specific legatees ought to contribute in pro- 
 portion " (;'). 
 
 O) 2 P. W. 144.
 
 NAMES OF CASES. 
 
 PAOB 
 
 
 
 14, 
 
 15 
 
 
 15 
 
 11. 
 
 (,•) 
 
 17 
 
 11. 
 
 (") 
 
 43 
 
 11. 
 
 (a). 
 
 48 
 
 11. 
 
 i'jy 
 
 (a) Collected Cases on Crown Debts 
 
 Tlie Statute 33 Henry VIII., c. 39 . 
 
 The Statute 13 Elizabeth, c. 4 
 
 Property by or in a Court of Law 
 held to be Assets 
 
 Property by or in a Court of Equity 
 held to be Assets 
 
 Property by or in a Court of Law 
 held to be personal estate of a 
 person deceased . . 182 n. (J). 
 
 Property by or in a Court of Equity 
 held to be personal estate of a 
 person deceased 
 
 Property by or in a Court of Law held 
 not to be Assets 
 
 Property by or in a Court of Equity 
 held not to be Assets 
 
 An Inventory 
 
 Pleadings in Retainer . 
 
 Acts, which may malce a person exe- 
 cutor cle son tort 
 
 Trustees' pei-sonal responsibility for a 
 breach of Trust 
 
 Payment of debts before legacies, 
 when by will real estate is devised 
 for, or charged with, the payment 
 of debts and legacies 
 
 Allowing, in a Court of Law, interest 
 on debts 
 
 (h) Several Cases, whicii have been referred to in the preceding Treatise, it seems to be 
 sufficient here to mention in this manner only. 
 
 183 
 
 n. 
 
 (c). 
 
 239 
 
 n. 
 
 («). 
 
 240 
 
 n. 
 
 (r). 
 
 256 
 
 
 
 263 
 
 n. 
 
 (d). 
 
 270 
 
 n. 
 
 ('■). 
 
 538 
 
 n. 
 
 (/). 
 
 550 
 
 n. 
 
 (0. 
 
 560 
 
 n. 
 
 {")■
 
 584 
 
 NAMES OF CASES. 
 
 Abbis V. Winter 
 Abbot V. Gibbs 
 
 of Ramsay's Case 
 
 V. Lee 
 
 Abdy, Ex parte 
 Abrams v. Winshup 
 Arkroyd v.Smithson 
 A'Court V. Cross 
 Acton V, Acton 
 
 V. Peirce 
 
 V. White 
 
 Adair v. The New River 
 
 • V, Shaw 
 
 Adams v. Claxton . 
 
 V. Cole 
 
 V. Gale 
 
 • V. Lavender 
 
 V. Meyrick . 
 
 V. Cheverel 
 
 V. Taunton. 
 
 Adie V. Fennilitteau 
 Adye v. Feuilleteau 
 Aguilar v. Aguilar 
 AiscougVi's, Lady, Case 
 Akeroid v. Smithson 
 
 291 
 48 
 25 
 
 212 
 
 . 89 
 
 40, 204 
 
 . 439 
 
 . 268 
 
 . 268 
 
 . 577 
 
 Company . 184 
 
 . 12 
 
 390, 393, 525 
 
 180, 181 
 
 . 516, 571 
 
 179, 468 
 
 41, 43, 44 
 
 . 473 
 
 . 78 
 
 . 520 
 
 495, 516, 517,518 
 
 578, 579 
 
 . 180 
 
 40, 204 
 
 Albemarle, Duke of, v. Viscountess 
 Purbeck . . .401 
 
 Alcock V. Spaihawk . 62, 86 
 
 Aldrich j;. Cooper, 6, 242, 329, 331, 336, 
 341. 342, 343, 344, 354, 355, 357, 
 359 
 
 Aldridge v. Lord Wallscourt 42, 44, 67 
 
 Alexander, Ex parte 
 
 • V. Holland 
 
 •» V. Lamb 
 
 89, 91 
 
 Allan V. Heber 
 Allen's Case, 
 Allen V. Dundas 
 
 V. Hancorn 
 
 ' V. Heber 
 
 V. Papworth 
 
 Allexander v. Lady Gresham 
 
 Alston V. Walker 
 
 Alton V. Medlicot 
 
 Amby v, Gower 
 
 Amesbury v. Brown 
 
 Amhurst v. Selby 
 
 Amphlett v. Parke 
 
 Amy's Case 
 
 Amyas', Ur., Case . 
 
 Ancaster, Duke of, ?;. Mayer 6,41, 42, 
 
 44, 360,361, 362 
 Anderson v. Dwyer . 138, 140 
 
 Anderton v. Cook . . . 43 
 
 Andrew D. Wrigley . 475,488 
 
 Andrews v. Brown . 51, 448, 449 
 
 Angell V. Hadden . . 579 
 
 Annandale, Marchioness of, v, Harris 
 
 278, 280 
 Anonymous, (I Anders. 27) . 76 
 
 6 
 
 . 4 
 . 270 
 . 69 
 . 191 
 . 474 
 
 520, 558 
 . 69 
 . 578 
 . 320 
 . 192 
 . 386 
 75, 83 
 
 117, 124 
 . 180 
 . 205 
 . 421 
 
 PARE. 
 
 Anonymous, (2 Anders. 157) . 556 
 
 — (2 Atk. I) . . 456 
 
 — (3 Atk. 572) 293, 294 
 
 — (3 Atk. 602) . . 291 
 
 — (3 Atk. 726) . . 179 
 
 — (Cited Barn. Cli. Rep. 
 
 102) . . 421 
 
 _ (Benl. 15) . • . 76 
 
 — (Cited 2 Bos. and P.N, 
 
 R,70) . . 145 
 
 _ (Cited 4 Bro. C. C. 
 
 137) . . 487 
 
 _ (2 Ch. Cas. 4,) 342, 357, 
 
 358, 359, 373, 401 
 
 — (2Ch. Cas. 54.) 271, 321, 
 
 325 
 
 — (2 Ch. Cas. 164) . 391 
 _ (2 Ch. Cas. 207) . 183 
 
 — (2 Ch. Cas, 208) 402, 408, 
 
 414, 415 
 
 — (2 Ch. Cas. 217) 455, 456 
 
 — (Cited 10 Co. 128, b.) 185 
 
 — (Comberb, 342) 146, 258 
 
 — (Com. 150) . . 474 
 
 — (Com. 151) . 539 
 
 — (Cro. Eliz.23) . . 240 
 
 — (Cro. Eliz. 61) 190,191 
 
 — (Cro. Eliz. 431) .105 
 
 — (Dalis. 26) . . 70 
 
 — (Dalis, 30) . 187 
 
 — (Dalis. 45) . . 70 
 
 — (Dalis. 89) 145, 495 
 _ (Dalis. 106) , . 78 
 
 — (1 Dyer, 2, a.) 240, 265 
 
 — (1 Dyer, 13, b.) . 98 
 
 — (1 Dyer, 23, b.) 475, 500 
 
 — (1 Dyer, 31, b.) . 187 
 
 — (1 Dyer,32, a. n.) 287,502 
 
 — (1 Dyer, 65, b.) . 478 
 
 — (2 Dyer, 124, a.) 104, 152 
 _ (2 Dyer, 177, a.) 71, 74 
 
 — (2 Dyer, 183, a.) . 171 
 
 — (3 Dyer, 316, a.) 187,191 
 _ (3 Dyer, 324, a.) . 312 
 
 — (3 Dyer, 348, a.) . 108 
 
 — (3 Dyer, 361, b.) . 240 
 
 — (3 Dyer, 367, a.) . 474 
 
 — (3 Dyer, 368, a.) . 152 
 
 — (3Dyer, 37],b.) 78,79 
 
 — (2 Eq. Cas. Abr. 455) 495, 
 
 496 
 
 — (2 Eq. Cas. Abr. 456) 495, 
 
 496 
 
 — (1 Freem. 301) . . 373 
 
 — (1 Freem. 310) . . 421 
 
 — (1 Freem. 420) 125, 126 
 
 — (2 Freem. 6) . , 407 
 _ (2 Freem. 12) , .193 
 
 — (2 Freem, 16) 293,299 
 
 — (2 Freem. 22) . .140
 
 NAMES OF CASKS. 
 
 585 
 
 I'AC.l',. 1 
 
 Anonymous (2 Freem. 23) . 474 
 
 — (2 l''reem. f/i) 150, 184 
 
 — (2 Freem. 04) . 126 
 
 — (2 Freem. 89) . 12(i 
 
 — (2 Freem. 100) . 503 
 
 — (2 Freem. 115) .149 
 _ (Cited 2 Freem. 123) . 402, 
 
 404 
 
 — (2 Freem. 134) . 550 
 
 — (2 Freem. 137) . 550 
 
 — (2 Freem. 192) 58, 64 
 
 — (2 Freem. 204) 357, 359 
 
 — (2 Fieem. 205) . 373 
 
 — (2 Freem. 210) 186, 189 
 
 — (2 Freem. 275) . 401 
 _ (Godb. 149) . . 263 
 
 — (Godb. 159) . . 191 
 
 — (Gouldsb. 2) . . 72 
 _ (Gouldsb. 79) . . 266 
 
 - (Gouldsb. 98) . 185 
 
 — (23 Hen. VII., cited 
 
 Keilw. 59, b.) 240, 265 
 
 — (Cas. T, Holt, 254) . 105 
 
 — (Cas. T. Holt, 297) , 503 
 _ (Cas. T. Holt, 309) . 261 
 
 — (Jenk. Cent. c. 4, ca. 
 
 88) . . 264 
 
 — (Jenk. Cent. c. 6. ca. 
 
 94) . . . 557 
 
 — (Keilw. 51, a.) . 556 
 
 — (Keilw. 58, a.) 240, 264, 
 
 265 
 
 _ (Cited Keilw. 59, b.) 240, 
 
 265 
 
 — (Keilw. 61, b.) 264,265 
 _ (Keilw. 74, a.) . 501 
 
 — (Keilw. 118, a.) . 199 
 
 — (Keilw. 124, b.) . 241 
 — ' (Keilw. 202, b.) . 199 
 
 — (2 Kenyon, part 1. p. 
 
 294) . 501, 502 
 
 — (2 Leon. 154) . .101 
 
 — (2 Leon, 220) 74, 78, 79, 80 
 
 — (3 Leon. 32) . . 193 
 
 — (3 Leon. 67) . . 480 
 _ (3 Leon. 53) . . 535 
 
 — (3 Leon. 65) . .101 
 _ (4 Leon. 2) . . 98 
 
 — (Cited 4. Madd. 135) 422 
 
 — (March, 88) . . 172 
 _ (Mo. 24) . . 187 
 
 — (Mo. 54) . . . 144 
 
 — (Mo. 57) . . 98 
 
 — (Mo. 61) . . 72, 73 
 
 — (Mo. 752) . . 557 
 _ (1 Mod. 185) . . 309 
 
 — (2 Mod. 7) . 99,101 
 
 — (6 Mod. 241) . . 105 
 _ (9 Mod. 43) . . 170 
 
 — (12 Mod. 256) . 261 
 
 262, 
 
 PAOE, 
 
 89, 90, 91 
 
 503 
 
 . 558 
 
 48 
 
 581 
 
 193 
 
 . 303 
 
 145,239,495 
 
 . 144 
 
 487 
 
 57 
 
 104 
 
 240 
 
 144 
 
 179 
 
 422 
 
 Anonymous (12 Mod. 342) 
 
 — (12 Mod. 346) 
 
 — (12 Mod. .560) 
 
 — (Mos. 96) 
 
 — (Mos. 328) 
 _ (Nels. 162) . 
 _ (Noy, 69) 
 _ (Owen, 36) 
 _ (Poph. 188) 
 _ (Prec. Ch. 434) 
 _ (3 P. W.389, n.) 
 _ (1 llol. Abr. 626) 
 
 — (1 Rol.Abr. 923) 
 
 — (1 llol. Rep. 56) 
 _ (2Rol. Rep. 134) 
 
 — (Cited 3 Russ. 39) _ _ 
 
 — (1 Salk. 1.53) 38, 130, 538 
 
 — (1 Salk. 154) 51,4.53, 572 
 
 — (1 Salk. 1,55) . . 407 
 
 — (3 Salk. 83)' . 317, 327 
 
 — (3 Salk. 84) . . 390 
 
 — (Savile, 118) . . 144 
 _ (Savile, 119) . . 153 
 
 — (Sel. Ca. Ch.57) . 493 
 (Sugd. Pow. 273) . 81 
 
 — (Cited 3 Swanst. 634) 192 
 
 — (Cited 3 Taunt. 159 & 
 
 6 Taunt. 117) 562, 567 
 
 — (1 Ventr. 268) . 505, 507 
 
 — (1 Ventr. 292) . 500 
 
 — (2 Ventr. 349) . 42 
 
 — (1 Ventr. 73) . 455 
 _ (1 Vern. 104) . 39 
 _ (1 Vern. 119.) . . 301 
 
 — (cited 1 Vern. 474) . 503 
 _ (2 Vern. 133) . . 321 
 _ (2 Vein. 177) . 392 
 _ (2 Vern. 405) . . 321 
 
 — (2 Vern. 707) . 178 
 
 — (cited 1 Ves. 96) . 421 
 
 — (cited 1 Ves. 213) . 293 
 
 — (cited 2 V^es. 192) . 580 
 
 — (2 Ves. 661) 138, 406 
 _ (2 Ves. 662) 
 
 — (cited 17 Ves. 162) 
 
 — (18 Ves. 2.58) . 
 
 — (11 Vin. Abr. 265) 
 (11 Vin. Abr, 271) 
 
 Anon. V. Powell 
 
 V. Wilkinson 
 
 Aplyn V. Brewer 
 Apreece v. Apreece 
 Archdeacon «. Bowes 
 Archer i'. Snatt 
 Ardes v. Watkins . 
 Arge V. Watkins 
 Arlot I'. (Jhurchland 
 Armitage v. Metcalf 
 Arnald v. Arnald . 
 Arnold v. Chapman 
 
 391 
 
 487 
 
 581 
 
 263 
 
 4 
 
 462, 464 
 
 . 386 
 
 . 541, 543 
 
 . 387 
 
 . 389 
 
 . 390 
 
 . 185 
 
 . ih. 
 
 . 261 
 
 . 373, 503 
 
 . 92, 124 
 
 344, .347, .348
 
 58G 
 
 NAMES OF CASES. 
 
 Arnold u. Skeale 
 A mot L>. Biscoe 
 Arnott V. Redfern . 
 Asby V. Doyl 
 Ascough V. Johnson 
 Ashburner v. Macguire 
 Ashburnliam v. Thompson 
 Ashby V. Palmer 
 Ashfield V. Ashfield 
 Ashley v. Pocock 
 Ashton V. Ashton 
 
 ii. Smith 
 
 Askwitli V. Chamberlain 
 Astley V. Powis 
 
 Earl of Tankerville 
 
 l'.^^.l■■.. I 
 . I<)1 
 . 421 
 560, 564 
 . 75, 83 
 . 407 
 122, 123 
 512, 515 
 203, 209 
 . 149 
 . 291 
 122, 384 
 . 571 
 149, 150 
 58, 292, 293 
 
 Aston V. Aston 
 
 V. Pye . 
 
 Astry V. Nevit 
 Atcherley v. Vernon 
 Atkins V. liiccocks . 
 
 V. Hill 
 
 V. Tredgold 
 
 Atkinson v. Atkinson 
 
 . 357 
 360, 364 
 . 401 
 . 469 
 . 500 
 . 241 
 . 125 
 509, 510, 511 
 447, 450 
 572, 574 
 
 ■V. Lord Braybrooke 4, 282, 
 567 
 V. llawson 
 ■V, Webb . 
 
 Attorney General v. Andrew 
 • V. Barkham 
 
 V. Bowyer 
 
 V. Caldwell 
 
 V. Day 
 
 V. Diamond 
 
 V. Downing 
 
 V. Gower 
 
 V. Graves 
 
 V, Holbrook 
 
 V. Hurst 
 
 v.Marlin 350,351,352 
 
 V. Meyrick 350, 430 
 
 V. Milner 127, 212 
 
 V. Moor . . 62 
 
 266, 270 
 461, 464 
 
 . 32 
 43, 67 
 
 . 432 
 350, 351 
 
 . 183 
 235, 255 
 132, 141 
 
 . 404 
 350, 352 
 
 . 472 
 
 . 352 
 
 — V. Lord Mountnaor- 
 
 iis . 
 V. Parkin 
 V. Randal 
 V, Robins 
 ^K Sands 
 
 . 349 
 . 123 
 
 525, 540 
 . 264 
 . 149 
 
 Atwood V. Lamprey 
 
 V. Solly 514, 515, 529 
 V. Tomkins 350, 383 
 V. Tyndall 349, 351 
 lu Ward 112,113, 114 
 V. Lord Weymouth 347, 
 348, 349 
 V. White . . 35 
 V. Earlof Winchel- 
 
 sea . . 352 
 
 V. Vigor 427,428,432 
 
 134 
 
 AfJt. 
 
 454 
 315 
 184, 
 193 
 343 
 105, 
 384 
 
 Awbrey v. Middleton 59, 62, 86, 105, 
 
 132 
 Ayer, v. Orme . . .98 
 
 Aylmeru. Hide . . 308 
 
 Ayton V. Bolt . . . 439 
 
 Aiilt w. Goodrich . . 447, 
 
 Auriol V. Mills . 307, 
 
 Austen v. Executors of Dodwell 
 
 V. Ilalsey . 93, 94, 
 
 Avelynr. Ward ICO, 101, 102, 
 
 Bachelor v. Gage 
 Back V. Kett 
 Bacon v. Bacon 
 
 i;.Bell 
 
 V. Bryant 
 
 I'. Clerk 
 
 105, 117, 
 
 Baden v. Earl of Pembroke 
 
 Badrick v. Stevens 
 
 Baglehole, Ex parte 
 
 Bagot V. Oughton 
 
 Bailey v. Ekiiis . 12, 56, 
 
 Bailiffs of Ipswich v. Martin 
 
 Baillle v. Sibbald 
 
 Baily v. Ploughman . 271, 
 
 Baines v. Dixon 
 
 V. Paine 
 
 Bainham v. Manning 
 
 Bains v. Ballat 
 
 Bainton v. W^ard 149, 374, 
 
 Baker v, Berisford, or Beresford 
 
 V.Hall 
 
 V. Harris 
 
 V. Hellett 
 
 V. Kellet 
 
 Balchen v. Scott . 
 
 Balgney v. Hamilton 
 Ball V. Ball 
 Bally V. Wells 
 Balsh V Hyham 
 Bamfield v. Wyndham 
 Banes' Case 
 Bank of England v. Lunn 
 
 — V. Morice 
 
 11. Morrice . 
 
 Banks' Case 
 Barber v. Fox 
 Bard v. Bard 
 Barden v. Withington 
 Barker v. Boucher 
 
 V. Duke of Devonshire 
 
 V. May 
 
 V. Parker . . 
 
 V. Rayner 
 
 V. Talcot . 
 
 Barnard v. Godschall 
 Barnardiston v. Fane 
 
 . 316 
 
 . 432 
 
 498, 522 
 
 . 475 
 
 o 180 
 
 120, 129 
 . 149 
 . 122 
 . 8 
 . 363 
 
 220, 322 
 
 . 308 
 
 . 440 
 
 317,324. 
 
 338, 340 
 . 39 
 . 506 
 . 279 
 . 164 
 
 379, 381 
 
 265, 271 
 . 178 
 . 397 
 . 407 
 . ib. 
 . 522 
 . 493 
 . 358 
 . 137 
 . 358 
 . 41 
 . 506 
 . 175 
 
 . . 276 
 . 145 
 . 187 
 . 373 
 
 506, 509 
 . 187 
 . 325 
 53 
 . 323 
 . 527 
 . 122 
 . 503 
 . 316 
 102, 108
 
 NAMES OF CASKS. 
 
 587 
 
 I'AfJF.. 
 
 Barne's Case . . 72, 80 
 
 Uarnes r. Crowe . . • 432 
 
 Hainct V. Weston :397, 406, 422, 423 
 Bamewellt. Lord Cawdor . 360,366 
 Barnwell v. Kussell . . 172 
 
 Barret v. Beckford . 462, 466 
 
 V. Wells . . . 421 
 
 Barrington v. Attorney General . 70 
 
 I'. Harris 
 
 V. Potter 
 
 < V. Tristram 
 
 Barry v. Rush 
 
 V. Stanton 
 
 II. Wrey 
 
 Bartholomew v. INIay 
 Barthrop v. West 
 Bartlett v. Hodgson 
 Barton v. Briscoe 
 
 V. Cooke 
 
 V. Wilcocks . 
 
 Barwell v. Parker 
 Bash ?'. Dalway 
 Bashpool's Case 
 Basset v. Basset 
 
 V. Percival 
 
 Basse tt v. Nosworthy 
 Bate V. Scales 
 Bateman v. Bateman 
 
 V. Davis 
 
 Bates V. Dandy 
 Bath, Earl of. 
 
 Bathurst's Case 
 Bathurst v. De la Zouch 
 Batsford v. Kebbell 
 Batson v. Lindegreen 
 Batt V. Deschamp 
 Batten v. Earnley . 
 
 V. Whorewood . 
 
 Battley v. Faulkner 
 Baxter v. Manning 
 Bayley v. Bishop 
 Bayly v. Ekins 
 
 V. Robinson 
 
 V, Robson 
 
 Beachcroft v. Beachcroft 
 Beal V. Shepherd 
 Bearblock v. Read 
 Beard v. Nutthall 
 Beare's Case 
 
 Bearpark v. Hutchinson . 
 Beauclerk, Lord S., v. Mead 
 Becket v. Becket 
 Beckett v. Cordley 
 
 V, Harden . 
 
 204 
 
 . 309 
 
 . 3Sf4 
 
 . 535, 548 
 
 . 480 
 
 . 389 
 
 357, 3r)8, 366 
 
 . 149,327 
 
 . 12 
 
 . 577 
 
 . 385 
 
 . 64 
 
 571, 575 
 
 . 176, 177 
 
 . 104 
 
 . 129 
 
 . 372 
 
 . 401 
 
 . 514, 517 
 
 84, 224, 367 
 
 538 
 
 172, 177, 178 
 
 Earl of Bradford, 3, 
 
 219, 369, 673, 575 
 
 5, 264, 500 
 
 . 263 
 
 . 126 
 . 325 
 . 301 
 . 138 
 493, 496 
 . 434 
 . 390 
 . 128 
 . 3 
 . 391 
 . 391 
 . 59 
 . 84 
 . 501 
 . 277 
 . 105 
 . 152 
 . 211 
 175, 178 
 . 398 
 112, 133 
 Bedford v, Bacchus, or Backhouse 406 
 
 V. Coke . 138, 571, 575 
 
 V. Gibson . . 277 
 
 Beecher v. Mountjoy . . 505 
 
 Belchier, Ex parte . 525, 540 
 
 Bclchior v. Butler 
 
 V. Renforth 
 
 Bellew V. Juckleden 
 Belvedere, Earl of, v, Rochforl 
 Bench v. Jiiles 
 Bennet v. Davis 
 Bennifold v. Waring 
 Benson v, Benson 
 V. Hodson 
 
 Bentham v. Wiltshire 
 Benyon v, ftladdison 
 Ltereblock v. Read 
 Berrington v. Evans 
 Berry v. Askham 
 
 V. Taunton 
 
 V. Usher 
 
 Berrysford v. Milward 
 
 Bertie v. Lord Chesterfield 257,260,581 
 
 PAGF. 
 
 400, 407 
 400, 407 
 . 549 
 362 
 . 88 
 . 166 
 . 138 
 . 3 
 . 101 
 79, 80, 81 
 . 126 
 275, 556 
 . 573 
 39, 57 
 . 480 
 150, 202 
 . 421 
 
 V. Lord Falkland 
 Best V. Stamford 
 Bethel v. Stanhope 
 Beverley v. Beverley 
 Beynon v. GoUins 
 Bickham v. Cross 
 
 V. Freeman 
 
 Bicknel v. Page 
 Bicknell v. Brereton 
 V. Keppell 
 
 108 
 . 172 
 . 239 
 . 421 
 . 48 
 . 575 
 . 321 
 . 41 
 . 138 
 439, 440 
 Bidlake v. Lord Arundel . 674 
 
 Bigg V. Malin . . .505 
 
 Signal V. Brereton . . 138 
 
 Billinghurst v. Speerman . . 309 
 
 W.Walker 361,362,372 
 
 Bindon's, Viscountess, Case 159, 161, 
 162,354 
 Bingham v. Erneley 
 Binnington v. Wallis 
 Birch V, Baker 
 
 V. Ellames 
 
 Bird V. Lockey 
 
 Birls V. Betty 
 
 Bishop V. Godfrey, 283, 293, 502, 503 
 
 • V. Sharp . . .358 
 
 Bixby, or Bixly, v. Eley . 38, 377 
 Black V. Cock . . 404 
 
 Blackborn v. Edgley . . 277 
 
 Blackmor v. Mercer . . 305 
 
 Blackshaw v. Roberts . . 386 
 
 Blackston v. Moreland . . 406 
 
 Blackway w. Earl of Strafford . 51 
 
 Blackwell v. Symes . . 392 
 
 Bladen v. Earl of Pembroke . 149 
 
 Blake v. Lawrence . . 567 
 
 Blakeway v. Earl of Strafford . 51 
 
 Bland V. Bland . . 197 
 
 BlandfordjMarchionessof.v, Duchess 
 
 of Marlborough . . 134 
 
 Blandy v. Widmore . . 466 
 
 Blaney t\ Hendricks . . 567 
 
 Blatch V. Wilder, 70, 78, 82, 320, 321 
 
 354, 376, 382 
 . 280 
 . 122 
 . 8 
 . 514 
 . 558
 
 588 
 
 NAMES OF CASES. 
 
 Bletsow )). Sawyer . . IGfJ 
 
 Bligh «, l^arl ol Darnlev, 152,292,293, 
 
 344 
 Blois V. Viscountess Hereford 
 Blount V. Bestland 
 V. Doughty 
 
 Blue V. Marshall 
 Boddam v. Hi ley 
 Bodly V. Anonymous 
 Bodmin v. Vandebendy . 
 Body V. Ilargrave 
 Bolger V. Mackeli 
 Bolton V. Canliam . 
 
 V. Cannon 
 
 Duke of, V, Williams 
 
 180, 181 
 . 179 
 277, 278 
 557, 558 
 . 571 
 . 280 
 . 405 
 240, 309 
 . rib- 
 SOS, 309 
 . 309 
 . 579 
 . 127 
 264, 270 
 . 506 
 . 179 
 
 Bond V. Brown 
 
 V. Green 
 
 V. Payne 
 
 V. Simmons 
 
 Bone V. Cook, 512, 538, 544, 558, 559 
 Bonefant v. Greinfield . . 78 
 
 Bonifautt). Greenfield . 72,77 
 
 Bonithon v. Hockmore . . 390 
 
 Bonner u^ Bonner . 111,344 
 
 Bonney v. Ridgard . 475, 486 
 
 Booths. Booth . . .125 
 
 Bootlet). Blundell, 39, 41, 42, 43, 45, 222 
 Boraston's Case • . 37 
 
 Borret v. Boyes . . . 304 
 
 V. Goodere . 4, 571 
 
 Boskellet v. Godolphin • . 268 
 
 Bostock ?>. Blakeney . .517 
 
 Bothe V. Crampton . 509, 510, 548 
 Bothomly v. Lord Fairfax, 2, 283, 326, 575 
 
 . 313 
 
 Boulton V. Camam 
 
 V. Cannam 
 
 V. Canon 
 
 . 309 
 310, 313, 314,315 
 
 . 407 
 
 Bovey v. Skipwith 
 
 Bovy V. Smith 
 
 Bowaman v. Reeve 
 
 Bowdier v. Smith . 
 
 Bowerbank v. Monteiro 
 
 Bowersby v. Bowyer 
 
 Bowes, Ex ]>arie 
 
 Bowman v, Mathews 
 
 Bowyer v. Rivitt 
 
 Boyce v. Warburton 
 
 Boycot V. Cotton 
 
 Boynlon v. Parkhurst 
 
 Boyntun v. Boyntun 
 
 Bozon V. Williams 
 
 Brace v. Duchess of Marlborough 397, 
 
 399, 400, 406, 407, 409, 410, 413, 
 
 414, 415. 417, 419 
 Bradbury v. Wright 
 Bradford v. Foley 
 Bradish v. Gee 
 Bradnox v. Gratwick 
 Bradwell v. Catchpole 
 Brady v. Sheil 
 
 . 403 
 
 . 341 
 
 . 59 
 
 . 268 
 
 . 43 
 
 427, 429 
 
 . 49 
 
 . 152 
 
 . 568 
 
 . 127 
 
 354, 376 
 
 354, 376 
 
 . 10 
 
 . 134 
 58, 339, 344 
 . 212 
 . 67 
 . 544 
 . 145 
 
 PAGE. 
 
 Brander v. Boles . . 6, 1 1 
 
 15randlyn v. Ord . . 403 
 
 Brangwin «. Perrot . . 570 
 
 Bransby v. Grantham . . 477 
 
 Brathwaite v. Bratliwaite . . 407 
 
 Braybroke, Lord, v, Inskip, 69, 118, 428, 
 
 429 
 Brediman's Case, or Brediman v. 
 
 Bromley . . 135, 136 
 
 Breerton v. Jones . . 406 
 
 Brent w. Tyndall . 211,212 
 
 Brett V, Cumberland . 3,316 
 
 Brewster's Case . . 191 
 
 Brewster v. Kidgell, or Kitchell, or 
 
 Kitchin . . .134 
 
 Brian v, Salter . . 507 
 
 Brice V. Stokes, 540, 541, 544, 547. 559 
 Bridgen v. Landen, or Lander, 64, 65, 
 
 324 
 
 Bridgman v. Dove, 44, 58, 67, 68, 86. 
 
 116, 117 
 
 V. Lightfoot . 303, 312 
 
 V. Tyrer . 148, 184 
 
 Bridgwater, Duke of, v. Littleton, 197, 
 
 193 
 Briers v. Goddard . 263, 266 
 
 Bright V. Woodward . 263, 285, 287 
 Brightens, Ex parte . 389 
 
 Brightman v. Keighley . 145, 495 
 Brinkman V. Brinkman . .165 
 
 Bristol, Countess of, or Lord, v. 
 
 Hungerford . 204, 206 
 
 Dean and Chapter of, v. 
 
 Guyse . 311,312,313 
 
 Earl of, V. Hungerford 326, 397. 
 
 400, 416 
 Brittain v. Charnock . 69, 105 
 
 Brittane v. Charnock . . 69 
 
 Britton v. Ratthurst, 268, 287 
 
 Brizick v. Manners 
 Bromfield, Ex parte 
 
 V. Chichester 
 
 Bromfielf «. Wytlierley 
 Bromhall v. Wilbraham 
 Bromley v. Goodere 
 
 V. Hamond 
 
 Bronsdon v. Winter 
 Brook V. King 
 
 V. Skinner 
 
 Brooke, Ex parte 
 Ikookfield v. Bradley 
 Brooking v. Jennings 
 Brooks V. Reynolds 
 Broome f. Monck . 
 Brotherow v. Hood 
 Brothers v. Bence . 
 Broughton v. Davis 
 Brown v. Bigg 
 
 V. Claxton 
 
 295 
 
 290, 305, 
 556 
 . 6 
 . 152 
 . 323 
 . 516 
 . 67 
 . 572 
 . 389 
 . 386 
 . 278 
 , 296, 300 
 . 515 
 . 374 
 . 556 
 294, 295 
 . 183 
 176, 180 
 . 420 
 . 25 
 , 204 
 132, 133, 142
 
 NAMES OF CASES. 
 
 589 
 
 I$roun V. Collins 
 ' V. Dawson . 
 
 V. Jlolyoak 
 
 V. Howard . 
 
 ^\ Lilton 
 
 V. Sansonie . 
 
 V. ISelwin 
 
 V. Vawsur 
 
 JJrowne's Case 
 lirowne c. Dunnery 
 
 (I. Croombridge, 
 
 ('. Like 
 
 • • V. Southouse 
 
 I 
 
 AGI-. 
 
 
 500 
 
 
 4()0 
 
 , 
 
 283 
 
 , 
 
 434 
 
 516 
 
 529 
 
 514 
 
 539 
 
 149 
 
 150 
 
 . 
 
 2 
 
 . 505 
 . 169 
 262, 382, 383 
 . 578 
 . 512 
 . 9, 11 
 . 568 
 
 Bruce, Ex parte 
 
 V. Hunter 
 
 Brudenell v. Bougliton, 68, 87. 109, 110, 
 112, 113, 114, 115 
 
 Brudnel's Case . . . 98 
 
 Biuere v. Peniberlon . 512, 516, 558 
 Brummel v. Protliero . 42, 44 
 
 Bryan v. Horseman . . 438 
 
 Brydges v. Landen, or Lander . 64 
 
 V. Phillips, 42, 45, 91, 92, 124 
 
 V, Pluinptre . . 439 
 
 Bryson v. Whitehead . 145, 183 
 
 Buckeridge v. Ingrain, 110, 112, IL'i, 
 
 132, 133, 184 
 
 Buckland v. Barton 
 
 V. Brook 
 
 Buckley v. Nightingale 
 
 V. Pirk 
 
 Buckmaster ?>. Harrop 
 Buggins V. Yates 
 Bull i). Fankester . 
 
 V. Wheeler 
 
 Bullock V. Knight . 
 
 V. Sadlier . 
 
 V. Stones 
 
 Bullpin V. Clarke 
 Bultee], Ed'parle, . 
 Buhver v. Bulwer 
 Bumsted v. Stiles 
 Burden v. Burden 
 Burden i\ Dean 
 Burdet v. Pix 
 Burdelt v. Willett . 
 Burgh V. Francis 
 Buigess's Case 
 Burgoine v. Fox 
 Burgoyne v. Benson 
 Burke i>. Jones 
 Burlace v. Cook 
 Burnahy v. Griffin 
 Burnel v. Ellis 
 Burnet u. liolden . 
 
 V. Dixe 
 
 Burnett v. Kinnaston 
 
 V, Lynch 
 
 Burroughs v. Stephens, or Slevens . 301 
 
 302, 303, 304 
 
 Burt j;. Thomas . . . 322 
 
 
 . 149 
 
 .' 276 
 
 290 
 
 
 225 
 
 240, 310 
 
 312 
 
 
 183 
 
 . 39 
 
 203 
 
 
 264 
 
 . 303 
 
 312 
 
 
 172 
 
 
 402 
 
 
 104 
 
 * 578 
 
 579 
 
 
 11 
 
 .' 187,' 
 
 192 
 
 . 572, 
 
 573 
 
 . 
 
 529 
 
 
 181 
 
 , 
 
 267 
 
 
 241 
 
 
 419 
 
 
 56] 
 
 .' 37o! 
 
 371 
 
 . 370, 
 
 371 
 
 . 51, 52. 
 
 454 
 
 
 403 
 
 
 577 
 
 . 402J 
 
 404 
 
 
 2()5 
 
 
 267 
 
 . 175, 
 
 178 
 
 
 2 
 
 Burting v. Stonard 
 Burton v. Hodsoll . 
 
 V. llorton 
 
 V. Knowlton 
 
 V, Picrpoint 
 
 Burwell v. Corrant 
 
 — : • V. Harwell 
 
 Bush V. Dalway 
 Bushby v. Dixon 
 Butler V. Butler 
 
 . V. VVallis 
 
 Buttery t>. Robinson 
 Butt's, Dr., Case 
 Butts' Case 
 Byas V. Byas 
 Byrchall v. Bradford 
 
 PAGE. 
 
 . 486 
 
 . 204 
 
 .481 
 
 43, 45 
 
 161, 162, 354 
 
 .144, 320 
 
 . 414 
 
 . 176, 177 
 
 153, 155, 156 
 . 362 
 . 2(J4 
 . 135 
 . 100 
 . 141 
 . 64 
 . 539 
 
 Cage V. Acton 
 
 V. Russel 
 
 Caillaud v. Estwick 
 Caldecott V. Caldecott 
 Calmady v. Calmady 
 Calton V. Bragg 
 Cambell's Cwse 
 Camden v. Turner . 
 Cameron v. Smith 
 Campbell's Case 
 Campbell v. Earl of Radnor 
 Campion v. Cotlon . 
 Canning v. Hicks 
 Cannon, Heir of, v. Pack 
 Capel's Case 
 Capell V. Gostow 
 
 . 283 
 . 108 
 
 . 175 
 
 . 519 
 
 159, 161, 164 
 
 . 562, 566 
 
 399, 401, 413 
 
 . 548 
 
 . 561 
 
 . 548 
 
 547 
 
 162 
 
 193 
 
 392 
 
 332 
 
 522 
 
 184, 
 
 Car V. Countess of Burlington 339, 575 
 
 — V. Ellison . . 57, 65 
 Carew v. Johnston . . . 390 
 Carey «. Goodinge, or Goodwyn . 150 
 Carpenter v. Tucker . . 52 
 Carr v. Eastabrooke . . 463 
 
 V. Ellison . .211, 212 
 
 V. Lord Errol . . 198 
 
 V. Taylor . . 180, 181 
 
 Cartt). Rees . . . 180 
 
 Carter's Case . , 173 
 
 Charter, Ex parte . . . 395 
 
 Carter v. Barnadiston 38, 104, 129, 367 
 
 V. Bletsoe . . .127 
 
 V. Carter . 116, 117, 129 
 
 V. Love . . . 495 
 
 Carteret. Lord, t). Paschal 176, 177, 292 
 Carver v. James • . . 437 
 
 V. Pierce . . .182 
 
 Carvill V. Carvill 78, 81, 83, 92 
 
 Gary ?>. Appleton . . .162 
 
 V. Stafford . . . 280 
 
 V. Taylor . .179 
 
 Casberd v. Attorney General . . 8 
 
 ,;. VVard& Att.Gen. 20,25 
 
 Casborne V. Scart'e . 148, 184, 429 
 
 Casburne w. Inglis . . 432 
 
 V. Scaife . . ib.
 
 590 
 
 NAMES OF CASES. 
 
 PAGE. 
 
 Cason V. Round . , . 40G, 420 
 
 Castilion v. Executor of Smith . 312 
 
 Castleton, Lord, v. Lord Fanshaw . 122, 
 384, 385, 451, 452 
 Cator V. Cliarlton . . 395 
 
 V. Cooley . . . 407 
 
 Cave V. Cave . 182, 183 
 
 Cawer v. James . . . 437 
 
 Cavveth V. Philips . . 150 
 
 Cecil V. Butcher . . . 2 
 
 Chalie v. The Duke of York . 565 
 
 Challis V. Casborn 321, 390, 391, 392 
 Chamberlain v. Chamberlain . 149 
 
 Chambers «. Harvest 271, 273, 323 
 
 V, Leversedge . . 50f) 
 
 w.Minchin 498,539,540,545,559 
 
 Champernon v. Champernon. . 134 
 
 Champion, Er parte . 519, 520 
 
 Champneys v. lirovvn . . 557 
 
 Chancey's Case . 462, 464 
 
 Chancy v. Wootton . . 462 
 
 Chandos, Duke of, W.Talbot .129 
 
 Chaplin V. Chaplin . 375, 379, 381 
 
 V. Leroux . 69, 105 
 
 Chapman v. Bond , .149 
 
 V. Dalton . . 144 
 
 V. Derby . . 502 
 
 V. Hart . . . 385 
 
 ■ V. Turner . 264, 266 
 
 Charles v. Andrews . . 334 
 
 Charlton v. Low 5, 149, 263, 264, 397, 
 417, 496, 500 
 Ciiatteris v. Young . .115 
 
 Chaworth v. Beech . 122, 384 
 
 . 133 
 . 150 
 
 Cheeseman v. Partridge 
 
 Cheetham v. Ward 
 
 Chelsea Water Works' Compa 
 
 Cowper 
 Chesslyn v. Smith 
 Chester v. Chester 
 
 V. Painter 
 
 Cheveley v. Stone . 
 Child V. Gibson 
 
 V. Stephens 
 
 Childs V. INIonins . 
 
 Chirton's Case 
 
 Chitty V, Parker 
 Cheat V. Yeats 
 Cholmondeley, Marquis, r. 
 
 Clinton 
 Chomley v. Chomley 
 Christophers v. Sparke 
 Churcher and Stringer's Case 
 Churchill v, Dibben 
 
 ■ V. Grove 
 
 V. Hobson 
 
 V. lloiison 
 
 V. Snjall 
 
 Churchman v. Ireland 
 City of London v, Garway 
 Clare v. Alinuty 
 
 ny V. 
 
 . 551 
 
 . 578 
 
 . 429 
 
 43, 126 
 
 . 3 
 
 . 516 
 
 . 326 
 
 . 507 
 
 . 32 
 
 . 202 
 
 382, 383 
 
 Lord 
 
 . 421 
 
 . 163 
 
 . 187 
 
 . 569 
 
 . 581 
 
 . 402 
 
 541 
 
 541 
 
 162 
 
 432 
 
 202 
 
 539 
 
 525, 
 540, 
 161, 
 
 PAGE. 
 . 421 
 
 . 161 
 . 161 
 
 . 440 
 . 280 
 . 128 
 
 V. Earl of Bedford . 
 
 Clarges', Sir 'J\, Case 
 
 Clarges v. Duchess of Albemarle 
 
 Clark V. Ilougham 
 
 V. Peryam 
 
 V, Ross 
 
 V. Sewell 58, 59, 68, 461, 464 
 
 Clarke t;. vVbbot 397, 399, 417, 430 
 
 V. Lord Abingdon 573, 574 
 
 v.Earlof Ormond,294, 295, 296 
 
 298, 300 
 . 280 
 . 578 
 . 149 
 . 572 
 . 66, 105 
 . 109 
 
 Claxton V. Claxton 
 
 Clay V.Willis 
 
 Claydon v. Spensar 
 
 Cleaver v, Spurling 
 
 Cleland v. Cleland 
 
 Clement v. Gunhouse 
 
 Clere's Case 
 
 Clergymen's Sons, The Corporation 
 
 323 
 
 265 
 108 
 180 
 2 
 421 
 
 of, V. Swainson 
 Clerk t). Miller 
 
 ■- V, Rutland 
 
 V. Smith 
 
 Gierke v. Knight 
 Clerkson v. Bowyer 
 Cleverley v. Brett 
 Cleydon v. Spensar 
 Clifford V. Brooke 
 
 V. Lewis . 
 
 Clifton V. Burt 
 Clinton v. Hooper 
 V. Willes 
 
 547, 
 
 548 
 
 . 579 
 
 . 172 
 
 . 69, 105 
 
 176, 179 
 
 . 184 
 
 . 548 
 
 . 265 
 
 . 422 
 
 59, 60, 62 
 
 . 341 
 
 . 364 
 
 . 579 
 
 126 
 
 125 
 
 57 
 
 266 
 
 125, 
 
 Clobberie's Case . 
 Cloberry v. Lampen 
 Clowdsley v, Pelham 
 Cock V. Cross 
 Cockes t;. Sherman, 400, 407, 412, 414 
 415, 420 
 Cockrane v. Chambers . .175 
 
 Cockroft V, Black . 264, 268 
 
 Coghile V. Fairlove . . 315 
 
 Coghill V. Freelove . . ib. 
 
 V. Fructon . . ib. 
 
 Coke's, Sir E., Case . . 20 
 
 Colchester v. Lord Stamford 124, 333 344 
 Cole V, Moore . .173 
 
 D.Turner . . .133 
 
 V. Wade . 70, 209 
 
 Coleman v. Coleman . 122, 123 
 
 V. Wince, or Winch 149, 391 
 
 392, 393, 394 
 (^ollcdge V. Horn . . 440 
 
 Collet V. De Gols . . 414 
 
 Collet V. Munden . . 395 
 
 V. Mickleston . . 60 
 
 Collier i'. Sijuire . . 148
 
 NAMES OF CASES. 
 
 591 
 
 Collins II. Aiclicr 
 
 ^ V. Blantein 
 
 V. Metcalfe 
 
 V. Througligood 
 
 V. Wakeman 
 
 Collyer v. WiUock . 
 (dolman v. Sairel 
 Colpoys 11. Colpoys 
 Colston 1'. Carr 
 Coltman v Marsh 
 Comber's Case 
 Combes' Case 
 Comer .t). Walkley . 
 Coming, Ex parte 
 Coningham v. Mellisli 
 Connor i'. Martin 
 Constantine v. Constantine 
 Conyngliam i). Conyngham 
 Cook V. Duckenfield 
 
 V, Guavas 
 
 V. Harris . 
 
 V. Martyn 
 
 V, Parsons 
 
 Cooke V. Colcraft 
 Cooks V. Douze 
 Coombe, Ex parte 
 
 PAGE. 
 
 . 404 
 . 279 
 . 125 
 . 312 
 
 . 202 
 . 439 
 . 282 
 . 7 
 . 507 
 . 439 
 . 473 
 . 84 
 . 48 
 . 10 
 
 40, 205 
 . 176 
 . 386 
 . 39 
 . 205 
 . 40 
 . 314 
 384, 548 
 . 39 
 . 149 
 . 507 
 
 6, 8, 10 
 
 Coombes v. Gibson 
 Cooper V. Cooper 
 
 V. Day 
 
 V. Martyn 
 
 V. Thornton 
 
 (in re Beavan) 6, 10 
 
 57, 65, 66 
 . 406 
 . 115 
 . 384, 548 
 . 497 
 357, 358, 360 
 . 144 
 
 5 
 
 343 
 
 287 
 
 380 
 
 . 126 
 
 309, 314 
 
 . 357 
 
 376, 
 
 Cope V. Cope 
 
 V. Lewin 
 
 Copis V. Middleton 
 
 Coppin V. Coppin 
 
 Corbet's Case 
 
 Corbet v. Kynaston 
 
 Corbett v. Palmer . 
 
 Cormel v. Lisset . 308, 
 
 Cornish v. Mew 
 
 Corporation of Clergymen's Sons v. 
 
 Swainson . 547, 548 
 
 Corrie, Ex parte . . . 12 
 
 Corsellis v. Corsellis . 148, 184 
 
 Corns V. Farmer . . . 466 
 
 Cotterell v. Chamberlain . 381 
 
 Cotton V. lies . . . 194 
 
 1;. White . .138 
 
 Couch V. Stratton . . . 468 
 
 Coulston V. Carr . . 507 
 
 Coulter's Case, or Coulter v. Ireland 270 
 Coventry, Countess of, v. Earl of 
 
 Coventry . .371 
 
 Coventry, Lady v. Lord Coventry . 370 
 Covvell V. Walts . . 531 
 
 Cowper's, Countess, Case . .165 
 Covvper v. Scott . . 128 
 
 Cox, Case of the Creditors of Sir C. 149 
 317, 320, 327, 338 
 
 PACK. 
 
 Cox's, Lady, Case . . . 282 
 
 Cox V. Bateman , 12, 334, 538 
 
 V. Brown . . 478, 482 
 
 V. Godsatvc . • 190 
 
 V. Josijph . . . 276 
 
 V. King . . 295 
 
 Coxe u. Basset . 58, 110,374 
 
 Coysgarne v. Jones . . 294 
 
 Crackelt v. Bcthune . . 515 
 
 Craddock v. Marsh . . 456 
 
 Crane v. Drake . . 487, 489 
 
 Cranmer's Case . 460, 461 
 
 Craven v, Tickell . . 563, 571 
 
 Cray v. Rooke . 278, 280 
 
 Creckmere v. Patterson . . 98 
 Creditors of Sir C. Cox, Case of . 149 
 317, 320, 327, 338 
 
 Creed v. Colville 
 Creuze v. Hunter 
 V. Lowth 
 
 Crickmere v. Paterson 
 
 Crips V. Grysil 
 
 Crisp V. Spranger . . 
 
 Crockat v. Crockat , 
 
 Crockford v. VVinter 
 
 Croft, Lady, Executors ot,«.Lyudsey 501 
 
 153 
 138, 575 
 138, 575 
 . 98 
 . 425 
 . 522 
 . 122 
 . 566 
 
 Croft V. Pyke 
 Crofts V. Taylor 
 Crompton v. Sale 
 Cronivvel's, Lord, Case 
 Cromwell's, Lady, Case 
 Cromwell v. Grithth 
 Crookshanks v. Turner 
 Crosse v. Smith 
 Crosseing v. Honor 
 Crowder v. Clowes 
 Cruse V. Barley 
 Cubbidge V. Boatwright 
 Culpeper's Case 
 
 163, 
 
 267 
 316 
 
 464 
 
 98 
 
 172 
 
 . 330 
 
 . 558 
 
 497, 520, 524 
 
 4, 373 
 
 89, 90, 115 
 
 39, 203 
 
 477, 492 
 
 . 401 
 
 Culpepper v. Aston, or Austin 39, 49, 70 
 
 Cunningham v. Mellish . 40, 205 
 
 . •— V. Moody 156, 212 
 
 Curre v. Bowyer . . 300 
 
 Currer v. Walkley . . 48 
 
 Currie v. Pye . 348, 350 
 
 Curson's Case . . . 32 
 
 Curson v. Karvile . . 173 
 
 Curteisu. Wolverston . . 102 
 
 Curtiesu. Fitzpatrick . . 53 
 
 Curtis V. Hunt . 313, 548, 551 
 
 V. llutton . . 353 
 
 V. Vernon . . 271 
 
 Cutlibert v. Peacock 460, 461, 464 
 
 Cutler V. Coxeter . . 42 
 
 Cutterback v. Smith . . 321 
 
 f agley ?). Crump , . 548 
 
 V. Tolferry . . . 497 
 
 Dalbin v. Prittiman . . 575 
 
 Dalston v. Reeve . . .136
 
 592 
 
 NAMES OF CASES. 
 
 Dando v. Dando 
 Danne v. Annas 
 Darcy v. Hall 
 Darston v. Karl of Oif'ord 
 Darvvell v. Darwell 
 Davenport v. Robinson 
 Daveis v. Folkes 
 Davidson v. Gardner 
 Davies v. Austen 
 
 V. Davies 
 
 • V. Monkhouse 
 
 V. Powell 
 
 • V. Ridge 
 
 V. Topp 366, 377 
 
 Warner . 
 Wattier 
 Wescomb 
 Davila 
 
 379 
 
 I'AOE. 
 
 . 555 
 
 74,75 
 
 . 407 
 
 . 288 
 
 . 500 
 
 . 161 
 
 203, 209 
 
 . 577 
 
 . 497 
 
 117, 129 
 
 288,290 
 
 . 198 
 
 . 536 
 
 380, 381, 
 
 382 
 
 . 503 
 
 . 519 
 
 . 55 
 
 . 466 
 
 . 572 
 
 . 67 
 
 . 390 
 
 . 192 
 
 . 95 
 
 . 430 
 
 506, 509, 510 
 
 523 
 
 506, 509, 510 
 
 . 460 
 
 497 
 
 128 
 
 512 
 
 401 
 
 504 
 
 lb. 
 
 179 
 
 179 
 
 3 
 
 441 
 
 Davila v 
 Davis u. Curtis 
 
 V. Dee . 
 
 V. Dendy 
 
 V. Eytoa 
 
 V. Gardiner 
 
 V. Gibbs 
 
 V. Reyner 
 
 V. Spurling 
 
 V. Wright 
 
 Davison v. Goddard 
 Dawley v. Ballfrey 
 Dawson v. Killet 
 
 • i\ Parrot 
 
 Day V. Arundel 
 
 V. Cavvdrey 
 
 V. Garely 
 
 V. Padrone 
 
 V. Pargrave 
 
 Deacon v. Smith 
 
 Dean v. Crane . - 
 
 Dean & Chapter of Bristol w. Guyse 311, 
 
 312,313 
 Dean & Chapter of Windsor v. Gover, 
 
 or Gower . , . 137 
 
 V. Hyde . 311 
 
 De Bernales v. Fuller . . 566 
 
 V. Wood . . 568 
 
 Deeks v. Strutt 508, 509, 510, 511, 512 
 Deene v. Test . 386, 387 
 
 Deerhurst, Lord,u. Duke of St. Albans 197 
 Deg V. Dog 317, 319, 327, 338, 339 
 De Havilland v. Bowerbank . 566 
 
 DemainbravjOr Demindray, u.Metcalf 
 
 389, 394 
 Denie's Case . . 172 
 
 Denne v. Judge . . . 78 
 
 Dennis v. Nourse . . 52 
 
 Dennye's Case . . .152 
 
 Denton's Case . . 224 
 
 Deschanips v. Vanneck . . 573 
 
 De Tastet v. Andrade . .301 
 
 I'AGli. 
 
 Detellen v. Gale . , . 389 
 
 Dethicke v. Caravan . 320 
 
 Devese v. Pontet . , . 468 
 
 Devonshire, Countess of, v. Collyer 316 
 
 Dukeof, W.Atkins, 151, 152, 
 
 381 
 
 Duke of, V. Kinton, or 
 
 Atkins . . . 152 
 
 Dewdney, El parte . . 51,451 
 
 Dickenson u. Dickenson .118 
 
 Digby V. Legard . 39, 204 
 
 Digby, Earl, Ex parte 357, 364, 372 
 
 Dighton V. Greenvil 399, 401, 414 
 
 Dike V. Ricke, or Ricks . 49, 70 
 
 Dillon V. Jones 
 Dines v. Scott 
 Dixon V. Dawson 
 Dod V. Dickenson 
 Dodson V. Hay 
 Doe V. Bevan 
 
 V. Brown 
 
 V, Guy 
 
 — — V, Hawke 
 
 V. Hogg 
 
 V. Hutton 
 
 V. Keen 
 
 V. Knight 
 
 V. Ludlam 
 
 V. Lyford 
 
 — — V. Parratt 
 
 V. Polgrean 
 
 V. Roe 
 
 V Skeggs 
 
 V. Timins 
 
 V. Wharton 
 
 Dolben v. Prettiman 
 Dolman v. Pritman 
 
 V. Smith 
 
 V. Weston 
 
 Donisthorpe v. Porter 
 
 Donne v. Lewis 
 
 Dorchester v. Webb 
 
 Dornford v. Dornford 514, 51 5, 51 6, 57 1 
 
 Dorset, Earl of, v. Powle . . 579 
 
 . 279 
 
 . 522 
 
 43, 201, 209 
 
 . 197 
 
 125, 126. 212 
 
 . 8 
 
 . 7 
 
 . 511 
 
 . 9 
 
 . 8 
 
 . 156 
 
 . 155 
 
 . 2 
 
 . 38 
 
 . 7 
 
 . 194 
 
 . 172 
 
 . 8 
 
 479, 480 
 
 104, 105 
 
 399,401 413 
 
 . 575 
 
 . ib. 
 
 42, 58, 67 
 
 58, 67 
 
 . 361 
 
 377,380 
 
 144 
 
 Doswell V. Earle 
 Doughty V. Bull 
 
 V. Styles 
 
 Douglas V. Clay . 
 
 V. Forrest 
 
 Dowdale's Case 
 Dovvdenay v. Gland 
 Downes v. Power . 
 Dowse V. Coxe 
 
 V. Percival . 
 
 Dowthwaite v. 'I'ibbut 
 Doyle V. Blake 
 Doyley v. Tolferry 
 Doyly V. Perfull, or Persall 
 Drake r. Rlunday 
 V. Robinson 
 
 . 176 
 . 203 
 . 412 
 
 294, 295, 300 
 . 436 
 
 145, 152, 235 
 . 507 
 . 487 
 . 507 
 . 149 
 . 438 
 
 496, 541,543 
 . 497 
 . 172 
 . 185 
 . 38
 
 NAMES OF CASES. 
 
 593 
 
 PAGE. 
 
 Draper y. Borlace . . . 421 
 
 Drapers' Company v. Davis . .139 
 
 y. Yardley . 117 
 
 Drewry v. Thacker 295, 296, 300 
 
 Drinkwater v. Falconer 122, 386 
 
 Drohan i-. Drohan . . 492 
 
 Druce t). Dennison . 7, 170, 181 
 Drybutter v, Bartholomew . 184 
 
 Du Belloixr. Lord VVaterpark 561, 565 
 Dumper, or Dumjjere, or Dumpor, v. 
 
 Symras . . .480 
 
 Dumpor's Case . . . ib. 
 
 Duncombe v. Walter . . 473 
 
 Dundas D, Duteus . . • 175 
 
 Dupleix V. De Roven . 5, 282 
 
 Duppa V. Mayo , . . 185 
 
 Durour v. Motteux . 204, 205 
 
 Duvall V. Terrey . . . n72 
 
 Dyer v. Kearsley 294, 295, 296, 300 
 Dyke V. Dyke . . .496 
 
 Dyose v. Dyose . . . 495 
 
 Earle v, Hinton 
 Earlom v. Saunders . 
 Eastly It. Eastly 
 Eastwood V. Vinke . 
 Eccles V. Thawill 
 Eddowes v. Hopkins 
 Eden v. Smyth . 
 
 Edgcomb v. Dee 
 Edge V. Worthington 
 Edgell V. Haywood 
 Edis V. Bury 
 Edmunds v, Povey 
 Edwards v. Bethel 
 
 V. Freeman 
 
 Eeles V. Lambert 
 Elliot V. Collier 
 
 V. Davenport 
 
 V. Davis 
 
 V. Hancock 
 
 V. Merriman . 
 
 V. Merryman 
 
 Ellis V. Atkinson 
 V. Gnavas 
 
 V. Walker 
 Ellison t'. Airey : 
 
 V. Wright 
 
 Elton V. Harrison 
 J^lvard V. Warren 
 Emblyn v. Frteman 
 Erabrey v. Martin 
 Embry v. JMarlyn 
 Emerson v. Annison 
 
 V. Emerson 
 
 V. Inchbird 
 
 Ernes 1'. Hancock 
 England, Bank of, v. 
 Errington v. Evans 
 
 . 305 
 
 . 212 
 
 166, 167 
 
 . 468 
 
 392, 394 
 
 . 563 
 
 . 469 
 
 . 276 
 
 9, 11 
 
 . 87 
 
 . 4 
 
 412, 414 
 
 302, 304 
 
 370, 371 
 
 276, 551 
 
 . 180 
 
 469, 470 
 
 . 572 
 
 . 132 
 
 . 57, 486 
 
 48, 56, 68, 220 
 
 . 578 
 
 . 194 
 
 122, 384 
 
 . 58 
 
 . 389 
 
 . 42 
 
 . 293 
 
 . 207 
 
 . 107, 119, 128 
 
 . 128 
 
 . 189 
 
 . ib. 
 
 G9, i05, 152 
 
 107, 119, 128 
 
 Morice . . 276 
 
 . 150 
 
 Erving v. Peters 
 
 302, 303, 304, 
 547, 
 
 Essex V. Atkins . . 677, 
 
 Evans and Ascough's Case 
 
 u. Bicknell . .415, 
 
 V. Roberts 
 
 V. Tripp 
 
 V. Warren . . 
 
 Eveling v. Leveson 
 
 Evelyn v. Evelyn . 360, 3G1, 
 
 Everendcn v. Vanacker . 
 
 Evlyn V. Evlyn 
 
 Ewer V. Ewer 
 
 V. Corbet 
 
 Ewin's Case (Parker) 
 
 Ewin's, or Evving's, Case . 
 
 i^wre V. Strickland 
 
 Exors. of Fergus t). Gore 51, 
 
 of Lady Croft v. Lindsey 
 
 Eyles V. Gary 
 
 AGE. 
 
 305, 
 548 
 
 .578 
 152 
 422 
 186 
 384 
 506 
 556 
 363 
 401 
 357 
 135 
 486 
 26 
 236 
 3 
 454 
 501 
 64 
 
 Fagg's, Sir John, Case 
 Fairebeaid v. Bowers 
 Falkland, Lord, v. Bertie 
 Farisli v. Wilson 
 Farnham v. Burroughs ; 
 Farquhar v. Farley . 
 V. Morris 
 
 Farr v. Newman 
 
 Farrington v, Knightley 
 
 Favel's Case 
 
 Fearn v. Lewis 
 
 Featherstone v. Fenwick . 
 
 Fellows V. Mitchell, or Owen 
 
 Feitham v. Exors. of Harlston 
 
 Fenhoulet v. Passavant 
 
 Fenton v. Erablers 
 
 Fereyes v. Robertson 
 
 Fergus, Exors. of, v. Gore 
 
 Ferrers, Countess of, v. Earl Ferrers 138 
 
 401,414 
 . 277 
 . 7 
 . 508 
 
 295, 374 
 . 569 
 . ib. 
 
 475, 483 
 . . 539 
 . 32 
 . 439 
 . 8,9 
 . 540 
 . 41 
 
 341,342 
 
 . 437 
 
 41, 42, 44 
 
 51,454 
 
 V, Shirley 
 
 V. Tannet, or Tanner . 
 
 Ferris v. Newby * 
 
 Fettiplace v. Gorges . 
 Feverstone v. Scetle 
 Field V. Clerk 
 
 IK Mostin 
 
 Fielden v. Fielden 
 
 Finch V. Earl of Winchelsea 
 
 V. Hattersley 
 
 V. Sc[uire 
 
 Finden, E.r parte 
 
 Fish, or Fislier, v. Richardson 
 
 Fisher v. Forbes 
 
 Fisk V. Fisk 
 
 Fitzgerald v. Burke . 
 
 V. Lord Fauconberg 
 
 V. Fauconbridge, or Fau- 
 
 conberge 
 
 o o 
 
 299 
 
 . 135 
 
 . ib. 
 
 166, 580 
 
 . 340 
 
 . 150 
 
 462, 464 
 
 , 295. 303 
 
 3, 318 
 
 57, 61, 62 
 
 . 350 
 
 . 10 
 
 . 506 
 
 186, 187 
 
 184, 194 
 
 . 401 
 
 . 170 
 
 403
 
 394 
 
 N^MES OF CASES. 
 
 PACK. 
 Fitzgerald v. Field , .132 
 
 Fitzjames v. Fitzjames . 6, 10 
 
 Fladong v. Winter . . 62 
 
 Flanagan v, Flanagan . . 204 
 
 Flay i>. Flay . 164,167 
 
 Fleetwood's Case . . 19, 21 
 
 Fletcher v. Ashburner . 204, 209 
 
 V. Walker . . . 526 
 
 Flower v. Earl of Bolingbroke . 53 
 
 Flud «. Ramsey . . 144 
 
 Foley V. Burnell . . .198 
 
 V. Percival . . 92 
 
 Foly's Case, 292, 317, 318, 319, 324 
 Fonereau v. Fonereau . . 125 
 
 Fontaine t'. Tyler . . 384 
 
 Foone v. Blount . . .70 
 
 Forbes v. Phipps . 177, 293 
 
 V. Ross . . . 515 
 
 Ford V. Fleming . . 122 
 
 Forrest v. Elwes . . .517 
 
 Forresters. Lord Leigh, 341, 342, 359, 
 
 362 
 
 Forsight v. Grant 
 Forsyth v. Grant 
 Forth V. Stanton 
 Fortrey v. Fortrey 
 Foskew's Case 
 Fosset V. Austin 
 Foster v. Blagden 
 . V. Blakelock 
 
 . . - V. Cook . 
 
 V. Foster 
 
 V. Weston 
 
 Fothergill v. Kendrick 
 Fowle V. Green 
 Fowler i'. Fowler 
 
 ■V. Willoughby 
 
 . 468 
 . ib. 
 . 504 
 . 154 
 . 32 
 . 149 
 347, 348 
 . 450, 548 
 58, 344 
 512,548 
 563, 567, 570 
 . 2 
 . 76 
 460, 461 
 92, 121, 123 
 Fowles u. Countess of Dorset . 166 
 
 Fox V. Carlyne . 98, 102 
 
 V. Fox . 150,357,359 
 
 Foy V. Foy . . 344, 349 
 
 Francis v. Wigzell . . 579 
 
 Franco v. Bolton . . 278, 279 
 
 Franklin v. Bank of England, 384, 477 
 513, 519 
 263, 269 
 . 140 
 . 150 
 505, 508 
 . 549 
 3, 56, 220, 318, 
 321, 369, 370 
 . 102 
 . 42, 67 
 . 545 
 . 398 
 . 264 
 . 279 
 438, 440 
 
 Frith 
 Franks v. Cooper 
 
 V. Noble 
 
 Freakley v. Fox 
 Frederick v. Wynne 
 Freeman v. Fairlie 
 Freemoult v. Dedire 
 
 Freke v. Lee 
 French v. Chichester 
 
 V. Hobson 
 
 Frere v. Moore 
 Fretwell v. Stacy 
 Friend v. Harrison 
 Frost V. Bengough 
 Fry's, Lady, Case 
 
 PAGE. 
 
 Fry V. Fry . . . 128 
 
 V. Porter . . 100, 108 
 
 Fryer v. Gildich . .144 
 
 V. Gildridge . . 267 
 
 V. Gildring . . 150 
 
 V. Morris . . . 122 
 
 Fulmerston v. Steward . 99, 100 
 
 Fulwood's Case . . 409, 414 
 
 Gage V. Acton . 264, 268, 283 
 
 Gale V. Croft . . .42 
 
 V. Crofts . 39, 42, 201 
 
 Gainsborough, Countess of, v. Earl 
 
 of Gainsborough 
 Galliers v. Moss . 425, 426, 428, 
 Galton V. Hancock, 6, 351, 357, 366, 
 Galway v. Earl of Barrymore 
 Gardener v. Fenner . 
 
 Gardner v. Hatton 
 
 Garfoot v. Garfoot . 75 
 
 Garforthv. Bradley . 178,180, 
 Garland, Ex parte . 532, 
 
 Garrat r. Garrat 
 Garret v. Evers 
 Garthshore v. Chalie 
 Gaskill V. Hough 
 Gawler V. Standerwick, 89, 91, 127, 
 
 V. Wade 
 
 Gayner, or Gayer, v. Wilkinson 
 
 Gaynon v. Wood 
 
 Gayre v. Gayre 
 
 Geanes i'. Portman 
 
 GelU. Adderly . 271,321, 
 
 Geofrey v. Thorn 
 
 George v. Milbanke . 
 
 Georges v. Georges 
 
 Gering's Case 
 
 Germy's Case 
 
 Gibblett v. Read . 149, 
 
 Gibbons ?>. Hills 
 
 V. M'Casland . 
 
 Gibbs V. Herring . 
 
 V, Ougier 
 
 V. Rumsey 
 
 Gibons v. Marltiward 
 Gibson v. Dickie 
 
 V. Egerton 
 
 V. Scudamore 
 
 GifTard v. Barber 
 Gilford V, Manley . 
 Gilbert v. Enierton 
 
 V. Golding 
 
 Giles V. Dyson 
 
 V, Roe 
 
 Gilham v. Locke 
 
 Gill V. Attorney General 
 
 V. Harewood 
 
 Gillaunie v. Adderley 
 Gillies V. Smilher 
 Gilpin's Case 
 
 . 496. 
 205, 206, 
 
 572, 
 
 156. 
 2, 4, 6, 12, 
 
 147, 
 277, 278*, 
 
 384, 
 69, 
 
 41 
 429 
 378 
 451 
 505 
 184 
 , 83 
 181 
 533 
 463 
 194 
 466 
 
 43 
 129 
 218 
 176 
 460 
 385 
 190 
 325 
 
 52 
 149 
 258 
 320 
 
 ib. 
 184 
 386 
 440 
 557 
 334 
 204 
 101 
 280 
 573 
 460 
 157 
 335 
 455 
 389 
 496 
 4 
 282 
 542 
 507 
 386 
 261 
 105
 
 NAMES OF CASES. 
 
 595 
 
 Gilpin V. Lady Southampton 
 Girling v. Lee 
 
 V. Lord Lowther 
 
 Gittins V. Steel 
 Gleed v. Gleed 
 Glyn V. Baster 
 Glynn v. Thorpe 
 Goate V. Fryer 
 Gobe V. p]ail of Carlisle 
 Goddard v. Complin 
 Godefrey v. Newton 
 Godfrey v. Newport 
 
 V. ^Vatson 389, 390 
 
 Godolphin v. Abingdon 
 
 Earl of, V. Penneck 
 
 Godwin v. IMunday 
 Goffe V. VVhalley 
 Goflon V. Mills . 
 Gold V. llutland . 
 Goldsmid v. Goldsmid 
 Goldsmith v. Sydnor 
 Goodchild v. Fenton 
 G code re v. Lake 
 Goodfellow V. Burchett 
 
 289 
 
 399 
 
 562 
 
 Goodman v. Purcell 
 Goodtitle v. Morgan 
 
 V. Newman 
 
 Goodwyn v, Goodwyn 
 Goodyere v. Lake . 
 Gordon v. Graham 
 
 V. Swan 
 
 Gore V. Blake 
 
 V, Gore 
 
 V. Knight . 
 
 Gorge, Lord, v. Dlllington 
 Goring v. G,oring . 
 Gorton v. Dyson . 
 
 Gory's Case 
 Goslings' Case 
 Gott V. Atkinson 
 
 V. Vavasor 
 
 Gould V. Adams 
 Gowdchep's Case 
 Gower v. Mead 
 Graham «. Graham 
 ■ V. Keble 
 
 V. Lord Londonderry 
 
 162 
 Grant u. Grant 
 Grantham v. Hawley 
 Gravenor v. Hallum 
 Gray v. Mathias 
 
 V. Minnethorpe 
 
 V. Pawlet, or Paulet 
 
 V. Trowe 
 
 Graye's, Lord, Case 
 Cireatley v. Noble 
 Greaves v. Powell 
 
 295, 298 
 
 318, 320 
 
 . ib. 
 
 42, 92, 124 
 
 . 67 
 
 577, 578 
 
 2, 283 
 
 . 300 
 
 . 192 
 
 . 406 
 
 . 283 
 
 . 283 
 
 , 573, 574 
 
 . 154 
 
 57, 62 
 
 63, 242 
 
 . 128 
 
 153 
 
 . 51 
 
 166, 579 
 
 . 466 
 
 . 276 
 
 . 514 
 
 513 
 
 299, 461 
 
 463, 496 
 
 . 4 
 
 401, 415 
 
 . 155 
 
 38, 509 
 
 . 513 
 
 393, 406 
 
 563, 565 
 
 . 40 
 
 . 104 
 
 161, 166 
 
 193, 194 
 
 . 503 
 
 . 511 
 
 . 390 
 
 571, 574 
 
 218, 220 
 
 . 220 
 
 . 469 
 
 71, 73 
 
 . 67 
 
 . 461 
 
 . 551 
 
 159, 160 
 
 165, 166 
 
 . 572 
 
 . 187 
 
 . 204 
 
 . 279 
 
 42, 44, 45 
 
 . 199 
 
 id. 
 
 506 
 
 579 
 
 321 
 
 Green v. Belchier , 
 
 V. Crane 
 
 V. Folgham 
 
 V. Marygold 
 
 V. Smith 
 
 V. Symonds 4 
 
 Greene v. Greene 
 Greenwood v. Brudnish 
 Gregory v. Harman 
 V, Lockyer 
 
 Greswold v. Marsham 
 
 Greves v. VVeigham 
 
 Grey's Case, or Grey v. Bartholomew 199 
 
 PAGE. 
 . 57 
 
 . 441 
 
 . 183 
 
 . 134 
 
 . 183 
 
 . 385 
 
 183 
 
 . 558 
 
 509, 512 
 
 257, 581 
 
 . 402 
 
 . 474 
 
 43. 
 
 Grey, Lady, v. Colvillc 
 
 Lord, V. Lady Grey 
 
 V. Kentish . 
 
 Grigby v. Cox 
 Grimmett v. Grimmett 
 Grimston v. Lord Bruce 
 
 Grindall v. Davies 
 Grise v. Goodwin 
 Grosvenor v. Cartwright 
 V, Cook, or Coke 
 
 V. Lane 
 
 153 
 
 42, 86 
 
 . 176 
 
 . 577, 578 
 
 . 348 
 
 101, 102, 108 
 
 134 
 
 . 504 
 
 94, 149, 344 
 
 . 516 
 
 . 571, 572 
 
 575 
 
 . 176 
 
 57, 66, 377 
 
 . 170 
 
 Growcock v. Smith 
 Grute V. Locroft 
 
 Gugelman i;. Duport 38, 106, 119, 130 
 
 Guidot u. Guidot . .211 
 
 Gulliver v. Ashby . 100, 101 
 
 Guy w. Pearkes . .175 
 
 Gwilliams V. Rowell 71, 74, 75, 83 
 
 Gwynne v. Edwards . . 337 
 
 Haberghamu. Vincent 68, 110, 112, 
 
 399, 411, 
 
 400, 
 
 357, 
 
 Hacket v. Wakefield 
 Hacknott v. Webber 
 Hagshaw v. Yeates 
 Haigh, Ex parte 
 Hainsworth v. Pretty 
 Halcott V. Markant 
 Hale V. Cox 
 
 V. Thomas 
 
 Hales V, Margerum 
 
 V. Pettit 
 
 Hall V. Atkinson 
 
 V. Brooker 
 
 V. Hallet 
 
 V. Kendall 
 
 V. Terry 
 
 Halliday v. Hudson 
 
 Halliley v. Kirtland 
 
 Halsted v. Little 
 
 Halton, or Alton, v. Medlicot 
 
 Hambling v. Lister 
 
 Hamerton v. Rogers 
 
 Hamilton, Duchess of, v. Incledon 
 
 2o2 
 
 42, 43 
 
 477, 487, 497, 
 
 271, 321, 
 
 390, 
 
 113 
 115 
 
 414 
 561 
 401 
 8,9 
 104 
 492 
 358 
 572 
 580 
 171 
 401 
 , 44 
 513 
 324 
 128 
 40 
 392 
 453 
 386 
 122 
 391 
 496
 
 596 
 
 NAMES OF CASES. 
 
 PACE. 
 Hamilton v. Lloyd . .431 
 
 V. W 01 ley 358, 359, 373 
 
 Hamley v. Fisher . . 344 
 
 Hanbury v. Kiikland . . 547 
 
 Hanby v. Roberts . 341, 343, 344 
 
 Hancocks. Podmore 259, 261, 548 
 
 Hancom V. Allen . 519,520 
 
 Ilancox V. Abbey 41, 43, 92, 124, 359 
 
 360 
 Hankey v. Garret . . 512 
 
 V. Hammock, or Hammond . 532 
 
 V. Towgood . . ib. 
 
 V. Vernon . . 8 
 
 Hannis v. Packer 68, 86, 109, 110, 111 
 Hanson V. Graham . 125, 126 
 
 Harcock v. Wrenham 144, 25B, 516 
 
 Harcourt v. Knowel . 402, 404 
 
 Hardcastle v. Chettle . . 295 
 
 Harden v. Parsons , 517, 541 
 
 Harding v. Edge . . . 292 
 
 Harding v. Hardrett . .401 
 
 Hardingham v. Nicholls . . ib. 
 
 Hare v. Kickards . . 565 
 
 Harecourt v. Wrenham . . 144 
 
 Harewood v. Child . . 42 
 
 Hargrave's Case . . 309 
 
 Hargrave v. Tindal . 56, 220, 322 
 Hargreaves t>. Michell . 51,454 
 
 Hargthorpe v, Milforth . . 557 
 
 Harington v. Hoggart . . 566 
 
 Harman v. Harnian . 288, 556 
 
 Harmood v. Oglander , . 374 
 
 Harper v. Faulder . 422, 423 
 
 Harrington v. Garroway 399, 401 
 
 V. Harte . 149, 241 
 
 Harris, Ex parte . . 389 
 
 u.Ingledew 57,58,61,65,66,377 
 
 V. Bishop of Lincoln . 40 
 
 • V. Saunders . . 282 
 
 Harrison's Case . 276, 427, 551, 557 
 Harrison v. Beecles . . 303 
 
 V. Buckle . . 126 
 
 V. Harrison . . 517 
 
 V. Naylor . 89, 127, 212 
 
 V. Rowley . . 257 
 
 Harry v. Jones . 268, 269 
 
 Hart V. Middlehurst . . 403 
 
 Hartley v. Hurle . 42, 44, 45, 93 
 
 H&rtwell V. Chitters 149, 327, 328 
 
 Harvey v. Parsons . .517 
 
 Harwell v. Harwell . 160, 162 
 
 Harwood «. Wraynam . .144 
 
 Hasket v. Strong . . . 406 
 
 Haslewood v. Baldwin . 513, 516 
 
 . V. Pope 38, 42, 44, 222, 
 
 338, 339, 341, 343, 382 
 
 Hassel v. Hassel ; . 87 
 
 Hassell v. Gowthwaite . . 135 
 
 Hastings, Lord, v. Douglass, or Dow. 
 
 glas . 159, 161, 162 
 
 PAGE. 
 
 Hatch V. Mills . . 126 
 
 Hatton's, Sir C, Case . . 20 
 
 Hatton V. Nichol . 60, 67 
 
 Hawes v. Smith . . 505 
 
 V. Warner . 358, 373 
 
 Hawker v. Buckland . • 320 
 
 Hawkes v. Saunders • . 509, 510 
 
 Hawkins v. Chappel . . 40 
 
 V. Day 276, 485, 502,551, 557 
 
 V. Kemp . . 78 
 
 V. Ramsbottom . . 8 
 
 V. Taylor . 400, 407 
 
 Hawtrie v. Auger, or Anger . .152 
 Haydon v, Godsale . . 308 
 
 V, Williams . 439, 446 
 
 Hayes V. Hayes . .117 
 
 Hayford «. Benlows . 41,43 
 
 Haynes v. Mico . . 468 
 
 Haynsworth v. Pretty 69, 100, 101, 105 
 Hayward v. Kinsey . . 437 
 
 V. Stillingfleet . 101, 104 
 
 Head v. Egeiton . . 422 
 
 Headen v. Rosher . . . 578 
 
 Headley v. Readhead . . 343 
 
 Heams V. Bance . . 391, 392 
 
 Hearle u. Greenbank . . 166 
 
 Heath v. Heath . . 89, 90 
 
 Heathcote v. Hulme 514, 516, 529 
 
 Heatley v. Thomas . 578, 579 
 
 Heaton v. Hassell . 180, 181 
 
 V. Marriot . . 540 
 
 Hedger v. Rowe . . . 105 
 
 Hedworth v. Primate 399, 400, 401, 402, 
 406, 409, 410, 411 
 Heir of Cannon v. Pack . 392 
 
 Helier v. Casebert, or Casebrook . 315 
 Helley v. Helley . . 242 
 
 Hellings v. Shaw . . . 439 
 
 Heneage v. Lord Andover . 39 
 
 Henvell v. Whitaker • 61, 62 
 
 Herbage v. Backshaw . . 522 
 
 Herbert u. Herbert . 166, 167 
 
 Heme V. Meyrick . 103,341,342 
 
 Heron v. Heron . 264, 493 
 
 Hervey v. Ashton . . .179 
 
 Hewitt V. Wright . . 207 
 
 Heydon's Case . . . 409 
 
 Heygate v. Annesley . . 177 
 
 Heylin, or Heyling, v. Hastings . 439 
 Hibbard v. Lamb . . . 73 
 
 Mickey v. Hayter 275, 282, 502, 548 
 Hickman v. Walker . 434, 435, 441 
 Hickson tJ. Witham . 319,324 
 
 Hyde v. Haywood . . 558 
 
 Hiern v. Mill . . 8 
 
 Higgins V. Sargent . 563, 567 
 
 V. Scott . . 439 
 
 Higgon V. Syddal 399, 401, 412, 414, 415 
 Hilhouse v. Davis , . 560, 564 
 
 Hill V. Adams . . 405
 
 NAMES OF CASES. 
 
 597 
 
 Ilill V. Bishop of London 40, G8 
 
 V. Cock 
 
 V. Spencer 
 
 V. Simpson 
 
 llilliard's Case 
 Ililliard v. Gorge . 
 
 tJ. Taylor 
 
 Hills w. Wii ley 
 Ilillyard v. Taylor 
 Hilton V. Kenworthy 
 Hinde v. Lyon 
 Hindsley v. Kussell 
 Hinton v. Parker 
 
 V. Pinke 
 
 V. Scot 
 
 V. Toye 
 
 llippesley, Ex parte 
 Hitchcock V, Sedgwick 
 Hitchon v. Bennet 
 Hixon V. Wytham 
 Hoath V. Hoatli 
 Hobbs V. Norton 
 
 ti. Taite 
 
 Hockley v. Bantock 
 Hodges V. Beverley, 
 
 — ^^ V. Waddington 
 
 Hodgkin v. Blackman 
 Hodgkinson, Ex parte 
 Hodgson, Ex parte . 
 
 V. Raws on, 97 
 
 ■ V. Maynard 
 
 Hodgworth v. Crawley 
 Hogan V. Page 
 Hogg V. Graham 
 
 V. Kirby 
 
 Holcroft V. Smith 
 Plolford v. Wood . 
 Holland v. Hughes 
 Holley V. Weedon . 
 HoUiday v. Boas 
 
 . — V. Bowman 
 
 Holloway v, Collins 
 V. Lisrhtbourue 
 
 Holmes v. Coghill 
 
 V. Dring 
 
 V. Kerrison 
 
 Holt V. Bishop of Winchester 
 
 PAGi:. 
 357, 
 367 
 . 202 
 . 279 
 . 487 
 . 515 
 . 503 
 . 349 
 . 120 
 . 347 
 . 82 
 . 104 
 . 302, 550 
 . 547 
 . 386 
 . 176 
 . 149 
 . 36 
 . 414 
 . 226 
 . 324 
 . 125 
 . 421 
 . 461 
 9, 11 
 164, 176 
 . 496 
 . 268 
 . 2 
 . 6 
 
 102, 119, 128 
 . 505 
 . 134 
 
 563, 567, 570 
 . 302 
 . 184 
 . 2 
 . 86, 383 
 . 519 
 . 152 
 144, 150 
 . 43 
 . 496 
 . 176 
 149, 241 
 
 513,515,517 
 
 . 434 
 
 153 
 
 Holt 
 
 V. Hore 
 
 V. Mill 
 
 V. Murray 
 
 Hone V. Medcraft 
 Honner v. Morton 
 Hooper, Ex parte 
 V. Eyles 
 
 183, 498, 501 
 
 311,312 
 
 . 414 
 
 . 283 
 
 86, 95, 129 
 
 174, 176, 180 
 
 4, 9, 393 
 
 4, 493 
 
 Hopton V. Dryden . 
 Hore V. Woulfe 
 Horlock V. Priestley 
 Horn V. Horn 
 Home, Ex parte 
 Hornsby v. Lee 
 
 I'ACE. 
 
 266, 271 
 . 179 
 . 421 
 
 175, 228 
 . 184 
 
 176, 180 
 
 V. Goodwin, 110, 112, 113, 115, 
 
 204 
 
 Hopkins v. Hopkins . , 104 
 
 Hopkinson v. Leech . • 265 
 
 Horsfall's Case, or E.r parte Horsfall, 428 
 Horsley ?J. Chaloner . 496,516,547 
 Howman v. Corie . . 178 
 
 Horton v. Horton . . . 480 
 
 Houell V. Barnes 72, 73, 75, 79, 80, 
 
 82 
 Hovey v, Blakcman . . 539 
 
 How V. Nichol . . . 20 
 
 V. Vigures . • 430 
 
 Howard u. Jemmet . 301,303 
 
 of Effingham, Lord, v. 
 
 Napier . . . 360 
 
 Howe V. Earl of Dartmouth, 42, 358, 
 
 386,519 
 
 Howell V. Hanforth . . 14U 
 
 V. Hayler . . . 94 
 
 — — — V. Maine . . 175 
 
 V, Price . . . 358 
 
 V. Young . . 434 
 
 Howman v. Corie . . .178 
 
 Howse V. Chapman, 183, 184, 350, 353 
 
 r,, Webster . . 308 
 
 Hudson V. Hudson . . 475 
 
 Hughes V. Doulben 220, 221, S74 
 
 V. Wynne . 51, 454 
 
 Hughs V. Collis . 57, 58, 78 
 
 Hulme V. Tenant . 577, 673, 579 
 
 Humble V. BUI . 475, 486 
 
 V. Glover . , . 307 
 
 Hume V. Edwards . . 386 
 
 Humphrey v. BuUen . . 180 
 
 V. Tayleur . . 40 
 
 Humphreys v. Humphreys 122, 385, 
 
 V. Ingledon . . 473 
 
 Hungerford's, Mrs., Case . 165 
 
 Hunsden v. Cheyney . • 421 
 
 Huntu. Baker . .172 
 
 V. Fownes . . • 389 
 
 V. Maunsell 277, 278, 281 
 
 Hunter v. Bowes . • 567 
 
 Huntingdon, Earl of, v. Countess of 
 
 Huntingdon . . . 364 
 
 Huntingfeld's Case . . 409 
 
 Huntington, Earl of, v. Grenvllle . 410 
 Huntley V. Griffith . 175,176 
 
 Hurdret v. Calladon . . 456 
 
 Hurford v. Carpenter . . 8, 9 
 
 Hurst tJ. Goddard . . 176, 179 
 
 Hutcheson v. Hammond . . 204 
 
 Hutchins v. Foy . • . 1-8 
 
 Hutchinson u. Lord Massarecne . 130 
 Hyde v. Hyde 86, 109, 110, 344 
 
 Hyleing v. Hastings . . 439
 
 598 
 
 NAMES OF CASES. 
 
 PAGE. 
 
 Ibbotson V. Rhodes . .421 
 
 Incliiquin, Lord, v. French, 42, 86, 109 
 
 ■ V. Lord O'Brien . 42 
 
 Incledon v. Northcote, 159, 172, 176, 355 
 Inglis V. Scarfe .- . 429 
 
 Ingram v. Pelham . , .417 
 
 Innes v. Johnson . 122, 384 
 
 Ipswich, Bailiff's of, v, Martin . 308 
 
 Ireland v. Coulter 
 
 V. Higgins 
 
 Ireson v. Denn 
 Ironmonger v. Lassells 
 Ithell V. Beane 
 Izod V. Lamb 
 Izon V. Butler 
 
 270 
 . 200 
 . 395 
 37, 86, 344 
 . 65 
 . 165 
 469, 471 
 
 Jackson v. Fairbank . . 441 
 
 V. Hobhouse . . 577 
 
 V. Jackson, 86, 109, 110, 1 1 1,558 
 
 Langford 
 
 V. Leaf 
 
 V. Rowe 
 
 Jacomh v. Harwood 
 James v. Dean 
 V. Portman 
 
 391,406 
 294, 295, 300 
 . 403 
 . 475 
 . 183 
 . 190 
 
 ■ V. Lord Weymouth 
 
 Jeacock v. Falconer 
 Jeale v. Tichener . 
 Jebb V. Abbott 
 Jefferson v. Dawson 
 Jeffreys v. Jeffreys 
 Jeffs V. Wood 
 Jemot V. Cooley 
 Jenkins v. Armitage 
 V, Hermitage 
 
 . 349 
 
 . 466 
 
 . 128 
 
 . 48 
 
 402, 408, 414 
 
 . 384 
 
 . 469 
 
 . 135 
 
 . 314, 316 
 
 . . ib. 
 
 V. Plombe, or Plume 239, 496, 
 
 497 
 
 . 156 
 
 159,257,260, 581 
 
 . 152 
 
 . 183 
 
 . 89, 90, 91, 127 
 
 401, 403 
 
 V. Prichard 
 
 V. Tucker 
 
 Jenks' Case 
 
 Jenks V. Holford 
 Jennings v. Looks 
 Jerrard v, Saunders 
 
 Jeudwine v. Agate . . . 572 
 
 Jevens v. Harndge . . 308 
 
 Jevon V. Bush ^ . . 574 
 
 Jewel's Case . . . 136 
 
 John V. Kingston . . . 522 
 
 Johns V. Whitley . . 187 
 
 Johnson w. Arnold . . .211 
 
 V. Aston . . 549 
 
 V. Baker . . . 261 
 
 V. Gardiner . . 505 
 
 U.Johnson . 176, 177 
 
 V. Legard . . 183 
 
 V. Milksopp . . 357 
 
 V. Whitchcott . . 506 
 
 . 184, 350 
 
 . 436 
 
 Jones' Case 
 Jones V. Bradshaw 
 
 V. Davids 
 
 V. Harris 
 
 V. Lewis 
 
 V. Alackilwain 
 
 V. Mitchell . 
 
 V. Powell 
 
 V. Roe 
 
 V- Scott 
 
 V- Selby 
 
 V- Smith . 389, 
 
 V- Stanley 
 
 V- Earl of Strafford 
 
 V. Tanner 
 
 Joseph V. Mott . 
 Joy V. Campbell 
 Joyce's Case . 
 Judd V Pratt 
 Jury V. Woodhouse 
 Juxon V. Brian 
 
 PACE. 
 
 . 278 
 
 . 293 
 
 . 5 
 
 . 578, 579 
 
 . 498 
 
 . 125 
 
 . 203, 209 
 
 . 277 
 
 . 173 
 
 . 448, 454 
 
 86, 116, 117 
 
 390,391,394 
 
 . 401 
 
 . 51 
 
 509,510 
 
 293, 299 
 
 . 541 
 
 87, 132 
 
 . 38 
 
 . . 144 
 
 . 130 
 
 Kale V. Jocelyne, or Joceylyne 144, 308 
 
 Kay V. Townsend . 
 
 Keane v. Robarts 
 
 Kearnan v. Fitz-Simon 
 
 Keates v. Burton 
 
 Keble v. Osbaston . 
 
 V. Thompson 
 
 Keech v. Hall 
 Keeling v. Brown 
 
 V. Morrice . 
 
 Johnston v. Swann 
 Jolliile V. Pitt 
 
 Keene v. Harris 
 
 V. Riley 
 
 Kellow V. Rowden 
 Kelly V. Clubbe . 
 
 V. Powlet 
 
 Kelsall V. Bennet . 
 Kelsock, or Kelsick, v 
 Kendal v. Mickfeild 
 Kendall v. Kendall 
 Kendar v. Milward . 
 Kendrick v. Kendrick 
 Kennedy v, Daly . 
 Kennell v. Abbott 
 Kennett v. Milbank 
 Kenrick v. Burges 
 Kensington, Ex parte 
 Kent V. Craig . 
 Kentish v. Kentish 
 Kenyon v. Worthington 
 Kerwin v. Blake 
 Ketilby v. Ketilby 
 Kettleby v. Kettleby 
 Keylinge's Case 
 Kidney v. Coussmaker 
 Kightley v. Kightley 60 
 Kilbee v. Gore 
 Kildare, Earl of, v. Kent 
 Kinaston v. Clark 
 
 Nicholson 
 
 57 
 
 . . 491 
 
 12, 333, 336 
 
 . . 72 
 
 , 239 
 
 . . 517 
 
 . 187 
 
 64, 65, 341 
 
 . 312 
 
 . . 184 
 
 . 226 
 
 154, 156 
 
 , 136 
 
 385 
 
 403 
 
 475 
 
 . 184 
 
 . . 148 
 
 . 493 
 
 . . 211 
 
 . 404 
 
 204, 205 
 
 . 447 
 
 . . 271 
 
 6. 10 
 
 219, 324 
 
 57, 60 
 
 . . 295 
 
 . 573 
 
 . . 51 
 
 . 572 
 
 . . 496 
 
 53, 58, 323, 338 
 
 ,95,96,145,495 
 
 . . 548 
 
 323, 328 
 
 154, 224, 334
 
 NAMES OF CASES. 
 
 599 
 
 Kinaston v. Kinaston 
 
 V. kynaston 
 
 Kinder v. Miller 
 King V. Ballett 
 
 V. DenisoQ 
 
 V. Dupine 
 
 V. Kin^ 
 
 V. Weston 
 
 King, The, v. Allanson 
 V. Bell 
 
 PAGE. 
 
 40, 201 
 
 . . 43 
 
 . 493 
 
 . 149, 153, 320 
 
 . 40 
 
 . . 175 
 
 58, 358, 366, 378 
 
 . . 134 
 
 . 35 
 
 . 26, 27 
 
 V. Benson . .11 
 
 V. Blatchford . . 25 
 
 V. Boons, 11., Estate 26, 36 
 . 25 
 , 34 
 . 198 
 
 V. Bunney 
 
 • V. Burnett 
 
 V. Byron 
 
 V. Coombes . . 20 
 
 V. Cotton . .19 
 
 V. Cracroft . . 30 
 
 V. Curtis's Estate . 36 
 
 V, Dickenson . . 35 
 
 V. Dyer . . 30 
 
 V. G. Hassell's Estate . 36 
 
 V. Hopper . . . 31 
 
 V. Kynaston . . 26 
 
 V. Lambe 19, 23, 24, 31 
 
 V. Larking . 25, 26 
 
 V. Lushington . . 26 
 
 V. Marsh . .14 
 
 V. Parish of St. John, 
 
 Norwich . . .175 
 
 V. St. John . . 23 
 
 V. Shackle . 26, 27 
 
 V. Smith, (Wightw. 34) 
 
 20,21,25 
 
 V. Smith, (M'Clel. Rep. 
 
 417. n.Sugd. Vend. Append.) 23 
 
 V. Tarleton . 14, 25 
 
 V. Wade . 258, 259, 262 
 
 V. Wilton 
 
 Kings well ti. Cawdrey . 
 Kinnoul, Earl of, r. Money 
 Kinsey v. Hayward 
 Kirby v. Potter 
 Kiricke v. Bransby 
 Kirk V. Paulin 
 
 V. Webb . 
 
 Kirke v. Kirke 
 Kirkman v. Kirkman 
 V. Miles . 
 
 25, 26 
 
 . 135 
 
 360, 364 
 
 . 437 
 
 . 387 
 
 . . 39 
 
 164, 166, 167 
 
 . . 538 
 
 . 89 
 
 . . 466 
 
 . 209 
 
 . . 573 
 
 Kirvvane v. Blake 
 
 Kitchinman v. Bp. ofOssory 504,505,507 
 
 Kittley's Case 
 Knapp V. Williams 
 Knevett v. Pool 
 Knight V. Knight 
 
 V. Maclean 
 
 V. Mory 
 
 V. Earl of Plymouth 
 
 Knights V. Quarles . 
 
 145, 495 
 
 . . 350 
 
 187, 188 
 
 125, 126, 369, 373 
 
 . 572 
 
 . . 480 
 
 525 
 
 510 
 
 Kniveton v. lyathani 
 Knivet'sCase . 
 
 Knolles' Case 
 Knollys v. Shepherd 
 Knott, Ex parte 
 Knye v. INIoore . 
 Kynaston «>. Clark 
 
 PAGE. 
 
 . . 495 
 
 187, 188 
 
 . . 185 
 
 . 430 
 
 400, 406, 417, 418 
 
 . 281, 282 
 
 . 334 
 
 ■ V. Kynaston 
 
 43 
 
 Lacam v. Mertins 
 Lacon v, Brigg8 
 
 V. Mertins 
 
 Laing v. Stone 
 Lake v. Hales, or Hayes 
 Lambert v, Lambert 
 Lampen v. Clowbery . 
 Lampet's Case 
 Lampit v. Starkey 
 Lancaster v. Thornton 
 Land v. Devaynes 
 Landon v. Ferguson 
 Lane v. Goudge 
 Lane v. Wroth 
 Langford v. Gascoyne . 
 
 Langham v. Nenny 
 Langley v. Earl of Oxford 
 
 V. Sneyd 
 
 Langston, Ex parte 
 ' V. Dive . 
 
 V. OUivant . 
 
 Lanoy v. Duke of Athol 
 La Noy v. Duchess of Athol 
 Largan v. Bowen . 
 Lassells t'. Lord Cornwallis 
 Latham v. Atwood . 
 Laundy v. Williams 
 Launton's Case 
 Law V. Rigby . 
 Lawes v. Bennett . 
 Lawson's Case . 
 Lawson D.Hudson 89, 90, 91 , 
 
 V, Lawson 
 
 V. Stitch 
 
 V. Story 
 
 Leacroft v. Maynard 
 Leaper v. Tatton 
 Lechmere v. Brasier 
 V. Charlton 
 
 330, 334, 335, 364 
 . 51 
 
 Lee V. Brown 
 
 — V. D'Aranda and Cox 
 
 — V. Lee . 
 
 — V. JMunn . 
 
 — V. Vincent 
 
 Leeds, Duke of, v. Rlunday 
 Legastick v. Cowne 
 Legate i'. Pinchion 
 Legh V. Earl of Warrington 
 Le Grice v. Finch 
 
 . 183 
 
 561, 567 
 
 . . 456 
 
 . 386 
 
 . . 125 
 
 . 173 
 
 . . ib. 
 
 70, 82, 83 
 
 . . 385 
 
 . 282 
 
 . . 126 
 
 . 521 
 
 500, 513, 515, 
 
 523, 557 
 
 175, 178 
 
 . 486 
 
 . 69 
 
 . 9 
 
 240, 265 
 
 518, 558 
 
 336, 370, 371 
 
 . 336 
 
 300 
 
 . 149 
 
 186, 187 
 . 126 
 
 187, 189 
 . 294 
 , 183 
 . 574 
 
 109,360,361 
 
 89, 90, 360 
 
 122, 386 
 
 . . 302 
 
 92, 114 
 
 438, 439 
 
 7, 227 
 
 368, 371 
 
 . 497 
 
 . . 467 
 
 . 516 
 
 . . 566 
 
 . 72 
 
 , . 428 
 
 . 51 
 
 , . 548 
 
 59,63 
 
 121, 123
 
 600 
 
 NAMES OF CASES. 
 
 I'AGE. 
 
 Leigh V. Barry . . . 540 
 
 Leman v. Newnham . 360, 361 
 
 Lemun v. Fooke . . 276, 290 
 
 Lench v. Lench . . . 5 
 
 Lethbridge v. Chapman . . 437 
 
 Levet V. Needham . . 40, 207 
 
 Lewes v. Morgan . . . 573 
 
 Lewin v. Lewin . . . 386 
 
 V. Okeley . . .325 
 
 Lewis V. Nangle . . . 364 
 
 Liford's Case . . .187 
 
 Lightbourne v. Ilolyday . .176 
 
 Linch V. Cappy . . .516 
 
 Lincoln, Earl of, v. Allen . .512 
 
 Lindopp V. Eborall . . 38 
 
 Lindsey v. Anon . . . 138 
 Lingard v. Earl of Derby 39, 220, 22 1 , 378 
 Linghill, or Linghen, v. Broughton 506 
 
 Lingon v. Foley . . .39 
 
 Lister v. Lister . 175, 178, 181, 242 
 
 Lithgow V. Lyon 
 
 . 571 
 
 Littlehales v. Gascoyne 
 Littleton's Case 
 
 . 513 
 . 429 
 
 Littleton v. Cross 
 
 . 289 
 
 xj;ku:«- 
 
 . 502 
 . 432 
 
 Litton V, Falkland, or Russell 
 
 ■ V. Litton 
 
 . 139 
 
 Lloyd, Ex parte 
 Lloyd V. Baldwin 
 
 9, 10 
 . 48 
 
 V. Baldwyn 
 
 571,575 
 
 V. Carter 
 
 . 279 
 
 V. Crispe 
 
 V. Hatchett 
 
 . 481 
 572, 574 
 
 V. Maund 
 
 . 440 
 
 V. Tliursby 
 
 4, 6, 357 
 
 V. Williams 
 
 . 86, 575 
 
 Loane v. Casey 
 Lock V, Loggin 
 
 264, 268 
 
 . 72 
 
 Locton V. Locton 
 
 75, 79, 83 
 
 Loddinglon v. Kime 
 
 . 104 
 
 LoeflTes v. Lewen 
 
 . 277 
 
 Loftus' Case 
 
 . 170 
 
 V. Swift 
 
 . 389 
 
 Lomax v. Hide 
 
 . ih. 
 
 ^ V. Holmeden 
 
 . 37 
 
 Lowndes v. Collcns 
 Lowson i>. Copelaiid 
 Lowther v. Carleton 
 
 V. Condon 
 
 V. Lord Lowther 
 
 London, City of, v. Garway 
 Long V. Ciopton 
 
 V. Long 
 
 V, Short 
 
 V. Stewart 
 
 Longman v. Tripp 
 Longmore v. Broom 
 Lonsdale, Lord, v. Church 
 Loomes v. Stotherd 
 Lord V. Godfrey 
 
 V. Wormleighton 
 
 Love V. Honeybourne 
 
 V. L'Estrange 
 
 Lovel V. Lancaster 
 Lowe V. Mosely 
 
 . 202 
 
 . 407 
 
 . 115 
 
 . 382 
 
 12, 514, 517 
 
 . 184 
 
 . 512 
 
 . 570 
 
 . 272 
 
 519, 5J0 
 
 295, 303 
 
 . 536 
 
 . 126 
 
 42, 357 
 
 . 129 
 
 
 TAOE. 
 
 , 
 
 571, 
 
 575 
 
 495, 
 
 496, 
 
 516 
 
 401 
 
 ' 8£ 
 
 .9l", 
 
 128 
 491 
 
 • 
 
 338, 
 
 391 
 
 389 
 
 8 
 
 9 
 
 165 
 
 
 357 
 
 358 
 67 
 
 
 341*, 
 
 343 
 58 
 
 
 516 
 
 529 
 
 
 132 
 
 361 
 
 342 
 
 359 
 
 373 
 507 
 313 
 87 
 289 
 
 Lowthian v. Hassel 
 Lucam v. Mertins 
 Lucas V. Commerford 
 
 V. Dorrien 
 
 V. Lucas 
 
 Lucey v. Bromley 
 Lucy V. Bromley 
 
 V. Gardener 
 
 Lumley v. May 
 Luntley v. Royden 
 Lushington v. Sewell 
 Lutkins v. Leigh 
 Lutwich V. Hussey 
 Lyddall v. Dunlapp 
 Lypet V, Carter 
 Lyttleton v. Cross 
 
 Macarte v. Gibson . . 265 
 
 Macaulay v. Phillips . . 178 
 
 M'Cleland v. Shaw 40, 41, 42, 44, 45 
 M'Clure v. Dunkin . . 570 
 
 M'Cullock V. Dawes 443, 447, 449, 450 
 Machorro, or Machellan, v. Stonehouse 
 
 578 
 Mackenzie v. Marquis of Powis . 455 
 Mackreth v. Symmons . 343, 407 
 M'Lean v. Longlands . .165 
 
 M'Leod V. Drummond 475, 477, 485, 
 486, 487 
 M'Neilage v. Holloway . . 176 
 
 M'WiUiam's Case . . 549 
 
 Mackworth v. Thomas . . 572 
 
 Maddison v. Andrew . . 241 
 
 Mainwright v. Bendlow . . 43 
 
 Maitland v. Adair . 469, 470 
 
 V. Chalie . .126 
 
 Makeham v. Hooper . 349, 353 
 
 Mallabar v. Mallabar . 38, 40, 204 
 Mallocke v. Eastly . . 199 
 
 Maltby v. Russell . 285, 288 
 
 Manaton v. Manaton . . 375 
 
 Manderston v. Robertson . . 442 
 
 Mangey v. Hungerford . . 165 
 
 Maniove v. Bale . . 389 
 
 Mann v. Copland . . 386 
 
 Manning v. Herbert 107, 118, 119, 128 
 
 V. Spooner . 236, 378, 380 
 
 Mansell v. Mansell . . 404 
 
 Manton, or Munton, v. Sculthorpe . 441 
 
 IMapes V. Sidney 
 
 . 506 
 
 March v. Fowke 
 
 . 44 
 
 V. Lee 
 
 400, 407, 408 
 
 IMargrave v. Le Hook 
 
 . 394 
 
 Marks v. Marks 
 
 . 103
 
 NAMES OF CASES. 
 
 601 
 
 Mailow V. Pitfeiia 
 V. Smith 
 
 I'AGF,. 
 
 , 54 
 4-9 
 
 Marriott v. Thompson 2, 26i, 268, 269 
 Marrow «. 'I'urpin • - 315 
 
 Marsh t). Brace . 307,315 
 
 V. Hunter . . 518 
 
 V. Lee 399, 400, 407. 408, 4(iy, 
 
 410, 414 
 Marshall v. Blew . .161 
 
 V. Broadhurst . 530 
 
 V. Poole . . 568 
 
 V. Winder, or Wilder 302, 303 
 
 Martidale v. Martin . . 101 
 
 Martin v. G'obe . . 192 
 
 1;. Martin 291,293,295,296,299 
 
 v. Mowlia 194,425,430 
 
 . 266 
 . 409 
 . 37 
 . 422 
 . 153 
 . 321 
 . 128 
 . 278 
 
 V. Whipper 
 
 1. Wilks 
 
 V. Woodgate 
 
 Martinez v. Cooper 
 Marwood v. Turner 
 Masham, Lord, v. Harding 
 Mason v. Rlarshall 
 
 V. ^Vatkins 
 
 V. Williams 285, 286, 288, 293, 
 
 299, 502 
 Massam, Lord, v. Harding 
 Massey v. B^inner 
 JNIaster v. Fuller 
 Masters v. Masters 
 Rlaston V, Willoughby 
 Mathews v. Jones 
 
 V. Mathews 
 
 109. 
 
 321 
 
 526 
 
 579 
 
 344 
 
 . 108 
 
 . 224 
 
 . 461 
 
 . 373 
 
 . 150 
 
 . 279 
 
 400, 408 
 
 . 282 
 
 . 506 
 
 ,202 
 
 IVlatheson v. Hardwicke 
 
 Matthew v. Fitz-Simon . 
 
 V, Hanbury 
 
 Matthews i'. Cartwright 
 
 V. L e 
 
 Mature v. West 
 
 JNIaugham v. Mason 
 
 Maundrelh.,Maundrell405,415,417,418 
 
 2,269 
 . 309 
 . 140 
 . 506 
 . 126 
 . 161 
 . 548 
 . 67 
 475, 485, 486 
 . 180 
 . 407 
 . 402 
 . 138 
 . 505 
 . 305 
 . 180, 181 
 . 421 
 . 408 
 . 2 
 
 Mavor v. Davenport 
 Mawie I'. Cacyffer 
 Maxwell v. Ashe 
 May V. Alvares 
 
 y. Wood 
 
 Mayer v. Gowland 
 Maytin v. Hoper 
 Mead v. Hide 
 
 V. Lord Orrery 
 
 Medith v. Wynn 
 Medleton v. Shelleh 
 Medlicott v. O'Donel 
 Mellish V. INIellish 
 Mercer v. Brown 
 Merchant v. Driver 
 Meredith v. Wynn 
 Merewetht-r ?>. Shaw 
 Meskin u. Hickford 
 Metcalfe v. Rycroft 
 
 Meux, Ex parte . . 8 
 
 Meynell v. Garraway . 401 
 
 V, Howard 
 
 Michell V. Michell 
 
 Middleton «. Middleton . 42 
 
 V. Shelley 
 
 — > V. Spicer . 
 
 Milbourn v. Ewart . 
 Mildred v. Robinson . 292 
 Miles' Case 
 V. Leigh 58, 89, 91 , 92, 98, 
 
 104 
 Millar v. Horton . 
 Millard's Case . 
 
 Mills V. Eden 
 !\lilner v. INIilnes . 
 
 Milnes v. Slater 
 
 Minor v. Wicksteed . 86 
 
 Minuel v. Sarazine 
 Mitford V. Mitford 178, 180, 
 
 Mocatta v. Murgatroyd . 389 
 
 Mogg V. Hodges . 348 
 
 Mole V. Smith . 405, 415 
 
 Bloleswortii v. Molesworth . 126 
 Monger v. Kelt . 390 
 
 JMonkhouse v. Holme 
 Montfort, Lord, v. Lord Cadogan 
 Montgomery, Lady, v. Bridge 571 
 Moody V. Matthews . 140 
 
 Moor's, Sir E. Case 
 Moor V. Farrand 
 Moore v. Bray . 
 
 V. McNamara 
 
 V. Earl ofMeath 
 
 More's Case . .78 
 
 More V. Mayhow . . 401 
 
 Morecock v. Dickins 
 
 Mores v. Huish 
 
 Morgan, Ex parte . 69, 89, 133 
 
 • V. Gardiner 
 
 V. Morgan 135, 138 
 
 — ■ ■ V Lord Sherrard 
 
 Morley v. Bird 
 
 V. Morley » 
 
 Morony v. O'Dea 
 Mora nt v. Gough 
 Morret v. Paske 390, 406, 407 
 
 414 
 Morrice v. Bank of England 283, 
 292, 293, 294 
 Morris v. Clarkson 
 n. Dillingham 
 
 Morrow v. Bush 
 Morse v. Langham 
 Mortimer v. West 
 Morton, Ex parte 
 Mosley v. Ward 
 Moss V. Gallimore 
 Mould V. Williamson 
 Moule V. Moodic 
 
 44, 67 
 . 51 
 . 112 
 
 129 
 308 
 
 AOF. 
 
 422 
 402 
 358 
 
 43 
 159 
 407 
 353 
 268 
 293 
 175 
 103, 
 129 
 223 
 401 
 333 
 176 
 359 
 131 
 460 
 181 
 421 
 373 
 420 
 128 
 393 
 126 
 
 12 
 576 
 171 
 366 
 478 
 505 
 572 
 359 
 478 
 403 
 408 
 578 
 428 
 128 
 139 
 318 
 384 
 498 
 389 
 218 
 413, 
 423 
 291, 
 340 
 
 38 
 138 
 376 
 454 
 113 
 485 
 514 
 187 
 219 
 309
 
 G02 
 
 NAMES OF CASES. 
 
 Mounson v. Bourne 
 Mountford v. Scott 
 ■ V. Willes 
 
 PAGE. 
 
 . 301, 305 
 . 10 
 . 562 
 
 Mountfort, Ex parte . 8, 9 
 
 Mountstephen v. Brooke . 437, 440 
 Mucklow V. Fuller 513, 539, 558 
 
 Muddle V. Fry . . 58, 88 
 
 IMurray v. East India Company 436,661 
 Murrell v. Cox . . 545 
 
 JVhisson V. May 
 Mutts V. Kancie 
 
 Nanney v. Martin . 
 Nannock v. Horton 
 Nash V, Nash 
 Neal's, Sir Paul, Case . 
 Neal V. Attorney General 
 Neale v. Willis 
 Neave v. Alderton . 
 Necton, or Nector and 
 
 Gennet 
 Needier v. Wright 
 Negus V. Coulter . 
 Nelson v. Nelson . 
 Neve V. Weston 
 Newby v. Cooper . 
 Newell V. Ward 
 Newis V. Lark 
 Newman v. Auling 
 Newman v. Johnson 
 
 ■ V. Kent 
 
 — V. Newman 
 
 Newport v. Godfrey 
 Newton v. Bennet 70 
 Nichol V, Thompson 
 Nicholas v. Southwell 
 
 Nicholls V. Crisp 
 
 V. Judson 
 
 V. Leeson 
 
 Nichols V. Chamberlain 
 Nicholson v. Sherman 
 Nightingale v. Lockman 
 Nightingall v. Devisme 
 Nisbett V. Murray . 
 Noel V. Lord Henley 
 
 V. Robinson 
 
 V. Weston 
 
 Noell V. Nelson 
 Noke V. Darby 
 Norbone's Case , 
 Norbury ik Norbury 
 Norden v. Levit, or Leven 
 Norfolk's, Duke of. Case 
 Norman v. Morrell, 342, 
 Norris v. Harrison 
 
 V. Norris . 
 
 V. Wilkinson 
 
 North V. Crompton 
 Northcote v. Duke 
 
 2, 3, 265, 276 
 . 476 
 
 177, 292, 293 
 
 . 141 
 
 . 176, 178 
 
 . 166 
 
 . 575 
 
 125, 126 
 
 . 335 
 
 Sharp, V. 
 
 496, 551, 554 
 
 . 404 
 
 350, 351, 383 
 
 . 109 
 
 . 294 
 
 . 393 
 
 . 68 
 
 . 101 
 
 . 138 
 
 . 57, 58 
 
 . 118 
 
 . 51 
 
 . 283 
 
 325, 338, 513 
 
 . 568 
 
 162, 354, 374, 
 
 381, 382 
 
 . 204 
 
 . 462, 464 
 
 134, 135, 184 
 
 . 149, 150 
 
 . 485 
 
 . 179 
 
 . 175 
 
 . 384 
 
 357, 360, 367 
 
 . 236 
 
 . 67 
 
 . 302 
 
 . 42 
 
 . 180, 181 
 
 . 519 
 
 . 503 
 
 . 98 
 
 343, 344, 359 
 
 . 385 
 
 342, 359 
 
 . 11 
 
 40, 205 
 
 . . 479 
 
 Northey v. Northey 159, 160, 
 
 Norton v. Acklane 
 
 V. Frecker 
 
 V. TurviU 549, 578, 
 
 Nottingham v. Jennings 
 
 Noy V, Ellis, or Besustane & E 
 
 Noys V. JMordaunt 
 
 Nugent V. Giftord 322, 476, 
 
 Nunn V. Barlow . 
 
 Nutt, Ex parte . , 
 
 Nye V. Moseley . . 
 
 PACE, 
 
 161, 162, 
 164, 354 
 
 . 316 
 
 . 450 
 580, 582 
 . . 104 
 llis . 193 
 
 . 194 
 485, 486 
 . . 264 
 528, 529 
 
 . 281 
 
 O'Donel v. Browne . 135, 139 
 
 Offleyw. Offley . 159,166,259 
 
 Oglander v. Baston . 176, 177 
 
 Oke V. Heath . . .120 
 
 Gland's Case, or Gland u.Burdwick 98, 
 187, 192 
 OJdfield V. Oldfield . . 130 
 
 Oldham v. Litchford, or Litchfield . 132 
 
 V. Pickering 
 
 Oliver V. Brighouse, or Brickland 
 Oliviere v. Vernon 
 Omerod v. Hardman 
 Oneal v. Mead 
 
 Onslow V. South 
 Ord V. Fenwick 
 
 — V. Ord 
 Ordwey v. Godfrey 
 Orme v. Smith 
 Orr V. Kaines 
 
 — V. Newton 
 
 151 
 
 466 
 
 200 
 
 . 48 
 
 359, 382 
 
 . . 125 
 
 . 531 
 
 127, 129, 346 
 
 . 502 
 
 . . 123 
 
 . 547, 548 
 
 496, 557 
 
 Osbaston, or Osberston, v. Stanhope, 153 
 Osborne's Case (Anon. v. Osborne). 538 
 Oswald V. Legh . . .51 
 
 Otway V. Ramsay . 34, 502, 557 
 Oughterlony v. Earl Powis . 51 
 
 Overton v. Sydal . 307, 314 
 
 Owen V. White . .184 
 
 Oxenden v. Lord Compton . .152 
 Oxford, Earl of, v. Lady Rodney 362, 
 
 363 
 Oxwick V. Brockett . . 416 
 
 Pack V. Bathurst . . . 149 
 
 Packer u. Wyndiiam . 171,172 
 
 Page V. Hayward . 100, 101 
 
 V. Leapingwell . . . 384 
 
 V, Newman . 564, 566 
 
 Pagett V. Hoskins . . 487 
 Paice V. Archbp. of Canterbury 350, 353 
 
 Pale V. Michell . . .172 
 
 Palmer v. Mason . 374, 379 
 
 V. Maysent . . . 374 
 
 V. Palmer . . .130 
 
 V. Trevor . 163, 497 
 
 Pannel v. Fenn . . 475, 500 
 
 Parker v. Atficld . . . 547
 
 NAMES OF CASES. 
 
 603 
 
 Parker v. Blylliinore . 
 
 V. Dee 
 
 V. Fearnley 
 
 V, Harvey 
 
 V. Hutchinson 
 
 V. Wilcox 
 
 Parkes v. White . 
 
 Parlet v. Cray 
 
 Parrot v. Treby 
 
 Parrott v. Worsfold 
 
 Parry v. Ashley . . 
 
 V. Harbert 
 
 V. Herbert 
 
 V. W^ right 
 
 Parsons v. Freeman 
 
 v. Hancock 
 
 Parten v. Baseden . . 
 
 Partridge v. Partridge . 
 Parleriche v. Powlet 
 Paschall v. Thurston 
 Paterson v. Huddleston 
 Patton V. Randall . 
 
 Paule V. Moodie 
 Pawlet's Case 
 Pawlet, Lord, v. Parry 
 Pawlett V. Attorney General 
 
 Lady, v. Lord Pawlett 
 
 Pawsey v, Edgar 
 Paxton V. Douglas 
 Pay's Case 
 Pearce v. Loman, or Taylor 
 
 V. Nevvlyn 
 
 Peacock v. Glascock 
 ^— — V. Monk 
 Pearly v. Smith 
 Pearse, Ex parte 
 
 V. Green . 
 
 Pearson u. -Henry 
 
 V. Rlorgan 
 
 Pease t). Hirst 
 Peat V. Crane 
 Peeres v. Bellamy 
 Peers v. Baldwin . 
 Pemberton v. Barham 
 Pembroke, Earl of, v, Berkley 
 
 PAGE. 
 
 . . 403 
 
 242, 287 
 
 . . 96 
 
 4, 354, 369 
 
 571, 575 
 
 . . 64 
 
 . 577 
 
 . .199 
 
 . 512 
 
 384, 386 
 
 142, 498 
 
 478, 480 
 
 , 480 
 
 . . 420 
 
 357, 362 
 
 . . 549 
 
 . 473 
 
 122, 386 
 
 . . 364 
 
 . 177 
 
 . 288 
 
 . . 79 
 
 . 303 
 
 121,123 
 
 86, 94 
 
 193 
 
 127 
 
 128 
 
 294, 295, 298, 300 
 
 . 104 
 
 Penne v. Peacock 
 Penner v. Jemmatt 
 Pennington v. Beechey 
 V. Pennino;ton 
 
 129, 346 
 
 , . 404 
 
 . 43 
 
 166,386 
 
 . 140 
 
 . . 10 
 
 . 512 
 
 504, 536 
 
 . 421 
 
 . . 442 
 
 519, 520 
 
 . . 456 
 
 . 390 
 
 . 275 
 
 . 98 
 
 V, Bowden . 149 
 
 577, 578 
 
 . 422 
 
 Peploe V. Swinburn 
 Perham v. Raynal 
 Perkins v. Bayntun 
 Perkyns v. Bayntun 
 Perrat v. Ballard 
 Perry v. Perry 
 
 V. Phelips 21 1, 283, 292, 293, 266, 
 
 299 
 Peter v. Russell . . 422 
 
 Peterborough, Bishop of, v. Mortlock 387 
 
 403 
 57 
 293 
 441 
 513 
 359 
 401 
 468 
 
 Petre, Lord, v. Ileneage 
 Pettifer's Case 
 Pettiward v. Pettiward 
 Petts, or Potts, v. Lee 
 Pheasant v. Pheasant . 
 Philips V. Echard . 
 
 : V.Nicholas 
 
 V. Paget 
 
 V. Philips 
 
 V. Sackford 
 
 V. Vaughan 
 
 Phillips V. Bacon . 
 
 ■ — V. Bignell 
 
 V. Lee 
 
 V. Phillips 
 
 V. Shaw 
 
 Philpot V. Briant 
 Phipps V. Annesley 
 
 V. Lord Mulgrave 
 
 Pickering v. Lord Stamford 
 Pierce v. Snaveling 
 Piety V. Stace 
 Pilfold's Case 
 Pilkington v. Cuthbertson 
 Pinhorn v. Tuckington 
 Pinney v. Pinney 
 Pinock V. Willett . 
 Pistor V. Dunbar 
 Pitt V. Hunt 
 
 V. Pelham 
 
 V. Raymond 
 
 Pittam V. Foster 
 Plasket V. Beeby 
 Player v. Foxhall 
 Plucknet v. Kirk 
 Plumb V. Fluitt 
 Plume V. Plume 
 Plumer v. JVIarchant 
 Plunket V, Holmes 
 V. Penson 
 
 Pockley v. Pockley 
 Pocock V. Lee 
 
 PAGE. 
 
 . . 196 
 
 . 305 
 
 . . 123 
 
 , 164 
 
 . . 178 
 
 . 557 
 
 . . 43 
 
 . 497 
 
 357. 359, 373 
 
 . 506 
 
 . . 407 
 
 . 302 
 
 . . 256 
 
 . 283 
 
 . . 150 
 
 . 25 
 
 . . 504 
 
 41, 89, 90 
 
 . 127 
 
 . 350 
 
 . 387 
 
 514,516 
 
 , 302 
 
 . 163 
 
 . 569 
 
 474, 477 
 
 562, 565 
 
 496, 497, 498 
 
 . 172 
 
 75, 79, 83 
 
 . 374 
 
 . . 441 
 
 . 219 
 
 . . 272 
 
 . 149 
 
 8, 408, 422 
 
 . 461 
 
 2,3,264,269,368 
 
 . . 104 
 
 69, 149, 220, 274, 
 
 318, 321, 327,338 
 
 . 357, 358, 362 
 
 . 364 
 
 1;. Reddington . 514,516,517 
 
 Pollexfen v. Moore . 5, 343 
 
 Pomfret, Earl of, v. Lord Windsor 397, 
 
 398,399, 417 
 
 Poole V. Attorney General . . 32 
 
 V. Dudley . . .411 
 
 V. Harrington . 257, 581 
 
 Pooley V. Gilbert . . . 507 
 
 V. Ray . . . 534 
 
 Pope V. Garland . . . 65 
 
 V. Gwyn . . 318, 323 
 
 V. Onslow . . . 394 
 
 Popham V. Bampfield . . 108 
 
 V. Hobert . . . 49 
 
 Popley V. Popley . .357, 358 
 
 Porey v. Marsh . . 335, 336 
 
 Porter v. Bille . . 373, 506
 
 604 
 
 NAMES OF CASES. 
 
 Porter v. Palsgrave 
 Povye's Case 
 Powell's Case 
 Powell V. Evans 
 V. Robins 
 
 Power V. Bailey 
 Powis V. Corbet 
 Powlet, Earl, r. Herbert 
 Prat V. Phanner 
 Pratt V. Swaine 
 Prattle v. King 
 Preston v. Holmes 
 Price, Ex parte 
 
 V. Fastnedge 
 
 V. Morgan 
 
 V. Seys 
 
 • V. Varney 
 
 Priest V. Parrot 
 Primrose v. Bromley 
 Prince v, Nicholson 
 
 V. Rowson 
 
 Probert v. Clifford 
 V. Morgan 
 
 64, 65, 
 374, 376, 
 
 354, 
 129, 
 
 Prowse V. Abingdon 
 Puckering v. Johnson 
 Pullen V. Ready 
 
 V. Smith 
 
 Pulsford V. Hunter 
 Pulteney v. Earl of Darlington 
 Purdew v. Jackson 
 Purefoy v. Purefoy 
 
 V. Rogers 
 
 Purse V. Snablin, or Snaplin 
 
 Putnam v. Bates 
 
 Pybus V. Smith 
 
 Pye V. Gorge 
 
 Pyne v. VVoolland . 
 
 PAGF.. 
 
 . 568 
 
 . 329 
 
 . 139 
 
 495, 496 
 
 219, 334 
 
 . 578 
 
 38 D, 391 
 
 < 517 
 
 . 278 
 
 . 436 
 
 . 144 
 
 . 104 
 
 . 8 
 
 391, 392 
 
 . 500 
 
 . 39 
 
 412,413 
 
 . 281 
 
 . 2 
 
 . 289 
 
 266, 270 
 
 355, 374 
 
 354 
 
 321,346 
 
 358 
 
 211,212 
 
 549 
 
 126, 384 
 
 . 213 
 
 176, 180 
 
 394 
 
 104 
 
 . 387 
 
 227 
 
 577, 578 
 
 . 404 
 
 . 271 
 
 Queen, The, Coxhead, and Bishop of 
 
 Sarum's Case • . 20 
 
 Quick V. Staines . . 496 
 
 Quidihy v. Kelly . . 279 
 
 Quintine v. Yard . . 132 
 
 Rachfield v. Careless . . 539 
 Radnor v. Vandebendy . . 405 
 
 Rafter v. Stock . .130 
 
 Ragg V. Wells . . 302 
 
 Raggett V. Clerke . . . 151 
 
 Ramsay's, Abbot of. Case • 25 
 R.amsdeu v. Jackson 277, 304, 305, 548 
 
 V. Langley . . 389 
 
 Randal v. Hearle , .241 
 
 Randall v. Bookey . . 202 
 
 Ranking v. Barnard . . 469 
 
 Rann v. Hughes . 504, 505 
 
 Raphael D. Boehm . . 515 
 
 Rashleigh ?'. Masters . .211 
 
 Ratcliffe ". Graves . 513, 516 
 
 Ranson v. Suchcverel . 364, 389 
 
 Raw V. Pote, or Potts 
 Rawe V. Chichester 
 Rawlings v. Jennings 
 Rawlins v. Burgis 
 V. Powel 
 
 PAGE. 
 
 . 421 
 . 323 
 . 175 
 
 . 183 
 462, 464 
 167 
 183, 323, 483 
 386 
 364, 389 
 270 
 161, 163 
 . 42 
 
 Ray, Ex parte 
 
 Ray u. Ray 
 
 Raymond v. Brodbelt 
 
 Rayson v. Sacheverel 
 
 Read's Case 
 
 Read V. Snell 
 
 Reade v. Litchfield 
 
 Reading v. Rawsterne, or Royston 105 
 
 Rede v. Bereblock . . 556 
 
 Reech v. Kennegal 460, 504, 505 
 
 Reeves v. Brymer . • 469 
 
 V. Newenham . . 67, 133 
 
 Reid V. Shergold . . 579 
 
 Remnant v. Bremridge . .310 
 
 Rendeli v. Carpenter . 440, 454 
 
 Rennell v. Bishop of Lincoln 153, 240 
 Renvoize v. Cooper . 425, 428, 430 
 
 . 30 
 . 581 
 . 2 
 . 30 
 . 36 
 . 30 
 . ib. 
 . 21 
 . 30 
 . 26 
 , 344 
 . 42 
 . 581 
 . 127 
 308,309,314 
 , 197 
 
 Revel V. Watkinson 
 Rex V. Adam 
 
 V. Bettesworth 
 
 V. Bingham 
 
 V. Blunt 
 
 V, Boon's Estate 
 
 V. Boyd 
 
 V, Bulkeley 
 
 V, Hollier 
 
 V. IMarsh 
 
 V. Williams 
 
 Reynish v. Martin 
 Rhodes v. Rudge 
 Rich V. Cockell 
 
 V. Wilson 
 
 , Lord, V. Frank 
 
 Richards v. Lady Bergavenny 
 
 V. Borrett 
 
 V. Richards 
 
 Richardson, Ex parte 
 
 V. Brown 
 
 V. Dowdale 
 
 V. Elphinstone 
 
 V. Greese 
 
 384, 385 
 
 532, 533 
 
 384, 386 
 
 145, 235 
 
 468 
 
 461,464 
 
 89,92 
 
 . 537 
 
 175 
 
 122, 358, 359 
 
 349, 353 
 
 . 548 
 
 Rickets v. Ladley 
 Riddell V. Sutton 
 Rider v. Kidder 
 
 V. Wager 
 
 Ridges V. Morrison 
 Ridout V. Bristovv 
 
 V. Earl of Plymouth 39, 159, 162, 
 
 164, 354, 355 
 Rigbie's Case . .132 
 
 Rigby V. Macnamara . . 571 
 
 Right i>. Bucknell . 408,415 
 
 Rightson r. Overton . . 193 
 
 Ripley v. Watervvorth . 151, 183 
 Ritchie v. Broadbunt . . 577
 
 NAMES OF CASES. 
 
 G05 
 
 r.\OK. 
 Roberts ?). Kuffin, or Kyffyn . 431 
 V. Pocock 121, 122, 123 
 
 V. Roberts 
 
 llobins V, Cope 
 
 V. Cox 
 
 Robinson v. Bell 
 
 V. Bland 
 
 V. Cox 
 
 V. Cumming 
 
 V. Davison 
 
 . 548 
 
 . 460 
 
 . 185 
 
 147, 301, 5-48 
 
 . 567 
 
 279, 280 
 
 138, 264, 265 
 
 400, 407 
 
 V. Gee 281,312,358,359,364, 
 366 
 . 236 
 . 548 
 40, 202 
 153,275,285, 287, 
 337, 496 
 Robson V. Anon . 537, 548 
 
 V. Fiancis . . 276 
 
 Rock V. Layton, or Leighton 305, 548 
 Rocke V. Hart . 512, 514 
 
 Rockingham, Lord, v. Penrice . 185 
 
 — V. Noel 
 
 — V. Saville 
 
 — V. Taylor 
 
 — V. Tonga 
 
 V, Oxenden 
 
 Roden v. Smith 
 Rodenhurst v. Tudman 
 Roe V. Harrison 
 
 V. Jones 
 
 • V. Reade 
 
 V. Soley . 
 
 Roebuck v. Dean , 
 
 Rogers v. Price . 
 
 V. Rogers 
 
 v. Seale 
 
 V, Skillikorne 
 
 Ronalds v. Fellham 
 Rook V. Clealand 
 
 V. Sheriff of Salisbury 
 
 Roper u.-Radcliffe 
 Rose V. T3artlett 
 V. Conynghame 
 
 Roskelley v. Godolphin 
 
 Round V. Kello . 
 
 Roundell i'. Breary 
 
 Roupe V. Atkinson 
 
 Rowcroftu. Lornas 
 
 Rowe V Beavis 
 
 Rowland v. Lee . 
 
 Rowley v. Eyton 
 
 V, Lancaster 
 
 Rowney's Case 
 
 Rowth V Howell 
 
 Royston v. Cordyre 
 
 Rucker v. Hannay . 
 
 Rudyard v, Neirin . 
 
 Rudyerd v. Nerne . 
 
 Rush V. Higgs . 
 
 Russel's Case 
 
 Russell V. Haddock 
 
 V. Moseley 
 
 r. Russell 
 
 . 185 
 
 . 126 
 
 . 300 
 
 479, 482 
 
 . 173 
 
 , 69, 428 
 
 . 394 
 
 . 126 
 
 . 261 
 
 40, 205 
 
 . 401 
 
 . 48 
 
 57,61 
 
 . 154 
 
 . 548 
 
 . 39 
 
 . 431 
 
 68, 110, 111 
 
 263, 268 
 
 154, 156 
 
 . 3 
 
 . 172 
 
 . 439 
 
 . 377 
 
 . 72 
 
 57, 69 
 
 . 126 
 
 190, 191 
 
 . 526 
 
 309. 310 
 
 438, 440 
 
 178, 181 
 
 ib. 
 
 295, 300, 304 
 
 . 495 
 
 . 505 
 
 . 504 
 
 .6,8 
 
 Ryall V. Ryall 
 Ryder v, Bickerton 
 Ityves V, C!olfcman 
 
 PACK. 
 
 149, 493 
 513,517 
 516, 571 
 
 Sacheverell V. Frogate . .185 
 
 Sackford v. Phillips . . 506 
 
 Sackvill V. Evans 308, 309, 314 
 
 Sadd V. Carter . .116 
 
 Sadler v. Hobbs 522, 539, 540, 543, 558 
 
 V. Turner . . 386 
 
 Sagitary v. Hide . . .333 
 
 Saint John v. tlolford . . 389 
 
 u. VVareham, orGrabham 192 
 
 Salisbury, Earl of, v. Newton . 177 
 
 Salkeld v. Vernon . .178 
 
 Salter v. Codbold 307, 309, 310 
 
 Salwey v. Salwey 168, 169, 176, 181, 525 
 Sammes v. Rickman . . 512 
 
 Samwell v. Wake . . 42, 44 
 
 Sanders v. Deligne 402, 404, 414 
 
 V. Marke 
 
 V. Page 
 
 Sandys, Lord, v. Sibthorp 
 Sanderson v. Wharton 
 Sarell v. Wine 
 Saunders v. Dehew 
 
 V. Graves 
 
 V. Wakefield 
 
 Savage v. Carrol 
 — — — V. Foster 
 
 V. Humble 
 
 Savile v. Blackett 
 Saward v. Anstey 
 Sawyer v. Mercer 
 Sayer v. Sayer 
 Scales V. Jacob 
 Scarle's Case 
 Scot V, Scot 
 Scott V, Beecher 
 
 V. Scholey 
 
 V. Scott 
 
 V. Tyler 
 
 Scovell V. Covell 
 Scrogs V. Gresham 
 Scudamore v. Hearne 
 
 . 368 
 . 172 
 . 184 
 . 64 
 . 441 
 . 404 
 . 277 
 . 504 
 . 183 
 . 421 
 475, 486 
 122, 123 
 
 135, 136, 139 
 
 288, 502 
 
 . 385 
 
 438, 439, 440 
 
 287, 288, 501 
 
 . 98 
 
 . 361 
 
 . 149 
 
 105,334, 341,342 
 
 475, 476, 487 
 . 507 
 . 34 
 . 284 
 
 V. Scudamore 
 
 . 211 
 
 Scurfield v. Howes 12, 126, 539, 540, 
 541, 542 
 
 Seal V. Tichener 
 Seaman v. Dee 
 Searle v. Lane 
 Secar v. Atkinson 
 Seers v. Hind 
 Selby V. Selby 
 Senhouse v. Earl 
 Sergison, Ex parte 
 Serle v. St. Eloy 
 Seymore v. Tresilian 
 Seymour v. Trevilyan, 
 Shafto V. Powel 
 
 90, 91, 128 
 
 495, 496 
 
 293, 5G2 
 
 505 
 
 478,513,515 
 
 337, 348 
 
 401 
 
 . 428 
 
 360, 366 
 
 159, 161, 164 
 
 159, 161 
 
 283, 293, 502
 
 606 
 
 NAMES OF CASES. 
 
 I'ACE 
 
 Shafto V. Shafto . . 361 
 
 SliaCtsbury, Earl of, v. Countess of 
 
 Shaftsbuiy . . 164,385 
 
 Shakeshaft, Ex parte . 517, 545 
 
 Shallcross v, Findea . 57, 58, 61 
 Shanley v. Baker . . 349 
 
 Sharps. Pool . . .169 
 
 Sharpe v. Far! of Scarborough 318, 326, 
 
 572 
 Shaw V. Norton . .108 
 
 V. Picton . . . 562 
 
 Shawe's Case . . 102 
 
 Shawe v. Huntley . . 144 
 
 Sheddon u. Goodrich 112, 113, 132, 133, 
 
 205 
 Shelley's Case, (1 Salk. 296, Cas. T. 
 
 Holt, 305) . . 146, 548 
 
 Shelley v. Sackvill . . 265 
 
 Siielly's Case, or Medlelon v. Shelleh 407 
 
 Shellitoe v. Horsefall 
 Shepherd v. Kent 
 
 V. Titley 
 
 Sheppard v. Kent 
 Sherley v. Fagg 
 Sherman, Ex parte 
 V, Collins 
 
 Cox 
 
 51 
 . 6, 294, 299 
 
 . 406 
 
 294, 299 
 
 401,403, 404 
 
 . 8 
 
 107, 108, 119, 120, 
 
 128 
 
 . 407 
 
 Shermer ii. Robbins and Cox . 407 
 
 Shetelworth v. Neville . 272, 273 
 
 Shipbrook, Lord, v. Lord Hinch- 
 
 inbrook 
 Shipliard v. Lutwidge 
 Shipley's, JMary, Case 
 Shipton V. Hampson 
 Shirley v. Lord Ferrers 
 
 V, Earl Ferrers 
 
 Shirt V. Westby 
 Short V. Hubbard . 
 
 V. Long 
 
 V. INIcCarthy 
 
 Showell V. Coledrop 
 Shrapnell v, Blake 
 Sliute V. Mallory 
 Shutt V. Procter 
 Shuttleworth v. Laycock 
 Sibley v. Perry 
 Sibthorp v. Moxom, or Moxton 469, 470 
 Siddon v. Charnells . 401, 403 
 
 Silberschildt v. Schiott 425, 432 
 
 Silkw. Prime 222, 263, 271, 274, 317, 
 320, 321, 322, 324, 325, 378, 382 
 Silvester iJ. J arman . . 428 
 
 Simmons v. Bolland . . 552 
 
 V. Guttridge . . 149 
 
 V. Vallance . . 386 
 
 Simms v. Barry . . 293 
 
 Simpson v. Titterell . . 98 
 
 ■ V. Vickers . 101, 108 
 
 Sims V. Urry . . 293 
 
 540, 546 
 
 220, 322 
 
 301, 303 
 
 162, 164 
 
 . 149 
 
 . 575 
 
 89, 130 
 
 . 135 
 
 . 382 
 
 . 434 
 
 . 283 
 
 390, 391 
 . 135 
 . 570 
 
 391, 394 
 141, 386 
 
 Sirdefield v. Price 
 Sish V. Hopkins 
 Skele V. ArnoU 
 Skelton v. Hawling 
 Skey V. Barnes 
 Skipp V. Wyatt 
 Skirne v. Bond 
 Skrogs V. Gresham 
 Slack V. Lowell . 
 Slanning v. Style 
 
 PAGE. 
 
 . 456 
 
 395, 420 
 
 . 191 
 
 305, 548 
 . 126 
 . 389 
 . 100 
 . 34 
 . 567 
 165, 166, 167, 460, 
 463 
 
 Slater v. Lawson . . . 443 
 
 Sleddall v. Bowerbank . . 264 
 
 Sleech v. Thorington . 384, 386 
 
 Smart w. Prujean . .110 
 
 Smartle v. Williams 
 Smith's Case 
 Smith V. Angell . 
 
 V. Alterley 
 
 V. Avery 
 
 — — V. Claxton 
 
 V. Davis 
 
 V. Eyles 
 
 V. Fitzgerald 
 
 V. Guyon 
 
 V. Parker 
 
 V. Smoult 
 
 V. Triggs 
 
 Smithson v. Thompson 
 
 Sneed v. Lord Culpepper 
 
 Snelson v. Corbet 162, 334, 354, 355, 375 
 
 Snelling's Case, or Snelling v. 
 
 Norton . . . 284 
 
 Snelling v. Squib . . 402 
 
 Snook V. Mears . . . 439 
 
 Soam V. Bowden . . 277 
 
 Solley V. Gower . . 149, 328 
 
 Soresby, or Sorresby, v. Hollins . 347 
 Southern v. Bellasis . 140, 185 
 
 . 2 
 
 . 506 
 
 . 153, 154 
 
 . 105, 117 
 
 . 127 
 
 203, 204, 208, 210 
 
 . 146, 258 
 
 283, 289, 292, 299 
 
 . 122 
 
 . 48, 49 
 
 . 154, 156 
 
 192, 193 
 
 . 103 
 
 . 398 
 
 , 331 
 
 Southouse V. Bate 
 Sowarsby v. Lacy 
 Sowden v, Sowden 
 Spalding ?). Shalmer 
 Spears v. Hartly 
 Spencer's Case 
 Sperling v. Toll 
 Spicer v. Hay ward 
 Spink V. Lewis 
 Spittle V. Davies 
 Spode V. Smith 
 Spong V. Spong 
 Springnall v. Delawne 
 Spurway v. Glynn 
 Squib V. Wyn 
 Squibb v. Chicheley 
 Stacpoole v. Stacpoole 
 Stafford v. Horton 
 
 V. Selby 
 
 Stag V. Punter . 
 Staggers v. Welby 
 
 . 40 
 . 118 
 . 3 
 48, 49, 540 
 . 439 
 . 190 
 . 211 
 . 281 
 . 204 
 100, 101 
 497, 513 
 . 89 
 263 
 124 
 179 
 . 122 
 . 515 
 . 384 
 . 419 
 . 259 
 51, 447 
 
 91 
 176
 
 NAMES OF CASES. 
 
 607 
 
 Starape v. Hutchins 
 Stamper v. Barker 
 Standford v, JNIarshall 
 Stanger v. Tryon 
 Stanhope v. Earl Verney 
 Stanley v. Darington 
 
 ■ »). MandesleyS 
 
 V. Potter . 
 
 PAGE. 
 
 . 240, 266 
 . 180 
 . 578 
 57, 60 
 414, 416, 417 
 . 521 
 . 193 
 . 122 
 
 Stanton V. Sadler 399.408,414,415 
 Stanway v. Styles 160, 166, 460, 463 
 Stapleton v. Cheales, or Cheele . 125 
 
 v.Colvile . 41,43,70,82 
 
 • V.Conway . . .138 
 
 V. Stapleton 41, 44, 58, 67 
 
 Starkey v. Brooks . . . 202 
 Starling v. Drapers' Company . 357 
 Stasby v. Powell , . . 265 
 Steed u.Cragh . . .170 
 Steele v. Rocke . 275, 282, 502 
 Stephenson v. Heatlicote 42, 44, 45, 47 
 V. Wilson . 
 
 Sterndale v. Atkinson 
 Stewart v. Lord Blaney 
 
 V. Noble 
 
 V. Rumball 
 
 V. Tichborne 
 
 Stewkley v. Henley 
 Stiddolph V. Leigh 
 Stile V. Tomson 
 Stileman v. Ashdown . 
 Stiles V. Attorney General 
 Stirling v. Lydiard 
 Stokes V. Porter 
 
 V. Verrier 
 
 Stonehouse v. Evelyn 
 
 V. Ilford 
 
 Story V. Lord Windsor 
 Strafford, Earl of, v. 
 
 worth 
 Street v. Wise . 
 Streete v. Beale 
 Strickland v. Garnet 
 Stringer v. New 
 Strode v. Blackburne 
 V. Ellis 
 
 301 
 
 . 457 
 
 513,516 
 
 4, 575 
 
 . 572 
 
 . 6 
 
 . 194 
 
 . 485 
 
 . 76 
 
 . 395 
 
 277, 278 
 
 . 386 
 
 270, 474 
 
 . 193 
 
 . 202 
 
 264, 265, 283 
 
 . 401 
 
 Lady W^ent- 
 
 . 185 
 
 . . 301 
 
 98, 108 
 
 . . 128 
 
 . 156 
 
 . 403 
 
 89, 92, 121 
 
 V. Falklaad, or Russel . 432 
 
 Strutt, Ex parte . . , 512 
 
 Stuart's Sir S., Case . . . 6 
 
 Stuart V. Lord Kirkwall . 578, 579 
 
 Stubbs V. Roth . . . 140 
 
 V. Stubbs . 57, 162, 354 
 
 Sturgess v. Pearson . . . 126 
 Sturgis V. Corp . . , 578 
 Sturt V. Mellish . . . 455 
 Styles V. Attorney General . 573 
 Sumner v. Kelley . . . 400 
 Sumpter v. Cooper . . . 8 
 Surrey v. Smalley . . . 296 
 Sutton V. Mashiter . 296, 313, 369 
 1>. Sharp . , . 515 
 
 
 PAGE. 
 
 Swann v. SowcU 
 
 . . 439 
 
 Swannock v. Lyford 
 
 . 405 
 
 Sweatland v. Scjuire 
 
 . . 560 
 
 Sweeper v. Randal 
 
 . 192 
 
 Sweet V. Partridge 
 
 . .218 
 
 V. Southcote 
 
 . 401 
 
 Sweetapple v. Bindon . 
 
 . . 212 
 
 Sykes v. Meynal 
 
 180,181 
 
 Symmes v. Symonds 
 
 206, 326, 397 
 
 Sym's Case 
 
 170, 172 
 
 Tabor v. Grover . • 194 
 
 V. Tabor . . . 193 
 
 Tait V. Lord Northwick 42, 44, 45, 575 
 Talbott V. Duke of Shrewsbury 460, 463 
 Taner v. Ivie . . 485, 486 
 Tankerville, Earl of, v. Fawcett 358, 
 359, 360 
 Tanner ru Byne 
 V. Smart 
 
 . 2 
 
 439, 440 
 . 562 
 . 364, 365 
 . 513 
 . 491 
 . 175 
 . 127 
 . 421 
 512, 515, 516, 539 
 . 169 
 . 70 
 . 154 
 
 Tappenden v. Randall 
 Tate V. Austin 
 Taylor v. Gerst 
 
 V. Hawkins . 
 
 V. Jones 
 
 V. Wood 
 
 Teasdale v. Teasdale 
 
 Tebbs V. Carpenter 
 
 Temple v. Temple 
 
 Tenant v. Brown 
 
 Terling v. Trafford 
 
 Terrewest v. Featherby 294, 296, 300, 303 
 
 Terry v. Terry . . .518 
 
 Tew V. Earl of Winterton 138, 572 
 
 V- Lord Winterton . . 549 
 
 Thellusson v. Woodford . . 432 
 
 Theobal v. W^ynn . . .122 
 
 Theobalds v. Duffoy . 173, 174 
 
 Theme v. Fuller . . . 506 
 
 Thomas' Case , 98, 100 
 
 Thomas «. Bennet . . . 460 
 
 V. Britnell . 57, 58, 64 
 
 V. Freeman . . 173 
 
 V. Terrey . . 6 
 
 Thomason v. Woods . . 265 
 
 Thomond, Earl of, v. Earl of Suffolk 122 
 
 Thompson v. Dow 
 
 V. Grant 
 
 V. Lawley 
 
 ■ V. Thompson 
 
 V. Towne 
 
 V. Woods 
 
 Thomson v. Field 
 
 V. Grant 
 
 Thornborough v. Baker . 
 Thorndike v. AUington 
 Thornhil v. King 
 Thorsby v. Plant . 
 Thrustout V. Coppin 
 Thruxton v. Attorney General 
 
 128 
 
 428, 432 
 
 374, 431 
 
 269, 284 
 
 . 149 
 
 . 265 
 
 185 
 
 236, 266 
 
 193, 194 
 
 . 137 
 
 . 478 
 
 307, 315 
 
 . 163 
 
 . 149
 
 G08 
 
 NAMES OF CASES. 
 
 TilHn V. Tiffin 
 Tilley v. Egerton 
 Tilney v. Norris 
 Tilstoa V. Clark 
 Tipping V. G rover 
 ■ V. Tipping 
 
 PAOF. 
 
 . 149 
 . 192 
 311, 312 
 . 507 
 . 137 
 162, 341, 342, 354, 
 
 358, 359, 373, 374, 381 
 
 ?;.TippiDg(lIVin.AI>r.244) 183 
 
 Tisdale's (,'ase . . . 506 
 
 Titley v. Davis . . 395 
 
 Tolhuvst V. Brickenden . . 507 
 
 Tolputt V. Wells . . 289 
 
 Tolson V. Clerk . . . 507 
 
 V. Collins 461 , 4fi2, 464 
 
 Tompkins v. Tompkins 86, 116, 118, 130 
 Tooke V. Hastings . . 3 
 
 Toplis V. Baker . . . 470 
 
 Toulmin v. Steere . . 420 
 
 Tourle v. Rand . . 422, 423 
 
 Tourville tJ. Naish . 117,401 
 
 Tower v. Lord Rous . 42, 44 
 
 Townley v Bedwell . .183 
 
 V. Chalenor, or Sherborn . 540 
 
 Townsend, Lord, Ash . . 184 
 
 V. Barber 495, 500, 521 
 
 Townshend v. Whale, or Whales, or 
 
 Walley . . 72, 75 
 
 Townshend, Lord, v. Windham 4, 12, 
 
 149, 162, 354 
 
 Tracy V. Lady Hereford . .117 
 
 Trafford v. Boehm . 212, 520 
 
 «. Trafford . . 197 
 
 Treford v. Holmes . . . 505 
 
 Treil v. Edwards . . 548 
 
 Trelawney v. Booth . .212 
 
 Treves v. Townshend . . 512 
 
 Trevor v. Perryor . . . 149 
 
 Trew, Exjyarte . . 389 
 
 Trewinian v. Howell . . 505 
 
 Tribourg v. Lord Pomfret . 394, 395 
 Trimnier r'. Bayne . . 343 
 
 Trott V. Vernon . 59, 61, 62 
 
 Troughton v. Troughton 
 Trueman v. Fenton 
 Tucke's Case 
 Tudor V. Anson 
 
 V. Samyne 
 
 Tugwell i\ Ileyman 
 Tullock V. Dunn 
 Tunstall v. Brachen 
 
 V. Trappes 
 
 Turner's Case 
 Turner's, Sir E., Case 
 Turner v. Bromfield 
 
 V. Crane 
 
 t\ Richmond 
 
 V. Turner 
 
 r'. V^augiian 
 
 Turney v. Daws 
 
 149, 390, 391 
 . 51 
 . 500 
 60, 62, 65 
 . 172 
 . 260 
 443, 447, 449, 450 
 101,102,105,106 
 119, 128 
 571,574 
 . 193 
 . 172 
 . 172 
 . 194 
 397,414, 416 
 193, 513, 557 
 27t!, 279 
 . 240 
 
 PAGE. 
 
 Tweddcll v. Tweddell . 358, 362 
 
 Tweedale, Marchioness of, v. Earl of 
 
 Coventry . . 154, 366 
 
 Twisden v. Wise . • 178 
 
 Twisleton v. Thelwel • • 303 
 
 Tylden v. Hyde . 78, 82 
 
 Tyndale v. Warre . . 153, 154 
 
 Tynt V. Tynt 162, 354, 355, 376 
 
 Tyrconnel, Earl of, v. Duke of An- 
 
 caster . • • 134 
 
 Tyrrell's, Lady, Case 162, 164, 165 
 
 Tyrwith, or Tyrwhitt, v. Trotman . 40 
 
 Underwood v. Stevens 
 
 V. Swain 
 
 Ungle V. Glover 
 Upton V. Lord Ferrers 
 Uvedale v. Uvedale 
 
 512, 547, 559 
 
 98, 102, 108 
 
 . 307 
 
 561, 571, 575 
 
 80, 83 
 
 Van tJ. Clarke . . . 129 
 
 Vandenanker v. Desbrough . 166 
 Vanderzee v. Willis 391, 393, 394 
 
 Varnis v. Goodcheape . . 316 
 
 Vauchamp v. Bell . . 204 
 
 Vaughan w. Browne . 264, 271 
 
 u. Burslem . . 198 
 
 V. Guy , . . 51 
 
 Veghelman v. Kighley . 145, 495 
 
 Ventrice v. Goodcheape . 316 
 
 Verney v. Verney . . 54 
 
 Vernon v. Cholmondeley . 562 
 
 V. Curtis . . . 271 
 
 V. Earl of Egmont . 554 
 
 V. Vawdrey, or Vawdry 12, 222, 
 
 334 
 
 Vigrass v. Binfield . .517 
 
 Villa Real v. Lord Gahvay . 134 
 
 Villers v. Handley . . 153 
 
 Vincent v. Sharp . . 144 
 
 Viner v. Cadell . . . 532 
 
 Wade V. Bemboe 
 Wagstaff V. Smith 
 Wain D. Warlters 
 Wainwright v. Bendlowes 
 Healy 
 
 Waise v. Whitfield 
 Waile V. Whorewood 
 Walcott V. Hall 
 Walker's Case 
 Walker v. Constable 
 
 V. Denne . 
 
 V. Flamstead 
 
 V. Harris . 
 
 V. Jackson 
 
 V. Lodge 
 
 V. Perkins 
 
 V. Pink 
 
 V. Smallwood 
 
 V, Symonds 
 
 . 577, 578 
 
 . 504 
 
 . 41, 43 
 
 573, 575 
 
 . 43 
 
 . 493, 496 
 
 125, 126 
 
 . 307, 315 
 
 562, 569 
 
 . 213 
 
 48, 68 
 
 . 307 
 
 43, 44, 45, 67, 384 
 
 . 54 
 
 . 278, 279 
 
 . 89 
 
 . 68 
 
 12, 541
 
 NAMES OF CASES. 
 
 609 
 
 Walker v. Witter 
 
 V. Woodward 
 
 Wall V. Attorney General 
 
 V. Briglit 
 
 V. Bushby 
 
 V. Tomlinson 
 
 Wallace v. Pomfret 
 Waller v. Childs . 
 Walley u. Waliey 
 Wallwyn v. Lee . 
 Walter v. Hodge 
 V. Maunde 
 
 PACE. 
 
 4, 282 
 
 . 516 
 
 . 30 
 
 427, 428 
 
 . 548 
 
 . 178 
 
 . 462, 465 
 
 . 352 
 
 183, 404 
 
 . 403 
 
 . 165 
 
 . 209 
 
 . 40 
 
 . 474 
 
 144, 150, 476 
 
 . 536 
 
 4, 263 
 
 Walton V. Walton 
 
 Wangford v. Wangford 
 
 Wankford v, Wankford 
 
 Wansborough, In re 
 
 Want v. Swayne 
 
 Ward V. Lord Dudley and Ward 89, 371 
 
 V. Hunter . . .441 
 
 VVareham ti. Brown . 57, 58 
 
 Waring v. Ward 6, 43, 47, 357, 358, 
 360, 362, 363 
 Warneford v. Thorapson . 82 
 
 Warner, Ex parte . . 9, 12 
 
 • V. Hdwes 
 
 V. Hayes . 
 
 Warren v. Lee 
 
 V. Sfawell 
 
 Warrington, Lord, v. Leigh, or Lee 
 
 Warrick v. Warrick 
 
 Warwick, Countess of, v. Edwards , 
 
 Warter v. Hutchinson 
 
 Waters V. Ogden . 
 
 Wathen v. Smith . 
 
 Walk ins v. Cheek 
 
 Watson, £.T parte 
 
 — ■ v. Brickwood 
 
 V. Uennis 
 
 V. Harrison 
 
 Watts V. Creswell 
 
 V. Kancie 
 
 V. Thomas 
 
 Web V. Web 
 Webb V. Jiggs 
 
 V. Jones 
 
 V. Martin . 
 
 V. Rorke 
 
 V. Lord Shaftesbury 
 
 V. Sutton 
 
 V. Webb 
 
 Webster v. Alsop . 
 
 ■;; Hale 
 
 V. Spencer 
 
 -- V. Webster . 
 
 382 
 
 ih. 
 
 99 
 
 218 
 
 59 
 
 403 
 
 154 
 
 197 
 
 . 289 
 
 . 467 
 
 . 475 
 
 527, 528, 529 
 
 41, 42, 44 
 . 180 
 . 271 
 . 421 
 
 . 476, 495 
 . 170 
 . 135 
 . 136 
 
 42, 43, 45 
 . 434 
 . 389 
 . 140 
 
 120 
 
 128 
 
 344 
 
 . 386 
 
 . 518 
 
 436, 451 
 
 126, 128 
 
 263, 267 
 
 192 
 
 58, 86, 
 
 Weedon v. Fell 
 Weeks w. Gore 
 
 Weeper w. Handall . - - 
 
 Wellock V. Hammond 97, 99, 101, 106, 
 
 119 
 Wells V. Horton . . . 436 
 
 West V. Lane . . 270 
 
 PAGE. 
 
 West W.Moore . . 186, 190 
 
 Westfaling t;. Westfaling 153, 218, 334. 
 375. 379 
 Westley t>. Clarke 500,540,541 
 
 Wetheiell, Ex parte . 6, 10 
 
 V. Collins . 389, 390 
 
 Whale V. B(0th . 482, 484 
 
 Whaley v. Cox 86, 89, 92, 105. 121 
 
 V Norton . • 279 
 
 Wharton u. Wharton . 180, 181 
 
 Wheeler v. Collier . . 505 
 
 Wliipper's Case . . • 270 
 
 Wliistler «. Newman . . 578 
 
 ^Vhitacre, Fx parte . . 428 
 
 W hi thread, E.v parte . 8, 9, 10 
 
 Whitchurch v. Lady Bayntun . 369 
 
 Whitcombv. Whiting . . 441 
 
 Whhe V. Evans . . • 350 
 
 V. Sealy . . 570 
 
 V. Vitty 70, 71, 82, 83, 89 
 
 V. White . 357, 358, 359 
 
 Whitehead v. Sampson . .271 
 
 Whopham V. Wingfield . . 497 
 
 Wicks V. Jordan . . 187 
 
 Wiggw. Wigg 102, 105, 107, 108, 117, 
 
 118, 401 
 
 Wigge V. Wigge . 107, 120 
 
 Wightman v. 'I'ownroe . . 528 
 
 Wilcocks V. Huggins • . 437 
 
 V. Wilcocks . . 3 
 
 Wilcox V. Gore . . 161 
 
 Wilde V. Clarkson . . . 570 
 
 Wildman v. Wildman 175, 176, 178 
 
 Wilkes V. Boddington . 399, 417 
 
 V. Steward . . . 618 
 
 Wilkins V. Hunt . .516 
 
 Wilkinson w. Adam . . . 110 
 
 V. Meream . • 425 
 
 V. Merryland . . il>- 
 
 V. Stafford . . 532 
 
 Willan, or Willand, v. Fenn . 475 
 
 V. Lancaster . 64, 65 
 
 Willett V. Earle . . . 283 
 Williams V. Bishop of Llandaff 42, 58, 67 
 
 V. Chitty 60, 376, 379, 380, 383 
 
 V. Coade . . 204 
 
 V. Innes . . 549 
 
 V. Jones . . . 435 
 
 V. Lambe . . 405 
 
 V. Lane . . 401 
 
 V. Lucas . . 4 
 
 V. Medlicott . . 8 
 
 V. Sawyer 
 
 V. Springfield 
 
 V. Williams 
 
 Williamson v. Curtis 
 
 V. Norwich 
 
 Wdlie V. Lugg 
 Willis V. Newham 
 
 ■ V. Willis 
 
 . 277 
 . 407 
 . 183 
 . 48 
 . 271 
 . 394. 395 
 . 445 
 493 
 
 WiUoughby V. Earl of Rutland 460, 461 
 
 II R
 
 610 
 
 NAMES OF CASES. 
 
 PAGE. 
 
 Willoughby v. Willoughby 397, 398, 399, 
 401, 404, 415,416, 417, 418,419,420 
 Willox V. Rhodes . . 86 
 
 Wills, Ex parte . • 6 
 
 Willson V. Pack . 162, 166, 167, 354 
 Wilmot w. Woodhouse . . 470 
 
 Wilson I'. Armorer . .152 
 
 V. Earl of Bath . . 370 
 
 V. Brownsmith . . 387 
 
 V. Earl of Darlington . 370 
 
 V. Fielding 317, 318, 319, 324, 
 
 328 
 
 V. Knubley 
 
 . V, Major 
 
 V. Rletcalfe 
 
 V. Spencer 
 
 V. Stafford 
 
 — ■■ V. Wigg 
 
 Wind V. Jekyl 
 Windham v. Jennings 
 
 V. Lord Richardson 
 
 . 218 
 . 202 
 . 389 
 . 128 
 . 118 
 311, 313,316 
 173, 539 
 390, 391 
 
 408 
 
 Windsor, Dean and Chapter of, v. 
 
 Gover, or Gower . 137 
 
 ■ V. Hyde . .311 
 
 . Lord, V. Burry . . 480 
 
 Winn V. Littelton 
 Winslow V. Tighe 
 Winter ■!;. Lord Anson 
 Wise, Ex parte 
 Wiseman v. Baldwin 
 
 ■ V. Westland 
 
 Witchcot V. Souch 
 Witham's case 
 Withers v. Iseham 
 
 V. Kelsea 
 
 Wittersbeim v. Countess of Carlisle 434 
 Witts V. Davvkins . . . 577 
 
 Wolestoncroft V. Long . 321,325 
 
 Wolfe V. Heydon . . . 474 
 
 Wollstencroft v. Long . 321, 325 
 
 Wood V, Fenwick . . . 357 
 
 , .1 V. Grimwood . . 8 
 
 • 
 
 
 193, 
 
 428 
 
 140 
 
 12 
 
 . 
 
 
 
 8 
 
 99, 
 
 100, 
 
 101 
 
 103 
 
 • 
 
 8 
 
 , 10 
 
 422 
 75 
 172 
 198 
 169 
 
 TAGF.. 
 
 Wood V. Ingersole . . . 104 
 
 V. Nosworthy . . 194 
 
 Woodcock V. Hern . . . 495 
 
 AVoodhouse v. Meredith . . 430 
 
 Woods V. Iluntingford 360,361,362, 
 363, 373 
 Woodward v. Lord Darcy 144, 150,263, 
 
 264 
 Woolley V. Clark . 473, 474 
 
 Woolstoncroft v. Long . 321, 325 
 Wooton V. Hele . . .3 
 
 Worcester, Bishop of, v. Parker . 401 
 Worral v. Hand . . .145 
 
 Worthington v. Barlow . 536, 548 
 Wortley v. Birkhead . 400, 413 
 
 Wren v. Kirton . . . 526 
 
 Wride v. Clarke 319, 327, 334, 339, 379, 
 
 380 
 Wright 11. Moore . . .277 
 
 V. Pilling . . . 419 
 
 V. Wright . 40, 204, 208 
 
 Wrightson v. Attorney General . 42 
 
 V. Hudson . . . 406 
 
 Wrotsley v, Adams . .172 
 
 VVych V. Packington . . . 39 
 
 Wynn v. Williams , 139, 405 
 
 Wynne v. Waring . . . 53 
 
 Yard v, Ellard . . .144 
 
 Yate V. Alexander . . . 495 
 
 Yates V. Compton 70, 72, 73, 74, 75, 83, 
 
 84, 204 
 
 V. Fettiplace . . 125 
 
 V. Fettiplace, or Phettiplace . 127 
 
 Yea V. Fouraker . . . 440 
 
 Yerworth v. Pierce . . 182 
 
 Yong V. Radford . . 170, 171 
 
 Young V. Cawdrey, or Cordery 147, 548 
 
 V. Dennet 56, 69, 220, 321 
 
 Younge v. Combe . .512 
 
 Yovatt w. Wiuyard . . . 183
 
 INDEX. 
 
 ABEYANCE, 
 
 of the fee-simple, 105, n. (/) 
 
 ACT OF PARLIAMENT. See Statutk. 
 
 ACTION, 
 
 by a creditor against executor, 286, 287, 288, 290, 292 
 
 cases wherein a creditor's action at law is unimpeded and favoured in 
 
 equity, 298 
 costs of a creditor's action against an executor, 300, 301 
 of assumpsit, 301 
 of debt, 301 
 
 of debt suggesting a devastavit, 305 
 for a legacy, 508, and n. (a) 
 See Injunction. 
 
 ADMINISTRATION, 
 
 letters of, 243 
 
 duty on letters of, 243 — 255, 274 
 
 the meaning of the direction in a decree, that debts shall be paid in a 
 
 course of, 328 
 See Assets. 
 
 ADMINISTRATOR, 
 
 a debt owing by, to his intestate, is assets, 144 
 
 his power over assets, 475, n. (x) 
 
 similarities and distinctions between an administrator and an executor, 
 
 475, and n. (x) 
 instance of relief afforded at law to an administratrix, by setting aside a 
 
 judgment confessed by her, 501 
 See Action, Assets, Devastavit, Executor, Judgment, Plea, 
 
 Retainer. 
 
 R R 2
 
 612 INDEX. 
 
 ADMISSION OF ASSETS, 301,530,537,547 
 
 See Evidence. 
 ADVERTISEMENT BY EXECUTOR FOR DEBTS, 448 
 ADVOWSON, 
 
 in fee appendant to a manor is real assets, 153 
 in fee in gross is, in equity, real assets, 153 
 
 seems at law to be assets, to make a lineal warranty a 
 
 bar in formedon, but at law it is perhaps not assets to pay debts, 
 153, n. (x) 
 ANNUITY, 
 
 devised, and by the will charged on real estate, 132 
 
 devised out of land is a rent, charge or seek, 135 
 
 purchase of real estate charged with, 139 
 
 given by will is, for many purposes, considered as a legacy, 141 
 
 charged on real estate, which, after the testator's death, was destroyed by 
 
 fire, 141, 142 
 arrears of annuity secured by a voluntary bond, 278 
 promise to pay, to a kept mistress, 280 
 See Condition, Land-Tax. 
 ANSWER, 
 
 executor's answer to a bill in equity ought to set forth what the assets 
 
 are, 298 
 responsibility of a solicitor, concerned in an amicable suit of creditors, if 
 the assets are not set forth in the executor's answer, and they are 
 afterwards wasted by the executor, 298, n. (r) 
 
 APPAREL, 
 
 convenient of a wife, is paraphernalia, 158, 161 
 
 after a husband's death, his creditors cannot take in satisfaction of their 
 debts, his widow's necessary apparel, 162 
 
 APPOINTMENT, 
 
 money by a will, appointed under a general power to appoint for any 
 
 purpose, is assets, 149 
 money by a voluntary deed appointed under a general power to charge 
 
 land, by deed or will, for any purpose, held to be assets, 149 
 See Debtor, Power. 
 
 APPORTIONMENT, 
 
 of an annuity on the death of the annuitant, 140 
 
 ARBITRATION, 
 
 submission to, 535 
 
 ARREARS. See Annuity, Interest. 
 
 ASSETS, 
 
 property by or in a court of law held to be, 143 — 148 
 property by or in a court of equity held to be, 148
 
 INDEX. 613 
 
 ASS ETS , — (con t inued.) 
 
 generally speaking, all personal property, wliich devolves to an executor, 
 
 is assets in his bands, 182 
 whicli consist of property out of England, 235 
 property wliich is not, 239 — 242 
 waste of, 304 
 
 admission of, 304, 536, 537,547 
 distinction between property which is assets in a court of equity only, and 
 
 certain property which a creditor cannot come at without the aid of a 
 
 court of equity, 319, 320 
 marshalling of, 329 
 of the order in which assets are, by a court of equity, taken to pay debts, 
 
 374, 582 
 in the distribution of, such as are not specifically given to any one, are 
 
 applied before assets that are specifically given, 383, and n. (rf) 
 power of an executor or administrator over, 475, and n. (.r) 
 taking assets in execution for the private debt of the executor, 482 
 following of, 484, 485, n. (r), 492, 493 
 a creditor has no lien on, 484, 485 
 loss of, or damage to, by robbery, theft, fire, or other accident, 497, 498, 
 
 ib. n. (d), 499 
 accounting for profits made of, 516 
 evidence of, 547 
 See Administration, Answer, Appointment, Creditors, Damages, 
 
 Debt, Estate, Evidence, Executor, Foreign Country, Ireland, 
 
 Lease, Marshal, Paraphernalia, Personal Estate, Pin-Money, 
 
 Separate Estate, Wife. 
 
 ASSETS, EQUITABLE, 274, 317 
 retainer out of, 271 
 what property is, 317 
 
 a court of equity distributes among creditors equally, 317 
 principle on which a court of equity administers them, 318, 319 
 when real estate, or money arising from the sale of it, is, 321 
 a court of equity inclines to construe assets to be, 322 
 several kinds of property held to be, 322, 323 
 instances where a court of equity has paid creditors of different degree, 
 
 pa7i passu, or equally, 323 — 328 
 See Lien. 
 
 ASSETS, LEGAL, 274 
 what property is, 317 
 a court of equity distributes according to the order observed at law in 
 
 paying debts, 317 
 trust estate for years is in equity, 320 
 
 in fee is, 320 
 
 a bond taken in the name of B., in trust for A,, is in equity legal assets of 
 A., 320
 
 614 INDEX. 
 
 ASSETS, PERSONAL, J 
 
 property which is, 151, 152 
 
 ASSETS, REAL, 
 
 property which is, 152 
 
 ASSIGNMENT, 
 
 ofa satisfied incumbrance, 414, 416 
 of a satisfied term of years, 415,416 
 See Covenant. Rent. 
 
 ASSUMPSIT, 
 action of, 301 
 
 ATTENDANT TERM OF YEARS, 415, 417 
 
 BAILEE, 
 
 executor not a mere ordinary, 498 
 
 BALANCE DEBT, 4, and n. (t) 
 
 BANKERS. See Executor. 
 
 BEQUEST. See Condition, Lease, Legacy, Will. 
 
 BILL OF EXCHANGE, 4, and n. {y). See Interest. 
 
 BOND, 275, 276, 286 
 
 voluntary, 275, 277—282 
 
 considerations of a, 277, 278, 279 
 
 given to a kept mistress, 278, 281 
 
 distinction between a bond and a parol promise, 280 
 
 given before or after seduction, 278, 279 
 
 taken in the name of B., in trust for A., is in equity legal assets of 
 
 A., 320 
 single, 570 
 
 damages or interest, not recoverable beyond penalty of, 570, 572 
 whether the excess of the debt, beyond the penalty ofa bond, is a debt by 
 
 specialty, or by simple contract, 572, n. (n) 
 See Debt, Lien, Notice, Wife. 
 
 BOOKS, 
 
 copyright in,241,n. (?•) 
 
 BOROUGH-ENGLISH, 
 land is real assets, 152 
 
 BURIAL, 
 
 duty to bury, 257 
 
 husband is bound to bury his wife, '2.)7, n. {() 
 father's duty to bury his child, 257, n. {c) 
 See Funeral. 
 
 CANAL. See River.
 
 INDEX. 615 
 
 CATTLE, 200 
 
 CHANCERY, COURT OF, 
 
 invests trust-money in the three per cent, consols, 519 
 See Relief. 
 
 CHARGE, 
 
 of debts, or debts and legacies, on real "estate, 56 
 
 the trust created by a charge, 56 
 
 if necessary, a court of equity will decree a mortgage or sale, 57 
 
 wills in which real estate has been held to be charged with debts, or debts 
 
 and legacies, 57 
 the fact that debts, or debts and legacies, are or are not charged, depends 
 
 on the intention to be collected from the will, 57 
 examples of a charge of debts, 58 — 61 
 circumstances from which an intention to charge debts may be inferred, 
 
 61, 62 
 will in the case of Legh v. Earl of Warrington, 59, n. (s), 63, and n. (k) 
 wills in which real estate has been held not to be charged with debts, or 
 
 debts and legacies, 64 
 legal and equitable, of a legacy, 119, 120 
 See Covenant, Debt, Legacy, Mortgage. 
 
 CHARITABLE USES, 
 
 marshalling assets in favour of a bequest to, 346 
 
 legacy to, in what cases valid, or void, 347, 348, 349, 350 
 
 bequest of a residue to, 348 
 
 a court of equity in general cases certainly will not, and probably in 
 
 no case will, marshal assets in favour of either a residue or legacy 
 
 bequeathed to charitable uses, 353 
 
 CHATTEL. See Heir, Heir-Loom, Personal Estate. 
 
 CHOSE IN ACTION, 
 
 nature of, 174 
 
 chattels that have been present choses in action, 174 — 176 
 
 future choses in action enumerated, 176 
 
 of a wife, 174, 242 
 
 is, in some sense, not assignable at law, 413 
 
 See Judgment, Wife. 
 
 CHURCH. See Advowson, Presentation. 
 
 CLOTHES. See Apparel, Paraphernalia. 
 
 CODICIL. See Legacy, Will. 
 
 COHABITATION. See Bond. 
 
 COLONIES, 
 
 debts in the, 236 
 
 reference to a work on colonial law, 236 
 
 See India.
 
 616 INDEX. 
 
 CONCEALED MORTGAGK Oil SETTLEMENT, 421 
 CONCURRENCE. See Executor. 
 
 CONDITION, 
 
 the general nature of a devise that is a condition, and of a conditional 
 
 limitation, 97—102 
 certain words which make a, 98 
 entry of the heir on a condition broken, 98, 99, 102 
 a certain distinction between express and implied conditions exploded, 
 
 100 
 reasons to interpret a devise to be a conditional limitation, 101, 106 
 to pay a legacy or an annuity, 97, 102 
 devises, on condition to pay a legacy or annuity, held to be a condition, and 
 
 not a limitation, 102 
 devise, on condition to pay an annuity, held to be a limitation ,and not a 
 
 condition, 103 
 to pay a legacy, when the devise is to the testator's heir at law, 103 — 107 
 devises, on condition to pay a legacy, held to be a limitation, and not a 
 
 condition, 106 
 to pay a legacy, when the will gives to the legatee a right of entry on non- 
 payment of it ; and the nature and effect of that right of entry, 107 
 distinction between a right to enter and hold until payment of a legacy or 
 
 annuity, and aright to enter and distrain if an annuity is not paid, 107 
 relief in equity to a devisee, by whom a condition is broken, 108 
 of permitting a remainder-man in fee, on condition to pay legacies, to enter 
 
 and cut timber for the purpose, 109 
 words which make a condition precedent, on a bequest of a legacy out of 
 
 personal estate, 125 
 on the words, " when," and " if," 125, n. (/) 
 See Lease, Legacy. 
 
 CONFESSION OF ASSETS, 304 
 See Assets. 
 
 CONIES, 199 
 
 CONSIDERATION, 
 
 of a bond, 277,278, 279 
 
 sufficient to support a promise, 280, n. (t) 
 
 CONTINGENT DEBT. See Debt. 
 CONTRACT, 
 
 privity of, 306, 307 
 See Debt. 
 
 CONTRIBUTION, 
 
 right of devisee of mortgaged land to contribution from a devisee of 
 unmortgaged land, 36d, 367 
 
 CONVERSION, 
 
 of real into personal estate, 201
 
 INDEX. 617 
 
 CONVERSION,— fooMr?:»««/.; 
 
 of personal into real estate, 211 
 
 case, where rents and profits until sale were considered to be personal 
 
 estate, 204, n. (q) 
 election, in cases of, 203, 209 n. (k), 212 
 See Mortgage, Personal Estate, Puucuaser, Real Estate. 
 
 COPYHOLDS, 
 
 devised to pay debts, 38 
 
 by will charged with delits, 65 
 
 surrender of, to the use of a will, 130 
 
 at the will of the lord are not assets, 240, 242 
 
 where they have been placed, when assets have been ranged to pay 
 
 debts, 377 
 not liable to execution upon a judgment, 392 
 See Lease. 
 
 COPYRIGHT, 241 
 
 CORN. See Emblements. 
 
 COSTS, 
 
 of a creditor's action again';t executor, 300, 301 
 tacking of, to a mortgage, 389 
 See Executor, Expenses. 
 
 COURT or EQUITY. See Chancery, Debt, Decree, Relief, Suit. 
 
 COVENANT, 
 
 contract by, 2, 3 
 
 of indemnity, 276 
 
 lessor's action on covenant in a lease for years, 306, 311 — 314, 315 
 
 a debt may be created by a covenant to pay money, which is not bor- 
 rowed, 368 
 
 not to pay money may create a debt, in the sense that the covenant, if 
 broken, will create a demand for damages, 368, 369 
 
 to settle land may create a debt, in certain senses, 369 
 
 when on a covenant to settle land, a debt is not in equity, with reference 
 to exoneration, created by the covenant, 370 
 
 when it is auxiliary only to land charged, 371 
 
 See Debt. 
 
 CREDITORS, 
 
 power of executor to exercise a preference between, 285 
 
 priority between two creditors, by one or both of whom the executor is 
 
 sued at law or in equity, 290 
 priority between two creditors, by one of whom the executor is sued at 
 
 law, and by the other in equity, 292 
 suit in equity against executor, 285, 290, 291, 292, 293 and ib. n. (/c), 
 
 294, and ib. n. (m), 298 
 by specialty payable before creditors by simple contract, 332, 337
 
 618 INDEX. 
 
 CREDITORS,— (continued. J 
 
 a court of equity does not take from specialty creditors tlieir legal right to 
 
 be paid before creditors by simple contract, 337 
 See Action, Answer, Assets, Debt, Demand, Devise, Election, 
 
 Executor, Lien. 
 
 CROP. See Emblements. 
 
 CROWN DEBT, 13, 274, 333, 502 
 
 acts of parliament to enable land to bo sold, free from the crown's lien 
 upon it, 22, and n. (w) 
 
 CUSTOM. See London. 
 
 DAMAGES, 
 
 recovered by an executor are personal assets, 152 
 debt which consists of, 3G8, 369 
 
 DEBT, 
 
 different kinds of, 1 
 
 of record, 1 
 
 to the crown, 13, 274, 333, 502 
 
 by statute, merchant or staple, 408 
 
 by judgment, 1, 318, 333, 502 
 
 . against an executor, 290, 291, 299, 328, and ib. n. (.v), 335 
 
 is a chose in action, 413 
 
 by decree, 282, 283, 291, 293, 296, 299, 317, 502, 503 
 
 — -■ against an executor, 291, 299 
 
 by recognizance, 2 
 
 by specialty, 2, 4, 276, 332 
 
 by bond, 275, 276, 286, 317 
 
 by covenant, 3, 368, 369 
 
 by simple contract, 4, 5, 275, 277, 284, 286, 317, 332, 556, n. (j) 
 
 by balance, 4, n. (c) 
 
 secured by mortgage, 5, 318 
 
 when a mortgage debt is by specialty, and when by simple contract, 6 
 
 contracted by a breach of trust, 1 2 
 
 which consists of damages, 368, 369 
 
 reviving a simple contract debt barred by the statute of limitations, 50 
 
 presuming payment of a bond debt, 51, 52 
 
 a direction by will for the payment of debts will not, it seems, revive a 
 
 bond debt, 52 
 reviving debts by bond and by simple contract, 52 
 presuming payment of a judgment debt, 53 
 when a will charges real estate with debts, all debts contracted before or 
 
 after the making of the will, and not at the testator's death barred by 
 
 the statute of limitations, are a charge on the estate, 68, 110 
 distinction between debts and legacies, with reference to a charge on real 
 
 estate, 96
 
 INDEX. 
 
 619 
 
 DEBT,— (continued.) 
 
 specific bequest of a, 122 
 
 real estate discharged of debts, which a trustee has raised out of it, and 
 misapplied, 130 
 
 order in which debts are payable out of legal assets, 274, and n. (t) 
 
 debts which are equal, 275, 282—284, 292, 296 
 
 contingent, 276, 551 
 
 action of, 301 
 
 advertisement by executor for debts, 448 
 
 payment of debts before legacies, 550 
 
 payment of debts before legacies, when real estate is devised in trust for, 
 or charged with, the payment of debts and legacies, 550, n. (t) 
 
 payment of a legacy or residue, while there exists a contract, bond, or 
 covenant, by which, on a contingency, the testator may become 
 indebted, 551 
 
 interest on debts, 560 
 
 whether the excess of the debt beyond the penalty of a bond is a debt by 
 specialty or by simple contract, 572, n. (n) 
 
 payable out of a separate estate, the assets of a married woman, 577 
 
 See Action, Assets, Bond, Charge, Covenant, Creditors, Crown- 
 Debt, Debtor, Demand, Devastavit, Devise, Executor, 
 Exemption, Extinguishment, Inventory, Judgment, Legacy, 
 Limitations, London, Mortgage, Notice, Power, Satisfaction, 
 Sperate-Debt, Statute-Merchant and Staple, Trustee. 
 
 DEBTOR, 
 
 a person does not make himself a debtor, because, by virtue of a power to 
 charge land with the payment of money, he executes an appointment 
 under it ; or because, in a marriage settlement, he limits a term of 
 years in trust to raise portions, 370 
 
 DECREE, 
 
 difference between a final decree, and a decree quod computet, 299 
 See Debt, Judgment. 
 
 DEED, 2, n. {b) and (c) 
 delivery of, 2, n. (c) 
 
 meaning of the expression that a deed is " executed," 2, n. (c) 
 See Mortgage. 
 
 DEER, 198, 200 
 
 DEMAND, 
 
 creditors need not demand but by an action, 556, n. (j) 
 
 DEMONSTRATIVE LEGACY. See Legacy. 
 DEPOSIT OF TITLE DEEDS. See Mortgage. 
 
 DESCENT, 
 
 as distinguished from purchase, 69, 103, 104, 105 
 See Heir. Seisin.
 
 620 INDEX. 
 
 DEVASTAVIT, 
 
 what it is, 494, 495 
 
 acts, which at law may be a, 495 
 
 acts, which in equity may be a, 496 
 
 a co-executor, who did not concur in a devastavit, is not answerable, 500 
 
 when it is committed by an executor, his executor is answerable, 500 
 
 constitutes a simple contract debt, 500 
 
 an executor, who commits a devastavit in law, may sometimes be relieved 
 
 in equity, 501 
 acts that may not be a, 556, 557 
 See Action, Evidence. 
 
 DEVISE, 
 
 of real estate, intrust for the payment of debts, or debts and legacies, 37 
 
 of a trust estate, 69 
 
 on condition to pay legacies, 97 
 
 fraudulent as against creditors, 214 — 234 
 
 of land, subject to the incumbrances on it, 359, 360, 366 
 
 See Condition, Debt, Legacy. 
 
 DEVISEE OF MORTGAGED LAND, See Contriijution. 
 
 DIAMONDS, 
 
 may be paraphernalia, 159, 160, 162 
 
 DISTRESS. See Condition. 
 
 DOGS, 200, and n. (./) 
 
 DOVES, 199 
 
 DOWER. See Notice. 
 
 DUNG, 182, n. {h) 
 
 DUTY. See Probate, Administration. 
 
 EJECTMENT. See Entry. 
 
 ELECTION, 161, n-O) 
 
 when paraphernalia are bequeathed by a husband to his wife, she may 
 
 elect to take them in her own right, or under the will, 161 
 by executor or administrator, to retain assets in satisfaction of his debt, 
 
 267, and n. (e) 
 in cases of conversion, 203, 209, n. (/;), 212 
 creditors by specialty may, at their election, take their remedy against the 
 
 heir or executor, 332, 373 
 on stock sold by a trustee, contrary to his trust, 517 
 between profits of trade carried on by an executor, and interest on the 
 
 capital and value of the stock employed, 529 
 
 ELEGIT, 14, 412 
 
 he, to whom land is delivered under, is possessed of a chattel estate, 412
 
 INDEX. 621 
 
 ELEGIT— (cniitinued.) 
 
 reference to authorities on the satisfaction or determination of a statute, 
 
 or execution by elegit, 414, n. («) 
 See ExTEMT, Judgment. 
 
 EMBLEMENTS, 186 
 
 are personal estate of a person deceased, 184 
 
 kinds of corn and vegetables which arej 186 
 
 reference to authorities on, 186, n. (?<;) 
 
 to whom they may belong, 186, 187, 188 
 
 principles, which make certain roots and crops to be, 188 
 
 principles of a claim to, 188, 189 
 
 of a tenant in fee, go to his executor, when the land descends, 190 
 
 when a devisee of a tenant in fee will or will not be entitled to, 190 
 
 in case of joint-tenancy, survive with the laud, 190 
 
 cases where a claim to emblements may fail, 191, 192 
 
 ENROLMENT OF RECOGNIZANCES AND DEEDS, 2, n. (/*) 
 
 ENTRY, RIGHT OF, 
 
 is a chattel interest, 107 
 ejectment, under, 107 
 improperly called a power, 107 
 See Condition. 
 
 EQUALITY, 
 
 between debts, 275, 282—284, 292, 296 
 
 between a judgment at law, and a decree in equity, 292, 29G 
 
 EQUITABLE ASSETS. See Assets Equitable, Marshal. 
 
 EQUITY. See Chancery, Debt, Decree, Relief, Suit. 
 
 EQUITY OF REDEMPTION, 
 
 of a term of years mortgaged is assets, 148 
 of the fee simple mortgaged is assets, 149 
 
 ESTATE, 
 
 pur auter vie in freehold land, and limited to the testator merely, or to him, 
 
 his executors and administrators, is personal assets, 151 
 pur auter vie limited to the ancestor and his heirs, is real assets, 153 
 privity of, 306, 308 
 legal, 399, 401 
 
 with reference to priority of incumbrances, necessity of being seised 
 
 or possessed of, 399 
 
 acquiring the, pendente lite, 400 
 
 better right to call for the, 417, 418 
 
 See Personal Estate, Real Estate, Trust. 
 
 EVIDENCE, 
 
 inventory, delivered to the ecclesiastical court, may be evidence of assets, 
 
 145—148 
 of assets, 300, 547
 
 62^ INDEX. 
 
 EVIDENCE,— ffo«aH?<rfZ.j 
 
 wlien judgment against an executor is evidence of a devastavit, 304 
 
 admission of parol evidence to rebut the presumption, that a legacy greater 
 than, or equal to, a debt is meant to be given in satisfaction of it, 
 464—466 
 
 to prove title of executor to sell, necessary to produce probate of the 
 will, 477 
 
 parol evidence is admitted, that land bought by an executor was pin- 
 chased with assets, 493 
 
 EXECUTION, 
 
 of a deed, 2, n. (c) 
 ^ See Elegit, Executor, Extent, Statute-staple. 
 
 EXECUTOR, 
 
 although not named, is bound by his testator's contract or bond, 4, 373 
 
 a debt owing by, to his testator, 150 
 
 a debt owing by, to his testator, is assets, 144, 149, 1 50 
 
 question between executor and heir, 182, n. (b) 
 
 or administrator, generally speaking all personal property devolves to, 200 
 
 his title to au unpublished MS., 241, n. (r) 
 
 de son tort, or of his own wrong, 270, and n. (r) 
 
 power of, to exercise a preference between creditors, 285 
 
 action by creditor against, 286, 287, 288, 290, 292 
 
 suit in equity by creditor against, 285, 290, 291, 292, 293, and n. {k) 
 
 judgment against, 290, 291, 299 
 
 judgment de bonis propriis of, 296, and ib. n. (A) and (i), 300 
 
 when judgment against, is evidence of a devastavit, 304 
 
 debt by decree against, 291 
 
 his duty to apply for an injunction in certain cases, 295, and u. (a) 
 
 compelled to bring assets into court, 298 
 
 his liability to pay out of his own property sometimes the costs of 
 
 a creditor's action against him, and sometimes both debt and costs, 
 
 301—305 
 relief of, in equity, in cases where he has mispleaded at law, 301, n. (c) 
 pleas of, to an action at law, 301 — 305 
 waver by, of a term of years, 307, 308, and ib. n. (j), 310 
 mortgage acquired in the character of, 423 
 if an executor, before he takes out probate, acts as executor, then he may 
 
 be sued before probate, 436 
 power of, to revive a debt barred by the statute of limitations, 447 
 advertisement by, for debts, 448 
 
 power of, to wave the protection of the statute of limitations, 449 
 his alienation of assets, 473 
 general power of, before probate, 473 
 power of, over assets, 475 
 similarities and distinctions between an executor and an administrator, 
 
 475, and n. (.t)
 
 INDEX. 623 
 
 EX ECVTOR,—( contimtcd.) 
 
 on alienation by executor of assets, the purchaser ov otlier alienee is not 
 
 bound to see to the executor's application of the money received by 
 
 him, 476 
 cannot by his will dispose of assets, 477 
 on the death of, assets devolve to the testator's personal representative, 
 
 477 
 his alienation of a lease for years, made on condition not to assign without 
 
 license, 477, 478 
 his right to transfer stock specifically bequeathed, 477 
 taking assets in execution for the private debt of, 482 
 following assets, and interference of equity against an executor's disposal 
 
 of them, 484, 485, n. (?•), 492, 493 
 general conclusions on the interposition of equity against an executor's 
 
 alienation of assets, 488 
 causes of the interference of equity against an executor's alienation of 
 
 assets, 489 
 arguments for the interposition of equity against an executor's pledge of a 
 
 personal chattel, 490 
 following assets into land bought by an executor, 492, 493 
 personal liabilities of, 494 
 not a mere ordinary bailee, 498 
 where there are two or more executors, for many purposes each represents 
 
 the testator; and alone and independently of the rest may receive or 
 
 pay debts, and do many other acts, 499, 500 
 his irregular preference of a creditor, 501 
 accepting security in place of payment of a debt, 503 
 promise of, to pay a debt, 504 
 
 legacy, 508—512 
 
 bond of, for payment of a legacy, 509, n. (/) 
 
 profits made by him of assets, 516 
 
 loan or investment by, 517 
 
 or trustee, whose duty leads him to lay out money in the public funds, 
 
 should invest it in the three per cent, consols, 519 
 or trustee, when answerable for a loss occasioned by investing money in 
 
 the public funds;-"520 
 the court of chancery will protect an executor or trustee, in doing what it 
 
 would itself order him to do, 519 
 parting with property or assets to a co-executor, 520 
 his liability for property placed with bankers, 525 
 continuing the trade of his testator, 527 
 
 power or duty of, to complete work, which, in the way of his trade, a 
 testator has begun ; or to fulfil an agreement entered into by the 
 testator, to perform certain work, and which, at the time of his death, 
 was not begun, 530
 
 G24 INDEX. 
 
 V.XECVTO^,— (continued.) 
 
 who carries on his testator's trade, makes himself personally, and his own 
 property, liable to debts incurred in the trade, and himself personally 
 liable to the bankrupt laws, 532 
 
 his submission to arbitration, 535 
 
 or trustee, liability of, for a breach of trust, 538 
 
 concurring in certain acts, 539 
 
 acts which require the concurrence of all the executors or trustees, 539 
 
 responsibility occasioned by concurring in a sale of stock, 544 
 
 all executors appear to be trustees, inasmuch as the duty to execute the 
 will is a trust, 539 
 
 by proving the will, an executor has been held to have accepted the trusts 
 annexed to a legacy, 539 
 
 receipt for money paid to an executor, 541, 542 
 
 responsibility for so much only of a trust fund, as is actually misapplied, 
 546, 547, and n. (w) 
 
 instances where his personal liability is not incurred, 556 
 
 it is his business to find out the testator's creditors, 556, n. (;') 
 
 care to be observed in paying simple contract debts, 556, n. (J) 
 
 clause of indemnity to, in a will, 557 
 
 where there is not fraud, nor a breach of trust, executors and trustees are 
 anxiously protected by the courts of equity, 558 
 
 See Action, Administrator, Answer, Dlvastavit, Elfxtion, Evi- 
 dence, Glasses, Heir, Insurance, Interest, Judgment, Lease, 
 Legacy, Mortgage, Pictures, Plea, Retainer, Trustee. 
 
 EXEMPTION, 
 
 of a testator's personal estate from the payment of his debts, 40, 67 
 See Personal Estate. 
 
 EXONERATION, 
 
 of real estate, 356 
 
 principle of exoneration of mortgaged land out of the assets of the mort- 
 gagor, 370 
 
 instances in which the same principle does not apply, 370, 371 
 
 case of a mortgage, where the owner of the land may not be entitled to 
 exoneration out of tlie assets of the mortgagor, 371 
 
 See Covenant, Debt, Wife. 
 
 EXPENSES, 
 
 funeral and testamentary, 257 
 
 application of a separate estate, in paying funeral expenses, 581 
 
 tacking of, to a mortgage, 389 
 
 See Costs. 
 
 EXTENT, 
 
 in the case of crown debts, 25, 28 
 
 reference to a case containing much learning on the nature of tenancy 
 under an extent, 399, n. {k)
 
 INDEX. 625 
 
 EXTENT— (contimied.) 
 
 extended value of land, 409, 410, 412, 413 
 
 is below the true value, 412, 413 
 
 See Elegit, Execution. 
 EXTINGUISHMENT, 
 
 or release of a debt by a testamentary act, 469, and n. (a) 
 
 FIRE, 
 
 destruction of assets by, 498, and n. (d) 
 
 See Annuity, Executor, Insurance. 
 FISH, 
 
 in a pond, 199 
 
 in a trunk, 200 
 FIXTURES, 
 
 on leasehold premises belonging to a testator, and which he had a right to 
 remove, held tojbe mere personal chattels, 184 
 
 reference to a treatise on, 182, n. (b) 
 FOLLOWING ASSETS, 484, 485, n. (r), 492, 493 
 
 into land bought by an executor, 492 
 FOREIGN COUNTRY, 
 
 goods in a, are assets in England, 145 
 
 assets which consist of property in a, 235 
 FRAUD, 
 
 in concealing a mortgage or settlement, 421 
 
 See Devise, Mortgage, Notice, Statute. 
 FRUIT, 
 
 on trees, heir entitled to, 199 
 FUNDS, PUBLIC. See Executor, Loss, Stock. 
 FUNERAL, 257 
 
 expenses, 257 — 261, 274 
 
 retaining to pay, 262, n. 
 
 application of a separate estate in paying a wife's, 581 
 
 See Burial. 
 
 GAVELKIND LAND, 
 
 is real assets, 152 
 GLASSES, 
 
 generally speaking, are personal estate, 182, n. (b) 
 
 but, under some circumstances, may go to the heir, 182 n. (i) 
 GOODWILL OF A TRADE, 145, n. (j/) 
 
 money for which it sold, held to be assets, 145 
 GRASS, 
 
 growing, heir entitled to, 200 
 
 See Emblements. 
 
 s s
 
 620 INDEX. 
 
 HEIll, 
 
 unless, for the purpose expressly named in his ancestor's special contract, is 
 
 not bound by it, 4, 373 
 if land is devised in fee to the testator's heir, he will take by descent, 
 
 although the land is charged with debts or legacies, 69 
 when lie takes by devise, and when by descent, 103, 104, 10.5 
 ([uestions between executor and lieir, 182, n. {b) 
 title of, to certain personal chattels, 198 
 entitled to timber, and fruit, and otlier trees growing, 199 
 entitled to fruit on trees, and to grass growing, 199, 200 
 is liable to his ancestor's debts, no farther than to the value of the land 
 
 descended, 225 
 his title to unpublished manuscripts, 241, n. (/) 
 specialty, in which he is not bound, 334, 335 
 
 See Election, Exoneration, Glasses, Heir-Loom, Mortoage, Pk - 
 TURES, Rests and Profits, Trlist. 
 HEIR-LOOM, 195 
 
 definitions of an, 195, and n, (b) 
 
 personal chattels bequeathed to accompany limitations of real estate, and 
 directed to be taken as heir-looms, 197 
 HORSES, 200 
 HOUNDS, 200, and n. (j) 
 HUSBAND, 
 
 wife's personal chattels made by marriage the property of her, 163 
 See Burial, Parapuernalia, Satisfaction, Wife. 
 
 IMPREST, 
 
 word used in government documents, 18, n. (v) 
 INCUMBRANCE, 
 
 priority of successive incumbrancers of llie same land, 396 
 
 incumbrances to which the law and an ecjual equity may give priority, 
 
 406—418 
 buying or getting in an, 406 — 418 
 buying or getting in a satisfied incumbrance, 414, 416 
 procuring an assignment of a satisfied term of years, 415, 416,417 
 See Judgment, Mortgage, Notice, Purchaser, Recognizance, 
 
 Statute-merchant and Staple. 
 
 INDEMNITY, 
 
 covenant of, 276 
 
 See Executor, Will, 
 
 INDIA, 
 
 real estate in, made assets for debts, 237 
 INJUNCTION, 
 
 to restrain a creditor's action at law, 293
 
 INDEX. 627 
 
 IN JU'NCTIO'S,— (continued.) 
 
 to restrain proceedings against real assets descended, 295, n. (r) 
 
 duty of an executor to apply for an, 295 n. («) 
 
 against execution under a judgment against executor, 300 
 
 INSURANCE, 
 
 case where an executrix was entitled to renew her testator's policy of insu- 
 rance against fire, 142 
 
 whether an executor is bound to renew his testator's policy of insurance 
 against fire, 498 n. (d) 
 
 proceeds of a testator's policy of insurance against fire, and renewed by his 
 
 ' executrix, under particular circumstances not considered as part of 
 
 the testator's general personal estate, but afi'ected with a trust for the 
 
 benefit of the parties interested in the real estate so insured and burnt 
 
 down, 142 
 
 INTEREST, 
 
 on arrears of an annuity, 1 38 
 
 executor's claim to interest, on his own money laid out by hira in payment 
 
 of the testator's debts, 265, n. (s) 
 executor's or trustee's liability for, 512 
 when an executor or trustee is obliged to pay interest,.in ordinary cases the 
 
 rate is 4/., but in particular cases 5l., per cent., 514 
 compound, sometimes payable by an executor or trustee, 515 
 made of assets, or a trust fund, 516 
 on debts, 560 
 instances in which a court of law has refused to allow interest on a debt, 
 
 565—567 
 
 allowed interest on a debt, 567 — 569 
 
 not recoverable beyond the penalty of a bond, 570, 572 
 
 in particular cases, a court of equity will decree the payment of interest 
 
 beyond the penalty of a bond, 572 
 in general cases, a court of equity does not allow interest beyond the 
 
 penalty of a' bond, recognizance, or judgment, 574 
 is recoverable in an action at law on a judgment, 564, 570 
 in general cases, a court of equity does not allow interest on a judg- 
 ment, 573 
 allowing interest on a judgment, which may be tacked to a mortgage, 
 
 574, n. (d) 
 when by a will freehold land is devised in trust for, or charged with, the 
 
 payment of debts, the creditors are entitled to be paid, with interest 
 
 on debts which carry interest, 574, 575 
 subsequent, from the foot of the master's report, 575 
 rate of, allowed by a court of equity on debts, 575 
 See Legacy. 
 
 INVENTORY, 
 
 delivered to the ecclesiastical court, 145—148, 255, 256, n. (//) 
 See Evidence. 
 
 s s 2
 
 028 INDEX. 
 
 INVESTMENT, 
 
 by executor or trustee, 517 
 
 the court of cliancery invests trust money in liie 3 percent, consols, 519 
 IRELAND, 
 
 goods in, are assets in Eng'land, 145 
 assets which consist of property in, 235 
 
 JEWELS, 
 
 may be paraphernalia, 159, IGO, 1G1. 
 JUDGMENT, 275, 282, 286 and n. (/), 292, 293, 318, 333, 502 
 presuming payment of a, 53 
 voluntary, 277 
 
 against an executor, 290,291, 299, 300, 328, ib. n. (.s), 335 
 equality between a judgment at law and a decree in equity, 292, 29G 
 de bonis propriis of an executor, 296, ib. n. (h) and (?), 300, 505, 506, 509 
 de bonis testatoris and de bonis propriis, 302 — 305, 307 — 316 
 of assets quando acciderint, 302 
 debt, consisting of damages recovered, 369 
 copyholds not liable to execution on a, 392 
 priority of successive incumbrancers of the same land, 396 
 with reference to priority of incumbrances, necessity of being seised or 
 
 possessed of the legal estate, 399 
 incumbrances to which the law and an equal equity may give priority, 
 
 406—418 
 buying or getting in an incumbrance, 406 — 418 
 
 a satisfied incumbrance, 414, 416 
 
 reference to a form of assignment of a, 413, n. (n) 
 
 debt by, is a chose in action, 413 
 
 a judgment creditor does not lend his money upon the immediate view or 
 
 contemplation of the conusor's real estate, 419 
 See Debt, Elegit, Interest, Notice, Purchaser. 
 
 LABOURERS, 
 
 wages of a servant within a statute of, 277, and n. (>•) 
 
 statutes of, 277, n. (p) 
 LAND, 
 
 generally speaking, means real estate, to the exclusion of leaseliolds for 
 years, 127, n. (v) 
 
 freehold, descended. Is assets, 214 
 
 descended or devised, where placed when assets are ranged to pay debts, 
 374—382 
 
 every devise of, is specific, 382, n. (x) 
 
 See Conversion, Exoneration, Purchaser, Real Estate. 
 LANDLORD. See Covenant, Lease, Rent. 
 LAND-TAX, 
 
 liability of annuitant to pay, 134 
 
 with reference to, distinction between a rent or annuity, and an annuity 
 which is only an instalment of a legacy, 1 34
 
 INDEX. 629 
 
 LEASE, 
 
 for years held to be assets, 144 
 
 for one year, made by a copyholder, is assets, 1 44 
 
 for years, by license made by a copyholder, is assets, 144 
 
 renewable, is assets, 144, n. (?/) 
 
 trust of lease for years is assets, 149 - 
 
 bequeathed, and by the assent of the executor vested in the legatee, held to 
 
 be assets, 149 
 or leasehold for years, when not assets, 239 
 executor's alienation of a lease for years, made on condition not to assign 
 
 without license, 477, 478 
 condition of a lease for years may be broken by an executor's assignment of 
 
 the terra, if the condition expressly extends to executors, 478 
 condition against alienation of a, may be broken by the lessee's bequest of 
 
 the term, 480 
 relief in equity against an executor's forfeiture of a lease by alienation, 
 
 481,482,n. (/) 
 See Assets, Covenant, Rent, Term, VVaveu, Wife. 
 
 LEASEHOLD. See Land, Lease. 
 
 LEGACY, 
 
 personal estate is the natural or proper fund for the payment of a, 86, 94 
 
 payable out of real estate, 85 
 
 examples of wills, in which legacies have been held to be payable out of 
 
 real estate, in aid of the personalty, 86 — 88 
 of a legacy charged on land by a condition in the will to pay it, 91 
 demonstrative, 92, 121, 122, 123 
 examples of wills interpreted to bequeath legacies out of personal estate 
 
 otily 94—96 
 distinction between debts and legacies, with reference to a charge on real 
 
 estate, 96 
 real estate is not charged with legacies, unless an intention to make this 
 
 charge is discovered in the will, 86, 94 
 if a legacy is given by a will, or by a codicil, real estate cannot thereby 
 
 be charged with it, unless it is executed according to the statute of 
 
 frauds, 109 
 when real estate may or may not, by a will, be charged with a legacy given 
 
 by a codicil, 109—111 
 distinction between a will, which itself charges real estate with future 
 
 legacies, and a will that reserves a power to charge by a future 
 
 instrument. 111 
 if by a will a legacy is charged on land only, this legacy cannot be, under 
 
 the statute of frauds, expressly revoked, except by a testamentary 
 
 instrument executed according to that statute, 112, 113 
 substitution made by a codicil of a legacy, or the legatee, when by the will 
 
 a legacy is charged on real estate, in aid of the personalty, 114 
 important difference between a substituted legacy and anoriginal legacy, 11.5
 
 630 
 
 INDEX. 
 
 LEGACY, — (continued.) 
 
 when a charge of a legacy on Kind devised is a charge at law, and when il 
 
 is a charge in equity only, 119, 120 
 failure of real estate charged with a, 121 
 sinking of a, into the inheritance, on the death of the legatee before the time 
 
 of payment, 125 
 words which make a condition precedent, on a bequest of a legacy out of 
 
 personal estate, 125 
 distinction between interest and maintenance, with reference to the vesting 
 
 of a legacy given out of personal estate, 125, 126 
 a legacy contingent until a future day, and a legacy not 
 
 payable until a future day, 12G 
 a general rule is, that a legacy payable out of land will sink into the inherit- 
 ance, if the legatee dies before the time of payment, 127 n. (y) 
 a charge of legacies on land authorises a court of equity to decree a sale, 
 
 or mortgage or sale, of it, for payment of the legacies, 129 
 real estate discharged of a legacy, which a trustee has raised out of it, and 
 
 misapplied, 130 
 distinction between a legacy and a residue, with reference to a charge on 
 
 real estate, 130,131 
 satisfaction of a debt by a, 400 
 
 extinguishment or release of a debt by a testamentary act, 469, and n. (a) 
 for a legacy given out of personal property, the executor may be sued in 
 
 either a court of equity, or the ecclesiastical court, 508 
 doubtful if an action may be sustained in a court of law, to recover a 
 
 general or pecuniary legacy, payable out of personal estate, 508 — 512 
 charged on land, action for a, 508, n. (a) 
 executor's promise to pay a, 508 — 512 
 after an executor has assented to the bequest, an action at law lies against 
 
 him, to recover a chattel specifically bequeathed, 511 
 See ANNUiTy,Cn A RGE, Condition, Debt, Executor, Marshal, Residue. 
 LEGACY, GENERAL OR PECUNIARY, 
 definition of a, 386 
 
 instances and examples of a, 386, 387 
 See Legacy. 
 LEGACY SPECIFIC, 
 definition of a, 383 
 of a debt, 122 
 
 of a sum of money out of a debt, 122 
 
 distinction between a specific and a demonstrative legacy, 122 
 where placed, when assets are ranged to pay debts, 374, 375, 378, 381, 
 
 382, ib. n. (z) 
 advantages and disadvantages, which attend a specific legacy, 384, n. ( /) 
 a court of equity leans against construing a legacy to be speciGc, 384, n.(/) 
 instances and examples of a, 384, 385 
 bequest of goods and chattels on board a ship, 385, n. (o) 
 See Legacy.
 
 INDEX. G31 
 
 LEGAL ASSETS. See Assets Legal. 
 
 LEGAL ESTATE. See Estate, Right. 
 
 LESSOR. See Covenant, Lease, Rent. 
 
 LETTERS OF ADMINISTRATION. See Administration. 
 
 LIABILITY. See Responsibilty. 
 
 LIEN, 
 
 in paying debts, a court of equity respects a specific lien on property, 
 liable as equitable assets to debts, 318 
 
 a bond is not a lien on real estate, 342 
 
 of a vendor on the estate sold, 343 
 
 a creditor has no lien upon assets, 484, 485 
 
 on a residue, 435 
 
 See Crown-Debt. 
 LIFE-ESTATE. See Estate. 
 LIMITATION CONDITIONAL. See Condition. 
 LIMITATIONS, 
 
 statute of (21 James I., c. 16), 15, 51, 433 
 
 does not fix any limitation to a bond debt, 51 
 
 does not destroy or bar the debt, but the remedy only, 438, 439 
 
 revival of simple contract debts, barred by the, 50 
 
 power of executor to revive a debt barred by the, 447 
 
 ' power of executor to wave the protection of the, 449 
 
 courts of equity, although not within the words, are within the 
 
 spirit and meaning of the, 450, 451 
 
 if a debtor creates a trust to pay debts, this trust will, under some 
 
 circumstances, take a case out of the, 453 
 LIS PENDENS, 
 
 acquiring the legal estate, pendente lite, 400 
 LIVING. See Presentation. 
 LOAN, 
 
 by executor or trustee, 517 
 
 See Mortgage. 
 LONDON, 
 
 custom of, relative to a simple contract debt, 284 
 LOSS, 
 
 of assets by robbery, theft, fire, or other accident, 497, 498, & n. {d), 499 
 
 occasioned by loan or investment of assets or trust property, 517 
 
 occasioned by investing assets or trust money in the public funds, 520 
 
 See Executor. 
 
 MAINTENANCE. See Legacy. 
 MANURE,182, n. (J) 
 MANUSCRIPT, 
 
 unpublished, is probably not assets, 241, n. (r) 
 unpublished, title of heir or executor to, 241, n. (/)
 
 G32 INDEX. 
 
 MARSHAL, 
 
 general principles of marshalling two funds, 329, 342 
 
 technically, the term " marshal " is not applied except to assets, yet a 
 
 species of marshalling may he applied to the property of a person 
 
 living, 330, 331 
 marshalling assets for creditors, 331 
 
 ■ for simple contract creditors, where creditors by spe- 
 cialty have taken the personal assets, 331 — 335 
 
 for specialty or simple contract creditors, or, as the case 
 
 may be, for both of them, 335 — 337 
 
 for creditors, where the funds to be marshalled consist of 
 
 legal and equitable assets, 387 — 340 
 
 for legatees, 340 
 
 in favour of a bequest to charitable uses, 346 
 
 • ■ for a widow, in respect of her paraphernalia, 353 
 
 of a mortgagor, 359 
 
 principles of the interposition of equity to marshal legal and equitable 
 
 assets, 339, 340 
 See Charitable Uses, Wife. 
 MEDICAL NOSTRUM, RECIPE OR SECRET, 
 
 property in a, 183, n. (c) 
 MISTRESS. See Bond. 
 MONEY, 
 
 arising from a sale of real estate, when it is equitable assets, 321 
 See Conversion, Investment, Mortgage, Personal Estate. 
 MORTGAGE, 
 equitable, 6 
 
 by deposit of title deeds, 6 — 12, 24 
 
 in equity a mortgage, pledge and money, is personal estate, 184 
 money, 192, 318 
 on a mortgage in fee, the money belongs to the executor, and not to the 
 
 heir of the mortgagee, 193 
 on a mortgage in fee, the pledge and money are in equity personal estate, 
 
 194 
 on a mortgage in fee, the mortgagee may, to some intents, make the 
 
 pledge real estate, 194 
 on a purchase from a mortgagee in fee, the purchaser may make the pledge 
 
 real estate, 194 
 debt, 318 
 a mortgage debt is by specialty, if the mortgagor enters into a bond or 
 
 covenant to pay the money, and by simple contract if there is no such 
 
 bond or covenant, 357, 368 
 exoneration of land mortgaged, 356 
 
 when a mortgage debt is payable out of the mortgagor's personal assets, 
 357, 358, 360 
 
 not payable out of the mortgagor's persona 
 
 assets, 359, 360
 
 INDEX. 
 
 633 
 
 MORTGAGE,— (continned.) 
 
 in equity land mortgaged is a pledge only, 357 
 
 devise of land, subject to the incumbrances on it, 359, 360, 366 
 
 tacking to a, 388 
 
 priority of successive incumbrancers of the same land, 396 
 
 with reference to priority of incumbrances, necessity of being seised or 
 
 possessed of the legal estate, 399 
 incumbrances to which the law and an equal equity may give priority, 
 
 406—418 
 a mortgagee is a purchaser ^ro tanto, 400, 416, n. (/t) 
 favour shewn to a purchaser, bona fide, for a valuable consideration, and 
 
 without notice, 400 —404 
 buying, or getting in, an incumbrance, 406 — 418 
 
 -a satisfied incumbrance, 414, 416 
 
 procuring an assignment of a satisfied term of years, 415, 416, 417 
 concealed, 420, 421 
 
 mortgagee protected against a misrepresented or coiicealed settlement, 421 
 mortgagee who fraudulently neglects his duty to take or keep the title 
 
 deeds of the estate, 421 — 423 
 acquired in the character of executor or trustee, 423 
 mortgagee's will, disposing of the mortgaged property, or money secured 
 
 by it, 424 
 even at law a mortgagee is, in some cases, considered to be a trustee, 427 
 a person may give by his will all his interest in mortgages, to which he 
 
 may be entitled at the time ofhis death, 429 
 of assets by an executor, 475, 476 
 See Contribution, Debt, Exoneuation, Notice, Tacking, Wife. 
 
 NEW RIVER SHARES, 
 are real estate, 184 
 
 NEWSPAPER, 
 
 share in a, is assets, 149, 183 
 
 profits of printing of a, held to be assets, 149, 183 
 
 share in a, is devisable, 184, n. (/t) 
 
 NEWS-WALK, 
 
 advantage of a, held to be assets, 145 
 
 NOSTRUM, 
 
 property in a, 183, n. (c) 
 
 NOTE. See Promissory Note. 
 
 NOTICE, 
 
 of debts, 285,288 
 
 of a bond debt, 502, 556, n. (j ) 
 
 by action, 556, n. ( / ) 
 
 an executor is bound to take notice of debts of rtcord, 502 
 
 of action against executor, 287
 
 634 INDEX. 
 
 'NOTICE,— (contimied.) 
 
 of a mortgage or other incumbrance, 399, 419, 420 
 
 fraud towards a mortgagee, by not giving liira notice of prior incum- 
 brances, 419, n. {h) 
 purchase with notice of a trust, 403, 404 
 
 dower is an exception to the doctrine of notice to a purchaser, 404, 40.5 
 See Purchaser. 
 
 ORDER, 
 
 in which the debts of a person deceased are jiayable out of his legal 
 
 assets, 274 
 in which assets are by a court of equity taken to pay debts, 374 
 in which the assets of a married woman have been taken to pay her 
 
 debts, 582 
 
 PARAPHERNALIA, 158—163, 1G6, 353, 354, 355, n. (o) 
 
 where placed when assets are ranged to pay debts, 374, 375, 376, 381, 382 
 
 PARK, 198, n. (m) 
 
 PAROI>, 
 
 meaning of the word, 6, n. (b) 
 
 demur of, 7, n., 233 
 
 now not allowed to demur in cases of infancy, 233 
 
 See Evidence. 
 
 PARTNERSHIP. See Personal Estate. 
 
 PARTRIDGES, TAME, 200 
 
 PEARLS, 
 
 may be paraphernalia, 159 
 
 PENALTY, 
 
 with respect to probate or letters of administration, 243, 244, 247, 249 
 See Bond, Interest. 
 
 PERSONAL ESTATE, 
 
 is in equity the first fund for payment of a testator's debts, 40, 42, 43, 67 
 
 exemption of, from payment of debts, 40, 67 
 
 arguments for or against its exemption, 44, 45 
 
 inferences with respect to its exemption, 46 
 
 a testator cannot, unless his creditors please, take his personal assets from 
 
 them, 67 
 is the natural or proper fund for the payment of legacies, 86, 94 
 certain property held to be personal estate of a person deceased, 182 
 real estate, by a deed of partnership converted into personalty, held to be 
 
 personal estate of a person deceased, 183 
 real estate, contracted to be sold, held to be personal estate of a person 
 
 deceased, 183 
 river or canal shares, in some instances, arc, 184
 
 INDEX. 
 
 635 
 
 PERSONAL ESTATE,— (continued.) 
 
 conversion of, into real estate, 211 
 
 ■where placed when assets are ranged to pay debts, 381 
 
 See Annuity, Emblements, Exemption, Exoneration, Fixtures, 
 Glasses, Heir, Heir-Loom, Mortgage, Pictures, Trees. 
 PERSONAL REPRESENTATIVE. See Administrator, Executor. 
 PERSONAL SECURITY. See Security. 
 PHEASANTS, TAME, 200 
 PICTURES, 
 
 generally speaking, are personal estate, 182,n. (b) 
 
 but, under some circumstances, may go to tlie heir, 182, n. (b) 
 PIGEONS, 199, and n. (.r), 200 
 PIN-MONEY, 167. See Wife. 
 PLANTATIONS, 
 
 debts in the, 236, and n. (</) 
 PLEA, 
 
 of executor to action at law, 301 — 305 
 
 false, of an executor, 303, 304 
 
 executor's relief in equity, in cases where he has mispleaded at law, 
 301, n. (c) 
 
 omission to plead a deficiency of assets construed to be a confession of 
 assets, 304 
 
 of purchase without notice, 400 — 404. 
 
 See Retainer. 
 PLEDGE, 
 
 of paraphernalia, 162 
 
 of assets by an executor, 475, 476 
 
 See Mortgage, Retainer. 
 POLICY. See Insurance. 
 POSSIBILITY, 
 
 in a term of years, 172 — 174 
 
 coupled witii an interest, devise of, 173, n. (/) 
 
 See Wife. 
 POULTRY, 200 
 POWER, 
 
 to raise money to pay debts and legacies, or legacies only, 70 
 
 difference between a devise and a power to sell, 75 
 
 a party, to whom a bare power of sale is given, is unable to release the 
 power, 84 
 
 the authority conferred by a power to sell is personal, and cannot be 
 exercised by a deed executed by attorney, 84 
 
 a purchaser, under a power to sell in a will, is in by the testator, 84 
 
 donee of a power to sell may sell part at one time and part at another, 84 
 
 personal, not transferable to a new trustee appointed, 73, n. (r) 
 
 money not appointed under a, is not assets, 241 
 
 See Appointment, Debtor, Legacy, Rents and Profits.
 
 636 INDEX. 
 
 PREFERENCE, 
 
 power of an executor to exercise a preference between creditors, 285 
 See Executor, Priority. 
 
 PRESENTATION TO A CHURCH, 152, 153, n. (x), !82, n. («), 240 
 
 PRIORITY, 
 
 of successive incumbrancers of the same land, 396 
 See Creditors, Inccmbrance, Preference. 
 
 PRIVITY OF CONTRACT AND ESTATE, 306, 308 
 
 PROBATE OF A WILL, 243 
 
 duty on probate and letters of administration, 243 — 255,274 
 
 probate duty not payable on rentes, or part of the public debt of France, 
 254 
 
 general power of an executor before probate, 473 
 
 See Executor. 
 PROFITS, 
 
 accounting for profits made of assets, or a trust fund, 516 
 
 See Newspaper, Rent, Rents and Profits, Trade. 
 PROMISE, 
 
 distinction betsveen a parol promise, and a bond given, to a kept mistress, 
 280 
 
 sufficient consideration to support a, 280, n. {() 
 
 by executor to pay a debt, 504 
 
 legacy, 508— 512 
 
 PROMISSORY NOTE, 4, n. (y) 
 
 PROVISO, 
 
 operations of the word, 98, n. {b) 
 PURCHASE. See Annuity, Debt, Descent, Legacy, Notice, Purchaser. 
 
 PURCHASER, 
 
 responsibility of a purchaser of real estate, devised to pay debts, or debts 
 
 and legacies, 48 
 
 by will charged with debts, or 
 
 debts and legacies, 68 
 
 distinction between a devise and a power, with reference to his res- 
 ponsibility, 49, 50 
 
 responsibility of a purchaser of real estate, charged with legacies, 117 
 
 of an estate charged with an annuity, 1 39 
 
 where real estate is agreed to be bought, the price to be paid is made real 
 estate of tlie purchaser, 183 n., (g) 
 
 favour shewn to a purchaser bona fide, for a valuable considerati n, and 
 without notice, 400 — 404 
 
 buying or getting in a satisfied incumbrance, 414, 416 
 
 assignment of a satisfied term of years, 415, 416, 417 
 
 protected against a concealed mortgage, 421 
 
 — or misrepresented settlement, 421
 
 INDEX. 637 
 
 PURCHASER, (coyitinued.) 
 
 purchase of assets from an executor, 475, 47G 
 
 on alienation by executor of assets, the purchaser or other alienee is not 
 
 bound to see to the executor's application of the money, 476 
 See Mortgage. 
 
 REAL ASSETS, 152 
 
 REAL ESTATE. See Annuity, Assets Equitable, Conversion, Exonera- 
 tion, Land, Legacy, Mortgage, Personal Estate, Purchaser River. 
 
 REAL SECURITY. See Security. 
 
 RECEIPT, 
 
 for trust money, 539, 540 
 
 for money paid to an executor, 541, 542 
 
 RECIPE, OR MEDICAL RECEIPT, 
 property in a, 183, n. (c) 
 
 RECOGNIZANCE, 275, 276, 282, 283 
 in the nature of a statute-staple, 411 
 at common law, reference to authorities on, 414, n. (s) 
 See Incumbrance, Priority. 
 
 RECORD, 
 
 meaning of the word, 2, n. (/') 
 
 RECTORY. See Presentation. 
 
 REDEMPTION. See Equity of Redemption, Mortgage, Tacking. 
 
 RELEASE, 
 
 or extinguishment of a debt by a testamentary act, 469, and n. (a) 
 See Power. 
 
 RELIEF. See Administrator, Executor, Devastavit, Lease, Plea. 
 
 RENT, 283 
 
 reserved out of an incorporeal hereditament, 136, 137 
 
 reserved on a lease for life, 154, n. (rf) 
 
 personal estate of a person deceased, 184 
 
 distinctions which occur on rent unpaid at the death of a lessor, who is 
 
 seised in fee-simple, 185 
 may be separated from a reversion, and be made the subject of a 
 
 bequest, 185. 
 death of lessor on a rent-day, 185 
 lessor's action for rent, under a lease for years, 306 — 311, 314 
 
 RENT-CHARGE, 168 
 
 of a wife, 168 
 
 See Annuity, Land-Tax. 
 
 RENTES, (PUBLIC DEBT OF FRANCE). See Probate.
 
 638 INDEX. 
 
 RENTS AND PROFITS, 
 
 trust to raise money out of, 39 
 
 title of heir to intermediate, where there is a power of sale, 83 
 
 where placed, when assets are ranged to pay debts, 376, 377, n. (o), 378 
 
 REPUBLICATION. See Will. 
 
 RESIDUE, 
 
 distinction between a legacy and a residue, with reference to a charge on 
 
 real estate, 130, 131 
 lien on a, 485 
 See Debt, Legacy. 
 
 RESPONSIBILITY, See Answer, Executor, Interest, Purchaser, 
 Term, Trustee. 
 
 RETAINER OF ASSETS, 
 
 retaining to pay funeral expenses, or cost of administration, 261, n. (i) 
 
 right of executor to retain, in satisfaction of his own debt, 263, 275 
 
 . administrator to retain in satisfaction of his own debt, 263, 
 
 n. (f/) 275 
 executor may not, to the prejudice of legatees, retain in discharge of his 
 
 own legacy, 264, n. {d) 
 reference to authorities on, 264, n. (d) 
 executor or administrator may retain, after a decree for an account in a 
 
 creditor's suit, 264, n. (i) 
 on the doctrine, that, by operation of law, the property of the testator's 
 
 goods is altered and vested in the executor, as his own goods in 
 
 satisfaction of his debt, 264, n. (j) 
 executor redeeming out of his own money property pledged by his testator, 
 
 and the executor's right to retain it, 265, n. (s) 
 by a widow, and executrix or administratrix of her husband, 267 — 269 
 executor may retain his own debt, or the debt of his trustee, 269 
 executor may retain to satisfy a debt due to himself as trustee, 269 
 executor de son tort cannot retain, 270 
 a court of equity will not assist a, 271 
 retaining out of equitable assets, 271, 340 
 by heir or devisee, 272 
 pleading in, 263, n. (d) 
 
 retaining for damages for a breach of contract, 268, 269 
 by trustees or executors, sureties for a testator, 325, and n. (g) 
 executor retaining his own debt out of a separate estate, the assets of a 
 
 married woman, 581, and n. {e) 
 
 REVERSION, 
 
 in fee descended is, when assets, real assets, 153 — 157 
 
 REVIVAL. See Debt. 
 
 REVOCATION OF A LEGACY. See Legacy.
 
 INDEX. * 639 
 
 RIGHT, 
 
 better right to call for the legal estate, 417, 418 
 
 See Condition, Entry. 
 RINGS, 
 
 may be paraphernalia, 159 
 RIVER, 
 
 or canal, shares are in some instances real, and in others personal, 
 estate, 184 
 ROBBERY, 
 
 loss of assets by robbery or theft, 498, 499 
 ROOTS. See Emblements. 
 
 SALE, 
 
 of assets by an executor, 475, 476 
 
 of a ship by an executor, 497 
 
 of stock, 539, 544, 545 
 
 See Conversion, Personal Estate, Purchaser. 
 SATISFACTION, 
 
 buying or getting in a satisfied incumbrance, 414, 41 G 
 
 procuring an assignment of a satisfied term of years, 415, 416, 417 
 
 of a debt by a legacy, 460 
 
 of a debt, arising from a contract made by a husband, to make a provision 
 for his v/ife, in the event of her surviving him, 4^56—468 
 
 See Elegit, Term. 
 SAVINGS, 
 
 out of a wife's separate estate, 166 
 
 pin-money, 167 
 
 SECRET, 
 
 property in a medical, 183, n. (c) 
 
 property in a secret in trade, 183, n. (c) 
 SECURITY, 
 
 personal, executor or trustee not authorised to lend money on, 517 
 
 real, investment on, 519 
 
 meaning of the words real security, 519, n. (u) 
 SEDUCTION. See Bond. 
 SEISIN, 
 
 in law, 155, 156 
 
 actual, 155, 156 
 SEPARATE ESTATE. See Funeral, Order, Pin-money, Wife. 
 SERVANT, 
 
 wages of a, 277, and n. (r) 
 
 See Labourers. 
 SETTLEMENT, 
 
 purchaser or mortgagee protected against a misrepresented or concealed 
 settlement, 421
 
 640 
 
 INDEX. 
 
 SHARE. See Newsi'ait.u, Rivkr. 
 SHEEP, 200 
 
 SHIP, 
 
 is assets, 145 
 
 sale of, by an executor or administrator, 497 
 
 See Legacy Specific. 
 
 SIMPLE CONTRACT. See Creditors, Debt, London, Marshal. 
 
 SOLICITOR. See Answer. 
 
 SPECIAL CONTRACT, 
 
 a contract may be special, altliougb it does not affect real estate, as a bond 
 
 not mentioning heirs, 335, n. ( /) 
 See Creditors, Debt, Marshal. * 
 
 SPECIFIC LEGACY. See Legacy Specii ic. 
 
 SPERATE DEBTS, 145 
 
 in an inventory, are assets, 145 — 148 
 
 STAPLE, 409, n. (s) 
 statute, 408 
 
 STATUTE, 
 
 9 Henry HI. c. 18, Magna Cbarta, (crown-debts,) 33 
 
 Westm. II., 13 Edward I., c. 18, (elegit,) 14, 412 
 
 13 Edward 1., stat. 3, c. 1, (Statute of Merchants,) 408, and n. (?) 
 
 27 Edward III., stat. 2, c. 9, (Statute of the Staple,) 408 
 
 21 Henry VIII., c. 4, (refusal of part of executors to act,) 7G 
 
 23 Henry VIII., c. 6, (recognizance in nature of a Statute-staple,) 411 
 
 32 Henry VIII., c. 37, (arrears of a rent-charge,) 109, 170 
 
 33 Henry VIII., c. 39, (crown-debts,) 15 
 13 Elizabeth, c. 4, (crown-debts,) 17, 28 
 27 Elizabeth, c. 3, (crown-debts) 28 
 
 21 James I., c. 16, (limitations,) 15, 51, 433. See Limitations. 
 29 Charles II., c. 3, (frauds,) 7, 109, 425, 492, 504 
 
 3 and 4 W. & M., c. 14, (fraudulent devises,) 214—225 
 
 4 and 5 W. & M. c. 16, (fraud towards a mortgagee,) 419, n. (/t) 
 
 — — 20, (docketing judgments,) 502 
 
 24, (devastavit,) 500 
 
 8 Anne, c. 14, (action of debt for arrears of rent,) 136, 137 
 
 9 Anne, c. 10, s. 30, (postage of letters,) 274 
 
 4 George II., c. 28, (distress for rent-seek,) 135 
 
 5 George II., c. 7. (debts in plantations and colonies in America,) 23G 
 9 George II., c. 36, (charitable uses,) 346 
 
 17 George II., c. 38, s. 3, (money received by overseer of the poor,) 274 
 5 George III., c. 17, (lease of tithes or other incorporeal hereditaments,) 
 
 137 
 25 George III., c. 35, (crown-debts,) 28
 
 INDEX. 041 
 
 ^T AT VTE—Ccontinned.) 
 
 3(3 George III., c. 52, (legacy of an infant,) -I!)? n. (.i) 
 
 47 George III., St. 2, c. 74, (debts of a deceased trader,) 225 — ^228 
 
 54 George III., c. 156, (copyright,) 241 
 
 55 George III., c. 184, (duty on probate and administration,) 243 
 55 George III., c. 192, (surrender of copyholds,) 38, 65, 130 
 
 57 George III., c. 1 17, (crown-debts,) 26 
 
 I and 2 George IV., c. 121, (crown-debts,) 31 
 
 9 George IV., c. 14, (Lord Tenterden's Act,) 444 — 447 
 c. 33, (real estate in India made assets for debts,) 237 
 
 II George IV. and 1 Will. IV., c.47, (debts of a person deceased,) 228, 332 
 — c. 65 (application of dividends for an 
 
 infant,) 497, n. {x) 
 
 STATUTE-MERCHANT, 408, and n. (r) 
 
 buying or getting in an incumbrance, 406—418 
 
 reference to authorities on the satisfaction or determination of a, 414, 
 
 n. (m) 
 See Priority. 
 
 STATUTE-STAPLE, 408, and n. (r) 
 execution under a, 17, n, (s) 
 recognizance in the nature of a, 411 
 buying or getting in an incumbrance, 406 — 418 
 reference to authorities on the satisfaction or determination of a, 414, 
 
 n. (m) 
 See Priority. 
 
 STATUTES OF LABOURERS, 277, n. (p) 
 
 STOCK, (money in the public funds,) 
 is assets, 145, 148 
 
 passing under particular words used in a will, 148, n. (s) 
 general nature of a sura of government stock, 175, n. («') 
 is a chose in action, 174 
 
 right of executor to transfer stock specifically bequeathed, 477 
 sold by a trustee contrary to his trust, 517 
 sale, or transfer, of, 539, 544, 545 
 See Executor. 
 
 SUBSTITUTION. See Legacy. 
 
 SUIT IN EQUITY. See Answer, Creditors, Injunction. 
 
 SURETY. See Retainer. 
 
 SWINE, 200 
 
 TABULA IN N A UFRAGIO, 407 
 TACKING TO A MORTGAGE, 388
 
 G42 INDEX. 
 
 TENANT, 
 
 legal estate of a, 399, 401, 415 
 
 TERM, 
 
 of years attendant on the inheritance, 22, 415, 416, 417 
 
 if a term of years is created out of the inlieritance, in trust to raise a sum of 
 
 money, this money is payable out of real estate, 1 27 
 liability of an attendant term to be assets, 149, n. («•) 
 of years of a wife, 170 
 
 trust of a term, which attends the inheritance of a wife, 172, n. (d) 
 of years, possibility in a, 172 — 174 
 
 waver by executor of a term of years, 307, 308, ib. n. ( ;'), 310 
 procuring an assignment of a satisfied term, 415, 416, 417 
 who is entitled to the first benefit of a satisfied term of years, that has not 
 
 been assigned to, or in trust for, any particular incumbrancer, 417 
 liability of a trustee, if, with knowledge of a former mortgage, he assigns a 
 satisfied term to a later mortgagee, 416 
 
 TESTAMENTARY EXPENSES, 257,261,274 
 retaining to pay, 262, n. 
 construction put on the words, in a particular will, 262 
 
 THEFT. See Robbery. 
 
 TIMBER, 199 
 
 See Hire, Trees. 
 
 TITHES, 
 
 in the hands of laymen are real assets, 153 
 
 TITLE DEEDS. See Mortgage. 
 
 TRADE, 
 
 profits of a testator's goods, traded with by executor, are assets, 144 
 
 assets employed in, 510 
 
 executor continuing the trade of his testator, 516, 527 
 
 of a testator, carried on under the direction of the court of chancery, 527 
 
 directed by will to be carried on by executors, 532 
 
 See Election, Executor, Good-will, Partnership, Secret, Trader. 
 
 TRADER, 
 
 debts of a deceased, 225, 232 
 
 TRANSFER. See Stock. 
 
 TREES, 
 
 felled, are, as between heir and executor, personal estate, 182 n. (b) 
 bought by a person, who dies before they are felled, are personal estate, 
 
 182, n. {b) 
 binxoes, 200, n. (a) 
 See Heir.
 
 INDEX. 643 
 
 TRINKETS, 
 
 may be paraphernalia, 159 
 
 TRUST, 
 
 debt contracted by a breach of, 12 
 
 resulting for a testator's heir at law, 39 . 
 
 estate, devise of a, 69 
 
 estate in fee-simple is real assets, 152 
 
 of a term, which attends the inheritance of a wife, 172, n. ((/) 
 
 liability of executor or trustee for a breach of, 538 
 
 estate for years is, in equity, legal assets, 320 
 
 estate in fee is legal assets, 320 
 
 a bond taken in the name of B., in trust for A., is, in equity, legal assets 
 of A., 320 
 
 money is, by the court of chancery, invested in tlie three per cent, con- 
 sols, 519 
 
 receipt for trust-money, 539, 540 
 
 See Lease, Notice, Term, Trustee. 
 
 TRUSTEE, 
 
 effect of his misapplication of money, which he has raised out of real 
 
 estate, and that ought to have been applied by him in payment of 
 
 debts or legacies, 130 
 liability of his assets to make good a breach of trust, 12, n. (y) 
 mortgage acquired in the character of, 423 
 legal estate of a trustee will not pass by general words of description of 
 
 land used in his will, if the lands are devised to uses not applicable 
 
 to trust property, 428, n. (v) 
 profits made by him of the trust fund, 516 
 stock sold by a trustee contrary to his trust, 517 
 loan or investment by, 517 
 
 or executor, is not authorised to lend money on personal security, 517 
 concurring in certain acts, 539 
 
 his responsibility occasioned by concurring in a sale of stock, 544 
 responsibility for so much only of a trust fund, as is actually misapplied by 
 
 him, 546, 547, and n. (y) 
 clause of indemnity in^^i^ll, 557 
 See Executor, Ini^kest, Loss, Power, Retainer, Term, Trust. 
 
 VEGETABLES. See Emblements. 
 
 VENDOR, 
 
 his lien on' the estate sold, 343 
 
 VICARAGE. See Presentation. 
 
 VOLUNTARY, 
 
 bond, 275, 277—282 
 judgment, 277
 
 644 INDEX. 
 
 WAGES, 
 
 of a servant, 277, and n. (r) 
 See Labourers. 
 
 WASTE OF ASSETS, 304. 
 See Answer, Devastavit. 
 
 WATCHES, 
 
 may be paraphernalia, 159 
 
 WAVER, 
 
 by executor, of a term of years, 307, 308, ib., n. (j), 310 
 
 WIDOW. See Paraphernalia, Wife. 
 
 WIFE, 
 
 paraphernalia of a, 158 
 
 her personal chattels made by marriage the property of her husband, 1G3 
 
 chattels possessed by a wife, as executrix or administratrix, 163, n. (a) 
 
 chattels settled or given to the separate use of a, 164 
 
 at law a husband cannot, without the intervention of a trustee, make 
 
 during the coverture a gift to his wife for her separate use, and to 
 
 take effect in his life-time, 165 
 but, in a court of ec^uity, such gifts are supported, although not made to 
 
 a trustee for the wife, 165 
 gift of personal chattels from a husband to his wife, 165, 166, 167 
 separate estate of a, 164—167, 577—582 
 pin-money of a, 167 
 
 rent, interest, or dividends of a separate estate, 166 
 savings out of a separate estate, 166 
 savings out of pin-money, 167 
 
 a wife's separate estate, made so by the gift of any person, not her hus- 
 band, is in equity not assets for the payment of her husband's 
 
 debts, 166 
 a wife's pin-money made her separate estate by the gift of her husband, by 
 
 means of articles or a settlement executed previously to the marriage, 
 
 is not assets to pay the husband's debts, 167 
 but if a husband during the coverture makes a gift to his wife of personal 
 
 chattels, these, although given to the wife's separate use, are assets to 
 
 pay the husband's debts, 167 
 rent-charge of a, 168 
 terms of years of a, 170 
 
 trust of a term which attends the inheritance of a, 172, n. (d) 
 her possibility in a term of years, 172 — 174 
 choses in action of a, 174, 242 
 mortgage term of a, 171, n. (r) 
 assignment by a husband of a possibility possessed in the right of hit. 
 
 wife, 173, 174 
 power of a husband to dispose of liis wife's^ present choses in action, 177
 
 INDEX. <345 
 
 \\lTE—(('onfimied.) 
 
 when a wife's present cliose in action survives to her, 178, 181 
 
 husband's release of a chose in action of his wife, 178, n. (a) 
 
 title of husband to his wife's present choses in action, if lie survives 
 her, 179 
 
 when a wife's contingent chose in action, or contingent reversionary inte- 
 rest, survives to her, 180, 181 
 
 assignment by a husband of his wife's chose in action, which is a contin- 
 gent reversionary interest, expectant on an estate for life, 180 
 
 assignment by a husband of his wife's vested reversionary interest, 180 
 
 husband's contract by settlement to purchase his wife's choses in action, 
 180, 181 
 
 bond given to her by her husband before marriage, to leave to her a 
 certain sum, is valid, 2(>7, 268, n. (_/') 
 
 exoneration out of the assets of a husband, who has mortgaged his wife's 
 estate, 363 
 
 when on a mortgage of a wife's land, the debt is the debt of the husband, 
 it is payable before all legacies bequeathed by him, but all his other 
 debts are payable before it, 365 
 
 if the mortgage has been paid off out of the husband's assets, his cre- 
 ditors have not a right to stand in the place of the mortgagee, to 
 come round on the wife's estate, 365, 366 
 
 debts payable out of a separate estate, the assets of a married woman, 577 
 
 her power of disposition of a separate estate, 577 — 581 
 
 anticipation of a separate estate, 577, and n. (a) 
 
 out of a separate estate, which is the assets of a married woman deceased, 
 a Court of Equity pays her debts by bond and by simple contract 
 pari passu, 581 
 
 See Apparel, Burial, Paraphernalia, Retainer, Satisfaction. 
 
 WILL, 
 
 unless republished, land acquired after a will is made will not pass by it, 
 although the terms of it express this intention, 432, n. (n) 
 
 clause of indemnity to trustees or executors, 557 
 
 See Charge, Devise, Lease, Legacy, Mortgage, Probate, Release, 
 Trade, Trustee. 
 
 WORK, 
 
 begun, or agreed to be performed, by a testator, 530 
 
 WRIT, 
 
 of elegit, 412 
 
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