the purchase of bank 3 per cent. annuities, in the name and with the privity &c. [See Usual Directions, No. X. ante.] And it is further ordered, that the interest of such bank annuities be paid to the plaintiff until the further order of the Court. And the said Accountant-General is to draw &c. [See Usual Directions, No. XIII. ante.] And in case all the creditors of the said testator shall not be satisfied what shall be reported due to them for their debts out of the several funds before mentioned, it is ordered, that they be at liberty to apply to the Court to have the deficiency made good out of the said testator's personal estate specifically bequeathed (6), as they shall be advised. And for the better taking of the accounts &c. [See Usual Directions, No. II. ante.] And it is further ordered, that all parties be paid their costs of this suit, to be taxed by the said Master out of the said testator's estates. And any of the parties are to be at liberty to apply (7), &c.

[See Usual Directions, No. XIX. ante.] Stuart v. Tichborne, Lords Commissioners, 19th July, 1783. Reg. Lib. B. 1782. fol. 664.

For order for payment of incumbrancers out of produce of sale, and for acknowledgment of satisfaction, &c See Hand's Pract. 202.

NOTES.

(1) Where there are trustees to sell, and a bill is filed against them, it is not usual to make the purchasers parties, but to state the contracts and pray an inquiry. Salvidge v. Hyde, Jac. 153.

(2) Interest on Judgments.

In Robinson v. Harrington, Appendix (1), (which was a suit by judgment creditors against the debtor, and not in the administration of assets,) interest was directed to be computed on the judgments generally.

And in Stileman v. Ashdown, 2 Atk. 481. S. C. Ib. 608. Ambl. 13. Interest was allowed on a judgment in a suit for the administration of assets.

And in Earl of Bath v. Earl of Bradford, 2 Ves. 587. interest was

allowed on judgments in the administration of assets, although the demand was founded in a breach of covenant.

But in Gibson v. Egerton, 1 Dick. 408. interest under the like circumstances was refused.

And the general rule is not to allow interest on a judgment in the administration of assets. See Styles v. Attorney-General, 1 West, 132. Deschamps v. Vanneck, 2 Ves. jun. 719.

But where the judgment is on a bond with a penalty, interest will be allowed to the extent of the penalty. Sharpe v. Earl of Scarborough, 3 Ves. 557.

In general interest will not be allowed penalty. Bromley v. Goodere, 1 Atk. 80. Dick. 305. Gibson v. Egerton, supra.

on a bond beyond the Grosvenor v. Cooke. I

Keltleby v. Keltleby,

Thomas, 5 Ves. 329.

2 Dick. 514. Tew v. Earl of Winterton, 3 Bro. 489. Knight v. Maclean, 3 Bro. 496. And see Mackworth v. Clarke v. Seton, 6 Ves. 411.

Although judgment has been obtained upon it. ton, supra. Tew v. Earl of Winterton, supra. Scarborough, supra. Clarke v. Seton, supra.

Gibson v. EgerSharpe v. Earl of

But there may be exceptions to this rule. Clarke v. Seton, 6 Ves. 416.

As where the judgment creditor has been delayed by injunction. Hale v. Thomas, 1 Vern. 350. Duval v. Terry, Show. P. C. 15. S. C. cited 6 Ves. 79. 92. Exp. Boyd, 1 G. & J. 295.

So where the debtor comes into equity for an account of the rents and profits received by the judgment creditor. Godfrey v. Watson, 3 Atk. 517. And see Hale v. Thomas, 1 Vern. 351.

v. Earl of Bradford, 2 Ves. 590.

Earl of Bath

So where the creditor has a collateral security. Clarke v. Lord Abingdon, 17 Ves. 106.

So where the creditor might have retained the rents and profits but applied them in satisfaction of other creditors. Atkinson v. Atkinson, 1 Ba. & Be. 238.

It seems that where the judgment was in respect of a demand which carried interest, interest would be allowed in the administration of assets (as in error and in bankruptcy.) See Exp. Boyd

1 G. & J. 297.

That at law interest may be recovered in an action a judgment.

See Tidd's Pract. 602.

Hunter, 2 Ves. jun. 162.

Bedford v. Coke, 1 Dick. 181. Creuze v.

That in an action upon a bond interest cannot be recovered beyond the penalty. See Wild v. Clarkson, 6 T. R. 303. But see Earl of Lonsdale v. Church, 2 T. R. 388.

But that in an action on a judgment on a bond, interest may be recovered beyond the penalty. See M Clure v. Dunkin, 1 E. R. 436. Bodily v. Bellamy, 2 Burr. 1096. S. C. cited, 6 Ves. 416.

That interest will be allowed in error upon a judgment affirmed. See Tidd's Pract. 1230. Or upon a judgment of non pros. Ib.

1232.

But not unless it was recoverable in the court below. Ib. 1231. Unless the writ of error was brought for delay. Ib. See Earl of Bath v. Earl of Bradford, 2 Ves. 589.

(3) Priorities.

In Earl of Bristol v. Hungerford, 2 Vern. 525. it was held that mortgages were to be preferred to judgments and other real incumbrances. And see decree in Bothomly v. Lord Fairfax, 1 P. W. 334. But this was reversed on appeal, and it was held that mortgages, judgments, statutes, and recognizances, were to be paid according to their priorities in order of time. Earl of Bristol v. Hungerford, supra. And see cases cited by Solicitor-General, arguendo, in Sharpe v. Earl of Scarborough, 4 Ves. 541. But a judg ment creditor who has sued out an elegit, is entitled to priority over one who has not. Rowe v. Bant, 1 Dick. 152. A recognizance not enrolled, is only considered as a specialty. Bothomly v. Lord Fairfax, supra.

The priorities must be taken as they stood at the time of the decree, and cannot afterwards be varied. Earl of Bristol v. Hungerford, supra. Wortley v. Birkhead, 2 Ves. 574. And see S. C.

3 Atk. 811. Exp. Knott. 11 Ves. 619.

(4) See Decree for Administration of Legal and Equitable Assets subject to Mortgage &c. No. VII. Note (2), ante.

(5) By the will of the testator, his legacies were charged on his real estates, but not his debts. It seems, therefore, that the surplus produce of the trust estates was legal assets, and consequently, that this direction should have been confined to specialty creditors.

(6) See Decree in Creditor's Suit, Personal Assets, No. I. Note (6),

ante.

(7) Further Directions are not reserved. See Reservation of Further Directions, No. XV. ante.

APPENDIX (1).

Direction for Interest on Judgments.

And it is further ordered, that the said Master do likewise take an account of what is due for principal and interest to the several judgment creditors who are parties to this suit, and also to the several other judgment creditors of the defendant, Henry Harrington; and all the said judgment creditors are to be at liberty to come before the said Master and prove their judgments. And the said Master is to cause an advertisement to be published in the London Gazette, and appoint a peremptory day for that purpose; and such of the said judgment creditors as shall not come in by that time are to be excluded the benefit of this decree. Robinson v. Harrington, L. C. 30th June, 1755. Reg. Lib. B. 1754. fol. 350. of same Decree. See 2 Newl. Pract. 334.

For Minutes

No. XIV.

DECREE ESTABLISHING WILL, EXCEPT AS TO PRODUCE OF REAL ESTATES &c. BEQUEATHED TO CHARITIES.

This Court doth declare the will of Thomas Hodson, the testator in the pleadings named, dated the 11th day of July, 1819, and the codicils thereto, well proved &c. [See Direction for Establishing Will, No. I. ante.] except as to so much of the charity legacies thereby bequeathed as are directed to be paid out of the money to arise by sale of the said testator's real and leasehold estates, or to come out of any mortgages or chattels real belonging to the said testator, and doth order and decree the same accordingly. And as to so much of the said charity legacies as are directed to be paid out of the money to arise by sale of the said freehold and leasehold estates, this Court doth declare that the same is void, as being contrary to the statute passed in the Ninth year of the reign of his late majesty king George the Second, intituled,

"An Act to restrain the disposition of Lands, whereby the same become unalienable." And the plaintiffs by their bill, praying that accounts of the said testator's personal estate, and of the rents and profits of his real estates, received by or come to the hands of the plaintiffs, his executors or executrix, may be taken, this Court doth order that it be referred to Mr. D. one &c. to take an account of the personal estate &c. [See Decree in Suit by Legatee, Personal Assets, No. IV. ante.] And it is ordered, that the said testator's personal estate, not specifically bequeathed, be applied in payment of his debts and funeral expenses in a course of administration, and then in payment of his legacies; but this is to be without prejudice to the question, as to what part of the said charity legacies may be void, and the apportionment thereof; and for that purpose the said Master is to distinguish such part of the said testator's said personal estate as arose from leasehold estate, mortgage, or chattels real. And it is ordered, that the said Master do take an account of the rents and profits &c. [See Decree in Suit by Bond Creditor, No. III. ante.] And for the better taking the said accounts &c. [See Usual Directions, No. II. ante.] And the said Master is to be at liberty to make a separate report, or reports, as &c. And this Court doth reserve the consideration of all further directions, and of the costs of this suit, until &c. [See Usual Directions, No. XV. and No. XVII. ante.] And any of the parties are to be at liberty to apply &c. Directions, No. XIX. ante.] Hayter v. Goode, V. C. 18th March, 1822. Reg. Lib. A. 1821. fol. 1353.

[See Usual

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