intestate's real estate or a sufficient part thereof be sold (3) &c. [See Usual Directions, No. VI. ante.] And out of the money arising by such sale, the plaintiff and the other specialty creditors of the said intestate are to be paid what shall be remaining due to them. And in case the said intestate's specialty creditors (4) shall exhaust any part of his personal estate in payment of their demands, then the said intestate's simple contract creditors are to come in and receive a satisfaction pro tanto out of his real assets. And his Honor doth reserve the consideration of the costs of this suit, and of all further directions until after the said Master shall have made his report. And for the better clearing of the accounts before directed &c. [See Usual Directions, No. II. ante.] Gregory v. Barefoote, M. R. 23rd Nov. 1747. Reg. Lib. A. 1747. fol. 101.

NOTES.

(1) Bill by Bond Creditor.

At law a bond creditor is entitled to charge the heir as a debtor, and to have execution against the whole of the lands descended. See Jeffreson v. Morton, 2 Saund.7 a. note. Tidd's Pract. 945. Therefore, on a bill by a bond creditor against the heir of the obligor, the Court will direct a sale of the entirety. See Stileman v. Ashdown, 2 Atk. 608. Curtis v. Curtis, 2 Bro. 629. But at law a judgment creditor is only entitled to charge the heir as tenant, and to have execution against a moiety of the lands descended. See Jeffreson v. Morton, 2 Saund. 7. note. Therefore, on a bill by a single judgment creditor, not on behalf of himself and others, against the heir of the conusor, the Court will only accelerate payment by directing a sale of moiety. Stileman v. Ashdown, 2 Atk. 477. 608. 610. S. C. Ambl. 13. Rowe v. Bant, 1 Dick, 150. Burroughs v. Elton, 11 Ves. 33. O'Gorman v. Comyn, 2 Sch. & Lef. 150. Otherwise where there are more judgment creditors than one. Burroughs v. Elton, supra. So upon a bill by a single judgment creditor against the conusor to set aside a fraudulent conveyance, the Court will only give relief as to a moiety. See Higgins v. York Buildings Company, 2 Atk. 107. Otherwise where there are more judgment creditors than one, S. C.

Where judgment creditors come into equity to remove a fraudulent conveyance, the Court will not decree a sale, but will leave them to their elegit. Higgins v. York Buildings Company, supra.

As to form of judgment against heir, whether general or special. See Jeffreson v. Morton, 2 Saund. 7 a. note. Tidd's Pract. 946. As to what are assets by descent. See 2 Saund. 8 a.

For redemption by judgment creditor. See Decrees respecting Mortgages, No. XI. post.

For bill by single bond creditor. See Personal Assets, No. I. note (1), ante.

(2) Rents and Profits.

At law a bond creditor is only entitled to judgment against the heir for the lands descended of which he was seised at the time of suing the original writ or filing the bill. See Jeffreson v. Morton, 2 Saund. 7 a. note. And see Form of Judgment against Heir. Tidd's Appendix, 302. But in equity he is also entitled to an account of the mesne profits from the death of the obligor. See Curtis v. Curtis, 2 Bro. 628. 633.

In Rowe v. Bevis, 1 Dick, 178. it is said, that the rents and profits of a real estate descended are to be accounted for and applied before the inheritance is sold and applied. And see Gregory v. Barefoote, supra. But usually the rents and profits are only directed to be applied in case of the deficiency of the produce of the sale. See what is said by Mr. Dickens, in Bedford v. Leigh, 2 Dick. 709. And see Davies v. Topp, No. VI. post. Wride v. Clarke, No. VII. post.

Wride v. Clarke, No. VII.

So in the case of equitable assets. post. Fenoulhet v. Passavant, No. V. post. Silk v. Prime, 1 Dick. 385. But see Plunket v. Penson, No. IV. post. Lowthian v. Hasel, 4 Bro. 167. Dence v. Smith, M. R. 16th June, 1826. Reg. Lib. A. 1825. fol. 1335.

(3) Sale.

In Holme v. Stanley, 8 Ves. 2. it is said by the Lord Chancellor, that the old habit of the Court was first to administer the personal estate, and in case of a deficiency to raise the residue from the real estates. But that the habit of the Court now is, if the Master foresees that the personal estate will be deficient, to permit a sale of the real estate in the mean time. And see Lloyd v. Johnes, 9 Ves. 65. Curtis v. Price, 12 Ves. 105.

But it seems that formerly a sale was usually directed on the original hearing. Gregory v. Barefoote, supra; and Decrees for Administration of Real Assets, which follow.

And that of late a sale is not decreed until further directions. See Modern Decree for Administration of Real Assets, No. XVI. post. Reservation of further Directions. Usual Directions, No. XV. ante.

A purchaser under the decree is not affected by irregularity in the decree, in directing a sale, or in the proceedings under it, as where more land is sold than is necessary. Lutwych v. Winford, 2 Bro. 248.

Or where the account of the personal estate is omitted to be taken. Lloyd v. Johnes, supra.

Or where no account of the personal estate is directed. Curtis v. Price, supra. Bennett v. Hamill, 2 Sch. & Lefr. 566.

(4) Direction for marshalling.

post.

Passa

In Sharpe v. Earl of Scarborough, 4 Ves. 542. it is said by the Solicitor-General, that the common direction in every decree, as to marshalling the assets, expressly mentions specialty creditors, but does not refer to judgment creditors. And see Gregory v. Barefoote, supra. Bedford v. Leigh, 2 Dick. 709. Grosvenor v. Cook, 1 Dick. 305. Wride v. Clarke, No. VII. Fenoulhet v. vant, No. V. post. Newton v. Bradshaw, Appendix (1). But the direction for marshalling has been extended to judgment. creditors. See Trelawney v. Booth, 1 West, 442. S. C. 2 Atk. 307. Mainwaring v. Ellerker, Appendix (2). Bowen v. Prentice, Ib. Blatch v. Wilder, 1, West, 324. S. C. 1 Atk. 420. (Q. the last case, as the direction in the decree corresponds with that in the case of equitable assets. See Equitable Assets, post; although the assets were held to be legal.) And see Finch v. Earl of Winchelsea, 3 P. W. 399. note.

Where there are mortgagees, the direction for marshalling is expressly extended to them. See Davies v. Topp, No. VI. post.

See

The effect of this direction is not to prevent the specialty creditors from being paid in full. And this is sometimes so expressed. Decree in Wride v. Clarke, No. VII. post. But only to prevent their being so paid to the prejudice of the simple contract creditors. The direction is usually prospective. Gregory v. Barefoote, supra. Mainwaring v. Ellerker, Appendix (2). Newton v. Bradshaw, Appendix (1). Fenoulhet v. Passavant, No. V. post. Wride v. Clarke,

No. VII. post. In Davies v. Topp, No. VI. post, it was retrospective. But whether in that case it extends to sums received previous to the filing of the bill, Q. See Equitable Assets, No. IV. Note (4) post.

Further Directions.

In Gibbs v. Ougier, 12 Ves. 416. it was said arguendo, and assented to by the Master of the Rolls, that if the Court sees at any period, that creditors by simple contract will be deprived of their debts by specialty creditors going against their fund, the Court will of itself, without being called upon, direct the assets to be marshalled, and in that case a decree was made for marshalling the assets, though the bill was not framed with that view.

But in Pott v. Gallini, 1 S. & S. 206. a decree was made in a creditor's suit for marshalling the assets, notwithstanding a prior decree in another suit for the administration of the estate.

APPENDIX (1).

Direction for marshalling Assets.

And in case the specialty creditors of the said testator shall exhaust any part of the said testator's personal estate, the simple contract creditors of the said testator are to stand in their place, and receive a satisfaction pro tanto out of the monies which shall arise by such sale. Newton v. Bradshaw, L. C. 7th July, 1801. Reg. Lib. B. 1800. fol. 932.

APPENDIX (2).

Direction for marshalling Assets as to Judgment Creditors. And in case any of the creditors by specialty or judgment of the said testator, shall exhaust any part of his personal estate, then the creditors by simple contract are to stand in their place to receive a satisfaction pro tanto out of the real estate. Mainwaring v. Ellerker, M. R. 3d July, 1747. Reg. Lib. B. 1746. fol. 396.

So in Bowen v. Prentis, L. C. 9th November, 1747. Reg. Lib. A. 1747. fol. 113.

No. IV.

DECREE WHERE ASSETS EQUITABLE.

[The testator was cestui qui trust in fee of estates, which he mortgaged in fee (1), and charged by his will with debts.]

[Inter alia.] The defendant Joseph Penson the heir at law of the testator Thomas Penson having admitted his will, his Lordship declared the same ought to be established &c. [See Establishing Will, No. II. ante], and doth order and decree the same accordingly, and that it be referred to Mr. H. one &c. to take an account of what is due to the said defendants Bramston and Mabbat for principal and interest on their respective mortgages, and to tax them their costs of these suits. And also to take an account of what is due to the plaintiffs in both causes, and to all other the creditors of the said testator for their respective debts, and to compute interest &c. and to this end the said Master is to cause an advertisement &c. and the said Master is likewise to take an account of the said testator's personal estate, come to the hands of &c. [See Decree in Creditor's Suit, Personal Assets, No. I. ante.] And such personal estate is to be applied in payment of the debts of the said testator in a course of administration. And in case the said testator's personal estate shall not be sufficient to pay his debts, then the said Master is take an account of the rents (2) and profits of the said testator's real estate which have accrued since his death, and have come to the hands of &c. [See Decree in Suit by Bond Creditor, No. I. ante], and the same are to be applied in payment of the said testator's debts not satisfied out of his personal estate, pari passu. And in case the personal estate and the rents and profits of the real estate of the said testator shall not be sufficient to pay his debts, the mortgagees now submitting to a sale (3) of the said real estate, It is ordered and decreed that the said real estate or a sufficient part be sold &c. [See Usual Directions, No. VI. ante.] And the money arising by the said sale is to be applied in the first place in payment of what the said Mas