the Lord Keeper allowed the defendant's demurrer, saying, "The executor claimed en autre droit, but the heir to his own use (o)." In this case the lien of a judgment must be carefully distinguished from a bond debt. The latter is a debt upon the heir himself, and may be recovered against him to the extent of the assets descended; but a judgment is not a debt against the heir, but a specific lien upon the estate (p). The question, therefore, before the Lord Keeper was, not whether a trust estate should be assets, but whether a judgment, which bound a moiety of the lands at law, should in equity be a lien to the same extent upon a trust; and the Lord Keeper, by allowing the defendant's demurrer, must have considered it was not a lien. However, the reporter remarks, that "the demurrer had not been taken as good by the old and best practitioners; for at law the heir was as much chargeable with the ancestor's judgment as the executor with the testator's debts, and equity ought to follow the law."

The liberality of modern times has since adopted the reporter's suggestion. It was long ago established that a judgment creditor might redeem a mortgage in fee (q),

(0) Pratt v. Colt, Freem. 139. "There seems to be a diversity between the case of the executor and of the heir, for in debt against the executor nothing shall be put in execution but the goods of the deceased; and the reason is because the debt is not the debt of the executor, but of the testator, so that he is charged in another's right, and has the goods in another's right. But where the heir has assets, the debt of his ancestor is become his own debt in respect of the assets

which he has in his own right, and the writ against him is in the debet and detinet." Davy v. Pepys, Plowd. 440.

(p) See Stileman v. Ashdown, 2 Atk. 608.

(q) Greswold v. Marsham, 2 Ch. Ca. 170; Crisp v. Heath, 7 Vin. Ab. 52; (The former case has been compared with Reg. Lib., A. 1685, f. 399, and the report appears substantially correct: the latter case has not been found.) Plucknett v. Kirke, stated from R. L. supra ;

and it now seems to be settled that he may prosecute his elegit against any other equitable interest (r).

Davidson v. Foley (s), and Plasket v. Dillon (t), were cases of a legal elegit, but may be usefully noticed to prevent misapprehension. In the former case, Lord Foley had devised an estate to trustees for a term of 99 years upon certain trusts, and, subject thereto, to Thomas Foley for life, with remainders over. His Lordship had also devised other estates to trustees for a term of 101 years, and, subject thereto, to Thomas Foley for life, &c. as before. Judgments were entered up against Thomas Foley, and the trusts of the terms having been satisfied, and the beneficial interest resulting to the tenant for life, the creditors sued out elegits, and filed a bill praying to have the terms declared attendant on the inheritance, and that the trustees might be restrained from setting up the terms at law. The warrants of attorney on which the judgments were grounded were afterwards discovered to be void; but Lord Thurlow, in dismissing the bill, observed, "All he could gather from the cases was, that where the Court could see there was a good judgment, it would not stop without aiding that title by what was called an equitable elegit, but he could not carry it higher than that. The æquitas sequens legem must be such as

Sharpe v. Earl of Scarborough, 4 Ves. 538, and the cases cited Ib. 541; Stileman v. Ashdown, 2 Atk. 477; Fothergill v. Kendrick, 2 Vern. 234; and see Steele v. Philips, 1 Beat. 188; Forth v. Duke of Norfolk, 4 Mad. 503; King v. De la Motte, Forr. 162; and see Freeman v. Taylor, 3 Keb. 307.

(r) Forth v. Duke of Norfolk, 4 Mad. 504, per Sir J. Leach; Serj. Hill's opinion, Ib. 506, note (a); Foster v. Blackstone, 1 M. & K. 311, per Sir J. Leach: and see Lodge v. Lyseley, 4 Sim. 70.

(s) 2 B. C. C. 203; 3 B. C. C. 598.

(t) 1 Hog. 324.

to assure the Court the case was such as it could be followed by a legal execution; but where it appeared the judgment could not be followed by a legal elegit, the Court could not follow it by an equitable elegit."

In Plasket v. Dillon, Lord Dillon, the tenant for life, had demised an estate to trustees for 99 years, if he should so long live, upon trust, after discharging certain incumbrances, to pay to himself for life an annuity of 5,000%., and, subject thereto, upon certain trusts for his creditors. A judgment was afterwards entered up against him, and an elegit sued out, but as there was no beneficial interest upon which the elegit could operate at law, the judgment creditor filed a bill to attach the rentcharge of 5,000l. a year in equity. Sir William MacMahon said, "The rule of law is, that the freehold property of the debtor shall be liable to the demands of his judgment creditors. Lord Dillon insists that the magical operation of a voluntary deed shall clear it from all incumbrances. If the statute of uses had executed the trusts of this deed, Lord Dillon's interest would have been extendible, and the interposition of a trust cannot exempt it in this Court (u)." His Honor's decision in favour of the judgment creditor was affirmed on appeal by Lord Manners, and afterwards, on a further appeal, by the House of Lords (x).

These then were cases of a judgment creditor having a legal elegit, and seeking to remove an impediment to the legal execution of it; but in Tunstall v. Trappes (y) the elegit was, strictly and properly speaking, equitable. By an indenture of 1811, Trappes appointed an estate

(u) 1 Hog. 328.

(x) 2 B. N. R. 239.

(y) 3 Sim. 286; and see Lewis v. Lord Zouche, 2 Id. 388.

to the use that Davis should receive an annuity, and, subject thereto, to the use of Withy and his heirs, upon trust in the first place to secure the annuity, and then in trust for Trappes. In 1812 a judgment was entered up against Trappes by Sir Henry Lawson. In the beginning of the year 1814 Trappes proposed to one Cranmer, that Cranmer should pay off Davis's annuity, and several incumbrances which were prior to it, and take a mortgage of the property for securing the advances he should thus make. On the 1st July, 1814, Cranmer paid off Davis's annuity, and took a conveyance of the legal estate from Withy to himself in fee, by way of security for the monies advanced and to be advanced. He afterwards paid off several charges prior to the annuity, and took assignments of the terms by which they were secured in the names of trustees. It was proved that Cranmer had notice of the judgment some time between the 1st and 11th days of July, 1814, and with such notice had continued to make advances to a very considerable amount. The question was, whether Cranmer was bound by the judgment, and if bound at all, then to what extent. The Vice-Chancellor decided that Cranmer was entitled to priority over the judgment creditor in respect of the sums paid by him for procuring the assignments of the prior charges, and for redeeming the annuity, those incumbrances having been created prior to the time when Cranmer had notice of the judgment ; but that his claim in respect of the monies advanced by him subsequently to that period should be postponed to the judgment. In other words, the trust estate was bound by the judgment in the hands of a purchaser with notice, where he could not protect himself under the assignment of a prior charge.

The present doctrines of the Court have been well expressed by Sir J. Leach. "A judgment-creditor,” he said, "has at law by the Statute of Frauds execution against the equitable freehold estate of the debtor in the hands of his trustee (z), provided the debtor has the whole beneficial interest; but if he has left a partial interest only in his equitable freehold estate, the judgment creditor has no execution at law, though he may come into a court of equity, and claim there the same satisfaction out of the beneficial interest, as he would be entitled to at law if it were legal. Every voluntary assignee of this equitable interest of the debtor will be in the same situation, with respect to the claim of the judgment creditor, as the debtor himself was. Every assignee for valuable consideration will hold the equitable interest discharged of the claim of the judgment creditor, unless he has notice of it (a)."

An estate given to trustees upon trust to be converted into personalty has in equity all the properties of personalty, and is therefore not bound by a judgment against the person to whom the proceeds of the sale are to be paid.

Thus in Foster v. Blackstone (b) estates were conveyed by the Duke of Marlborough to trustees in fee upon trust, if the said trustees should in their discretion think proper but not otherwise, to raise any sum of money for satisfaction of any debts due and owing from his son, the Marquis of Blandford, which the trustees should consider advisable to be paid; and to pay the surplus, if

(z) As to the operation of the Statute of Frauds, see infra, p. 541. (a) Forth v. Duke of Norfolk,

4 Mad. 504.

(b) 1 M. & K. 297.