said, "Equity follows the law in this case; and as the plaintiff can extend only a moiety there, he shall have no more here. Suppose it was the case of a bond creditor, he might have an action of debt against the heir, and judgment against him upon assets descended; and this he is entitled to at common law, for it is the debt of the heir, and the action is in the debet and detinet; but if a judgment was obtained against the ancestor, a scire facias could not be brought against the heir, because at common law, the heir was not bound. There is no doubt but, if it had continued a bond, the whole assets would have been liable in the hands of the heir; but before the Statute of Westminster, there was no remedy against the ancestor in his lifetime upon a judgment on his land, and it is that statute which subjects one moiety thereof to the judgment. The consequence of that is, that, notwithstanding the ancestor is dead, if the land comes into the hands of the heir or purchaser, it comes equally bound. In what right, then, is the scire facius brought against the heir or purchaser? Why, only as terre-tenant, and by virtue of the statute. I thought of the objection myself, that a bond creditor would be in a better situation than a judgment creditor, and so he is;

for so soon as the bond debt is turned into a judgment, it is extinct against the ancestor, and the creditor cannot in the lifetime of the ancestor bring any action on the bond; can hè then bring any action against the heir after it is entirely extinct? If this is the case at law, what is there in equity to better his case? Why, nothing more than to accelerate the payment, by directing a sale of the moiety, and not let the judgment creditor wait till he has been paid out of the rents and profits, but equity cannot change the rights of the parties."

If, however, a judgment creditor had redeemed a subsisting mortgage, he being obliged to redeem the whole, was entitled to have the entirety of the lands comprised in the mortgage sold for the satisfaction of his debt. And he could also go against the entirety where the lands were being sold under the direction of the Court, and were at the same time subject to a subsisting mortgage which he was entitled to redeem."

As a general rule, the Court would suspend its

y Stonehewer v. Thompson, 2 Atk 440.

z Sharpe v. Earl of Scarborough, 4 Ves. 538; Tunstall v. Trapes, 3 Sim 300.

relief until the judgment creditor had sued out his etegit; and his bill was demurrable if it contained no allegation that he had done so. But it was unnecessary for the creditor to procure a return of the writ.a

a

In Neate v. The Duke of Marlborough judgment creditor filed his bill, praying that he might be declared entitled to an equitable lien upon an annual sum of 3000l. which was payable to the debtor out of certain freehold estates; a demurrer to the bill was allowed on the ground that it contained no allegation that the creditor had sued out his elegit. In this case Lord Cottenham observed, "How can the judgment which, per se, gives the creditor no title against the land, be considered as giving him a title here? Suppose he never sues out the writ, and never, therefore, exercises his option, is this Court to give him the benefit of a lien to which he has never chosen to assert his right? The reasoning would seem very strong that as this Court is lending its aid to the legal right, the party must have previously armed

a 3 Myl. & Cr. 407; Red. Pl. 126, 4th edit.
b 3 Myl. & Cr. 407.

himself with that which constitutes his legal right; and that which constitutes his legal right is the writ. This Court, in fact, is doing neither more nor less than giving him, what the act of parliament and an ejectment would, under other circumstances, have given him at law. The sole reason for coming into this court being founded on a right which the writ of elegit confers, the creditor cannot come without having obtained that right."

с

But where an application was made, after the death of the debtor, for the administration of his assets, or from any other circumstances, a sale had become indispensable, the court would satisfy the demand of the judgment creditor without requiring him to sue out an elegit.d

Where property is conveyed to such uses as A. B. shall appoint, with a limitation to himself in fee, in default of appointment, and A. B. afterwards exercises his power, the appointment divests his ulterior estate, and the appointee claims immediately under the instrument by which the

c Barnewall v. Barnewall, 3 Ridg. Parl. Rep. 61.

Neate v. Duke of Marlborough, 3 Myl. & Cr. 416; Tunstall v. Trappes, 3 Sim. 286.

power is limited. Upon this principle the appointee was unaffected by any judgment which was entered up against the donee of the power between the creation of such power and the appointment.

Thus, in Doe d. Wigan v. Jones,e Lord Tenterden, C. J., said, "It has been established ever since the time of Lord Coke, that where a power is executed, the person taking under it takes under him who created the power, and not under him who executes it. The only exceptions are, where the person executing the power has granted a lease or any other interest, which he may do by virtue of his estate, for then he is not allowed to defeat his own act. But suffering a judgment is not within the exception as an act done by the party, for it is considered as a proceeding in invitum, and therefore falls within the rule."

And in cases of this kind notice was immaterial.g

If the debtor became a bankrupt, a cre

10 Barn. & Cres. 159. See also Tunstall v. Trappes, 3 Sim. 300.

Eaton v. Sanxter, 6 Sim. 517; Skeeles v. Shearley, 8 Sim. 153; on appeal 3 Myl. & Cr. 112.