SECT. III. trusts are go Upon the construction of this statute, it has been determined, that it does not autho- In what cases rize, either the trust or the equity of redemption of a term of years, to be taken in execution. In the case of Lyster v. Dolland a, lord Thurlow is reported to have said, "If this "had been a mortgage in fee, he could only "have extended it to hold quousque." verned by, or But it seems impossible to contend, that under the statute of frauds the sheriff can deliver an equity of redemption upon an execution in a suit against the mortgagor: and in the case of Plunket v. Penson, lord Hardwicke is stated to have said, "I should be " glad to be informed, whether there is any "instance, where an equity of redemption "has ever been held to be liable to the exe "liver execution unto the party in that behalf suing "of all such lands, tene"ments, rectories, tithes, "rents and hereditaments, 66. as any other person or "persons be in any manner of wise seised or pos"sessed, or hereafter shall "be seised or possessed, in "trust for him against whom "execution is so sued, like "as the sheriff or other of"ficer might or ought to "have done, if the said party against whom exe"cution hereafter shall be similar to, the laws relative to legal estates. SECT. III. In what cases trusts are governed by, or similar to, the "cution of a bond creditor in the life of the mortgagor:" to which the counsel in the case made answer, they could not recollect laws relative to any instance, where it had been so held. legal estates. Assets. From the case of Hunt v. Coles, Com. Rep. 226. it appears, that, under this statute, a judgment is not a lien upon the trust estate; and, therefore, that a purchaser for a valuable consideration and without notice, obtaining a conveyance of the legal estate from the trustee, and of the equitable interest from the cestuique trust, will not be bound by a judgment previously entered up against the cestuique trust. (6.) Previously to the statute of frauds, 29 Car. 2. c. 3., the trust of an estate in feesimple was not assets at law, or in equity, in the hands of the heir of the cestuique trust to satisfy bond debts b; but by the 10th section of that statute, the trust is b See Bennet and Brownlow, Cha. Ca. 12. 3 Vin. 142. pl. 10, 11. and the cases collected in the notes, "And if any cestuique "trust hereafter shall die, "leaving a trust in fee"simple to descend to his "heir, then and in every "such case, such trust "shall be deemed and "taken, and is hereby de "clared to be assets by de"scent, and the heir shall "be liable to, and charge"able with, the obligation "of his ancestors for and by "reason of such assets, as "fully and amply as he might "or ought to have been, "if the estate in law had "descended to him in pos"session in like manner "as the trust descended, now made legal assets d, An equity of re- SECT. III. demption is not considered a trust within In what cases the statute; and, therefore, it has been determined to be equitable, and not legal as sets e. It seems, that both previously to and since the statute of frauds, the trust of a term of years was considered as equitable assets in the hands of the executor f; and the statute does not now make it legal assets; except in the case of a term of years attendant upon the inheritance, in which case the term becomes consolidated in equity with the freehold b trusts are go verned by, or similar to, the laws relative to legal estates. to extents from (7.) It is apparent from the necessity, Trusts subject which produced the statute of frauds, that the crown. the legal estate vested in the trustee, could not be taken in execution upon a judgment against the cestuique trust: but it seems, that the lands of cestuique trust were always held SECT. III. In what cases trusts are governed by, or similar to, the laws relative to legal estates. Forfeiture for treason. liable to an extent for a debt due to the king. Sir Matthew Hale observes, that this rule was adopted "per cursum scaccarii, which "makes the law in such cases k." The statute of 13th Eliz. c. 4. s. 5. which relates to accountants to the crown, extends to trusts by express words; and not only a trust, but an equity of redemption', may be sold under an extent issued against an accountant, by virtue of the statute of the 25 Geo. S. c. 35., which, in order to facilitate the payment of debts due to the crown, authorizes the Court of Exchequer, in a summary way, to direct the extended lands of an accountant to be sold. (8.) At the common law, a trust in feesimple or in tail, was not forfeited to the crown by the attainder of cestuique trust for treason m; but the statute 33 H. 8. c. 20., s. 2. (which extends to all manner of treasons"), includes trust estates, and also extends to an equity of redemption P. i Walter de Chirton's case, Dy. 160. a. 24 Edw. 3. 16 Vin. 521, K. pl. 1. notes. * Hard. 495. m See Jenkins, 190. Hard. 495. n 2 Co. Rep. 11. a. • Hard. 495. P. Attorney-general v. The King v. De la Crofts, 4 Bro. P. C. 136 Motte, Forest, 162. re SECT. III. In what cases trusts are go verned by, or laws relative to similar to, the The ground of this latter decision is, that the statute of treasons above noticed, has the word conditions; so, that if a mortgage in fee be made subject to a condition of entry, and the mortgagor commits treason legal estates. before the day of payment, the king, by the forfeiture, shall have the benefit of the condition; and if the estate shall become absolute in the mortgagee in consequence of the non-payment of the mortgage-money, an equity attaches upon the mortgagee, in favour of the crown upon the same principle, that it would have attached upon the mortgagor, in case he had not committed treason. It is said that a cestuique trust of a term of years forfeits it for felony, and upon an outlawry in a personal action 9. tates considered construction of acts of parlia ment. (9.) In the marquis of Winchester's case, Equitable esit is said, "that although an use were an he- as legal, in the "reditament (for there shall be a possessio “fratris of it), yet, by the general words of "all hereditaments, an use was not given to "the king by any act of attainder." It has, however, been determined in the modern case of Shrapnel v. Vernon, that an equity of |