but in the Distribution of the separate Property of a Feme Covert, a Bond-Creditor has no priority, but all Debts are paid equally (c). The presumption of Payment of a Bond after twenty years may be repelled by evidence that the Obligor had no means of payment (d).

Interest is not allowed on a Bond beyond the Penalty; but it has been held, that if the Devisee or Trustee neglects to pay in a reasonable time, he shall after such neglect, pay Interest beyond the Penalty (e).

An Executor is not compellable either in Law or Equity to take advantage of the Statute of Limitations against a demand otherwise well founded (ƒ).

An Executor or Administrator may, as against Creditors of equal degree, retain out of the Assets a Debt due to himself, and this, it seems, though the Debt be more than six years old; for as an Executor may pay a Debt to another, though he might have pleaded the Statute of Limitations, why may he not pay himself (g)? He may also retain a Debt due in Trust for himself (h); nor is this right of retainer prejudiced by the circumstance that the administration is granted to another for the use of the Creditor, a Lunatic, any more than if granted durante

(c) Anon. 18 Ves. 258. It is said in this case the Bond was void, but see ante, p. 474

(d) Fladong v. Winter, 19 Ves. 196.

(e) Anon. 1 Salk. 154.

(f) Norton v. Freker, 1 Atk. 526. Lord Castleton v. Lord Fanshaw, 1 Eq. Abr. 305; and see what is said Arguendo in Buckmaster v. Harrop, 13 Ves. 469. S. C. MS.

(g) In Hopkinson v. Leech, 7 May 1819, MS, V. C. Leach was of opinion he might retain, but he directed the opinion of a Court of Law to be taken.

(h) Cockroft v. Black, 2 P. Wms. 298. Weeks v. Gore, 3 P. Wms. 184, in note B. Franks v. Cooper. 4 Ves. 763; and see Lane v. Casey, 2 Black. 965; and see as to Administration of retaining. Anon. 2 Chan. Cas. 55.

minoritate (i). And though the Administrator die before he appropriates Assets in the payment of his Debt, his Executor may retain (k). So, also, the Executor of a sole Executor may retain (). It has been doubted whether an Heir, being a Creditor by Bond or Judgment, may, like an Executor, retain (m).

Under a Covenant made with a retiring Partner, as soon as could be, to pay the Debts and indemnify him against them, which Covenant was broken by the death of the Covenantor, leaving Debts undischarged, which Debts were paid by the other, it was held, that the Covenant made the Debt a Specialty, and that the Administrator could not retain his own simple-contract Debt, as he might do as against other Debts of the same degree (n).

It is observable, also, that at Law, if a Creditor appoints his Debtor Executor, the Debt is extinguished and cannot be revived (o); but in Equity, the Executor is, as to Creditors and Legatees, on a deficiency of Assets (p), considered as a Trustee in respect of the Debt, and accountable for it, as part of the Testator's Personal Estate (q). Nor is he entitled

Atk. 461. Fox v. Fox, 1 Atk. 463. Wankford v. Wankford, 1 Salk. 299; but see Phillips v. Phillips, 2 Freem. 11.

(p) Phillips v. Phillips, Yelv. 160. S. C. 2 Freem. 11; and see Browne and Selwyn, For. 242. S. C. MS.

(q) Fox v. Fox, 1 Atk. 463. Cary v. Goodinge, 3 Bro. C. C. 110; and see Vin. Abr. vol. 8. p. 198. Askwith v. Chamberlain, 1 Chan. Rep. 138. Field v. Clarke, ibid. 242.

to retain his Debt if the Testator bequeaths away "all his Debts" (r); for the implied Gift, by making the Debtor Executor, is then considered as controlled by the express Bequest of the Debt (s).

In regard to the payment of Debts, there is an anomalous Case, which may be mentioned, founded on what has been called, a subtle Equity, and it is this: If an Annuity be secured by Bond in bar of Dower, the Widow is entitled to be paid, in the first place, out of the Personal Estate, and in aid of that is entitled to come upon such Real Estate as would have been liable to Dower, if she had not accepted the Annuity (t).

Where a Wife's Estate is mortgaged, for the benefit of her Husband, she has, if she survives, a after all his Debts are paid, to stand as a Creditor right, against his Assets (u), (unless at the time of the Mortgage a Settlement is made upon her) (r); but Evidence is admissible to show that the Wife intended otherwise. The Title of the Wife to be exonerated is considered as precisely the same with that of the Heir (y). If the mortgage of the Wife's Estate is not for the Husband's Debts, or for Debts due from the Wife dum sola (z), his Assets, though he join in

(r) Browne v. Selwyn, For. against Nangle, Ambl. 150. S. 242. S. C. MS. (s) Ibid.

(t) Tew v. Earl of Winterton, 1 Ves. jun. 451. S. C. 3 Bro. C. C. 489.

(u) Tate v. Austin, 1 P. Wms. 264. S. C. 2 Vern. 689. S. C. on Appeal, 1 Bro. P. C. 1; and see Parteriche v. Powlett, 2 Atk. 384. Incledon v. Northcote, 3 Atk. 436, and Lewis

C. 1 Cox, 240. Astley v. Earl of Tankerville, 3 Bro. C. C.

545.

the Mortgage, are not primarily liable (a). And where the Wife has the absolute disposal of the Money, though she appropriates it to the use of the Husband, his Assets are not liable (b).

On the same principle, if a Father, Tenant for Life, and his Son, join in raising Money, which is received by the Father, he is bound to exonerate the Son's Estate from the Encumbrance (c).

Where Husband and Wife live together, she is not entitled to an Account of her separate Estate against his Creditor and Assignee, nor against his Representative, any farther back than from the death of the Husband (d), unless he promised to pay the arrears (e).

With respect to Assets, they are either real or personal, and legal or equitable. Legal Assets are such as constitute the Fund for the payment of Debts according to their legal priority. Equitable Assets are such as can be reached only by the aid of a Court of Equity, and are divisible, pari passu, among all the Creditors. Every thing may be considered as equitable Assets, which the Debtor has made subject to his Debts generally, and which, without his Act, would not have been so subject (f). Equitable Assets

(a) Bagot v. Oughton, 1 P. Wms. 347. S. C. Fortescue, 332. Mod. Cas. 249, 381; and see Clinton against Hooper, 3 Bro. C. C. 211. S. C. 1 Ves. jun. 188.

(b) Clinton v. Hooper, 3 Bro. Ch. Ca. 213.

(c) Piers v. Piers, 1 Ves. 522.

(d) See Smith v. Lord Camelford, 2 Ves. jun. 716. Dalbiac and Dalbiac, 16 Ves. 126;

and see Parkes and White, 11 Ves. 225, and Squire against Dean, 4 Bro. C. C. 326. Brodie v. Barry, 2 Ves. & Bea. 39; but see Parker v. Brookes, 9 Ves. 588, and the Cases cited in note to ex parte Elder, 2 Madd. Rep. 286.

(e) Ridout v. Lewis, 1 Atk. 269.

(f) 2 Fonbl. Eq. 398, in

note.

in the hands of an Executor are in some respects applied as legal Assets are; as first to pay Debts, and then Legacies (g); but, as observed, they differ in this, that all the Creditors take proportionably, and not in a course of Administration, as in the case of legal Assets (h). And where a Testator lets in Creditors by a charge, it is now settled, whatever doubts may formerly have been entertained, that Creditors are to be paid in preference to Legatees (i).

The ordinary Administration of real and personal Assets in the payment of Specialty Debts is in the following order:

1. Personal Estate, (with the exception of Copyholds, which are not Assets) (k), not specifically bequeathed, or exempted expressly, or by plain indication from the payment of Debts (1).

2. Land expressly devised for (not merely charged with) the payment of Debts (m).

3. Descended Estates (n).

4. Lands charged with the payment of Debts (o).

(g) Hixon v. Witham, 1 Vern. 482. Walker v. Meager, 2 P. Wms. 552. S. C. Mos. 204. Maylin v. Hoper, Cas. Temp. Hardw. 206. Contra Gosling v. Dorney, 1 Vern. 482.

(h) Solley v. Gower, 2 Vern.62. (i) Kidney v. Coussmaker, 12 Ves. 155.

(k) Parker v. Dee, 2 Chan. Cas. 201.

Samwell and Wake, 1 Bro. C. C. 145. 1 Bro. C. C. 58. Davis v. Topp, 1 Bro. C. C. 526. S. C. 2 Bro. C. C. 259, in note; and see 1 Bro. C. C. 58.

(m) Davis v. Topp, 1 Bro. C. C. 528.

(n) Ibid. Barnwell v. Lord Cawdor, 3 Madd. Rep. 453.

(0) Vid. Harmood v. Oglander, 8 Ves. 124, 5; and see Davis and Topp, 1 Bro. 524. Donne against Lewis, 2 Bro. C. C. 263. Manning and Spooner, 3 Ves. 117. Milnes v. Slater, 8 Ves. 306. The distinction between Land expressly devised, or only charged with the Payment of Debts, seems to apply in this instance only. The idea which formerly prevailed, that where Lands were pressly devised for the Payment of Debts, the personal Estate ceased to be the primary fund for the Payment of Debts, though it remained so where there was merely a charge of the Debts upon the real Estate,

ex