case cross v pike Lord chancellor king Eq can ab pl pl a bare trustee be a  good witness for his beneficiary and trust but not a executor in trust as he  be liable to be sue by creditor and to answer cost a and b be partner in trade  a give a bind to leave his wife pound a die the other partner administer if  the wife will be pay out of the separate estate of a on there be effect she  shall have a preference before other creditor but if there be no separate  estate and the wife will have satisfaction out of the partnership effect then  all the partnership debt must be first pay a bill be bring by grace the widow  of Francis cross for the recovery of the sum of pound secure by a bind enter  into by the say Francis cross on his marriage with the say grace unto her  trustee for secure pound to the say grace in case she shall survive her then  intend husband Francis cross be partner with sir Francis Forbes in the trade  of a cotton merchant the stock be pound of which each have a moiety videlicet  pound it appear that after the marriage the say Francis cross take out of the  partnership stock more than the sum of pound which be his share after which  cross die leave his partner sir Francis Forbes and Thomas archer Esq executor  in trust for his wife and only child on the death of cross sir Francis his  partner intermeddle with his personal estate and bury peer William the say  cross and there be a debt due from the say cross to the say sir Francis by  bind for pound but sir Francis die before he have prove the will of his  testator cross and leave the defendant pike executor Thomas archer renounce  afterward grace cross the widow die and leave her father Thomas Brampston  executor in trust for her child who she make residuary legatee the child bring  the present bill in nature of a bill of revivor for the recovery of this pound  as belong to he under his mother will the child grandfather Thomas Brampston  who be executor in trust of the mother will be examine as a witness in the  cause to prove there be a fraud come peer William er p mitted by sir Francis  Forbes in represent the say Francis cross to have be his partner in a moiety  of the say pound stock whereas at that time he be partner only for a three and  afterward be to have be admit as a partner for a moiety upon his the say  Crofts pay to the say sir Francis pound part of the say wife portion and it be  insist that this Thomas Brampston be no good witness because he be executor  and though but executor in trust for the infant plaintiff and notwithstanding  his evidence do not tend to increase the asset for his own benefit but for the  benefit of the infant yet a executor can be say to be a disinterest person be  suable for the debt and liable to pay cost and consequent differ from the case  of a common trustee for which reason the Lord chancellor will not admit he to  be hear as a peer William witness but note the say Thomas Brampston shall have  renounce the executorship and have let another take out administration with  the will annex upon which he may have be a witness the next question be with  regard to the manner of account and touch the allowance on the account it be  urge that the bind give by the say cross in trust for his wife be a debt by  special and give on a valuable consideration namely that of marriage and a  marriage portion whereas the embezzlement of the stock by cross can be only a  debt by simple contract on the other side it be say if the plaintiff desire  satisfaction of the bind in question out of the separate estate of the say  cross the husband he must indeed in that respect be prefer to any simple  contract creditor but if satisfaction be seek out of the partnership stock all  the partnership debt must be first pay and in the present case the fact be as  be allege that the say cross the husband have take out of the stock pound and  upward he have no stock leave and there can be no colour of reason that Crofts  debt be by bind or even have it be by judgement shall be pay out of sir  Francis forbes moiety of the stock and for this be cite vern vol ex part  crowder that the copartnership debt ante horsey case and post ex part  Rowlandson be to be first pay out of the partnership stock in case one of the  partner become bankrupt and afterward the separate debt peer William and of  this opinion be the Lord chancellor who decree that it shall go to a account  to see what the testator Francis cross the partner owe to the partnership and  after those debt be pay if there shall remain any surplus in his share of the  stock then that to be liable to answer the bind due from cross to the trustee  of the wife three it appear that Francis cross the decease partner be indebt  to sir Francis Forbes in one bind of pound it be insist that as sir Francis  have the power of retain that bind out of the asset so the same be in his hand  it amount to a retainer and consequent that bind ought to be allow in the  account before the bind claim by the plaintiff see the observation make on  this part of the case by burnet I in rial v roll atk S c ves sen S to which it  be answer that notwithstanding sir Francis Forbes be appoint one of the  executor of the say Francis cross yet he never prove the will and die before  probate can not retain especial as he have never signify any election that he  will retain for the say bind though it be reply by the other side that since a  executor may assign release and do everything but declare before probate even  as to the court of law there be the same reason for his be able to retain  before probate and though in the principal case he have not express declare  whether he will retain or not yet it be plain he have good of his testator in  his hand have intermeddle therewith peer William and out of part thereof have  bury the testator and after such intermeddle can not have renounce the  executorship salk but the counsel for the defendant the executor of sir  Francis Forbes wave this point of the pound bind the court give no opinion  touch the same vide goss v Tracy ante vol man v ware atk Mabank v Metcalfe atk  Dixon v Parker ves Fotherby v pate atk Goodtitle v Welford Doug Bellew v  Russel ba and be Mulvaey v Dillon ba and be burst v beach mad west v skip ves  S c by name of skip v Harwood swan peer William er p smith v de Sylva Cowp  goss v DUFRESNOY cook bank law S c Eq ab pl and see tailor v field yes yes  Barker v Goodair yes fix part king yes S c rise ex part Reid rise a lend money  on bind to b who die intestate c take out administration to he after which c  die a take out administration de good non c to b and it be determine inter at  that a may out of the asset of b retain for such bind debt contract before he  take out administration and though a happen to die before he have make any  election in what particular effect he will have the property alter yet the  court say it must be presume he will elect to have his own debt pay first and  this be presume there will remain no difficulty as to alter the property for  as the executor of a be to account for the asset of b they must on the account  deduct the amount of the money lend by a to b week v gore at the roll mich  peer William de term S the number three