atkins case Edgell versus Haywood and daw June I d be indebt to c by bind in  pound the plaintiff the administratrix of c bring a action against d who plead  the act for relief of insolvent debtor and that he be duly discharge the  plaintiff take judgement for the and pound damage W m by will give d pound to  be pay to he by his executor in a month after the testator death the plaintiff  sue out a become facias on his judgement and lodge it with the sheriff and  take a warrant to levy the debt out of the legacy and bring his bill against  the executor of W m to admit asset to so much of the legacy as the plaintiff  debt amount to c the plaintiff have pursue a proper remedy and what shall be  find due for principal interest and cost at law and in equity ought to be  satisfy out of what be due to d on account of his legacy John daw by bind date  December become bind to the plaintiff Elizabeth father Richard chaffin in  pound condition for payment of pound and interest who die intestate before the  pound or any interest for it be pay and administration be grant to the  plaintiff Elizabeth his only child whereby she and her late husband become  entitle to have what be due on the bind for which they bring their action  atkins er p at law in the court of common plea against daw and in Michaelmas  term daw plead thereto and admit the bind be his deed and that he owe Richard  chaffin at his death the say and that he do detain the same from the plaintiff  but that they ought not to have execution against his person for accord to a  act of parliament for relief of insolvent debtor he be beyond the sea on the  first of January and return and surrender himself to the keeper of the king  bench prison and on the that of July be duly discharge by virtue of the act  whereby he become entitle to the benefit thereof the plaintiff reply and  confess the plea and take judgement for the pound debt and damage to be levy  on the land tenement good and chattel of daw William Madox by will date the  that of June give daw pound to be due and Payable to he by his executor  therein name in one month after the testator death the plaintiff and her  husband in order to get a satisfaction for the debt sue out a become facias on  their judgement against the good and chattel of daw and the legacy be then due  but unpay and in the hand of the defendant Haywood the executor of William  Madox they lodge their become facias with the sheriff of Middlesex and take a  warrant thereon to levy their debt and damage out of the legacy in his band  which he refuse to pay and as the plaintiff can not levy the same on the  legacy in haywood hand or compel he by law to pay the same or discover the  asset that be liable to pay it or stay the defendant daw from receive the  money till he shall pay the debt they have bring their bill for a injunction  against daw to restrain he from receive it and that Haywood the executor may  either admit asset to satisfy so much of the legacy as the plaintiff debt  amount to or account for the real and personal estate of William Madox and pay  the plaintiff S their debt thereout the defendant and particular Haywood  insist on two point first that the plaintiff be improper in equity to attach  daw legacy be a choose in action not reduce into the atkins possession of the  debtor second if they be proper in their relief as to that point yet the  legacy be no charge on the real estate but on the personal only which be a  deficient fund this last point depend on the word of the will which be I  William Madox of c do make this my last will and testament in manner and form  follow first I give and bequeathe to mrs Susannah Rhodes the sum of pound to  be due and Payable unto her by my executor who I shall herein appoint after  the expiration of one month next after my decease the follow part of this will  be not state in the register book also I give to her all my household good  plate china ware linen woollen and wear apparel also I give to my cousin John  daw the sum of pound to be due and Payable to he by my executor who I shall  herein appoint after the expiration of one month next after my decease also I  give unto Richard west and his brother Thomas west the sum of pound in trust  nevertheless for the sole use of Rebecca hunt wife of James hunt exclusive of  any right the say James hunt her husband shall or may claim to the same to be  due or c Payable to they after the expiration of one month next after my  decease by my herein appoint executor also I give devise and bequeathe to Mr  Thomas Haywood of c and to his heir for ever who I do hereby make ordain  constitute and appoint my only whole and sole executor of this my last will  and testament all my good land and chattel except what be herein before give  and I do hereby revoke disallow and disannul all other legacy heretofore will  or make by I as to the first point the counsel for the plaintiff rely on the  that sect of the saint Geo c whereby a remedy be provide for the creditor on  the future effect of the debtor provide c that notwithstanding the prisoner  discharge as to his person all prior debt and judgement shall stand and be  effectual to all intent against the land tenement good and chattel of the  prisoner which he or any in trust for he at the time of the discharge have or  at any time then after shall be any way seize or possess of interest in or  entitle unto either in law or equity and the creditor may take out a new  execution against the land good c in the same manner as they may have do have  the prisoner never be take in execution it be say that if a court of equity do  not give relief in this case by subject this legacy to the plaintiff demand  the intent of the statute will be evade since if daw get the money into his  hand as they can not take his person and thereby compel he to pay the debt  they will be absolute without remedy atkins er p atkins that they have lose  their remedy at law by this statute where they may attach this very legacy by  proceed to a outlawry andthen bring a information in the name of the attorney  general in a court of revenue and so attach this by the interposition of the  crown for their demand which though a matter of grace be by constant custom  grow into a right in creditor which a court of equity ought to take notice of  but since this statute that remedy can not be have because they can not  proceed to a outlawry there be therefore no remedy but this to answer the  plain intent of the act and preserve the future effect for the creditor as to  the other point the counsel for the plaintiff cite Lord Warrington versus  Langham Prec in Chanc that the executor here be name a devisee which be always  a strong circumstance in make a construction to satisfy the will that by the  last clause the land good and chattel be blend together as one fund and give  subject to a exception of what be give before which they contend amount to the  same thing as if he have give he the residue of both estate after what he have  give before for the defendant it be argue as to the first point that the  restrictive word at the end of the clause show that it be the intent of the  act only to exempt the person of the debtor and leave all other remedy which  the creditor may have just in the same state they be before the act be make  and not to give the creditor a new and different remedy on these effect that  the reason why this court do not give a specific lie to creditor further than  the law do be because such creditor do not trust upon the faith of such lie  but on the general credit and therefore this court never give a specific lie  on choose in action to one creditor more than another except only where there  be a actual assignment of such choose in action as a security and go far be  break in upon that equal satisfaction which all creditor have a right to over  the effect of the debtor not subject to any legal or equitable lie if a court  of equity be therefore by reason of this inconvenience suggest to give any  further remedy to creditor on account of this statute such new remedy must be  agreeable to the principle of equity and coextensive with that inconvenience  which the remedy of give specific execution to a particular creditor be not  for to which creditor shall this belong for suppose a assignment make of this  legacy after the judgement or even after the become facias will equity take  away the benefit of that specific lie which the assignee have by the rule of  this court and give it to a general creditor by judgement mere by force of  this statute atkins this will be change the right of party and not bare give a  further remedy suppose all the other creditor bring bill those not by  judgement as well as those by judgement to which will equity give the  preference since all general creditor can have preference in equity over asset  further than the law give it they equality of distribution be what equity aim  at where the rule of law do not prevent it the become facias be not return no  one good nor be it charge that there be no other effect upon which it ought to  have be execute there be no necessity therefore to resort to this remedy and  the less reason to assist the plaintiff than any other creditor who can attach  his other good nor yet get at his person it be therefore insist that a court  of equity in this case can not give relief to a particular creditor further  than the law do without infringe its general principle and alter the right of  other that a executor be entitle to a release from the legatee but if by this  act every little creditor can in equity charge his debt on the legacy he will  be avoidable subject to a variety of suit till the whole be exhaust either  therefore equity must give this new specific remedy over choose in action to  creditor in general of a insolvent debtor and not to one only or else the  creditor must take this privilege which in most instance creditor of bankrupt  be deprive of of take out execution against future effect subject to the  inconvenience and difficulty which the law have leave they under in that  respect and which the legislature perhaps do not foresee as to the second  point it be say that the court of equity have of late be very favourable in  their construction to charge debt on land oh debt and legacy where both be  couple together and one can not be hold to be a charge without hold the other  to be so at the same time yet that in the case of legacy only a plain intent  be require because prima fancy and independent of the intent that re be no  more reason in equity to charge legacy on land devise where the general estate  be atkins er p insufficient than to charge personal legacy in favour of a  devisee of land if his land be evict both be specific and independent bounty  to each other there be no general declaration that the legacy shall be pay in  the first place r even that they shall be pay at all as in that case cite in  Prec in Chan the be executor and devisee have never be hold sufficient to  charge a executor with legacy though possible it may be a ingredient in such a  construction and Guillim versus holland in July and Corfield atkins versus  Lingen the that of march be cite where the executor be also devisee and in the  last case the land be give as a residue and yet the legacy be not charge on  the real estate that with respect to the exception the utmost force of it can  only be consider as put himin the same light as if the bequest have be by way  of residue and then that will not have charge the land accord to the authority  of the case last cite but the plain intent of the exception be a unnecessary  caution to prevent the specific legacy give before from pass by the word  chattel to which the exception be subject but as no land be give before in the  will to apply the exception to the land be to make the will nonsense Lord  chancellor as to the first question it be a new case and as far as it be a  general question I be of opinion the plaintiff as a judgement creditor can not  come into this court for a satisfaction out of this legacy and so I apprehend  it have often be determine there be very few case where it be necessary for  this court to give relief to creditor over personal chattel in possession  because assignment of they to defeat creditor be void and fraudulent at law  but as to choose in action accord to the general rule of this court they be  not liable to execution not for the reason give by the defendant counsel but  because the court take notice that the creditor have a methed by the ordinary  rule of law either by compel satisfaction by seize the person or where that  can be take by proceed to a outlawry and take the land as well as effect by a  capias utlagatum which though a proceed by the crown and at first a matter of  grace yet now be the ordinary course of proceed in the king court of revenue  where grant of such thing to creditor be constant give and that have be the  chief ground upon which this court have proceed in deny a specific remedy this  bring I to the question make on the statute for relief of insolvent debtor  this statute be intend to be beneficial to creditor as to the subsequent  effect and to discharge the person of the debtor only though it have be call a  privilege it be none but a reservation to the creditor of his right in every  respect except atkins that of seize the person and it differ from the case of  bankrupt where the future effect can be discharge without the consent of  fourfifth of the creditor as the act be therefore for the benefit of creditor  it must be construe beneficial and so as to give they effectual all the  benefit intend they over the future effect this have be treat as a save clause  but I be of opinion that it be a enact one give the creditor a competent  remedy upon the future effect as the statute preclude he from seize or outlaw  the person and it can never intend that thou b the debtor have ever so large a  property in choose in action the creditor shall have no remedy to come at they  with regard to the word rely on in the latter part of the clause by the  defendant to show the remedy be to be the same as before the statute it be  plain there be two different provision make in the clause by the first part as  to creditor in general who have not sue execution before the statute where the  word as to the remedy over the future effect be general the latter part as to  creditor who have already sue out a execution and the latter word relate to  such new execution only and do not run through the whole clause it be object  that this be a suit by one creditor only and ought to be by all but the person  who first sue have a advantage by his legal diligence in all case and of  chattel in possession the first suit have the first satisfaction and the act  have make no such general provision for all creditor the court do not proceed  in this case on the ground of a specific lie but only consider it as a part of  the property of the debtor which the creditor can come at without the aid of  this court if therefore after the judgement or even after the become facias  the debtor have atkins er p assign this good fide and for a valuable  consideration and without notice will be good and prevail against this  creditor but after a bill bring and a lie to hang create as to this thing such  assignment can not prevail I be therefore of opinion that the court ought to  interpose in this case and that the plaintiff have pursue a proper remedy the  next question will be as to the right I be of opinion that this legacy be a  charge upon the real estate atkins I think this will not depend upon the  authority of those case where debt and legacy be charge in the first place but  depend on the particular word of the will suppose the executor be not devisee  but another person and the testator have direct the legacy to be pay by he it  will be a clear charge on the estate and call he executor in the clause where  the legacy be give be only descriptive of his person and not of his office and  amount to the same as if he have say to be pay by Mr Thomas Haywood the good  land and chattel be give altogether as one fund and land be insert in the  middle and the whole be subject to the exception of what be give before this I  think amount to the same as if he have give they subject to what be give  before therefore I think this legacy be a charge on the land vide Cheeseman v  partridge ante vol his lordship order the master to take a account of what be  due to the plaintiff for the principal sum of pound with interest at per cent  and for her cost at law and in this court and declare that what shall be find  due to her for principal interest and cost ought to be satisfy out of what be  due to daw for principal and interest of his legacy of pound give by the will  of William Madox and the master to take a account of what be so due to daw  with interest at per cent from one month after the death of William Madox and  in case Haywood shall not pay the plaintiff as above within six month after  the master report the real estate of William Madox or so much as shall be  sufficient to pay the plaintiff shall be sell and the money arise therefrom to  be apply in the first place towards satisfaction of the plaintiff debt in the  manner as be already direct Reg lib a fol