atkins case MlTCHELL versus smart February a executor as he be in auter law  unless he have provide his testator will be not entitle to bring a bill of  interpleader till as stand in his place he have make himself a debtor  Elizabeth brown lessee for a long term commence in midsummer agree to pay for  the first ten year pound per and for the next four pound per and and for the  remainder of the term and covenant with Huet the lessor to pay the sum of  pound at midsummer and pound at midsummer Elizabeth brown in April assign this  term to Foredam in consideration of pound and covenant to pay the pound at the  time in the lease mention and by a indenture of the that f April between  Elizabeth brown of the first part Foredam of the second and Richard Mitchell  of the three take notice that Elizabeth brown have deposit pound in Mitchell  hand and thereby covenant to indemnify Foredam against the pound Mr Mitchell  covenant that if mrs brown do not pay the pound at the time mention in the  deed then he will pay to Foredam the pound and covenant further that if mrs  brown pay the pound part of the pound at midsummer then he will pay to her the  pound mrs brown die before midsummer but before her death make her will and  appoint Cartwright and homan her executor neither she or they pay the pound at  midsummer Foredam likewise die before midsummer and make smart and cross his  executor who have be evict out of the possession of the leasehold estate on  account of the pound not be pay to the lessor at midsummer then smart and  cross apply to Richard Mitchell to be pay the pound but he pretend mrs  Elizabeth brown executor claim it of he Richard Mitchell die at Christmas last  without pay the money but before his death make his will and appoint Simon  Mitchell his father executor but he have not yet prove it and have now bring a  bill of interpleader against smart and cross as executor of Ralph Foredam and  against Cartwright and homan as executor of mrs brown and pray that he may be  permit to bring the sum of pound into court and that the defendant may  interplead suggest that the executor of Foredam threaten to bring a action  against he and be now proceed in the spiritual court and therefore pray a  injunction and this day move for the injunction on bring the money into court  the defendant the executor of Foredam have put in a answer and insist upon be  pay the pound and that there ought to be no injunction the executor of mrs  Elizabeth brown have not yet answer atkins Lord chancellor deny the motion and  say that a executor as he be in auter law unless he have prove his testator  will be not entitle to bring this bill of interpleader till as stand in the  place of the testator by virtue of the probate he have make himself a debtor a  executor may at law bring a action before probate but can declare till the  will be actual prove and a billin equity be in the nature of a declaration at  law a executor can bring a bill here till after probate will v rich ante atk  vol though the plaintiff Simon Mitchell say a caveat be enter against his  prove the will of Richard Mitchell it appear to be no more than a monition to  the executor in order that a inventory may be bring in to find a commission of  appraisement another reason for deny the motion be that the executor of mrs  Elizabeth brown have not yet put in two answer which may possible put a end to  the question and by the express covenant Richard Mitchell be to pay the pound  to Foredam atkins er p