Barnardiston francklyn and fern may Nehemiah fern be indebt to young in pound  young threaten to arrest he but to prevent this Nehemiah propose to make a  assignment to he of a lease that he be in possession of young agree to this  but it be not full settle between they whether the assignment that be to be  make of this lease be to be a absolute one in discharge and satisfaction of  the pound or whether it be to be redeemable on payment of the pound with  interest however young give direction for draw of the assignment absolute and  it be draw in that manner accord when Nehemiah come to peruse it he object  against its be draw in that manner and insist that it shall be make redeemable  on payment of the sum which have be mention the party disagree in this matter  among themselves Josiah fern the brother of Nehemiah be bring in to see if he  can not adjust the matter between they and at last the agreement enter into  between they be that Josiah shall become bind to young for the payment of this  money that the name of young shall be strike out of the assignment and in the  room of it that the name of Josiah shall be insert that Nehemiah shall execute  this deed only with that alteration make in it but that there shall be a  endorsement on the deed purport that the deed be make to indemnify Josiah fern  against the bind before mention accord the deed be thus alter be execute under  hand and seal by Nehemiah to his brother Josiah and such endorsement make as  have be mention sign with the hand of Nehemiah this transaction pass upon the  d of April on the that of that instant Nehemiah sign a write whereby he direct  the tenant to attorn to Josiah on this same day Josiah be put into possession  the tenant do attorn to he and it be swear by Josiah in his answer that  Barnardiston on this day it be agree between his brother and he that the  assignment which have be make shall be absolute to he without any condition of  redemption but this part of his answer be falsify by a witness who swear that  Josiah afterward declare that Nehemiah be a fool for not make the assignment  absolute to he on the that of this instant Nehemiah become a bankrupt a  Commission issue upon the that and soon afterward a meeting be have by the  creditor to consider whether the assignee shall bring a bill against Josiah in  order to redeem this leasehold estate but the majority of the creditor be of  opinion that it be not advisable to do it accord the assignee can not do it by  a express clause in the statute of g relate to the bankrupt however the rest  of the creditor think that it be advisable to bring it and thereupon they  bring the present bill in their own name against Josiah fern and against the  assignee pray to be let in to the redemption of this lease the assignee by  their answer side with the plaintiff and say that they be desirous it shall be  redeem Josiah oppose it and submit it by his answer that it be a absolute  purchase by reason of the agreement on the that of April which have be mention  Mr Chute argue as counsel for Josiah and to show that such bill can not be  bring by creditor without collusion between the assignee and Josiah he cite  the case of Bickley and Dorrington and that of monk and pomfret both of they  late determine by the present chancellor Mr justice Parker who sit for the  Lord chancellor say his opinion be that Barnardiston er p the plaintiff be  entitle to relief he say there be several question in this Cause which be  proper to be consider the first of they be whether the assignment make by  Nehemiah be to be consider as a absolute sale to his brother or whether it be  Barnardiston only a mortgage it can be doubt but when this assignment be make  on the d of April it be then intend only as a mortgage for though the  assignment be on the face of it absolute and that under hand and seal yet the  endorsement though only sign with the handwriting of the party be sufficient  to show that in equity at least it be only a mortgage and if this be a  mortgage on the d of April the question be whether the transaction on the that  of that instant have alter the nature of it and his opinion be that it have  not it have be say by the counsel for Josiah that the write which Nehemiah  sign upon that day amount to a release of the equity of redemption but that  write be no more than a direction to the tenant to attorn to the mortgagee the  next question proper to be consider be whether the creditor of the bankrupt  have a right in the present case to bring their bill against the mortgagee to  compel he to redeem or be foreclose make the assignee of the bankrupt  defendant and his opinion be that they have it be very true that the rule lie  down in the case of Bickley and Dorrington and in that of monk and pomfret be  very right namely that in general no person shall be allow to come into equity  for a redemption but he that be the legal estate of the mortgagor so if a  executor be Willing to get in the debt of the testator there be no foundation  for a creditor to bring his bill for that purpose and therefore in general  where there be proper person to get in the estate of another a court of equity  will not suffer either the creditor of the testator or the creditor of a  bankrupt to bring a bill in equity in order to get in that estate but if a  executor or assignee under a Commission will collude with a debtor there be no  doubt but a creditor may bring his bill in order to take care of that estate  and charge the assignee or executor with such collusion in the present case  here be a meeting of the creditor of the bankrupt to consider whether it be  proper that the assignee shall bring a bill in order to be let into a  redemption of his estate the Barnardiston majority of the creditor be of  opinion that it be not the assignee there upon can not bring this bill and if  assignee refuse to bring a bill that be for the benefit of the bankrupt estate  any creditor have a right to bring such bill under Peril of cost the remain  question proper to be consider be on what term the redemption be to be grant t  it have be contend by the counsel for the plaintiff that Josiah fern have not  only forfeit his cost by insist upon this assignment as a absolute purchase  but that he ought to pay the plaintiff the cost of this suit now as to that  the judge be please to say that he think it will be go too far to make Josiah  pay the cost of this suit but on the other hand his opinion be that Josiah  have forfeit his cost in the first place here be a endorsement under his own  hand whereby he have admit the assignment to be a mortgage and in the next  place here be a witness falsify his answer in the present case the direction  must be that the assignee in the first place shall have liberty to redeem and  in default thereof that the plaintiff shall have this redemption and so he be  please to decree accord