seem to have been pointed out to the Vice-Chancellor that to have held that the right of marshalling was thereby kept alive beyond the six years did not necessarily involve the proposition that in cases of marshalling the same limitations would be created in equity as to simple contract debts as the statute had prescribed for specialties. PART I CH. V. marshall Looking at the whole question irrespective of 3 & 4 Right of Wm. IV. c. 104, it would seem that the view of Turner, ing. V.-C., that the period during which the right of the simple contract creditors to marshal exists is not coextensive with the time during which the specialty creditors may come against the land, must be correct; for the right of marshalling could never put a simple contract creditor in a better position than if there had been no specialty creditors at all; it is clearly only a mode of recovering simple contract debts, and therefore ought to be limited by the time which the statute applicable to those debts allows. But to hold that the payment of interest by executors keeps up the right of marshalling beyond the six years, so far from contravening this principle, rather follows from it; the limitation of the right to marshal being measured by the period during which the simple contract creditors could come against the personalty. And, moreover, the debt being kept alive against the personalty, the simple contract creditor would have been able to recover out of it, had it not been absorbed by the specialty creditor, and the simple contract creditor would, if deprived of the benefit of marshalling, be put in a worse position than if the personalty had not so been exhausted, a result at variance with the whole principle of marshalling. Besides, the equitable right of the simple contract creditors, in a case where no debts had been paid at all before suit, to have the specialty debtors kept off the personalty was, it would seem, precisely the same as that by which, when the specialty creditors had been actually paid out of the personalty PART I. before suit, the simple contract creditors were permitted to stand in their shoes; and in the former case it would seem almost impossible to hold that if the simple contract debts had been kept alive against the personalty by payment of interest, the specialty creditor would have been permitted to go upon the personalty to the prejudice of the simple contract creditor. But, as in such a case there would be no marshalling, if the specialty debts themselves were barred against the land, so when the specialty debts have been actually paid out of the personalty, the right to marshal must, it seems, cease at the time when the specialty debts would have been barred against the land if they had not been paid. Nor is this view in any way opposed to either of the cases cited in Fordham v. Wallis. In both of them the simple contract debts were more than twenty years old, and therefore the question whether the right to marshal existed for so long a period as twenty years never actually arose. Busby v. Seymour (1) was a supplemental bill in an administration suit, and the original bill was not properly framed for obtaining relief against the realty by marshalling, and Sugden, L.C. of Ireland, held that such relief could not be granted on a bill which, though purporting to be a supplemental bill, was in fact, so far as marshalling was concerned, an original bill, and was filed more than twenty years after the debt was incurred; but he gave the decree prayed for against the personalty, as the bill was bona fide supplemental to that, and the original bill praying relief against it had been filed in proper time. In the earlier case of Vickers v. Oliver (2) the question also arose in a supplemental suit, and relief was given against the realty, because, as Knight Bruce, V.-C., held, the bill in the original suit was properly framed for obtaining such relief, and such relief would have been (1) 7 Ir. Eq. R. 433; 1 J. & Lat. 527. given in it, if it had not been for the mistake of all parties. It thus appears that the two cases are not inconsistent, and it is submitted that there is nothing in the facts or the judgment in either of them to show that the right of marshalling is barred before the right to commence a suit against the personal estate is barred, in whatever way such last-mentioned right may be kept on foot; for at the time when in the case of Busby v. Seymour the relief was first sought against the realty, no fresh bill could have been filed even against the personalty, and this clearly distinguishes that case from one where the debt has been kept alive by payment of interest by the executor, because then a right to bring a fresh action against the personalty still exists. The result, it is submitted, is that before 3 & 4 Wm. IV. c. 104, the right of simple contract creditors to have the real assets marshalled in their favour was not barred, so long as the right to commence a suit against the executor was unbarred, and the right against the land of the specialty creditor in respect of whose debt the marshalling was prayed was also unbarred, or would have been, if it had not been paid out of the personalty. And, notwithstanding the decision in Fordham v. Wallis, there is, it is submitted, no reason why the direct right against the land given to simple contract debtors by the statute of William should in any manner abridge the indirect right which they had before. That statute was passed, not for the protection of the land but for the benefit of creditors, to give them remedies in addition to, not by way of substitution for, any which they might already have; nor can it well be said that the creditor has been guilty of laches, if he has received interest from the executor who is the proper person to whom to look for payment. Why, therefore, should the Court decline, when the new remedy fails, to give a creditor who has done nothing to render himself undeserving of it, the benefit of the same rules which were laid down in his PART I. OH. V. PART I. CH. V. favour before the new remedy was given? Nor would the decision that the direct right against the land was not kept up by the payments of the executor be thus rendered nugatory, for the simple contract creditor, being able by marshalling to get at the land only to the extent of the debt of the specialty creditor, in whose place he is allowed to stand, the remedy by marshalling is not necessarily co-extensive with his direct right under the statute, but may in many cases be much narrower. CHAPTER VI. ACTIONS OF TORT BY AND AGAINST EXECUTORS PART I. 3 & 4 W. IV. BEFORE the passing of the Act 3 & 4 Wm. IV. c. 42, no action for injuries to the real estate of a deceased person could be brought, and no action, with certain exceptions, for wrongs committed by him could be brought against his personal representatives (1). To remedy this it was enacted by 3 & 4 Wm. IV. c. 42, s. 2, as follows:"Whereas there is no remedy provided by law for c. 42, s. 2. injuries to the real estate of any person deceased committed in his lifetime nor for certain wrongs done by a person deceased in his lifetime to another in respect of his property real or personal, for remedy thereof be it enacted that an action of trespass or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person committed in his lifetime for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate of such person; and further, an action of trespass, or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his life (1) Williams on Executors, 7th ed. p. 1728; 8th ed. p. 1735. See Phillips v. Homfray, 24 Ch. D. 439. |