upon bonds, covenants, and other specialties, and declaring (sect. 4) that if there be no heir actions may be maintained against the devisee. It also materially assists the remedies given to creditors both at law and in equity, by abolishing the right of parol to demur (a), and enabling Courts of equity to order infants to convey where estates are sold for the purposes of this Act.

The following are its principal provisions :By Sect. 1, the Acts of 3 & 4 Will. & M. c. 14, 6 & 7 Will. 3, c. 14, 4 Anne, c. 5 (I.), and 47 Geo. 3, c. 74, are repealed.

ing frauds on

wills, &c.

& M. c. 14,

Sect. 2. All wills and testamentary limita- For preventtions, dispositions, or appointments concerning creditors by lands, &c., shall be deemed or taken (only as 3 & 4 Will. against such person or persons, bodies politic §. 2. or corporate, and his and their heirs, successors, executors, administrators and assigns, and every of them, with whom the person or persons making any such wills or testaments, limitations, dispositions, or appointments shall have entered into any bond, covenant, or other specialty, binding his, her, or their heirs) to be fraudulent and void.

(a) As to the origin and effect of parol demurring, see p. 225, post.

Limitations, &c. for por

Sect. 3. And every such creditor may maintain his action of debt, or covenant, upon the said bonds, covenants and specialties, against the heir and heirs at law of such obligor or obligors, covenantor or covenantors, and such devisee and devisees, or the devisee or devisees of such first-mentioned devisee or devisees, jointly, by virtue of the Act.

Sect. 4. If there shall be no heir at law, actions may be maintained against the devisee solely.

Sect. 5. Limitations, or appointments, detions, &c., vises, or dispositions for portions, or just debts, 3 & 4 Will. & not to be affected (a).

not affected.

M. c. 14,

s. 4.

(a) Where there is a devise for the payment of debts, the case is taken out of the statute, and the creditor can come only as the will directs.-Miller v. Horton, 1 Cowper, C. C. 45; Plunket v. Penson, 2 Atk. 292; Lingard v. Lord Derby, 1 Bro. C. C. 311; Earl of Bath v. Earl of Bradford, 2 Ves. 577; and a charge for payment of debts being tantamount to a devise for the same purpose, the estate so charged will be deemed equitable assets.- ·Bailey v. Elkins, 7 Ves. 325; Ball v. Harris, 4 Myl. & Cr. 267. But if the devise for payment of debts does not provide for such payment in a practicable manner it does not take the case out of the statute.-Hughes v. Doulben, 2 Bro. C.C.

614.

Where an estate is devised generally for payment of debts, or subject to debts, simple contract creditors are entitled equally with creditors by specialty; and if any of the creditors by specialty have exhausted any part of the testator's personal estate

for debts,

estate though estate

sold before

action.

3 & 4 Will. &

Sect. 6. Heir at law to be liable for any debt, Heir liable or covenant, although he may sell the before action brought, and execution may be taken out upon any judgment obtained to the value of the land sold; but lands, &c. bonâ fide aliened before action brought shall not be liable to such execution.

M. c. 14,

8. 5.

plead rien

descent.

Sect. 7. Where any action of debt or cove- Heir may nant upon any specialty is brought against the per heir he may plead rien per descent.

3 & 4 Will. & M. c. 14,

s. 6.

Sect. 8. Devisees to be liable in the same Devisees

manner as heirs, notwithstanding the lands, devised to them shall be aliened before action brought.

liable, though

&c. lands aliened.

3 & 4 Will. &

the M. c. 14,

8. 7.

tates to be

administered

47 Geo. 3, c.

Sect. 9. Traders dying seised of or entitled Traders' esto any lands, &c. not charged by their wills, assets to be or devised subject to payment of debts, and in equity, which would be assets for payment of specialty 74, s. 1. debts, the same shall be assets to be administered in Courts of equity for the payment of all their just debts, as well simple contract as

in satisfaction of their debts, they cannot receive any further satisfaction out of the testator's real estate, constituting equitable assets, until the simple contract creditors are placed puri passu. Girling v. Lee, 1 Vern. 63; Plunket v. Penson, 2 Atk. 293.

specialty; but creditors by specialty shall be paid first (a).

(a) By statute 3 & 4 Will. 4, c. 104, the provisions in this section are extended totidem verbis to all persons dying seised of or entitle i to lands, &c., so that now the real estate of persons dying indebted is rendered subject to all their debts, though specialty creditors have the priority.

The effect of these statutes is to render the heir and devisee liable to the same suits in equity, at the suit of a simple contract creditor, as they were before liable to at the suit of a special creditor, where the heir was bound. But the purchaser from an heir or devisee, being before the statutes bound to see to the application of his purchase-money, in satisfaction of legacies charged on the land by the devisor, notwithstanding the exist ence of specialty debts, which were to be paid out of the land; and the statutes having made no difference in this respect, the purchaser from an heir or devisee is still bound to see to the application of his purchase-money in satisfaction of legacies charged on the land, where there is no prior charge for the payment of debts.- Horn v. Horn, 2 Sim. & Stu. 444.

Until lately it was considered doubtful whether the same principle was not applicable to a case where there was a charge in the will for payment of debts and legacies, and the purchaser had notice prior to the completion of his purchase, that all the debts had been paid, Johnson v. Kennett, 3 Myl. & K. 624; but in a recent case, in which the editor was counsel, Lord Langdale determined that where there is a general charge for payment of debts, legacies, and even annuities, the purchaser is not bound to see to the application of his purchase-money, provided there were debts due from the testator at his death, though the purchaser have express notice that all such debts have been paid, for that the charge has reference to the state of things at the testator's death.- Page v. Adam, Rolls, July 30th, 1841; Leg. Obs. v. 22, p. 427.

This decision, it is conceived, has materially weakened the

Sect. 10. Where any action, suit, or proceeding for the payment of debts or

other

not demur

infants.

other Parol shall any by or against shall be commenced or prosepurpose, cuted by or against any infant under twentyone, either alone or together with any other person or persons, the parol shall not demur, but such action, suit, or other proceeding shall be prosecuted and carried on in the same manner and as effectually as any action or suit could before the passing of the Act be carried on or prosecuted by or against any infant, where according to law the parol did not demur (a).

authority of Horn v. Horn, supra, for the statutes 1 Will. 4, c. 47, and 3 & 4 Will. 4, c. 104, having in effect created a general charge for payment of debts, there do not appear to be any stronger grounds for requiring a purchaser to see to the application of his purchase-money in a case where the charge is created by the statute, than where it is created by the testator.-See also Eland v. Eland, 4 Myl. & Cr. 427.

(a) With reference to this section, it is to be observed, that the practice of giving a day to an infant to show cause against a decree after he comes of age, is not affected by the Act. This practice and that of parol demurring are so often confounded together, and treated as synonymous, although a material difference has always existed between them, that it may be useful to give a short explanation of the origin of parol demurring, and to show in what cases the practice of giving a day has been distinguished from it, and is still retained.

By the feudal law, during the subsistence of wardships, the estate of the heir in chivalry was during his minority in the