Infants may be directed

to convey.

Sect. 11. Where any suit hath been or shall be instituted in a Court of equity for payment

hands of the guardian, who took the whole profits of it to himself; when therefore an action was brought against an infant heir, he was entitled to pray the parol to demur, which was a plea of nonage, in stay of the creditor's action, and the effect of it was to suspend all proceedings till the infant's full age. This plea was allowed not merely on account of his inability to defend himself by reason of his infancy, but from an absolute deficiency of funds arising out of the feudal tenures. The privilege came to be extended to other heirs besides those in chivalry, but in what manner is now unknown, its history being lost in antiquity. So where there were several heirs at common law, and one an infant, the parol would demur as to all; because as all were to contribute, it would have been hard that the adults should plead, and have judgment and execution against them, when they could not have contribution from the infant.-Com. Digest Pleader. So in Co. Litt. 290 a, it is said, "If a man have judgment against him for debt, &c. and dieth, his heir within age, or having two daughters, and the one within age, no execution shall be sued of the lands by elegit during the minority, although the heir be not specially bound, but charged as terretenant;" and moreover in some cases the parol would demur even against the infant, as where a naked right in fee descended from any ancestor to an infant, in an action ancestorial by the infant heir, the parol was entitled to demur.-Plaskett v. Beeby, 4 East,

491.

As equity follows the law, the same privilege was recognised in Courts of equitable jurisdiction; and although in some measure affected by the 47 Geo. 3, c. 74, in favour of creditors of a testator who was a trader, and liable to the bankrupt laws, it was not materially infringed upon until the passing of the 1 Will. 4, c. 47; but by the next section (sect. 11) of the latter

of any debts of a person deceased, to which his heir, or devisee, may be liable, and such

Act it will be seen that Courts of equity are empowered, in cases where decrees shall be made for the sale of estates liable to the payment of debts, to direct infant heirs to convey.

The effect, then, of this statute is to prevent a total suspension of proceedings affecting the interests of infants at law or in equity, by parol demurring, but except in the instances specially provided for by the 11th section, the privilege recognised by Courts of equity, of allowing the infant a day, remains untouched. We are now, therefore, to ascertain in what cases a day was given to infants where the parol, before the passing of this Act, did not demur, because in all such cases infants have the same right of supervision after they attain twenty-one, as they had when parol demurrer was in full force. The principal examples will be found in suits against infants for foreclosure and partition, for in these a day has always been given, although the parol might not demur; but it may also be stated, that in all cases where a conveyance is required from an infant heir, the same rule has been followed; see Spencer v. Boys, 4 Ves. 370; Uvedale v. Uvedale, 3 Atk. 117; Price v. Carver, 3 Myl. & Cr. 162; in the latter of which the distinction between parol demurring and giving a day is most clearly shown. The bill in that case was filed by an equitable mortgagee of copyhold property, and it prayed a foreclosure. At the hearing before the Chancellor, on the 8th of April, 1837, his Lordship made the usual decree for a foreclosure, but some of the parties interested in the equity of redemption, and who were defendants to the suit, being infants, a question arose in drawing up the decree whether they were to have a day to show cause against the decree when they should attain twenty-one. Lord Cottenham, after referring to the form of the decree, said: "That the defendants would have had a day to show cause, according to the course hitherto pur

Court shall decree the estates liable to such debts, or any of them, to be sold for satisfaction

sued, is quite clear, the decree being both to foreclose and to procure a conveyance from the infants. But it is said, that the statute 11 Geo. 4 & 1 Will. 4, c. 47, s. 10, has altered the course of proceeding. That statute only enacts that the parol shall not in future demur. If the parol demurring and the giving a day to an infant be synonymous terms, then this statute has prohibited the giving a day in future; but if the terms be not synonymous, then the statute does not affect the practice in question in this case. I have always conceived that the parol demurred in equity in those cases only in which it would have demurred at law. The origin and limits of this course of law are well explained in Plaskett v. Beeby, 4 East, 491, and the cases there put of the parol demurring have no reference to the cases in equity in which a day is given to an infant to show cause; indeed the shape of the decree in the two cases is perfectly different. When the parol demurs in equity, nothing is done to affect the infant, but when a day is given the decree is complete, but the infant has a day given to show cause against it, and if he do not show good cause within the time specified, he is bound. In some cases, indeed, the distinction is most apparent, the Court deciding that the parol did not demur, and therefore making the decree, but giving the infant a day to show cause. In Uvedale v. Uvedale, 3 Atk. 117, Lord Hardwicke puts a case in which the parol could not have demurred, but the infant would have had a day given. So in Chaplin v. Chaplin, 3 P. Wms. 368, it was held that the parol did not demur, but the legal estate being in the son, could not have been got from him till twenty-one, and the decree must have given him a day to show cause. In Fountain v. Cain, 1 P. Wms. 504, there was a trust to pay debts, and the parol did not demur, but a day was given to the infant. Powel v. Robins, 7 Ves. 209, was a case in

of such debt or debts, and by reason of the infancy of any such heir or devisee, an immediate

which the parol demurred, and no sale was directed till the heir attained twenty-one. In Pope v. Gwyn, 8 Ves. 28, n.; 2 Dick. 683; the assets were held to be equitable and the parol did not demur, but a day was given to the infant heir. Spencer v. Boyes, 4 Ves. 370, was not a case of the parol demurring, but a day to show cause was given to the infant heir. All cases of foreclosure and partition, and all others in which a conveyance is required from an heir, except those in which the parol would demur at law, are cases in which a day is given, but the parol does not demur. Of all such cases the statute takes no notice, and affords no remedy for them, except that by the 11th section it enables the Court to take from the infant the legal estate of property decreed to be sold for the payment of debts, but for that purpose only. In all other cases in which a conveyance is required from an infant, the law remains as before, and the practice, therefore, must remain the same. There must be a decree for the infant to convey at twenty-one, and he must have a day to show cause as before.

In conformity with the principles established by the cases just referred to, and with the enactment contained in the section now under consideration, it has been held, that where a bill is filed by an equitable mortgagee for a sale of the mortgaged property, and a decree for sale is obtained, an infant heir, who is a defendant to the suit, is not entitled to the usual allowance of six months after he comes of age to show cause against the decree, although, as we have seen, he would still be allowed a day, if the decree were for a foreclosure instead of a sale.Scholefield v. Heafield, 7 Sim. 669.

By the 30th of the General Orders of the Court of Chancery, made the 26th of August, 1841, in pursuance of the Acts of

conveyance thereof cannot be compelled, such Court may direct such infant to convey such estates so to be sold to the purchaser or purchasers thereof, and in such manner as the said Court shall think proper; and every such infant shall make such conveyance accordingly (a).

4 Vict. c. 94, and 4 & 5 Vict. c. 52, it is declared, that in all suits concerning real estates vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as executors or adminis trators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate or rents and profits parties to the suit. And by the 31st of the same orders it is also declared, that in suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party.

(a) In Smethurst v. Longworth, 2 Keen, 603, it was held, that this statute did not empower a Court of equity, even for the benefit of the infant heir, to direct a mortgage of his real estates for payment of the ancestor's debts to which it was liable; but now by stat. 2 & 3 Vict. c. 60, s. 1, Courts of equity are em. powered to direct mortgages as well as sales of estates for the purposes above mentioned; and by sect. 2 of the same statute it is declared that the surplus (if any) of the money raised by any such sale or mortgage which shall remain after answering the purposes for which the same shall have been raised, and defraying all reasonable costs and expenses, shall be considered in all