1 Will. 4.
c. 47, s. 9.

Traders'
estates shall

equity.

9. From and after the passing of this act, where any person 11 Geo. 4 & being, at the time of his death, a trader within the true intent and meaning of the laws relating to bankrupts, shall die seised of or entitled to any estate or interest in lands, tenements or hereditaments, or other real estate, which he shall not by his be assets to be last will have charged with or devised subject to or for the pay- administered ment of his debts, and which would be assets for the payment in courts of of his debts due on any specialty in which the heirs were bound, the same shall be assets to be administered in courts of equity for the payment of all the just debts of such person, as well debts due on simple contract as on specialty; and that the heir or heirs-at-law, devisee or devisees of such debtor, and the devisee or devisees of such first-mentioned devisee or devisees, shall be liable to all the same suits in equity, at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as they are liable to at the suit of creditors by specialty, in which the heirs were bound: provided always, that in the administration of assets by courts of equity, under and by virtue of this provision, all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands.

This section of the act corresponds verbatim with the statute 47 Geo. 3, sess. 2, c. 74. In the construction of that act it was held, that a party to come within it must have been a trader at his death (Keene v. Riley, 3 Mer. 436; Hitchon v. Bennett, 4 Mad. 180). See further as to this section, the note to Administration of Estates Act, 1833, post, p. 399.

10. From and after the passing of this act, where any action, In actions by
suit, or other proceeding for the payment of debts, or any other or against
purpose, shall be commenced or prosecuted by or against any parol shall
infant, the
infant under the age of twenty-one years, either alone or to- not demur.
gether with any other person or persons, the parol shall not
demur, but such action, suit, or other proceeding shall be prose-
cuted and carried on in the same manner and as effectually as
any action or suit could before the passing of this act be carried
on or prosecuted by or against any infant, where according to
law, the parol did not demur.

Where an infant heir was sued by the specialty creditor of his Demurrer of
ancestor, he might as a dilatory plea plead his non-age in stay of the parol.
creditor's action and claim to make the parol demur, that is, that the
proceedings might be stayed, until he was of full age (see Gilbert's Hist.
Com. Pl. 54, 56; 2 Bl. Com. 300; 2 Inst. 257, 291). The plea might bo
pleaded in equity as well as at law (Chaplin v. Chaplin, 3 P. W. 368; Lech-
mere v. Brasier, 2 Jac. & W. 290; Scarth v. Cotton, Jac. 635, n.). It was
said by Lord Cottenham that the parol demurred in equity in those cases
only in which it would have demurred at law (Price v. Carver, 3 M. & C.
162). In equity, however, the privilege seems to have been extended to
an infant devisee (Powell v. Robins, 7 Ves. 211), but not at law (Plaskett v.
Berby, 4 East, 485). By the above section the demurrer of the parol has
been abolished in all cases, both at law and in equity.

Η

11 Gco. 4 & 1 Will. 4.

c. 47, s. 10. Day to show

cause.

Foreclosure of equitable mortgage.

Foreclosure

of legal mortgage.

Infants to

ances under

order of the court.

In addition to and distinct from the demurrer of the parol (see Price v. Carver, 3 M. & C. 162), courts of equity adopted a further rule for the protection of infants, by which the infant was entitled, after attaining his majority, to a day to show cause against the decree. This rule was adopted in all cases of foreclosure and partition and in all cases in which a conveyance was required from an infant, except those cases in which the parol would demur at law (Price v. Carver, 3 M. & C. 162; Walsh v. Trevanion, 16 Sim. 178). This rule was not affected by the above section (Ib.), but in consequence of the power given by sect. 11, the provision giving an infant a day to show cause was omitted in decrees in equity by which, for the payment of debts, estates were directed to be sold (Scholefield v. Heafield, 7 Sim. 669; Mahon v. Dawson, 2 Dr. & W. 286) or mortgaged (Holme v. Williams, 8 Sim. 557). And it seems now that in all cases where there is a judgment against an infant for an immediate conveyance, the Trustee Act, 1893, s. 31 (post), applies, and it is not necessary to insert in the decree the direction giving the infant a day to show cause after he shall have attained twenty-one (Mellor v. Porter, 25 Ch. D. 161; see Boura v. Wright, 4 D. J. & S. 265).

In the case, however, of foreclosure of an equitable mortgage when there is no decree for sale, the decree must still be for the infant to convey at twenty-one, with a direction giving him a day to show cause (Price v. Carver, 3 M. & C. 163; Scholefield v. Heafield, 7 Sim. 669; Mellor v. Porter, 25 Ch. D. 158); but not where the infant is entitled only as trustee (Foster v. Parker, 8 Ch. D. 147). See the forms of foreclosure judgments, Seton, 6th ed., 980. Where there is a decree for sale no day will be given (Scholefield v. Heafield, sup.; Clinton v. Bernard, Dru. 287). And the court may order a sale when it is for the benefit of the infant (Davis v. Dowding, 2 Keen, 245).

Besides cases where a conveyance was required from an infant, a day to show cause was given in cases of foreclosure of a legal mortgage (Williamson v. Gordon, 19 Ves. 114); and this is still the rule (Newbury v. Marten, 15 Jur. 166; Gray v. Bell, 46 L. T. 521; 30 W. R. 606; see Mellor v. Porter, 25 Ch. D. 161). But where the value of the property was clearly less than the amount due to the mortgagee, and it was for the benefit of the infant, on the plaintiff paying the infant's costs a decree absolute was made, no day to show cause being given (Croren v. Lever, 12 W. R. 237; Bennett v. Harfoot, 19 W. R. 428; Wolverhampton, &c. Co. v. George, 24 Ch. D. 707).

Where in a foreclosure action a day to show cause has been given, the infant on attaining twenty-one cannot travel into the account, or redeem, but only show error in the decree (Mallack v. Galton, 3 P. Wms. 352; Williamson v. Gordon, 19 Ves. 114; Kelɛall v. Kelsall, 2 M. & K. 409).

11. Where any suit hath been or shall be instituted in any make convey- court of equity, for the payment of any debts of any person or persons deceased, to which their heir or heirs, devisee or devisees, may be subject or liable, and such court of equity shall decree the estates liable to such debts, or any of them, to be sold for satisfaction of such debt or debts, and by reason of the infancy of any such heir or heirs, devisee or devisees, an immediate conveyance thereof cannot, as the law at present stands, be compelled, in every such case such court shall direct, and, if necessary, compel such infant or infants to convey such estates so to be sold (by all proper assurances in the law) to the purchaser or purchasers thereof, and in such manner as the said court shall think proper and direct; and every such infant shall make such conveyance accordingly; and every such conveyance shall be as valid and effectual to all intents and purposes as if such person or persons,

being an infant or infants, was or were at the time of executing 11 Geo. 4 & the same of the full age of twenty-one years.

Orders may still be made under sects. 11 and 12 of this act, see the forms, Seton, 3rd ed. 826; but these provisions were practically superseded by the Trustee Act, 1850, s. 29, and the Trustee Act, 1852, s. 1; see now, Trustee Act, 1893, s. 30 (post). See Wood v. Bestlestone (1 K. & J. 213). The usual practice is for the decree or order directing the sale or mortgage to declare that the infant heir, devisee, or tenant for life, is a trustee within the meaning of the Trustee Act, and then to obtain a vesting order (Daniell, Ch. Pr. 7th ed. 867, n. (r)). See the notes to the Trustee Act, 1893, s. 30 (post). Before the Trustee Act, 1850, an infant refusing to convey in pursuance of an order under sect. 11, was declared a trustee within 1 Will. 4, c. 60 (Thomas v. Gwynne, 9 Beav. 275). Under Jud. Act, 1884, s. 14, the court has now power to nominate a person to execute an instrument in place of a refusing party. As to sales by the court, see generally R. S. C. Ord. 51, r. 1.

With regard to the operation of sects. 11 and 12, the decisions were conflicting as to whether the court could direct a mortgage as well as a sale (Holme v. Williams, 8 Sim. 557; Smethurst v. Longworth, 7 L. J. Ch. 18); but by the Debts Recovery Act, 1839 (post, p. 396), the sections were extended so as to include a mortgage.

Under sect. 11 an infant devisee in tail may be ordered to convey (Penny v. Pretor, 9 Sim. 135); and the conveyance must be made by the proper assurance which by law is now required for a tenant in tail (Radcliffe v. Eccles, 1 Keen, 130). In a creditor's suit, after a decree for sale of the estate, an infant heir was ordered to join in the conveyance to the purchaser under sect. 11 (Brook v. Smith, 2 R. & M. 73). A convevance by an infant under this section passes only such interest as the infant, if of full age, might pass (Heming v. Archer, 8 Beav. 294). Orders under this section will be found, Seton, 3rd ed. 825 (see further the note to sect. 12).

1 Will. 4, c. 47, s. 11.

interest may

convey the

sold.

12. Where any lands, tenements, or hereditaments, hath been Persons or shall be devised in settlement by any person or persons, whose having a life estate under this act, or by law, or by his or their will or wills, shall be liable to the payment of any of his or their debts, and fee, if the by such devise shall be vested in any person or persons for life estate is or other limited interest, with any remainder, limitation, or gift ordered to be over, which may not be vested, or may be vested in some person or persons from whom a conveyance or other assurance of the same cannot be obtained, or by way of executory devise, and a decree shall be made for the sale thereof for the payment of such debts or any of them, it shall be lawful for the court by whom such decree shall be made, to direct any such tenant for life, or other person having a limited interest, or the first executory devisee thereof, to convey, release, assign, surrender, or otherwise assure the fee simple, or other the whole interest or interests so to be sold, to the purchaser or purchasers, or in such manner as the said court shall think proper; and every such conveyance, release, surrender, assignment, or other assurance, shall be as effectual as if the person who shall make and execute the same were seised or possessed of the fee simple or other whole estate so to be sold.

The above section applied to copyholds (Branch v. Browne, 2 De G. Section & Sm. 299). A testator devised real estates to trustees to pay debts, and applies to copyholds.

11 Geo. 4 & 1 Will. 4. c. 47, s. 12. Conveyances under this section.

Not to repeal

act 33 Geo. 2 (I.) relating to debts due to bankers.

to convey the real estate, subject to such debts, to his son upon marriage
in strict settlement. The trustees conveyed to the son for life, with
remainder in strict settlement: it was held that the son could convey the
legal estate under this section (Cheese v. Cheese, 15 L. J. Ch. 28; see
Walker v. Aston, 14 Sim. 87). This section does not apply to a case where
an estate is devised to a trustee during the life of the cestui que trust, with
remainder over, and by the disclaimer of the trustee the legal estate
descended on the heir (Heming v. Archer, 7 Beav. 515; 8 Beav. 294). An
estate by the disclaimer of a trustee was vested in the heir pur autre vie,
with legal remainder to the children of A. (who was living) as tenants in
common. It was held, that no effective conveyance could be made under
the act until the class of children had been determined, by the death of A.
(Heming v. Archer, 9 Beav. 366). The case of the devisee for life, or
owner of the limited estate, or first executory devisee being an infant, is
provided for by the Debts Recovery Act, 1839 (infra); and the case of the
fee being vested, subject to an executory devise, in the heir by descent, or
otherwise than by devise, is provided for by the Debts Recovery Act, 1848
(post, p. 397). The lunatic tenant for life of estates, decreed in a creditor's
suit to be sold for payment of debts, was a trustee for the purchaser within
the meaning of 1 Will. 4, c. 60, s. 18 (Re Milfield, 2 Phill. 254).

13. Nothing in this act shall extend or be deemed or construed to extend to repeal or alter an act made by the parliament of Ireland, in the thirty-third year of the reign of King George (0) the First, intituled "An Act for the better securing the Payment of Bankers' Notes, and for providing a more effectual Remedy for the Security and Payment of the Debts due by Bankers" (p)).

(0) The following words are here omitted by mistake: "the Second, intituled An Act for repealing an Act passed in this Kingdom in the eighth Year of the Reign of King George.'

(P) By the third section of the Irish act, 33 Geo. 2, c. 14, all dispositions after 10th May, 1760, by bankers of real or leasehold estates, or any interest therein, to or for any children or grandchildren of any banker, are void against creditors, though for valuable consideration, and though not creditors at the time. As to the act 33 Geo. 2, c. 14, see Copland v. Davies (L. R. 5 H. L. 358).

2 & 3 Vict. c. 60.

II. THE DEBTS RECOVERY ACT, 1839.

2 & 3 VICT. c. 60.

The Debts Recovery Act, 1839, after reciting the 11th and 12th sections of the Debts Recovery Act, 1830 (ante, pp. 394, 395), and that doubts were entertained whether the above sections authorized courts of equity to direct mortgages as well as sales to be made of the estates of such infant heirs or devisees, or of lands, tenements or hereditaments so devised in settlement as aforesaid, and also to authorize such sales and mortgages to be male in cases where such tenant for life, or other person having a limited interest, or such first executory devisee as

1

c 60.

11 Geo. 4 & 1

aforesaid, is an infant, enacts, "that the said hereinbefore 2 & 3 Vict. recited provisions of the said act shall extend and the same are hereby extended to authorize courts of equity to direct mort- Recited progages as well as sales to be made of the estates of such infant visions of heirs or devisees, and also of lands, tenements or hereditaments will. 4, c. 47, so devised in settlement as aforesaid, and to authorize such sales extended to and mortgages to be made in cases where such tenant for life, authorize or other person having a limited interest, or such first executory well as sales devisee as aforesaid, is an infant."

A mortgage under this section was directed in National Bank v. Gourley (17 L. R. Ir. 357). But the court has no jurisdiction under these statutes to extend the sum to be raised by way of mortgage so as to include money required for repairs, even where such repairs are necessary in order to obtain an advance on mortgage, and where a mortgage is much more beneficial to the infant than a sale would be (Hill v. Maurice, 1 De G. & S. 214; see Garmstone v. Gaunt, 1 Coll. 577). For forms of orders under the act, see Seton, 3rd ed. 826.

mortgages as

of estates.

same mauner

2. When any sale or mortgage shall be made in pursuance of Surplus of the said recited act or this act, the surplus (if any) of the money from such money arising raised by such sale or mortgage which shall remain after answer- sale or morting the purposes for which the same shall have been raised, and gage to defraying all reasonable costs and expenses, shall be considered descead in the in all respects of the same nature and descend or devolve in the as the estates same manner as the estate, or the lands, tenements or heredita- so sold or ments so sold or mortgaged, and shall belong to the same persons, would have mortgaged be subject to the same limitations and provisions, and be applic- done. able to the same purposes as such estate or such lands, tenements or hereditaments would have belonged and been subject and applicable to in case no such sale or mortgage had been made.

III. THE DEBTS RECOVERY ACT, 1848.

11 & 12 VICT. c. 87.

c. 87.

The Debts Recovery Act, 1848, after reciting the 12th section 11 & 12 Vict. of the Debts Recovery Act, 1830, " And that such provision did not extend to the case of lands, tenements or hereditaments of a deceased debtor which are by descent or otherwise than by devise vested in the heir or co-heirs of such debtor, subject to an executory devise over in favour of a person or persons not existing or not ascertained, and that it was expedient that the said provision of the said act should be extended to such case: " enacted, that in cases in other respects falling within the said Recited protherein before recited provisions of the said act the same act shall vision to extend and is hereby extended to any case in which any lands, lands, &c. of tenements or hereditaments of any deceased person shall by a deceased descent or otherwise than by devise be vested in the heir or codebtor, in certain cases.

extend to