1804.

1804. PLASKET

versus

BLEBY.

IN THE COURT OF KING'S BENCH,

IN HILARY TERM.

[Continued from p. 213.]

PLASKET versus BEEBY, and Others.

An infant devisee being sued on a bond of the testator, cannot claim the privilege that the parol shall demur till such devisee come of age,

That privilege is a relict of the feudal institutions, and not being extended to the devisee cxpressly by 3 & 4 IV. and M. c. 14. is not to be extended by implication; for, with the abolition of the old tenures, the reason for it is gone, and the object of the sta tute was not to benefit the devisce but to relieve specialty creditors.

DECLARATION.-Thomas Plasket, executor of the last will and testament of Thomas Plesket, deceased, complains of Hugh Beeby and Mary his wife, Sarah Thompson, W. Sarah Beeby, and Joseph Cowx and Ann his wife which said Mary and Ann are the daughters and co-heiresses at law of one Joseph Thompson, of certain lands, tenements, and hereditaments, whereof the said Joseph Thompson, at the time of his decease, was seised in fee simple, being in the custody, &c. of a plea that they render to the said Thomas Plasket, as executor as aforesaid, 300l. which they unjustly detain from him, &c. "For that whereas the said J. Thompson, deceased, in his life-time, and also in the life-time of the said Thomas Plasket, deceased, and after the 25th day of March, 1692, to wit, on the 10th day of April, 1781, at C. in the county of C. by his certain writing, obligatory, &c. acknowledged himself to be held and firmly bound to the said Thomas Plasket, deceased, in 3001. of, &c. to be paid to the said T. P. deceased, or his executors, when, &c. for the payment whereof, he the said J. T. bound himself and his heirs, executors, and administrators, firmly by the said writing obligatory; yet the said Joseph Thomp

1

son, deceased, in his life, and the said defendants, since the death of the said Joseph Thompson, have not, nor have any or either of them (although often required) paid to the said Thomas Plasket, in his life-time, or since his decease, to the said Thomas Plasket, as executor as aforesaid, or to either of them, the said sum of money above mentioned, or any part thereof, but, &c. &c.

Demurrer of the parol: And the said Hugh and Mary, Sarah Thompson, Joseph and Ann, by Thomas Benson, their attorney, and the said Mary Beeby by Thomas Beeby, who is admitted by the court of our said Lord the King, here, to defend for the same Sarah Beeby, she being within age, as guardian of the said Sarah Beeby, come and defend the wrong and injury, when, &c. and say that the same Sarah Beeby is within the age of twenty-one years, namely, of the age of eighteen years and eight months, and no more, to wit, at C. aforesaid, and this they are ready to verify; wherefore they do not suppose that during her minority she ought to answer the said Thomas Plasket in his said plea, &c. and they pray that the said parol may demur until the full age of her the said Sarah Beeby, &c.

Demurrer by the plaintiff: And the said Thomas Plusket, executor as aforesaid, says, that by reason of any thing by them the said Hugh and Mary, Sarah Thompson, Sarah Beeby, Joseph and Ann above, in pleading, alleged the said parol ought not to demur, nor to be delayed until the full age of the said Sarah Beeby; because the said Thomas Plasket, executor as aforesaid, says, that the said plea of them the said Hugh and Mary, Sarah Thompson, Sarah Beeby, Joseph and Ann, in manner and form aforesaid, above pleaded, and the matters therein contained, are not sufficient in law to preclude them from answering the said Thomas Plasket, executor as aforesaid, in his said plea, nor that the said parol should demur till the full age of the said Sarah Beeby; to which said plea and the matters therein contained, in manner the same are above pleaded, he the said Thomas Plasket, exe

1804. PLASKET

ver sus

BEEBY.

1801

PLASKET

versus

BEEBY.

cutor as aforesaid, is under no necessity, nor is he bound by the law of the land to answer, and this he the said Thomas Plasket, executor as aforesaid, is ready to verify; wherefore, for want of a sufficient plea in this behalf, the said Thomas Plasket, executor as aforesaid, prays judgment, and that the said parol may not demur till the full age of the said Sarah Beeby, and that the said Hugh and Mary, Sarah Thompson, Sarah Beeby, Joseph and Ann, may answer to his said plea and suit, &c.

To this there was a joinder in demurrer by the defendants.

And two questions were made upon these proceedings, which were stated in the paper book, according to the late rule of the court, as follows, viz. First, Whether an infant devisee, being sued upon the bond of his testator, can claim the privilege, that the parol shall demur till such devisee shall come of age? Secondly, Whether such a privilege can be claimed by more defendants than the

infant?

WALKER for the plaintiff. "The first question is upon the statute of the 4 IV. & M. c. 14.* The object of this statute as expressed in the preamble, is to counteract the practice which had then prevailed, that persons who had bound themselves and their heirs, and who had afterwards died seised in fee-simple of lands, &c. had, to the defrauding of their creditors, by their last wills devised the same in such manner as such creditors have lost their said debts.' For remedying of which, and for the maintenance of just and upright dealing,' that statute was enacted: and it made such lands chargeable in the hands of the devisee in like manner as if they had passed to him by descent. This is a remedial statute, and therefore is to be construed liberally to further the object for which it is made. That object is to create a responsibility in the devisee to which he would have been no otherwise liable, but in no part of it docs there appear any intention to favour the devisee. It only permits him to take the estate under the devise, subject to the performance

* Continued and made perpetual by 6 and 7 W. 3. c. 14.

of certain duties; and to give to an infant devisee the privilege which is now claimed would be, in a great measure, to defeat the object of the statute. The debts, by the accumulation of interest, may even be so increased during the minority of the infant devisee, that when he came of age the estate would not be sufficient for the payment, and yet he would have enjoyed the profits of the estate in the interval. There is also a difference between the case of the heir and the devisee; the former is bound originally in the bond, and is a sort of party to it; the devisee is bound by taking the estate. And with respect to this question, it must be observed, he takes that estate by a sort of grant; and if an infant be in by purchase he shall not have his age for the parol to demur *; nor where he is an occupant only. As Although if lands ia fee descend on an infant the parol shall demur in equity as well as law; yet where a lease is made to a man and his heirs for three lives, the heir does not take by descent but as a special occupant, and the parol shall not demur. Chaplin v. Chaplin. ↑ It is therefore plain that this privilege is only consequent upon the lands passing by descent. And the acts, 3 Ed. I. c. 46.-6 Ed. I. c. 2.13 Ed. 1. c. 40.—52 Henry III. c. 60. shew that it is the object of the legislature rather to restrain this privilege than to extend it: and the 3 IV. & M. should be construed upon the same principle. But admitting, for the sake of argument, that the devisee would be entitled to plead her non-age, she should have done it alone, and not have joined with the heirs and other devisces, who are of age, and who therefore are not entitled to this dilatory plea. Aston, p. 241. Bro. Red. pl. 35,"

RICHARDSON, contrà. "By the statute the devisee is placed in precisely the same situation in which the heir stood, at common law. Now, the infant heir might demur in respect of his non-age, and it is equally clear, that the other heirs, though of age, would be entitled to

Waller v. Lambe, Dyer, 321. b. Co. Litt, 239. † 3 1 eere Wms. 368.

1804.

PLASKET

versus

BREBY.

1804.

PLASKET

versus.

BEEBY.

partake of the benefit of that privilege in respect of their making contribution, which ought to be equal from all the heirs. Comyns, title Pleader, 2 E. 3. In debt against the heirs in gavel-kind, if one be within age,' the parol shall demur, Or, against parceners,' ibid; + And at the full age of the infant there shall be a resummons against all the co-heirs,' . In Co. Lit. 290. a. it is also said, If a man have a judgment, or be bound in a recognizance, and die, leaving two daugh ters, and one be not of age, no execution shall be sued.' Then the next object to be considered is, Whether the devisee is entitled to the privilege equally and in the same manner as the heir. Now the design of the 3 W. & M. c. 14. is to put devisees precisely upon the same footing. In the third section an action is given to the creditors, in the cases recited in the preamble, against the heir and heirs at law of such obligors and such devisee and devisees jointly and such devisees shall be liable and chargeable for a false plea by him, and them pleaded in the same manner as any heir should have been for any false plea by him pleaded; or, for not confessing the lands to him descended.' In the 5th section the heir is made answerable de bonis propriis, for lands aliened by him before action brought. And in the seventh section, it is declared, that all devisees made liable by the act shall be liable and chargeable in the same manner as the heir at law.' So that either taking the general purview of the statute, or its particular clauses separately considered, it seems that the devisee, who is to be made liable as the heir, shall be also entitled to the same privilege. This in principle was the ground of the decision, in Matthews v. Jone's and others, where it was held, that the alienee of a devisee was equally discharged of the debt of the testator

* Ast. Ent. 241. Bro. Red. 195. † 3 Co. 13. a. Comyns, ibid. Bro. Red. 196. See also Sir John Langford's case, cited in Herbert's case, 3 Co. 13. a. Ass. anno 29. And Bro. Abr. Parol. demur. pl. 16, &c.

Also, Lib,

|| Anstruther, 506, See also Gott v. Atkinson, Willes, 524.