
    Rose Extor Bagg ag’t Cooke & al.
    
   Debt on Bond ag’t the Heir & Devisees of John Cooke The Defts plead 3 of them are under Age & pray the Parol may demur to which Plea the Pit. demurs And the Question is whether the Defts. ought to have their, Age or not

This Action lay not at the Common Law but is given by the Statutes 3 & 4. W. & M. 13. & the 6. Geo. 2. the first enforced here by Act 12. Geo. 1. 3. Before the making of which if a Man devised his Land by Will & died indebted his Cred’rs had no Remedy ag’t the Land but now an Action is given by that Statute against the Heir & Devisee jointly

I must observe the Defts in their Plea don’t alledge any other Title to the Land than as Devisees or that the Deft, the Heir has any Land by Descent Therefore I could not counterplead as I must have done if they had sayed in their Plea the Lands descended but I have demurred Conceving the Law to be very clear that upon this Plea and as the Truth of this Case is the Defts. ought not to have their Age

I must first beg Leave to premise that wherever a Man takes an Estate from his Ancestor or any other he must take it by Descent or by Purchase By Descent when the Law casts the Inheritance upon him without any Act of his Ancestor By Purchase when the Estate is [180] given him by Deed or Will or however otherwise he comes to it if it be not by Descent Lit. s. 12. The Defts. here are not in by Descent None but the Heir could be so Therefore they must be in by Purchase The Truth is an Estate-tail is devised to the Heir by the Will And wherever the Heir has another Estate given him than he would have by the Law he is a Purchasor All this is so clear it cannot be disputed It is indeed admitted by the Plea the Defts. not alledging any other Title than under the Devise And consequently they must be in by Purchase

Now as to the Matter of Age prier [sic] by which if it is granted the Suit is to be suspended till the full Age of the Defts. it is an ancient Privilege of the Common Law introduced in Favour of Infants upon a Presumption that they have not Understanding to know their Estate or to maintain or defend their Right And therefore the Law will not hazard a Trial by which they may be forever bar’d of their Inheritance till their full Age This Privilege is peculiar to the Law of England The Civil Law is otherwise Indeed the Guardian by that Law has a much greater Power than by our Law he can even alien a Minors Estate in some Cases. 3. Bui. 143. 1. Domat. 166. 167.

At the Common Law in many real Actions where an Infant was Demandant and in all except a very few where he was Tenant he had his Age if he was in by Descent And the Court ex Officio ought to grant it & not suffer the Infant to plead if he would And if a Judgment was had ag’t him by Default it was Error & is so still where he ought to have his Age 2. Danv. Error 98. However Age is now taken away by Statute in sev’l Actions 6. Rep. 4. b. Markats Case I agree that in Actions of Debt ag’t the Heir the Deft, had his Age at the Common Law and so he has still because he can not be charged as Heir unless he is in by Descent but where he has some Land by purchase & some by Descent he shall answer as to that he has by Purchase & shall not have his Age 1. Danv. 263. 3. Now it may be sayed that as Devisees are made liable by the Statute in the same Manner that Heirs are at the Common Law They too ought to have their Age as the Heir would But I conceive not because the Devisees are in by Purchase & not by Descent And where the Heir is in by Purchase he has not his Age as I have sayed Indeed it is a clear & settled Point of Law & was never yet disputed that where an Infant is in by Purchase he shall not have his Age The old Books are full of this Doctrine but real Actions having been much disused fot above 100 years past we find little upon this Subject in the later Authorities Rolle has collected most of the Cases out of the year Books 3. H. 6. 46. is a Case in Point for there was a Devise to the Heir in tail And adjudged that as he was not in by [181] Descent but by the Will & so by Purchase he should not have his Age See 1. Danv. 263. 13. this Case abridged and read to pag. 1. And. 21. Waller ag’t Lamb the Deft denied his Age because in [sic] as an Occupant & so quasi a Purchasor & not by Descent Carter 88. arguendo an Infant shall not have his Age where he is in by Purchase In Terms of the Law Age prier is defined to be where an Action is brought ag’t an Infant for Lands he has by Descent there he must shew this Matter to the Court & pray that the Plea may stay And in praying Age the Ten’t or Deft, always alledges he is in by Descent as appears by the Precedents old Bast. 26. Fitz. Age 15. 58. 22. 105. From which the Inference would be strong if there were no express Authorities that unless the Deft, is in by Descent he shall not have his Age But there are express Authorities & therefore it will not admit of a Dispute Another strong Argument may be drawn from the Silence of the Books & Reports since the making of the Stat 3 & 4. W. & M. upon this Subject We have not one Case and in a Course of 40 Years it is impossible but it must frequently have have happened that Infants Devisees have been sued upon this Statute Yet there is no Instance that ever they praied their Age which I think is a strong Proof that they are not intitled to it And because it is a clear & settled Point it has never been brought in Question

As to the Reasons why the Law allows this Privilege in Case of Descents only & not where an Infant is in by Purchase I presume they may be these When an Infant comes to an Estate by Descent the Law casts the Inheritance upon him & he cannot by Intendment suddenly know the true State of his Estate in Respect of that Want of Knowledge the Law adjudges in him But when he is in by Purchase which in Judgment of Law is his own Act the Presumption of his Incapacity to know his Estate must cease The Law too is favourable to Descents as the worthiest Means of coming to an Estate And therefore divers Privileges are annexed to it A Descent in many Cases will take away the Entry of him that has Right Many other Instances there are of these Privileges annexed to Descents But whatever the Reasons may be the Law is so clear and express I apprehend it cannot be receded from in a judicial Determination

Fr tot cur the Defts.

shall not have their Age. Apr. 1736.

Note the Court seemed to think if the Heir had any Lands by Descent he ought to have shewed it in his Plea And then as to that the Parol ought to demur but not for the whole

The Devisees in that Case ought to answer & the Heir too as to the Land devised. See 1. Danv. 263. 3. So was Sir John Randolphs Opinion as I took it

To the Argument above may be added that the Statute has no [182] Saving to Infants till they come of Age And there is no Reason to presume the Makers intended them that Privilege

The Design & Policy of the Act was to give Creditors an ample Remedy to recover their Debts And consistently with that Design the Act must be construed the most extensively & beneficially for them The Statute does in some Sort devest the Lands out of the Devisees & vest it in the Cred’rs

Infants are bound as well as others by Acts of Parl’t unless there is a saving Clause Or else why are such saving Clauses added Here is no saving Clause in the Statute Ergo their Right is bound as well as others

N B. When the Ten’t in a real Action prays his Age he pleads by his Guardian that his Ancestor died seised & the Tenem’ts descended to him &c. Vid. my Rast. Ent. 26. Tit. Age 16. Which proves if he was in by Purchase he co’d not have his Age Vid. supra Post 213.  