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the decree made in these causes the said manor of Grimstone was directed to be sold &c.; in pursuance whereof William Garforth hath been reported, and stands absolutely confirmed, the best purchaser of the said manor, at the sum of £; that the said William Garforth afterwards paid his purchase money &c. and all parties executed the conveyance of the said premises, except the said Edward Wright Stanhope; that the said Master by his report, dated the 9th instant (among other things), certified that he conceived that the said Edward Wright Stanhope, being devisee of the said real estate, was a proper party to join in the conveyance of the said estate to the heirs or assigns of the said William Garforth (he being then dead); and that it appeared to him, by the affidavit of &c. that the said Edward Wright Stanhope had then attained his age of twenty-one years; and therefore it was prayed that the said Edward Wright Stanhope might be directed to execute the conveyance &c. Whereupon and upon hearing an affidavit of notice of this motion to the said Edward Wright Stanhope, the said Master's report, and an order dated the 3d day of March, 1744, read, and what was alleged by the counsel for the said Edward Garforth, his Lordship doth order, that the said Edward William Stanhope do join in the conveyance of the said premises to Edward Dring, now Garforth, pursuant to the said report, on his being served with this order. Stanhope v. Stanhope, L. C. 23d July, 1748. Reg. Lib. B. 1747. fol. 401.

No. V.

FORECLOSURE AGAINST INFANT.

The form of the decree is the same with the usual form, [see Decrees respecting Mortgages, No. I. ante.] giving the infant a day to shew cause. (See No. I ante.)

NOTE.

In Draper v. Earl of Clarendon, 2 Vern. 518. it is said, that an infant cannot be foreclosed. But in Bishop of Winchester v. Beavor, 3 Ves. 317. the Master of the Rolls observed, that the former

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case did not state the rule of the court correctly, for that an infant might be foreclosed.

Booth v.

The infant, however, must have a day to shew cause. Rich, 1 Vern. 295. Gordon v. Williamson, 19 Ves. 114. Price v. Jones, M. R. 15th February, 1743. Reg. Lib, B. 1742. fol. 207. And see Mallack v. Galton, 3 P. W. 352. Anon. Mos. 66. Bennet v. Edwards, 2 Vern. 392.

The infant is also entitled to a day to shew cause against the order for making the foreclosure absolute. Price v. Jones, M. R. 22d May, 1744. Reg. Lib. B. 1743. fol. 367. Gordon v. Williamson, supra.

On a bill by a mortgagee against the customary heir of the mortgagor, who was an infant, for a surrender and foreclosure, the Court refused to decree a foreclosure, but directed an account, and in default of payment, that the plaintiff should hold and enjoy, and that the infant should surrender at twenty-one, with a day to shew cause. Spencer v. Boyes, 4 Ves. 370.

Shewing Cause.

In Anon. Mos. 66. after a decree of foreclosure against an infant, he was allowed, on coming of age, to put in a new answer. But in Mallack v. Galton, 3 P. W. 352. it was held, that the infant, on coming of age, is not permitted to open the account, or even to redeem, but is confined to shewing error in the decree. And see Lyne v. Willis, Ib. note. Bishop of Winchester v. Beavor, 3 Ves. 317. Williamson v. Gordon, 19 Ves. 116.

No. VI.

DECREE FOR SALE ON BILL BY MORTGAGEE AGAINST INFANT.

[The bill prayed a sale.]

His Honour doth order and decree, that it be referred to Mr. E. one &c. to take an account of what is due to the plaintiff for principal and interest on his mortgage, and to tax the plaintiff and the defendant their costs of this suit. And, by consent of the plaintiff, it is further ordered and decreed, that the said mortgaged premises be sold &c. [See Usual Directions, No. VI. ante.] And out of the money arising by such sale the plaintiff and the defendant are to be paid their

costs of this suit, and then the plaintiff is to be paid what shall be reported due to him for principal and interest on his said mortgage. And if there shall be any residue of the said purchase money, the same is to be laid out &c. [See Usual Directions, No. XI. ante.] for the defendant the infant's benefit. And the said Accountant-general is to declare, &c. And the defendant is to be at liberty to apply to this Court for the same when he shall come of age. And for the better taking of the said accounts &c. [See Usual Directions, No. II. ante.] And this decree is to be binding upon the defendant, unless &c. [See No. I. ante.] Pace v. Marsden, M. R. 4th December, 1747. Reg. Lib. B. 1747. fol. 179.

For the like decree, but without costs to defendant, and not stated to be by consent, and sale not prayed. See Wakeham v. Lome, M. R. 9th December, 1747. Reg. Lib. B. 1747. fol. 216.

For the like decree, with costs, and not stated to be by consent, and sale not prayed. See Hamond v. Bradley, M. R. 13th July 1748. Reg. Lib. A. 1747. fol. 594.

NOTE.

Sale on Bill by Mortgagee against Infant.

In Goodier v. Ashton, 18 Ves. 83. on a bill of foreclosure against an infant, the Master of the Rolls refused to refer it to the Master to inquire whether a sale would be for the benefit of the infant. But in Mondey v. Mondey, 1 V. & B. 223. the Lord Chancellor directed such a reference, observing, that if there was no precedent he would make one, but that he was sure that it had been done.

And on a bill by a mortgagee against an infant, a sale has been directed without a reference. Pace v. Marsden, supra. Wakeham v. Lome, supra. Hamond v. Hamond v. Bradley, supra.

No. VII.

PARTITION AGAINST INFANT.

The form of the decree is the same with the usual form, [see Decrees for Partition, No. I. ante.] giving the infant a day to shew cause. (See No. I. ante.)

NOTE.

A partition will be decreed against an infant, with a day to shew cause against it. Lord Redesdale, 97.

Formerly mutual conveyances were decreed to be executed by the adult parties, and by the infant at twenty-one, unless he should shew cause to the contrary. See original decree in Tuckfield v. Buller, 1 Dick. 242. Davenport v. Oldis, there cited. Decree for partition, Equity Draftsman, 655. But in Tuckfield v. Buller, 1 Dick. 241. S. C. Ambl. 197. Lord Hardwicke held these decrees to be incorrect, and, upon a motion for that purpose, ordered that the execution of the conveyances by all parties should be respited till the infant attained twenty-one. And see judgment of Lord Hardwicke in Tuckfield v. Buller, Appendix (1).

Nevertheless, in a subsequent case, he adopted the former practice. Earl of Cardigan v. Montagu. Decrees for Partition, No. I. ante. But the latter practice was adopted by Lord Thurlow. Hubble v. Read, 1 Dick. 243. note.

And it is now settled, that if the infancy of any of the parties, or other circumstances, prevent mutual conveyances, the decree can only extend to make the partition, give possession, and order enjoyment accordingly, until effectual conveyances can be made. See Lord Redesdale, supra. And see Decree in Agar v. Fairfax, 17 Ves. 545. 554. Attorney-General v. Hamilton, 1 Mad. 214.

So, where an infant is plaintiff in a bill for partition, the conveyances will be respited. Lord Brook v. Lord Hertford, 2 P. W. 518. The costs of infants and femes covert should be directed to be borne by their shares. See Agar v. Fairfax, 17 Ves. 557.

Order on Default.

If no cause is showed or allowed, mutual conveyances will be decreed. Lord Redesdale, 97.

court.

APPENDIX (1).

The Judgment of Lord Hardwicke in Tuckfield v. Buller. Lord Chancellor:-"If I doubted, I would cause precedents to be searched. There is a difference between partitions at law and in this court. At law the infant has no day to shew cause, as he has in this The infant at law is bound; and all parties, upon a partition so made, have a several legal estate in the lands allotted to each of them. But it is otherwise in this court; for the equitable right is only vested in the parties in the lands allotted in severalty; and therefore this Court, to complete such partition, decrees mutual conveyances. If the conveyance was to be made at present, the infant

would have his estate and partition complete, and yet have a legal estate in common with the plaintiffs in their allotment, which might be attended with great hardship to the plaintiffs. It is said, that James Buller the elder is tenant for life and can convey. But that does not clear up the whole objection; for, supposing he should die during the minority of the son, the estate tail would then fall into possession. The case cited of Lord Brooke v. Lord Hertford, 2 P. W. 518. is a material case, where the point was disputed, and a more favourable case for ordering mutual conveyances than the present, as the legal estate in the whole was in trustees, who might have conveyed. But there the conveyance was postponed until the plaintiff, the infant, came of age; and yet an infant plaintiff has no day to shew cause against a decree at his suit." [From a MS. of Sir George Hampson.]

No. VIII.

ORDER FOR GUARDIAN AND MAINTENANCE, ON PETITION. (1)

It is ordered, that it be referred (2) to Mr. S. one &c. to approve (3) of a proper person or persons to be appointed guardian or guardians of the person and estate of the petitioner during her minority. And it is ordered, that all proper parties have notice to attend the said Master thereon, and be at liberty to propose such guardian or guardians. And it is ordered, that the said Master do inquire and state the petitioner's age (4), and the nature and amount of her fortune, and what relations she has, and on what evidence or ground he approves of such person or persons so to be appointed guardian or guardians. And it is ordered, that the said Master do inquire (5) and state what will be proper to be allowed for the maintenance and education of the petitioner during her minority, and from what past period such allowance should commence, and out of what fund it should be taken. And after the said Master shall have made his report, such further order shall be made as shall be just. In Matter of Arnold, M. R. 1st December, 1814. Reg. Lib. A. 1814. fol. 50.

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