that the agreement entered into by the plaintiff with the defendants William Sharpe and Edward Day, for the purchase of the premises in question, should be carried into execution. And that upon the plaintiff's paying unto the said defendants Willian Sharpe and Edward Day, the residue of the purchase money for the premises, the said defendants should execute an assignment of the lease of the said premises to the plaintiff, or as he should appoint. And that the defendants Sharpe and Day, should pay to the plaintiff his costs of the said suit, so far as the bills were not dismissed, as therein before directed, to be taxed by the Master, in case the parties differed about the same.

No. XV.

Belch v. Harvey (y), Ch. Mich. 9 Geo. II.

This cause was very long and intricate; but the chief question was, what length of time would bar an equity of redemption? And as to that point, Talbot, Lord Chancellor, said that courts of equity had of later years generally adhered to the time laid down in the statute of limitations with regard to ejectments, and that it was certainly right to have fixed rules in equity as well as law, that people might know how far their property extended, and where it was bound; and that he did not know any more reasonable rule in general, than what the legislature had prescribed for such possessory actions. The person claiming the equity of redemption offered some proof out of the Ecclesiastical Court, to show she was an infant at the time of her marriage, which was not allowed to be read, and other proof that the marriage continued for many years, both which, taken together, would excuse the non-redemption for a long time; but my Lord Chancellor gave her liberty to file an interrogatory to prove her infancy at the time of her marriage, if she could; and said, he would then consider whether equity had also followed the statute of limitations in allowing only ten years for infants and femes coverts to commence their suits after the imperfections removed, for he did not remember the court had pursued that part of the statute; and Mr. Verney, king's counsel, cited the case of Brewer and Bakerstraw, which he believed to be about five years ago, where the father mortgaged some chambers

(y) Vide supra, p. 321.

in Gray's Inn, and died, leaving his son an infant, during which time many years were saved; and yet nineteen years after he was come of age he was permitted to redeem. But to this Mr. Fazakerly answered, there was as much reason for observing it in the one case as the other; and that, in the present case, thirteen years had passed between the death of the husband and the bill filed for a redemption. This was on a supposition she could prove her infancy at the time of her marriage; for if she was then of full age, my Lord Chancellor said, the time would attach and run out against her, notwithstanding the subsequent marriage, and then she would be put off from all possibility of relief, for there would be near forty years possession against her unaccounted for. By statute 21 Jac. 1, ch. 16, persons having any right or title of entry must enter within twenty years after titles accrued; but the title of infants, femes covert, &c. are saved, so as they commence their suits within ten years after the imperfection removed.

This cause coming on again the same term, was ended by consent of the parties: but Lord Chancellor Talbot spoke, however, in this case to this effect: A peaceable and quiet possession for a long time weighs greatly with me in all cases. The foundation which the court goes on in cases of the like nature with the present, is not any presumption, that after a long space of time the party has deserted his right; but to quiet and secure men's possessions, which is very reasonable to be done after twenty years time, without some very particular circumstances: and for this cause a court of equity has generally acted in conformity to the statute of limitations. Whether the present plaintiff was an infant at the time of her marriage, is to me very doubtful; but taking it she was then an infant, as the court has not in general thought proper to exceed twenty years, where there was no disability, in imitation of the first clauses of the statute, so if I had been forced to have made a decree in the present case, I should have been of opinion, that after the disability removed, the time fixed for prosecuting in the proviso, which is ten years, should also have been observed: for the proviso containing an exception of several cases out of the purview of the statute, if the parties at law would avail themselves by the proviso, they must take it under such restrictions as the legislature hath annexed to it, and that is, to sue within ten years after the impediment ceases. Why should not the same rule govern in equity? I think there is great reason that it should. The persons who are the subject of the proviso are not disabled from suing, they are only excused from the necessity

of doing it during the continuance of a legal impediment; there fore when that difficulty is removed, and no body can say how long it may last, the time allowed after such impediment removed for their further proceedings should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms such excuse is given? If I had given my opinion on this case, I should have dismissed the bill.

No. XVI.

The King against John Smith, Esq. (a) Serjeant's Inn Hall, March 2, 1804.-The judgment of the Court, as delivered by the Lord Chief Baron.

This case of the King against Smith has occupied a great deal of the attention of the court, and that in a great degree owing to the prodigiously extensive consequences that it may have according as it is decided in the one way or the other. We were therefore anxious to search in order to find out what materials existed on the subject. After all the pains we could take, we find them to be but few. We have found no decision or authority similar in its terms to the present case; and the consequence of that is, where we can find principles laid down, we must be governed by them in the absence of every direct precedent on the subject. The magnitude of the question is very considerable, because, on the one hand, from some instances of persons in the service of government, and who have been entrusted with the public money, I have experience enough to say, that the ingenuity exercised by them may be such as not to make it very difficult to avail themselves of their situation, and to render it no easy matter to make them responsible; on the other hand, it puts those who make purchases from persons in such a situation in a very unpleasant and precarious situation, if the lands or goods so purchased may be extended. In this view the question is of very great importance. The stake in the present instance is next to nothing; but the decision will be such as will govern multitudes of cases that exist, and I believe many to exist of the same sort.

This case arises on an extent that was issued against John Montresor, Esq. late engineer in the service of government, in North America, who owed vast sums to government. It was found that a great balance remained in his hands which he had not accounted

(a) Vide supra, p. 372, 374, 376.

for.

for. The extent issued to the sheriff of Kent-that you diligently enquire what lands and tenements, and of what yearly value the said John Montresor had in your bailiwick on the 28th of September, in the 18th year of our reign, when the said John Montresor first became indebted to us in the said money, or at any time after, in the common language.

An inquisition is returned of course, and in the inquisition it is stated that the sheriff seized, &c.

Without going minutely into all the circumstances of this case, I believe I can state from memory, the leading facts upon which the question depends. The property now in question, which consists of a small messuage, and of some closes of land, originally belonged to a Mr. Thompson. He being seised of this property demised it for the full term of 500 years: the residue of this term was afterwards assigned to Ann Carter; and last of all to John Smith, the present defendant, in trust. And in 1795, Mr. Smith purchased the reversion of General Montresor, he being then seised of this property in his demesne as of fee subject to this term of 500 years; and at the time of the purchase Mr. Smith had no notice of any debt that had been incurred by John Montresor to the king.

This is the short state of the case, and I believe it is all that is necessary: and the question then is, whether this outstanding term, which is held in trust for Mr. Smith, does or does not protect him against the claim of the crown.

The argument on behalf of Mr. Smith, turned almost entirely on the statute of uses in courts of equity, and besides that on the doctrine laid down in Willoughby against Willoughby, which has never been shaken, and which I hope never will. I take that now to be a leading decision, never to be departed from in cases between subject and subject.

In answer to this case, made on the part of the defendant irrefragable as between subject and subject, in answer to this case it was argued, that the case of the crown is essentially different from that of the subject; and as far as we are furnished with light on this subject, it does seem that the case of the crown is essentially different.

In the first place, we find from a variety of authorities, that lands or goods in the hands of debtors or accountants to the crown, or in the hands of those who are debtors to the debtors of the crown, or which are held in trust for them, or to their use, are most clearly the subject of an extent.

Further,

Further, we find in Pl. Com. 321, in the great case of the mines in the hands of the crown, there was a great number of the king's debtors brought into the Court of Exchequer, and there the court held, that lands which had belonged to the king's debtors, which had been their property after they had so become debtors to the crown, were subject to the seizure of the king, into whatever hands they afterwards came, whether by descent, purchase, or otherwise. Among other cases there cited, is that of Sir Wm. Seyntloo, who married the widow of Sir Wm. Cavendish, who was treasurer of the household. Sir Wm. Seyntloo and his lady were returned terre-tenants, in right of the wife, of certain land which was Sir Wm. Cavendish's, and were called into the Court of Exchequer, and made accountable for the arrears due to the queen for Sir William's office. See Dyer, 224 and 225. It appears from the case, that after Sir William Cavendish became indebted to the crown, he purchased divers lands, and afterwards aliened them, and took back an estate therein to himself and his wife, and afterwards died without rendering any account, and the terre-tenants (as I have just stated) of the land were charged to answer to Queen Elizabeth for the arrears. These lands might have been seised in the hands of Sir William, and for the same reason they might be seised in the hands of every one who came under him.

In 2 Rol. Ab. 156, the difference is stated between the effect of a sale of land by a debtor to the crown, when that sale took place before he became a debtor, and a sale afterwards. In Dyer 160, there is the case of one Thomas Favell, who was a collector of the 15th and 10th. He was indebted to the crown, and being seised of certain lands in fee simple, and having divers goods and chattels, die intromissionis de collectione et levatione, of the 15th and 10th aforesaid, in extremity of illness aliened his tenements, goods, and chattels to divers persons, and died without heir or executor, and process was issued against the terre-tenants, and possessors of the goods and chattels, to account for the collection aforesaid, and to answer and satisfy the king thereof, &c.; and this by the advice of the Chancellor of England, and the Chief Justice of England, and the other judges of either bench. It is therefore clear, beyond all doubt, that the land itself may be extended into whatever hands that land may have been aliened.

The next step which we find in a matter of this kind, is the doctrine which is laid down in Sir Edward Coke's case, and which is mentioned afterwards by Lord Hale in deciding another case, which I shall state by and by. This case of Sir Edward Coke