case jones v earl of strafford et all see Jones v Scott Russ my Lord  chancellor king Lord chief justice Raymond Eq can ab pl the plaintiff as  administrator during the minority of four infant child of the good and chattel  of one Bromell who die intestate bring his bill to recover a debt by bind for  pound date so long since as and a debt by note for pound date so long since as  both pretend to have be give by sir Henry Johnson knight the bill allege that  sir Henry Johnson by his will have subject his land to pay his debt and be  bring by the plaintiff against the defendant the earl of Strafford as  administrator with the will annex of sir Henry Johnson on the executor  renounce and against his heir at law and devisee and it appear by the bill  that one of the say four infant be the old and a daughter be marry to I n who  be of age and a coplaintiff and who sue as one of age and not by his prochein  any or guardian the defendant the earl of Strafford as to that part of the  bill which seek to recover the pound of the money due on peer William the say  bind or the money due on the say note from the say sir Henry Johnson or the  defendant as his administrator or which seek any relief in relation thereto or  any discovery in order to such relief demurrer for that it appear on the face  of the bill and of the plaintiff own show that as the plaintiff title be only  as administrator of Bromell so the administration be determine by the infant  daughter have marry a husband who be of age also as to such part of the bill  as seek to recover the pound or money due on the note pretend to have be give  in the say defendant plead the statute of limitation and show that the debt be  bar by the statute and that six year and upward have incur long before the say  sir Henry Johnson have make his will whereby he charge his land with payment  of his debt moreover as to that part of the bill by which the plaintiff seek  to recover the money due on the bind the defendant plead that the plaintiff  have bring a action of debt on the bind in the court of exchequer against the  defendant who have plead to loosen ad diem and that the say action be still  depend and to some immaterial part of the bill the defendant put in a short  answer these plead together with thedemurrer come on to be argue the Lord  chancellor call the Lord chief justice Raymond to his assistance and it be  object to the demurrer which be say to be in effect to the whole bill that the  same be overrule by the plead and also by the answer and that this be the  proper conclusion of all demurrer dorm v fortescue atk savage v Smalebrooke  vern Tidd v Clare dick Atkinson v Hanway Cox videlicet to demand judgement of  the court that the defendant ought not to answer to what the demurrer extend  to now the demurrer extend peer William to any relief as to the bind or note  or any discovery in relation thereto and the defendant afterward plead the  statute of limitation as to the note and the action at law as to the bind  these plead it be say overrule the demurrer for the plaintiff may reply to the  plead and thereupon examine witness and hear the cause so that the plead be as  a answer and swear as a answer vol and upon time grant to answer the defendant  may plead wherefore it must be inconsistent to a man to say I demurrer and  therefore ought not to answer and yet at the same time to answer consequent a  defendant can plead and demurrer to the same part of the bill and as answer to  the same thing overrule a plea so a strong plead or answer to the same thing  overrule a demurrer and of this opinion be the court videlicet that the plead  overrule the demurrer but still it appear that the infant daughter be marry to  one that be of age if thereby the administration be determine the court say  they will not proceed peer William er p in a suit where it be evident the  plaintiff claim under a administration which be at a end whereupon for the  demurrer it be insist that the question be no more than this a administration  be grant of the personal estate of a intestate during the minority of four  infant one of who be a daughter have marry a husband who be of age whether  this determine the administration now the only reason of grant such  administration during the minority of the infant be because none of the party  interest be capable of administer on account of their tender age but when one  of these have marry a husband that be of age there be then a party interest  who be capable of administer by which mean peer William as the reason of grant  the administration cease so must the administration also to be remiss causan  be remiss execution that the husband be not only a person capable of  administer but the proper person to manage at least his wife share of the  personal estate which seem all of it to be now vest in he but most certain he  have a power of dispose of it so that the administrator durante those inferior  in rank tate have no long the property nor any right to the possession thereof  and why shall his administration continue when there be nothing leave for he  to administer that it may be think sufficient for the defendant to show that  the say administration be determine without point out to who administration  shall now be grant however it be conceive that as the marry daughter share of  the personal estate belong to her husband so he shall have administration  grant to he of such share and that a different administration may be grant to  another person during the minority of the other three infant ad use et just of  these three infant neither be it material that this husband who have marry the  infant daughter be before the court and a party to the bill for if the  administration be determine then the plaintiff right to sue as administrator  during minority c be at a end of which the court will take notice and not  suffer a suit to proceed where there be no representation of the personal  estate in question no representative of the infant to who these security now  in controversy if subsist do belong that it be very true there be three child  of the intestate that be infant under the age of seventeen beside the daughter  who be marry but peer William that will not help the case because where a  administration be grant during the minority of four infant if one of the  infant come of age this do determine the administration   Brudenels case Leon  agree by the counsel on each side nay the case be there put further videlicet  that if administration be grant during the minority of four infant and one of  the infant die this determine the administration in regard it can be say there  be four infant when one of they be dead last that prince case in   be very  strong in favour of the demurrer where there be a infant executrix under  seventeen administration be grant to I S during her minority and the  administrator during minority sell a term for year adjudge such administrator  can not sell the term and further that the administration determine on the  executrixs marry if it appear that the husband be of age so that one of the  point then judicial before the court be whether the administration during the  minority c be not at a end by the executrixs marry and it be hold that the  marriage of the infant executrix to a man of age be a determination thereof  and the reason give be for that the executrix have take a husband who as the  book say may administer as executor which same resolution be mention and allow  in Godolphin orphan legacy and in Swinburne and in those book it be say that  where a infant executrix take a husband who be of age it be the same thing as  if she herself be of age and in I vent the same be cite for law by that  learned judge Mr justice Twisden so that from the reason of the thing and from  the authority which be conceive to be in point the administration durante  those inferior in rank tate and consequent the plaintiff title to sue be say  to be determine peer William and sure in the case of so stale a demand the  plaintiff ought to be hold strict to every thing though but matter of form as  to the next point which be upon the plea of the statute of limitation with  regard to the pretend note for pound from sir Henry Johnson to the plaintiff  intestate Bromell and which be date so long ago as the that of may above  fortyfour year since it be admit that sir Henry Johnson do by his will subject  his real estate to the payment of his debt yet the six year and many year  beyond that period have incur after sir Henry have give the say note and  before his peer William er p make his say will this which be a debt by simple  contract be say to be bar by the statute and to have become as no debt and  consequent neither revive nor aid by sir Henry will and that there be a most  manifest difference between this and the case late in the house of lord in  which the Lord Strafford the now defendant be appellant against one Blakeway  it be true the say Blakeway be a simple contract creditor of sir Henry Johnson  by a stale note but it be suggest in that bill vol and make part of the print  case that the say sir Henry within five year before the make of his will and  his death have pay to the say Blakeway part of the money due on the note then  in question which be insist upon as a acknowledgement of the say debt and have  alone be adjudge to revive a debt and to be evidence of a new promise to pay  it wherefore if the allegation be true that debt be in fact subsist at the  time of make sir Henry Johnson will for payment of his debt and consequent  must be within the trust not barrable by the statute of limitation though  after never so great a length of time which be carry the statute far enough in  peer William all conscience but in the present case the debt by simple  contract be complete bar by the statute of limitation before the make of sir  Henry Johnson will consequent it be then no debt neither have there be any  manner of excuse offer whereby to alleviate and take off the objection of this  great length of time and if it shall be contend that the statute of limitation  only bar the remedy for the recovery of the debt but that the debt in equity  and conscience remain still the answer be that the statute of limitation hold  on a presumption that the debt in this great length of time have be pay and  satisfy but that the party be by death deprive of his evidence prove the same  which he can not keep alive or by the mislaying of the receipt release or  other voucher of payment and if the parliament in this great length of time  presume a debt to be pay why shall not the court in westminsterhall make the  like presumption that there be no such thing in law as a right remediless  wherever there be a right the law give a remedy salk beside as the remedy suit  or action in the present case be admit to be bar by the statute of limitation  this make the case as strong as if the party creditor to who the debt by  simple contract be due have after the six year incur whereby the debt be bar  release to the debtor all action and suit both at law and in equity which will  certain have bar the debt nor be it credible if after the give of such a  release the debtor have make such a will as sir Henry Johnson have do in the  present case whereby he have charge his real estate with the payment of his  debt that the say debt by note will have be thereby revive peer William that  it will be a thing of the most mischievous consequence imaginable to construe  the testator will in such a sense and will prove a invitation to creditor of  the long stand after ever so great a length of time especial if such creditor  happen to be poor and necessitous to bring in their stale and satisfy debt in  order to a double payment and the present case be still the hard it not be the  case of a executor who may be presume to have be acquaint with the testator  and his affair but of a administrator who by his answer have swear himself a  utter stranger to all of they then as to the other plea videlicet to that part  of the bill which seek satisfaction of the bind out of the real and personal  asset of the testator sir Henry Johnson the defendant have plead that the  plaintiff the administrator have bring a action of debt on this bind in the  court of exchequer to which action the defendant have plead to loosen ad they  and that the say action be still depend now as this be a fair issue tender on  the point of payment and to which the matter must at length one time or other  come if the plaintiff will be so hardy as to venture it why shall not the  court stop here and prevent further charge on both side by order the party to  go to trial upon such issue Q and if the plea of to loosen ad they be true  then the debt be once pay the plaintiff can be entitle to no discovery of  asset or relief neither can it be any objection that the defendant have plead  double in the action bring in the exchequer videlicet a special plene to  manage also by set up several debt ultra queen the defendant have not asset  for if this be true though court can not take any notice of it in regard they  can take notice of any thing but what be contain in the plea nor peer William  can the plaintiff in the principal case be prejudice thereby since he may  amend his bill and charge this plea by the amend bill pray a discovery whether  these pretend debt be real and just debt or not with regard to the first point  the Lord chancellor and Lord chief justice be of peer William er p opinion  that the administration take by the plaintiff to Bromell during the minority  of the four child while some the dawn shall attain to twentyone do not  determine on one of these child marry a man of full age for that the husband  of such child have no right to administer because not of kin to the intestate  and when the old daughter arrive to twentyone though she shall be marry yet  administration must be grant to her and not to her husband that upon the  reason of the thing the administration must continue there be no other person  capable of administer neither be the wife share of the personal estate by the  marriage become vest in the husband for there may be debt which must e satisfy  before it can be know whether the wife have any and what right thereto and  after that it can be but a choose en action which will not vest absolute in  the husband by the marriage post Lord Carteret v Paschall that as to the  special administration quoad the wife share to be grant to the husband it be  plain impracticable since it must be a four part in specie of all the personal  estate which may consist of several entire thing such as horse cow and sheep  and then the husband must have a four of every horse cow c of the intestate  and by the same reason all bind and simple contract debt must as to a four  part of they be vest in the husband which will render it impossible to put  they peer William suit because the husband can not sue for a four part of they  only and their lordship strong incline against the opinion report by the Lord  coke in prince case which say that where a infant executrix be under seventeen  and a administration be grant if such infant executrix marry a husband of age  the administration be determine this opinion their lordship strong incline  against the same not be take notice of in other cotemporary report as in and  cro Elizabeth and leo in all which book prince case be report and it be  remarkable that the author of the book entitle the office of executor p  mention this opinion a little marvel thereat consider as he observe that these  thing be manage in the spiritual court and by that law the canon which  intermeddle not with the husband in the wife case and since by that law and  not our commonlaw come in this limitation of seventeen year he add that he  have see that case otherwise report in this point beside that part of the case  be at least a extrajudicial opinion not necessary to be determine the  principal question be only whether such a special administrator can assign  over a term for year which belong to the testator and resolve he can not which  certain be good law however take the abovementioned point in prince case to be  law yet it differ they say from the case now before the court for where a  administration determine by the marriage of a infant executrix to one of age  in the same manner as if the executrix herself be of age there be then a  certain know person to administer to wit the feme infant the husband be  incapable of prove the peer William will and it be the case but of one minor  whereas in the principal case it can not be know who be to be the  administrator or whether there be any other more proper for that office than  the person already appoint during the minority for the husband be not entitle  to have the administration grant to he it be in the discretion of the ordinary  to grant it to who he please this sort of administration not be within the  statute vent per hale c I and they further hold contrary to one of the  resolution abovementioned in Brudenels case that if administration shall be  grant during the minority of four infant one of who shall die before he come  to age this will not determine the administration for the live infant will not  be of age and the other die during his infancy and not be in be will be as out  of the case second touch the plea of the statute of limitation where the  testator after six year incur make his will and charge his land with the  payment of his debt the court observe it have be hold that such will revive  the debt in regard the same though the six year be pass continue still to be a  debt in conscience and a defendant may if he please waive the benefit of the  statute however it have in former cause of the Lord Strafford bring before the  house of lord on a like point be peer William order that the plea shall stand  for a answer the like order be make in the principal case and in relation to  the three point the Lord chancellor and chief justice be clear that the plea  ought to be overrule as be in effect only a plea of another action depend in  another court for the same thing and that therefore the plaintiff ought to  make peer William er p his election in what court he will sue which election  no plaintiff be bind to make until the defendant have answer Qure if a man be  to devise his personal estate in trust to pay his debt whether will this as  create a trust revive a debt bar by the statlite or will not such devise be  mere void as say no more than the law of course say videlicet that a man  personal estate shall pay his debt and if the testator shall say that his  personal estate shall not be liable to pay his debt or that his book debt  shall be pay thereout before his bind such will will be plain void Reg lib a  fol but no far proceed appear to have be have either in this cause or in  Blakeway v earl of Strafford ante vol but as to this point vide anon salk  Gofton v mill vern Andrews v brown pre Charles Vaughan v guy mos Legastick v  Cowme mos Lacon v Briggs atk Truman v Fenton Cowp Oughterlony v earl of powys  Amb a devise of real estate for payment of debt do not let in a debt upon  which the statute have operate before the testator death Burke v Jones V and b  executor of Fergus v gore Sch and Lef ex part Dewdney and ex part seaman Ves  the order for make a election recite only that the plaintiff prosecute the  defendant at law and in equity for one and the same matter so that the  defendant be double vex wherefore it provide that the plaintiff his clerk in  court and attorney at law have notice of the order do within eight day after  such notice make his election in which court he will proceed and if he elect  to proceed in this court the chancery then the proceed at law be by that order  to be stave by injunction but if the plaintiff shall elect to proceed at law  or in default of such election by the time aforesaid his bill be to be dismiss  with cost and note if one make a special election to proceed at law as to part  and in equity as to other part with regard to what the plaintiff in equity  elect to proceed at law his bill ought to be dismiss with cost by sir Joseph  Jekyll master of the roll Michaelmas Anonymous the motion to put a plaintiff  to his election be one of course anon Ves I and upon plaintiff move to  discharge that order a reference be make to the master to inquire whether the  suit be for the same matter Bullen v butcher dick Boyd v Heinzelman v and b  Mouseley v basnet in note to Boyd v Heinzelman but where it be not deny that  the suit be for the same matter young v Lucas V and b note a Hogue v Curtis I  and W or where there be no difficulty in decide that question if dispute the  court will decide without the reference mill v fry Ves coop v and b the order  to elect stay all proceed at law and in equity unless the court make a special  order to the contrary Barker v Dumaresque atk Hogue v Curtis ub sup Carwick v  young swan election will be order between proceed here and in a foreign court  pieters v Thompson coop and it be irregular to obtain the order to elect until  the time for fill exception have expire brown v Poyntz mad and see Coupland v  bradock mad and a plea be not a answer for the purpose of put a plaintiff to  election fisher v I mere Vaughan v Welsh mos anon mos peer William de term S  hilarii