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TESSIER v. WYSE. 51
tending to declare,that there shall be no postponement or delay,
for the benefit of a person non compos mentis*, to the prejudice of
creditors. Considered in that way, and it can be considered in no
other, it has certainly made no very material change in the law. (j)
This act declares, that on the justice of the claim of such credi-
tor being fully established, if, upon consideration of all circum-
stances, it shall appear to be just, that such debt should be paid
by a sale of the real estate, the court may order the whole or a part
of it to be sold. A plaintiff must, in all cases, establish the jus-
tice of his claim; in all cases the order passed by the court must
appear to it to be just; and in no case ought more 6f a debtor's
property to be taken from him than is necessary to pay his debts.
In these particulars, therefore, this act of Assembly is simply an
affirmance of the previously settled law, and nothing more.
But we have seen, that, under the law before this act of Assem-
bly was passed, if any one of the claimants of the real estate was
an infant, the judicial proceedings were to be stayed, or the parol
demurred, as against all until the minor attained his full age. This
privilege of infancy had, in England, been considered as a perni-
cious and grievous hindrance to creditors; (k) and had become
much more so here after the adoption of the statute of 1732, when
it was so frequently relied on to break, for a time, the promise of
ample justice held out by that statute. The act of Assembly
which allowed of a sale of the real estate during the infancy of the
heir, with the consent of his guardian, was a poor mitigation of
the evil, as it still left the creditor at the mercy of his debtor. But
this privilege of infancy, if it had been suffered to remain, at this
day, after the introduction of partible inheritances, by the act to
direct descents, would have been still more grievous, or altogether
insufferable, as it might have been interposed as a suspension of
the relief prayed by a creditor, in so many cases, and for such a
length of time, in the great majority of them, as to have amounted
to an almost total repeal, as to the heirs of deceased debtors, of the
statute of 1732, by which lands were made liable to be sold for the
payment of debts. But this act of Assembly has authorized the
appointment of a guardian to answer and defend for the infant
heirs, so as to enable the creditor, at once, to substantiate his case,
and establish his claim; and thereupon to obtain a decree for t sale
(j) Williams v. Whinyates, 2 Bro. C, C, 399,—(k) 3 Blac. Com., 430; Plasket v.
Beeby, 4 East. 485.
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