Plea.] Besides the defences which the ancestor might CHAP. VI. have set up to the action, the defendant may plead that he is SECT. 1. Heir. not heir; or that he has paid other bond or judgment The Plea. creditors, to the full extent of the value of the lands de- What may be scended, before the commencement of the action (m); or that pleaded by an he retains, in order to pay judgment debts; or that he retains to pay his own bond or judgment debt; or that he has nothing by descent; or that he has nothing by descent excepting a reversion expectant on the life of another, in which case the plaintiff may take judgment of assets quando acciderint(n), and afterwards proceed by scire facias when the estate has come into possession, as directed ante, 827; but if the reversion were expectant on an estate for years, the defendant should confess assets in possession to the amount of the value of the reversion (o). The defendant cannot plead that there is an executor, who has assets; for the obligee may, at his election, sue either the heir or executor(p). Neither can he plead that he has laid out money beyond the amount of the rents in the repairs of the premises descended (1). The plea of riens per descent need not, in the Court of Queen's Bench or Exchequer, be signed by counsel (r). If the defendant do not plead riens per descent, or some plea Consequence denying the plaintiff's cause of action, he must confess the of faise Pica. action, and shew the certainty of the assets(s), for, by the common law, if issue be taken on the quantity of assets, and it be found that the heir has other lands by descent (t), or if the defendant plead a fact which he knows to be false, and it be found against him, (as, when he pleads riens per descent, and it is found that he has received something, however small or insufficient, to discharge the debt (u)), the plaintiff (if he have not replied and taken issue according to the statute(x)), will be entitled to a general judgment and execution at common law for the debt, damages, and costs against the defendant, in the same manner as if it were for his own debt. And the law is the same, where the heir pleads payment by a co-obligor (y), or pleads a bad plea(z). But in such cases, if the plea be honest and fair, and the defect arise merely from mispleading, the court will allow the defendant to amend it (a). The plea of non est factum, however, is an exception to the above rule; for, if it be found false, still the judgment shall be of the lands descended only (b). Formerly, if the defendant were under age at the time of the action, instead of pleading, he might pray that the parol might demur until he should Parol Demurbe of full age (c). But now, by the 11 G. 4 & 1 W. 4, c. 47, rer abolished. BOOK II. 8.10(d), the parol is prohibited demurring, and, consequently, the defendant must plead. PART II. Replication. Issue, &c. Judgment. In general. When the Replication.] If the defendant plead riens per descent at the time of the writ brought, the plaintiff may by statute reply that the defendant had lands &c. from his ancestor before the writ brought; and if issue be thereon joined, and found for the plaintiff, the jury shall then inquire of the value of the lands, &c., so descended, and the plaintiff shall have judgment of them (e); in which case the execution must, both for the debt and costs, be confined to the value of the lands descended (f). But if the plaintiff have judgment by confession, (without confessing the assets), or on demurrer or nil dicit, it shall be for the debt and damages, without any inquiry of the value of the lands descended (g). Or, instead of replying in this manner, the plaintiff may take issue on the plea of riens per descent, and if he have a verdict, he may have a general judgment and execution at common law, as above mentioned (h). Or it seems that, instead of replying, the plaintiff may confess the truth of the plea, and take judgment of assets quando acciderint. Issue, &c.] The issue is made up, and the subsequent proceedings to judgment are the same as in ordinary cases. On an issue as to the value of the lands, the jury should of course find such value(i). Judgment.] If the defendant have pleaded non est factum, or have confessed the action and shewn with certainty the assets descended, the judgment is special, that the plaintiff recover his debt, damages, and costs, to be levied of the lands descended(); but, if he have pleaded riens per descent, and the plaintiff have taken issue thereon at common law, and it be found against defendant, or judgment be given against defendant on demurrer, or by default, nil dicit, or by confession, (without shewing the assets descended), or upon any other matter or ground whatsoever, the judgment may be general, in the same manner as if the action had been brought against the defendant for his own debt(); or it may be special, as above mentioned, at the option of the plaintiff, if he think it more advantageous than the general judgment (m). Also, if the plaintiff shew that the heir has already received profits from the estate to the amount of the debt, and the defendant do not deny it, he may have a general judgment and execution presently (n). If the heir have aliened the lands previously to the suing aliened before out of the writ, he is expressly rendered liable for the specialty Action. (d) As to the construction of this sec- (g) Id.: and see Redshaw v. Hesther, (h) Matthews v. Lee, Barnes, 444. (i) Brown v. Shuker, 1 C. & J. 583; 1 Tyr. 400; 1 Price, N. R. 1, S. C. (k) 2 Saund. 7 a, c. (n.): see the form, Chit. Forms, 523. 2 Saund. 7 a, b, (n.): Brown v. Shuker, 10 Law Journ. 82; 2 C. & J. 311, S. C.: Tidd, New Pract. 546. (mm) 2 Saund. 7 c. (n) Henningham's case, Dy. 344 b. debts of his ancestor, to the amount of the lands aliened, by stat. 11 G. 4 & 1 W. 4, c. 47, s. 6. If in such a case he plead riens per descent at the time of the writ brought, and the plaintiff reply assets before the writ brought, the jury shall find the value of the lands, and the plaintiff can have judgment and execution for debt and costs only to that extent (o), and not a general judgment against the heir, as at common law (p); or the plaintiff, instead of replying according to the statute, may take issue on the plea of riens per descent, and, if found for him, may have judgment either general or special, as before mentioned (4). But, although the defendant have not aliened the lands, the plaintiff may, if he wish, reply according to the statute, and have judgment accordingly(r); though, indeed, this would be an indiscreet mode of proceeding, if the value of the lands would not amount to the debt and costs. CHAP. VI. SECT. 1. Execution.] We have just seen that the judgment for Execution. plaintiff is general or special. If it be general, the plaintiff may sue out a fieri facias, elegit, or ca. sa., as in ordinary cases, and as if the action were against the defendant in his own right (s). But if the judgment be special, that the debt be levied of the lands descended, and be not on a verdict upon which the jury (as they must have done) have already found the value of the lands descended, the plaintiff in such a case must sue out a special writ, in nature of an extent, commanding the sheriff to inquire by a jury of the lands descended, and to deliver them to the plaintiff, to hold until the debt, &c., be thereof fully levied (7). It seems, also, that the plaintiff, upon a general judgment, may have this special writ, if he prefer it to the general writs of execution, upon suggesting that the heir has particular lands by descent, and praying execution of the whole of them (u). Seire Facias on Judgment against the Ancestor, &c.] What Scire Facias has now been stated, has, of course, reference only to actions on Judgment against the against the heir; if the action were against the ancestor, and Ancestor, &c. the judgment revived by scire facias against the heir and terretenants, the execution is by elegit (x); and, consequently, before the statute 1 & 2 V. c. 110, a moiety only of the ancestor's freehold could have been taken against the heir, even though he had pleaded a false plea(y); but now, by s. 11 of that statute, which has been already fully noticed in treating of execution by elegit, (Vol. I. 440), the execution extends to all the land, and to many other descriptions of real property not liable before that act, except, indeed, in certain cases already noticed, as against purchasers, mortgagees, and creditors. As to scire facias to revive a judgment against an (6) 11 G. 4 & 1 W. 4, c. 47, s. 7. (P) Brown v. Shuker, 3 C. & J. 311; 2 Tyr. 320; 10 Law Journ. 82, S. C.: Radshaw v. Hesther, Carth. 354: 2 Saund. 8 n. (9) Matthews v. Lee, Barnes, 444: Saund. 8 a. (r) 2 Saund. 8 n. (s) See the form, Chit. Forms, 523. (x) See Vol. I. 440. (y) See Anon., Dyer, 271 a.: 3 Bac. Abr. 25. BOOK III. heir and terretenants, see ante, 820; and as to scire facias on a judgment of assets quando &c., see ante, 827. PART II. SECT. 2. Actions against Devisees. AN action is maintainable against a devisee, and is proceeded in, in the same manner and under the same circumstances as an action against an heir(). The act 11 G. 4 & 1 W. 4, c. 47, s. 2, (Sir Edward Sugden's Act), renders wills in fraud of creditors void. (s) See 11 G. 4 & 1 W. 4, c. 47, ss. 3, 4, 8. CHAPTER VII. ACTIONS BY AND AGAINST INFANTS. SECT. 1. Actions by Infants. CHAP. VII. Process.] THE process is to be sued out in the name of The Process. the infant, and not at the suit of the prochein amy or guardian. It is the same as in ordinary cases. It may be sued out before any prochein amy or guardian is appointed (a). Prochein Amy, how Appointed or Removed, &c.] An infant Prochein cannot prosecute an action either in person or by attorney; Amy, how and therefore it is that he cannot sue as an informer on a removed, &c. appointed or penal statute (b); for, an informer must exhibit his suit in proper person, and prosecute it either in person or by attorney (c). But he may sue either by prochein amy (d), or by guardian(e); usually the former. If he sue by attorney, although this cannot now be assigned as error (f), yet the defendant may plead it in abatement (g); or if he sue in person, perhaps it would be error. There is one exception, however, to this, namely, where several executors are plaintiffs, and one of them is an infant; in such a case, all the plaintiffs may sue by attorney, and those who are of age may appoint the attorney for themselves and for the infant (h). If an infant sue by guardian, the guardian, it seems, must have a warrant; if by prochein amy, a warrant is unnecessary; but both guardian and prochein amy must be admitted by the court, before the plaintiff can proceed in the action (i). Let the person intended as prochein amy or guardian (being some friend of the infant, who is willing to prosecute the action for him (k)) attend with the infant before a judge at chambers, who will grant his fiat for one of the masters to draw up the (a) See Chit. Forms, 525. (b) Anon., Say. 51. (c) 18 EL c. 5: B. N. P. 166. (d) Stat. Westm. 1, c. 48: Westm. 2, c. 15. (e) 2 Inst. 261. (6). (1) F. N. B., 63, J.: 2 Inst. 261: Young V. Young, Cro. Car, 86. (k) The infant's father is usually appointed; but the court, on motion, or perhaps a judge at chambers, will ap (ƒ) 21 J. 1, c. 13. s. 2: 4 & 5 A. c. 16, point some other person to be the infant's s. 2: Finlay v. Joule, 13 East, 6. (g) 2 Saund. 213, n. (5). (h) 1 Ro. Abr. 288, pl. 3: Rutland v. Rutland, Cro. El. 378: 2 Saund, 213, n. guardian, with the concurrence of the |