filed against him, it is evident that the defendant cannot avail himself of an alienation pending the suit, and that the lands so aliened will still remain charged (d). If upon issue joined on the plea of riens per descent (e), the plaintiff prove that lands came to the defendant by descent, and the defendant give in evidence a conveyance of the same lands by himself to a stranger, before action brought, the plaintiff may, to encounter this evidence, prove that the conveyance was fraudulent, and therefore void by stat. 13 Eliz. c. 5.

Liability of Heir under Stat. 11 Geo. IV. &1 Will. IV. c. 47 (f). -At the common law, if the heir had made a bonâ fide alienation of the lands descended, before action brought, he was discharged (g), and he might have pleaded this in bar; consequently there was not any remedy against him at law; although in equity (h) he was responsible for the value of the land aliened; but now, by stat. 11 Geo. IV. & 1 Will. IV. c. 47. s. 6 (68), the heir is rendered liable in an action of debt or covenant, to the value of the land aliened before action brought or process sued out against him; and such execution shall be taken out upon any judgment obtained against such heir (i), to the value of the said land, as if it was his own debt, but not beyond (k); and land, bonâ fide aliened before action brought, is specially exempted from such execution.

By the 7th section of the same statute it is provided, "That where debt or covenant upon a specialty is brought against any heir, he may plead riens per descent at the time of the original writ brought, or bill filed against him; and the plaintiff may reply (69), that he had

(d) 1 Inst. 102, a, b.

(e) Gooch's case, 5 Rep. 60, a.

(f) Explained and extended by stat.

2 & 3 Vict. c. 60, post, p. 591.

(9) Termes de la Ley, v. Assets.
(h) Per Comyns, B., in Krew v. Ld.

Kilmain, Exch. T. 5 & 6 Geo. II. MSS.

(i) Per Ld. Macclesfield, Ch., in Coleman v. Winch, 1 P. Wms. 777.

(k) Brown v. Shuker, 2 Cr. & J. 311 ; 1 Tyrw. 400.

(68) This clause, and the 7th, with the exception of the additional remedy by covenant, is almost verbatim the same with the 5th and 6th sections of 3 & 4 Will. & Ma. c. 14, made perpetual by 6 & 7 Will. III. c. 14, but now repealed by stat. 11 Geo. IV. & I Will. IV. c. 47, except as to persons who died before 16th July, 1830.

(69) To a plea of riens per descent, the plaintiff replied, that the obligor (father of the defendant) died on such a day, and that the defendant, after his death, and before the action brought, had lands by descent from his father in fee simple, unde querenti de debito prædicto satisfecisse potuit, and concluded with a verification. Upon demurrer, it was objected, that the replication was ill, because the plaintiff had put the value of the lands in issue by these words, unde, &c. de debito prædicto satisfecisse potuit, which ought to have been omitted; because the statute is express, that after issue tried, the jury shall inquire of the value; so that it is matter of inquest only, ex officio, and not to be the point of the issue; but the court held the replication good; observing, that if unde, &c. de debito præd.

lands, &c. from his ancestor, before original writ brought, or bill filed; and if, upon issue joined thereupon, it be found for the plaintiff, the jury (70) shall inquire of the value of the lands, &c. so descended; and thereupon judgment shall be given, and execution awarded as aforesaid, (that is, against the heir, to the value of the land, as if the same were the proper debt of the heir;) but if judgment be given against such heir, by confession of the action without confessing assets descended, or upon demurrer, or nihil dicit, it shall be for the debt and damage, without any writ to inquire of the lands, &c. so descended." The heir cannot plead assets in the hands of the executors (); for it is at the election of the obligee to sue either the heir, or the executors. A plea by the heir (m), that he claims to retain a certain sum for money laid out in repairs, not stating them to be necessary repairs of the tenements descended, cannot be supported.

Liability of Devisee under Statute.-Before the stat. of 3 & 4 Will. & Ma. c. 14, persons who had bound themselves and their heirs by bond, or other specialties, used frequently to alienate the lands of which they were seised in fee simple by devise, for the purpose of defrauding their creditors; because, at common law, such lands, in the hands of the devisee or alienee, were not liable to the specialty creditor. To remedy this inconvenience, several provisions were made by stat. 3 & 4 Will. & Ma. c. 14, made perpetual by stat. 6 & 7 Will. III. c. 14, the general view of which was to prevent such creditors from being defrauded of their debts, and to put the devisee on the same footing with the heir (n), but as this statute has been repealed, except as to persons who died

(2) 10 Hen. VII. 8, b., per Vavasour, J. C. B., and Cape's case, 1 And. 7, S. P. adjudged.

(m) Shetelworth v. Neville, 1 T. R.

454.

(n) See remarks of Lord Hardwicke on this stat. in Galton v. Hancock, 2 Atk. 432. This is the case in which Lord Hard

wicke, having altered his opinion, and stated his reasons, made the following memorable observation: "These are the reasons which induced me to alter my opinion, and I am not ashamed of doing it; for I always thought it a much greater reproach to a judge to continue in his error than to retract it," 2 Atk. 439.

satisf. pot. had been omitted, it might have been a good cause of objection ; for the statute does not require any alteration of the form of the usual replication, except only as to the time concerning the assets by descent; and the conclusion, which before the statute was to the country, must now be with an averment, in order to give the defendant an opportunity of answering the new matter alleged in the replication. Redshaw v. Hesther, Carth. 353. See the pleadings in this case, 5 Mod. 119.

(70) In Jeffry v. Barrow, 10 Mod. 18, Powis, J., and Eyre, J., were of opinion, that by "the jury," in this clause, must be understood the jury that tried the cause; and consequently, if that jury omitted to inquire of the value of the lands, such omission could not be supplied by another jury.

before the 16th July, 1830, by stat. 11 Geo. IV. & 1 Will. IV. c. 47, it will be sufficient to state the enactments contained in the lastmentioned statute; by which, all wills (o) and testamentary limitations, dispositions or appointments already made, [that is, before 16th July, 1830,] by persons now in being, or hereafter to be made by any person concerning any manors, lands, &c., or any rent, &c. or charge out of the same, whereof any person at the time of his decease shall be seised in fee simple, in possession, reversion or remainder, or have power to dispose of the same by will, shall be deemed (only as against such person and his heirs, successors, executors, &c. with whom the person making such will, &c. shall have entered into any bond, covenant, or other specialty binding his heirs,) to be fraudulent and void. And every such creditor (p) may maintain debt or covenant (71), upon the bonds, covenants and specialties, against the heirs and devisees, or devisees of such firstmentioned devisees jointly (72), and such devisees shall be chargeable for a false plea in the same manner as the heir is, or for not confessing the lands descended. By the 4th section, if there is not any heir at law, the creditor may bring debt or covenant against the devisee solely. The 5th section contains an exception in favour of limitations, or appointments, or devises, or dispositions made for the payment of debts (g), or portions for children, other than the heir at law, in pursuance of any marriage contract, bonâ fide made before marriage. The 8th section provides, "that every devisee made liable by this act, shall be chargeable in the same manner as the heir, by force of this act (r), notwithstanding the lands, &c. to him devised, shall be aliened before action brought." By the 9th section, traders' estates shall be assets to be administered in courts of equity, provided that creditors by specialty in which heirs are bound, shall be paid before creditors by simple contract, or specialty in which heirs are not bound. The 11th section authorizes courts of equity, in cases where suits have been instituted for the payment of debts, to compel infant heirs and devisees to convey the estates liable, and which have been decreed to be sold for the satisfaction of the debts. The 12th section contains a similar enactment with respect to persons having life or limited interests; and these provisions are by stat. 2 & 3 Vict. c. 60, [17th Aug. 1839,] s. 1, extended, so as to authorize courts of equity to direct mortgages as

(0) Sect. 2. (p) Sect. 3.

(q) See Gott v. Atkinson, Willes, 521. (r) See sect. 6, ante.

(71) This is new; for under the stat. of Will. & Ma. debt only could have been maintained. Wilson v. Knubley, 7 East, 128.

(72) See the form of declaration in debt against heir and devisee jointly, under the stat. of Will. & Ma. Clift. Entr. 243, pl. 19; Lil. Entr. 145, 529, 530; 2 Rich. C. P. 241.

well as sales to be made of the estates of infant heirs and devisees liable to the debts.

The intention of the statute was to prevent three inconveniences: 1, that the creditor should not be defrauded by a devise; or 2, by alienation; 3, that the heir should not be charged with the whole debt by his false plea; for, at the common law, if, on issue joined on riens per descent, it were found, that the heir had any land, however little, per descent in fee simple, he was chargeable with the whole debt, for his false plea; and the alteration introduced by this statute was to enable the creditor to recover, after the alienation of the heir; but then he is to take proof of the value upon himself, and recover no more of his debt than the value of the lands amounted to. By the common law, the infant heir might have pleaded his nonage, and prayed that the parol might demur (s). Not so the infant devisee (t) under the statute of Will. & Ma., and now by the 10th section of the last act (u), the parol shall not demur by or against infants.

Judgment. If the heir confesses the action, and declares with certainty the assets which he has by descent, the judgment shall be that the plaintiff do recover his debt and damages (w), to be levied of the assets descended.

If the heir confesses the action (x), and says that he has nothing by descent but a reversion, after the death of A. B., of so many acres of land, situate, &c., the plaintiff may pray a special judgment, that he recover the debt and damages to be levied of the said reversion, quando acciderit (y). If the heir pleads riens per descent (z), or payment by a co-obligor (a), and it is found against him, the judgment shall be general; that is, to recover the debt and damages.

Execution. As the judgment in debt against an heir, upon riens per descent pleaded and found against him (b), is general, so is the execution. Thus it was holden, that the plaintiff might have execution, by writ of elegit, of a moiety of all the lands of the heir; as well of those which the heir has by purchase, as of those which he hath by descent (73).

(8) Gilb. H. C. B. 56.

(t) Plasket v. Beeby, 4 East, 485.

(u) 11 Geo. IV. & 1 Will. IV. c. 47. (w) Davy v. Pepys, Plowd. 438, recognized by Holt, C. J., in Smith v. Angel, 7 Mod. 44.

(x) Dy. 373, b.

(y) Per Holt, C. J., Carth. 129.

(z) 21 Edw. III. 9, b. pl. 28; Doctr. pl. 181; Allen v. Holden, 2 Rol. Abr. 71, pl. 8; Sty. 287, 288, S. C.

(a) Brandlin v. Milbank, Carth. 93. (b) 21 Edw. III. 9, b. pl. 28; Hinde v. Lyon, 2 Leon. 11.

(73) It seems, however, that the plaintiff is not compelled to sue an elegit in this case, but he may suggest that the defendant has certain lands, (describing them,) by descent, and pray execution against such lands; for possibly the heir may not have any other than those which he has by descent. 2 Rol. Abr. 71. pl. 3.

If the heir suffers judgment to go by default, and does not show with certainty the assets descended, the judgment shall be general, and the execution may be awarded against the heir as for his own debt, by capias ad satisfaciendum against his person (c), or fi. fa. against his goods and chattels (d). If judgment is given against the heir upon demurrer (74), the body of the heir may be taken in execution (e).

VII. Debt on Judgment, and New Rule as to the Plea of Judgment recovered in another Court.

DEBT lies upon a judgment, within or after the year after the recovery (f). An action of debt may be maintained in the Court of King's Bench or Common Pleas, upon a judgment recovered in one of the courts of the city of London by special custom; although the original action could not have been brought in the superior courts (g). Debt lies on a judgment for damages in a real action; for, by the judgment, the damages are reduced to personalty; as for damages recovered in an action of waste (h). So on a judgment in scire facias on a recognizance (i). Debt also lies upon a judgment in an inferior court; but the declaration must allege, that the cause of action in the original suit arose within the jurisdiction of the inferior court (k); it is not enough to allege, that the plaintiff recovered his damages within that jurisdiction. Debt on judgment lies only where the judgment remains unsatisfied (). Hence where the defendant had been taken in execution on a judgment, and afterwards was discharged out of custody, with the consent of the

(c) Barker v. Borne, Moore, 522, and Cro. Eliz. 692; Trewiniard's case, Plowd. 440, b, S. P.

(d) Poxon v. Smart, C. B. Hil. 4 Geo. II. MSS.

(e) Grenesmith v. Brackhole, cited in Plowd. 440, b.

(f) 43 Edw. III. 2, b.

(g) Mason v. Nicholls, 1 Roll. Abr.

600-1, 45.

(h) 43 Edw. III. 2. But see stat. 3 & 4 Will. IV. c. 27, s. 36.

(i) Lovelepe's case, 2 Leon. 14.

(k) Read v. Pope, 1 Cr. M. & R. 302; 4 Tyrw. 403, S. C.

(1) Vigers v. Aldrich, 4 Burr. 2482, recognized in Jaques v. Withy, 1 T. R. 557.

(74) And so, if the heir is condemned on any plea whatsoever, or by default, or without plea for any cause, the practice is for the plaintiff to have execution of the body of the heir, or his goods, or elegit of his lands, unless he confesses the debt, and shows the certainty of the lands descended. Per Plowd., in Davye v. Pepys, Plowd. 440, b. It was said by Holt, C. J., delivering the judgment of the court, in Smith v. Angell, Ld. Raym. 783, that the foregoing resolution in Plowden had been always held to be law.

VOL. I.

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