must be laid in the county where the judgment was given, and not in the county where the original cause of action arose (n). The defendant cannot plead nil debet (o). If there be not any such record as the plaintiff has declared on, the defendant must plead nul tiel record; which issue is tried by producing the record itself, if it be a record of that court where the action is brought; but by new rule, H. T. 4 Will. IV., R. G. 8(p), where a defendant shall plead a plea of judgment recovered in another court, he shall in the margin of such plea state the date of such judgment; and if such judgment shall be in a court of record, the number of the roll on which such proceedings are entered, if any; and in default of his so doing, the plaintiff shall be at liberty to sign judgment as for want of a plea; and in case the same be falsely stated by the defendant, the plaintiff, on producing a certificate from the proper officer or person having the custody of the records or proceedings of the court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a plea, by leave of the court or a judge. A plea of nul tiel record (q), pleaded to an action of debt on an Irish judgment recovered, must conclude to the country; for it is only provable by an examined copy on oath, the veracity of which is only triable by a jury. A writ of error pending on the judgment may be pleaded in abatement (r), but not in bar (s). If the defendant bring a writ of error, and the plaintiff bring another action on the judgment and recover, he cannot sue out execution on the second judgment, until the writ of error be determined (t). The more regular, as well as the least expensive, mode by which a plaintiff may reap the benefit of his judgment, is by writ of execution; hence the proceeding by action of debt, being considered as a vexatious and oppressive mode of enforcing the judgment, is discountenanced by the courts in Westminster Hall; and by statute 43 Geo. III. c. 46, s. 4, (Lord Ellenborough's Act,) "the plaintiff in such action shall not recover costs, unless the court in which the action is brought, or some judge of the same court, shall otherwise order."

VIII. Debt for Rent Arrear, p. 618; Stat. 4 Geo. II. c. 28, against Tenants holding over after Notice from Landlord, p. 619; Stat. 11 Geo. II. c. 19, against Tenants holding over after Notice given by themselves, p. 622; Declaration, p. 622; Debt for Use and Occupation, p. 624; Pleadings, p. 625; Eviction, p. 625; Nil habuit in tenementis, p. 627; Statute of Limitations, p. 628.

Ir a lease be of lands or tenements for years (u), or at will (x), rendering rent, debt lies for the recovery of rent arrear, by the common law. So if a lease be for life (y), after the estate of freehold determined, debt lies for the arrears, by the common law: and now, by stat. 8 Ann. c. 14, s. 4, though a lease for life be continuing, any person having rent due on such lease may bring debt for the same, in the same manner as if due upon a lease for years. But debt does not lie (z) at the common law, nor by stat. 8 Ann. c. 14, for the arrears of an annuity or yearly rent devised, payable out of lands to A. during the life of B., to whom the lands are devised for life, B. paying the same thereout, so long as the estate of freehold continues. At common law, if a person seised of rent-service, rentcharge, rent-seck, or fee-farm in fee-simple died (a), and there was rent arrear, neither his heir nor executor could maintain an action of debt for such rent: the heir was not competent to sue, because he was a stranger to the personal contracts of his ancestor; and the executor was incompetent; inasmuch as he did not represent his testator as to any contracts relating to the freehold and inheritance. To obviate this inconvenience, it was enacted by stat. 32 Hen. VIII. c. 37, s. 1, that an executor or administrator of any person seised of rent-service, rent-charge, or rent-seck, or of a fee-farm rent, in fee, in tail, or for life, might maintain debt against the person who ought to pay the same, and his personal representative (70). At the common law, the devisee (b), or assignee (c) of rent reserved on a lease for years might maintain debt for the rent, in cases where the tenant had attorned; for that transferred the privity of contract. By the stat. 4 Ann. c. 16, s. 9, attornment is no longer necessary (d). As to stat. 32 Hen. VIII. c. 37, and what persons are within this statute, see post, under tit. "Distress," s. IV.

(u) Lit. s. 58.

Id. s. 72.

1 Roll. Abr. 596, pl. 11.

(z) Webb v. Jiggs, 4 M. & S. 113;

Kelly v. Clubbe, 3 Brod. & B. 130.

(a) 1 Inst. 162, a.

(b) Ards v. Watkin, Cro. Eliz. 637, 651; cited per Cur. in Rivis v. Watson, 5 M. & W. 266.

(c) Robins v. Cox, 1 Lev. 22.

(d) See Allen v. Bryan, 5 B. & C. 512.

(70) The action is local, and must be brought where the land lies. Bull. N. P. 177; but under stat. 3 & 4 Will. IV. c. 42, s. 22, may be tried in any county.

The action must be brought against the persons who took the profits when the rent became in arrear (e), or against their executors or administrators. If A. make a lease for life (f), or a gift in tail, reserving a rent, that is a rent-service within this statute. The act is remedial (g), and extends to the executors of all tenants for life. If lessee for years assign over the term, reserving a rent, he may maintain debt for such rent arrear, although he has not any reversion (h). By stat. 4 Geo. II. c. 28, s. 1, "If tenants for life, lives, or years (71), or other persons coming into possession of any lands, &c. under or by collusion with such tenants, shall wilfully (72) hold over after the determination of their term (73), and after demand made (74), and notice in writing given, for delivering

(e) 1 Inst. 162, b. (ƒ) Ib.

(g) Hool v. Bell, Lord Raym. 172.
(h) Newcomb v. Harvey, Carth. 161.

(71) "I am aware that a tenant for half a year, or a smaller portion of a year, may, for some purposes, be considered and denominated a tenant for years. But this is a penal statute, and to be construed strictly. I cannot, therefore, include a tenant from week to week in the description of tenants for life, lives, or years: and I do not remember any instance of a tenant for a less time than a year being held within the statute." Per Lord Ellenborough, C. J., Lloyd v. Rosbee, 2 Campb. 453. "The statute is penal, and is to be construed strictly." Per Parke, B., in Robinson v. Learoyd, 7 M. & W. 54.

(72) A tenant who holds over, under a fair claim of right, will not be considered as wilfully holding over within the meaning of this statute; though it may be decided eventually, that he had no right. Wright v. Smith, 5 Esp. N. P. C. 203.

(73) Where the demise is for a certain time, e. g. for one year and no longer, a notice to quit is not necessary at the end of the year to put an end to the tenancy. 8 East, 361.

(74) In Wilkinson v. Colley, 5 Burr. 2694, the court, considering this as a remedial law in favour of landlords, the penalty being given to the party grieved, held, that a notice to quit in writing included a demand: On the authority of this case it was holden*, by three judges, that where a woman, tenant from year to year, had received a written notice to quit, and before the expiration of the year married, it was not necessary for the landlord to make a demand on the husband, in order to entitle him to maintain an action against the husband, on this statute, for wilfully holding over. Chambre, J., differed from the other judges, conceiving, that a demand ought to be made, upon the party against whom a penal action is brought. N. In a case of this kind the husband may be sued alone, and it is not necessary to join the wife for conformity, the husband being in possession of the estate at the time when possession is to be delivered, and consequently the offence being committed by him; for the offence, which consists in not complying with the demand to deliver possession at

*Lake v. Smith, 1 Bos. & Pul. N. R. 174.

the possession thereof (75), by their landlord or lessors, or persons entitled to the reversion or remainder of such lands, &c. or their agents (76); such persons so holding over shall, for the time they shall so hold over, pay to the persons kept out of possession, their executors, administrators, or assigns, at the rate of double the yearly value of the lands, tenements and hereditaments so detained, for so long time as the same are detained, to be recovered by action of debt, whereunto the defendant shall be obliged to give special bail, against the recovery of which penalty there shall not be any relief in equity." To ascertain the amount which the tenant holding over is to pay under this statute, the value of the soil itself, and every thing which, by having been attached to it, becomes part of the soil, must be estimated; and that value is what an occupier would give, and the landlord would otherwise have received, for the use of the freehold and every thing connected with it, during the time that the possession is withheld; but where the plaintiff, being the owner of a woollen-mill and steam-engine, let to the defendant a room in the mill, together with a supply of power from the steamengine, by means of a revolving shaft in the room; it was holden (i), in an action for double value under this statute, that in estimating such double value, the value of the power supplied could not be included. One tenant in common may maintain an action on this statute (k), without his companion, for double the yearly value of his moiety. An action on this statute may be brought after a recovery in ejectment. The defendant (1), after having held of the plaintiff a farm for fourteen years, received a regular notice to quit on the 12th of May, 1806, and the possession was then demanded of him; but he refused to deliver it up, and held over till the 7th of February, 1807; whereupon the plaintiff brought his ejectment against the defendant and recovered possession; and afterwards

(i) Robinson v. Learoyd, 7 M. & W. 48.

(k) Cutting v. Derby, 2 Bl. Rep. 1077. (1) Soulsby v. Neving, 9 East, 310.

the time when it ought to be complied with, is not complete until the day for delivering possession arrives. The demand need not be made either on or before the expiration of the term, but may be made afterwards; e. g. six weeks afterwards, the landlord not having in the mean time done any act to recognize the defendant as continuing to be his tenant: but the landlord will be entitled to double the yearly value only from the time of giving notice to quit and making demand. Cobb v. Stokes, 8 East, 358.

(75) Notwithstanding the order in which the words stand in this statute, from which it should seem that the notice ought to be given after the determination of the term, yet the notice may be given before the expiration of the term. Cutting v. Derby, 2 Bl. R. 1075.

(76) A receiver appointed under an order of the Court of Chancery, is an agent within the meaning of this statute. Wilkinson v. Colley, 5 Burr. 2694, recognized in Poole v. Warren, 8 A. & E. 582.

brought this action of debt upon the stat. 4 Geo. II. c. 28, for double the yearly value of the premises, in the interval between the expiration of the notice to quit, (which was the day of the demise in the ejectment,) and the time of recovering the possession under the ejectment. The declaration was in the usual form, alleging the demise to and holding by the defendant: the demand of possession and notice in writing to deliver up the premises at the end of the term, on the 12th of May, 1806: the subsequent refusal of the defendant, and his wilfully holding over for three quarters of a year after the 12th of May; and the annual value of the premises. It was objected, on the part of the defendant, that the plaintiff having before recovered the premises by the ejectment, and thereby treated the defendant as a trespasser, the action of debt upon the statute, in which, as it was said, the defendant was proceeded against as tenant, could not be maintained; but, per Lord Ellenborough, C. J., there is no incongruity in the landlord's bringing this action for the double value after a recovery in ejectment. The legislature considered, that, in many cases, the single value might not be a compensation to the landlord for having been kept out of possession by the misconduct of the tenant, and therefore they gave him double the value. It has no reference to any antecedent remedy which the landlord had to recover possession by ejectment, but is cumulative. The two actions are brought diverso intuitu; the ejectment is in order to get possession of the premises wrongfully withheld; the action of debt for the double value is in order to indemnify the landlord for the wrong. The other judges concurred with the C. J.

In the following case the plaintiff declared in the first count for double the yearly value (m); and in the second, for use and occupation. The defendant pleaded as to the demand in the first count, and as to parcel of the demand in the second count, nil debet; and as to the residue, (being the amount of the single rent,) the defendant pleaded a tender, and paid the money into court, which the plaintiff took out of court, but proceeded to trial. It was contended, on the part of the defendant, that there should be a nonsuit, because the plea of tender of rent covered the whole period, for which the double value was claimed in the first count; and the acceptance of the tender, which adopted the terms and character of it, must be taken to be an admission by the landlord, that the defendant held the premises mentioned in the second count, as tenant to him during the whole period, for which the rent was claimed, and that he received the tender, as of rent for the same premises; and consequently it operated as a waiver of the penalty. But the court held, that plaintiff was not estopped from taking the money as part of the larger sum claimed, and that going on with the suit showed that he did not mean to take it in satisfaction of the lesser sum.

(m) Ryal v. Rich, 10 East, 48.