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"That the plaintiff upon the roll (56) may suggest as many breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ (57) to the sheriff of that county where the action shall be brought, to summon a jury to appear before the justice or justices of assize, or nisi prius, of that county, to inquire of the truth of every one of those breaches, and to assess the damages that the plaintiff shall have sustained thereby; in which writ it shall be commanded to the said justices, that they shall make a return (58) thereof to the court, whence the same shall issue, at the time in such writ mentioned; and in case the defendant, after such judgment entered, and before any execution executed, shall pay into court, to the use of the plaintiff, his executors, or administrators, such damages so to be assessed, by reason of all or any of the breaches of such covenants, together with costs of suit, a stay of execution of the said judgment shall be entered upon record; or if, by reason of any execution executed, the plaintiff, or his personal representative, shall be fully paid or satisfied all such damages, with costs of suit, and all reasonable charges and expenses, for executing the said execution, the body, lands, or goods of the defendant, shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon record; but, notwithstanding, in each case such judgment shall remain as a further security to answer to the plaintiff and his personal representative, such damages as

be levied under the execution. In debt on bond in the penal sum of £2000, conditioned for the performance of covenants, defendant suffered judgment by default; whereupon the usual common law judgment in debt was entered for the recovery of the debt and damages; the plaintiff then proceeded to suggest breaches, upon which suggestion, a writ of inquiry was awarded and executed, and damages and costs assessed; after which, the plaintiff entered a second judgment for the damages assessed under the writ of inquiry, and further costs adjudged by the court, and then entered a remittitur as to the costs. A writ of error having been brought, it was holden, that the second judgment could not stand; and thereupon it was adjudged, that the second judgment, with the amerciament, should be reversed, and that the former judgment should remain unimpeached. Hankin v. Broomhead, 3 Bos. and Pul. 607.

(56) See note (54). No suggestion is necessary on a judgment by warrant of attorney. Kinnersley v. Mussen, 5 Taunt. 264.

(57) See the form of this writ, 2 Wms. Saunders, 187. c.

(58) See the form of postea returned by justices of assize. 2 Wms. Saunders, 187. c.

shall be sustained for further breach of any covenant in the said indenture, &c. upon which the plaintiff may have a scire facias (59), upon the said judgment against the defendant, or against his heir, terre-tenant, or his personal representative, suggesting other breaches of the said covenants or agreements; and to summon him or them respectively, to shew cause why execution shall not be had upon the said judgment: upon which there shall be the like proceeding, as was in the action of debt upon the said bond, for assessing damages upon trial of issue joined upon such breaches, or inquiry thereof, upon a writ to be awarded as aforesaid; and upon payment or satisfaction as aforesaid, of such future damages, costs, and charges, all further proceedings are again to be stayed; and so toties quoties; and the defendant, his body, lands, or goods, shall be discharged out of execution as aforesaid."

VI. Debt on Bond of Ancestor against Heir-Pleadings, Riens per Descent-Replication-Of the Liability of the Heir for the Value of the Land alienated under 3 & 4 W. & M. c. 14. s. 5.—Of the Liability of Devisee under the same Statute.-Judgment.-Execution.

DEBT will lie against an heir, having assets by descent in fee simple, on the obligation of his ancestor, wherein the heir is expressly bound (60). The law considers the bond of

(59) See form of this writ against defendant, Tidd's Pract. Forms, 1st ed. p. 430. If the plaintiff proceeds to execution, without a scire facias, the court will set aside the execution, and order the money levied under it to be restored. Willoughby v. Swinton, 6 East, 550. In cases within this statute, although new breaches take place within a year after judgment recovered, yet the plaintiff is bound to sue out a scire facias. S. C.

(60) "The executor more actually represents the person of the testator, than the heir does the person of the ancestor; for if a man binds himself, his executors are bound, though they be not named; but so it is not of the heir." 1 Inst. 209. a. See also Barber v. Fox, 2 Saund. 136. and ante, p. 52. S. C. In an action against the heir at law for a debt of his ancestor upon specialty, the ground of

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the ancestor, wherein the heir is bound, as becoming, upon the death of the ancestor, the heir's own debt, in respect of the assets, which the heir has in his own right, and holds him liable upon such bond, to the value of the land descended (61). Hence the action, on the bond of the ancestor, ought to be brought against the heir in the debet and detinet (62). But if it be brought in the detinet only, the omission of the debet, which was error at common law, will be cured after verdict, by stat. 16 and 17 Car. 2. c. 8. And although it is the debt of the defendant', because his ancestor has bound him, yet he is not liable any further than to the value of the land descended; and as soon as he has paid his ancestor's debt, to the value of the land, he is entitled to hold the land discharged. Where the obligor has heirs and lands on the part of his father and on the part of his mother, both heirs shall be equally chargeds. The seisin of the obligor must be shewn to have been a seisin in fact. The possession of a tenant for years being a rightful possession, is considered in law as the possession of the heir, and therefore gives him a seisin in fact. A. seised of land in fee simple, at the time of her death, in the possession of a tenant from year to year, died, leaving B. her heir at law. No rent was ever paid to him, it being supposed that the land passed to a devisee under the will of A. After the death of B. his son and heir brought ejectment and recovered the land. It was holdent, that B. was seised in fact of the land in question, which descended from him to his son, and was therefore assets in the hands of the son and heir, liable to the bond debt of the ancestor. If the defen

q Combers v. Watton, 1 Lev. 224. r Buckley v. Nightingale, Str. 665.

s 11 H. 7. 12 b.

t Bushby v. Dixon, 3 B. and C. 298.

the charge is, that he is bound as well as the ancestor, and therefore it is in the debet and detinet, as it would have been against the ancestor; and the law gives him liberty to discharge himself by plea ding nothing by descent, or but so much; which plea, if found false, he is charged as a person bound for the whole debt, if he had but one acre; which is not the case of an executor, who is charged only for so much as comes to his hand, notwithstanding such plea found false." Per Ld. Hardwicke, C. 1 Ves. 212.

(61) The debt is not a lien upon the land from the ancestor's death, but only capable of being made so by the suit of the party.

(62) "Because the inheritance of the ancestor, which creates a lien upon the heir, is possessed by the heir jure proprio, and not alieno, as the personal estate is by the executor." Gilb. Debt. B. 2. c. 1.

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dant is only collateral heir of the obligor, the declaration ought to charge him specially, and the mesne descents ought to be stated. In debt on bond against the defendant", as brother and heir to J. S., the defendant pleaded riens per descent from his brother. A special verdict was found, that the obligor was seised in fee, had issue, and died seised, and the issue died without issue; whereupon the lands descended to the defendant as heir to the son of his brother; it was holden that the issue was found against the plaintiff; for the defendant had nothing as immediate heir to his brother, but took by descent from the son of his brother; and although the defendant was chargeable as heir upon this bond, yet, being collateral heir only, the plaintiff ought to have declared specially. But this rule, as to stating the mesne descents in the declaration, applies only to descents from persons seised in fee simple in possession; for where A. being seised in fee, bound himself and his heirs in a bond, and having two sons B. and C., limited the estate to himself for life, remainder to his eldest son B. in tail, remainder to his own right heirs, and died; whereupon B. became seised in tail, with remainder in fee expectant, and afterwards died, leaving a son D., who became seised in like manner, and afterwards died without issue; upon whose death the premises descended to C. in fee, the estate tail being then extinct; an action having been brought on the bond against C., as son and heir to Ă., and riens per descent from A. pleaded, it was holden, that the declaration charging the defendant as immediate heir of A., and not mentioning the mesne descents, was proper (63). The plaintiff being presumed a stranger to the defendant's pedigree, it is not necessary for him to state in the declaration how the defendant is heir.

Creditors by specialty should be careful to make the debtor bind his heir; as thereby they will be entitled to a priority in the distribution of assets by courts of equity under the stat. 3 and 4 W. 4. c. 104. making freehold and copyhold estates assets. See this stat. post tit. exors. s. 6. in fin. See also the

u Jenk's case, Cro. Car. 151. Bell's case, Hetl. 134.

x Kellow v. Rowden, Carth. 126. per
Holt, C. J. and 2 Justices, Eyres, J.
dissenting.

y Denham v. Stephenson, Salk. 355.

(63) As to what shall be assets by descent, see Serjeant Williams' note on Jefferson v. Morton, 2 Saund. 7. To the cases on this subject there collected, may be added the case of Doe v. Hutton, 3 Bos. and Pul. 643.

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9th section of stat. 11 Geo. 4 & 1 W. 4. c. 47. making trader's estates assets, post. p. 599, to which a similar remark applies.

Of the Pleadings.-Riens per descent.-To this action the heir may plead, that he has not, nor had at the commencement of the suit, any lands or tenements, by hereditary descent from the ancestor in fee simple. This plea is usually termed a plea of riens per descent.

Replication. The common replication to the preceding plea is, that the defendant had assets by descent in fee simple: upon which issue is usually joined. Upon this issue (64) the plaintiff must prove assets, but proof of assets in the county of A. will support an allegation of assets in the county of B.; for assets or not, is the substance of the issue, and the place is named only for conformity. Upon this issue a question frequently arises, whether the heir takes by purchase or descent, with respect to which the following rules may be observed: If lands are devised to the heir, and the devise does not make any alteration, either in the tenure, quality, or limitation of the estate; that is, if the devise conveys to the heir the same estate as the law would cast on him by descent, then the heir takes by descent, although by the terms of the devise there is either a possibility of a charge, or an actual charge and incumbrance on the lands", as payment of debts and legacies, and the like (65). For the replication given by stat. 11 G. 4. and 1 W. 4. c. 47. s. 7. see post. p. 567.

y Doctr. pl. 181.

z Cases cited in 6 Rep. 47. a. a Clerk v. Smith, Salk. 241.

b Allam v. Heber, Str. 1270, and 1 Bl. R. 22. Serjt. Hill's MSS. vol. 26, p. 194. S. C.

(64) Upon this issue the heir may give in evidence a bond, acknowledged by his ancestor to the king, and an extent thereon against the heir, [to the amount of the assets descended]. Per Holt, C. J. Horne v. Adderley, Ld. Raym. 734, 5. But the extent only without the production of the bond, or examined copy thereof, is insufficient, per Holt, C. J. Sherwood v. Adderley, Ld. Raym. 734.

(65) Charging land with the payment of an annuity or rent, will not prevent the heir's taking by descent, per Holt, C. J. in Emerson v. Inchbird, Lord Raym. 728. In Haynsworth v. Pretty, Cro. Eliz. 833, Moor 644, Vaughan 271, the devise was to the eldest son in fee upon condition of his paying legacies to the second son and daughter; and in default of his so doing, then to such second son and daughter: it was holden that the devise over had not the effect of preventing the heir taking by descent. So where the devise was to the wife for life, provided she did not marry; and if she

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