The language of the plea being, that the defendant had not any lands by descent, at the time of the original writ brought, or bill 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. If upon issue joined on the plea of riens per descent, 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 G. 4. & 1 W. 4. c. 47.-At the common law, if the heir had made a bona fide alienation of the lands descended, before action brought, he was discharged, and he might have pleaded this in bar; consequently there was not any remedy against him at law; although in equityf he was responsible for the value of the land aliened; but now, by stat. 11 G. 4 & 1 W. 4. c. 47. s. 6. (66), 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 heirs, to

c 1 Inst. 102. a. b.

d Gooch's case, 5 Rep. 60. a. e Termes de la Ley v. Assets.

f Per Comyns, B. in Krew v. Ld. Kil-
main, Exch. T. 5 and 6 G. 2. MSS.
g Per Ld. Macclesfield, Ch. in Coleman
v. Winch, 1 P. Wms. 777.

married, to the son in fee; and after her death, at all events, to the son in fee, charged however with an annuity to the daughter for life; and after the death of the wife and daughter, the testator bequeathed 1500l. to the daughter's children; and if no children, then subject to her appointment; and, in case of no appointment to her executors, and in default of his paying the annuity to the daughter, or the legacy to her children, then he devised to a trustee; it was holden that the executory devise over did not alter either the quantity or quality of the estate to the heir, and consequently that he took by descent. Chaplin v. Leroux, 5 M. and S. 14. So where the devise was to the heir in fee, with an executory devise in case he did not attain 21. Doe d. Pratt v. Timins, 1 B. and A. 530.

(66) 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 W. and M. c. 14. made perpetual by 6 & 7 W. 3. c. 14. but now repealed by stat. 11 G. 4. and 1 W. 4. c. 47. except as to persons who died before 16th July, 1830.

the value of the said land, as if it was his own debt, but not beyondh; and land, bond fide aliened before action brought, is specially exempted from such execution.

"that

By the 7th section of the same statute it is provided, 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 (67) that he had 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 (68) 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."

h Brown v. Shuker, 2 Cr. & J. 311. I Tyrw. 400.

(67) 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. 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.

(68) 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.

The heir cannot plead assets in the hands of the executorsi; for it is at the election of the obligee to sue either the heir, or the executors. A plea by the heirk, 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 statute of 3 & 4. W. & M. 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 W. & M. c. 14. made perpetual by stat. 6 & 7 W. 3. 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', but as this statute has been repealed, except as to persons who died before the 16th July, 1830, by stat. 11 G. 4. & 1 W. 4. c. 47. it will be sufficient to state the enactments contained in the last-mentioned statute; by which, all willsm 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" may maintain debt or covenant, (69) upon the bonds, covenants and specialties against the heirs, and devisees, or devisees of such first-mentioned devisees

i 10 H. 7. 8. b. per Vavasour J. C. B. and Cape's Case, 1 And. 7. S. P. adjudged.

k Shetelworth v. Neville, 1 T. R. 454.

1 See remarks of Lord Hardwicke on this stat. in Galton v. Hancock, 2 Atk. 432.

m S. 2.
n S. 3.

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

jointly (70), 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 devisee solely. The 5th section contains an exception in favour of limitations, or appointments, or devises, or dispositions made for the payment of debts, or portions for children, other than the heir at law, in pursuance of any marriage contract, bona 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 actP, notwithstanding the lands, &c. to him devised, shall be aliened before action brought." By the 9th section trader's 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 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. Not so, the infant deviseer under the statute of W. & M. and now by the 10th section of the last acts, 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 judg

o See Gott v. Atkinson, Willes, 521. r Plasket v. Beeby, 4 East, 485.

p See s. 6, ante.

q Gilb. H. C. B. 56.

s 11 Geo. 4 & 1 W. 4. c. 47.

(70) See form of declaration in debt against heir and devisee jointly, under the stat. of W. & M. Clift. Entr. 243. pl. 19. Lill. Entr. 145, 529.530. 2 Rich. C. P. 241.

ment shall be that the plaintiff do recover his debt and damagest, to be levied of the assets descended (71).

If the heir confesses the action", 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. If the heir pleads riens per descent, or payment by a co-obligor2, 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, is general, so is the execution. And the plaintiff may 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 (72). If the heir suffers judgment to go by default, and does not shew 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', or fi. fa. against his goods and chattelse. If judgment is given against the heir upon demurrer (73), the body of the heir may be taken in executiond.

t Davye v. Pepys, Plowd. 430. recognised by Holt, C. J. in Smith v. Angel, 7 Mod. 44.

u Dy. 373. B.

x Per Holt, C. J. Carth. 129.

y 21 Ed. 3. 9. b. pl. 28. Doctr. pl. 181. Allen v. Holden, 2 Rol. Abr. 71. pl. 8. Sty. 287, 288. S. C.

z Brandlin v. Milbank, Carth. 93.

a 21 Edw. 3. 9. b. pl. 28. Hinde v. Lyon, 2 Leon. 11.

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

c Poxon v. Smart, C. B. Hil. 4. G. 2. MSS.

d Grenesmith v. Brackhole, cited in Plow. 440. b.

(71) Under this judgment, the plaintiff is entitled to have in execution all the land descended. And this was the rule at the common law, although the lands in the possession of the ancestor were not liable to any execution. And the reason of the distinction appears to be this, that assets descended are the only fruit which the creditor can derive from an execution against the heir, the goods and chattels of the debtor belonging to his personal representative. Per Sir E. Coke, in Harbert's case, 3 Rep. 12. a.

(72) 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. Ab. 71. pl. 3.

(73) And so, if the heir is condemned on any plea whatsoever, or