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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 demury. 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.
p See s. 6, ante.
q Gilb. H. C. B. 56.

r Plasket v. Beeby, 4 East, 485.
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 damages, 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 accideritx. If the heir pleads riens per descenty, or payment by a co-obligor?, 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 hima, 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 chattels c. If judgment is given against the heir upon demurrer (73), the body of the heir may be taken in execution d.

t Davye v. Pepys, Plowd. 430. recog

nised by Holt, C. J. in Smith v. An

gel, 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 y. 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 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 a 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 b. 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. So on a judgment in scire facias on a recognisanced. 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 courte; 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 f. Hence where the defendant had been taken in execution on a judgment, and afterwards was discharged out of custody, with the consent of the plaintiff, upon entering into an agreement to pay the debt by instalments, part whereof the defendant had accordingly paid, but had failed in payment of the remaining part; it was holden, that the plaintiff could not maintain an action upon the judgment. The venue in this action must be laid in the county where the judgment was given, and not in the county where the original cause of action arose 5. The defendant cannot plead nil debet h. If there be not any such record as the plaintiff has declared on, the defendant must plead nul tiel record; which issue is tried

a 43 Edw. 3. 2. b.
b Mason v. Nicholls, 1 Roll. Abr. 600.

1. 45.
c 43 E. 3. 2.
d Lovelepe's case, 2 Leon. 14.
e Read v. Pope, 1 Cr. M. & R. 302.

4 Tyrw. 403. S. C.

f Vigers v. Aldrich, 4 Burr. 2482, re

cognized in Jacques v. Withy, 1 T.R.

g Hob. 196.
h Gilb. Debt. and new rules.

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 shews the certainty of the lands descended. Per Plowd. in Davye v. Pepys, Plow. 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.

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 W. 4. R. G. 8. 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 h, 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, but not in bark. 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? 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 G. 3. 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."

h Collins v. Ld. Mathew, 5 East, 473. k Rogers v. Mayhoe, Carth. 1.

But see Harris v. Saunders, 4 B. and 1 Taswell v. Stone, 4 Burr. 2454. BenC. 411.

well v. Black, 3 T. R. 643. i Aby v. Buxton, Carth. 1.

VIII. Debt for Rent Arrear-Stat. 4 G. 2. c. 28. against

Tenants holding over after Notice from Landlord-
Stat. 11 G. 2. c. 19. against Tenants holding over after
Notice given by themselvesDeclarationDebt for
Use and Occupation-PleadingsEvidence.

IF a lease be of lands or tenements for years m, or at will ", rendering rent, debt lies for the recovery of rent arrear, by the common law. So if a lease be for life o, 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 P 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, rent-charge, rent-seck, or fee farm in fee-simple died 9, and there was rent arrear, neither his heir or 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 H. 8. 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 (74). At the common law, the deviseer or assignees of rent reserved on a lease for years might maintain

m Lit. s. 58.
n Id. s. 72.
o 1 Rol. Abr. 596. pl. 11.
p Webb v. Jiggs, 4 M. and S. 113.

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

q 1 Inst. 162. a.
r Ards v. Watkin, Cro. Eliz. 637, 651.
s Robins v. Cox, 1 Lev. 22.

(74) The action is local, and must be brought where the land lies. Bull. N. P. 177; but, under stat. 3 & 4 W.4, c. 42, s. 22, may

be tried in any county.

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