"be chargeable, for a false plea, in the same manner as the "heir is for a false plea, or for not confessing the lands de"scended to him.", The 4th section contains an exception in favour of 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 7th section provides, "that every de"visee made liable by this act, shall be chargeable in the same manner as the heir, by force of this act, notwith"standing the lands, &c. to him devised, shall be aliened "before action brought."

This statute was intended to prevent three inconve niences: 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.

If debt is brought on the obligation of the ancestor against an infant heir, he may plead his non-age and pray that the parol may demur. This privilege is confined to infant heirs, to whom lands have come by descent from the specialty debtor; and not being expressly given to infant devisees by the preceding statute, they cannot claim the benefit of it.

Judgment. If the heir confesses the action, and declares with certainty the assets which he has by descent, the judg ment shall be that the plaintiff do recover his debt and damages, to be levied of the assets descended (S0).

P

See Gott v. Atkinson, Willes, 521. q See s. 5. ante.

r Gilb. Hist. of C. B. 56.

s Plasket v. Beebey & others, 4 East's R. 485.

t Davye v. Pepys, Plow. 439.

(80) 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 the 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 re presentative. Per Sir E. Coke, in Harbert's case, 3 Rep. 12. a.

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 coobligor2, 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 (81).

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. If judgment is given against the heir upon demurrer (82), the body of the heir may be taken in execution".

Dy. 373. b.

x Per Holt C. J. Carth. 129.

y 21 Ed. 3. 9. b. pl. 28. Doctr. pl. 191.
Allen v. Holden, 2 Rol. Abr. 71. pl.
8. Sty. 287, 288. S. C.

z Brandliu 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. Hill. 4 G. 2.
MSS.

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

(81) 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.

(82) 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 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.

NN

VII. Debt on Judgment.

DEBT lies upon a judgment, within or after the year after the recovery. 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. Debt lies on a judgment for damages in a real action; for, by the judgment, the damages are reduced to personalty; as for damages re covered in an action of waste. So on a judgment in scire facias on a recognizance. Debt also lies upon a judgment of nonsuit, for costs in an inferior court. In an action of this kind, a general statement of the proceedings in the inferior court will be sufficient, without setting forth the plaint and the subsequent proceedings thereon; neither is it necessary to aver, that the plaint in the court below was levied for a cause of action arising within its 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 plaintiff, upon entering into an agreement to pay the debts 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. The defendant cannot plead nil debet; because the judgment is conclusive evidence of the debt. But 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 it self, if it be a record of that court where the action is brought; but if it be a record of another court, then it is to be certified unto the court where the action is depending; and, if there be a variance between the record declared on and the record produced or certified, the plaintiff fails in his

proof. See further as to this plea, and the replication thereto, ante, Sect. IV.

A plea of nul tiet record", pleaded to an action of debt on an Irish judgment recovered, must conclude to the country; for though, since the union, such judgment be a record, yet it is only proveable 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 bar. 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 determined1.

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 a late 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."

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 themselvesDeclaration-Debt for Use and OccupationPleadings-Evidence.

If a lease be of lands or tenements for years, or at will, rendering rent, debt lies for the recovery of rent arrear, by the common law. So if a lease be for life', 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

n Collins v. Ld. Mathew, 5 East, 473. o Aby v. Buxton, Carth. 1.

p Rogers v. Mayhoe, Carth. 1. Taswell v. Stone, 4 Burr. 2454. Benwell v. Black, 3 T. R. 643.

r Lit. s. 58.

s Id. s. 72.

t 1 Rol. Abr. 596. pl. 11.

due on such lease, may bring debt for the same, in the same manner as if due upon a lease for years.

At common law, if a person seised of rent-service, rentcharge, rent-seck or fee farm in fee simple died", 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 farin rent, in fee, in tail, or for life, might maintain debt against the person who ought to pay the same, and his personal representative (83).

The action must be brought against the persons who took the profits when the rent became in arrears, or against their executors or administrators.

If A. make a lease for life, or a gift in tail, reserving a rent, that is a rent service within this statute.

The act is remedial, 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 bas not any reversion".

By stat. 4 Geo. 2. c. 28. s. 1. "If tenants for life, lives, or 06 years (84), or other persons coming into possession of any "lands, &c. under or by collusion with such tenants, shall

u 1 Inst. 162. a.

x 1 Inst. 162. b. y Ib.

z Hool v. Bell, Ld. Raym. 172.
a Newcombe v. Harvey, Carth. 161.

(83) The action is local, and must be brought where the land lies. Bull. N. P. 177.

(84) "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 this statute." Per Ld. Eilenborough C.J. Lloyd v. Rusbee, 2 Camp. N. P. C. 455.