ported (s). And quare, whether the plea would be aided by this averment (t).

Liability of Heir under 1 Will. IV. c. 47.-At the common law, if the heir had made a bonâ fide alienation of the lands descended, before action brought, he was discharged (u), and he might have pleaded this in bar; consequently there was not any remedy against him at law; although in equity he was responsible for the value of the land aliened (x). But now, by 1 Will. IV. c. 47, s. 6 (y), the heir is rendered liable in an action of debt or covenant, to the value of the land aliened before action brought against him; and such execution shall be taken out upon any judgment obtained against such heir, to the value of the said land, as if it was his own debt, but not beyond (2); saving that the land, bona fide aliened before action brought, shall not be liable to such execution (a).

"By taking proper proceedings (in equity) the specialty creditors may obtain payment out of the descended or devised real estate in the hands of the heir or devisee (b), but if such proceedings are not taken, the heir or devisee may aliene, and in the hands of the alienee, the land is not liable, though the heir or devisee remains personally liable to the extent of the value of the land aliened" (c).

By the 7th section it is provided,-"That where debt or covenant upon a specialty is brought against any heir, he may plead riens per descent at the (commencement of the action); and the plaintiff may reply, that he had lands, &c. from his ancestor, before (the commencement of the action) and if, upon issue joined thereupon, it be found for the plaintiff, the jury shall inquire of the value of the lands, &c. so descended (d), 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 (e), 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."

Liability of Devisee under Statute.-Before the 3 W. & M. c. 14, persons who had bound themselves and their heirs by bond, or other specialties, used frequently to aliene the lands of which they

(s) Shetelworth v. Neville, 1 T. R. 454.
(t) 2 Wms. Saund. 7 b, n. (h).
(u) Termes de la Ley, V. Assets.
(x) Per Lord Macclesfield, Ch., in Cole-
man v. Winch, 1 P. Wms. 777.

(y) This clause, and the 7th, with the
exception of the additional remedy by
covenant, are almost verbatim the same
with the 5th and 6th sections of 3 W. & M.
c. 14, now repealed, except as to persons
who died before 16th July, 1830.

(2) Brown v. Shuker, 2 C. & J. 311.
(a) This saving extends to devisees.

Mathews v. Jones, 2 Anst. 506.

(b) See 3 & 4 Will. IV. c. 104, post, tit. "Executors, VI."

(c) Per Lord Langdale, Richardson v. Horton, 7 Beav. 112.

(d) If they do not, a venire de novo will be awarded. Brown v. Shuker, 1 C. & J. 583.

(e) In a plea under the statute the heir or devisee must show the particular lands devised. Per Willes, C. J., Willes, 524; see post, p. 621.

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 that statute (f), which was repealed by 1 Will. IV. c. 47, which, reciting, that it is not reasonable that by the contrivance of "debtors" their "creditors" should be defrauded of their just "debts," by sect. 2 enacts, that:

All wills, testamentary limitations, dispositions or appointments then made, or thereafter 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 (g), 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 by sect. 3-Every such creditor may maintain debt or covenant (h) upon the bonds, covenants and specialties, against the heir and devisee, or devisee of such devisee, jointly (i), and such devisee shall be chargeable for a false plea in the same manner as the heir is, or for not confessing the lands descended. By sect. 4-If there is not any heir at law, the creditor may bring debt or covenant against the devisee solely (k). The 5th section contains an exception in favour of limitations, appointments, devises, or dispositions made for the payment of debts (1), or for raising portions for children, in pursuance of any marriage contract bond fide made before marriage. The 8th section provides, that every devisee made liable by the act shall be chargeable in the same manner as the heir (m), notwithstanding the lands, &c. shall be aliened before action.

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; as, at the common law, he was (ante, p. 617); and the alteration introduced by the 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 (n). The act only applies to cases where a "debt," in the ordinary meaning of the word, not a mere contingent liability, exists between the parties in the lifetime of both; where, therefore, A.

(f) See Galton v. Hancock, 2 Atk. 432. (g) This extends to estates pur autre vie. Westfaling v. Westfaling, 3 Atk. 465.

(h) Under the 3 & 4 W. & M. c. 14, debt only could have been maintained. Wilson v. Knubley, 7 East, 128.

(i) It is necessary to join both at law. Warren v. Stawell, 2 Atk. 125; in equity,

quare, Bridges v. Hinrman, 16 Sim. 71.

(k) Under the 3 & 4 W. & M. c. 14, this could not be done. Hunting v. Sheldrake, 9 M. & W. 256.

(1) See Gott v. Atkinson, Willes, 521. (m) See ante, p. 619.

(n) Ante, p. 619.

became surety by deed for the performance of covenants by B., and A. died before breach, it was held that A.'s devisees were not liable under the statute (p) for a subsequent breach of covenant by Farley v. Briant, 3 A. & E. 839.

B.

Judgment. If the heir confesses the action, and declares with certainty the assets which he has by descent, the judgment shall be that the plaintiff do recover his debt and damages, to be levied of the assets descended (q). 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 (r). If the heir pleads riens per descent (s), or payment by a co-obligor (t), 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 (u). Thus it was held, that the plaintiff might have execution, by writ of elegit, of a moiety of all the lands of the heir; as well of those which the heir had by purchase, as of those which he had by descent (x). The plaintiff, however, is not compelled to sue an elegit in this case (which, before the 1 & 2 Vict. c. 110, might have put him at a disadvantage), 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 Roll. Abr. 71, pl. 3. But now, by 1 & 2 Vict. c. 110, all the lands of the debtor, and not a moiety only, may be extended under an elegit.

If the heir suffers judgment to go by default, and does not show 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 ca. sa. against his person (y), or fi. fa. against his goods and chattels (2). So if judgment is given against the heir upon demurrer, the body of the heir may be taken in execution (a). So, if the heir is condemned on any plea whatsoever (b), or by default, or without plea for any cause, the practice is for the plaintiff to (p) 3 W. & M. c. 14; but the provisions of the 2 Will. IV. c. 47, are in this respect the same.

(g) Davy v. Pepys, Plowd. 438.

(r) Dy. 373, b.; per Holt, C. J., Carth. 129.

(s) 21 Edw. III. 9, b. pl. 28; Doctr.
pl. 181; Allen v. Holden, 2 Roll. Abr. 71,
pl. 8.

(t) Brandlin v. Milbank, Carth. 93.
(u) i. e., at common law. Under the
statute, if the heir pleads riens per descent,

the execution is limited to the value of the lands found by the jury. Brown v. Shuker, 2 C. & J. 311.

(x) Hinde v. Lyon, 2 Leon. 11.

(y) Barker v. Borne, Cro. Eliz. 692; Trewiniard's case, Plowd. 440, b.

(z) Poxon v. Smart, C. B. Hil. 4 Geo. II. MS.

(a) Greensmith v. Brockhole, cited in Plowd. 440, b.

(b) except that of riens per descent, under the statute, ante, n. (u).

have execution of the body of the heir, or his goods, or elegit of his lands, unless he confesses the debt, and shows the certainty of the lands descended. Davy v. Pepys, Plowd. 440, b; Smith Angell, Ld. Raym. 783.

VII. Debt on Judgment.

V.

Debt lies upon a judgment, within or after the year after the recovery (c). An action of debt may be maintained 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 (d). Debt lies on a judgment for damages in a real action (f); for, by the judgment, the damages are reduced to personalty (g). So on a judgment in scire facias on a recognizance (h). 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 court (i); 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 (k). 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 held, that the plaintiff could not maintain an action upon the judgment (1). An action of debt on a judgment, being founded on the consequent duty, cannot be differed in principle from the ordinary case of an action of debt against one of several joint contractors; to which an objection cannot be taken on the ground of variance, but only, if at all, by way of plea in abatement (m). 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 (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, or by a certified copy thereof duly sealed (p).

the inferior court, and the defendant in
the court below bringing an action on the
judgment for his costs; here it is impos-
sible to aver it, for it may have been the
very cause of the nonsuit. Murray v.
Wilson, 1 Wils. 317.

(k) Jaques v. Withy, 1 T. R. 557.
(1) Vigers v. Aldrich, 4 Burr. 2482.
(m) Cocks v. Brewer, 11 M. & W. 51.
(n) Hall v. Winckfield, Hob. 196.
(0) 11 Pl. R. H. T. 1853.
(p) 1 & 2 Vict. c. 94, s. 13.

By 10 R. G. H. T. 1853.-"Where a defendant shall plead a plea of judgment recovered, 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" (p). The above rule does not, it seems, apply to judgments pleaded by executors (q).

A plea of nul tiel record, pleaded to an action of debt on an Irish judgment, is only provable by an examined copy on oath, the veracity of which is triable by a jury, and not by the court (r). A writ of error pending on the judgment may be pleaded in abatement (s), but not in bar (t). 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 (u).

Costs.-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 on the judgment being considered vexatious and oppressive, it was enacted by the 43 Geo. III. c. 46, s. 4, that 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. The above statute extends only to judgments recovered by plaintiffs, and not to actions brought by the defendant in the original action to recover the costs of a judgment of nonsuit (.). The object of the act, however, being to prevent parties from rashly bringing actions of debt on records, and so creating costs (y), they will be allowed if the proceedings have become necessary (2). By the 128th section of the C. L. P. Act, 1852, execution may now issue within six years from the recovery of the judgment, if the parties be alive, without revival. As after that time a writ of revivor or an action on the judgment must be brought, and in the former case the plaintiff would be entitled to his costs, sect. 131, there seems no reason for refusing them in the latter (a).