1806. WILSON versus KNUBLEY. and maintain his action of debt, upon his said bond and specialties, against the heir at law of such obligor, and such devisee and devisees jointly by virtue of this act; and such devisee shall be liable and chargeable for a false plea by him or them pleaded, in the same manner any heir should have been, for any false plea by him pleaded, or for not confessing the lands or tenements to him descended. The heir would, therefore, clearly have been bound, to answer in covenant, but not the devisee. And he noticed the cases in equity, where it had been a question, upon a devise for the payment of debts, whether the devisee took as devisee under the statute or not. WOOD, contrà, "It must be admitted, that this case is not within the express words of the statute; but it is within the true spirit and meaning of it. It was the intent of the statute to make void, all devises, which were designed to prevent the heir from becoming answerable for all or any of the covenants by which the ancestor has bound his heir, and it is entituled a statute for the relief of creditors against fraudulent devises.' Is not then this case equally within the same mischief as if the covenantee had a bond from the devisor and his heirs for a penalty? In that he could only have had an action upon the bond to recover the amount of the damages. In the Sd section of the act, it is true, that an action of debt only is mentioned, which goes somewhat to shew, that covenant is not included: but the object of the statute was, that it should extend to all actions in which the real assets are bound. The heir would, clearly, have been bound: then here is an hæres factus, and he ought not to be placed in a better situation. All statutes to suppress fraud ought to have a liberal construction." * Plowden 59, b. 5 Co. Rep. 6. And it has been held, that the statute 4 E. III. c. 7, de bonis asportatis in vita testatoris, which enables the executor to bring an action of trespass for such things, enables him also, by the equity of the statute, to bring an action for other injuries to the testator; Russel v. Pratt. If this case is not within the statute, purchasers will be rendered very insecure, for it is the usual practice to take a covenant of this kind. As to the objection that the heir is not joined in the action, according to the 3d section of the statute, it is stated in the declaration, that there is no heir; and Lord Chancellor Cowper in Gawler v. Wade,† though he required the heir to be made a party to a bill, to subject the devisee of lands to the payment of a bond given by the testator, yet says, this is as an action at law; otherwise if there was no heir, and perhaps it might be otherwise too, if the bill had charged, that the plaintiff had made inquiry, and could find no heir; so that it is clearly unnecessary." LAWRENCE, J. "The party,in that case, chose not to proceed at law, merely because the whole being devised away from the heir,he could recover nothing from him. But Lord Cowper said, that could be no reason for coming into equity, at least without joining the heir in the suit." Lord ELLENBOROUGH, C. J," The grievance, complained of in the preamble of the statute,existed in its full extent by the common law up to the statute 3 I. c. 17; and that grievance as stated in the preamble, of owners of lands defeating their specialty creditors by devises, would lead one to consider, that the legislature would have provided a more extensive remedy. It recites that it is not reasonable or just, that, by the practice or contrivance of any debtors the creditors should be defraud. 1306. WILSON versus KNUBLEY 1806. WILSON versus KNUBLLY ed of their just debts; and nevertheless it hath often so happened, that, that where several persons have by bond or other specialties bound themselves and their heirs, and have, afterwards died seised in fee-simple of and in manors, lands, &c. or had power to dispose or charge the same by their wills, have, to the defrauding of such their creditors, devised the same, or disposed thereof in such manner as such creditors have lost their said debts; and then it afterwards provides the means of remedying the evil, which are more limited than the mischief that they before recited. But,that the means are intended to be limited to actions of debt, is plain & for they say, and for the means that such creditors shall be enabled to recover their said debts, be it enacted,' describing in terms the very means of remedy which shall be used, Such creditor shall have his action of debt upon his bond and specialty against the heir and such devisee jointly.' Then is this an action of debt? If the words had been only actions,' then it might have been contended for the devisee, that he was within the meaning. I do not say but there may be a case, perhaps, in which the heir and devisee may be joined upon a covenant; but that must be left for the time when such case shall occur. It is said that the le gislature adopted the same latitude of expression as is used in the statute 4 Ed. III. c. 7. de bonis asportatis in vita testatoris; but there the words are action for a trespass done to the testator,' not action of trespass. That may therefore, be construed as a common wrong done to the testator.' The instance put by the legislature de bonis asportatis in vita testatoris, is one in which an action of trespass would be the proper remedy. But it seems to me, that we cannot embrace within the equity of the statute that which the legislature has always excluded, having stated the means which it should apply for the remedy of the evil, and those means not including the case contended for, without doing violence to the express words of the statute. GROSE, J. of the same opinion. LAWRENCE, J. "This is an attempt to extend the application of the statute of the 3 W. III. c. 14. to an action, which is not within that statute. I should be inclined to give it the most ample construction, that the letter of it will bear, but the words of the Cd section, plainly extend only to an action of debt.-" For the means that such creditors shall be enabled to recover their debts."-This does not give a remedy for damages, which are not a debt; but this action is for damages upon a covenant, part of which damages are for the costs of an ejectment, and no person can say, that they were a debt. In the statute 4 Ed. III. c. 7, the words are very different; they are very loose and general compared with these. Item, whereas, in times past, executors have not had trespass for wrongs done to their testator.' The word trespass may there be construed as the wrongs of their testators. Here we cannot extend the words, although I cannot help thinking, that the legislature would have done better, if it had actually gone so far as to apply to this case." His lordship in the course of the argument mentioned that a bond in a penalty might be taken to secure the performance of the covenant; but it does not appear from my notes, that he mentioned this, afterwards, in delivering his opinion; and I cannot be sure, that he meant to say, decidedly, that an action, upon such bond in a penalty, to secure damages upon a covenant, would be within the statute. LE BLANC, J. "The argument is very strong to shew, that it would have been better for the legis 1806. WILSON versus KNUBLEY 1806. WILSON versus KNUBLEY. Pleading. Warranty. Money had and received. lature to have included this action, but I doubt whether it was in the contemplation of the legislature at the time, and this clause does not extend to cove nant. It had been in their contemplation to have considered the case of a creditor that had only a claim for damages, and not a debt actually due, they would, I think, have made use of other words. Probably it was not; and if we should construe this act merely upon the equity of the statute, we should be going both against the intention of the legislature, and the express words of the statute. JUDGMENT for the DEFENDANT. PAYNE against WHALE.-Jan. 24. A horse being sold with a warranty, the purchaser went to return it for unsoundness, when the seller acknowledged, that he had warranted the horse sound, and would return the money if it were not so. Held, that this is proof of a warranty upon the original sale, but yet is merely a proposal towards an agreement to return the money, and is not evidence to enable the purchaser to recover upon a count for money had and received. He must proceed upon the warranty as before, for the unsoundness is still in dispute. PAYNE THIS versus WHALE. IS was an action of assumpsit for money had and received. Upon the trial before Lord ELLENBOROUGH, C. J. the plaintiff proved that he had purchased a horse of the defendant for 30 guineas, which appearing to be unsound, and what is technically called a roarer he returned it to the defendant. There was no proof of the original warranty, except as follows; when the plaintiff applied to the defendant to take back the horse, he asked him if he had not sold it as a sound horse, and warranted it to be so. He returned for answer that he had sold him for a sound horse, and he was warranted so to be, and, that, |