well as sales to be made of the estates of infant heirs and devisees liable to the debts.

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 (s). Not so the infant devisee (t) under the statute of Will. & Ma., and now by the 10th section of the last act (u), 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 judgment shall be that the plaintiff do recover his debt and damages (w), to be levied of the assets descended.

If the heir confesses the action (x), 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 (y). If the heir pleads riens per descent (z), or payment by a co-obligor (a), 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 (b), is general, so is the execution. Thus it was holden, 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 has by purchase, as of those which he hath by descent (73).

(8) Gilb. H. C. B. 56.

(t) Plasket v. Beeby, 4 East, 485. (u) 11 Geo. IV. & 1 Will. IV. c. 47. (w) Davy v. Pepys, Plowd. 438, recognized by Holt, C. J., in Smith v. Angel, 7 Mod. 44.

(x) Dy. 373, b.

(y) Per Holt, C. J., Carth. 129.

(z) 21 Edw. III. 9, b. pl. 28; Doctr. pl. 181; Allen v. Holden, 2 Rol. Abr. 71, pl. 8; Sty. 287, 288, S. C.

(a) Brandlin v. Milbank, Carth. 93. (b) 21 Edw. III. 9, b. pl. 28; Hinde . Lyon, 2 Leon. 11.

(73) 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. Abr. 71. pl. 3.

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 capias ad satisfaciendum against his person (c), or fi. fa. against his goods and chattels (d). If judgment is given against the heir upon demurrer (74), the body of the heir may be taken in execution (e).

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 (f). 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 (g). 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 (h). So on a judgment in scire facias on a recognizance (i). 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 (k); 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 (1). Hence where the defendant had been taken in execution on a judgment, and afterwards was discharged out of custody, with the consent of the

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

(d) Poxon v. Smart, C. B. Hil. 4 Geo. II. MSS.

(e) Grenesmith v. Brackhole, cited in Plowd. 440, b.

(f) 43 Edw. III. 2, b.

(g) Mason v. Nicholls, 1 Roll. Abr.

600-1, 45.

(h) 43 Edw. III. 2. But see stat. 3 & 4 Will. IV. c. 27, s. 36.

(i) Lovelepe's case, 2 Leon. 14. (k) Read v. Pope, 1 Cr. M. & R. 302; 4 Tyrw. 403, S. C.

(1) Vigers v. Aldrich, 4 Burr. 2482, recognized in Jaques v. Withy, 1 T. R. 557.

(74) 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 shows the certainty of the lands descended. Per Plowd., in Davye v. Pepys, Plowd. 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.

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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 (m). The defendant cannot plead nil debet (n). 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; but by new rule, H. T. 4 Will. IV., 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 (0), 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 (p), but not in bar (q). 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 (r). 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 Geo. III. 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."

(m) Hob. 196.

(n) Gilb. Debt. and new rules.

(0) Collins v. Ld. Mathew, 5 East, 473; but see Harris v. Saunders, 4 B. & C. 411.

(p) Aby v. Buxton, Carth. 1. (q) Rogers v. Mayhoe, Carth. 1. (r) Taswell v. Stone, 4 Burr. 2454. Benwell v. Black, 3 T. R. 643.

VIII. Debt for Rent Arrear, p. 595; Stat. 4 Geo. II. c. 28, against Tenants holding over after Notice from Landlord, p. 596; Stat. 11 Geo. II. c. 19, against Tenants holding over after Notice given by themselves, p. 599; Declaration, p. 600; Debt for Use and Occupation, p. 601; Pleadings, p. 601; Eviction, p. 602; Nil habuit in tenementis, p. 604; Statute of Limitations, p. 604.

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If a lease be of lands or tenements for years (s), or at will (t), rendering rent, debt lies for the recovery of rent arrear, by the common law. So if a lease be for life (u), 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 (x) 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, rentcharge, rent-seck, or fee-farm in fee simple died (y), and there was rent arrear, neither his heir nor 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 Hen. VIII. 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 (75). At the common law, the devisee (2), or assignee (a) of rent reserved on a lease for years might maintain debt for the rent, in cases where the tenant had attorned; for that transferred the privity of contract. By the stat. 4 Ann. c. 16, s. 9, attornment is no longer necessary (b). As to stat. 32 Hen. VIII. c. 37, and what persons are within this statute, see post, under tit. "Distress," s. IV.

(8) Lit. s. 58.

(t) Id. s. 72.

(u) 1 Roll. Abr. 596, pl. 11.

(x) Webb v. Jiggs, 4 M. & S. 113;

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

(y) 1 Inst. 162, a.

(z) Ards v. Watkin, Cro. Eliz. 637, 651; cited per Cur. in Rivis v. Watson, 5 M. & W. 266.

(a) Robins v. Cox, 1 Lev. 22.

(b) See Allen v. Bryan, 5 B. & C. 512.

(75) The action is local, and must be brought where the land lies. Bull. N. P. 177; but under stat. 3 & 4 Will. IV. c. 42, s. 22, may be tried in any county.

The action must be brought against the persons who took the profits when the rent became in arrear (c), or against their executors or administrators. If A. make a lease for life (d), or a gift in tail, reserving a rent, that is a rent-service within this statute. The act is remedial (e), 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 has not any reversion (f). By stat. 4 Geo. II. c. 28, s. 1, “If tenants for life, lives, or years (76), or other persons coming into possession of any lands, &c. under or by collusion with such tenants, shall wilfully (77) hold over after the determination of their term (78), and after demand made (79), and notice in writing (80) given, for delivering

(c) 1 Inst. 162, b. (d) Ib.

(e) Hool v. Bell, Lord Raym. 172.
(ƒ) Newcomb v. Harvey, Carth. 161.

(76) "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 the statute." Per Lord Ellenborough, C. J., Lloyd v. Rosbee, 2 Campb. 453. "The statute is penal, and is to be construed strictly." Per Parke, B., in Robinson v. Learoyd, 7 M. & W. 54.

(77) A tenant who holds over, under a fair claim of right, will not be considered as wilfully holding over within the meaning of this statute; though it may be decided eventually, that he had no right. Wright v. Smith, 5 Esp. N. P. C. 203.

(78) Where the demise is for a certain time, e. g. for one year and no longer, a notice to quit is not necessary at the end of the year to put an end to the tenancy. 8 East, 361.

(79) In Wilkinson v. Colley, 5 Burr. 2694, the court, considering this as a remedial law in favour of landlords, the penalty being given to the party grieved, held, that a notice to quit in writing included a demand. On the authority of this case it was holden*, by three judges, that where a woman, tenant from year to year, had received a written notice to quit, and before the expiration of the year married, it was not necessary for the landlord to make a demand on the husband, in order to entitle him to maintain an action against the husband, on this statute, for wilfully holding over. Chambre, J., differed from the other judges, conceiving, that a demand ought to be made, upon the party against whom a penal action is brought. N. In a case of this kind the husband may be sued alone, and it is not necessary to join the wife for conformity, the husband being in possession of the estate at the time when possession is to be delivered, and consequently the offence being committed by him; for the offence,

*Lake v. Smith, 1 Bos. & Pul. N. R. 174.