An Abridgment of the Law of Nisi Prius...

"That the plaintiff upon the roll may (65) suggest as many "breaches of the covenants and agreements as he shall think fit, upon which shall issue a writ (60) to the sheriff of that county where the action shall be brought, to summon a jury to appear before the justice or justices of assize, or "nisi prius, of that county, to inquire of the truth of every one of those breaches, and to assess the damages that the plaintiff shall have sustained thereby; in which writ it "shall be commanded to the said justices, that they shall "make a return (67) thereof to the court, whence the same "shall issue, at the time in such writ mentioned; and in case the defendant, after such judgment entered, and before any execution executed, shall pay unto the court, to the use of the plaintiff, his executors or administrators, such damages so to be assessed, by reason of all or any of the "breaches of such covenants, together with costs of suit, a stay of execution of the said judgment shall be entered upon record; or if, by reason of any execution executed, "the plaintiff, or his personal representative, shall be fully paid or satisfied all such damages, with costs of suit, and all reasonable charges and expenses, for executing the said execution, the body, lands, or goods of the defendant, "shall be thereupon forthwith discharged from the said execution, which shall likewise be entered upon record; but, notwithstanding, in each case such judgment shall remain as a further security to answer to the plaintiff and his per"sonal representative, such damages as shall be sustained for "further breach of any covenant in the said indenture, &c.,

the recovery of the debt and damages; the plaintiff then proceeded to suggest breaches, upon which suggestion, a writ of inquiry was awarded and executed, and damages and costs assessed; after which, the plaintiff entered a second judgment for the damages assessed under the writ of inquiry, and further costs adjudged by the court, and then entered a remittitur as to the costs. A writ ⚫ of error having been brought, it was holdeu, that the second judgment could not stand; and thereupon it was adjudged, that the second judgment, with the amerciament, should be reversed, and that the former judgment should remain unimpeached. Hankin v. Broomhead, 3 Bos. and Pul. 607.

(65) See note (63). No suggestion is necessary on a judgment by warrant of attorney. Kinnersley v. Mussen, 5 Taunt. 264. (C6) See the form of this writ, 2 Wms. Saunders, 187. c.

(67) See the form of postea returned by justices of assize. ? Wms. Saunders, 187. c.

upon which the plaintiff may have a scire facias (68), upon "the said judgment against the defendant, or against his heir, terre-tenant, or his personal representative, suggesting other "breaches of the said covenants or agreements; and to sum

mon him or them respectively, to shew cause why execu"tion shall not be had upon the said judgment; upon which "there shall be the like proceeding, as was in the action of "debt upon the said bond, for assessing damages upon trial "of issues joined upon such breaches, or inquiry thereof, upon a writ to be awarded as aforesaid; and upon pay"ment or satisfaction as aforesaid, of such future damages, costs, and charges, all further proceedings are again to be "stayed; and so toties quoties; and the defendant, his body, lands, or goods, shall be discharged out of execution as "aforesaid."

VI. Debt on Bond of Ancestor against Heir-Pleadings, Riens per Descent-Replication—Of the Liability of the Heir for the Value of the Land aliened under 3 & 4 W. & M. c. 14. s. 5.-Of the Liability of Devisee under the same statute. Judgment-Execution.

DEBT will lie against an heir, having assets by descent in fee simple, on the obligation of his ancestor, wherein the heir is expressly bound (69). The law considers the bond of

(68) See form of this writ against defendant, Tidd's Pract. Forms, 1st ed. p. 430. If the plaintiff proceeds to execution, without a scire facias, the court will set aside the execution, and order the money levied under it to be restored. Willoughby v. Swinton, 6 East, 550. In cases within this statute, although new breaches take place within a year after judgment recovered, yet the plaintiff is bound to sue out a scire facias. S. C.

(69) "The executor more actually represents the person of the testator, than the heir does the person of the ancestor; for if a man binds himself, his executors are bound, though they be not named, but so it is not of the heir." 1 Inst. 209. a.

See also Barber v. Fox, 2 Saund. 136, and ante, p. 51. S. C.

the ancestor, wherein the heir is bound, as becoming, upon the death of the ancestor, the heir's own debt, in respect of the assets, which the heir has in his own right, and holds him liable upon such bond, to the value of the land descended (70). Hence, the action, on the bond of the ancestor, ought to be brought against the heir in the debet and detinet (71). But, if it be brought in the detinet only, the omission of the debet, which was error at common law, will be cured after verdict, by stat. 16 & 17 Car. 2. c. 8.

And although it is the debt of the defendant, because his ancestor has bound him, yet he is not liable any farther than to the value of the land descended; and, as soon as he has paid his ancestor's debt, to the value of the land, he is entitled to hold the land discharged.

Where the obligor has heirs and lands on the part of his father and on the part of his mother, both heirs shall be equally charged.

If the defendant is only collateral heir of the obligor, the declaration ought to charge him specially, and the mesne descent ought to be stated.

In debt on bond against the defendant, as brother and heir to J. S., the defendant pleaded riens per descent from his brother. A special verdict was found, that the obligor was seised in fee, had issue, and died seised, and the issue died without issue; whereupon the lands descended to the defendant, as heir to the son of his brother. It was holden, that the issue was found against the plaintiff; for the defendant had nothing as immediate heir to his brother, but took by descent from the son of his brother; and although the defendant was chargeable as heir upon this bond, yet, being collateral heir only, the plaintiff ought to have declared specially. But this rule, as to stating the mesne descents in the declaration, applies only to descents from persons seised in fee simple in possession; for where A. being seised in fee,

b Combers v. Watton, 1 Lev. 224. e Buckley v. Nightingale, Str. 665. d 11 H. 7. 12. b.

e Jenk's case, Cro. Car. 151. Bell's case, Hetl. 134.

f Kellow v. Rowden, Carth. 126. per Hoit, C. J. and 2 Justices, Eyres, J. dissenting.

(70) The debt is not a lien upon the land from the ancestor's death, but only capable of being made so by the suit of the party.

(71) "Because the inheritance of the ancestor, which creates a lien upon the heir, is possessed by the heir jure proprio, and not alieno, as the personal estate is by the executor.". Gilb. Debt. B. 2. c. 1.

bound himself and his heirs in a bond, and having two sons B. and C., limited the estate to himself for life, remainder to his eldest son B. in tail, remainder to his own right heirs, and died; whereupon B, became seised in tail, with remainder in fee expectant, and afterwards died, leaving a son D., who became seised in like manner, and afterwards died without issue; upon whose death the premises descended to C. in fee, the estate tail being then extinct; an action having been brought on the bond against C., as son and heir to A., and riens per descent from A. pleaded, it was holden, that the declaration charging the defendant as immediate heir of A., and not mentioning the mesne descent, was proper (72).

The plaintiff being presumed a stranger to the defendant's pedigree, it is not necessary for him to state in the declaration how the defendant is heir.

Of the Pleadings.-Riens per descent.-To this action the heir may plead, that he has not, nor had at the commencement of the suit, any lands or tenements by hereditary descent from the ancestor in fee simple". This plea is usually termed a plea of riens per descent.

Replication. The common replication (73) to the preceding plea is, that the defendant had assets by descent in fee simple; upon which issue is usually joined. Upon this issue (74) the plaintiff must prove assets', but proof of assets in the county of A. will support an allegation of assets in the county of B.; for assets or not, is the substance of the issue, and the place is named only for conformity.

g Denham v. Stephenson, Salk. 355. i Case cited in 6 Rep. 47. a. h Doctr. pl. 181.

(72) As to what shall be assets by descent, see Serjeant Williams's note on Jeffreson v. Morton, 2 Saund. 7. To the cases on this subject, there collected, may be added the case of Doe v. Hutton, 3 Bos. & Pul. 643. in which Lord Alvanley delivered a very elaborate judgment of the court.

(73) Except where the plaintiff takes advantage of the repli cation given by stat. 3 and 4 W. and M. c. 14. s. 6. for which see post, p. 567.

(74) Upon this issue the heir may give in evidence a bond, acknowledged by his ancestor to the king, and an extent thereon against the heir, [to the amount of the assets descended]. Per Holt, C. J. Horne v. Adderley, Lord Raym. 735. But the extent only without the production of the bond, or examined copy thereof, is insufficient, per Holt, C. J. Sherwood v. Adderley, Ld. Raym. 734.

Upon this issue a question frequently arises, whether the heir takes by purchase or descent, with respect to which the following rules may be observed: If lands are devised to the heir, and the devise does not make any alteration, either in the tenure, quality, or limitation, of the estate; that is, if the devise conveys to the heir the same estate as the law would cast on him by descent, then the heir takes by descent, although by the terms of the devise there is either a possibility of a charge, or an actual charge and incumbrance on the lands', as payment of debts and legacies, and the like (75).

The language of the plea being, that the defendant had not any lands by descent, at the time of the original writ brought, or bill filed against him, it is evident that the defendant cannot avail himself of an alienation pending the suit, and that the lands so aliened will still remain charged". If upon issue joined on the plea of riens per descent", the plaintiff prove that lands came to the defendant by descent, and the defendant give in evidence a conveyance of the same lands by himself to a stranger, before action brought, the plaintiff may, to encounter this evidence, prove that the conveyance was fraudulent, and therefore void by stat. 13 Eliz. C. 5.

Liability of Heir under Stat. 3 & 4 W. & M. c. 14.-At the common law, if the heir had made a bonâ fide alienation of the lands descended, before action brought, he was discharged, 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; but now, by stat. 3 & 4 W. & M. c. 14. s. 5. the heir is rendered liable in an action of debt, to the value of the land aliened before action brought or process sued out 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 land, bonâ fide,

k Clerk v. Smith, Salk. 241.

1 Allom v. Heber, Str. 1270. and 1 BI.

R. 22.

m 1 Inst. 102. a. b.

Gooch's case, 5 Rep. 60. a,

o Termes de la Ley, v. Assets.

p Per Comyns, B. in Crew v. Ld. Kilmain, Exchequer, T. 5 and 6 G. 2. MSS.

g Per Ld. Macclesfield, Ch. in Coleman v. Winch, 1 P. Wms. 777.

(75) Charging land with the payment of an annuity or rent, will not prevent the heir's taking by descent, per Holt, C. J. in Emerson v. Inchbird, Lord Raym. 728.

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