An executor may confess a judgment to a creditor in equal degree with the plaintiff, pending the action, and plead it in bar; and though done for the express purpose of depriving the plaintiff of the debt, it is good both at law and in equity. 2 Saund. 51 (n). Tolputt v. Wells, 1 M. and S. 404. Pickstock V. Lyster, 3 M. and S. 375.

Where the defendant pleaded a judgment recovered, and the plaintiff replied that it was obtained and kept on foot by fraud, the judgment creditor was called by the defendant to prove that the debt was a fair one; but Eyre, C. J., rejected his testimony, observing, that by establishing the validity of his own debt, he made good his priority of claim to be paid out of the assets of the intestate, and that this was such an interest as rendered him incompetent. Campion v. Bentley, 1 Esp. 343.

Evidence in an action suggesting a devastavit.] If an executor, or administrator, in an action brought against him as such, admit assets by his pleading, he will not, in an action of debt on the judgment, suggesting a devastavit, be allowed to show that he has not assets; and it will be sufficient for the plaintiff, upon issue on the plea of non devastavit, to prove the former judgment and the return of nulla bona to the fieri facias. Erving v. Peters, 3 T. R. 685. Skelton v. Hawling, 1 Wils. 259. Where the defendant pleads non est factum testatoris, or a release to the testator, or payment by him, or non assumpsit, these pleas ad mit asset. 1 Saund. 335 (n). So a judgment for the plaintiff on demurrer, or by default, will be evidence of assets. Rock V. Leighton, 1 Salk. 310.

ACTIONS AGAINST HEIRS.

In an action of debt on the bond of the ancestor against the heir (which only lies where the heir is expressly named in the bond, Co. Lit. 209, a), the usual plea is riens per descent.

Evidence on plea of riens per descent.] Upon issue joined on the plea of riens per descent, the execution of the bond being admitted by the plea, the plaintiff must prove the assets by showing that the ancestor died seised of an estate in fee, and that it descended from him, as the person who was last actually seised, to the defendant as his heir. The seisin of the ancestor may be proved by showing that he was in possession of the lands, or in the receipt of the rents and profits, ante, p. 343. His death must then be proved, and that the defendant is his heir. See ante, p. 343. Where the lands have descended from the obligor to another who has died seised,

and from him to the defendant, the descent must be stated specially, as that the defendant was the heir of A. (who died last seised), who was the heir of the obligor; and so it must be where there have been several intermediate descents; for if the declaration be against the defendant, as heir of the obligor, and it appear in evidence on the plea of riens per descent, from the obligor, that the defendant is heir of the heir of the obligor, it is a fatal variance. 2 Saund.7, d (n), Jenks's case, Cro. Car. 151. But if the intermediate heirs have not had actual seisin of the fee which descended from the obligor, it seems unnecessary to notice them in the declaration. 2 Saund. 7, d (n). Kellow v. Rowden, Carth. 126. It is sufficient in the declaration to charge the defendant as heir generally, without stating how heir, and the plaintiff may show how heir in evidence. Denham v. Stephenson, 1 Salk. 355.

Evidence on plea of riens per descent-what are assets.] It is a general rule, that though the ancestor devise the estate to his heir, yet if he take the same estate in quality and quantity that the law would have given him, the devise is a nullity, and the heir is seised by descent, and the estate assets in his hands. 2 Saund. 8, d (n). Reading v. .Royston, 1 Salk. 242. So where the land is devised charged with the payment of a sum of money, Clarke v. Smith, 1 Salk. 241, or of debts. Allan v. Heber, 2 Str. 1270. So a rent in fee, issuing out of the heir's land, and descending to him, though extinct, for it has continuance for this purpose. Co. Litt. 374, b. So if there be a mortgage for years, the reversion in fee in the mortgagor is legal assets, and the plaintiff may have judgment with a cesset executio; but where there is a mortgage in fee, the equity of redemption is not legal assets. 2 Saund. 8, e (n). Plunket v. Penson, 2 Atk. 294. So a copyhold in fee is not assets. 4 Rep. 22, a. By the statute of frauds, 29 Car. II. c.3, s. 12, an estate pur autre vie, which comes to the heir as special occupant, is made assets by descent. Lands which descend in tail are not assets. 1 Roll. Ab. 269 (B). A reversion expectant on an estate in tail is not assets, upon the general issue of riens per descent. Mildmay's case, 6 Rep. 42, a; Kellow v. Rowden, Carth. 129. A reversion after an estate for life is quasi assets, but it ought to be pleaded specially by the heir, and the plaintiff may take judgment of it quando acciderit. Ibid. Dyer, 373, b.

If the defendant pleads riens per descent, and the jury find that he has something, however small it may be, and insufficient to discharge the debt, the plaintiff is entitled to a general judgment for the debt, damages, and costs, and to sue out the like execution against him as on a judgment for his own debt. 2 Saund. 7, a (n). It is, therefore, unnecessary to prove the value of the assets descended.

Evidence on plea of riens per descent—replication under stat 3 W. and M. c. 14, s. 5.] At common law, if the heir had bona fide aliened the lands, which he had by descent, before an action was commenced against him, he might discharge himself by pleading that he had nothing by descent at the time of suing out the writ or filing the bill, and the obligee had no remedy at law; 2 Saund. 7, e (n); though under this issue he might show that the heir had aliened the lands by covin. Ibid. Dyer, 149, a, margin. But by 3 W. and M. c. 14, s. 5, where any heir at law shall be liable to pay the debts of his ancestor, in regard of any lands, tenements, or hereditaments, descending to him, and shall sell, alien, or make over the same, before any action brought, or process sued out against him, such heir at law shall be answerable for such debt or debts, in an action or actions of debts to the value of the said land so by him sold, aliened, or made over, in which cases all creditors shall be preferred as in actions against executors and administrators; and such execution shall be taken out upon any judgment, or judgments, so obtained against such heir, to the value of the said land, as if the same were his own proper debt or debts, saving that the lands, tenements, or hereditaments, bonâ fide aliened before the action brought, shall not be liable to such execution. And by section 6, where any action of debt upon any specialty is brought against any heir, he may plead riens per descent, at the time of the original writ brought, or the bill filed against him, and the plaintiff may reply that he had lands, tenements, or hereditaments from his ancestor, before the original writ brought, or bill filed; and if, upon the issue joined thereupon, it be found for the plaintiff, the jury shall inquire of the value of the lands, &c. so descended, and thereupon judgment shall be given, and execution shall be awarded as aforesaid; but if judgment be given against such heir by confession of the action, without confessing the assets descended, or upon demurrer, or nil dicit, it shall be for the debt and damages, without any writ to inquire of the value of the lands, &c., so descended. When issue is joined on this replication (which may, it seems, be pleaded, though the heir has not aliened the lands), 2 Saund. 8 (n), the plaintiff, in addition to the usual proofs under the plea of riens per descent, must be prepared with evidence of the gross value of the lands descended, for if the jury neglect to find the value, the court will award a venire de novo. Jeffrey v. Barrow, 10 Mod. 18.

Evidence in action against heir and devisee.] At common law, if the ancestor had devised the lands, a bond creditor had no remedy against the devisee. But by stat. 3 W. and M. c. 14, s. 2, all wills and testaments, limitations, dispositions, or appointments, of or concerning any manors, messuages, lands, tenements, or hereditaments, or of any rent, profits, term, or

charge out of the same, whereof any person at the time of his or her decease, shall be seised in fee simple in possession, reversion, or remainder, or have power to dispose of the same by his or her last will or testament, thereafter to be made, shall be deemed and taken only as against such creditor or creditors as aforesaid, his, her, or their heirs, successors, executors, administrators, and assigns, and every of them, to be fraudulent, and clearly, absolutely, and utterly void, &c. And by section 3, in the cases before mentioned, every such creditor or creditors shall and may have and maintain his, her, or their action of debt, upon his, her, or their said bonds and specialties, against the heir and heirs at law of such obligor or obligors, and such devisee or devisees, jointly, by virtue of this act; and such devisee or devisees shall be liable and chargeable for a false plea by him or them pleaded, in the same manner as any heir should have been for any false plea by him pleaded, or for not confessing the lauds or tenements to him descended. And by section 7, all and every devisee and devisees, made liable by this act, shall be liable and chargeable in the same manner as the heir at law, by force of this act, notwithstanding the lands, tenements, and hereditaments to him or them devised shall be aliened before the action brought. By section 4, devises for payment of debts, and portions of children, in pursuance of a settlement before marriage, are excepted from the operation of the act. An action of covenant did not lie against a devisee under this act, Wilson v. Knubley, 7 East, 128; but see the provisions of 11 Geo. IV.and 1 Wil. IV. c. 47; nor does the act extend to any settlement or disposition made by the obligor by deed in his lifetime. Parsloe v. Weedon, 1 Éq. Ab. 149, 2 Šaund. 8, ė (n).

The act of W. and M. is repealed by 11 Geo. IV. and 1 Wil. IV. c. 47. The cases on the former statute are applicable to the new act, which re-enacts the provisions of the old one, and extends the remedy against the heir and devisee to the case of covenants and other specialties.

ACTIONS AGAINST JUSTICES.

In an action against a justice of the peace, the plaintiff, in addition to his other proofs, must prove the delivery of a notice under 24 Geo. II. c. 44, and the commencement of the action in proper time.

By 24 Geo. II. c. 44, s. 1, no writ shall be sued out against, nor any copy of any process at the suit of a subject, shall be served on any justice of the peace, for any thing by him done in the execution of his office, until notice in writing of such

intended writ or process shall have been delivered to him, or left at the usual place of his abode by the attorney or agent for the party who intends to sue, or cause the same to be sued out or served, at least one calendar mouth before the suing out or serving the same, in which notice shall be clearly and explicitly contained the cause of action which such party hath or claimeth to have against such justice of the peace; on the back of which notice shall be indorsed the name of such attorney or agent, together with the place of his abode.

By section 5, no evidence shall be permitted to be given by the plaintiff of any cause of action, except such as is contained in the notice thereby directed to be given.

To what cases the statute extends.] It has been frequently observed by the courts, that the notice which is directed to be given to justices and other officers, before actions are brought against them, is of no use to them when they have acted within the strict line of their duty, and was only required for the pur pose of protecting them in those cases where they intended to act within it, but by mistake exceeded it. Per Lord Kenyon, Greenway v. Hurd, 4 T. R. 553. It has uniformly been held, that where a party bonâ fide believes or supposes he is acting in pursuance of an act of Parliament, he is within the protec tion of such a clause. Per Lord Tenterden, Beechey v. Sides, 9 B. and C. 809. Therefore, where a magistrate committed the mother of a bastard child, though two magistrates only have jurisdiction in such case, he was held entitled to notice, for he intended to act as a magistrate at the time, however mistakenly. Wheller v. Toke, 9 East, 364. So where he has authority over the subject matter of the complaint, though the place where the offence is committed is not within his jurisdiction. Prestridge v. Woodman, 1 B. and C. 12. So where a magistrate committed a driver for being on the shafts of a cart standing still, the act only authorizing commitment for riding on them. Bird v. Gunston, cited in Cook v. Leonard, 6 B. and C. 354. Where the capacity in which plaintiff acted is equivocal, as where a lord of a manor, being also a justice of peace, seized a gun in the house of an unqualified person, it will be presumed that he acted as a justice. Briggs v. Evelyn, 2 H. Bl. 114. But where the act in question has not been done in the capacity of justice, and cannot be referred to that character, but is wholly diverse intuitu, notice is not required: thus where a justice of the peace, who was also a mayor of a borough, received a fee for granting a license to a publican, it was held that such fee could not have been taken by him in his character of justice, and that he was not within the statute. Morgan v. Palmer, 2 B. and C. 729. So in an action against a person to recover a penalty for acting as a justice of the peace, not being duly qualified, no notice need be proved.