Page:Harvard Law Review Volume 4.djvu/136

120 120 HARVARD LAW REVIEW. very precarious ; for, first, if the heir sold the land which had descended to him before he was sued upon a bond of his ancestor (an action actually brought against the heir was notice to a pur- chaser), the right of the creditor was entirely defeated. He could no longer proceed against the heir, for his execution (as we shall see) was only against the land itself; and he could no longer have an execution against the land, for it had become the property of the purchaser. Secondly, after lands became devisable,^ a debtor could entirely defeat his creditors' rights against his land by devising the latter; for the creditor would then have no right against the heir, as the latter would inherit nothing from his ancestor, and he would have no right against the devisee, as the latter would be under no obligation to him. These two mischiefs were, however, remedied soon after the English Revolution, by 3 & 4 Wm. & M. c. 14. What was the remedy at law of a specialty creditor against an heir? In some respects it was very similar to his remedy against the executor, but in other respects it was materially different. First, the creditor brought an action of debt against the heir upon the bond ; but as the heir was personally liable, the action was in the debet et detinety — not in the detinet only, as in case of an action of debt against an executor. Secondly, if the heir had no assets by descent, he must plead that fact as an affirmative defence ; ^ otherwise it would be assumed that he had sufficient assets.^ If he did so plead, and the plaintiff traversed his plea, and issue was joined upon the traverse, the question at the trial was, whether the heir had any assets by descent. If the jury found that he had not, of course their verdict was in his favor ; but if they found that he had assets, to ever so small an amount, they must find a verdict for the plaintiff, on which the latter would have judgment for his entire debt against the heir personally.* If the heir had some assets, but yet wished to guard against any liability beyond such assets, he must plead that he had no assets except what were specified in his plea, 1 By 32 Henry VIII.c. i. 2 The plea by which such a defence is set up is called a plea of riens per descent. See supra, p. no, n. (i). 3 Henningham's Case, Dyer, 344^; Brandlin v. Millbank, Carth. 93, Comb. 162; Smith V. Angel, 7 Mod. 40, i Salk. 354; 2 Ld. Raym. 783; Hinde v. Lyon, 2 Leon. 11 ; Diivy V. Pepys, Plow. 438 a. a general j udgment against the heir.
 * 21 E. 3, 9/^, cited in Davy v. Pepys, Plow. 438 a, 440. Such a judgment is called