Cohoons v. Purdie, Ex'r, 3 Call 431

LYONS, Judge. Delivered the resolution of the Court, that there was no error in the judgment of the District Court, and, therefore, that it was to be affirmed. He added that, speaking for himself only, he thought that the plea having been found to be false, a peremptory judgment against the defendant followed of course.

That the act of Assembly was a copy of the statute of the 3 and 4 W. & M. ch. 14; which allows the plaintiff, on a plea of riens per descent, to reply, that the defendailt had lands from his ancestor, before the original writ brought, or bill filed; and, if found for the plaintiff, the jury are to enquire into the value of the lands so descended; and, thereupon, the Court is to give judgment for the value. But, that the plaintiff here, has not, as empowered by the statute, replied, that the defendant had lands before *the original writ was sued, but that he had other lands by descent, sufficient to pay the debt.

In which case, the jury need not set out the value of the lands descended, but it is enough for them to find that the lands came by descent, sufficient to answer the debt and damages. Nor is there any hardship in all this: For, the heir, if he really has assets, should disclose them, at once, and set forth their value: He ought not to plead a plea, at the common law, false in itself, and then endeavor to protect himself under the statute. For, that gives him a double de-fence, under the same plea; one at the common law, the other under the statute. Judg'ment affirmed.