
    *Cohoons v. Purdie, Ex’r.
    [Monday, October 17, 1803.]
    Action against Heir — Plea “No Assets.” — If, in an 'action against an heir, he plead, 'no assets by descent, nor at the time the writ issued, nor at any time since, except a tract of 107 acres of land;’ and issue is joined on the replication, that he had sufficient other lands by descent; and the jury find for the plaintiff, ‘the debt and one penny damages,’ a peremptory judgment will be rendered thereon.
    Purdie, as executor of Purdie, brought debt against the Cohoons, as heirs of Co-hoon, upon a bond given by their ancestor. Pleas. 1. Payment. 2. That the defendant had no assets by descent, nor had at the time the writ issued, nor at anjr time since, except a tract of 107 acres of.land. The plaintiff took issue on the plea of payment; and as to the second plea, replied, that the defendants had sufficient other lands by descent, from their ancestor: On which replication, the defendants took issue. The jury found a verdict for the plaintiff for the debt in the declaration mentioned, and one penny damages. The District Court gave judgment for the plaintiff; and to that judgment the defendants obtained a writ of supersedeas from this Court. »
    Bennet Taylor.
    The great error is, that the jury did not enquire of the value of the lands, according to the directions of the act of Assembly, R. C. 54, [c. 39, 13 Stat. Larg. 53, c. 105, R. C. ed. 1819;] for, the verdict only finds the debt, and not the value; which is a fatal objection, as the act is positive, that the value shall be enquired into: And, there is the same reason for it on the plea of nothing by descent, as in case of judgment by nil dicet; in which latter case, it will be admitted that it ought to be done.
    Wickham, contra.
    The objection is not material: For, by the decisions in England, the common law rule gave the plaintiff a right to judgment where the plea was found against him. 14 Vin. Abr. 241; To remedy which, the act was made requiring the defendant to set forth the assets in certain.
    But, here, the defendant does not deny assets altogether; he admits some, without setting forth the *value; so, that the defendant does not bring himself within the act, which relates to pleas of rien per descent, only. Of course, it depends upon the rule of the common law: which gives a peremptory judgment, on account of the false pleadings. [Smith et ux. v. Angelí, 7 Mod. 44, 2Ld. Raym. 783.] The verdict is for the debt in the declaration mentioned; which implies assets of value sufficient to-satisfy the demand; and, therefore, it may be extended into form, so as to conform to, and fulfil the object of the pleadings. [M’Murray v. Oneal,] 1 Call, 246.
    B. Taylor, in reply.
    That act makes a distinction between a plea confessing the action, but not the assets ; and a plea confessing the assets, but not the value: In the first case, the judgment is peremptory against the person, but not in the latter. The Court could not extend the verdict in the way contended for; because, the judgment is different, according to the nature of the plea; which giving the character of the case, the Court ought not to distort the verdict, against the nature and tenor of the pleadings.
    Cur. adv. vult.
    
      
      See Woodford v. Pendleton, 1 Hen. & M. 303.
    
   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.  