a report of a judgement give in the common bench in easter term in the fifteen  year of the reign of queen Elizabeth and of execution thereupon in a action of  debt bring by John davy against fermer Pepys son and heir of Thomas Pepys upon  a obligation of pound make by the say Thomas Pepys to the say John Davy and  the record be as follow lone see in re Lacey Ch easter term Elizabeth rot  London if in debt against a heir upon the obligation of his ancestor the  defendant confess the action and show the certainty of asset which he have by  descent judgement shall be special to recover the debt of the land descend S c  cite die pl S p die pl declaration same precedent raze Entr b pl fermer Pepys  late of SouthCreak in the county of Norfolk gentleman son and heir of Thomas  Pepys gentleman late call Thomas Pepys of SouthCreak in the county aforesaid  gentleman be summon to answer John Davy gentleman otherwise call John Davy of  among otherwise call Mountjoy in the county aforesaid gentleman of a plea that  he render to he pound which he owe he and unjust detain c and whereupon the  same John by Christopher crow his attorney say that whereas the aforesaid  Thomas in his lifetime who son and heir the aforesaid fermer be the that day  of January in the ten year of the reign of the lady the queen now at London in  the parish of the bless mary of the arch in the ware of Cheap by his certain  write Obligatory grant himself to be bind to the same John in the aforesaid  pound to be pay to the say John at the Feast of saint Michael the Archangel  which shall then be in the year of our Lord and to the same payment well and  faithful to be make the aforesaid Thomas bind himself and his heir by the same  write nevertheless the aforesaid Thomas in his lifetime and the aforesaid  fermer son and heir of the say Thomas after the death of the same Thomas  although often request the aforesaid pound to the same John have not yet  render but the same to he hitherto to render have refuse and the aforesaid  fermer the same to the same John to render yet do refuse wherefore he say that  he be damnified and have damage to the value of pound and therefore he bring  the suit c and he produce here in court the write aforesaid which testify the  debt aforesaid in form aforesaid the date whereof be the day and year  abovesaid c defendant confess the action show the certain of asset by descent  judgement and the aforesaid fermer by Thomas may his attorney come and defend  the force and injury when c and say that he can deny the action aforesaid of  the aforesaid John nor but that the write aforesaid be the deed of the  aforesaid Thomas his father nor but that he owe to the aforesaid John the  aforesaid pound in Plowden er p form as the same John above against he have  declare yet the same fermer say that he have not any land or tenement in  feesimple by hereditary descent from the aforesaid Thomas his father nor have  the day of obtain the writ original of the aforesaid John nor ever afterward  beside the rectory of SouthCreak with the appurtenance and sixteen acre of  land with the appurtenance in SouthCreak Sidistern and Scoulthorp in the  aforesaid county of Norfolk of the Plowden yearly value of and this he be  ready to verify wherefore he pray judgement if he as son and heir of the  aforesaid Thomas of the debt aforesaid except in the aforesaid rectory and  sixteen acre of land with the appurtenance in SouthCreak Sidistern and  Scoulthorp aforesaid by virtue of the write aforesaid ought to be charge c  therefore it be consider that the aforesaid John do recover against the  aforesaid fermer his debt aforesaid to be levy of the aforesaid rectory and  sixteen acre of land with the appurtenance in SouthCreak Sidistern and  Scoulthorp aforesaid and his damage by occasion of the detention of that debt  to S to the same John with his assent by the court here adjudge and the  aforesaid fermer ill mercy c but because it be not know how much that rectory  and those sixteen acre of land be worth by the year in all issue beside  reprize the sheriff be command that by the oath of good and lawful man of his  bailiwick he diligent inquire how much the rectory and sixteen acre of land  aforesaid with the appurtenance be worth by the year in all issue beside  reprize and that inquisition by he thereupon be diligent make that he deliver  the same rectory and sixteen acre of land with the appurtenance accord to the  true value of the same to the same John without delay to hold to the same John  until the debt and damage aforesaid thereof he shall have levy and how c the  sheriff make appear here from the day of the holy Trinity in fifteen day c  upon this judgement give the plaintiff pray a writ to have execution accord to  the judgement whereupon he have a writ which be not serve and afterward he  pray other alias writ of execution upon the forgo judgement Elizabeth by the  grace of God of England France and Ireland queen defender of the faith c to  the sheriff of Norfolk greeting whereas John Davy gentleman otherwise call  John Davy of among otherwise call Mountjoy in the county aforesaid gentleman  in our court before our justice at Westminster by the consideration of the  same court have recover against fermer Pepys late of SouthCreak in your county  gentleman son and heir of Thomas Pepys gentleman late call Thomas Pepys of  SouthCreak in the county aforesaid gentleman as well a certain debt of pound  as S which to the same John in our same court be adjudge for his damage which  he have by occasion of the detention of that debt whereof he be convict to be  levy of the rectory of SouthCreak with the appurtenance and of sixteen acre of  land with the appurtenance in SouthCreak Sidistern and Scoulthorp in your  county which to the aforesaid fermer descend in feesimple from the aforesaid  Thomas his father as by the record resident in our court before our justice at  Westminster manifest appear but because it be not know how much the aforesaid  rectory and sixteen acre of land with the appurtenance be worth by the year in  all issue beside reprize we command you as we have otherwise command you that  by the oath of good and lawful man of your bailiwick you diligent inquire how  much that rectory and those sixteen acre of land with the appurtenance be  worth by the year in all issue beside reprize and that inquisition by you be  diligent make that you deliver the same rectory and sixteen acre of land with  the appurtenance accord to the true value of the same to the same John without  delay to hold to the same John until the debt and damage aforesaid thereof he  shall have levy and how you shall have execute this our precept do you make  appear to our justice at Westminster from the day of saint Michael in one  month and have you there the name of they by who oath you shall make that  inquisition and this writ witness James dyer at Westminster the d day of June  in the fifteen year of our reign the follow seem to be the observation of the  reporter upon the forgo record point the election which the obligee have to  sue the heir or executor or administrator of the obligor but not both upon  this record diverse thing be observable first Plowden er p a m Edward a per  Pigot et Danby m h a b per Ashton and pl lev Bac Abr fide die pl a that when a  man bind himself and his heir by obligation to pay a certain sum a day and die  it be at the election of the obligee to sue the heir or the executor or b S p  lev Davies v churchman adjudge b administrator of the obligor c S p and pl lev  contra Plowd quaer but ancient from the Edward till h if a executor have asset  the heir be not Chargeable but in h the law change in this point for now it be  account his own debt Poph per Doddridge I bendl c and if so be that the  executor have asset in their hand yet the obligee may sue the heir if he will  because the obligor have bind as well his heir as himself and so if the  executor have asset and the heir also have asset it be at the election of the  obligee to have his debt of either the one or the other as he please d S p lev  Mod Entr pl d but he shall not charge they both for if he be satisfy by the  one the other shall be discharge by hearing complaint e S p ante h e and in  the suit against the heir the plaintiff shall not surmise that the executor  have not asset in their hand f see what be say above at c see h h pl bro debt  m Edward a where in debt against a abbot and commoigne upon the contract of  the commoigne before his entry into religion the abbot plead that the  Commoigne have make his executor who have asset and hold a good plea f but if  the heir will take benefit thereof former he ought to have plead it as we find  it do in some ancient book but at this day it be no g bro debt and herewith  agree t Edward pl t Edward a per Bryan die pl lev Davies v churchman adjudge  ibidem g plea for in m h b in debt against the heir he plead asset in the hand  of the executor the day of the writ purchase and there vavisor say that such  plea be not good wherefore the defendant plead nothing by descent h Bac Abr h  but until the statute of h the king can not touch the land or the heir of his  debtor for his debt if the good of the debtor have be sufficient to satisfy  the debt and this be by reason of the statute of but note before this statute  it seem that the king prerogative extend to the land of the debtor and that  this be a act of grace and restraint Inst   b   b hob godb per dodder I cro I  comens great Charta cap the word whereof be we or our bailiff shall not seize  any land or rend for any debt Plowden as long as the present good and chattle  of the debtor do suffice to pay the debt and the debtor himself be ready to  satisfy therefore but other person be leave at large point where the judgement  to recover the debt against the heir shall be general of all l be land and  where special of the land descend only accord as he behave himself in plead  another thing observable upon the record be b roll Abr g pl die pl Poph per  Jones I Bac Abr b that if the heir confess the action and show the certainty  of asset which he have by descent neither his body nor any of his good nor any  of his other land shall be Chargeable with the debt but only the land which he  have by descent for the judgement above be therefore it be consider that the  aforesaid John do recover against the aforesaid fermer his debt aforesaid to  be levy of the aforesaid rectory and sixteen acre of land with the  appurtenance so that the judgement be that the debt shall be levy of the land  wherein it be contain that no other shall be subject to the execution c cro e  per gawdy I ld raym per holt CJ and the book next before cite c but if the  heir do not confess the action and show the certainty ut above but plead d m  bro asset per descent roll Abr c pl n bendl pl   a W Jones Bulst keb sty per  roll CJ vent ld raym per holt CJ Bac Abr finch but now see the statute of W m  cap that upon this plea find for the plaintiff the jury shall inquire of the  value of the asset descend by which statute it seem the plaintiff shall only  recover pro tanto with respect to the value of such asset and shall not have a  general judgement against the heir as at commonlaw upon this false plea Carth  d nothing by descent or Plowden er p judgement be give by e ld raym per holt  CJ Bac Abr e default or by nient dedire or by f die b pl roll Abr c pl cro e  per gawdy I vent ld raym per holt CJ Bac Abr say contra finch finch die pl f  confession or upon any other matter or ground whatsoever without confess and  show the certainty of asset there the plaintiff shall have execution of his  other land or of his good or of his body by capias ad to give satisfaction as  he shall have for the debt of the heir himself if he have make the obligation  g bro asset per descent g and hereupon the case in h Edward b be to be  consider where in debt against the heir a obligation of his ancestor be put  forth and the defendant say that nothing descend to he from the same ancestor  and it be find by verdict that land descend tohim after the death of his  ancestor whereby the plaintiff recover and pray execution of all the land of  the defendant as well of his own purchase as of the tenement descend to he and  there green say he shall not have it for in a formedon in descender h herewith  agree m Edward pl Fitzherbert judgement   b h if the tenant plead in bar  warranty with asset and the demandant say that he have nothing by descent and  it be find that he have tenement by descent yet he shall not be bar of any  more than of that value which descend to he so here we shall not be charge but  of that which descend to we Wilby in the case of a formedon which you have put  he shall be bar of I bro bar with this opinion agree finch finch vin Abr title  heir c pl I all that Q have demand by his writ because the issue which he  offer be find to be false but if so be that the demandant have land by descent  but not to the value of that which be plead in bar against he there if he  plead he ought to confess that which be descend to he and demand judgement if  he ought to be bar of more than of the value thereof so that he ought to plead  in law and not join a false issue and so shall the defendant have plead in  this case to which hill and share there agree and afterward it be award that  the plaintiff shall have a elegit of the moiety of all the land of the  defendant as well of the land purchase as of those descend to he king S g cite  die pl and that the law be agreeable with this resolution upon a nothing to  say see die pl roll Abr c pl cro e per periam I pl more pl vent keb in margin  show ld raym Bac Abr but see the contrary die pl Poph per Jones I et crew CJ W  Jones finch finch king and in m Elizabeth roll in c b John killigrew sue a  action of debt in London against Martin Trewiniard son and heir of William  Trewiniard and declare upon a obligation of pound make by the say William and  the record say the aforesaid Martin by John Garnhouse this attorney come and  defend the force and injury when c and say nothing in bar or preclusion of the  action aforesaid of the aforesaid John whereby the same John remain against  the aforesaid Martin therein undefended therefore it be consider that the  aforesaid John do recover against the aforesaid Martin his debt aforesaid and  his damage by occasion of the detention of that debt to S d to the same John  with his assent by the court here adjudge and afterward the plaintiff have a  capias ad to give satisfaction against the say Martin Trewiniard and his body  be take by it and detain in execution and I be late of counsel in the king  bench with David Greenmith against one Thomas Brockhole son and heir of Thomas  Brockhole in a action upon a obligation of pound make by his father where upon  demurrer judgement be give against the defendant and the plaintiff have a  capias ad to give satisfaction and the defendant body be take in execution  whereupon he pay the debt and the record of the capias be in mich pound  Elizabeth the form Plowden er p whereof I have set down at the end of this  case l vin Abr title heir c pl l so that if the heir be condemned upon any  plea whatsoever or by default or without plea upon any cause whatsoever it be  the practice for the plaintiff to have execution of the body of the heir or of  his good or to have a elegit of his land whatsoever unless he confess the debt  and show the certainty of the land descend as in the forgo case of fermer  Pepys m S p vin Abr title heir pl m and there seem to be a diversity between  the case of the executor and of the heir for in debt against the executor if  he plead n finch finch n nothing in his hand or oh m Edward pl Fitzherbert  judgement bro executor m h pl bro executor show per dolben I finch finch say  contra p Edward a b per choke vide kelw pl oh not the deed of the testator or  the like and it be find against he there nothing shall be put in execution but  the good of the decease and the reason be because the debt be not the debt of  the executor but of the testator so that he be charge in another right and  have the good in another right but when the heir deny asset and it be find  against he or when he do not deny asset but plead other matter which imply  that he have asset the debt of his ancestor be become his own debt in respect  of the asset which he have in his own right and so the property of the land  which he Plowden have in his own right make the debt to be his own proper debt  for which reason the writ shall be in the p m h pl bro debt   a cro e W Jones  Leon Poph side vent bendl lev finch finch Bac Abr p debet et to hold off so  that there be a diversity between the case of the executor and the case of the  heir point if in debt against the heir upon the obligation of his ancestor the  defendant confess the action and show the certainty of asset which he have by  descent and judgement be give to recover the debt to be levy of the land  descend the plaintiff may have a writ of execution to have all the land  descend to the heir deliver to he which writ be ground upon the commonlaw and  not only to have a moiety of the land of the heir upon a elegit accord to the  statute of Westminster cap p die pl pl roll Abr d pl Bac Abr but until that  statute land be not liable at the commonlaw to the execution of a private  person for debt in any other suit but this against the heir p   b a Inst cro I  godb per dodder I Bac Abr Bac Abr another matter observable upon the forgo  record be the manner of the execution here give for the writ to deliver all  the land descend to the heir in execution to the debtee who have recover be  ground upon the commonlaw and not upon any statute but by the statute of  Westminster cap he that recover debt or damage may have a elegit whereby he  shall have the moiety of the defendant land deliver to he but not the whole Q  f n b f Inst   a Bulst godb Q and at the commonlaw the writ of to lift up  facias may be sue direct to the sheriff command that the aforesaid money of  the land and chattel of the aforesaid defendant you cause to be levy so that  you may have it in c such a day to the aforesaid plaintiff to be deliver by  which writ express that the sheriff shall levy the money of the land and  chattle it seem that he may take the r finch finch r rend Payable by the  tenant in execution for the debt and bring they into court but he can not  seize the land and deliver it to the party by this or any other writ at the  commonlaw unless in this special case of debt recover against the heir and  such writ as this be here in the case of fermer Pepys be rare to be find and  yet sometime it be touch in our book that upon recovery in debt against the  heir nothing shall be put in execution but the land descend for so say  Wichingham in S p Edward a bro asset per descent die pl S Edward see the book  of entry t raze Entr last edit foe b pl die b pl t title debt fol where a  action of debt be Plowden er p bring against the u Leon per dyer fide Bac Abr  u executor of the heir upon a obligation make by the father of the heir by  which it seem that the heir of the heir wonder contra hale on f n b b Po die  pl cro c as jenk S case vern Chan c hill car c b roll den v bell wonder shall  not be charge although the land continue in descent because he be not  immediate heir to the obligor for the last heir be in as heir to he only who  be last seize and not as heir to the obligor and there before the action of  debt lie against the executor of the first heir because the asset which  descend to he make the debt to be as a duty due by the heir yet quaere de hoc  here follow the form of the capias ad to give satisfaction against Brockhole  beforementioned foe the sheriff be command that he take Thomas Brockhole son  and heir of Thomas Brockhole of the parish of Cobham in the county of Surre  yeoman decease if c and safe c so that he may have his body before the lady  the queen at Westminster on Thursday next after the morrow of saint Martin to  satisfy David Greenmith gentleman natural and lawful son of Gilbert Greenmith  late of the parish of Hampton upon Thames in the county aforesaid of pound of  debt and also pound S d for his damage which he have sustain as well by  occasion of the detention of the same debt asfor his cost and charge by he  about his suit in this behalf expend whereof he be convict and have you then  there this precept c rooper and rooper the return of the same precept thereon  endorse by virtue of this writ to I direct I have take the body of the  withinnamed Thomas Brockhole who body at the day and place within contain I  have ready the answer of James Harvey and Thomas pullison sheriff the word  follow be also note under the writ by the secondarys own hand penny pay to the  party by r best with his own hand