berwick vers andrews Intr pasch Ann b r rot see Twycross v grant c p d SC Mod  salk holt one executor may bring debt against another suggest a devastavit in  the life of his testator on a judgement recover by the testator against the  defendant in debt by a executor set forth that his testator have recover a  judgement Lord Raymond er p against the defendant as administrator of I S and  suggest that the defendant have commit a devastavit in the life of the  plaintiff testator so that neither the testator nor the plaintiff can have  execution of the say judgement per quod action to grow progressively to the  plaintiff judgement herein be give against the defendant in the common plea by  default and thereupon a writ of error be bring Mr king for the plaintiff in  error insist that the executor can maintain this action for a waste do in the  life of his testator for the executor ought to make himself a party to the  original judgement by a judgement on a to know facias bring by himself against  this administrator before be can maintain a action of debt upon a suggestion  of a devastavit in his own time this method of proceed by action of debt be a  late practice and the first judgement be obtain with difficulty videlicet the  case of Wheatley against lane sand lev which be a action bring by the party  himself who obtain a judgement against the executor and therefore for the  objection Lord Raymond urge in that case it have be since resolve that action  of this nature shall not be carry far than that resolution as in the case of  Ent v wither Ventris lev Keble where it be adjudge that such a action will not  lie against a executor upon a bind of the testator before any judgement  recover against the executor and so it be resolve in this court pasch will  between Crosby and jeer where a action of debt suggest a devastavit be bring  upon a judgement recover against the intestate before any judgement recover  against the administrator himself and upon a demurrer it be resolve that the  action be not maintainable but the present action be to carry it far than any  of those case for here the judgement be recover by the plaintiff testator and  the waste be suggest to be do in his time now this waste be a personal wrong  do to the testator whereas the foundation of the action be that the party  himself who bring the action be entitle to the estate of the testator by  matter of record and so the waste by the executor be a wrong to he but here  the plaintiff have no title to a execution till he obtain a award of it on a  to know facias so that the waste before he have a right to sue execution can  be no injury to he and consequent he can have no action and he have find his  action on no other damage but that by the waste he can not obtain satisfaction  of the say judgement by sue execution this action be against a rule of law  action personalia noritur she mask No action lie at the commonlaw against the  executor of a executor for a devastavit of the first executor upon the reason  of that rule but it be give by the statute of Charles car c 7 s a but the  statute do not extend to this so that by consequence this action be not  maintainable not be help by that or any other Act of parliament Mr Montague  for the defendant in error urge that this action will lie the same objection  that it be action personalia be make in the case of Wheatley vers lane sand  side and there full answer for though the action arise from a tort yet this  tort vest a interest in the party as in case of subtraction of tithe on the  statute of Edward Edward c b and of a escape out of execution where the  executor for that reason shall maintain a action of debt for the subtraction  or escape in the time of his testator this action go no far than the former  case the case of Cory vers thin side be this case in point for the plaintiff  there be executor to he that have obtain the judgement holt chief justice but  the executor in that case have recover a judgement in his own name on a to  know facias on the principal judgement Lord Raymond Montague the tort vest a  debt in the party wrong and then it survive to the executor as on the statute  of Edward and the same objection as be make now be make in the case of  Wheatley and lane and there overrule by the judge so that this case in effect  be already determine holt chief justice sure this action will well lie and as  well for the executor as for the testator himself and indeed it be the same  thing for this action be bring against the same person against who the  recovery be bad and by that recovery asset be admit and then the defendant  have waste you agree this action may be maintain by the testator himself but  you say it will not go to his executor because it be a personal wrong which  die with he but be not a mere personal injury this action be find on the same  reason as a action of debt by Lord Raymond er p the executor for a escape out  of execution in the time of the testator it be true no action lie against the  executor of a executor for the waste of the first executor before the statute  because it be only a wrong commit by the executor and so no action lie against  a executor for a escape out of execution in the time of his testator for it be  a wrong do by another person for which he shall not answer nor shall his  estate be liable a executor may vide ante Com Administration b d Edward vol p  a maintain a action on the case at the commonlaw for a escape out of execution  in the time of the testator but not d send for Mod vide Com Administration b d  Edward vol b for a escape on mesne process so a r send for cro Elizabeth vide  Com Administration b d Edward vol p c executor of a parson shall have a action  of debt on the statute of Edward for subtraction of tithe in the time of the  testator these be injury to the testator right and within the equity of the  statute of Edward E D c d de good asportatis in Vita testator so a action on  the case for a escape in the time of the testator a quare hinder for a  disturbance in the life of the testator be give to the executor by the equity  of that statute in the case of Crosby and jeer there be no judgement against  the administrator and so it do not appear that he have asset and it be like  the case of Ent against wither Powell justice this action shall not be carry  far to charge the defendant without a judgement first recover against himself  and my Lord hale be of that opinion he be of counsel with the plaintiff in the  case of Cory against thin and tell I he have judgement for his client beyond  his expectation but now that action be settle this be not a personal wrong  which lie not against a executor as a action for a escape in the lifetime of  Lord Raymond the testator lie not against a executor but the statute of Edward  be a remedial law which have always be take by equity wherever there be a  matter of property in question it be bring within the statute oh here the  testator have a right in the asset in the defendant hand and the executor be  entitle to that right by a to know facias and this be within the reason of  good take c it be once a question whether a executor can maintain a assumpsit  upon a contract with the testator because it be find upon a breach of promise  but it be agree that he may because it be a wrong to the testator property and  estate and a interest in the testator powys justice agree gold justice agree  here be a debt arise ex fault holt chief justice upon this judgement this  executor may have sue avid Richard practice in b r a to know facias as  executor and upon that a become facias and may have have a devastavit return  thereupon and upon that a general judgement now this action be bring in lieu  of that proceed and that be the reason of this action on suggestion of a  devastavit but then a exception be take by Mr king to the declaration and upon  that it be adjourn vide Mod