case berwick against andrews easter term whether roll refer to Twycross v  grant c p d if a plaintiff recover against a administrator and die his  executor may maintain debt on the judgement upon a suggestion of a devastavit  by the defendant in the lifetime of the testator S c salk S c holt S c ld ray  error of a judgement upon nil to say in the common plea the case be a executor  bring a action upon a judgement obtain by the testator suggest a devastavit in  the lifetime of the testator and it be object that this carry it a step far  than the case of Wheatley modern er p v lane sand a for there the action be  bring by the party to the judgement and to who the wrong be do whereas this be  first by one that be no party to the judgement for if he will sue execution  upon this judgement he must have first make himself party by a judgement on a  to know facias and next by one to who the tort be not do and this be a  personal tort that ought to die cum mask and that this matter ought not to go  a step far such action will not lie upon a bind suggest a devastavit vent lev  keb b and it be for a wrong do to the testator a action ought not to lie for  it for the executor no more than it will lie against a executor of a executor  de son tort till the statute of car c Montague contra rely upon the reason of  the case of Wheatley v lane and that of Cluther v thin side n Lut c holt chief  justice the defendant be the party against who the recovery be and judgement  be de good testator against he and it be suggest that he have waste this be  what the plaintiff testator may have do sure if a escape be in the lifetime of  modern the testator the executor may have debt against the jailor for it but  such action will not lie against a executor nor will this action lie against  the defendant executor here as be adjudge in this court in hale time because  it be a personal tort which die with the person and it be compare to the case  of a escape by the sheriff for which debt do not lie against his executor  though it do against himself but in case of escape the action always lie for  the executor even where it be in his testator time and shall not the executor  of a parson have debt against a parishioner for not set out tithe side d the  cause why be shall have debt be because it be a injury do to his right and  therefore within the equity of the statute de good asportatis and a quare  hinder lie for a executor upon that statute in case he bring it within six  month after the avoidance and upon this judgement he may have sue a to know  facias and after judgement therein have a become facias suggest a devastavit  now this action be in lieu of a to know facias Powell justice hale use to say  that this action ought not to be suffer but when there be a judgement to  support it and this be within the equity of the statute de good asportatis  Edward c gold and powys justice accord the difference be where it be a tort  annex to good then it be within the statute because it arise ex fault mix with  a rightWhere the cause of action be money due or a contract to be perform or  gain or acquisition by the labour or property of another or a promise by the  testator or intestate express or imply the action survive against his personal  representative but if it be a tort or arise ex fault suppose to be by force  against the peace or where the plea to the action must be that the testator or  intestate be not guilty the right of action die with the person Hamble v Trott  Cowp a and Powell justice say that the better opinion be that a action on the  case will not lie for a executor for the false return of a process of  execution holt chief justice I have know the contrary adjudge but then a  exception be take to the declaration that it be not allege that the debt be  not satisfy but only that the testator nor plaintiff can not have execution of  the judgement but it may be they be satisfy without execution holt chief  justice the foundation of this action stand upon two thing videlicet the debt  not be satisfy and the waste and in all action of debt it be incumbent upon  the plaintiff to show that the debt be due Powell justice if the plaintiff  have be pay the waste the asset can be no devastavit as to he and if issue be  take upon devastavit or not the defendant may give payment to the plaintiff in  evidence modern quod holt chief justice to say no because the waste the asset  the debt be not satisfy be the cause of action and if the debt be pay the  issue ought to come upon that that be a nothing debet which may be well plead  though this be a modern er p debt upon judgement because this be matter of  fact and if you traverse the devastavit you admit the nonpayment and be  compare it to the case of debt against a sheriff for a escape in which you  must show the debt not to be satisfy suppose a defendant in execution pay the  plaintiff and no satisfaction be enter on record and the sheriff suffer he to  escape and debt be bring against he for it he can take advantage of that  payment and at last the record of the case of Wheatley v lane sand S c lev S c  side S c keb b be bring into court agree exact with this declaration and the  plaintiff have judgement