a report of a judgement give in the king bench in the term of saint Hillary in  the four and five year of the reign of king Philip and queen mary upon a  demurrer in law on a declaration by bill upon the case exhibit by richard  Norwood plaintiff against thomas Norwood and edward read executor of the  testament of Thomas grey defendant the record be to be see among the record of  easter term and p m rot and be as follow declaration be it remember that on  Wednesday next after fifteen day of easter this same term before the lord the  king and lady the queen at Westminster come Richard Norwood by Francis  Sandbach his attorney and produce here in the court of the sa id lord the king  and lady the queen then there his certain bill against Thomas Norwood the  elder and Edward read executor of the last will and testament of Thomas grey  in the custody of the marshal c of a plea of trespass upon the case and there  be pledge of prosecute videlicet John do and Richard roe which say bill follow  in these word London to wit Richard Norwood complain of Thomas Norwood the  elder and Edward read executor of the last will and testament of Thomas grey  in the custody of the marshal of the Marshalsea of the lord the king and lady  the queen before the say king and queen be for this videlicet whereas the  aforesaid Richard Norwood in the lifetime of the aforesaid Thomas grey  videlicet the second day of April in the second and three year of the reign of  the lord the king and lady the queen now at London in the parish of saint  sepulchre in the ware of Farringdon without at the special instance and  request of the aforesaid Thomas grey have deliver to the same Thomas grey to  the proper use and behoof of he the say Thomas grey forty shilling of lawful  money of England the same Thomas grey in consideration of the same forty  shilling to he as be aforesaid pay then and there to the aforesaid Richard  Norwood faithful promise and assume upon himself that he the same Thomas grey  his executor or assign shall well and faithful deliver to the aforesaid  Richard Norwood at Ramsgate in the isle of thanet in the county of ken sixty  quarter of wheat of full measure in manner and form follow videlicet on the  Feast of saint Andrew the apostle then next follow or within three week next  follow after the same feast twenty and five quarter of wheat of full measure  and on the Feast of annunciation of the bless virgin mary then next follow  other twentyfive quarter of wheat of full measure be the residue of the  aforesaid fifty quarter of wheat for thirty and three pound six shilling and  eight penny of lawful money of England to be pay to the same Thomas grey his  executor or assign by the aforesaid Richard Norwood in manner and form follow  videlicet sixteen pound thirteen shilling and four penny thereof to be pay  immediate after the delivery of the aforesaid twentyfive quarter of wheat to  be deliver on the aforesaid Feast of saint Andrew the apostle or within three  week next follow after the same feast as be aforesaid and other sixteen pound  Plowden thirteen shilling and four penny be the residue thereof to be pay  immediate after the delivery of the aforesaid twentyfive quarter of wheat to  be deliver on the aforesaid Feast of the annunciation of the bless virgin mary  as be aforesaid nevertheless the aforesaid Thomas grey who after the aforesaid  Feast of the annunciation of the bless virgin mary next after the assumption  aforesaid be alive at the parish of saint Peter in the isle of thanet in the  say county of ken his promise and assumption aforesaid not regard but the  aforesaid Richard Norwood in his behalf crafty and subtle intend to deceive  and defraud the same fifty quarter of wheat or any part thereof to the  aforesaid Plowden er p Richard Norwood although the same Thomas grey be often  request thereunto by the aforesaid Richard and although the aforesaid Richard  at the several time aforesaid on which the say wheat shall have be deliver in  form aforesaid be ready at Ramsgate aforesaid to receive the say wheat so as  be aforesaid several to be deliver and to pay to the same Thomas the aforesaid  several sum of money which he ought to pay immediate after the several receipt  of the wheat aforesaid in form aforesaid have not deliver but the same to  deliver to he whole refuse in his lifetime and also the aforesaid Thomas  Norwood and Edward read executor of the testament of the same Thomas grey to  who hand the money good and chattle which belong to the aforesaid Thomas grey  at the time of his death sufficient to satisfy as well all the debt which the  same Thomas grey owe to any person or person at the time of his death as to  satisfy the same Richard for the true value of the aforesaid fifty quarter of  wheat in manner and form aforesaid to be deliver after the death of the same  Thomas grey come and be in their hand at the time of obtain this bill after  the death of the say Thomas grey have whole refuse and yet do refuse to  deliver the same to the say Richard Norwood by reason whereof the same Richard  Norwood in his credit with diverse subject of the say lord the king and lady  the queen now and especial with Ralph man and Christopher Stransham to who the  same Richard Norwood have sell the say fifty quarter of wheat and to who the  same Richard Norwood rely upon the faithful performance of the promise and  assumption aforesaid have promise to pay and content the same fifty quarter of  wheat at a certain time now pass be great hurt and damnified and have damage  to the value of mark and therefore he bring the suit c defendant demurrer to  the declaration and the aforesaid Thomas Norwood and Edward read by John  Goldwell their attorney come and defend the force and injury when c and say  that the aforesaid rich rd his action aforesaid against they ought not to have  or maintain because they say that the declaration aforesaid of the aforesaid  Richard be insufficient in law to which the same Thomas Norwood and Edward  read have no necessity nor be by the law of the land in anywise bind to answer  wherefore for want of a sufficient declaration in this behalf they pray  judgement and that the aforesaid Richard maybe preclude from have his action  aforesaid against they the say Thomas Norwood and Edward read c joinder in  demurrer and the aforesaid Richard say that his declaration aforesaid be good  and sufficient in law to have and maintain his action aforesaid against the  say Thomas and Edward which say declaration the same Richard be ready to  verify whereunto the say Thomas and Edward do not answer nor she same hitherto  in anywise deny wherefore the same Richard pray judgement and his damage  aforesaid by reason of the nonperformance of the assumption and promise  aforesaid to be adjudge to he c and because the court of the lord the king and  lady the queen here be not yet advice of give their judgement of and upon the  premise day therefore be give to the party aforesaid before the lord the king  and lady the queen at Westminster until Friday next after the morrow of the  holy Trinity to hear their judgement of and upon the premise c because the  court of the lord the king and lady the queen here thereof not yet c the case  action on the case lie against a executor upon a simple contract of the  testator S p adjudge   Slades case   Pinchons case   a godb kercher case cro I  fisher v Richardson I roll r sander v esterby I side per cur I lev arguendo  theol dig lib cap Swinb Godolph Orph leg go off of exec Nels law witness law  of testament c say contra Yelv by all the judge of England see stat car cap  the plaintiff declare that the say testator in consideration of S to he pay by  the plaintiff promise and assume to deliver to the plaintiff fifty quarter of  wheat at a certain place and at two certain day for pound S d to be pay he by  the plaintiff by equal portion immediate after the delivery that be to say at  each of the day of delivery pound S d a d he declare further that the testator  live Plowden er p until after the last d that and that although the plaintiff  be ready at the place and day to receive the say wheat and to have pay  hismoney for it yet the testator do not deliver to he the wheat nor any part  thereof at the day and place c accord to the say assumption and also that the  defendant themselves to who hand the money good and chattle which belong to  the testator at the time of his death sufficient as well to satisfy all the  debt which he owe to any person whatever as to satisfy the plaintiff himself  for the say wheat in manner and form aforesaid to be deliver come and be in  their hand at the time of exhibit the bill after the death of the testator  have not deliver the same to the plaintiff but whole refuse to deliver they to  the damage of the plaintiff mark and upon this declaration the defendant  demurrer in law and it be argue in Michaelmas term in the four and five year  of the reign of the present king and queen by loveless and Gerard on the part  of the defendant and by fosset and manwood on the part of the plaintiff as I  hear for I be not present at all and it be debate whether or no a action on  the case lie against the executor upon such a assumption Plowden of the  testator which assumption it be say for the defendant be no other than a  simple contract and if the executor shall be charge by such a contract by the  same reason they shall be charge by every contract executory as well for debt  as for other thing for every contract executory be a   a more pl assumpsit in  itself and it will be inconvenient to charge they as well by contract make by  parole in pais as by specialty for of the former they can have knowledge and  further it be say that there be diverse precedent in this court which have be  show to you my lord that in such action as we be here bring against executor  the executor have plead in bar and upon the plead try for the plaintiff they  have recover yet this do not prove the law against we in our case we have  demurrer in law a Fitzherbert executor m h a per Cott theol dig lib cap keb  Vaugh Poph cro I Yelv side law of testament c Nels law witness cro e per  Fenner et Popham I but more pl report S c contrary and say that the matter  here urge be deny to be law to which agree the judgement in Hughsons case cro  e pl but the law be now settle agreeable with the argument here a for the book  of h say that in a action of debt bring against executor upon a simple  contract or the like wherein the testator may have wage his law if the  executor will not demurrer at first but will plead some other plea in bar  which be find against he he shall not take advantage of it in arrest of  judgement or by writ of error and therein the book agree with reason for when  the executor answer to the debt and avoid it by another plea he have lose the  favour give he by the law which will not force he to answer to it all because  it presume that he can not have knowledge of it be only a contract and  therefore for the ignorance which the law presume in executor it will not  compel they to answer to the debt but when they plead other matter in  discharge of it thereby they take upon they knowledge of the contract and go  about to discharge it by other matter than by ignorance and therefore by take  upon they knowledge of the contract they have lose the advantage which they  may have take in respect of the presumption in law of their ignorance of it  and so the precedent show to you stand well with the say book and do not make  against we for we have demurrer in law by which we do it take upon we any  knowledge of the contract but pray to have the benefit which the law have give  we for the presumption of ignorance or for some other cause and there be no  case rule touch our matter but one which be the case in b m h pl bro action  sur Le case executor vin title executor I a pl see keb side where it be say  that this be the first precedent of a action on the case against executor upon  the assumpsit of the testator and that it be adjudge upon great reason b h  where one bring a action upon the case against executor upon a promise make by  the testator that if one who buy some good of the plaintiff do not pay the  plaintiff for they he the testator will pay he for Plowden er p they and it be  adjudge as it be there report that the plaintiff shall recover against the  executor upon this action but it do not appear there whether the defendant  demurrer in judgement or not for perhaps they plead some matter in bar to it  after they have beard the opinion of some of the judge and if they do so and  it be try against they then be the case in point with what be mention above  and admit that judgement be there give upon demurrer yet please to hear what  Fitzherbert say in c t r pl bro action sur Le case b n c c h concern the same  case for he say thus I be of counsel with ne clement of London in a action  upon the case bring against executor upon the like matter videlicet upon a  contract without specialty and the case be adjudge with I by Fineux and  Conisby against the executor but I hold the law to be clear otherwise and that  they give that judgement without any advice but only upon their own opinion  and when one tell he that this case be in the report of h above mention  Fitzherbert say put that case out of your book for it be not law without doubt  so that it be say the authority of the say case in h be impeach by Fitzherbert  who be of counsel therein for the plaintiff for who the judgement be give  which he hold to be erroneous and he be a judge of great fame and indeed the  judgement there seem to be against the principle of law because such a  assumption be but a contract in pais as a contract of debt be and further it  be say that if the say book of h be law yet the declaration here be not good  for in the book of h the plaintiff surmise in his declaration that the  testator have leave to his executor asset to pay all debt and all legacy and  to content he also but here the plaintiff have only aver that the executor  have asset to pay all debt and to satisfy he and have omit to aver that they  have asset to pay the legacy and it be reasonable that legacy shall be pay  before such a duty as this be here and for this cause also it be say the bill  be insufficient on the other side it be say that the testator can not have in  a action on the case wager of law do not lie bro lie gager   Litt a   b Vaugh  I finch finch Wentw off of exec Nels law witness contra roll Abr g pl wage his  law in this case d   b cro I Poph Wentw off of exec d and where he can not do  that a action lie against his executor by the rule of the commonlaw at a  executor may not convert the residue of the testator good to his own use Inst    b a Swinb for it be not reasonable that if they have asset to pay the debt  and legacy and also to satisfy the plaintiff himself that they shall retain  the rest of the good to their own use and to pay this be no way prejudicial  but charitable and beneficial for the soul of the testator but to leave it  unpay be good to none but the executor and they ought not to have the benefit  of it for that be not the intent of the testator and they be no more than e    b Wentw off of exec e minister and distributor of the good of the decease and  by apply the benefit of his debt to themselves they be guilty of a breach of  that trust which the decease repose in they f   b f and the say judgement in h  be give by the court be not so easy to be reject by the say of Fitzherbert and  as to the objection videlicet that the plaintiff have omit in the declaration  to aver that the executor have asset over and above pay the legacy also the  justice have more cause to stay upon this than upon the principal matter and  they will do well to order the record of the say case in h to be search and  show to they which be do accord g see the record of the case recite at large    a g and the case be enter in mich term year h rot and it be between Oliver  Cleymond plaintiff and Robert Vincent and Thomasin his wife executrix of the  testament of Penson defendant and it be not demurrer in law upon the case but  the defendant plead in bar as appear by the record and the record be not h so  it be say   b Brownl in a action on the case against a executor upon a simple  contract of the testator the plaintiff needs not to aver that the defendant  have asset to pay legacy S p roll Abr I pl   b Brownl see Wentw off of exec h  as Plowden er p the book of report Plowden be as to the point of averment of  asset to pay legacy but the averment of asset in the record be only to pay all  debt and to content the plaintiff also and there be no averment of asset to  pay legacy contain in the record wherefore all the justice agree that the  declaration be good and that the executor shall be Chargeable to the plaintiff  and without solemn argument they give judgement for the plaintiff and that he  shall have a writ to inquire of the damage as appear hereafter by the record  at which day before the lord the king and lady the queen at Westminster come  the party aforesaid by their atorneys aforesaid and because the court of the  lord the king and lady the queen here be not advice of give their judgement of  and upon the premise day be give to the party aforesaid before the lord the  king and lady the queen at Westminster until Saturday next after the octave of  saint Michael to hear their judgement thereon because the court of the lord  the king and lady the queen here thereof not yet c at which day before the  lord the king and lady the queen at Westminster come the party aforesaid by  their atorneys aforesaid whereupon the declaration aforesaid and all and  singular the premise contain in the same be see and by the court of the lord  the king and lady the queen here more full understand and mature deliberation  be bad thereupon for that it seem to the same court of the lord the king and  lady the queen here that the same declaration be good and sufficient in law  therefore it be consider that the aforesaid Richard Norwood do recover his  damage by reason of the premise against the aforesaid Thomas and Edward note  here the judgement be give against the defendant general as if he have not be  executor not fix it upon the testator good and the debt itself be include in  the damage see Wentw off of exec but because it be unknown to the court of the  lord the king and lady the queen here what damage the aforesaid Richard have  sustain as well by reason of the premise as for his see Bac Abr Hardr cost and  charge by he about his suit in this behalf lie out therefore it be command to  the sheriff of London that by the oath of twelve good and lawful man of their  bailiwick they shall diligent inquire what damage the aforesaid Richard have  sustain as well by reason of the premise as for his cost and charge by he  about his suit in this behalf lie out and that they return the inquisition  which they shall take thereupon under their seal c and the seal c to the lord  the king and lady the queen at Westminster on Monday next after the morrow of  the purification of the bless mary together with the king writ thereupon to  they direct the same day be give to the aforesaid Richard there c it have be  great double since the say case in h be rule if the action here will lie by  law and if the say case in h be well adjudge or not Crompt I c a b ll and it  have be the opinion of many wise and learned man in our law that by the  ancient law the action be not maintainable against the executor in the case  above but that conscience have encroach this case upon the commonlaw but it  seem to be otherwise and also it seem that the action shall be maintainable  against the executor without surmise that they have asset to pay debt and to  satisfy the plaintiff also for it do not appear to the court that there be any  debt due by the testator and if there be any debt due by specialty to another  and the executor have not asset over and above it to pay the plaintiff the  executor may plead it in bar and to prove both these point note the case in    a Edward in journey north which there as follow videlicet Robert de t bring a  bill of debt against the executor of one d and the bill recite that the same d  their testator be bind to the aforesaid Robert in S by reason that one  geoffrey be bind to the say Robert in the say money for ten quarter of wheat  sell to he of which geoffrey the same Robert on a certain day year and place  demand the money aforesaid in the presence of the same d who executor they the  defendant be at which time he the same d grant to pay the same money at a  certain day for the same geoffrey at Plowden er p which day he request he to  pay it and he to pay c and it be say on behalf of the executor that Robert  demand this debt of they by force of a grant and show nothing for it wherefore  they demand judgement if to this bill they ought to answer Robert say that  this grant whereof he count be not without cause but that it be by reason of  the debt of geoffrey who be bind to we in this debt for a certain cause also  as our bill suppose and there it seem to its that you shall be drive to answer  to this grant upon such cause the executor say that they be entire stranger to  the cause and their testator likewise and therefore there be nothing to compel  they to answer but the grant which be insufficient thereto as they be advice  notwithstanding they be put to answer