cccvi alexander and the lady Gresham case debt for arrearage of annuity devise  asset Alice Alexander administratrix to her last husband bring a action of  debt for the arrearage of a annuity against the lady Gresham executrix of sir  Thomas Gresham her late husband incur in the lifetime of her late husband sir  Thomas Gresham the defendant plead that she have full administer the plaintiff  reply asset sure that the defendant have diverse good in her hand not  administer which be the good of the say sir Thomas at the time of his death  upon which they be at issue and it be find by special verdict that sir Thomas  Gresham be seize of diverse manor and other land in fee devise they by his  Leonard er p last will to his wife the defendant to use at her own pleasure  and by his say will request his wife to pay his debt and legacy and further it  be find that at the parliament hold Elizabeth a private act be make by which  it be enact that the say lady shall take upon her the charge of all her  husband debt and for the discharge thereof she shall sell so much land as will  yield so much money as will serve for the payment of the say debt and if she  shall fail therein that then certain commissioner shall be appoint for the  sale of so much land c and for all such debt as the say lady shall not  acknowledge to be good and true debt that then the creditor to who they be due  shall repair to the say commissioner and they shall determine both of the  certainty of the sum of the due debt and of the damage for the forbear thereof  and that afterward the say creditor shall have their remedy against the say  lady for such sum of money so agree upon by the say commissioner and find the  statute at large and that the say lady Gresham have sell certain land parcel  oh f the possession of the say sir Thomas by which sale she have receive the  sum of twenty thousand pound which yet be unadministered for the great part of  it and if upon the whole matter the say sum of twenty thousand pound be asset  then they find for the plaintiff but if not then for the defendant and it be  move by Hammon sergeant that here be asset upon this matter and that by the  commonlaw for it appear upon the will that the land be devise to the lady to  the intent that she shall pay his debt and although the word of the charge be  that the testator request the lady to pay his debt the same in a will do  amount to a condition and so the meaning of the devisor appear to be that the  Leonard money which be levy by such sale shall be asset c h a man make a feoff  in fee to diverse person upon condition that they sell the land and the money  thereof come distribute for his soul the feoff die the feoff who be also  executor of the feoff sell the land the money thereof come be adjudge asset  and see h and although it be not asset by the commonlaw yet it be asset by the  special statute which ordain that he shall be charge with the debt and that  the land shall be sell and it be find by the verdict that such land be sell  and such money levy upon the sale which be administer and although the say  twenty thousand pound be never the good of the testator yet as the case be h  if executor recover damage in trespass of good take away in the life of the  testator such damage so recover be asset so if executor redeem a pledge with  their own proper good the same be asset in their hand by king mill vavasour  and fisher h and where the executor take of one who be indebt to their  testator in a simple contract the same be asset e and see many case of such  special asset Elizabeth n Plowdens comment in chapman and Daltons case it have  be object that the special asset enact by parliament do not maintain the  general asset intend in the issue but be conceive the same be well enough as h  in a action upon the statute of h for that the defendant have occupy land to  farm against the statute the defendant plead non to hold ad strong contra form  to cause to stand and give in evidence that he have take to farm for the  maintenance of his house the same be a good evidence and shall maintain the  issue for be do not occupy against the form of the statute for there be a  clause in the statuteto that purpose puckering sergeant to the contrary that  it can be say asset by the statute and that the plaintiff upon this general  issue shall not take advantage of the special asset enact by parliament and  here the plaintiff have not pursue the statute for in case the defendant will  not confess the debt by the statute the commissioner ought to determine of it  and assess damage for the forbear and then the party be to have her remedy for  all as shall be so determine by the commissioner by action of debt and because  the plaintiff have not follow the say statute those twenty thousand pound  shall not be asset as to her for they be not agree of the debt nor of the  damage for it but the commissioner be to appoint sale of the land so as the  money arise of the sale of any land shall not be asset but of such land which  have be appoint to be sell by the order of the commissioner and as to the  commonlaw the same be not asset but where land devise to be sell by the  executor for the payment of debt and legacy in such case the money arise of  Leonard er p such sale be asset and see Elizabeth dyer a man devise his land  to be sell by his executor and that the money thereof come shall be dispose in  payment of legacy express in his will the land be sell by Catlin dyer and  sander the money thereof come be asset but Ph mark dyer the law be otherwise  take where a man devise that his executor shall sell his land and that his  daughter shall have such portion out of the money thereof come the land be  sell accord the daughter sue the executor in the spiritual court in that case  a prohibition lie for it be not a legacy testamentary but out of the land c  and also in the principal case the land be not devise to be sell but there be  only a request to his wife that she will pay his debt without any condition or  express direction or limitation h land devise to executor to sell and the  money thereof come to be divide between his child the money shall not be asset  and if it be not asset by the commonlaw but special asset by a special law the  Leonard plaintiff ought to have show the same in his declaration and then to  have maintain against the defendant the say special asset upon the statute as  if in debt upon a obligation the defendant will plead non be factum and give  in evidence the statute of h the same shall not maintain his plea of non be  factum but he ought to have plead the special matter in bar and see h so the  plaintiff here ought to have in her replication show the especial matter upon  the statute Anderson and walmesly conceive that the same be asset within the  stat and that the defendant be Chargeable as executrix otherwise there be no  remedy and the act confirm her to be executrix and ordain that she shall take  upon her the charge of payment of debt and that the good and all the money  which come by sale of the land and wood shall be asset and because that by the  say act the money come by sale of wood and land be join together with the good  of the testator in the same plight all be in the same degree and both equal  asset periam do not speak to that but Windham hold that these asset find by  the verdict be not asset intend in the will and that the plaintiff have not  pursue the statute which make such matter asset it be adjourn cro ante roll  part pasch Elizabeth in the common plead