case eyres against taunton Trinity term car roll a return upon a to know  facias against a heir and terretenant be bad if it say nothing as to the heir  say queen if it be not aid by appearance post Jones cro Elizabeth roll Abr  Brownl kit Bac Abr on judgement against a person as a heir and terretenant in  riens per descent execution shall be only of a moiety of the land post Benl  Jones Poph bull Carth dyer corn dig ambler to know facias in chancery upon a  recognizance of two hundred pound by one Cawley who be return dead whereupon a  second to know facias issue against the heir of Cawley and against the tenant  of the land and tenement of Cawley which he have tempore recognitionis well  postea whereupon the sheriff return the defendant Taunton terretenant of such  land and omit to return any thing concern the heir upon this the defendant  plead that the say Cawley have nothing in the say land at the time of the say  recognizance or ever after and upon this they be at issue in chancery and it  be send bither to be try and it be try and find for the plaintiff that Cawley  be seize c after verdict for the plaintiff mallet for the defendant move in  arrest of judgement because nothing be return concern the heir videlicet that  there be not any heir or that the heir have nothing therefore no judgement  shall be give for it be a nonreturn of the sheriff and not a misreturn and it  be not aid by the Henry c or Elizabeth c or James c or any of the statute of  Jeofails the reason he allege that no judgement ought to be give be because  the terretenant without the heir be not to be charge and therefore the heir  ought to be summon and until the heir be summon or that it be return that  there be not any heir to be summon or that the heir have not any land to be  charge the terretenant ought not to be charge for the heir may have a release  to plead or other matter to bar the execution and his land be rather to be  charge than the land of the terretenant for the heir shall not have  contribution against the terretenant as the terretenant shall have also if the  heir be within age the parole shall demurrer and the terretenant shall have  advantage thereof and therefore there be nothing return concern he he move  that no judgement ought to be give Richardson chief justice Jones and Berkley  justice hold that the return be not good because the plaintiff name and set  forth that there be a heir and there be no return quoad croak car the heir so  as to he it be quasi breve album and no return and be not aid by any statute  but I be of a contrary opinion because the defendant have omit to take  advantage thereof for have plead and the issue be find against he he shall not  now take advantage for not return the heir to be summon for it may be that  there be not any heir or that the heir have no land or may not be find vide  Edward execute b Edward ibidem that the terretenant in a to know facias shall  not be warn until it be return that there be not any heir or that the heir be  warn and come not in vide Henry a to know facias heir et terretenenti the  sheriff return such a terretenant warn and speak nothing of the heir yet the  terretenant be enforce to answer and after ad informand croak car er p curian  whether there be a heir it be order that a new to know facias shall be award a  the case of bowyer v rivet b be cite by justice Jones that in a to know facias  against the heir and terretenant he be charge only as terretenant and by plead  riens per descent and find against he the execution be of the moiety of his  land and not of all c as the heir shall have be charge upon a false plea