case eyres against taunton pron  interrog  principium ante page the first to  know facias on a recognizance ought to be in the county where acknowledge but  on a return that he have no land that no heir can be find or that the party be  dead a testatum to know facias shall issue to another county ante Com dig the  return to a to know facias may say no heir within his bailiwick the omission  in a return to a to know facias on a recognizance to find who be heir be aid  after verdict issue join in chancery upon a to know facias may be try by nisi  prius out of the king bench ante it be move again by mallet for the defendant  in stay of judgement whereas the plaintiff the last term procure a new to know  facias out of this court direct to the sheriff of Gloucester to summon the  heir of Cawley because he have not make any mention in his former return of  the heir and thereupon this writ issue out of the court ex duty curiae ad to  shape curian and the croak car sheriff have return that Cawley have not any  land in his bailiwick which descend to his heir nor any heir within his  bailiwick c that yet no judgement ought to be give first because this to know  facias ought not to have be award to the sheriff of Gloucester but upon a  testatum that the first to know facias be award to the sheriff of Middlesex  where the recognizance be first acknowledge for be ground upon a record be  ought first to sue the to know facias there and upon return that there be not  any heir there then to have this in another county and be cite the book of  entry and Edward say non allocatur for true it be the first to know facias  upon a recognizance to have execution ought to be in the county where it be  acknowledge but when it be sue there and the party return dead it may be sue  against the heir or terretenant in any county where the party surmise he have  land also this to know facias be ex duty curiae and in favour of the party and  there be no reason he shall take exception to it the second exception be take  to the return of the writ for it be return that there be not any heir within  his bailiwick where it ought to have be that there be not any terretenant and  that there be not any heir general say non allocatur for the return upon the  first to know facias show what land he have and it shall not be intend there  be more land when no heir be find there and the sheriff have no authority to  inquire into other county the three exception that the return upon the second  to know facias in chancery whereupon the plea be plead and issue join be  insufficient for the reason before allege and the trial ill but now all the  court agree although the return have be better if it have find who be heir and  that he be warn or that there be not any heir in the say county yet it be well  enough for as Edward title execution ancient the to know facias be only  against the terretenant and the heir be not charge in the to know facias but  as terretenant and if the return be not good or formal yet it be aid by the  statute of Jeofails and the misreturn or insufficient return of the sheriff  also quoad the heir because he be not name in the return be but a  discontinuance which be aid by the statute of Jeofails wherefore Richardson  Jones and Berkley agree that there be not any cause after verdict to stay  judgement whereto I assent the four exception that it be not a good trial by  nisi prius for issue be join in chancery and the record deliver into the king  bench to be try it ought there to have be try and not by nisi prius but all  the court be against it for issue be join betwixt party and party may well be  try by nisi prius out of this court and so be many precedent wherefore  judgement be give for the plaintiff croak car er p