case BUCKLY against Howard to a action of debt on bind against a executor if  the defendant plead that the testator be indebt to plaintiff upon a statute  merchant yet in force and no asset ultra the plaintiff may reply that the  statute be destroy by fire roll Abr style brown dougl debt upon two bind the  one of twenty pound the other of forty pound against a administratrix the  defendant plead that the intestate be indebt to the plaintiff in two hundred  and fifty pound upon a statute merchant which statute be yet in force not  cancel nor annul and that she have not above forty shilling in asset beside  what will satisfy this statute the plaintiff reply that the statute be burn  with fire the defendant demurrer by the opinion of Wyndham Atkins and Ellis  justice the plaintiff have judgement for the defendant by his demurrer have  confess the burn of the statute which be admit and agree upon it be certain  that it can never rise up against the defendant for the statute of the Henry c  concern recognizance in the nature of a statutestaple refer to the statute  staple videlicet that like execution shall he have and make and under such  manner and form as be therein provide the statute staple Edward c refer to the  statute merchant Edward saint c I and that to the statute of Acton burnel  Edward c which provide that if it be find by the roll and by the bill that the  debt be acknowledge and that the day of payment be expire that then c but if  the statute be burn it can appear that the day of payment be expire and  consequent there can be no execution if the recognisee will take his action  upon it he must say hic in curian prolata Henry pl Vaughan chief justice  differ in opinion he say first that it be a rule in law that matter of record  shall not be avoid by matter inpais which rule be manifest thwart by this  resolution he say it be a matter of record to both party and the plaintiff can  not avoid it by such a plea any more than the defendant can avoid it by any  other matter of fact he cite modern a case where the obligee voluntary give up  his bind to the obligor and take it from he again by force and put it in suit  the defendant plead this special matter and the court will not allow it bart  say he may bring his action of trespass second suppose the defendant have take  issue upon the statute be burn and it have be find to have be burn and yet  have be find afterward the defendant can not have any benefit of this verdict  he say it be a proper case for equity