atkins case ramsden v Jackson February the saint see Jewsbury v mummery lr c p  a voluntary bind for the payment of a sum of money after the death of the  obligor in the nature of a legatory disposition be a valid bind vide Drakeford  v Wilkes post vol Susannah Ramsden have enter into a bind for the payment of a  considerable sum of money to the defendant at her death in the nature if a  legatory disposition of so much secure by bind and the defendant have obtain  judgement on the bind against the plaintiff her executor the bill be bring by  he to have the bind and judgement set aside suggest there be no consideration  for enter into it and that it be obtain by improper mean Lord chancellor I be  of opinion against the plaintiff on the merit that the bind be a good one and  therefore the only question will be on what term the plaintiff shall be  relieve against the recovery at law and some relief he be clear entitle to the  judgement be for the whole penalty of the bind for the plaintiff it be insist  that he have a right to be relieve not only against the penalty but likewise  against the principal sum in the condition of the bind or part of it at least  it be suggest that there be a deficiency of personal asset and the plaintiff  Chargeable no further than he have asset the fact as to this be that the  plaintiff here plead non be factum to the bind at law and have a verdict  against he and judgement in the usual form de good testator send non de good  not common with others and it be admit the plaintiff in this respect stand  exact in the same light as he will at law and the question be whether when a  executor plead non be factum non assumpsit c and verdict against he that will  not amount to a admission of asset or if after such verdict he may still  defend he atkins self by deny asset and that matter be controvert on the  sheriff return to a to know become inquiry or otherwise Mr fazakerly for the  defendant insist that the verdict be a admission of asset and that this case  be the same with a judgement confess by a executor or have against he by  default and upon his memory refer to a case in salkelds report where it have  be so rule he admit the executor be not Chargeable de good not common with  others in respect of his false plea which he say and it be agree by Lord  chancellor hold only in the case of ne unques executor plead but that the  executor in this case have think fit to put his defence on the denial of the  execution of the bind and not have plead plene to manage or by plea admit  asset to such sum and riens ultra c or make use of any defence of that kind he  can now resort to any such matter or have the benefit thereof by any  subsequent proceed that executor be in this respect only upon the same foot  with all other person and nothing be better establish than this rule that no  advantage can ever afterward be take of what may have be insist on by way of  defence and plead to the action nothing pleadable puis darrien continuance  which be in be at the time of the plea plead he observe likewise that the  disability a defendant at law be under of make a double defence give occasion  to that provision in the statute for the amendment of the law the Ann c S with  regard to plead several matter there wag no occasion otherwise for tiny such  law in the case of executor atkins er p nor any reason for pursue it now in  those case though it be every day practice for if a executor after a verdict  against he on such a plea as this or any of the like kind may afterward say he  have no asset that method of proceed will be equal beneficial to he and there  will be no occasion ever to apply to the court for leave to plead plene to  manage and any other plea that the executor here may have apply to the court  for leave to plead double but not have do so the case stand upon the same foot  it will have do before the act Lord chancellor I agree with Mr fazakerly the  statute for the amendment of the law be quite out of the question the name of  the case hint at by Mr fazakerly be rock v Leighton salk but on look into that  case I find the resolution there go only to a judgement have against executor  either by confession or default but no further Skelton v Hawling will that the  rule be in general as have be lie down that advantage can be take afterward of  what may have be plead to the action as for instance in the case of a to know  facias on a judgement nothing can be plead thereto which may have be plead to  the action but though I be incline to think the verdict be a admission of  asset yet I will not give a absolute opinion because the cause must be  postpone at present in order that the will may be produce and the state of the  asset lie before the court and the disposition by the testatrix of her real  and personal estate atkins the fact whether there be asset or not be dispute  by the party cro James legate v Pinchion N B the bind against which the relief  be pray be a voluntary one it be admit clear it must be postpone in equity to  debt by simple contract fairbeard v bower vern S c Eq ab pl S c ibidem pl SC  craye v rook can tempt Talb Blount v doughty post vol acid also that where a  bind be claim in consideration of money lend and the person fail in prove his  consideration he shall not be allow afterward to set it up as a voluntary bind  Prec in Chan this point come on again whether the plea of non be factum admit  asset Lord chancellor hold it do and say he have see Lord chief justice holt  report of the case of rook v Leighton where the very case now in question be  put by holt chief justice who say the law be the same as in the case of a  judgement by default against a executor though that be not mention in the  report of the case by Salkeld see erving v Peter durn east Deereed that the  plaintiff shall be relieve against the penalty of the bind on payment of  principal and interest c without any regard hide at all to the question  whether the executor have asset or not to pay such principal and interest  Michaelmas term