carew against broughton mich James in the exchequer Thomas Carew exequetor of  William Carew bring debt against Morgan Broughton sheriff of the county of  Cardigan and the case be that John wyner be in execution upon a judgement for  William Carew and that after William Carew die and that John wyner bring a  hearing complaint against Carew executor of William Carew and upon that writ  he have a venire facias against Thomas Carew and thereupon as the stat apoints  of h cap he put in bail by recognizance in the chancery to the say Thomas  Carew and one of the party for his bail be Thomas wyner and after upon the  hearing quaerela judgement be give against the say wyner and a to know facias  award issue against Thomas wyner lane as bail and after the say Thomas winer  be in execution upon this recognizance as bail to the say Thomas Carew and the  say Morgan Broughton be sheriff suffer he to escape upon which escape Thomas  Carew bring debt against the sheriff in the debet and to hold off and have a  verdict to recover and now in arrest of judgement it be move by jefferies that  the action ought to be bring in the to hold off only and he say that if a  action be bring as executor this always ought to be in the to hold off only  and be vouch Hitchcock and Browns case remember at the end of Raggraves case  lib where the case be that one Anthony brown executor bring debt against one  Lister and that Lister be in execution the wife entermarried the say Lister  escape the husband and wife bring debt for his escape in the debet and to hold  off and there it be resolve that it ought to be in the to hold off only and so  here and see the custom to plead mention that the recognizance acknowledge be  to the use of the executor and not to the use of Thomas Carew by his name but  wile of the Inner temple pray judgement and say that the action be well bring  in the debet and to hold off and he vouch h and h if a executor recover and  after upon the judgement he bring debt it ought to be in the to hold off but  if a executor sell good of the testator and take a obligation in his name as  executor yet here the action upon this obligation ought to be in the debet and  to hold off because it be upon his own contract and e brook executor plan  although it appear there and so by h foe that be good either way and e brook  plan that if a debt be bring against the executor upon a contract make by they  it ought to be in the debet and to hold off or otherwise the writ shall abate  and as h be at his pleasure to name he executor or not and therefore c Snig  the second baron if the executor bring a action of good carry away in the life  of the testator c and have judgement to recover and damage for they and upon  this judgement he bring debt this shall be in the to hold off Altham baron if  a executor sell the good of the testator and a obligation be make to he for  the money for which they be sell without doubt this action shall be in the  debet and to hold off for the action concern he in his person and so if he  with his own money redeem good which be lane er p pawn by the testator c and  the stat of the h cap be that upon a hearing complaint the party who sue it  shall put in bind to the party c and the testator be not party at the time of  this hearing complaint but Thomas Carew who be the executor and it be not as a  wooer of execution pursuant c but be a new thing and so for his opinion sudden  it be good in the debet and to hold off Bromley the baron seem clear that if a  bind be make to a executor upon a simple contract make with he for the good of  testator there the action ought to be bring in the debet and to hold off but  this account be conceive upon a dependency of a duty to the testator and  therefore it ought to be to hold off only Tanfield chief baron the case be  doubtful and therefore it be good to be advice but for this time it seem there  be a diversity where the recognizance be legal force and where it be voluntary  for in our case the law compel this recognizance upon the suit which the  executor prosecute as executor c and for the testator and there it ought to  have a resemblance of the regionall debt and although that the statute appoint  that the sail shall be to the party as Altham baron remember yet here as the  plead purport the bail be to the aforesaid executor which imply a legal  dependency upon the first suit then it have be grant and the law be so that if  a executor recover a debt which be due to the testator and bath judgement for  it now if you will have a action upon this judgement this ought to be in the  to hold off because it be a legal pursuance of a thing give to the testator  and not voluntary as a bind for further security or assurance and so here the  bail be pursuant and compulsory but by e if it be voluntary then it ought to  be put in the king bench to a executor which be to be lane resemble to our  case if a executor bring debt upon a bail it ought to be as executor and not  as I S clear Altham the bail in the king bench be upon the original suit and  so it be not here wherefore c to which it be not answer but for that matter it  be adjourn see h in the king bench if a feme c take husband and one of the  debtor of the testator promise the husband if he will forbear his suit to pay  the debt if the husband will commence his action upon this promise it ought to  be in the name of his wife also because the action pursue the original debt  William wear down it be agree that if the law be such that the action ought to  be in the to hold off only then the bring of it in the debet and to hold off  be such a jeofail as be not aid by the statute of Elizabeth Nichols case and  chamberlain case cook lib Tanfield chief baron say in this case that it be  proper that the action ought to be bring in the to hold off only but as our  case be here be no issue join because here be not a negative and a affirmative  for the declaration be that he owe and detain and the bar whereupon the issue  be join be that he owe not so where if his action ought to be in the to hold  off then there be not any negative and so no issue which be not deny at  another day they agree that the action ought to have be in the to hold off  only and therefore judgement be give that the plaintifftake nothing by his  bill