coke Report11b sir will HARBERTS case mich and Elizabeth in the exchequer see  Ruabon steamship company v London assurance a c SC Poph more S c cite send for  sand a a Mod salk will burr east marsh n atk Inst two S three b sheep touch Bl  Com Cru dig Tidd prac that edit two press stand at a distance Sugd vend vin  Abr age n pl hearing complaint b pl f pl contribution a pl error Q pl  execution u pl m a pl n a pl heir c pl Jointtenants c pl prerogative m pl S  statute e pl statute merchant p pl Com dig debt g enfant d execution b c c  pleader e W b l process e Bac Abr hearing complaint b I execution a b b c g  heir and ancestor a b I three infancy and age l obligation d outlawry a to  know facias c see the reference sheriff n way n statute I warranty n seven and  note infra to know facias lie against the heir alone upon a recognizance of  his ancestor and he be not entitle to contribution from purchaser of part of  the land as they be against he b   b a Leon roll Rep hob win Abr forfeiture c  pl prerogative b d pl Bac Abr forfeiture c c   a d godb Skinner e Leon roll  Rep cro car ante b hob hale p c vin Abr prerogative g b pl Com dig assignment  c h see ante p b and Cromers case there cite ED f roll Rep I as to the nature  and different kind of office ante I p a n t ED see Bl Com note to the former  edition coke report b er p Semb that debt do not lie against the heir on a  recognizance or a judgement recover against his ancestor but a to know facias  only to have execution of the ancestor land in his hand and as the heir in  this case be charge as tertenant though he plead a false plea the judgement  must be special against he for asset descend by when he be sue in debt upon a  obligation of his ancestor purchaser under a conusor be contributory to the  charge as between themselves and be entitle to contribution front the conusor  and his heir a infant heir may pray the parole to demurrer a personal lie  survive but a real one do do Matthew Harbert e acknowledge a recognizance a of  to the king in the court of augmentation and after his death a to know facias  issue Elizabeth out a a recognizance be a obligation of record which a man  enter into before some court of record or magistrate duly authorize bro Abr  recognizance with condition to do some particular act and it be either at  commonlaw or by statute a recognizance at commonlaw be either to the king or a  subject and may be acknowledge either before some court of record or before  any one of the judge of Westminster hall in term or out of term and in any  part of England or before the Lord chancellor or keeper or by the custom of  the city of London before the mayor and alderman or the mayor single or before  special commissioner appoint by the king Bac Abr execution b f n b and  afterward enter of record for it be not a perfect record until it be enrol id  some court of record id ib sand send with vern but though enrolment be  necessary to the validity of a recognizance yet it bind the land at commonlaw  from the time of the caption sand and the case there cite recognizance by  statute be either find on a statute merchant or statute staple or be in nature  of a statute staple by the h c a statute merchant be a bind of record  acknowledge before the mayor of London or chief warden of some other city or  town or some other discreet man for that purpose choose and swear or before  one of the clerk of the statute merchant pursuant to the statute of Acton  burnel Edward l enforce and amend by the statute Edward stat de mercatoribus  this recognizance be to be enter by the clerk on a roll which must be double  one part to remain with the mayor or chief warden and the other with the clerk  who shall write with his own band a obligation to which the debtor seal  together with the seal of the king for that purpose appoint shall be affix Bac  Abr execution c the statute staple be a bind of record acknowledge before the  mayor of the staple in the presence of the constable of the staple or one of  they pursuant to the statute Edward saint c to this end the statute require  that there shall be a seal ordain which shall remain in the custody of the  mayor of the staple under the seal of the constable and that all obligation  make on such recognizance shall be seal therewith Bac Abr execution c this  security like the former be only design for the merchant of the staple and for  debt on the sale of merchandise bring thither but in process of time other  begin to apply it to their own purpose and the mayor and constable will take  recognizance from stranger surmise that they be make for the payment of money  for merchandise bring to the staple to prevent this mischief the parliament j  the h reduce the statute staple to its former limit and lie a penalty of on  the mayor and constable who shall extend the benefit of the statute to any but  those of the staple but though the statute h c deprive they of this benefit  yet it frame a new sort of security to be use by all person know by the name  of a recognizance on the Henry or a recognizance in the nature of a statute  staple so call because this Act limit and appoint the same process execution  and advantage in every particular as be provide for the statute staple Bac Abr  execution b a recognizance therefore in nature of a statute staple as the word  of the Act declare be the same with the former only acknowledge before other  person for as the statute run the chief justice of the king bench and common  plea and each of they or in their absence out of term the mayor of the staple  at Westminster and the recorder of London joint together shall have power to  take recognizance coke report b er p of the court of exchequer against the  executor will et ultimae will pillage for payment of debt in the form set down  in the statute h c S in this as in the former case the king appoint a seal to  attest the contract and each of the justice have the keep of one such seal and  the mayor of the staple at Westminster and recorder another of the like print  and fashion and every obligation make and acknowledge before either of the  justice or the mayor and recorder must be seal with the seal of the conusor  the king seal and the seal of the chief justice or the seal of the mayor and  recorder before who it be take who be likewise oblige to subscribe their name  S beside which a clerk be appoint to make write and enrol all obligation thus  acknowledge and at the request of the conusee his executor or administrator to  certify such obligation into chancery under his seal stat h S c S by the  statute Elizabeth c sacred scripture the whole tenor and content of all  statute merchant and statute staple shall within six month after they be  acknowledge be enter in the office of the clerk of recognizance take accord to  the h c who be to enter the same statute in a book provide for that purpose  otherwise they be make void as against subsequent purchase foe the mode of  enrol these recognizance see stat Geo c sacred scripture by statute Geo c  sched part I every recognizance statute merchant and statute staple enter into  as a security for the payment of any sum or sum of money annuity or annuity or  for the transfer of any share or share in any of the government or  parliamentary stock or fund or in the stock and fund of the governor and  company of the bank of England or of the east India company or south sea  company be subject to the same duty or duty as a bind give for the like  purpose in England where such payment or transfer be not already secure by a  bind or mortgage or by some other instrument thereby charge with the same duty  as a bind or mortgage and where such payment or transfer be already secure as  abovementioned to a duty of and every recognizance statute merchant and  statute staple enter into as a security for the performance of any covenant  contract or agreement or for the due execution of any office or trust or for  render a due account of money receive or for indemnifying any person or person  against any matter or thing be subject by the same Act to the duty of S and  where any such recognizance or statute together with any schedule or other  matter put or endorse thereon or annex thereto shall contain word or upward  then for every entire quantity of word contain therein over and above the  first word to a further progressive duty of S the conusee of a statute  merchant or of a recognizance in nature of statute staple may wave the  execution give by the Edward and use it as a obligation by bring a action of  debt these security have the seal of the conusor but it be otherwise of a  statute staple because the king seal only be affix thereto without that of the  party which be absolute necessary in all obligation at commonlaw Bac Abr  execution b with regard to the time of sue out execution on these security  there be a distinction between recognizance at commonlaw and by statute for  out the first if the conusee or conusor die within a year after the  acknowledgement of the recognizance it be necessary to sue out a to know  facias in order to have execution Inst or if the conusee do not take out  execution within a year after the day of payment assign in the recognizance he  be oblige at commonlaw to commence the suit again by original the law presume  the debt may have be pay if he do not sue execution within a year after the  money become Payable but this be alter by the statute Westminster Edward saint  c which give the conusee a to know facias to revive the judgement and put it  in execution if the conusor can stay it by plead such matter as the law judge  sufficient for that purpose infra Inst f n b Edward but the conusee of a  statute merchant c may at any time sue execution without the delay or charge  of a to know facias or if the conusee die his executor may sue out execution  without a to know facias Bac Abr execution b to know facias c see further as  to the to know facias on recognizance at commonlaw or by statute sand b c and  for the to know facias ad rehabendum earth which lie for avoid execution on  statute merchant c see Bac Abr to know facias c coke report b er p Malthaei et  heir the earth et property who svan to be c b and upon that the sheriff return  that the say Matthew Herbert have no executor within his sand from what time  these security bind the land see infra and for the proceed on they in general  Bac Abr execution b Com dig statute merchant ED b the to know facias in this  case appear to have be bring against the executor and the heir joint but  regular a executor can be sue joint with the heir Thel dig b c S cite Edward  and see Com dig abatement f vin Abr action e d pl yet as the heir and executor  be both Chargeable on specialty provide the heir be express name therein Com  dig pleader e vin Abr heir king sand the party may sue either at his election  or may proceed against both at the same time and if the heir be also executor  separate action may be maintain against he in both capacity lev Bac Abr heir  and ancestor f Com dig pleader e upon a return of nothing to a to know facias  against the personal representative whether on a judgement recover against the  ancestor or a recognizance acknowledge by he which be in the nature of a  judgement the party may bring a to know facias against the heir either alone  or joint with the tertenants or tenant of the land whereof the other party be  seize at the time of the judgement or recognizance or at any time afterward  sand but where judgement be have against one who die before execution a to  know facias will not lie against his heir or tertenants until nothing be  return to a to know facias against his executor or administrator panton v hall  Carth sand oh p and as the heir in this case be charge as tertenant infra cro  car the plaintiff can only have execution of a moiety or in the case of the  king of the whole land descend even where he plead a false plea infra cro car  Carth sand the to know facias be usual bring against the heir and tertenants  joint sand and it may be either against the tenant of the land general without  name they or against they by name id ib salk Lord raym but if the plaintiff  undertake to name they he must name they all and if he do not those who be  name may plead in abatement comb when the writ be bring against the heir and  tertenants the heir can object that the to know facias ought first to have  issue against he cro Elizabeth sand p but it seem to be the better opinion  that the tertenants alone be not to be charge until the heir be summon or it  be return that there be no heir or that the heir have not any land to be  charge sand for the heir may have a release to plead or other matter in bar of  execution and his land be rather to be charge than the land of the tertenants  for the heir shall do have contribution against the tertenants as they shall  against he infra and if the heir be within age the parole shall demurrer and  the tertenants shall have advantage of it infra cro car sand Bac Abr to know  facias c and see as to the proceed on to know facias against the heir and  tertenants the declaration and plead thereto sand Q r t v u d Bac Abr to know  facias d e Com dig pleader l but there be a difference where a action of debt  be bring against the heir on the obligation of his ancestor in which he be  bind for in this case the heir be not charge as tenant oh the land but as a  debtor in the debet and to hold off Com dig pleader e vin Abr heir king for if  he be charge in the to hold off only it be error at the commonlaw but be now  aid after verdict by statute and car c Id ib sand east and if judgement be  give against he the plaintiff be entitle to execution out of the whole of the  property which he have by descent at the time of issue the original writ or  fill the bill infra a Inst a b Plowd atk Ambl Carth sand and as the obligee  may sue either the heir or executor the heir can plead that there be a  executor and he have asset bro asset per descent Plowd b dyer b lev atk p wms  but the heir be not liable any further than to the value of the land and  therefore to a action of debt against he on the bind of his ancestor he may  plead that he have nothing by descent either general or special videlicet that  he have nothing but a reversion after a estate for life in which case the  plaintiff may take judgement of asset when coke report b er p bailiwick and  further quod to know fecit will Harbert military spirit son et heir speech  Matthaei Harbert per I d et d b quod sit in person baron c and at the day of  the return to fall upon post   dyer b Carth ld raym but a reversion after a  estate for year smith v angel salk ld raym Mod Osbaston v Stanhope Mod villers  v Handley will or after estate tail when the reversion vest in possession be  present asset kellow v Bowden Mod see mildmay case post   and the note there  Inst a two r or that he have pay debt of a equal or superior degree to the  amount of the asset descend or that he retain the asset to satisfy his own  debt of equal or superior degree or debt of a superior degree due to three  person sand a a I Tidd prac but if the heir plead riens per descent or any  other plea which be false within his own knowledge and find against he the  plaintiff at commonlaw be entitle to a general judgement against he to recover  the debt and not special to be levy of the land descend and may therefore have  a capias ad to give satisfaction become facias or a elegit for a moiety of all  the land of which the heir be seize whether by descent or otherwise Plowd Leon  roll Abr c pl dyer a sir W Jon so if judgement be give against a heir by  nothing to say dyer a b Plowd cro Elizabeth or non sum shape id ib or by  confession without show in certain what asset he have by descent the judgement  be general id ib all ld raym salk Mod sand b and if the profit of the land  descend from the death of the ancestor to the time of bring the action be  sufficient to satisfy the demand and the plaintiff will show it to the court  and the defendant can deny it the plaintiff shall have a general judgement and  execution present Henninghams case dyer b but in debt against the heir if he  acknowledge the action and show the certainty of the asset which he have by  descent the judgement shall be special to recover the debt to be levy of the  land descend roll Abr dyer a b and see vin Abr heir c Bac Abr heir and  ancestor sand so if be plead non be factum or any other plea which be not  false within his own knowledge the judgement shall be only of asset by descent  Clothworthy v Clothworthy cro car and where the judgement be special the  execution be so likewise by a writ in nature of a extent to levy the debt and  damage of all the land descend roll Abr vin Abr heir d Bac Abr heir and  ancestor h sand and although on a general judgement the plaintiff as already  observe may have execution by elegit of a moietyof all the heir land yet may  he also at his election surmise that the heir have certain land by descent and  pray to have execution thereof for if the plaintiff have not this election he  may be a loser by the general writ of elegit upon which he can only have a  moiety in execution inasmuch as the heir may not have any other land except  those descend roll Abr Bac Abr heir and ancestor h sand at the commonlaw if  the heir have good fide alien the land which he have by descent before a  action be bring against he be may discharge himself by plead that he have  nothing by descent at the time of sue out the writ or fill the bill and the  obligee have no remedy at law though in equity the heir be responsible for the  land I p wms but now by statute W m c S in all case where any heir at law  shall be liable to pay the debt of his ancestor in regard of any land tenement  or hereditament descend to he and shall sell alien or make over the same  before any action bring or process sue out against he such heir at law shall  be answerable for such debt or debt in a action or action of debt to the value  of the say land so by he sell alien or make over in which case all creditor  shall be prefer as in action against executor and administrator and such  execution shall be take out upon any judgement or judgement so obtain against  such heir to the value of the say land as if the same be his own proper debt  or debt save that the land tenement and hereditament bind fide alien before  the action bring shall not be liable to such execution and by sect where any  action of debt upon specialty be bring against a heir be may plead riens per  descent at the time of the original writ bring or the bill file against he and  the plaintiff in such action may reply that he have land tenement or  hereditament from his ancestor before the original coke report b er p the say  sir William Harbert make default upon which the baron give judgement quod  dictam owner queen recupere versus dict William Harbert dictam tribune millia  lib et quod writ bring or bill file and if upon issue join thereupon it be  find for the plaintiff the jury shall inquire of the value of the land  tenement or hereditament so descend ad thereupon judgement shall be give and  execution award as therein direct but if judgement be give against such heir  by confession of the action without confess the asset descend or upon demurrer  or nothing to say it shall be for the debt and damage without any writ to  inquire of the land tenement or hereditament so descend by this statute the  form of the judgement at commonlaw be alter on a plea of riens per descent  when a verdict be find for the plaintiff on a replication that the defendant  have asset see sand b so before this statute if the ancestor have devise the  land a creditor by specialty have not any remedy either against the heir or  devisee Abr Eq atk but by sec recite that several person have by bind or other  specialty bind themselves and their heir and have afterward by will dispose of  their land with a intent to defraud their creditor it be enact that all will  and testament limitation disposition or appointment of or concern any manor  message land tenement or hereditament or of any rend profit term or charge out  of the same whereof any person or person at the time of his her or their  decease shall be seize in feesimple in possession reversion or remainder or  have power to dispose of the same by his her or their last will or testament  shall be deem and take only as against such creditor or creditor as aforesaid  his her and their heir successor executor administrator and assign and every  of they to be fraudulent and clear absolute and utter void frustrate and of  none effect any pretence colour feign or presume consideration or any other  matter or thing to the contrary notwithstanding by sect the devisee must be  sue with the heir joint at law as well as in equity atk sand Bac Abr heir vin  Abr heir z d and the devisee may plead that he have nothing by devise either  general or special in the same way as the heir see sup p but he can pray the  parole to demurrer by reason of his nonage such privilege be confine to a  infant heir Plaskelt v Beeby east as to sue a devisee where no heir can be  discover Wilson v Knubley east by sect the judgement against a devisee upon  the statute be the same as against a heir but the statute only extend to case  where debt lie and a action of covenant can in any case be support against a  devisee for a breach of contract in the time of the testator Wilson v Knubley  east p wms Bac Abr heir and ancestor f sand d the that section provide that  where there shall be any limitation or appointment devise or disposition of or  concern any manor c for the raise or payment of any real and just debt or debt  or any portion or portion sum or sum of money for any child or child of any  person other than the heir at law accord to or in pursuance of any marriage  contract or agreement in write good fide make before such marriage the same  and every of they shall be in full force and the same manor c shall and may be  hold and enjoy by every such person or person his her and their heir executor  administrator and assign for who the say limitation appointment devise or  disposition be make and by his her and their trustee or trustee his her or  their executor administrator and assign for such estate or interest as shall  be so limit or appoint devise or dispose until such debt or debt portion or  portion shall be raise pay and satisfy this proviso operate by way of  exception of such devise as be for payment of debt leave the law just as it  stand before the make of the Act plunket v person atk so that a devise for the  payment of debt the earl of bath v earl of Bradford Ves Gaft v Atkinson will  or for the payment of debt out of the rend and profit only be not within the  statute Ridout v earl of Plymouth atk lingard v earl of Derby bro c c Bailey v  ekins Ves kidney v Coussmaker Ves but if the devise do not provide for the  payment of debt in a practicable manner the proviso will not take the case out  of the statute Hugh v Doulben bro c c and see the earl of bath v earl of  Bradford sup how v chapman Ves in case of a devise subject to the payment of  debt simple contract creditor will be entitle to coke report b er p ipse idem  William de the same l towards dictam owner queen nunc to load et ei ind to  give satisfaction and thereupon the say sir William Harbert bring a writ of  error and assign three error saint in the to know facias and in the return the  d in the judgement and this term the error be move by Plowden be of counsel  with sir William Harbert before sir Thomas Bromley Lord chancellor of England  and be pay acquire step with bind or other specialty creditor for in  conscience their debt be to be equal favour be equal due Woolstonecroft v long  Ch can Ch Rep Hixon v Witham Ch can anon Ch can Girling v lee vern child v  Stephens d sowley v Gower vern Wilson v Fielding d and it be former hold that  such a devise will revive a debt bar by the statute of limitation Gofton v  mill vern Prec Ch Blakeway v earl of Strafford p wms ex part Dewdney Ves but  in a late case it be decide that a devise in trust for payment of debt do not  revive a debt upon which the statute of limitation have take effect by the  expiration of the time before the testator death Burke v Jones Ves and b and  see ex part Dewdney Ves ex part Roffey rise and although it have be hold that  if the estate be devise to the executor for payment of debt this will make it  legal asset yet it be now settle that if the real estate be by any mean give  to the executor the produce of it when sell shall not be apply in a course of  legal administration but be distribute as equity prescribe Inst I bro c c p  wms Fonbl Tr Eq d edit n so accord to former decision where the estate descend  to the heir charge with the payment of debt it will be legal asset in he I p  wms atk p wms yet now it be settle that in this instance also the asset shall  be deem to be equitable bro c c append bro c c Shipard v lutwidge Ves Fonbl Tr  Eq n toll exhort but if a mere trust estate descend on the heir at law  notwithstanding a necessity of resort to equity to reduce it into possession  yet it shall be legal asset for trust estate be by the statute of fraud make  legal asset to satisfy bind debt king v ballett vern Robinson v tongue vin Abr  asset a pl but a equity of redemption not be consider a trust within the  statute have therefore be determine to be equitable asset king v ballett sup  vern atk p wms p wms Ambl sand e this point however must not be consider as  settle as there be strong opinion to the contrary and that a equity of  redemption even in fee though capable of be reach only in equity shall be deem  legal asset see toll law of executor that edit as to what shall be asset by  descent in general see bro asset Fitzherbert asset roll Abr asset Bac Abr heir  and ancestor I vin Abr asset a and b Com dig asset a and b sand d by the  statute Geo sess c for more effectual secure the payment of the debt of trader  it be enact that when any person be at the time of his death a trader within  the true intent and meaning of the law relate to bankrupt shall die seize of  or entitle to any estate or interest in land tenement hereditament or other  real estate which he shall not by his last will have charge with or devise  subject to or for the payment of his debt and which before the pass of this  Act will have be asset for the payment of his debt due on any specialty in  which the heir be bind the same shall be asset to be administer in court of  equity for the payment of all the just debt of such person as well debt due on  simple contract as on specialty and that the heir or heir at law devisee or  devisees of such debtor shall be liable to all the same suit in equity at the  suit of any of the creditor of such debtor whether creditor by simple contract  or by specialty as they be before the pass of this Act liable to at the suit  of creditor by specialty in which the heir be bind provide always that in the  administration of asset by court of equity under and by virtue of this Act all  creditor by specialty in which the heir be bind shall be pay the full amount  of the debt due to they before any of the creditor by simple contract or by  specialty in which the heir be not bind shall be pay any part of their demand  see further as to the liability of a heir and the proceed against he sand  Plowd vin Abr heir king Bac Abr heir and ancestor Com dig pleader e ED coke  report a er p the baron of Burleigh Lord treasurer of England and the two  chief justice Wray and Anderson in the exchequer Chamber and in this case  diverse point be resolve first that a at the commonlaw where a common person  sue a recognizance or a judgement for debt or damage he shall not have the  body of the defendant nor his land unless in special case in execution but at  the b commonlaw be shall have execution in such case only of his good and  chattel and of corn and the like present profit which shall grow upon the land  to which purpose the commonlaw give he two several writ coke Report12a saint a  a to lift up facias by which writ the sheriff be command quod de terris et  catallis Self a c to lift up to make c and another writ call become facias  which be only de good et catallis c both which writ ought to be sue b within  the a cro James Inst Bulst roll Rep   light b cart   a sand a Cru dig vin Abr  execution n a pl Com dig execution c Bac Abr execution a c b Inst Bulstr r  sand a Cru dig vin Abr execution n a pl Com dig execution c Bac Abr execution  a c sheriff n way a f n b   light Bulstr Rep Q a Bac Abr execution c b   light  a Bulstr Com dig process e c the different kind of execution for debt or  damage to which a party be now entitle be saint a become facias against the  good and chattel and a to lift up facias against the good and profit of the  land finch l which writ be now little use the remedy by elegit which take  possession of the land themselves be much more effectual but a species of this  writ issue to the bishop against the profit of a clerk benefice see Reglst  Orig judy Inst burn ecclesiastical l marsh knight v Fawcett clerk t Bl pale  yellow exec Bac Abr execution c Bos and pull rd a capias ad to give  satisfaction against the person which lie at commonlaw in action of trespass v  I et arms and have since be give in other action by a variety of statute infra  hob Ub a elegit against the good and a moiety of the land which be give by the  statute of west Edward c infra but copyhold be not liable to execution except  in case of a debt to the king ante p a and will ib roll Abr Bl Com and thly a  to stretch out facias or extent for the king debt on a recognizance  acknowledge in a court of record c or against a heir on the bind of his  ancestor and be give by Act of parliament on statute merchant statute staple  or recognizance in nature of a statute staple and it be either against the  body land and good for the king debt or on a statute staple or recognizance in  nature of a statute staple against the land and good on a writ of they to shut  extremum or statute merchant or against the land only upon a judgement in debt  against a heir on the obligation of his ancestor Tidd prac the party sue out  execution for debt damage or cost may at his election have a become facias  capias ad to give satisfaction or elegit against the good person or moiety of  the land of the party Chargeable Bac Abr execution d or be m have several writ  of the same sort run at the same time in order to take the defendant or his  good c in different county and he may abandon one writ of execution before it  be execute and sue out another of a different sort and if no one good be  return to a become facias or non be invention to a capias ad to give  satisfaction or nothing to a elegit the party may afterward sue out another  writ of the same or a different species for the debt c or if part only be levy  on a become facias or of the good upon a elegit and nothing be return as to  the land hob lev side Str Lord raym be may have a new writ of execution for  the remainder but after part of the debt and cost have be levy on a become  facias the plaintiff can regular sue out another become facias into the same  or testatum into a different county and levy the residue under it before the  return of the first writ barn and where the sheriff have take good in  execution under a become facias the plaintiff can sue out a capias ad to give  satisfaction till the become facias have be return though he shall have  withdraw his execution under it miller v Parnell marsh and where the defendant  have be take under a capias ad to give satisfaction coke report a er p year  after the judgement or the recognizance acknowledge and if he have not the one  or the other within the year the plaintiff or the conusee be put c to his  action of debt and now by the stat of west cap a d to know facias be give d  and by the stat of west cap e cum debt is owed to be regain c the elegit e be  give of the moiety of the land which be the first Act which subject land to  the execution of a judgement or of a recognizance which be in the nature of a  judgement f and therewith agree f n b g and by the stat of f e de mercatoribus  g e cap h h cap it be provide that in case of a statute merchant or statute  staple all the land which the conusor have at the day of the conusance shall  be extend in who hand soever they after come either by no other process can  issue against his land good c unless the defendant die in execution stat James  c or escape or be rescue when the plaintiff may have a new writ for the whole  or in case of a escape or rescue he may recover against the sheriff for the  debt cro car cro car Bac Abr execution d so the plaintiff may sue out and  execute several elegits for land in different county more roll Abr pl sty hob  sand a but if land be extend on a elegit and deliver to the plaintiff he can  afterward have a become facias or capias ad to give satisfaction cro James  stram Lord raym and though be take but a acre of land in execution yet it be  hold a satisfaction of the debt be it never so great because in time it may  come out of it Bac Abr execution d but on statute merchant staple and  recognizance in nature of statute staple body good and land be all liable by  the several act of parliament that create these security the conusee may take  all at once or at different time so that if he extend the land first he may  afterward take the body hob roll Abr Bac Abr execution d ED c   a cart f n b g  e d   light a Bulstr f n b g Inst sheep touch side Abr Mod Mod reev hist Bac  to know facias c d the statute Westminster and Edward c give a to know facias  upon a judgement in personal action and upon a recognizance after a year and a  day but a to know facias lie at the commonlaw after that time on a judgement  in a real action Inst Inst b a three a to know facias be so call from the word  in the writ quod to know facias prefat t the defendant quod sit in person c  ostensur si quid pro see to have or to dedicate sciat quare c whence it appear  that the defendant or conusor be to be warn to plead in bar of the execution  and therefore though it be a judicial writ it be consider in the nature of a  action and a release of all action as well as a release of all execution be a  bar to it Inst b a three Obnan v ram Mod grey v Jones will Pulteney v townson  Bl Fenner v Evans t r winter v Kretchman t r the year be compute from the day  of sign the judgement simpson v grey barn by calendar month and not by term  winter v Lightbound stram but if execution be sue out after the year and day  without a to know facias it be not void but voidable only by writ of error  Patrick v Johnson lev Howard v Pitt salk overrule russell case Leon that in  the case of the king there needs not be any to know facias after the year and  the day salk see further as to the to know facias in general Brudnells case  post   Garnons case post   Inst three Bac Abr to know facias c sand b c Tidd  prac lee Dict prac ED e roll Rep Inst Bulst f n b g cro James   a   light b  vin Abr execution m a pl e sum n c for the history of this writ and the  proceed under it see sand a a c ED f as to these security by statute merchant  and statute staple c and the difference between they see n a sup Bac Abr  execution b Com dig statute merchant ED f   a sheep touch Cru dig g   b sheep  touch Cru dig h   b sheep touch Cru dig coke report a er p feoff or other  manner g but in debt against the heir upon a obligation make by his ancestor  the plaintiff by the I commonlaw shall have all the land which descend to he  in execution against he h and yet he shall not have execution of any part of  the land against the father himself but the reason thereof be because the  commonlaw give a action of debt against the heir and in such case if he shall  not have execution of the land against the heir be can have no fruit of his  action for the good and chattel of the debtor do belong to his executor or  administrator and so for necessity in such case only land be liable to  execution of the debt of a common person at the commonlaw also the body of the  defendant be not liable to execution for debt at the commonlaw vide h but the  commonlaw which be the preserver of the common peace of the land do abhor all  force as a capital enemy to it and therefore against those who commit any  force the commonlaw do subject their body to imprisonment which be the high  execution by which he lose his liberty till he agree with the party and pay a  fine to the king and therefore it be a rule in law that in all action quare  way et arms capias lie I and where capias lie in process there after judgement  king capias ad to give satisfaction lie and there the king shall have capias  pro fine king with that agree h h e e e and many other book then by the  statute of marlebridge cap and m west cap u g therefore if a man be conusee of  a statute and the debtor before execution sue alien by fine and five year pass  yet the conusee may still sue out execution I Ch can Mod but if the conusor of  a statute become bankrupt before the statute be sue and execute the conusee  shall come in only pro rata though there be land bind by the statute I p wms  and by statute car c S extend to Wales and the county palatine by the Geo c S  the day of the month and year of the enrolment of recognizance shall be set  down in the margin of the roll where the say recognizance be enrol and no  recognizance shall bind any land tenement or hereditament in the hand of any  purchaser good fide and for valuable consideration but from the time of such  enrolment see ante p b n a sand and by the register act b Ann c and subsequent  statute no statute or recognizance other than such as shall be enter into the  name and upon the proper account of his majesty shall affect or bind any manor  land tenement or hereditament in Middlesex or Yorkshire but only from the time  that a memorial of such statute or recognizance shall be enter at the register  office in such manner as therein be direct as to the relation and effect of  judgement see Lillingstons case post   and the note there Inst three a lee  Dict Bac Abr execution ED I Plowd a cro James wing Max   dyer wear down sand a  atk Ambl Cru dig d edit Tidd prac that edit press stand at a distance vin Abr  execution u pl Com dig execution c Bac Abr execution a heir and ancestor f h  as to the difference in the judgement against the heir when he be sue in debt  on the bind of his ancestor and when in to know facias on a judgement recover  against the ancestor or a recognizance acknowledge by he see d b sup Poph dyer  a pl sir W Jones Bulst palm sand ED marsh n ib e pl e pl I that it lie only in  action of trespass v I et arms ace hob but see n l infra ED king   light b r  sand Mod Inst three b Bl Com Tidd pract that edit two Com dig execution c  pleader W king as to the capias pro fine in action of trespass c and the  abolition of it by statute W m c ante I p a n z sand ED f n b b Bulst   light  a Inst Com dig pleader W Bac Abr execution c outlawry a m   light a Inst bull  Com dig pleader W Bac Abr execution c outlawry a coke report b er p capias be  give in account for at the commonlaw process in account be distress infinite  and afterward by the statute of n e cap the like process be give in debt as  ill account for before that statute the body of the defendant be not liable to  execution coke Report12b for debt l for the reason and cause aforesaid but it  be resolve that a at the commonlaw the body the land and the good of the  accountant or the king debtor be liable to the king execution for b thesaurus  king be peace vinculum et war Nervii and therefore the law give the king full  remedy for it and therewith agree Elizabeth dyer c and blow Com d sir William  cavendish case who be treasurer of the Chamber e e Walter de Chirtons case and  infinite precedent in the exchequer to prove that for the king debt the body  and the land of the debtor shall be liable by the commonlaw before the statute  of f h cap m second g it be resolve that in case of a common person the heir  of the conusor or he against who the judgement be give in debt shall be only  charge and shall not have contribution against the tertenant in some case and  in some case he shall have contribution and shall not be only charge for if a  man be seize of three acre of land and acknowledge a recognizance or a statute  c and feoff a of one acre b of another and the three descend to his heir in  this case if execution be sue h only against the heir he shall not have  contribution for be come to the Com dig pleader W n roll Rep Bulst   a Com dig  plead W Bac Abr outlawry a l Acc hob Inst Inst godb Leon Bulst register but  this opinion that the writ of capias do not lie at commonlaw for debt and  damage be contradict by the history of our legal process for in the reign of h  the process in all personal action be as follow if the party do not appear  upon the summons he be attach by pledge and afterward by better pledge if he  still not appear the sheriff be command quod to have corpus if the sheriff  return non invention there issue distringa per land et catalla after that  another distringa command he also to take the body after that another  distringa ne shades of dead to put at and last a writ to take the land and  chattel into the king hand thus there may be one summons two attachment a  capias as it be afterward call and four distress to this it be add by Bracton  that shall the defendant not be find nor have any land or good whether the  action be for money or for a trespass he be to be demand from county to county  and outlaw and person so outlaw be condemned to perpetual imprisonment or to  abjure the realm bract I reev H1st two ED a cro James palm Plowd a l burr Bl  Com Com dig debt g execution b pleader W Bac Abr execution a b   light b a b  godb roll Rep light Rep c Plowd a godb roll Rep hard   a   a d Plowd   b b e  roll Rep   b   Inst lane godb Ventr dyer pl pl pl f   a b a b lane hard Inst  bell m for the construction of this statute and as to the king precedency in  execution see sir Thomas cecil case post   b the case of the chancellor c of  Oxford post   and the note there Inst three a sand c d e f ED g Moo Plowd b  cro car Bulst f atk Cru dig Sugd vend that edit vin Abr contribution a pl Com  dig pleader e l Bac Abr to know facias c h Inst vin Abr contribution a pl Com  dig pleader e l Bac Abr execution b heir and ancestor f to know facias c coke  report a er p land without consideration and the heir sit in the I seat of his  ancestor et hare be alter ipse et thread be pars father and as it be say  corpse be pater et quasi non be corpse because to leave behind comparison  Himself and therefore the heir shall not have contribution against any  purchaser although in rei in point of fact the purchaser come to the land  without any valuable consideration for the consideration of the purchase be  not material in such case and so it be of late resolve in the case of Thomas  king gawdy late marshal of the king bench that the heir may be sole charge and  shall not have contribution against purchaser for although in case of  recognizance statute or judgement the heir be charge as tertenant and not as  heir as appear by h execution m e n age and the reason be because by  recognizance or statute the heir be not bind but the conusor to go away quod  dict money summa de terris c to lift up yet he shall not have contribution  against a purchaser against the opinion of Finchden e b but yet in some case  the heir shall have contribution and shall not be only charge and therefore if  a man be seize of two acre one of the nature of borough English and bind  himself in a statute or recognizance or if judgement in debt be give against  he and he die have issue two daughter who make partition in this case if one  only be charge show shall have contribution for as one purchaser shall have  contribution against another and against the heir of the conusee also n so one  heir shall have coke Report13a contribution against another heir for they be  in equal jure Trin a e a in a to know facias to have execution of damage  recover in a writ of intrusion of a ware the sheriff return that the defendant  against who the judgement be give be dead whereupon a writ issue to warn the  tenant of the land who be tenant to the defendant at the time of the judgement  who be return warn one of the tenant say that his cousin who be another than  he against who the judgement be have die seize who heir he be and be b within  age and pray his age and that the parole may demurrer against all the other  tertenants till he be of age oh unde place for gathering natron that if there  be grandfather father and two daughter and judgement be give for debt or  damage against the grandfather and be die and the father die one of the  daughter within age and the other of full age partition be make the elder  sister shall not be charge alone but shall take advantage of the infancy of  her sister for both heir be in the same degree the same law if a man be bind  in a c recognizance and have issue two daughter and die they make partition  one alone shall not be charge but shall have contribution and if one be within  age the other shall take benefit thereof p for in such case although she be  charge as I hetl vin Abr contribution a pl Bac Abr heir and ancestor a king  more sand cro car sand atk Tidd prac Bac Abr heir and ancestor f m Bulst Poph  cro n Bulst e b f n b b c Com dig pleader l sand a I n a we p two b n b a roll  Fitzherbert age b cro car e pl e oh but where land be recover against the  ancestor who die the heir shall not have his age in to know facias for the  title of the ancestor be disprove Br age pl as to parole demurrer in general  see Markalls case post   Bac Abr infancy l Com dig enfant d pleader e ED vin  Abr age n pl contribution a pl Bac Abr infancy and age l c   light a f Cru dig  vin Abr contribution a pl Com dig pleader e p so in Inst a three it be say if  a man have judgement against he for debt c and die his heir within age or have  two daughter and the one within age no execution shall be sue of the land by  elegit during the minority coke report b er p tertenant yet she shall have her  age d see for this e age e age ass e ass in sir Richard Waldgraves e case so  if a man be bind in a statute or recognizance and after his death some of his  land descend to the heir on the part of the father and some to the heir on the  part of the mother in this case one alone shall not be charge and if he be be  shall have contribution against the other so and with this agree h Br f in  dower if the tenant vouch the heir in three several ware every one shall be  equal charge as it be agree in e a b but it be resolve in the case at bar that  although the heir in this case be charge as terretenant yet for the cause  aforesaid the writ which issue against he only and not against the other  tenant be good enough by the rule of the court note reader if two four g or  more man be several seize of land and they all join in a recognizance in this  case the conusee can extend the land of any of the conusors only but all ought  equal to be charge for although the land of the conusor himself may be only  charge when diverse man have purchase any of the land subject to the  recognizance because the purchaser be in other degree h than the conusor  himself yet one of the conusors shall not be only charge for be stand in equal  degree with the other conusors Q and that appear by ass and e sir John  langford case where the case be that four coke report b be bind in a  recognizance of debt acknowledge in the court of Chester to sir John Langford  and afterward one of the conusors die his heir within age sir John Langford  bring a to know facias against the three sur although the heir be not special  bind but charge as tertenant and in langford case lib ass year pl that where a  heir within age be sue with adult the latter may join with the infant in pray  that the parole may demurrer against all see send for bro Abr parole demurrer  pl bro age pl Fitzherbert Abr age pl Het ED d roll Rep   light foe a east Com  dig enfant d e   b   a die pl more ander   light hob h b e Det Br joinder in  action vin Abr contribution a pl Com dig pleader l Bac Abr execution b heir  and ancestor b f   b Br dow post a Fitzherbert vouch Br voucher fin Abr  contribution a pl g Inst Bulst vin Abr age n pl h roll Br age Br confession Br  charge Br parole demurrer Fitzherbert age vin Abr age n pl statute merchant c  p pl Bac Abr execution b Q the recognizance bind all the land of the conusor  and while they remain in his hand the conusor may take the whole or part only  in execution but it be otherwise when the conusor alien part of the land for  it will be unreasonable to load the purchaser with the whole debt when the  burden ought to be on the whole land into who land soever it come after the  recognizance acknowledge therefore if the conusee sue out execution of the  land of the alienees it may at commonlaw be set aside by hearing complaint for  the apparent partiality and injustice of it infra b and the same doctrine  extend to the case of several feoff and execution sue out against one of they  only but a execution against the land of the conusor only after such  alienation be good for the conusor can not complain of partiality since the  debt be his own and his person and effect still liable after such alienation  and he be suppose to receive the purchase money from the alienee and therefore  there be no reason to bring he into the payment of the debt which such conusor  have previous contract Plowd Bac Abr execution b vin Abr contribution a pl and  now by stat pound car c make perpetual by pound car c no extent upon any  statute judgement or recognizance shall be avoid or delay because part of the  land extendable be omit save to the party whose land be extend his remedy for  contribution but no statute unless condition for payment of money only nor  extent unless within twenty year after judgement c have be within this Act nor  be extent or contribution give by this Act against any heir within age ED coke  report b er p vivors to have execution who plead that the heir of the conusor  who be dead be within age and inasmuch as during his minority be can be charge  and the survivor only ought not to be charge they demand judgement c and  because sir John Langford do not deny it it be award that the parole shall  demurrer sir John Langford bring a writ of error in the king bench which upon  which judgement be there affirm out of which judgement I observe saint that  among the conusors themselves there shall be a a equal charge and the land of  any of they shall not be only extend and that the heir of any of they shall  not have great privilege in law than the conusor himself for it appear by this  judgement that he shall be equal charge with the conusors themselves r which  agree well with the say resolution that be shall not have contribution against  a purchaser the rd thing that I observe be that the heir be not charge only as  b tertenant but in some respect as heir for otherwise he shall not have his  age as it be adjudge in that case it be rule in c e a that the d heir of the  conusor shall have hearing complaint before execution sue S as well as the  conusor himself and shall e have a supersedeas but so shall not a f strange  purchaser have till he be oust by execution and therewith agree g ass e and  with the say judgement in ass agree e h execute that if judgement be griven  against two disseizors in assize for the land and damage and one seize die the  execution shall not be award against the survive seize who be party to the  wrong but as well the heir as the seize shall be e a pl e pl ante p a n p a    a   b r for where the land of several be charge with a debt it shall not lie  whole upon the survivor but it be otherwise where the land be not bind as if  two enter into a bind and one die before judgement the survivor shall be  charge alone Lampton v Collingwood Mod so where judgement in debt be have  against two and one of they die before execution a to know facias lie against  the survivor recite the death and he can plead that the heir of the other have  asset by descent and demand judgement if he shall be compel to answer without  the heir be warn for at commonlaw the charge upon the judgement be personal  survive and although now by the statute of west which give the to know facias  and elegit he may charge the land and make the judgement real yet it be at his  election to proceed in which way he please but if he will take out execution  upon the real lie the charge must be equal against both and the to know facias  against both though it seem that if he bring to know facias against both and  have judgement upon it he may have afieri facias against the survivor only or  a elegit against both smart v edson lev sir t raym Bac Abr execution g see  further as to this distinction between a real and personal execution that a  personal execution survive though a real one will not infra a Yelv raym keb  Mod keb salk pl show holt pl Carth salk pl vin Abr Jointtenants c Bac Abr  execution g sand Tidd pract that edit ED b roll Bac Abr heir and ancestor f  infancy and age l c hearing complaint d roll roll Rep Bulstr vin Abr hearing  complaint b pl S or it lie because to fear Inst a three as to a hearing  complaint in general when it lie and the proceed thereon see Boytons case post    a and the note there sand a t Com dig hearing complaint a Bl Com burr salk  ld raym ld raym stram ED e f n b a f roll cro James roll Rep Bulstr vin Abr  hearing complaint b pl f pl g Bulstr h roll ante a Bac Abr execution g salk  vin Abr contribution a pl coke report a er p equal charge t now forasmuch as  no land be subject to execution for the debt of a common person at commonlaw  but only by the say statute it be worthy consideration what shall be the  reason of the say difference concern contribution and by what law the  purchaser shall have great privilege than the conusor himself or his heir and  that one heir only shall not be charge but all the heir together et such de  the other as to that it be to be know that the judge and sage of the law have  always expound general statute accord to the rule of the commonlaw u which be  build on the perfection of reason and not accord to any private and sudden  conceit or opinion and because inasmuch as the say statute have subject the  land to execution for his debt the judge and sage of the law consider the rule  and reason of the law in case of the heir of a obligor in which case the land  be subject to execution for debt by the commonlaw and it appear to they that  if a man coke Report14a bind himself and his a heir in a obligation and die  seize of land as well on the part of the mother as on the part of the father  in that case the law require equality and neither the heir on the part of the  father nor the heir on the part of the mother shall be only charge and  therewith agree h b so in the case in e when the heir be b vouch in the ware  of three several heir lord ever one shall be equal charge pro rata so if two  man c alien land with d warranty the land of one only shall not be render in  value neither if one die shall the land of the survivor be only render in  value but the charge shall be equal on they wonder for a joint e lie which  bind the land shall not survive or lie only on the survivor as in case of a  joint warranty where two for they and their heir warrant land to another and  his heir the survivor shall not be only vouch and the sheriff can deliver the  land of the one or the other at his pleasure for in e execution which concern  the realty and charge the land the t see d r sup vin Abr statute e pl Bac Abr  statute I u when the provision of a statute be general it be subject to the  control and order of the commonlaw for statute be not presume to make any  alteration in the commonlaw further or otherwise than the Act express declare  therefore in all general matter the law presume the Act do not intend to make  any alteration for if the parliament have have that design they will have  express it in the Act king v the bishop of London I show say hard Mod and when  a statute alter the commonlaw the meaning shall not be strain beyond the word  except in case of public utility when the end of the Act appear to be large  than the enact word Vaugh forster case post   hob cart see further as to  construe statute by the rule of the commonlaw Inst b I Inst Plowd hob Mod Mod  win sand p wms Bac Abr statute I vin Abr statute e Com dig parliament r ante b  p post   ED a Bulstr   b   light b b die pl more ander hob e Det Ant a Br  joinder in action Com dig pleader e b   b Br dower Stath dow Fitzherbert vouch  Br vouch I Inst two S vin Abr contribution a pl Bac Abr warranty n seven c  more d e b roll I Fitzherbert voucher Inst two S vin Abr Jointtenants c pl d    light b I e pl b pl e pl h a h a e b Brownl Inst two S vin Abr Jointtenants e  pl W but if the one have nothing to render in value the other shall account  for the whole Br Jointtenants pl cit e vin Abr Jointtenants c pl ED e cro  James Bac Abr execution g heir and ancestor f three obligation d to know  facias c coke report b er p sheriff can do execution on the land of one only  and so if two be bind to warranty and both die both their heir ought to be  vouch and they shall be equal charge but against this two objection be make  saint that because each of they warrant the whole that both their land or the  land of the one or the other may be put in execution and so it be obiter say  in g h a but to that it be answer and resolve that although each be bind to  warrant the whole yet non sequitur that the recompense in value shall be make  by one of they only for if the heir be vouch in the ware of several person one  alone shall not be charge but all equal as be hold in e and yet the ancestor  do warrant the whole and where two or more be bind in a h recognizance or  statute now be each of they bind in the whole yet the land of one only shall  not be extend but it be also object that the case of a recognizance or statute  be not like the case of warranty for by the statute or recognizance the land  be present bind in who hand soever it shall come but so it be not in case of a  warranty to which it be answer and resolve that forasmuch as by the say book  of h and all other book it appear that the survivor and the heir ought to be  vouch together and so of the heir of both and Littleton chapter homage  ancestral say that the land which the I vouchee have at the time of the  vouchee shall be liable to render in value from thence it follow that the  charge shall be equal and that be a strong case than the case of the statute  or recognizance for the warranty extend to render in value land of inheritance  but if king husband and wife and the heir of the wife be bind coke Report14b  to warranty and the wife die the land of the husband may be alone put in  execution because there be no a moieties between husband and wife and thus be  diverse opinion in our book some whereof be ill report be well reconcile e b e  a h b h a e a b e e h a but in a personal lie it be otherwise as if two be  bind in a b obligation there the charge shall survive X so it appear by these  case that when land shall be charge by any lie the charge ought to be equal  and one alone shall not bear all the burden and the law in this point be  ground on great equity but in all the case at the commonlaw if the party who  shall be charge have alien the land good fide before any action bring the land  in the hand of the purchaser be not subject to any charge or execution and  this be the reason why the judge and sage of the law in construction of the  say statute although the land of purchaser after the judgement recognizance or  statute be subject to execution yet give great privilege to they than to the  conusor himself or to his heir also the statute of west cap provide quod  sheriff freely ei center point terrae of oneself which ought to be intend of  all his land so the statute of e enact that all the land of the conusor shall  be deliver to the merchant c and that be another reason why the c land of one  tertenant only shall not be charge with the whole debt forasmuch as by the  statute all the land be liable and the reason why the conusor himself at the  will of the conusee may be only charge be because he himself be the person who  be the debtor and who be bind and therefore be be f   a Inst two S Bac Abr  warranty n seven g   light b Brownl Br recover en value Br voucher roll e a  ass Br charge Br Jointtenants Br age Br error Br parole demurrer Fitzherbert  Fitzherbert execution Mod vin Abr Jointtenants c pl Bac Abr execution b I    light a light sect king roll cart keb vin Abr Jointtenants c pl a   b   a   a  b a b   b a light sect   light b vin Abr Jointtenants c pl b Brownl   light b  b roll e pl accord I e b pl vin Abr Jointtenants c pl Bac Abr execution g heir  and ancestor f three obligation d to know facias c X see n r sup c roll coke  report a er p subject to execution and it be but reasonable that he may be  only charge the same law of his heir for the reason before rehearse note  reader when it be say before and often in our book that if one purchaser be d  only extend for the whole debt that he shall have contribution it be not  thereby intend that the other shall give or allow to he any thing by way of  contribution but it ought to be intend that the party who be only extend for  the whole may be hearing complaint or to know facias as the case require  defeat the execution you and thereby he shall be restore to all the mean  profit and compel the conusee to sue execution of the whole land so in this  manner every one shall be contributory hoc be the land of every tertenant  shall be equal extend and afterward the counsel of sir William Harbert move  three error in the record coke Report15a the first be that the writ of to know  facias be to know facias heir the earth et property c which be improper and  against law for one be always call heir to his ancestor and not heir to the  land for ancestor and heir be having reference and it can be say that one be  thread or kinsman et haeres manor de dale but that a be seize of the manor of  dale in fee and die seize after who death the manor of dale descend to b as  kinsman et heir prediction a and show how and not prediction manor the second  error be admit the writ good then forasmuch as the writ require quod to know  fac heir the earth et property c the return of the sheriff quod to know fecit  William Harbert military spirit fill et heir predict Matthaei be not Pod  because be do not return he heir of any land or tenement as the writ require  for his warrant be not to summon the heir of the say Matthew but the heir of  the land and tenement of the say Matthew and e very return ought to answer the  point of the writ the three error admit the writ and the return good be that  the judgement itself be erroneous for the judgement be give general against  sir William Harbert quod dictam owner queen recupere versus pillage willielm  Harbert dictam tribune millia a balance et quod ipse idem William de the same  three thousand librar towards dictam owner queen nunc to load et ei ind to  give satisfaction and it be move by the defendant counsel that the judgement  ought to have be special for by this general judgement his own land will be  liable where by the law the land only which come to he by his father shall be  liable and as have be say he be charge as tertenant for the conusee can have a  action of debt on the recognizance against the heir for the recognizance be  quod tunc vult et to go away quod dictam money summa de good et catallis  terris et property c to lift up so that the charge be impose on his good and  land so that debt do not lie on it against the heir no more than on a recovery  in debt for there a to know facias lie against the heir but no action of debt  then although the heir make a default yet the judgement ought to have be  special and it be say in this case if the heir have appear and plead a false  plea yet the judgement ought to have be special for he be not charge mere as  heir but rather as tertenant z and with that agree e execution in a debt the  plaintiff recover and before execution sue the defendant die the plaintiff  pray a to know facias against a who be tenant of the defendant land and have  it coke Report15b who come and counterpleaded the execution and they be at  issue and afterward do not follow it wherefore execution be award against he  and the plaintiff pray execution as well of his d dyer pl Plowd Yelv more cro  James Inst more f n b b cro car roll Jones bendl Bulstr Bulstr e execution  sheep touch Cru dig Sugd vend vin Abr contribution a pl Bac Abr hearing  complaint b I execution b Com dig hearing complaint a you but this be alter by  the statute pound car c see ante p a n Q ED Plowd a b e b roll cro Elizabeth  cro car   light a b Fitzherbert b more   dyer pl Poph Bulst palm Jones z see  send for ante p b n b and the book there cite ED a Bulst Poph Jones coke  report b er p own land which he have the day he plead as of the debtor land in  his hand because he plead a false plea but by the rule of the court be can  have only the land of the debtor vide e but these point be not resolve by the  court but afterward on a petition make to the queen sir William compound with  her Plowden and coke be of counsel for sir William Harbert and note W well the  new writ of error after the entry of the first be not bring quod in person  thou to sit back because the record be not remove out of the keep of he who  have the custody thereof before but it remain in the same custody after the  writ of error purchase as it be before a