barker and DUMERES Jan by the ancient course of the court a person be allow to  bring his action at law against the Representative of a decease and at the  same time to bring his bill here in order to have a discovery of asset when a  creditor sue a executor at law and at the same time file his bill against he  in equity equity will not require he to make his election in which of the  court he will proceed in case the executor be attempt to prefer other creditor  before he by confess judgement to they Robert Dumeres die intestate and on his  death Edward Dumeres who be a relation of his apply for Administration Barker  who be a creditor of Robert by bind oppose the grant of the Administration to  Edward by reason of his insufficiency and his intention of go over to jersey  however Administration be grant to he this Administration be in some measure  grant to Edward by the leave of this court Barker have enter a caveat against  its be grant to he though that caveat be afterward withdraw but as there be  these objection against he Barker file his bill against he the saint of  October last for the payment of his debt and pray that he may give security to  abide that determination his answer come in the that of next month and a order  be make that he shall find such security which he accord do after this merry  who be another BondCreditor to the intestate bring his action at law against  Edward and Edward confess a judgement to he in Michaelmas term in that same  year in pound this occasion barker bring his action at law against Edward upon  the same bind for which the bill be bring here Barnardiston er p in order that  Barnardiston Edward may not confess judgement to other person before he can  get judgement against he as soon as this action be bring a motion be make on  the part of Edward pray that Barker may make his election which court he will  proceed in whether at law or in equity and a order be make for that purpose  accord thereupon Barker amend his bill by suggest that Edward have confess the  judgement to merry collusively and to this bill make merry a defendant but  before that merry be ever serve with a subpoena to answer this amend bill a  motion be now make on the part of Barker pray that the order may be discharge  by which he be oblige to make his election Lord chancellor say his opinion be  that this order ought to be discharge he say it be very true that it be the  general rule of the court that a person shall not be allow to proceed both at  law and in equity for one and the same demand at one and the same time but  notwithstanding that it be as certain that by the ancient course of the court  a person be allow to bring his action at law against the Representative of the  decease and at the same time to bring his bill here in order to have a  discovery of asset though now it be establish that if the party proceed in  equity against such Representative his bill must be both for a discovery of  asset and a satisfaction for his debt and he shall not be allow to proceed  both at law and in equity and where the party have proceed in both court  several order have be require he to make his election but where the court see  that the Representative be confess judgement that be a reason and his lordship  say in his judgement shall always be a reason that the court will not require  the party to make his election the court of law distinguish the case of  executor in instance Barnardiston similar to this from other case therefore  though the constant course of those court be on reasonable circumstance to  give a defendant far time to plead than he be oblige to plead in by the strict  rule of the court yet when a executor apply for this favour the time for plead  shall not be enlarge but by his consent not to confess judgement in the mean  time it be indeed true that a executor in some instance may honest confess  judgement to other creditor as where he do it to prevent his be double charge  or the like but when this court see that he do this in order to elude its  order the court will never permit it now what be the nature of the present  case the original bill be file the saint of October last the answer of Edward  come in the that of November follow and in the beginning of Michaelmas term  here be a judgement confess by Edward to merry in pound the Administration it  self be in some measure grant to Edward by the leave of this court Barker have  enter a caveat against its be grant to he though that caveat be afterward  withdraw the proper order for the court to make in this case his lordship say  be that Barker shall make a special election namely to proceed at law to  recover judgement there and to proceed in this court for a discovery and a  account of asset but that he shall not be at liberty to take out execution  upon the judgement without leave of this court and so his lordship be please  to order accord