case CARIVIL executrix of dodsworth against Edward Trinity term will mary roll  to debt on bind by a executor the defendant can plead in bar that the testator  and other creditor of the defendant enter into a letter of licence with he in  which they covenant and agree not to sue he within such a time on pain of  forfeiture for it do not amount to a release of their debt S Carth SC holt  debt upon judgement on a obligation make to the testator and set forth the  bind and recovery by the testator in his lifetime the defendant plead that the  plaintiff ought not to have her action because he say that the testator in his  lifetime after the make the obligation and recover the judgement aforesaid  videlicet February at the parish aforesaid in the county aforesaid by certain  article of agreement indent make grant and agree between the say defendant per  nomen c and the say testator in his lifetime and I b and h king principal  creditor of the say defendant on the behalf of themselves and the several  creditor of the say defendant in a schedule to the say article annex name by  and with their consent testify by the subscription of their name and set to  their seal and deliver the same as their act and deed c the which article seal  testator hic in cur profert recite the defendant indebt and not able to pay  they without their compliance in accept such satisfaction as he can give be  all equity of redemption in certain house c it be covenant conclude and agree  by and between the say defendant for himself his executor and administrator to  and with the say testator and the say I b and h king joint and several and  with their several executor administrator and assign by the say article as in  the same be mention imprimis the defendant licence and authorize the say  testator and I b and h king to dispose and sell the right aforesaid c and that  upon the sale thereof he to seal deed as they shall advice and after the  mortgage money and interest pay and the expense about such sale c the residue  of the proceed thereof to go to satisfy the several creditor as the same can  suffice proportionable and that every creditor upon receipt of his proportion  as aforesaid shall make seal and deliver to the defendant a general release  and further agree by and between the party to the say article quod interim et  until what time premissa offer for sale to bore ut Pred be et extunc postea  breed William Edward the defendant non follow continually well prosecute foret  ad shower KB er p law well person sive bon per some speaker creditor before in  shower KB the same point of time mentionat well once residuor subscribe insert  pro aliquan re past sub penalitate reliction et exoneration debt is owed well  debtor tall personae sive personar creditor sive creditor qual such to follow  eagerly et to follow sectare et to follow ut predict be prout per full of  joints breed abundantly to be fluid et that this only is apparent and so the  defendant say that the plaintiff by prosecute and exhibit his bill aforesaid  against he the defendant aforesaid and upon the obligation and judgement  aforesaid have forfeit to the say defendant the say debt accord to the true  intention of the article aforesaid et hoc a preparation be verify unde petit  jud upon this there be a demurrer join I argue for the plaintiff that the plea  in bar be ill this be only a covenant and not a release be may bring his  action on the covenant and recover the value of the debt here be no word of  release as be mention in   light it be only say he will not sue under pain of  forfeit his debt I e the sum this be not as it be in the case of Macbeth v  Cobb mich James that the debtor shall be acquit and as some letter of licence  be pen that the same shall be take and accept as a release I will not  controvert but that a release may be upon condition but this be not such a  deed may be defeasanced and so may a judgement but this sound mere in covenant  for there it be agree that express release shall be give when they receive  their money out of the sale of the equity of redemption this be not like the  case of Hickmott   where by indenture he acknowledge himself full satisfy and  discharge of all bind except one such and reply that the bind in suit be  except and hold a release of these not except because acknowledgement of  satisfaction here be no such declaration only a covenant not to sue there be  the case of buller v Monnings Noy per Anderson chief justice a seize of three  acre grant a rentcharge out of they to b and then feoff c b covenant and grant  to and with c that he will not charge the say two acre grant to c with any  distress for the say rend afterward and the question be if it be a release and  by Anderson hold that it be not though Glanville think it one second this  action be bring by my client who be executor and therefore this suit be no  breach of the condition for that be by the party subscribe to the article now  we be none of those a suit by we be no suit by our testator and so it be  express resolve in the case of the prior of saint John of Jerusalem Henry pl  where it be agree by Fitzherbert and deny shower KB by none that if I be  oblige to you that I will not sue I S my executor may sue I S and it shall not  be any forfeiture of the obligation for this condition be a collateral thing  and shall be construe accord to the word which extend to the person only and  not to the heir or executor it be true the executor represent the person of  the testator as to obligation and liens but not in condition in collateral  clause the executor be bind and shall answer a breach of this covenant because  include in the covenant though he be not name but since the covenant be that a  shall not do such a act a s executor be not include in the name or person of a  because that be collateral suppose a be bind that he will not go to York in  seven year no man will say that the executor go thither within the seven year  be a breach though the executor be bind if the testator go Wentworth beside it  be the party subscribe now we never subscribe and that explain their intent  and meaning to be clear that the party themselves be only intend and not their  representative as in sir Francis Englefields case be agree if a man make a  settlement with a power of revocation by write under his hand and the party be  beyond sea refuse to return whereupon his land be to be seize the king can  make a revocation because the act be restrain to his person to a write under  his own hand though it be adjudge that the king come in his place and stead  and may make a tender of a gold ring or piece of money or the like but the  former be hold to be mere and strict personal in that very case of the prior  the fact be thus a lease be make with a proviso that if the say prior or any  of his brother commander will inhabit upon the same and keep it for their own  use then upon notice the lessee and his assign to remove the lessor die and  the successor give notice to remove and then enter there be diverse question  in the case as if it be a condition c but one great question be if the  successor be include and hold by all that he be not for a successor may take  or be bind by the act of his predecessor and shower KB er p yet in condition  collateral a successor be not include unless name Henry pl a executor in truth  represent the person of the testator but that be chief as to beneficial not to  penal point for in the latter they be different person and in suit it be so  reckon though in thing for their benefit Noy bro title stat merch if the  conusor in a statute be return dead by the sheriff upon a extent a to know  facias must go against the executor c so on a judgement to know shower KB  facias be necessary on death of either party to have execution the reason be  because they be esteem different person in our law the reason of abate suit by  death prove this sufficient pray my Lord consider the reason why a executor  shall not pay cost by force of Henry c which give cost to a defendant against  a plaintiff sue for a wrong or breach of promise or the like do to the  plaintiff against who it passes by verdict or nonsuit the law be rule to be  that a executor sue upon such wrong or breach of contract make to his testator  shall not pay cost because he be another person than the testator to who the  wrong or injury be suppose do and therefore not do to the plaintiff within the  word of that statute and if this be not the reason I know of no reason at all  for it it be no answer in our case to say that the chancery will compel a  execution of and compliance with these article for their rule rather prove the  commonlaw videlicet by contrary this be to be take strict because it be quasi  a condition and because it be to defeat a just debt without payment or  satisfaction suppose a condition be annex to a term for year that the lessee  by name do not alien and the lessee die and his executor alien this be hold no  breach dyer pl Edward and this be agree for law roll Rep now this be because  the intent ought to be only to restrain the person of the lessee condition not  to alien but to one of his brother be alien to one of they who alien to  another hold no breach Whitchcott v fox cro James dyer and as the case be roll  Rep hold that covenant or condition that be penal shall not extend further  than the person name so it be likely to have be the meaning of the party here  and the true design of these article may be to reach only to their own act my  client testator may be Willing to oblige himself not to sue under pain of  forfeit his debt because he need it not as have a annuity or pension or office  or profession or trade for his life but he will not oblige himself that his  executor shall not sue for his child or next of kin may have more need and so  not be in a condition to be so charitable so that perhaps if the clause have  in word extend to executor he and many more will not have sign the article and  therefore the word be only to personal act and the thing admit of such a  intent I conceive our suit no breach of the agreement and therefore pray  judgement for the plaintiff Mr shower KB hall e contra argue that this be a  sufficient release and cite for it Henry pl Bulstr Bridgman and cro   light  Edward Fitzherbert damage sand but he say nothing to the other point be  unprovide holt chief justice this be no release but a defeasance and such a  one there may be by another deed more and the question be if here be a  acknowledgement of satisfaction Adjornatur a