340        Provincial Court Proceedings, 1668.

       Liber FF   petitioner his master, And this for the security of trade and cofherce,
              It being a most necessary Law in yr Lopps said province That debts
              incurr'd in the way of trade and accompts relateing to trusts in trade
              should be preferred to haue satisfaction before debts incurr'd which
              haue no relation to trade.
                Thirdly As to proceedings in yr Löpps said Court I humbly con-
              ceive the same to be wholly erronious 1o there was an action of debt
              brought upon the bond mentioned in the petition which action was not
              comenced or prosecuted in the name of Margarett perry the Obligee
              by Gittings her Attorny as it Ought to haue been But in the name of
              Gittings Attorny of perry And all the proceedings even to the judg-
              ment and execution are pursuant to the first processe and declaracon
              so as the recovery is not to perry but to Gittings the Attorny of perry,
              whereas there was nothing due to Gittings And the bond remaines
              still in force to be Sued by perry against the executrs of Bateman Nor
              can this judgment be pleaded in barr against perry or against the
              petr or any Other Creditor of Bateman Because in pleading of a
              judgment upon execution it must be pleaded to haue bin pro vero
              debito due to the plaintiff or recoverer in the judgmt, which in this
              case there was no possibility to plead The plaintiff or recoveror in the
              judgment haueing nothing truly due unto him upon this Obligation
              For all that he could pretend was an authority to sue for and in the
              name of perry And he contrary to his Authority hath gained a judg-
              ment in his Owne name for himselfe 2o The action of debt if it had
              bin well brought in the name and at the suite of perry against the
        [p.639]   executrix of Bateman could never haue affected the lands of which
              Baternan dyed seized, for to affect a Free hold the Action must haue
              been brought against the heire and not against the executrix, And
              if the Court had an Opinion that the action might well lye against
              the said Mary to affect these lands to which they conceived she was
              entituled as devisee they mistooke the Law, For No action can lye
              for a debt of a Testator but Only against his heirs executrs or admin-
              istrators and not against any one as Devisee or Legatee Yett this
              action was not brought against Mary as Devisee but as executrix
              Notwithstanding which the Court directed the lands to be valued
              and at the first petition of this deft decree the Lands to her 3o The
              Quietus est is such a way of proceeding in a case of this nature as
              hath not bin heard of in England And I conceive it is wholly void
              as being against Reason, It is a rule in Law That an Act of parlia-
              ment against Law would be void. My Reason against this Quietus
              est is That it is to barr all persons from sueing an executrix for any
              debt due from the Testator, she haveing alleadged voluntarily not by
              way of pleading that she had fully administred And upon this Allega-
              con this process was Obtained. Now the plea of fully administred
              may be a good plea by way of pleading against some debts where
              other debts which the Law preferreth are pleaded as paid But it is