550 PRINCE GEORGES COUNTY

hundred Ninety and Seven whereof hee was Convict as by the records and prossess
thereof in our Said Court remaineth to be done as by the insinuation of the Said
Brooke our Sovereigne Lord the King is given to understand and because etc.
that by Law etc. he make knowne unto David Small administrator of the Said
Charles Treacy that hee bee and appear here the 4th Tuesday in March to Shew
Cause if etc. wherefore the Said James Brooke his Execution against him the Said
David Small as administrator of all and Singular the goods Chatties and Creditts
of Charles Treacy Deceased against him ought not to have according to the
recovery thereof: And now here at this Day (to witt) the 26th of September
Annoque Domini 1699 came here as well the Said James Brooke as the Said David
Small and the Said James Brooke by William Stone his Attorney Prayeth that the
Said David Small to his writt of Scire facias may answer.

And the Said David by Joshua Cecell his attorney comes and Defends the force
and Injury when etc. and Saith that the Said writt and Matter in the Same Con-
teined is not Sufficient in Law to Meinteine the writt aforesaid So as aforesaid
Prosecuted and that he hath noe need Neither by the Law of the Land is held to
answer to the Said writt etc. and for Causes of Demurer according to the forme of
the Stattute Saith that in the Same writt it is not Conteined upon whom or upon
what Execution in the Said writt Should be Leavied whether upon the body of the
Said David Small or upon the goods and Chatties of the Said Charles Treacy De-
ceased for noe Execution can be ewarded upon the body or goods of and Execu-
tor or administrator Debonis propris untill a writt of devestavitt have been
Legally returned against the Executor or administrator that they have wasted the
Esteat of the Deceased or that the Executor or administrator have pleaded Some
falce plea to the perpetuall barr of that Plantiff's Debt Sued for and if the Judge-
ment to be affirmed in the Same writt of Scire facias aforesaid Supposed to be
made upon the Goods and Chatties of the Said Charles Treacy Deceased as it
must [467] be if any obteined the writt of Scire facias Should have mentioned
why the Said James Brooke Sought not to have his Execution against the Said
Defendant of the Debt and Damages aforesaid to be Leavied of the Goods and
Chatties which ware of the Said Charles Treacy at the time of his death etc.
which this writt makes noe mention off for which uncertainty in the writt of
Scire facias aforesaid noe Certaine Judgement cann be Entred for the Count or
Declaration must be agreable and Conforme to the writt the bar lo the Count or
Declaration etc. and the Judgements to the Count or Declaration for none of
them must be narrower or Broader then the other, Cookes Institutes: folio 303
A wherefore for want of a sufficien writt of Scire Facias to warrant and maine-
teine a Judgment to be affirmed by the Said wright Supposed aforesaid the
Defendant prayeth Judgment for his Damages and Costs etc. Joshua Cecell
for the Defendant.

And the Said James by William Stone his attorney Saith that by any thing
alleadged in the Defendants Plea aforesaid he ought not to be barrd of haveing
his Scire Facias aforesaid and for replication Saith etc.

That the Scire Facias aforesaid is well brought by mentioning therein the Said
David Small to be the administrator of the Said Charles Treacy and that Execu-
tion may Safely be awarded against the goods and Chatties of the Said Charles
Treacy Deceased and not against the David Small as Executor Or administrator
Debonis Propris or that the Said David Small hath wasted the Esteate of the
Deceased or that the Said David hath wasted the Esteate of the deseasd hath
pleaded any Falce Plea to the perpetuall Barr of the Said Plantiffs Debt Sued for
are but meer Niceyties in Law and alltogather contrary to the Cusome and Prac-