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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
book_n	abate_v	abatement_n	writ_n	43	3	9.6431	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A65445	The office and dutie of execvtors, or, A treatise of wils and executors, directed to testators in the choise of their executors and contrivance of their wills with direction for executors in the execution of their office, according to the law, and for creditors in the recovery of their debts : expressing the duty, right, interest, power and authority of executors, and how they may behave themselves in the office of executorship : with divers other particulars very usefull, profitable, and behovefull for all persons, be they either executors, creditors or debtors : compiled out of the body of the common-law, with mention of such statutes as are incident hereunto.	Wentworth, Thomas, 1568?-1628.; Doddridge, John, Sir, 1555-1628.	1641 (1641)	Wing W1358; ESTC R15205	180,173	328

shall account the release of him severed is a good discharge to the Defendant as was resolved 48. Ed. 3. 14 15. but this is not a plenary judgement for nothing is recovered thereby but another judgement is to be had after the account which may be against the Plaintiffe so as this release came before any debt or duty adjudged What if the Defendant be had in execution at the suite of the Executor who prosecutes it and escapeth whether may the severed Executor discharge the Sheriffe or Jaylor by a Release I thinke he may not By that above it is plaine that if any one of the Executors Plaintiffes dye the Writ is abated onely where he so dying was before severed opinions have beene different as above appeares So also is it if one of the Defendants Execntors dye Yea if the Plaintiffe Creditor sue A. B. C. as Execu●ors where onely A and B. are Executors there by the death of C. the Writ abates or falles to the ground yet A. and B. as I thinke might have pleaded in abatement that they onely were executors traversing that C. was not Executor but the Booke doth not so resolve See 46. E 3 f. 9. 10. As A. and B. above might admit that Writ against them and C. So if the Writ or sui●e had beene against A. onely and he so admit it not pleading in abatement the recovery against him alone is good 9. E. 4. 12. One that is Out-lawed or attainted in his owne person may yet sue as Executor because this suite is in anothers right viz. the Testators But he that is excommunicate cannot proceed in suite as Executor because none can converse with him without being excommunicate as a Booke sayes Yet doth not this excommunication pleaded abate or overthrow the suite but make that the Defendant may stay from answering his suite untill the Plaintiffe be absolved and discharged from his excommunication CHAP. X. Of the Possession of Executors or their actuall Having 1. What shall be said so to come to their hands as to charge them 2. What shall be such a getting or going from them as to excuse them WE have before considered what things shall come to Executors and being come shall be Assets in their hands Now for that it is said in Reedes Case that an Executor shall not be charged with or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship Let us now examine what shall be said and accounted such a full and compleate comming to the hands of Executors as shall make them within the reach and charge of Creditors and Legatees viz. For the payment of debts and Legacies As touching debts due to the Testator it hath before beene shewed that untill Judgement and execution had they bee not Assets in the Executors hands Now then as touching other goods or chattels possessory which are of two kindes viz. reall and personall Let us put the Case thus The Testator at the time of his death hath a flocke of sheepe in Comberland Corne in the Barnes in Cornewall Bullockes in Wales fat Oxen in Buck●sh●re Money Household-stuffe and Plate in London a Lease for yeares in Norfolke and his Executor dwelt at Coventry viz. farre from all these places what kinde of possession shall the Law judge this Executor to have in every of these instantly upon the Testators death and before he come where any of the things be either to see or seize upon them● In all the particulars above mentioned the Law is all one except the Case of the Lease for yeares which if it be of Land as is most usuall then because it is a setled and immoveable thing the Law doth not reach to it the foote of the Executor to put him in actuall possession for Possessio est quasi pedi● positio untill himselfe or some for him do actually enter therupon Nor indeed need the Law helpe o● supply the want of actuall possession in this Case as in the case of moveables since Land cannot be carried away as goods may and therefore is not subject to purloyning or imbesilment as moveables are But if the Lease for yeares were of Tithes the Executor though in never so remote a place from them shall be instantly upon the se●ting out thereo● in actuall possession of them so as he may mainetaine an action of Trespasse against any stranger which shall take the Tythes set ou● though he nor any for him did ever befo●e p●ssesse any of the said Tythes or came neere unto them But if the case were of a Lease for yeares of a Rect●ry consisting not onely of Tythes but also of Gleabe Lands into which entry may be made as also Livery of season in it then it may perhaps be some question whether such an actuall possession in Tythes shall be given by the Law to an Executor neglecting to enter or not entrying into the Gleabe Land And so I leave the consideration of Chattells Reall Touching things Personall in which the Executor hath such an actuall possession presently upon the Testators death as that he may mainetaine an action of Trespasse against any stranger taking them away or spoyling them though he nor any for him ever came neere them whether yet this shall be such a possession in the Executors and such a comming of these Goods to their hands as to charge them with payment of debts and Legacies yea to make their owne Goods lyable instead of these is a point worthy of consideration And doubtlesse this throughly sifted will prove a case mischievous whether way soever the Law be taken for first it must be admitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator whether the Executor hath resorted he shall be said so in possession as to stand lyable unto the Creditors so farre as they extend in value though after others purloyne or imbesill them Now then if distance of place shall make difference where shall be the bound and limit of that distance and if the Executor may come at a strangers taking or possessing of the Goods it is mischievous to Creditors On the other side if it shall be said upon the Executors to answer for all the Goods whereof the Testator dyed possessed it will be mischievous for them and deterre them from taking Executorship upon them fince much purloyning may be even of money Iewells and Goods by Servants and others about the Testator or where these things be I thinke therefore that if without any fraud collusion or voluntary conniving on the part of the Executors they be prevented by others of laying hold on the Testators Goods so as that they may dispose of them especially if it cannot be knowne by whom they are so purloyned and imbesilled or if they be persons fled or insolvent that then

him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and

thereof another reason is given where a man was bound that hee would not sue upon such a Bond and he dyed and his Executor sued this was held to be no forfeiture of the Bond. So where one was bound to pay ten pound within a moneth after request made to him and hee died before request it sufficed not to make it to the Executor as Manwood said It was likewise held that the warrant of Atturney put in for the Plaintiffe in debt sufficeth not for his Executor to bring a Scir● Fac. upon the judgement And if Executors sue execution upon a Statute in the name of a Conusee as if hee were alive this is voyd and they may sue out new extent and this they may doe without any Scire facias as well as the Conusee might if he had beene alive But by Hussey Justice if the Conusor in a Statute staple be returned dead by the Sheriffe upon the extent a Scire fac must be sued out before extent proceed and upon a judgement had if the recoverer dye before execution his Executor cannot as himselfe might sue out execution without a Sci. fac as is there said Yet if after a Capias ad sat awarded the Plaintiffe dye before it be executed the Sheriffe may proceed to the taking of the party and is not subject to any action of false imprisonment nay if he suffer him to escape he is chargeable as temp Elizabeth it was resolved upon the motion of Anderson but withall it was held that reliefe might be by Audita querela Like resolution was in the Kings Bench After some doubt by Wray and the other Judges where the Defendant dyed after a Fieri fac awarded and before it was executed that the Sheriffe might proceed upon the Goods in the hands of the Executors But if the Defendant in an action of debt upon a bond plead a tender at the time and place of payment and tenders the money in Court where it rests and then he dyes now shall not the Plaintiffe have this money because the property thereof is changed and become the Executors as was held in the Common pleas but he is put to a new suite against the Executor Yet where judgement is once given in a Writ of Partition for a termer or in a Writ of Account if the Plaintiffe dye before the second judgement needfull in both cases the Executor is not put to a new suite but may proceed by Sci. Fac. upon the former judgement as the Lord Anderson held upon the motion of Fenner Serjeant Though before we found the Executor not in points penall all one with the Testator yet in points beneficiall the Testator includes him in some cases as where an Abbot granted to his Lessee to take Estovers in another ground it was held that his Executor though not named should enjoy this during the terme as well as himselfe should have done And whereas the Stat. 23. of H. the 8. gives costs to a Defendant against a Plaintiffe suing for a wrong or breach of promise or the like done to the Plaintiffe against whom it passeth by verdict or nonsuit it hath beene resolved that an Executor suing upon such wrong o● breach of contract to his Testator made should not pay costs because he is another person then the Testator and so is it usuall in experience But if in such suite the Atturney of the Executor mis-behave himselfe towards him and for this the Executor sueth him here if it passe against him in mannēr as aforesaid he shall pay costs because this was a suite for a wrong done to himselfe If A. recover a debt as Executor of I. S. and makes B. his Executor and dye before execution sued B. is not put to new suite but may have execution upon that Judgement But if A. or B. dyed Intestate now could none as Administrator to either of them nor as Administrator of I. S. have execution of this Judgment for the former hath no interest in any thing partaining to I. S. and the latter commeth to title above the judgement viz. as immediate administrator to I. S. who is now dead intestate and derives no title from the Executor who recovered If a Conusee have a Certificate into thē Chancery upon a Statute and then dyes before extent taken out his Executor is put to a new Certificate and for obtaining of it must make Affidavit that no extent hath yet been taken out If an Alien joyne with his Wife who is Executor in a suite for debt and it commeth to Issue he shall not have tryall per medietatem alienig or Linguae as should be if he otherwise were party to a triall as was held in the case of Doctor Iulio Yet if a noble man sue as Executor to another not noble he shall for his nonsuite be amerced five pound as if he sued in his owne right as was conceived 21. E. 4. 77. By the same rule and reason doubtlesse a Noble man sued as Executor shall not be arrested nor shall any Capias be awarded against him for not appearing And if any triall shall be of any issue there shall be two Knights of the Jury as in other cases where a peere is party Likewise where the Wife is to have her convenient apparell whereof the Executor must not bereave her If she be a noble woman it shal be answerable to her degree If one Executor or onely sell goods of the Testator he alone may mainetaine an Action of debt for the money So if goods be taken out of the possession of one Executor hee alone may mainetaine an action and that without naming himselfe Executor Some touch hath beene before of Summons and severance whereabout be this added If one Executor will not or cannot joyne in suite with the other so as he is summoned and severed now by his death after the suite is not abated 16. Ed. 2. Fitzh 111. yet if he live till judgement he may sue execution say other Bookes 13. Ed. 3. Fi●zh Exec. 9. 11. R. 2. Priviledge 2. yet Que. of that for he cannot acknowledge satisfaction as hath beene since resolved Mich. 14. 15. Eliz. Dy. 319. And the reason thereof being because he is no party to the judgement by the same reason can he not sue exēcution upon it for how can he have execution for whom there is no judgement given now the recovery is onely in the name of the other Executor yea by the said last Booke it seemes that after judgement had he cannot release the debt because it is now altered in nature and turned in rem judicatam though at any time before judgement he might have released it as both that last booke saith and the two precedent temp Ed. 3. Rich. 2. yea in an action of account after judgement had that the Defendant

having a lease for twenty yeeres did demise the same to I. S. for the whole terme if hee so long should live if hee were alive in time of the former verdit but now is dead the terme continuing this is now assets which before was not whilst it was but a possibility of a terme Other instances might bee given but these may suffice If the Executor pleaded that the Testator stood bound in such a Statute or that there was such a judgment against him of debt to the King beyond the satisfaction whereof the goods would not reach This is in effect a fully administred though speciall and not generall and the Law is alike as I take it in all these cases as to the not making of the Executors goods lyable But in all these causes though the debt shall not bee adjudged upon the Executors owne goods yet the damages shall in default of the Executors goods to satisfie them And in these cases it is not materiall whether the judgement passed upon trial or demurrer Nay if the defendant Executor plead no plea but confesse the action generally or bee condemned by Non sum informatus the judgement is the same viz. to record the debt onely out of the Testators goods and the damages of the Executors goods in default of the Testators what if the Executor defendant confesse that hee have assets to the value of part of the debt not of the whole there for so much as is confessed the plaintife may pray and have judgement presently without dammages and may maintaine for the residue of the debt that the defendant also hath assets for the rest and so goe to triall as appeares both by the printed Booke of entries and another manuscript which I have But what if this triall passe against the plaintife shall hee then have an additionall judgement for dammages in respect of the former I thinke hee shall have costs which commonly runne with or in the name of dammages but without a writ to enquire of dammages none being found by Verdicts the Court doth not usually adiudge dammages yet in the Booke of entries I finde 6 s. 8 d. dammages assessed by the Court upon a confession in a writ of Rationab parte bonorum against Executors and this hath much affinity with the action of debt Yea in the very action of debt where the Iurors for miscariage after their departure from the Barre were fined I find that the plaintife renouncing the assesment of dammages by them made and praying the Court to assesse the same it was done accordingly but this was a speciall case Whereas wee before shewed that an Executor denying his executorship shall if it bee found against him pay the debt of his owne goods for his false plea This thereabout occurreth to bee added viz. that that is onely where the immediate executorship of the defendant is denied For if B. bee made Executor by A. and B. dying makes C. his Executor now if C. bee sued for the debt of A. as Executor of B. Executor of A and hee denyeth that B. was Executor of A. which by consequence is a deniall of his being now Executor of A. yet if this fall out in triall against him hee shall not in his owne goods stand liable to this debt because it is possible that hee might not know to whom his Testator was Executor So if A. made B. C. and D. his executors and E. is sued as executor of D. the surviving executor of A. if E. deny that D. his Testator survived B. and C. by consequence whereof hee denieth the truth viz. that the executorship of A. is devolved to him yet shall not this found against him charge his owne goods for hee might bee ignorant of this point in fact viz. whether B. C. or D. lived longest And heere hee denied not his owne immediate executorship but a mediate or more remote executorship and so I thinke is the Law where C. being sued as executor of B. executor of A. hee pleades that A. by a latter Testament made himselfe executor which is found against him so as heere hee falsely pleaded and pretended himselfe to bee the immediate executor of A. and so denied the mediate executorship viz. of B. to A. and of him to B. yet Quere of this for why should not as well his false making himselfe an executor immediate to the indebted Testator charge his owne goods as well as his false denying of that executorship since both plees tend to the overthrow of the plaintifes action and each equally rested in the defendants knowledge But this difference is betweene them apparant viz. that the deniall of executorship if true is an utter and perpetuall Barre to the plaintife as against him so pleading but the affirming of an immediate executorship where hee was sued as executor mediate doth not so it true but directs the plaintife to a better writ or action viz. against him as immediate executor to the indebted Testator Where we have before touched upon the comming of Assets futurely to executors I think it not amisse to consider a little the forme and frame usuall in pleas of fully administred which thus runne viz. Quod die impetr plene administravit omnia bona catalla quae fuerunt praed S. temp mortis suae nihil hab de bonis c. quae ●uer praed S. temp mortis c. Thus tying his deniall upon the things which were the testators at the time of his death What if then the executor have at the time of this plea pleaded goods with were not the testator● at his death but since accrued as before is shewed or perhaps a lease for yeares sold by the testator upon condition to be void if five hundred pounds not paid at such a day which hapning after the testators death and default made the terme returneth Or if the executor by a writ of error reverse a judgement given against his testator for two hundred pounds and so is restored thereunto May the plaintife now reply generally that he hath assets which were the testators at the time of his death How can the Jury so finde when the truth is not so Surely this case is not common nor can I shew a president of a speciall plea therein But in reason me thinks it should be specially and not generally pleaded and set forth in the replication And in case where one sued as executor denieth that he was ever executor or administred as executor I finde sometimes the replication generall that he did administer without shewing wherein or how and sometimes speciall shewing what thing was administred and where Here note that the executor defendant denying as he must two things viz. 1. That he never was executor 2. That he never administred as executor the plaintife in his replication is tyed to maintaine but the one of them as the truth of the case is that is if in truth the defendant were