Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	defendant_n	judgement_n	plaintiff_n	1,984	5	10.5099	5	true

Text snippets containing the quad

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

made executor but never did administer now it must be replyed that he was made executor at such a place without speaking any thing of his administring On the other side if he did administer but were not made executor then only the administring is to be replyed but if it shall be found that the defendant had administration to him commited and so administred by vertue thereof then is the verdict to passe for the defendant for this is no administring as executor and upon a generall deniall thereof this may be given in evidence as the Lo. Dyar reports to have beene resolved But if the plaintife do in his replication maintaine both the points shall this make his plea double Me thinks it should yet I finde it so replyed and no exception taken for the doublenesse Tr. 17. H. 8. Rot. 28. A sole woman being executor maketh a deed of gift of the testators goods in trust but continueth possession of them and marrieth J. S. who also hath possession of the goods and in an action of debt by a creditor fully administred is pleaded now upon evidence the verdict shall passe for the plaintife for this alienation being fraudulent was void as to all creditors and so as to the plaintife the goods continued the testators and so assets in the defend●nts hands as was held in the Kings Bench. If fully administred be pleaded where the defendant hath assets for part but not sufficient for all and so it is found yet shall not judgement be given for the whole but for part presently with a further award that when more shall come to the executors hand the plaintife shall then have further judgement for the rest so as that false plea doth him no prejudice but makes him in as good state the charges of triall excepted as if he had confessed himselfe to have part And I think the plaintife upon that confession of part may pray the like judgement without maintaining that the defendant hath sufficient for the rest for if that be not true why should he be put to the charge of a triall by Jury yea Sir Edw Cooke at the Barre Tr. 36. Eliz. said that where fully administred is pleaded the plaintife is not tied to maintaine the contrary but may presently pray and have judgement to recover it when assets shall futurely come to the defendants hands which was denied by some but truly me thinks the law should be as he said as well as in the former case where for the part which the defendant had not assets to pay it so was done upon verdict so finding But there as I conceive it was not a present judgement but an award that he should have judgement futurely so as after whē assets come to the defendants hands the plaintife must have a Seire faeias against the defendant to shew cause not why he should not have execution but why he should not have judgement as I take it yea where it is found for the defendant that he hath fully administred yet was is held by all the Justices 33 Hen. 6. 23 24. and by ●riso● 34 Hen. 6. 24. that when assets after come to his hands the plaintife shall have a Scire sacias to have satisfaction out of them but there Markham Yelverton and Forteseu were of contrary opinion and so was the whole Court 4 Hen. 6. fo 4 And it stands with great reason that where upon a verdict fully found against the plaintife judgment is given quod nihil capiat per breve there he cannot have any writ to execute the judgement for him but is put to a new action of debt yet where it is found that the defendant hath assets for part of the debt but not sufficient for the whole there it is very congruous that the plaintife have presently judgement for part and after when more commeth then by Scire facias against the defendant obtaine judgement and execution for the rest for here both verdict and judgement were for the plaintife against the defendant whose plea that he had no goods was false and so found by the jury And this difference was strongly avowed by Serjeant Hanham Mich. 33. 34. Eliz. and after approved by Fenner Iust 36. Eliz. none contradicting it yet a book was cited that the plaintife recovering so much as was found in the executors hands should be amersed for the residue which Popham Chiefe Iustice denied to be law Chap. XVI Where judgement shall be against the Executors owne goods though no plea of the defendant nor vastation do so occasion and of the severall manners of judgement in severall cases HOw by wasting called by us commonly a Devastavit an executor may draw down the execution upon his owne goods hath formerly beene handled and discoursed of as also what kinde of pleas doe make the executors owne goods liable to the debt and what not Now let us see where without mis-administring or mis-pleading yet the nature of the action shall lay the whole debt or thing recovered upon the executors owne goods And this we shall finde in some few cases 1. Where an executor is sued for rent behinde after his testators death upon a lease for yeares made to the testator and by him left to his executor Here it shall be adjudged and levied upon his owne goods for that so much of the profits as the rent amounted to shall be accounted as his owne goods and not his testators therefore is he to be sued as well in the debet as the detin●t where in other cases he is not but in the detinet only being sued as executor So if any thing delivered to or detained by his testator come to his hands and he still detaines the same after the demand and be thereupon sued in an action of detinue for this is his owne act nor in this case need he to be named as executor for he shall not answer damages for his testators detaining So if he assume to pay a debt of his testators having assets and be sued upon this Assumpt the which debt is to be recovered in damages and that upon or out of the executors owne goods yet is this action and the assumption which is the ground thereof founded in the executorship and his having assets for if either he had not beene executor or if he had not assets at the time of the promise it had beene nudum pactum and would not have bound him nor given good cause of suit Nay to go further in the case of assumption by the testator and suit against the executor thereupon we finde the judgement in M. Plowdens Commentary given against the executor generally as if he had not beene an executor not fixing it upon the testators goods yet there the very debt it selfe is included in the damages But contrarily was it after in the seventh yeare of the late King viz. judgement given that as well the damages as the costs should be levied