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 â—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 testatorâ— 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
of the testators goods if so much in value of them were in the defendants hands and if not then the costs only of the goods of the executor And this surely is the righter and more just way for there is no reason that upon on a promise more then upon a bond the law should cast the whole debt upon the back and state of the executor But perhaps the two judgements may be reconciled thus the later was given upon a verdict non assumpsit being the issue and there the Iury assessed damages in certain viz. two hundred fifty three pounds with the costs So as here the judgement was compleate and full viz. to recover the said summe but in the other case the judgement was had upon a demurrer so as the damages not being knowne it was generally that the plaintife should recover his damages against the defendant Sed quia nescitur quae damna c. because it appeareth not to the Court what the damages were therefore a writ was awarded to inquire of damages upon the return whereof executed the judgement was fully and compleatly to be given of a summe in certain which second judgement it appeares not by the book in what manner it was entred and therefore might perhaps bee then agreeable with the other And that the said first judgement before damages inquired of is not a plenary full judgement but an award of judgement hath beene divers times resolved and that therefore any defect and insufficiency in the declaration may be shewed time enough after the first and before the second judgement Yea if the plaintife dye before the second judgement though after the first the action falleth to the ground So if the defendant dye otherwise of death after full judgement But this notwithstanding and howsoever it there were done upon the second judgment me thinks it were righter and fitter that the first judgement should expresse that the damages should be had and levied out of the testators goods for whom and in whose right the executor is sued Another case there is wherein the judgment must be as it seemes against the executors own goods viz. in an action of covenant for a breach of covenāt since the testators death for so was it held both by all the Judges of Common Pleas except the L. Dyar and by the pregnotaries in the late Queenes time where the case was of an house upon the lease negligently burned in the executors time for which damages only were to be recovered And sometimes where the executor himselfe is so to beare the burthen I finde the judgement entred that the summe recovered shall be levied of the lands and goods of the executor Chap. XVII Of women covert Executors THere being two kinde of persons who have some disability upon them viz. Femme coverts or married women and infants touching whom we find in many places question and disceptation in our bookes We will consider of them by themselves or apart from others yet not joyning them together neither but each by himselfe separately First therefore of Femme coverts touching whom we will consider these three things First whether they may make Wills and executors with or without their husbands assent and how where and in what cases Secondly whether they may be made executors without their husbands assent or how their husbands may hinder it Thirdly what acts in execution of the executorship they may doe without their husbands or their husbands without them A woman married or femme covert wee know is Sub potestate viri cui in vita contradicere non potest as saith the writ given by the Law to the wife for recovery of her land after her husbands death being aliened by him Therefore it is that Judges when a woman is to acknowledge a fine of any land doe examine her apart from her husband to know whether she bee willing or come to doe it by the compulsion of her husband It is therefore hard for her to have freedome of will and consequently freedome to make a will Besides all her moveables or goods personall which shee had at the time of her marriage otherwise than as executrix or administratrix are by the Law totally devested out of her and setled in the husband as fully ipso facto upon the very marriage as any other that were his owne before Of these therefore she can make no disposition no more than of other her husbands goods But in case shee doe by will bequeath them although the will and gift be void yet if the husband as the case was in the time of Edw. the second do after his wives death consent to this her will gift by delivering of the goods bequeathed after her death or assenting that the legatee take them by vertue of such will and gift this amounteth to a new gift by the husband If a woman have a lease an estate by extent a wardship the next avoydance of a Church or other chattell reall these are not devested out of her into her husband by marriage but in case she over-live him they continue to her as before no alienation or alteration having been made by the husband who had power to dispose of them by gift in his life-time though not by his will yet such a woman in her husbands life-time could not of or for these things without her husbands assent make an executor or will but she dying before him they would by the operation of law accrue to him And here then observe a case though not frequent yet full of mischief when it happens Suppose that a woman indebted a thousand pounds and having leases and moveable goods to the value of three thousand or foure thousand pounds marrieth with I. S. and then dyeth before the debt bee recovered against her in this case the husband shall have and goe away with all this value of his wife and is not in law lyable to pay one penny of her debts because hee is neither her executor nor administrator What the Chancery could doe or rather what the Lord Chancellor or Lord Keeper would doe in this case I will not take upō me to say or determine Another sort or kind of goods or rather interests a woman may have viz. debts or things in action which as the former are not devested out of her by marriage into her husband nor yet can shee thereof make an executor without her husbands assent although they be one degree farther from the husband than the said chatels realls for that though th◠husband doe overlive the wife he shall not be intitled to them as to the former But if his wife make him executor as she may or if after her death hee take administration of her goods then as he is thereby intitled to them so is he lyable also to pay her debts out of the same when he shall have received them Lastly Dato that a woman covert
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 Scirâ— 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 oâ— 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 manneÌ„r 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 theÌ„ 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. Fiâ—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 exeÌ„cution 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
upon a statute And if they had no warning in the Scire facias but upon nihil returned the judgement passed there also the executor may bee releeved by audita querela because there was no default in him that hee did not plead or set forth the judgement upon the suit in the Scire facias Nor will it bee any plea for the creditor by statute to say that his statute was acknowledged before the judgement and so is more ancient for a latter or more puisne judgement is to bee preferred before a statute in time precedent But if this judgement be satisfied and it only kept on foot to wrong other creditors or if there be any defeasance of the judgement yet in force then the judgement wil not availe to keep off other creditors from their debts And thus much touching debts by judgement viz. how they stand in priority before other debts by statute or recognizance Now to see how they stand among themselves let this be observed viz. that between one judgement and another had against the testator precedencie or priority of time is not materiall but he which first sueth execution must be preferred and before any execution sued it is at the election of the executor to pay whom he will first yea if each bring a Scire facias upon his judgement the executor may yet confesse the action of which he will first notwithstanding the Scire facias was brought by the one before the other In this Scire facias the defendant may plead generally that he hath fully administred before the Scire facias brought without shewing that he did administer in payment of debts of as high nature yet that must be proved upon the evidence else the triall will fall out against the executor Thus have I delivered the most materiall things in my apprehension touching debts by judgement yet thereabout I will adde for the better information of the Reader not studied in the Law these few things First that what hath been said is only to be understood of judgements against the testator and not of any against the executor himselfe for of those being but debts by specialty at the time of the testators death we shall speak after Secondly what is said of the testator in case of an executor immediate is likewise to be understood of the testators testator in case of the executor of an executor for where A. makes B. executor and B. makes C. executor there the goods which came from or were left by A. be not in the hands of C. lyable to judgements had against B. Nor on the otherside are the goods of B. in the hands of C. subject to the judgements had against A. And the like is to be understood of statutes recognizances and bonds as elâ—ewhere is somewhat touched Thirdly Recoveries or judgements by meere confession without defence are yet of the same nature and to have the same respect as other recoveries upon triall or otherwise for although they may seeme to be but of the nature of recognizances which be debita recognita yet doe they differ from them in that here a debt is demanded by a declaration which is intended true that therefore the defendant cannot deny it but in case of a recognizance it is not so for there usually no action is entred nor debt demanded Fourthly the foreshewed respect to debts by judgement is not to be inclosed within Westminster Hall-and be restrained to the foure Courts there but may and must extend it selfe to judgements in other Courts of Record viz. in Cities and Townes Corporate having power by Charter or prescriptioÌ„ to hold plea of debt above forty shillings as in London Oxford c. For although there execution cannot bee had of any other goods than such as be within the jurisdiction of that Court yet if the Record be removed into the Chancery by Certiorari and thence by Mittimus into one of the Benches so execution may be had upon any goods in any County of England Fifthly in case where the testator was bound in a recognizance and a Sci. fac brought against him and thereupon judgement given Although this judgement be not quod recuperet as in case of actions of debt but quod habent exetiâ—nem yet since execution is the life fruit and effect of all judgements this may now well stand for a debt by judgement as I take it Of Recognizances and Statutes NExt unto debts by judgement are those by statute or recognizance to bee regarded by the executor And because I find no difference of priority or precedencie betweene these two I therefore ranke them together yet one reason of preferment given to judgments before statutes in Harisons case viz. that the one remains a record upon the roll in the Kings court whereas the other being carried in the pocket of the counisee is more private This I say should give priority also to recognizances before statutes as also another reason for that statutes are not properly records but obligations recorded yet do I not find that this makes a difference for priority of payment And indeed the statute is the more expedite remedie since thereupon execution may be taken out without any Scire facias or other suit which cannot be in the case of a recognisance for there if a yeare be past after the acknowledgement no execution can be sued out against the partie himselfe acknowledging it without a Scire facias first sued out against him And if he be dead then though the yeare be not past yet must a Scire facias be sued and thereupon the executor defendant may plead some plea to hold off the execution for a time But this notwithstanding the executor may satisfie the recognizance before the statute at least if he doe it before execution sued thereupon for they standing in equall degree it is at his election to give precedencie and preferment to whether he will Neither is it materiall which of them were first or more ancient nor between one statute another doth the time or antiquity give any advantage as touching the goods though as touching the lands of the conusor it doth but as for his goods in the hands of his executor whosoever first getteth hold of them by his execution shall have the preferment And before suing of execution the executor may give precedence or preferment to whom he will But now some may object that there is no course nor writ of execution for any such counisee against the executor and if so then statutes merchant and of the staple are in vaine spoken of and it is true that Master Brook after Chiefe Justice of the Common Pleas in his new Cases professeth that he knew not any remedy for the creditor out of the goods of the conusor after his death But if this should be so the Law were very defective since the substance of many especially of marchants for and among whom
the Land it will then bee haâ—d that the Executor shall for this winter proffit pay the rent out of his owne purse especiallie if the whole yeeres rent bee payable at that one day as in some cases it is or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes it is so also of medow grounds usually drowned in the winter So if the lease bee then to end not having a summer halfe yeere to succeede and make amends for the winter or if the winter halfe yeere bee the latter halfe the lease beginning at Lady day so that there is but a summer for each winter following and not any for the winter passed Of like consideration with these is the case of a lease of woods for a rent which being fellable but once in eight or nyne yeeres now if the lessee having made the last sale and felling before his death the Law should cast the rent upon the Executors owne estate for the time future it should lay losse upon him which is against reason and contrary to the nature and disposition of the Law even in this particular As appeares by this that shee enables an Executor to pay himselfe before any debt of equall nature so as shee more tenders an Executors indempnity then any other Creditors therefore I thinke that with and upon the differences above shewed even rent growen due after the testators death may in some cases bee the testators debt payable equally with debts by bond But here I conceive that if the executor were in such case of destitution of assets as might justifie his waiving of a lease over-rented hee then may waive these termes residue because for the future the profits will come short of answering the rent though at the first and so in the totall the profits did exceed the rent And if for want of waiving where he might this rent fall upon him the paiment thereof would be no excuse against another creditor nor as to him be a good administration for Ignorantia juris non excusat This is pertinent to our present consideration which debt may with safety be paid leaving another unpaid and the hazard of executors by ignorance of the Law hath been a principall motive to my writing these Discourses in English Hitherto we have only considered as I think of rents as they be recoverable by action of debt Now let us see if there may not be somewhat different considerations touching distraining for rent and so comming to recover it by avowrie Put wee then the case that an executor hath fully administred in payment of debts by bond and after the lessor or revertioner commeth and distraineth for arrerages of rent due in the testators life can the executor in bar of the avowrie plead fully administred as hee might have done if an action of debt had been brought for these arrerages doubtlesse I think no nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease except the land come to the King upon whose possession no distresse can be taken I think therefore that the executor who paid out of his own purse to the value of this lease for to I intend the case and else could he not have fully administred as in the case was put he should I say have abated in the price and valuation of the lease as well the arrerages of rent as the rent futurely payable both being equally leviable upon the land and if he so have done he is no loser by payment of this arrerage but if trusting to the power of an executor and to the plea of fully administred hee did not so but disbursed in respect of the lease to the full value without such abatement he must beare the losse of his owne ignorance He might also another way have helped himselfe viz. by payment of that arrerage leaving other debts by specialty unpaid And what if suits were presently commensed upon the testators death before hee could make payment of the rent behind whether might the executor then plead this debt for rent as hee might a debt by judgement or statute and surely me thinkes it probable that he might because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie If the revertioner would also commence suit before judgement had for the creditor by specialty then might the executor helpe himselfe by confessing his action first but this perhaps the revertioner would not conceive safe for him since that way the others might get judgement before him and so he might lose both his suit and his debt wheras holding himselfe to the course of distres the lease continuing he hath land at the stake for his debt What if he distraine and avow may not now 〈◊〉 executor pay him or at least confesse his â—â—tion or avowry so as he first having judgement may first be satisfied Surely after suite commenced I see not how the creditors by bond can so be prevented at least without judgement had for the rent yea though such a judgement be had yet because the judgment in that case is not that hee shall recover the summe due for rent but only that he shal have a returne to the pound of the cattell distrained for the rent it is questionable whether the paiment thereupon of the rent shall prevent the judgements after had in the suits upon bonds But I thinke it shall because although it bee not an expresse recovery of the rent yet is it such a judgement compulsary for the same as makes the payment inevitable and of necessitie And where before we have made the question only between the said rent-debt and the debt by obligation let us now put the case between the rent-debt and the debt by statute or judgement If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell and after there comes a writ of execution upon a judgement or statute of the testators whether shall these beasts in the pound for rent be delivered in executioÌ„ or not admitting that without them there be not goods sufficient for satisfaction of the judgement or statute And surely I thinke they cannot be delivered in execution First for that they are in the custody of the law as in String-fellowes case though there the Kings preroga-time overtopped that point yea so I thinke though they be replevied for that they are to be returned to the pound if judgement passe for the avowant to which purpose securitie is given so as they are but in tâ—e case of a prisoner bailed who still is in some sort in custodie Secondly for that this rent incident to and descendible with the reversion breeds a debt of a reall nature and so of more dignity and worth than debts personall Thirdly for that the land let as in a sort debtor stands chargeable with this distres
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 defendâ—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 wheÌ„ 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 â—risoâ— 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 detinâ—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
the Diocesse of Canterbury and in the Diocesse of Yorke the Will must be proved either before both Metropolâ—taâ—es if within each of their jurisdictions there be Bona Notabilia in divers Diocesses or else as I take it if there so be not in any of the places then before the particular Bishops in those severall Diocesses where the goods are Or if within the one jurisdiction Metropolitane the Testator had goods in divers Diocesses and in th' other but in one Diocesse then in the one place is the Will to be proved before the Archbishop and in the other place before the Particular Bishop as I conceive And so also of peculiar jurisdictions And in some places Archdeacons have peculiar or jurisdiction ordinary and power to take Probates of Wills and Grant Administrations But where any like error or misproving is in these respects it is cause of reversall or of nullity according to the former difference so also if there be falshood in the proofe were it CoÌ„muni forma that is without witnesses or by examination of witnesses yet may it in the Spirituall Court be undone if either dis-proofe can be made or proofe of revocation of that Will once made or of the making of a later Now yet admitting the Will true and right and also rightly proved let us yet see the force and strength of the Proofe or Will so proved It being under the Seale of the Ordinary cannot be denied saith one Booke to wit whether this shewed forth be a Will proved or not no though the proofe be but indorsed on the backe viz. that it is so proved saith the Booke but notwithstanding the Defendant so sued may deny that the Plaintiffe is Executor as not being concluded nor estopped by the Probate so to say And the reason is because the Seale of the Ordinary is but matter in Fact and not matter of Record nor are the sentences of divorce and the like in the Spirituall Court Iudgements or matters of Record as hath beene oftenheld Of the Relation of Probate and Refusall AS for this last Point both the Proving and the Refusall shall have Relation to the death of the Testator as I take it to divers purposes So as to the Proving saith the Lord Dyer expresly and confidently in Greisbrooke and Foxes Case and the resolution also of the Case proves it For there Administration being committed be fore any Will proved or notified to the Ordinary as it should seeme the Administrator sold some of the goods to I. S. and after the Executors proving the Will brought an Action of Detinue for those goods against I. S. who pleaded this Administration and sale and thereupon the Executor demurred and Judgement was given for him as having by the proving of the Will disproved the Administration ab initio but it is true that judgement was given onely by two Judges one being absent and th' other dissenting in opinion yet I thinke it was right and according to Law and that Refusall shall have the like relation else could not the Administration relate to the death of the Intestate as it doth to some purposes expressed in divers Bookes viz. to have an Action of Trespasse for goods taken before Administration committed and to have a rent growing payable in that meane time c. What Fees to be paide upon Probate or for Copyes of Wills or Inventories Per Stat. 21. Hen. 8. Cap. 5. 1. Where the goods amount not above five pound only sixe pence to the Scribe 2. Where they be above five pound but under forty pound two s. sixe d. to the B. B. twelve d. to the Scribe 3. Where above forty pound to be taken but two s. sixe d. to the B. B two s. 6. d. to the Scribe or râ— d. for each ten lines of ten inches long at the Scribes choyce THese Summes are to satisfie both for Proving Registring Sealing Writing Praysing making of Inventories giving Acquittances Fines and all other things concerning the same Where Lands is given to be sold neither the money raised nor the profits thereof shall be accounted as any of the Test ators goods or chattells saith the Statute Note that the Will is to be brought with waxe thereunto ready to be sealed and proofe to be made of the Will according to common Custome For making the Inventory the Executor is to take or call to him two Creditors or Legatees of the Testator and doe it in their presence or in their absence or refusall two honest persons being the next of his kinne or in their default two other honest persons The Inventory is to be indented and one part left with the Ordinary and the other to remaine with the Executor The Executor is to make oath for the truth of it For a Copy desired by any either of a Will or Inventory no more is to be payed than before is allowed for the Registring with the like election to the Scribe or Register as is above-said Master Swinborne saith that an Executor is to sweare and if it should be thought fit to be bound to make a true account when hee shall beÌ„ thereunto lawfully called by theÌ„ Ordinary Of this account see him pag. 274. and of accounting some Bookes of the Common Law make mention as 13. of Edward the third Fitzh Exec. 91. Where Trew faith that of a thing in action no account shall be before the Ordinary but Parn. seemes of a contrary opinion And else where it is said that where a debtor is made Executor to the Debtee he shall yet account before the Ordinary for this debt yea as of money in possession saith one which others denied An Executor by wrong shall be drawne to account before the Ordinary saith Moyle Justice But saith S. German he may not force any to account against the Order of the Common Law not shewing what that is And â—emp Edw. the 4. it is said at least by the Reporter that after the will proved the Ordinary hath no more to doe quod non credo Also of the oath of an Executor divers Bookes tell but not to such purpose as Swinb but truly to performe the Will What things shall come unto Executoâ—s and be Assets in their hands and what not THe things which shall come to Executors are of great multiplicity and would make a large and confused heape if tied together in one bundle or lumpe I will therefore divide and sort them out in parts after the best manner I can First we will divide theÌ„ into things possessary or actually in the Testator and things in action or not actually in the Testator Secondly the possessary into chattells reall and personall or as some lesse properly expresse it moveable and immoveable Of Chattells reall possessary THese may be divided into two kinds viz. living and not living the living are not many and various 1. The wardship of the body of another be it by reason of a
long before in Edward the third his time it was debated whether it were waste in a Lessee to remove or take away a Furnace or not but I finde no opinion delivered by the Judges But in the late Queenes time Justice walinesly said that the Lord Dyers opinion was that where the Furnace is not fixed to the Wall the Lessee might within his termetake it away Contrarily if it were fixed to the Wall for then it strengtheneth the house And yet notwithstanding it might be in the one case so removed by the Lessee yet is it not there as he said a Chattell personall or moveable so as it is attachable and there the case being that a Clothier being a Termer of an house had fixed a Copper to the Wall with Loomes and prickes necessary for his Occupation a Judgement being had against him the Sheriffe delivered the Copper in execution as a Chattell and after the Lessee tooke it up and it was taken from him by vertue of the Execution whereupon he brought an action of Trespasse and by all the Judges the action was mainetainable And whereas it was found by the Jury that by the Custome of Kent the Lessee might remove such a Copper Justice Beaumond said that without any Custome a Lessee might so doe at any time during his terme But it is to be noted in the said case that the Furnace was by it selfe delivered as a moveable Chattell and not as part of the house for that was not medled withall nor at all delivered in extent as in the case betweene Miles and Prat where both house and Copper were delivered upon a Statute the house belike being held upon such a rackt rent as that the party did not desire to have it for hee might have had the whole being a Chattell and so have used the Copper during the terme And as touching all other fixed things the Law was taken in the said case in Henry the 7. his time to be all one as in the case of the Furnace viz. that they should goe to the Heire save onely that for glasse in the Windowes Pollard said it was otherwise viz. that that should goe to the Executors which none there denyed But since in the late Queenes time it was otherwise resolved touching glasse that it should not goe to the Executors and the like was there said touching Wainscotes and so also by the Lord Ander in the said case of Austin And touching Posts fixed for that they be parcell of the Freehold so also of Millstones Anvills Doores Keyes Windowes none of these be Chattells but parcell of the Freehold or thereto pertaining therefore not the Executors Now to come to Gardens also Whereas I before laid down a difference betwixt things sowed or not arising from the Earth without manuring and such as grow of themselves It will thence be concluded that the rootes of Carrets Parsneps Turneps Skerrits and such like coming and arising from yearely sowing must goe to the Executor and not to the Heire the case being so that the Gardner and Sower had the Inheritance of the Garden or Soile now though in most places this can rarely be a question of value yet about London and some great Townes it may and therefore not unworthy of a line or two a thought or two the rather for that the reason of this case may give light touching right in other Cases And in my opinion these notwithstanding there is a sowing and manurance to generate them and cause their being shall goe to the Heire and not to the Executor my reason is for that the thing of profit is the roote which is hidden in the ground and I hold it no reason nor agreeable to Law that the Executor should digge and breake the soyle and ground to search for her entrailes hee is to content himselfe with that which is above ground as millions of all kindes and the like whose fruit is above the ground but as for Artichoks though the fruit be above the ground yet I thinke they have no such yearely setting or manurance as should sever them in interest from the soyle therefore they shall goe with it to the Heire Let us now consider of things though not fixed to yet usually kept in houses viz. writings and evidences whereabout generally no doubt can be but that they follow the interest of the Land so as if they touch inheritance they pertaine to the Heire if but Termes Goods Chattells or Debts they pertaine to the Executor yea so doe Statutes and Bonds in Law howsoever otherwise in equity though they concerne the assurance and enjoying of inheritance purchased What if A. morgage the inheritance of Lands to B. upon Condition of redemption by payment of 500. pound to B. his Heire or Executor and B. dyeth the Deedes being delivered into his hands now the Heire not the Executor shall have them for though the money may be paid to the Executor yet meane time the Land descends to the Heire nor is there any debt to the Executor for A. may choose to pay or not Put it on the other side that the Land had beene sold for 500. pound not paid to A. but a Condition that if not paid to him his Heire or Executor by such a day then to re-enter and A. dyeth here is a debt to the Executor and no Land descended to the Heire of A. yet shall the Heire have the Deedes for that a Condition is descended to him Question hath beene touching Boxes and Chests wherein the Evidences concerning inheritance are and although the better opinion in our Bookes doth pitch upon this difference that where they are sealed up they shall pertaine to the Heire otherwise where not sealed I cannot conceive that difference to be grounded on good reason but rather thinke that Boxes which have their very creation to be the houses or habitations of Deeds should as appurtenant to them goe to the Heire whether sealed or not On the other side Chests made for other use viz. the keeping of Napery or Apparell shall not as I conceive be taken as appurtenant to Evidences because some be in them for so may other things also be Nor as touching them can sealing be of any effect but rather locking and not locking must make the difference touching them if any difference by inclosure Of things not actually in the Testator but accruing to the Executors by or after the Testators death These be of diverse sorts the first and chiefe whereof are things gotten and acquired by Action or Suite Secondly by Condition or Covenant without Suite Thirdly by Remainder Of things in Action TO speake first of the first it is cleare that debts due to the Testator be it by Bond Statute or Judgement or for Arrerages of Rent are not assets to charge the Executor untill receipt of them and it is as cleere that the Actions to recover these doe pertaine to the Executor and that the debt and dammages recovered
opinion hath beene that these which he hath as Executor should not passe yea the Lord Dyer so held in the late Queenes time with this difference viz. Where the Grantor is named Executor in the Grantee there the Goods which he hath as Executor should passe but otherwise if he be not named Executor in the Grantee and that this opinion is probable will further appeare by that which followeth Secondly the Executor cannot by Will give or bequeath the Goods he hath as Executor and if he dye intestate and Administration of all his Goods is committed to I. D. yet hath he nothing to doe with the Goods which the Intestate had as Executor to his Testator Thus all his Goods reacheth not to his Goods as Executor Thirdly whereas a mans Goods stand liable to the payment of his debts both in his life time and after The goods which a man hath as Executor are not to be taken in execution for his owne debts either upon a Recognizance Statute or Judgement had against him And if such a one dye indebted leaving to his Executor much Goods which he had as Executor these are not Assets in his hands lyable to the payment of his debts but onely for the payment of the first Testators debts or Legacies Therefore a Quo min. brought by an Executor shewing that he was not able to pay the Kings debt because the Defendant detained from him an 100. pound which he owed him as Executor to I. S. was overthrowne for that it could not be intended saith the Booke that the Kings debt could be satisfyed with that which the Plaintiffe should recover and receive as Executor Whereas a Woman being possessed of any Chattells personall viz. moveable Goods all be devested out of her into her Husband by her marriage so as if he dye and she overlive they be not hers againe but her Husbands Executors or Administrators and if she dye all be the Husbands without being Executor to his Wife It is not so of the Goods which shee hath as Executor these still remaine in and to her if her Husband dye and if she her selfe dye for that she hath them as it were in another right viz. as she represents the person of her Testator her Husband shall not have them if he be not his Wives Executor and so Executor to her Testator Lastly whereas the Writ of Trespasse seemes to make no difference betweene ones owne Goods and those he hath as Executor that being a possessory Action or suite grounded upon the possession yet come to an Action of debt which more tastes and participates of the right and there are they differenced for where for my owne debt when I sue the Writ saith Debet detinet viz. that the Defendant owes me and detaines from me that summe Yet when I sue as Executor the Writ saith not debet he doth owe me but detinet onely he detaines from me as admitting that he is not the Debtor to me though he should pay me and so where I am sued as Executor the Writ makes me not a Debtor but a detainer Otherwise where in my owne right I owe and am sued for a debt Accordingly where Judgement in an Action of debt is given against one as Executor it is not generally that the Plaintiffe shall recover against him but he shall recover of the Goods of the Testator and therefore upon this judgement no Capias lyeth against him to inforce him to pay by Arrest of his body because he is not properly debtor but if after it be returned that he hath wasted the Testators Goods out of which the said debt shall be satisfyed Then he having made himselfe a Debtor a Capias ad satisfaciendum shal be awarded against him and then he shall be taken in Execution So also in some cases of false plea pleaded for where the Judgement is de bonis propriis the Plaintiffe may have a Capias ad satisfaciendum and that Judgement is in diverse cases for the dammages although not in many for the principall As for the Capias before Judgement in the meane proces against an Executor that is because of his Contumacy in not appearing upon the former proces The reason of this different interest betweene an Executor and another or betweene the same mans having goods as Executor and others in his owne right as also of the different manner of ones being indebted as Executor and otherwise in his owne right is well expressed by the Lord Cooke in Pinchons case viz. First that the goods which one hath as Executor he hath not in his owne right but in auter droit that is in the right of another meaning his Testator Secondly that Executors are but the Ministers and Dispensors or Distributors of their Testators Goods Of alteration of property in the Executors hands so as some goods become his owne which he had as Executor TO this head or Chapter treating of the difference betweene the Interest in Goods as Executor and others had meerely in ones owne right and to his owne use it is not impertinent to consider how that which one hath at the first as Executor may be changed in property and become the Executors owne to his owne use as other his goods which he had not as Executor Here let us first consider of ready money left by the Testator for since pieces of money viz. shillings groates pieces and halfe pieces of gold cannot bee knowne one from the other it must needes follow that these comming to an Executor from the Testator must in some sort be altered in property so as though the Executor shall be said to have so much in money or value yet can it not be discerned which money in his house was his Testators and which his owne Consequently the Sheriffe upon the fieri facias for a Creditor who hath recovered against the Executor to pay debt owing by the Testator cannot hold CHAP. VIII Of some cases and questions betweene the Executor and the Heire THE Executor may in convenient time after the Testators death enter into the house descended to the Heire for the removing and taking away of the Goods so as the doore be open or at least the key be in the doore and this I understand of the doore of each roome for although the doore of entrance into Hall and Parlor be open the Executor cannot by that justifie the breaking open of the doore of any Chamber to take goods there but onely may take those in the roomes which be open and this is proved as to me it seemes by the case of the chest with evidences which saith the Booke the Executor may take and put out the Deedes delivering them to the Heire viz. the chest being unlocked as I understand it Now a Chamber or other roome within a house locked is an enclosure of better respect then a chest But if the goods be not removed within convenient time the
hereof they are to be regardfull not only in respect of escaping damage to their owne estates but more especially in respect of an oath which divers of our bookes mention to be taken by executors And in one of the bookes of relations of cases in the twentieth yeare of Hen 7. his time there is an expression of three things whereto the office of an executor tyeth him 1. To doe truly and thereto are they sworn saith this book 2. To be diligent viz. with sedulity to attend the discharge of the trust 3. To do lawfully nor well can this latter be without knowledge what is lawfull or required by the law Now what is formerly said of the right method and order of paiment of debts discovereth in much part how and by what wayes an executor may waste and mispend his testators goods and consequently incurre a devastation and so make his owne goods liable but of that more fully and particularly by it selfe and herein we will consider of these parts 1. What shall be said to be a wasting or devasting and how many wayes that may be done 2. Who shall by this act be charged to yeeld recompence 3. Who shall take the benefit or advantage of it 4. How farre or in what measure the advantage shall be taken 5. What way or by what meanes it shall be had As to the first this wasting is done divers wayes 1. by the executor his plaine palpable and direct giving selling spending or consuming the testators goods after his owne Will leaving debts unpaid 2 By paying what is not to be paid which yet is to be understood where there are debts payable and unpaid 3. By the way formerly discoursed of viz. the not observing the right method and order of payment 4. By assenting to a legatees having a thing bequeathed debts being unpaid 5. By selling goods of the testators at an under value for be the appraisement what it will and let him sell for what he will he must stand charged to the best and utmost value towards the creditors Yet if upon a judgement against the testator or the executor the Sheriffe sell some of the testators goods at an undervalue this is no vastation of the executor for this difference Hody chiefe Baron makes But since an executor may happily prevent this act of the Sheriff by paying the due sum upon sale of the testators goods at the best value or otherwise he is to be blamed to leave it to the cōscience of the Sheriffe or Undersheriffe rather 6. And lastly this may be done to the executors smart by undue viz. not legall discharging of any debt or duty pertaining to the testator that divers wayes requiring heedfulnesse As if an executor upon a bond of two hundred pounds forfeited for payment of a hundred pounds accept the principall or perhaps also some use costs or damage and give a release or acquitall of the whole forfeited bond or of all actions or upon record acknowledge satisfaction upon judgement had This is a wasting of so much as the penall summe is more then is received and so far his owne goods stand liable to creditors not satisfied and so doubtlesse is it if he doe but give up the bond having no judgement upon it though he neither make release nor acknowledge satisfaction But his verball agreement to require or sue for no more or his giving a note of receipt for so much as he hath received or delivering of the bond into a friends hands or into a Court of equity in way of security to the debtor that he shall not be sued for more is no devastation since still the rest in law remaines due and sueable So this sets no more upon the executors score then he received But let him take heed of releasing except he be sure there be no other debts demandable Nor only is there danger in releasing of debts but of trespasses or other causes of action also As if one take away goods from the testator or from his executor If the executor make him a release this is a devastation and makes his owne goods lyable to the whole value of the goods released as appeares by Russels case where the release of an Infant executor to one who had taken and committed to his use Jewels and goods of the testator being pleaded the release was therefore held void in respect of nonage for that if it should have stood good it had amounted to a Devastavit and made the executors owne goods lyable which his infancy considered had been hard Another way of discharging dangerous to executors is submitting matters of debt or duty or touching goods taken away to arbitrement For if by the award of the arbitrators the debtors or wrong doers bee discharged or acquitted without making full recompence the rest of the value will as to other creditors sit upon the executors skirts because it was their voluntary act thus to submit it to arbitrators Thus may executors fall under prejudice not onely by wilfull wasting or unfaithfull miscarriage wherein they are not to bee pittied but through incogitancy and unskilfulnesse also Nay I may say truly that it is very hard for executors in some cases to walke safely For besides that to finde out all judgements and recognizances by or against their testators is of some difficulty more then for statutes whereof by search in an Office descry may be had yet with this difference that statutes marchant and statutes staple may be and stand effectuall against executors though not inrolled albeit against purchasers of the conusors land they be not of force if neglect be of inrolement within three moneths But where statutes or recognizances lye for performance of covenants upon sale or lease of lands mariage agreements or otherwise how hard is it for executors to know whether any covenant be broken or not how hard to be sure they finde out all bonds bils covenants and articles in writing made and kept by others whereby any money is due and payable before debts by contract or legacies as also all promises or debts by contract payable before legacies For the law hath prescribed no time for their claime and demaund and whether some such thing or meane of publication were not fit to be enacted let the judicious consider To attaine to this knowledge of the testators debts I remember that it is by the Lord Brooke reported that in King Henry the 8 th his time Sir Edmund Knightley being executor to Sir William Spencer made Proclamation in certaine Market Townes that the creditors should come by a certaine day and claime and prove their debts but hee for this was committed to the Fleet and fined For that none may make proclamation saith the book without warrant or authority from the King except Majors and such like Governours of Townes who by priviledge or custome may so doe But the dangers are only where there is not sufficient of the testators goods and chatels to satisfie both
by a wrongfull person and in Suttons case it was expresly held that each Executor should answer for so much as he wasted Now for the fift and last point viz. how and in what manner reliefe shall bee had upon this point of wasting for him to whom it pertaines first this is to bee observed that in case where the verdit passeth directly against the plaintife no devastation can come in question for that no judgement being for the plaintife no writ of execution can issue and therefore if upon the issue of fully administred it shall appeare that there hath beene a devastation which causeth assets to faile then must the Iury finde that the defendant hath assets and not finde a devastation as was resolved in the Kings Bench in the late Queenes time betweene Hankeford and Metford for there the jury finding a devastation viz. a surrender of a lease for yeeres left by the Testator it was held voyd and nugatory and was not regarded by the Court which said that must come in by the Sherifes returne viz. upon the Fieri fac Thus assets being found in the Executors hands judgement is given for the plaintife to recover his debt and to have it levied of these assets nor is this finding of them by a jury against truth though they bee wasted and so not to bee had in kind for the Executor hath them in right since hee hath not rightfully parted from them according to the rule Propossessore habetur qui dolo or injuria desiit possidere As in the case first put this wasting cannot come in question for want of a judgement for the plaintife so also where the judgement it selfe extendeth to the Executors owne goods by reason of some false plea whereof wee shall after consider for since that the consequence and effect of a vastation is but to make the Executors owne proper goods liable to the debt of the Creditor this is altogether needlesse where the judgement it selfe hath layed hold on his goods But now in case where the judgement extends onely to the Testators goods in the Executors hands let us finde the way to releive the Creditor in case the Testators goods bee wasted by misadministring or otherwise for hereabout the right way hath often beene missed and againe easily may bee In the latter end of the late Queenes time this course was taken viz. the Sherife returning generally that the Executor had no goods a surmise was entred that the Executor had converted to his owne use the Testators goods whereupon a writ was awarded to the Sheriffe to enquire thereof by jury or enquest which he did and returned that it was found that the executor had wasted the goods and thereupon a Scire facias was awarded against the executor to shew cause why execution should not be of his owne goods and upon two nihils returned execution was so awarded but a writ of error was hereupon brought And although it were said for defence of that course that it was usuall in the Cōmon Pleas and more favourable than the other course where the Sheriffe only returneth the wasting or is sole judge thereof whereas here it was found by an inquest of Jurors and thereupon a Scire facias awarded yet did the Court resolve the contrary and reverse this execution as erroneous For it was said that upon the Sheriffes returne of nulla bona viz. that there were no goods of the testator to be found the plaintiffe should have a speciall writ of Fieri facias willing the Sheriffe to levie the summe recovered either of the goods of the testator or if it could appeare that the executor had wasted the testators then to levie it of his own goods and this way as was said the executor hath good remedy by action against the Sheriffe if without just cause hee levie it of his goods but the other way viz. when inquest is thereupon taken the remedy failes since neither sheriffe doing according to the inquest can be punished nor the jurors finding falsely are subject to any attaint it being no verdict upon issue joyned but an inquest of office which excludeth also all challenge of jurors And whereas that booke mentions the Sheriffes subjection to action onely in case of his mis-feasance or doing wrong I conceive that hee is likewise suable for omission or nonfeasance in this case viz. for not levying the debt upon the executors owne goods where proofe is made of his wasting And where the booke mentions this Fieri facias to bee in this manner upon the Sheriffes returne in a Scire facias doubtlesse the booke therein is misprinted and should be a Fieri facias for in a Sciri facias the Sheriffe can returne nothing but that he hath warned the party or that he hath nothing where by he may be warned This then is the course there prescribed that first a generall Fieri facias go out and that thereupon the Sheriffe returne generally that the defendant hath no goods of the testators and that thereupon the said speciall writ is to issue yet in the beginning of the late Queens time the verdict passing for the plaintiffe upon the issue of fully administred the Sheriffe was not permitted to make such a generall return of no goods to be found of the testators but was inforced by the Court upon good advisement either to leavy the debt or to returne a Devastavit and so was done at last by the Sheriffes of London much against their minds and therupon went out a writ to leavy the debt of the executors owne goods first into London and after into Devonshire upon a Testatum that the executor had goods there And it was there said that if no goods could bee there found then the plaintiffe might have a Capias to take the executors body in execution or an Elegit for the moiety of his lands But certainly I cannot find except with a difference how this course of inforcing the Sheriffe to doe one of these two can be just as neither could Justice Fulthorp in the time of King Henry the sixth approve it For a Jury of one County may finde assets in another County as was resolved in the time of King Henry the eight which yet was understood of goods moveable and not of lands This then thus being if a Jury of Kent find assets which be in London or Essex how can the Sheriffe of Kent where the action was laid leavy the debt recovered by or out of these goods or since he cannot why should he be compelled to make a false returne of a wasting when the goods remain unspent and unwasted in another County Why rather should hee not bee suffered to returne according to truth that there is nothing within his Countie or Bayliwicke whereof the debt may be levied since even his oath tieth him to make a true returne nor is this contrary to the verdict finding assets generally and this so returned upon
name of executor of the last Will and Testament of the defunct and then if he will deny himselfe so to be he must pleade that he neither is executor nor hath administâ—ed as executor Then the plaintife must prove that he hath administred in some such or the like sort as aforesaid And it hath beene divers times held that where there is a right executor and yet another doth administer by wrong it is at the election of Creditors either to sue them joyntly together or one or both of them severally and by himselfe But if where administration is committed another also administers by wrong these cannot be sued together as administrators for though one may be an executor by usurpation or wrong yet none can come to be an administrator by wrong since no other but such as receiveth that power from the Ordinary can so be therefore in that case there is a necessity of suing him apart and by himselfe who so usurpeth administration by the name of an executor So if A administer the goods of B. not being executor nor administrator and after his such doing and disposing of the goods he obtaineth administration of the goods of B. but the goods left or comming to his hands since the administration committed suffice not without the other debts received or released or goods sold before to satisfie creditors Now if any sue A by the name of administrator he shall have no further reliefe then according to the value or extent of the goods left in or come into his hands since the administration committed and if those be fully administred he shall get nothing If they remaine unadministred but amount not fully to his debt he must want so much of satisfaction And if he will be releeved or satisfied out of the goods before disposed of he must sue A as executor of B and so was it ruled and resolved by Gawdy and Suit Justices in the Kings Bench in the late Queenes time viz. Tr. 30. Eliz. And if this now administrator will pleade in abatement of this action that administration was committed to him and demand judgement if suit shall be against him as executor Then the plaintife must in this replication as I take it set forth the speciall matter viz. how the defendant did administer before administration to him committed But if one to whom administration is committed do devast and this administration is by suit repealed because he was not the next of kinne and administration is committed to another now a creditor who would be relieved out of the goods wasted must sue that first as administrator and not as executor of his owne wrong said Popham Chiefe Justice for he did rightfully administer for that time As for the third viz. how farre this executor of his owne wrong becomes lyable and obnoxious to suite consider we these things first he becomes subject both to the action of the executor who hath right to the goods wrongfully intermedled withall by him though it were before proving of the will and also to the action of the creditor who hath right to the satisfaction of his debt Secondly as touching the measure how farre hee is ingaged doubtlesse hee is not by his wrongfull administring become chargeable with the whole account of the testators debts but only so farre and with so much thereof as the goods which he so wrongfully administred amount unto and this seemes to me proved by the case in the time of Edward the third where the inquest found not only the administring or intermedling by the executor wrongfully but found also by direction of the Court as it seemeth what the value was of the goods so wrongfully administred which had not beene materiall if the administring of a peny had made one as far chargeable as the administring of a pound Besides if it be so that a rightfull executor wasting goods of the testator to the value of twenty pounds shall be no further charged than that value then doubtlesse so shall it be also in this case for both be wrongfull administrations only this difference there is betweene them that in one case the administration is by a wrong person and in the other case in a wrong manner Nay the Lord Dyer doth not sticke to call him who administreth wrongfully or in undue manner expresly an executor by wrong in the case of Stokes against Porter though he were rightfully executor because he did dispose or execute wrongfully As to the fourth viz. what acts done to him or by him who is an executor of his owne wrong shal stand firme and good as done by or to the right executor Suppose first that the deceased were indebted to him twenty pounds who thus usurpeth executorship whether may he pay himselfe or not And this point was in debate in the Kings Bench betweene Coulter and one Ireland executor of Hunt where it was strongly objected that notwithstanding the rightfull executor or administrator might punish him and recover against him for the goods which hee administreth yet another creditor suing him as executor generally and so affirming him to be for there is no speciall forme of writ or declaration to distinguish an executor by wrong from a rightfull executor he stands as against him in the state of a rightfull executor and therefore may first pay himselfe before he pay others and of that mind at the first were Fenner and Gawdy Justices yet did they admit that this payment should not stand good as against the rightfull executor or administrator And Popham and Clinche held strongly that neither should it stand good against other creditors for then every man would rush upon the testators goods and be his owne carver in payment And whereas it was said at the barre that the Lord Anderson upon an evidence at Guild-Hall had ruled it otherwise Popham at another day of debate of the said case related that the L. Anderson did deny that he ever so ruled or was of that opinion and further informed that both he and Justice Walmesly Periam and Clarke Barons did agree with Popham and Clinche in opinion After which Justice Gawdy as also Fenner if I mistake not changing their opinions and concurring with the rest judgement was given accordingly In the debate of this case question was made if such an executor by wrong pay a debt to another creditor by specialtie whether this shall not stand firme and good since hee stands lyable to creditors so farre as the goods by him administred doe amount and it was agreed by the better opinion at least that this should stand firme and good so as if the payment were out of his owne goods he might retaine to himselfe in liew thereof so much of the goods of the testator for here he doth not as in the other case advantage himselfe by his owne wrong Yet that opinion allowing this payment to creditors must as I think bee
that it is done to the use or profit of the infant Executor then no sale of lease or goods or assent to legacy by such administrator will bind or prejudice the infant Executor But otherwise perhaps if the administration during the minority bee committed generally And if the Testator himselfe making an infant Executor doe also appoint another to bee his Executor during his nonage expressing it to bee onely for the benefit and behoofe of the infant executor I doubt whether this temporary executor stand any whit restrayned froÌ„ what pertaines to the power of an absolute executor for there may be perhaps difference between him to whom the owner of the goods commits the government of them though but for a time and in speciall manner and an administrator so specially made by the ordinary another being presently by the will of the owner or Testator to have the administration in whom for a time legall defect is found But now let us passe over this age of 17. and consider of the infant betweene that time of his being admitted to take upon him the executorship and his accomplishment of his full age of 21. First then suppose that hee doth release a debt due to his Testator whether shall this bee good to bind him and to discharge the debtor aswell as if the executor had bin of full age hee now having proved the will and being by the Law spirituall approved an able executor And this point comming in question in Russells Case in the late Queenes time consideration was had both of divers good reasons for enabling of this release as that an executor represents the person of his Testator and in his right and power doth these acts and not in his owne and therefore his infancy which is a state or condition of his owne naturall person shall no more disable him then it doth the King a Mayor or other head of a Corporation Also divers Bookes were found to runne that way as well in the case of an infant as of a Femme Covert But upon great deliberation in the Kings Bench and upon conference had with the Lord Anderson Manwood and other justices it was resolved and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him first for that if it should it would be a wasting or devasting of the goods of his Testator and so would charge his owne goods Secondly It would bee a wrong which an infant could not doe by his release Thirdly It was no pursuit nor performance of the office or duty of an executor but the contrary And upon this judgement a writ of error was brought in the Exchequer Chamber where it was agreed by all that the release was not effectuall nor binding so as this point now had the resolution of all the Judges of England But it was agreed that if payment or satisfaction had beene made then the infant executor might have made a good acquittance and discharge indeed payment it self if proved brings discharge enough except in the case of a single Bill Note that the principall case adjudged was not of a release of any debt or duty by specialty but of trespasse in conversion of goods found or taken in the Testators life time But Poâ—ito that this infant had assented to a legacy whether will this binde him or not for in the said Case of Russell it is said that all things which an infant doth according to the office and duty of an Executor will stand firme now it is part of his office to pay and execute Legacies Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other in case there remaine not goods sufficient for payment of the debts and consequently here aswell as in the other case the infants owne goods would become lyable to his Testator debts I doubt and incline that it is not nor can stand effectuall for except in the other wee admit a want or possibility of want of assets or goods the release could neither hurt the infant himselfe nor doe wrong to any other and that admitted this case is of like prejudice yet if this asset should bee voyd so also would bee his payment of Legacies and how then were hee an able Executor at the age of 17. yes to sue and to bee sued for debts and Legacies and if upon suit it cannot bee shewed that debts will take up all or disable the payment then happily hee may bee forced to pay Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse or conditionally viz. if there bee besides goods sufficient c. or that else the nonaged Executor may have an action of accompt for the money by him payed to the Legatee and also avoyd his assent where that only needfull But doubtlesse neither the assent of such Executor before his age of 17. nor any payment of a debt to him could bee good although such acts to or by another Executor before the proving of the will would stand firme and good for this infant wants not onely proving but also ability to prove his Testators will yea the will stands suspended and the Testator as it were intestate whilst the administration stands in force so as during that time nothing can bee done by any as executor and therefore there is great difference betweene the cases What if payment of a Legacy bee made to an infant can hee make a sufficient acquittance This I confesse is besides the point in hand yet because it concerns infants and Executors though not infant Executors it is not amisse here to cast some thoughts and words upon the point for that it many times perplexeth both Executors and Legatees First therefore in case the Executor bee of the yeares of discretion viz. 14. I hold it cleare that any payment to him made will stand good for that the Law at that age holds him able to governe and manage his owne Lands held in socage and consequently to receave the rents thereof wherefore whether hee who makes such payment have any acquittance or not if hee have proofe of the payment hee is well enough acquitted from any second payment and if without payment hee get an acquittance it will not suffice the infancy of him who makes the acquittance considered Besides if the acquittance bee as most usually they are but signed onely with the name of the maker and not sealed it is onely an evidence or proofe of payment and no pledable acquittance because no deed so as it nothing differs from proofe by witnesses save that it is not mortall as they But now if the infant bee under the yeeres of discretion what shall wee say to a payment to him specially if hee bee but three or foure yeares old or thereabout heere I thinke caution is to bee used by the executor generally and the surest way is if hee feare to
Bâ—â—deridge Wâ—ndsor Noke Anders case 41. Ass p. 15. 40. E. 3. Fitzh Ex. 74. Co. lib. 9. f. 87. ◠〈…〉 Cap. 10. Fitzh Ex. 77. I conceive no difference betweene this and the other cases supâ—a 2. H 4 13. He may by 〈◊〉 Co lib. 11. f. 88. 3. H. 6. 35. Coâ— for arreâ—ages of an account before auditors 11. H 4. 64. 91. 92. 9. H. 6 11. 13. Ed. 1 Câ— lib. 9. f. 87. a. 21. Hen. 8. cap. 5. 1â— Ed. 3. cap. 4. Do. Sâ—u. li. â— cap. 10. M. 33. 34. Eliz the Lady Walsinghâ—ms case in com ba. Tr. 39. Eliz. Lib. 1. 21. E. 4 21 22. So must it bee pleaded M. 33. 34. Eliz. And must plead the record in certain as was held in the case of the Lady Walsingham M. 33. 34. Eliz. but it sufficeth to say by a record of the Exchequer as was held Tr. 39. Eliz. in b. reg Co. lib. 5. f. 28. So Wray and Gaudy inter Bond Bales 28. Eliz. vel circiter Yea though a writ of Error by the executor to reverse the judgement yet suffering a statute to bee executed must pâ—y of his own Read Bear-blocks câ—se P. 43. Eliz. Ba. â—e So held in Reades case supâ—a vide 12. H. 7. Kâ—lw 24 25. to like purpose Co. lib. 4. f. 59. So Peâ—iam in com ba. inter Charnock and Worsley 34. Elâ—z vel circiter Co. lib. 5. f. 28. Co. li. 8. f. 132. So held in 15. 16. Eliz. So in the Scire fac by bond against Bales it was held 9. El. 4. 14. 15. Quae. of arrerages of account before auditors without suit for the executors are charged by judgement of the Auditors by 〈◊〉 W. â— judg of record 10. H. 6. 24. 25. Brdeâ—â— 183. Quae. of judgement in a writ of Annuity for arrerages after Before Sâ—i fac not after voluntarily but if levied by writ of Extend sa good Bâ—â— N â— â—â— Stat. Mar. 43 Co. l. 5. f 28. b. H. 40. Eliz. â—ot 119. P. 32. Eliz. â—ot 235. in cont ba. See Co. lib. 5. 91. execution against an Exec upon a statute Semaines case Co. lib. 5. f. 28. So if satisfied though not discharged 28. H. 8. Dy. 32. Doct. St. ca. 10. p. 78. Do. St. p. 78. Quae. If then hee may not pleade this judgement post ult contin against A. as he may pleade it against other suits after coÌ„menced Co. li. intr 148. 269. 149. a. 4â— E. 3. Fitzh Ex. 68. 6. 7. El. dy 232. vide 21. H. 7. Kelw. 74. 5. Hen. 7. 27. So Walmsley inst P. 39. Eliz. in Error al. Sâ—riants Inne Co. lib. Intr. 269. such a recovery by confession is pleaded against another and admitted good fo 148. 149. Do. S. p. 78. b. So also was it â—ayd Tr. 29. Eliz. See â—3 R. 2. Bro. Pledges 31. Attainder of the party distraind shall not take away the distres Vide Dyeâ— Vid. Bro. Pledg 31. So Bracton Not resolving Co. lib. 9. fo 88 b. Doct. Stu. lib. 2. cap. 10. 11. Co. l. 9. fo 90. b. Pinchons case fo 94. Banes case 13. E. 3. Fitz. 91 Yeâ—â—on the other side if an execut by payment of an 110 pounds get in a fâ—rfeited bond of 200 pounds it shal be an administrat but of 110. pounds 27. H 8. 6. p. Fitz. iâ—st Lib. Intra sol 327. Kâ—lw rep â—ol 23. So. 11. H. 6. â—8 a. 4. El. Dy. 210 a. the writ so issued against the waster only P. 4. H. 8. rot 303. Tr. 34. Eliz. Pas 36. Eliz. Mich. 31. â— 32. Eliz. Tr. 34. Eliz. Tr. 34. Eliz. Mich. 32. 33. Eliz. If upon fully administred pleaded to one vel aliter hee have the advantage of this vastation taking up the whole â—umme wasted quae how the Executor shall relieve himselfe against another 41. E. 3. 31 b. Pas 36. Eliz. in 6. reg 45. Eliz. Pettifers case Co. lib. 5. fo 32 So 9. H. 6. f. 9. See Paston 1â— H. 6. 16. 36. upon surmise that A hath wasted A. Fieri facias may issue against his goods onely If so c. So lib. Intra f. 11. Co. lib. 5. 32. 2. El. Dy. 185. Woodw and Chichesters case 11. H. 6. f. 38. 28 H. 8. Dy. 3. Yea Co. lib. 6. f. 47. 46. Assets in Ireland or else-where beyond the sea may bee found by the Jury where the action is laid For the pl. may if he will suggest the being of assets in a forren County and this is usually done See lib. Intr. 11. a. Action upon the case for a false returne of Devast contra sacram sui debitum 28. H. 8. 2. Ma. Bro. Attaint 104. and 10. Eliz. Dyer 271. Because locall and fixed otherwise held 3. Jac. in com b. Co. lib. 6. f. 46. 47. 22. E. 4. 9. and 2. Ma. Bro. Att. 104. 18. H. 7. Kelw. rep 51. a. So held P. 31. El. in scaccar So if the proces for execution goe into another County than where the verdict found as the diff was held in Scaccar 31. El. 28. H â— Dy. 30. b. Pas 4. H. 8 rot 303 4. El. Dy. 210. But 2. H. 6. 12. without any Sci. fac upon the devast returned A capias was awarded by the court see 9. H. 57. Bro. Ex. 57. lib. Intr. 323. A Fieri fac absolutely without condition So. 9. H. 649. 50. A manu-script report 36. H. 6. f. 3. Mordant 12. H. 7. Kelw. rep 24. but vavasor just and all thother serjeaÌ„ts â— contra 2. El. D. 185. Co. lib. 5. f. 32. Mich. 41. El. rot 2441. Co. lib. Intr. 269. b. A recovery of debt precedent was pleaded Pl. replied nul tiell record def would not maintaine his plea. Ideo condemp If neither hee must so returne and doe nothing 1. And 2. P. M. sod Dy. 105. b. 1. Eli. Dy. 166. 167. So also Balâ—â— 50. Ed. 8. 9. 13. 14. Eliz. Dy. 305. 306. 1. Eliz. Dy. 166 167. see lib. Intra f. 322. b. 21. H. 6. 28. 10. H. 7. 28. Yet lib. Intra 322. b. where he confessed about funerall he traversed aliter Lib. Intra 312. where by letter ad collig Hee traversed Absq hoc quod Exec. 21. H. 6. 28. Lib. Intr. 322. 8 and 9. Eliz. Dier 255 256. He sold blended corne but there hee pleaded not the speciall matter 1 And 2. P. Ma. Dyer 105. 21 H. 6. 28. 33 H. 6. 31. 1 Eliz. Dy. 166 Tr. 37. Eliz. by Fâ—nner Just If one doe any such act as puls the property out of the executor he is become an executor by wrong If the goods be aliened by fraud he who takes them after the executors death is an executor by wrong Tr. 37. Eliz. L. 5. E. 472 a. Tr. 2. Jac. in com b. Co. lib. 5. 33 34. 1 El. D. 166. b. H. 20. 7. 5. 50. Ed. 3. fo 9. Tr. 3. Eliz. 2. Point L. 5. E. 4. 72. Co. lib. 5. 30. 31. 33. b. 21