release is a bar to the writ of Error So if a judgment be given upon a false verdict in a reall action a release of all actions reall is a bar in an attaint By a release of all actions personall without more words are Of actions personall Bro. Release 47. Co. super Lit. 285. 9 H. 6. 57. Lit. Sect. 502. discharged all personall actions then depending and all causes of personall actions wherein a personall thing only is to be recovered and therefore hereby are discharged all causes of suing out of actions of debt trespasse detinue or the like Also all mixt actions as actions of wast Quare Impedit an assise of novel disseisin writ of annuity appeal of maihme and the like And if debt c. or damages be recovered in a personall action Co. super Lit. 289. by false verdict and the defendant bringeth awrit of attaint or if a writ of Audita Querela be brought by the defendant in the former action to discharge him of execution by this release the defendant in both cases is barred of his suit Also when by a writ of Error the plaintiffe shall recover or Co. super Lit. 288. Lit. Sect. 503. be restored to any personall thing only as debt damage or the like as if the plaintiffe in a personall action recover any debt c. or damages and be outlawed after judgement in this case in a writ of Error brought by the defendant upon the principall judgement this release will bar him But where by a writ of Error the plaintiffe shall not be restored to any personall or reall thing this release is no bar as if a man be outlawed in an action personall by processe upon the originall and bring a writ of Error and then release this is no barre to him If a man by wrong take or find my goods or they be delivered Lit. Sect. 497 498. 500. to him and I release to him all actions personall notwithstanding this release I may in this case take my goods again albeit I be barred of my action by this release Neither is this release a bar in an appeal of robbery or death Neither will it bar in any case where a release of all actions will not bar Neither is it any bar to an action of debt brought for an Co. super Lit. 292. 285 annuity granted for a term of years for any arrearages that shall grow due after the release Nor for any rent of sum of nomine pene when the release is before the same day or nomine pene happen Neither is it a bar in such reall actions wherein damages are recoverable only by the statute and not by the common law as in a writ of dower entry sur disseisin in le per Mordancester Aile c. By a release of all debts without more words are discharged Of debts Co. super Lit. 76. 291. Fitz. Audita Querela 3. and released all debts then owing from the relessee to the relessor upon especialties or otherwise all debts due also upon statutes And therefore if the conusor himself or his land be in execution for the debt and he hath such a release he must be discharged and so he cannot be upon a release of all actions By a release of all duties without more words is a relessor Of duties Co. 8. 153. super Lit. 291. barred and the relessee discharged of all actions judgements and executions also of all obligations And if the body of a man be in execution and the plaintiffe make him such a release hereby he shall be discharged of execution because the duty it selfe is discharged And if there be rent or services behind to the Lord from his tenant and the Lord make such a release to his tenant by this it seems the arrearages are released This word is of somewhat a more large extent then actions Co. 8. 154. 157. 5. 70. super Lit. 291. Of Suits for by a release of all suits without more words is released and discharged as much as by a release of all actions And hereby also are discharged al executions in the case of a subject But in the case of Prerogative the King it doth not release executions And this doth not release a covenant before it be broken By a release of all quarrels without more words all actions Co. super Lit. 292. 8. 157. 5. 70. Of Debates quarrells controversies reall and personall and all causes of such actions are released and discharged So likewise by the release of all controversies or by the release of all debates But this will not bar the relessor of any causes of suit that shall arise after and was not at the time of the release as the breach of a covenant which shal be after albeit the covenant be before is not discharged hereby By a release of all covenants without more words all covenants Of Covenants Co. 1. 112. 10. 51. super Lit. 292. then broken and all that shall be after broken that were then made and in being are discharged Qui destruit medium destruit finem And therefore if a lessee doe covenant to leave a house leased Adjudge Hil 4 Jac. B. R. Hancocks case to him at the end of the terme as it was at the beginning of the terme and the lessor before the end of the terme release to the lessee all covenants this doth discharge the covenant But this release doth discharge nothing else but covenants By a release of all Statutes from the conusee to the terre-tenant Of Statutes Co. 10. 47. without more words the Statute is discharged And yet if he release all his right in the land of the conusor this will not discharge the land of execution By a release of all errors and writs of error all errors and Co. 2. 16 Lit. Sect. 503. Of Errors writs of error and that before they be brought are extinct and discharged And if a man be outlawed in a personall action by processe upon originall and make such a release this will barre him By a release of all warranties or covenants reall all warranties Lit. Sect. 148. Of Warranties then made and being are for ever discharged By a release of all legacies without more words a man doth Co. 10. 51. Dier 56. Co. super Lit. 76. Of Legacies barre himselfe of all the legacies given him in presenti or futuro so that if he be to have a legacy at 24. yeares old and at 21. yeares of age he release to the executor al legacies or this legacy in particular this is a barre to him of this legacy for ever And yet a release of all demands in this case is no discharge of this legacy By a release of rent the rent is extinct and discharged whether Co. super Lit. 292. Of Rent the day of paiment be come or not But a release of all actions will not
hath assets in his hands to pay all men and besides untill this be done he cannot deduct to satisfie his own debt first and barr other men by Plea But of the other side when he hath made and exhibited a true and perfect Inventary of all the goods and chattels it shall be presumed against him that he hath so much as is contained in the Inventary and no more unlesse more can be proved by Witnesses 3. The third thing whereof the Executor or Thirdly in Probate of the Will See Probate infra at Numb Administrator is to take care is to prove the will if there be any And this the Ordinary will compell him to do but otherwise he may do any thing as Executor save only sue actions as well before Probate as after 4. The fourth thing whereof the Executor or Administrator must take care is to sell and make money of the goods Fourthly in payment of Debts and Legacies and the order of payment of Debts and Legacies Coo. 9. 88. Plow 184. 545. Dyer 80. Doct. St 75. 76. 77. 78. 132. Stat. 33. H. 8. cap. 39. Coo. 5. 28. 4. 54. 59. 60. 8. 132. Dyer 232. 32 21 Ed. 4â— â—21 Bâ—oo Executors 88. 172. Coo. 8 132. Dyer 32. Plow 279. 280. Broo. Executâ—rs 103. Kelw. 74. and chattels and to receive the debts due to the deceased and then to pay the Debts and Legacies due to the Creditors and Legataries wherein the Executor or â—dministrator must be very cautious and wary And for this purpose let him observe That all the debts must be paid before any Legacies be paid or delivered and if there be not enough besides to pay the debts any thing given by way of Legacy may be sold to make money to pay the debts and the Legataries must loose their Legacies for Lâ—gatarii contendunt de lucro captando Crediteres autem de damno vitando And in payment of debts this decorum must be observed 1. Amongst persons that are Creditors the executor or administrator himselfe shall be preferred so that if any debt be due to him he may deduct to satisfie himselfe first albeit others loose their whole debt thereby and especially then when his debt is in equall degree with others debts 2. After the executor or administrator is served and satisfied his debt then the King is to be preferred so that if there be any debt due to him and he begin his Suit for it before any other man can get a Judgement for his debt against the executor or administrator his debt shall be paid before any others 3. After the King is served and satisfied his debt then the debts of common persons must be paid And these also must be paid in this order or manner 1. The debts due by Record by any judgement had against the deceased in any judiciall proceeding in any Court of Record 2. The debts due by Statutes or Recognisances ented into by the deceased for the debts due upon judgements must be satisifed before these sit judâ—cium prius velposterius 3. The debts due by Obligations and penall and single Bils for these are in equall degree and these are to bee paid after Statutes and Recognisances And yet if the Statute or Recognisance be only for performance of Covenants and no Covenant is broken an Obligation for the payment of present money shall be discharged before it 4 The debts due for rent upon Leases of Land or grants of rents but some say that debts due for rent in the Testators life time be the rent reserved upon Leases made by or without deed for years or at will are in equality of degree with debts due upon Especialties 5. The debts due for servants wages and workmen 6. The debts due upon shop-books and verball Contracts and yet it is said Addition to Iust Dodridge 92. by some That Legacies are to be paid before debts due by shop-books bills unsealed or contracts by word Quod non credo And amongst debts also that are in equality of degree those that are due are to be paid before those that are not due and those whose day of payment is already come before those whose day of payment is not yet come And yet if the Creditor whose day of payment is already come doe not sue for his debt untill his debt whose day of payment is at a day to come become due the Executor or Administrator may satisfie which of them he will first And amongst debts that are due and already to be paid those that are first sued for are to be first paid Or if the Creditors begin their Suites together the Executor or Administrator may pay which he will of them first and to pay debts in any other order is dangerous And therefore for the purpose if the deceased are two severall debts of 10l a piece to two severall Creditors by severall Obligations and the Executor or Administrator hath enough only to pay one of them he that can first get Iudgment and Execution shall first be satisfied and if the Executor or Administrator doe afterwards pay the other his debt he must satisfie the first out of his own estate If one that hath a debt due to him from the deceased upon a simple Contract or the like sue the Executor or Administrator for it and there bee debts due to others upon bonds and bills unsatisfied in this case the Executor or Administrator may not pay this debt nor may hee suffer the Plaintiffe to recover in his Action for if he doe and he have not Assets besides to satisfie the debts due upon Bills and Bonds he must satisfie so much out of his own estate as hee hath so paid or suffered to bee recovered from him for in the case of an Action brought he is to plead and to set forth these debts upon Especialties and to say that he hath no more but what is sufficient to satisfie them c. and thereby he shall barre the Plaintiffe in his Action In like manner it is if one that hath a debt due to him from the deceased upon an Obligation sue the Executor or Administrator thereupon and there be debts due to others upon Iudgements Statutes or Recognisances and the Executor or Administrator suffer the Plaintiffe to recover the debt due upon the Obligation for want of pleading the Iudgements c. or doth voluntarily pay that debt and he hath noâ— Assets besides to pay the debts due upon Iudgements c. in this case he must pay so much out of his own estate towards the satisfaction of the said debts due upon Iudgements c. as he hath paid of the debt due upon the Obligation But here it must be noted that no Iudgement or Statute that is discharged or is left and suffered to lie by agrement to barre others of their debts shall be any barre to others that sue for their due debts upon Obligations c. and Covin therefore if any Executor or Administrator shall
plead any such Iudgement c. in barre of any other debt sued for by any other Creditor the Creditor may by speciall pleading set forth this matter of Covin and avoid the plea and barre of the Executor or Administrator If one Creditor whose debt is in equall degree and presently due and to be paid begin a Suit against the Executor or Administrator for his debt and hee hath notice that the Suit is begun against him or the Action is laid in the County where the Executor or Administrator doth dwell or as some have said in London in both which cases it seemes he is bound to take notice thereof at his perill and after this Suit begun hee doth make voluntary payment of another debt in equall degree in all respects for which no Suit is begun this is a devastavit in the Executor or Administrator and if he have not Assets to satisfie him who began his Suit first he shall be compelled to satisfie so much thereof as he doth voluntarily pay to the other and that out of his own estate And yet an Executor or Administrator may make voluntary payment of any debt due by Record as by Iudgement Statute c. after such a Suit begun and justifie it If two Creditors in equall degree to all purposes begin to sue for their debts at one time in this case the Executor or Administrator cannot safely make voluntary payment to either of them unlesse he have enough to pay them both but his safest way is to pay him first that in a due and legall proceeding for he may not covinously help one of them to a Iudgement sooner can first recover it by Iudgment and Execution And yet if in this case no Suit be begun the Executor or Administrator may make voluntary payment to either of them in equall degree of his whole debt albeit he have no Assets left to pay unto the other any part of his debt If A and B be two Creditors in equall degree and A begin his Suit first and after B doth begin his Suit and it happeneth that B bonâ fide without any Covin or agreement between him and the Executor or Administrator doth get Iudgement and Execution first in thiâ— case the Executor or Administrator may make payment â—o B first of all But if the Executor or Administrator doth by any Covin and agreement help B to his Iudgement and Execution first and by this meanes he is first satisfied if there be not Covin enough left to satisfie A he must satisfie him out of his own estate If two Suits begin at or about one time upon two severall Obligations and the Executor is forced to plead to them both before either of them hath a Iudgement so that he cannot plead the Iudgement that the other hath against him and he hath not Assets to satisfie both the debts sued for and after the Plaintiffs in both the Suits get Iudgement and Execution Quaere what the Executor or administrator may doe in this case And here note by the way that it is policy for a Creditor that hath cause to sue an executor or administrator to bee doing bâ—times and to get judgement and execution assoone as he may for it falleth out in this case That he that doth first come shall bee first served After all the debts are paid in such order and manner as before then is the executor or administrator to pay and to deliver the Legacies and herein the executor may preferre himselfe so that if any Legacy be Doct. St. 34. Plow 54â— Swinb 110. 114. given to him he may detaine and deduct it albeit there be nothing left to discharge the Legacies given to others and after he hath satisfied himselfe he may satisfie and deliver what Legacies he will albeit there bee not enough to satisfie all the Legatees or he may pay to each of the Legatees a part of their Legacy and deduct a part out of every Legacy where there is not enough to satisfie all the Legacies But if any particular thing as a Lease or a horse or the like be given this must be delivered accordingly and may not be sold by the executor or administrator to pay others all or any part of their Legacies and if there be enough to pay all the Legacies they must be paid all according to the Will and it is said by some that if an executor or administrator make no Inventary of the goods that he must pay all the Legacies whether he have Assets or not The last thing an executor or administrator is to take care of Swinb Part. 6. Sect. 17. is to make an account for it is â—eld that an executor or administrator Fifthly in making an Account is not bound in Law or Conscience to make restitution for personall wrongs wherein this is to be known That the Ordinary may if he will call the executor or administrator to account concerning the goods and chattels of the deceased either generally or particularly as the case requireth and that with or without the Creditoâ—s or Legataries instigation within a year or what time he will unto which account he may call all the Crâ—ditors and Legataries and therein the executor or administrator must shew what he hath received and what he hath laid out and provâ—â—â— in such sort as the Ordinary shall like And then if it be found he hath faithfully and fully administred the Ordinary may acquit him of the burthen and then hee is discharged of all Suits in the Spirituall Court but this account and discharge will not help nor availe him at all to discharge him of Suits at the Common-Law The Office and duty of the Ordinary after the death of any Coo. 5. 83. 9. 39. Litt. Broo. Sect. 233. F. N. B. 120. Dâ—er 23. Doct. St. 132. person within his Diocesse is if he hear of any Will made and any Executor appointed to cite the Executor and to compell him to come in and prove the Will and to accept and take upon him the administration of the goods or to refuse it and if the Executor Broo. Executor â—0 Testament 27. Stat. 31. Ed. 3. c. 11. 13 Ed. 1. c. 19. 21 H. 8. c. 5. refuse or if there be a Will made and no Executor appointed the Ordinary must commit the administration cum testamento annexo to whom he shall think fit and take Bond of the admistrator to performe the Will And if there be no will made he is to grant the administration of the goods to the next of kinne if he or they require it and if not to whomsoever besides shall desire it or if no body seek it he may grant letters to whom he will ad colligendum bona defuncti and thereby take the goods of the deceased into his own hands and then it seemes hee is to pay therewith the debts and Legacies of the deceased so farre as the same will reach in such order as the Executor or administrator is
be found for him this will barre the Plaintiffe And if he doe intermeddle and take upon him the administration be may plead if the case be so that he cannot recover the goods of the deceased for he shall bee charged for no more then what he can gâ—t in his possession Or he may plead that he hath fully administred all the goods and chattels of the deceased and hath nothing left to administer or he may plead that he hath paid so much of his own money as the goods in his hands do amount unto Or if he be sued for debts due by obliligations or such like Especialties entred into by the deceased hee may plead that there are debts due and yeâ— to pay on Iudgements had against the deceased or that there are debts due and yet to pay on Recognisances or Statutes entred into by the deceased and that he hath no more then enough to satisfie them Or he may plead that there are Iudgements had against him for other debts of the deceasEd in equall degree with the debt sued for and that he has no more then enough to discharge them so as these former debts on and for which these Iudgements were had and Statutes given bee bonà fide duâ— and the Iudgements Recognisances and Statutes in truth continued for the same for if there be any fraud in the case viz. that either the Iudgements Recognisances or Statutes werâ— at first entred into or are afterwards continued of purpose to deceive or delay others of their due debts when either the debt is satisfied or compounded for lesse or the like in these cases this plea will not serve but this matter being disclosed by the Plaintiffs pleading he will avoid it And if he be sued for a debt due upon a simple Contract or promise of the Testator he may plead there are debts to pay due by Obligations and other especialties entred into by the deceased and that he hath no more then enough to satisfie those debts and this will barre the Plaintiff in his Action And therefore if an executor or administrator plead a Iudgement in barre of an Action of debt upon an Obligation hee must shew also that the Suit whereupon the Iudgement was had was upon an Obligation for if it were on a simple Contract it is no barre And if the Executor be sued for debt on an Obligation he may plead he made voluntary payment of other debts due upon Obligations or gave new security for them in his own name before the Suit began and that he hath no more then enough to satisfie them But to plead such a voluntary payment or giving of new security after Suits begun upon this Obligation now in Suit is no good plea. If an Action bee brought against an Executor or Administrator on an Especialty for money it is no good plea in barre of this Action to plead a Statute or Recognisance with Defeasance to performe Covenants when there is no Covenant broken If a Suit be against an Executor or Curia Trin. 37 Eliz. Administrator for a Legacy it seemes it is no good plea to plead a Bond with Condition for performance of Covenants or for the doing of any other collaterall thing that is contingent only and not yet broken Is is no good plea in an Action for an Trin. 39. Eliz. B. R. executor or administrator to say that the deceased was Out-lawed An Executor or Administrator may make himself chargable of 38. Where and in what case an Executor or Administrator shall be charged by his own act or pleading upon his own goods and where Execution shal bee de bonis propriis and where not his own goods either by omission as when he being sued upon 2 H. 6. 12. Dyer 185. 80 Coo. 9. 90 94. 9 H 6. 57. 3â— H 6. 45. Broo. Executor 141. 105 Litt. 〈◊〉 Sect. 29. Klew 61. Broo. Executors 164. an Obligation or the like and there is a Iudgement against him or the deceased in force and he hath but enough to satisfy that Iudgement and he doth not plead this in barre of the present action but doth suffer the Plaintiffe to recover against him in this case he must satisfy this second debt out of his own estate or by Commission and that either by doing as when he doth any act that is a waste in him and thereupon a Devastavit is returned against him for in this case he must answer so much as he hath wasted out of his own estate or by saying as when a Suite is against and he doth plead such a false plea therein as doth tend to the perpetuall barr of the Plaintiffe in the action and yet it is of a thing that doth lie within his perfect knowledge as when hee doth plead he is not Executor nor did ever administer â—s Executor and upon tryall of this issue against him it be found hee is a rightfull or wrongfull Executor in this case he must satisfy this debt out of his own estate whether he have Assets or not and the execution had upon the Iudgement had in this Suite shall be de konis propriis And if an executor or administrator be sued and he plead to the action plenè administravit and upon tryall it is found against him in this case if he have any of the goods of the deceased left in his hand the execution shall be of them but if he have none of the goods of the deceased left the execution shall be and he shall be charged for so much as is found to be in his hands de bonis propriis But where he is sued upon a promise made by the Testator and he plead non assumpsit to it and where he is sued upon a Deed made by the Testator and he plead no â—est factum to it or the like and these issues upon tryall are found against him or when he shall confesse the action or suffer a Iudgement to go by default against him or plead any vain plea in all these cases he shall not be chargable of his own estate neither shall the judgement and execution in these cases be de bonis propriis but de bonis Testatoris only for the debt and de bonis propriis for the costs And yet if an executor or administrator shall entreate a Creditor to forbeare his debt untill a day and then promise to pay him by this promise he hath made himselfe chargable as for his own debt howbeit it shall be allowed him upon his Account But in all these cases and such like where a man shall be charged of his own estate and the execution shall be de bonis propriis Atworths case Micâ—h 38. 39. Eliz. it seemes the Iudgement is alwayes de bonis Testatoris and the course is this the first execution is against the executor de bonis Testatoris and not de bonis propriis And after a Devastavit 34 H. 6. 45. 46 Ed. 3. 9. Fitz. Executor 9. Coo. 5. 32. 8.
134. Dye 185. 32. returned by the Sheriffe against the executor or administrator and not before a new execution is directed to the Sheriffe to levie the debt de bonis Testatoris and if there be none of them to be found in his hands then to levie them de bonis propriis And therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a plenè administravit generally or plead specially that he hath no more but to satisfie a Iudgement or the like and upon tryall this issue is found against him and it is found he hath in all or part enough to satifie the debt in these cases the Judgement is de benis Testatoris and thereupon an Execution is as in other cases to levie the debt de bonis Testatoris in the hands of the Executor or Administrator and for the costs de bonis propriis And upon the returne of the Sheriffe a speciall execution doth issue forth to levie the money de bonis Testatoris Et si constare poterit that he hath wasted the goods then that he shall make the execution d bonis propriis And hâ—reupon also the Plaintiffe may if he will have a Capias against the body or an Elegit against the lands of the Executor or Administrator and no other course of proceeding can or may be had against the Executor or Administrator in this case An action of debt was brought against two Executors and one Dyer 21â— of them did appeare and confesse the action and the other made default and thereupon Judgement was given to recover against them both de bonis Testatoris in their hands and execution accordingly and upon this execution the Sheriffe did returne a Devastavit against the Executor that made default only and hereupon a Scire facias went out against him alone and afterward an execution against him alone de bonis propriis Assets in this case is said to be where one dieth indebted and Termes of the Law Coo. super Litt. 374. maketh his Executor or dyeth intestate and the Executor or Administrator Assets Quid. hath sufficient in goods or chattels or other profits to pay the debts or some part thereof this is said assets in his hands and for so much he shall charged All those goods and chattels actions and commodities which were the deceaseds in right of action or possession as his own and 3â— What shall be said to be Assets in the hands of an Executor or Administrator to charge him Or not so continued to the time of his death and which after his death the Executor or Administrator doth get into his hands as duly belonging to him in the right of his Executorship and Administration and all such things as do come to the Executor and Administrator in liew or by reason of that and nothing else shall be said to be assets in the hands of the executor or administrator to make him chargable to a Creditor or Legatee And herein these things are to be known 1. That Assets in the hands of one of the executors shall be said to be Assets in the hands of all the executors Kelw. 51. 2. That Assets in any part of the world shall be said to be Assets Coo. 6. 47. in every part of the world and therefore if that point be in issue and it appeare that there is Assets in the hands of any one of the executors or in any County or place whatsoever the Iury must find that there is Assets 3. All goods and chattels of what nature or kind whatsoever that are valuable as oxen kine corne c. Coo. super Litt. 388. shall be esteemed Assets But such things as are not valuable as a Presentation to a Church and the like shaâ—l not be accounted assets 4. All the goods and chattels that come to the executor or administrator in the right of their executorship or administration and Coo. super Litt. â—88 5. 3â— that are by Law given to them by vertue thereof in the right of the deceased for which See before at Numb 25. and which Dyer 361. Kelw. 63. are in possession shall be esteemed Assets in his hands a Coo. super Litt. 54. Dyer 36â— And therefore if a Feoffment be made to the use of the Feoffor for life and after to the use of his executors and assignes for 20 yeares in this case it seemes this 20 yeares shall be said to be assets in the hands of the executor of the Feoffor b 20 H. 7. 4. Broo. aâ—sets 22. And goods pledged to the deceased and not redeemed or the money wherewith it is redeemed when it is redeemed shall be said to be assets in the hands of the executor or administrator c See Before Numb And if the deceased doth appoint that the executors shall sell his land to pay his debts the money that is made of the land when it is sold shall be said to be assets in his hands 5. All the goods and chattels in action or in possibility Coo. super Litt. 124. 5. 31. Broo. Assets 24. Dyer 264. 121. 2 H. 4. 21. Coo. 6. 58. Kelw. 63. Dyer 362. at the time of the death of the deceased that are afterwards recovered and are gotten in possession into the hands of the executot or administraror when they are so recovered ate esteemed assets in his hands But they are never accounted assets untill they are recovered and come in possession and therefore if there be debts owing to the deceased upon Statutes or Obligations or otherwise these are never esteemed assets in the hands of the executor or administrator untill he hath recovered them So likewise if there be debt or damages recovered by a Iudgement had by the deceased but no execution is done untill execution be made this shall not be esteemed assets in the hands of the executor or administrator So if the executor bring an action of trespasse against another de bonis asportatis in vita Testatoris and he have a Iudgement for damages in this case untill he hath recovered it by execution it shall not be esteemed assets in his hands And if the Indgement be erroneous and the execution avoidable in this case albeit it bee recovered and gotten in possession yet it shall Curia Mich. 13. B. R. not be esteemed assets And therefore if one sue another and recover against him as Administraror of I S and after a Testament made by I S is produced and proved and thereby an Executor is made in this case the money recovered by the Administrator shall not be said to be assets in his hands as to any of the Creditors because the Executor may recover it from him or the debtor will have it againe And if the Executor or Administrator do never recover and get the thing into his possession he shall never bee Coo. 1. 98. Plow 84. 292. charged especially there where he hath done his best to get
payment of his own debts only a Trin. 1â— Iac. Co. 〈◊〉 Woâ—se Heideâ—â— case And if in this case the Executor of the Executor take upon him the Administration of the goods of the first Testator he cannot refuse the Administration of the goods of the latter but he may take upon him the latter and refuse the former But if the Executor refuse to administer to the first Testator Dyer 372. before the Ordinary or die before the Probate of the Will and hee hath made a Testament and appointed an Executor therein in these cases it seemes the Executor of the Executor shâ—d not administer the goods of the first Testator but the Ordinary must grant the Administration thereof And 〈◊〉 all the residue of the goods of the first Testator be given by the Testament to the first Executor after the debts be paid in this case albeit he die before Probate of the Will yet his Executor shall be Executor also to the first Testator or else he shall have the Administration of his goods and chattels granted unto him And therefore if A make his Will and Adiudged in Hâ—ll 〈◊〉 Car. in Dâ—â—s case give Legacies to B and D and give all the rest of his goods and chattels after debts and Legacies paid to C his wife and make heâ— his sole Executrix and shee die before Probate of the Will or any election made not knowing of the Will and E sue out an Administration of the goods of A and pay the Legacies to B and D and F sue out an Administration of the goods of C in this case the Administrator of C and not of A shall have the goods for the Law doth judge them in C after the debts and Legacies paid without any election If an Executor after hee hath proved the Testators Will die Bâ—oo Executor 117. 〈◊〉 H. 〈◊〉 7. Coo. 1 96. Dâ—er 372. Termes of the Law tit Administration Intestate in this case the Administration of the goods of the first Testator not administred in the hands of the Executor must be granted to whom the Ordinary shall think fit And if the Ordinary please hee may grant the Administration de bonis non administratis of the first deceased and of the goods of the second deceased to one and the same person And herein the Administrator must take care that his Administration have speciall words for the granting of an Administration of the goods of the first Testator not administred * Fiz Administrator 9 for howsoever some hold that by the generall Administration the Administrator shall have not only the goods of the Executor but the goods fo his Testator also yet it seemes this is not taken to be Law at this day If there be two Executors made and one of them doth refuse Dyer 160. before the Ordinary and the other doth prove the Will and make a Will himselfe and appoint an Executor and then die in this case it seemes the Executor of the Executor that did prove the Will alone shall have the disposition of all the estate and be Executor to the first Testator and that the surviving Executor shall not meddle therewith for that his Election by the deaâ—h of his companion is gone And if one make two Executors and one of them doth Litt. Broo. Sect. 17â— Bâ—oo Executor 49. 99. â—â—tz Executor 12. 113. Dyer 187. make an Executor and die and the other that doth survive hath accepted the Executorship in this case the surviving Executor shall have the sole disposing of the estate and the Executor of the deceased Executor shall not intermeddle therewith And if therefore the surviving Executor die Intestate an Administration de bonis non Aaministratis of the first Testator shall be grantted And if the Executor of the dâ—â—eased Executor have any of the estate in his hands the surviving Executor may take or recover it from him And if two bee maâ—e Executors and one of of them is uncapable in this case he that is capable shall administer alone If one that is Administrator of another mans goods doe make Dyer 372. 112. Coo. 5. 9 his Will and make an Executor and die oâ— doe die Interâ—ace and the Administration of his goods is granted to some body in the first of these cases the Executor and in the last the Administrator unlesse he be made Administrator of these goods also shall not meddle with these goods of the first deceased but the administration of the goods of the first deceased in the hands of the Administrator not administred must be granted againe And hence it is that if the Administrator of my goods have a judgement for a debt due to me and he dye before execution and make an Executor oâ— die intestate that in this case his Executor or Administrator shall never have execution of this judgement And the same law is of the Administrator of my Executor in this case An Executor or Administrator may accept or refuse the executorship Coo. 〈◊〉 37. 37 Hâ— 6. 27. 28. 20. H. 6. 1. 24. Where an Executor â—r Administratâ—r maâ— accept or refâ—â— the Executoâ—ship 〈◊〉 Administâ—â—â—on and hoâ— And wheâ—â—â—e may bâ—â— Executor 〈◊〉 â—e hath â—â—â—ed 〈◊〉 And whaâ— a 〈◊〉 intermâ—dling with the goods of the dead shall bâ—â— said an Admâ—â—â—stration and what not or the administration at his pleasure and therefore he may at any time before he hath intermedled with the estate as Executor or Administrator refuse it and if he be sued by any as Executor or Administrator he may plead ne unques Executor i. e. he was never â—xecutor or Administrator and did never administer and if it be true he shall by this meanes avoid the suite for a man shall not be compelled to take such a charge upon him whether he will or no Iâ— therefore there bee many Executors or an admâ—nistration bee granted unto many and one of the Executors prove the Will in the name of the rest or one accept the administration in the name of all the rest yet the rest may refuse to accept it and plead in any â—uite against them that they are not Executors or Administrators But as an Executor or an Administrator after he hath once legally refused the executorship or administration can never after intermeddle therewith so after he hath once legally accepted thereof that is hath done any thing as Executor or administrator and which is proper only for an executor or administrator to doe he can never after refuse it And his acceptance of part in this case will make him chargable with all except it bee in the case before of an Executor who may accept of the last Executorship and refuse the first If the Executors being cited to come in and prove their Will appeare Coo. c. 37. Fitz. administration 6. 11. Bâ—oo Administration 32. Executors 117. Coo. 5. 28. Peâ—k Sect. 4â—5 Dyer 1â—0 21. Eâ— 23. before the Ordinary and refuse to administer and to prove the Will they
If two Executors sue together and one of them is summoned and severed in this case he that is summoned may before Iudgement Dyer 310. 210. 16 H. 7. 4. release the duty but if the other prosecute to Iudgement first and then he that is severed acknowledg satisfaction this will not benefit the Defendant nor barr the rest that are Plaintiffes in the Iudgement And if 3 Executors sue and 2 are summoned and severed and the 3 recover and dye in this case the other two shall have execution See more at Numb 27. supra â— One Executor or Administrator cannot give or sel any of the goods or chattels of the deceased to another Executor or Administrator 〈◊〉 What act one Executor may do to another And what remedy or action one Executor or Administrator may have against another or not 27 H. 8. 21. 6 H. 7. 5. Plow 343. â—itz Executors 6. and therefore they may not make division of the goods amongst themselves and regularly one of them cannot sue another of them And therefore if one keep give or sell all the goods release debts or the like in the disturbance of the execution of the Will or due Administration of the estate it seemes the other hath no remedy against him except it be in the case of Covin before But if all the residue of the goods and chattels after debts and legacies paid be given to one of the Executors alone and after the debts and legacies paid the rest do detaine it or any part of it from him in this case perhaps hee may have some remedy against them If the Debtor make his Creditor and another his Executors and 〈◊〉 483. the Creditor doth refuse the executorship and the other doth accept it in this case the Creditor may sue the executor for this debt But if both prove the Will and the Debtor dye the surviving Co-executor cannot sue the executor of the debtor for this debt And if one make a woman and two others his executors and a Creditor before shee doth accept of the executorship doth marry her in this case hee may sue the other executors for this debt but if shee have accepted of the executorship first contra 32. Devastavâ—t Qâ—id What shall be said a Devastavit and wasteing of the goods of the deceased by an Executor or Administrator And how he shall be charged thereupon 〈◊〉 5â—3 â—oo 532. Doct. St. 75. Perk se 488. 570. Kelw. 59. A Devastavit or waste in an executor or administrator is when he doth misimploy the estate of the deceased and misdemean himselfe in the managing thereof against the trust reposed in him And this may be done divers wayes as 1. When the Executor or Administrator doth bestow more upon the Funerals of the deceased then is meet having respect to his degree and estate 2. When he doth pay Legacies in money or assent to Legacies given in other things before the debts are paid and hath not enough besides to pay the debts 3. When he doth not pay the debts in that order and manner as is before set down but doth pay them first he should pay last and he hath not enough to pay them all 4. When he doth release a debt or duty due to the deceased before he doth receive it or when the goods of the deceased being taken from him he doth release to him that doth take them the action whereby he may recover them 5. When he doth sell the goods of the deceased much under value especially if it be with covin as to his near friends to his own use to have money under hand or the like but otherwise to sell them under value especially where he cannot conveniently make more of them is no waste All Dyer 185. Coo. 5. 32. Old B. of Entries 11. these and such like acts as these are said to be a waste in an Executor or Administrator and being discovered against him by the returne of the Sheriffe or as some think by enquest of office it will produce this effect to make the Executor or Administrator chargable for so much as he hath misimployed and wasted de bonis propriis so that any Creditor may charge him for the debt due to him from the Testator as for his own proper debt and for so much the execution shall be made against him upon own body lands and goods And yet so as one Executor or Administrator shall not be Dyer 210. Doct. St. 78. charged for the waste of another for if there be many Executors and one of them only doth commit the waste he only shall be punished for this waste And the Executor or Administrator if he do commit a waste in the gift or sale of goods shall answer it alone for he to whom the goods are given or sold shall not be punished for it neither shall the executor or administrator of the executor or administrator be punished for it after his death And howsoever the husband shall be charged in a Devastavit for the waste of himselfe or his wife where she is an executrix whiles they both live 2 H. 7. 15. Coo. 5. 2â— M 3. Ia. B. R. together yet if a woman executrix take a husband and during the marriage he or she doth commit a waste and after she die in this case it seemes the husband shall not be charged for the waste himself or his wife did Sed quere of this For if a void Administration be committed and the Administrator do waste the goods Coo. 6. 1â— and after the Administration is committed to another in this case the first Administrator mae be charged by the Creditors for the waste done in his time But an executor or administrator may lawfully sell or convert the goods of the deceased to his own use Dyer 2 187. Plow 543. so as he convert the money to the use of the deceased in payment of debts or the like and pay so much of his own money as the goods so converted to his use are worth and these acts are not esteemed a waste in him Also he may sell any speciall Legacy that is given and this is no waste in him â—owbeit it is a wrong to the Legatee if there be assets to pay debts besides And when he hath enough to pay all the debts and Legacies then he may dispose of the whole estate how he will without any prejudice to himself at all An executor of his own wrong is one that is neither lawfull executor nor administrator and yet doth take upon to do and act such Termes of the Law Kelw. 59. 93. Dyer 105. 157. 255. Coo. 5. 32. â—â—oo Executor 162. things as are only fit for and proper to an executor or administrator 33. Executor of his owne 〈◊〉 Who shall be said to be so And what act shall make him so to be accounted And what act such an Executor may do And how hee shall be charged or not as to take
therefore if there bee tenant in taile the remainder in taile or in fee and he in the remainder perceiving the tenant in taile doth intend to sell the land and barre him by a common recovery doth sell his remainder by deed inrolled to the King and after the tenant in taile doth sell the land by common recovery for good consideration in this case the purchasor shall avoid this deed to the King whereby also appeareth that a fraudulent conveyance within this statute may be by way of bargaine and sale And so was it ruled by the Lord Chiefe Justice Hide in evidence to a Jury at Guildhall 3. Car. And if there be a lease for years and the lessor make a fraudulent conveyance in fee M. 4. Jaâ— Cowell Bart. case and then for good consideration maketh another lease to begin at the end of the former lease this conveyance shall be void as to the second lessee And if A make a lease to B for years upon good considerations Per. 2 Iust Hil. 18 Jac. B. R. and after he makes another lease to C of the same thing for the same term to begin at the same time upon good valuable consideration and B doth not discover this but drives this bargaine with C and is witnesse to this second lease and the first lease is not excepted in the second lease it seems in this case the first lease shall be void as to C. And in all these and such like cases albeit the purchasor before he make his bargaine have notice of the fraudulent Co. 5. 60. Co. 3. 83. conveyance yet shall he avoid it as if he were ignorant of it But such conveyances and deeds made as before shall never be said to be fraudulent and void as against him that shall have the thing afterwards if he do not give a valuable consideration for it And therefore if one make a lease that would be fraudulent void as to such a purchasor to A and after make another lease bonâ fide to B but without any rent or fine given for it in this case the first lease shall not be said to be fraudulent as against the second lessee and therfore not void So if one covenant for the advancement of his heirs males c. to levie a fine of land by a day to the use of himself for life and after of his issue male and before the day he make a lease that is fraudulent for many years of purpose and after he doth levie a fine accordingly in this case this lease is good and shall not be said to be fraudulent and void by this Statute as against the issue in taile So if a man that is somwhat foolish and given to wast be perswaded to settle his lands upon some of his friends of purpose to maintaine himself with it and after some of his lewd companions inveigle him and get him for a small sum of mony to conveigh it to them in this case the conveyance first made shall not be said to be fraâ—dulent as against these purchasors and therefore it is good against them And if one that hath a terme for 60. years if he live so long make it away Co. super Lit. 3. and then hee doth forge a lease for 90. yeares absolutely and after by indenture reciting this forged lease for valuable and good consideration doth bargaine and sell this forged lease and all his interest in the land to I S in this case it seems that the first lease is not void and that the purchasor shall have nothing but the forged lease A deed also made of any thing with intent and purpose to deceive Stat. 3 H. 7. 4. 2 R. 2. ch 3. 1â— El. ch 5. Co. 3. 82. 2 To deceive creditors and others of debts and such like duties and defeate Creditors of their just debts and duties is void also as against such persons For it is provided to this purpose by other Statutes That all feoffments gifts grants alienations bargaines and conveyances of lands tenements hereditaments goods and chattells or any rent profit or commodity out of land made by fraud or collusion of trust to him that made the same or otherwise with intent to hinder and delay or put off or put by Creditors or others of their just and lawfull actions suites debts accompts damages penalties forfeitures hariots mortuaries or reliefes shall be void as against them to whom such thing shall belong and hee may recover the thing notwithstanding but all such as are made bonâ fide and upon good consideration are not to be accounted fraudulent by this Statute For the better understanding whereof these cases following are to be heeded If a man a little before his Co. 5. 60. 3. 82. Dyer 295. death make a conveyance of his land to his children or friends of his bloud with a proviso to make it void at his pleasure and he take the profits of it as his own or make a conveyance of it to friends to the intent they shall not be subject to the payment of his debts having bound himselfe and his heires by any especialty or to the intent that a warranty and assets shall not bind his sonne for other land or the like in this case this conveyance shall be void as to them that should have reliefe upon this land by the dissent and especially when the conveyance is made after suites begun and more especially when any judgment is had upon the suits against him that doth make the deed And so also is the law for goods And therefore if one be indebted to A 20l. and to B 40l Co. 3. 80. 83. Bro. Done 20. Plow 54. and be possessed of goods to the value of 20l. and A doth sue the debtor for his 20l. and hanging this suite the debtor secretly makes a generall deed of gift of all his chattels reall and personall to B in satisfaction of his debt and yet doth afterwards continue the occupation and use the goods as his own and after A getteth judgment and execution in this case the deed of gift to B shall be said to be fraudulent and therefore void as against A. So if in this case he give all his goods to B in satisfaction of his debt and before any suite begun by A with any expresse or implicite trust as to the intent that B shall be favourable to the debtor or that if the debtor provide the mony that he shall have the goods again or that he shall suffer the debtor to enjoy and use the goods and pay him as hee can in these and the like cases the deeds shall bee said to bee fraudulent and void for howsoever it bee made upon good consideration yet it is not made bonâ— fide So if one in consideration of naturall affection or for no consideration give all his goods to his child or cousin bonâ fide this shall be a void deed as to the Creditors Et sic de similibus
the estate or if it be in an Obligation when the word Heires shall be inserted or the summe increased or in the date of either or the like be the same either by the party himselfe that hath the property of the deed or any other whomsoever except it be by him that is bound by the deed and be the same with or without the consent of him to whom it is made or doth belong in this case and by either of these meanes the deed hath lost his force and is become void And if the alteration be made by the party himselfe that oweth the deed albeit it be in a place not materiall and that it tend to the advantage of the other party and his owne disadvantage yet the deed is hereby become void But if the alteration be made by the party himselfe that is bound by the deed in any materiall or immateriall part thereof or a stranger without the privity or consent of the owner of the deed shall make any such alteration in any part of a deed not materiall as if it be a deed of a grant containing a lease for years and there be inserted between To have and to hold and for 30 years these words from henceforth Or if it be an obligation and there be inserted between Obligo me and per presentes these words Executores meos in both which cases those words are needlesse and without any fruit at all hereby the deed is not hurt but it remaineah good notwithstanding But if the Alteration be before the delivery of the deed be it whatsoever or by whom soever it will not hurt the deed And herein it must Perk. Sect. 123 124. Bro. Fait 6. Perk. 129 127. 128. be observed that then a rasure c. is most dangerous and the deed thereby most suspitious when it is in a deed Poll and there is but one part of the deed and when the rasure or other alteration is in any materiall part of the deed and when the alteration makes to the advantage of him that doth owe the deed and to the disadvantage of the other that made it and when there doth appeare some other thing to be written before and when there is no other part of the deed recitall defeasance or other matter to which this may be compared and that may make it appeare to be before the delivery and when there be other parts of the deed or other matters whereunto this being compared doth not agree in that part wherein the alteration is and when the deed hath been in the smoke or any such like meanes hath been used to cover the alteration And in these cases the matter was anciently used to be Co. super Lit. 225. tried by the Judges upon the view of the deed but it is now used to be tried by Jurors whether the rasure or other alteration were before the delivery of the deed or not And if after the sealing delivery and perfection of a deed the 2. By breaking or defacing of the Seale Dier 59. Co. 11. 28. 5. 23. Dier 112. Perk. Sect. 135 136. Bro. Oblig 83. seale thereof happen to be broken off or to be utterly desaced so that no signe or print thereof can be seen or it appeareth to have been broken off and it is glued or the wax new heat and set on again or the labell of the deed hath been broken off from the deed is sewed on again or the deed is new sealed with other wax be the same by whatsoever means or whomsoever unlesse it be by him and his means that is bound by the deed in these cases and by either of these meanes the deed is become void But if any peece of the seale remain fixed to the deed and there be any print left upon that peece the deed doth continue good And if after the seale of a deed bee broken off the party that sealed it doe seale and deliver it de novo by this meanes it seems the deed is become good again Trin. 38 El. Co. B. Dier 112. 3 By redelivery or cancelling of it And if a deed be delivered up to the party that is bound by it to be cancelled and it be so or if he that hath the deed doth by agreement between him and the other cancell the deed by either of these meanes the deed is become void But if an Obligee deliver up an Obligation to be cancelled and the obligor doe not afterwards cancell him but the obligee happen to get him again into his hands and sue the obligor upon him the obligor hath not any plea to avoid him for the deed remains still in force 4. By disagreement Co. 3. 26. 5. 119. Dier 167. And if an Obligation be delivered as an Escrow to a stranger to be delivered to the obligee on certaine conditions or to a stranger to the use of the obligee and when this is after tendred to the obligee he doth refuse it and disagree to it or if an Obligation be made to a feme covert and her husband disagree to it in all these cases the deed is become void And like Law is of other deeds in divers such like cases But the party bound by the deed may not Agreement in these cases plead non est factum to the deed And in these cases when the party hath once by his agreement made the deed good he cannot afterwards by his disagreement make it void and when once by refusall and disagreement he hath made the deed void he cannot by agreement or acceptance afterwards make it good 5. By Judgement of a Court. Crom. Jur. 29. 40. Bro. Fait 38. A deed also good in his originall creation may be afterwards damned or avoided by sentence and order of a Court and this is usually done in the Starre-Chamber and in the Chancery and it is when it appeareth that the deed was obtained by some fraud Vacat of a deed force circumvention of such like practise or when it doth appeare to be forged or the like 7. When and where a deed may be good in part and void in part Or good against one person and void against another Or not Co. 11. 27. 14 H. 8. 27. 28. 29. For the answer of this question these differences must be observed 1. When a deed is void ab initio and when it doth become void by matter ex post facto 2. When the deed which is void in part from the beginning is entire and when it doth consist of severall clauses and when it doth consist of severall clauses when the severall clauses are absolute and distinct and when they are severall and yet the one hath dependency upon the other For if any of the Covenants of an Indenture or the conditions of an Obligation be against Law and the rest of the covenants or conditions be good and lawfull in this case those that are against Law and the deed as to that
hurt and for some cause make void the deed as in some cases it may there it shall not relate But if relation may helpe it as in case where a feme sole deliver an Escrow and before the second delivery she is married or dieth in this case if there were not a relation the deed would be void and therefore in this case it shall relate So if one disseise me of two acres of land in D and I release to him all my right in my lands in D and deliver it to an estranger as an Escrow c. untill a time and before that time he disseise me of another acre there in this case this release shall not by relation extend to this other acre to barre me of that also But as to collaterall acts there shall be no relation at all in this case And therefore if the obligee release before the second delivery the release is void and will not barre the party obligee of the fruit of his obligation If a man that is party or privy in estate or interest or one that doth justifie in the right of one that is such a party or privy shall 9. When and where a deed must be shewed in Court And how long it shall abide there And who may take advantage of it Co. 10. 92. super Lit. 267. 317. 225. 231. 5. 74 Lit. Sect. 375. plead a deed in any Court although he claime but parcell of the originall estate yet in this case he must shew the originall deed to the Court and the reason of this is to the end that the legall part of the deed the triall whereof belongeth to the Judges may approve it selfe i. that it may be seen whether the composition of words be sufficient in Law or not and then that it may appeare whether the estate be with Condition Limitation or with power of revocation c. to the end that if there be any such thing in it and there be no other part of it the other party may take advantage of it and then that it may appeare to be without resure or interlining and the like and also that it may appeare to be well sealed and delivered the triall whereof doth now belong to the Country But strangers to estates that are neither parties nor privies shall not be compelled to shew the deed though they make use of him And when a deed is thus shewed in Court it must remaine in that Court all the Terme wherein it is shewed in the custody of the Custos brevium and at the end of the Terme if the deed be not denied the Law doth adjudge the possession of the deed in him to whom it doth belong But if the deed be denied then it is to be kept there untill it be determined Also when a deed is shewed in Court the adverse party may take any advantage by it that it will afford him as if a feoffement be made by deed poll on condition and the feoffee doth breake the condition and the feoffor doth enter and the feoffee doth sue him and makes his title by that deed the feoffee may take advantage of the Condition Any man that that occasion to use or plead a deed may set forth 10. Where one may say his deed was delivered at another time or in another place the delivery thereof to be at any time after the date of the deed Dier 315. 12 H. 6. 1. Co. 2. 4 5. and in some cases he must doe so if he will have any advantage by it As if he plead a release to an obligation and it beareth date before the obligation in this case he must averre that it was delivered after or it will not availe him But a man may not in pleading set forth the delivery of a deed to be before the date of the deed And yet if it be so that a deed be dated after the time of the delivery of it the deed is good and therefore if he that doth use such a deed doe plead and set it forth as a deed made before the time of the delivery and the party that made it plead non est factum to the deed a Jury upon the triall may finde the truth of Estoppell the case but if hâ— by his pleading set forth the deed to be delivered before the time of the date then the Jury is concluded aswell as the party himselfe for a Jury is estopped to finde any thing contrary to that which is apparently admitted in the record In 12 H. 6. 1. debt brought by an executor the defendant pleaded the release of the Testator which did beare date after the death of the testator but he did averre the delivery of it in the life time of the testator and the Court did not allow of this plea. Sometimes Antiquity added a place where the deeds were made Co. super Lit. 6. as Datum apud B and this was in disadvantage of him to whom the deed was made for if the deed be in generall and without this addition he may alleage the deed to be made where he will An Co. super Lit. 261. obligation made beyond the Seas may be sued here in England in what place the obligee will and if it beare date at the Burdeux in France it may be alleaged to be made in quodam loco vocat Burdeux in France in Islington in the County of Middlesex and there it shall be tried for whether there be such a place in Islington or not it is not traversable in that case Non est factum is an answer to a declaration whereby a man 11. Non est factum Quid. And where this may be pleaded to a deed or not denieth that to be his deed whereupon he is impleaded If any deed or writing be used against a man in any Court and it want writing sealing or delivery or it be not sealed written and delivered as before is set forth the party that is sued upon it or against whom it is pleaded may plead this plea to it So also if a deed by any Alteration of rasure c. become void in this case the party may plead this plea to avoid it So also where a deed doth become void or lose his virtue by the not reading or not true reading of it to an illiterate man or by refusall or disagreement as in the cases before the party may plead this plea to avoid it But in all cases where the deed is voidable and so remaineth at the time of the pleading as if an Infant or man of full age by duresse seale and deliver a deed or if an obligation be well sealed and delivered by two and the deed be joynt and the obligee sue one of them in these and such like cases the party bound by the deed may not plead Non est factum for in the first and such like cases he must avoid it by speciall pleading with conclusion of Judgment si Action c.
be done be a corporall service as to pay money or any such like thing the party that is to doe it must at his perill seek out the person to whom it is to be done if he be infra regnum Angliae but if he be not within the kingdome he is not bound to seek him and yet the condition is not broken And if the thing to be done be either locall i. such a thing as must be done in or at a place certain as the making of a feoffment of land payment of rent or the like in this case the To pay mony thing must be done at that very place and a tender of doing it in that place is a sufficient performance of the condition as for examples If a feoffment be made on condition that the feoffee shall pay to the feoffor twenty pound on Easter day at Dale and the feoffee tender the twenty pound the same day at Sale And albeit the feoffor be at Sale and he tender the twenty pound to his person there the same day yet this is no performance of the condition And if a feoffment be made in mortgage on condition for the payment of money at a day and no place is set for the payment thereof in this case the mortgagor must seek the mortgagee and tender it to his person at his perill and tender of the money upon the land mortgaged is not a sufficient performance of the condition And if a feoffment be made on condition that the feoffee shall infeoffe To infeoffe the feoffor of white acre in Dale in this case the feoffment or the tender of it must be in Dale and cannot be elsewhere and a tender of it there is sufficient to perform the condition So if the condition To acknowledge satisfaction be that the feoffee shall in Easter Terme next acknowledge satisfaction upon a Judgement in the Kings Bench this must be done there and cannot be done elsewhere So if a feoffment in fee bee made of white acre rendring rent to the feoffor and his heirs on condition that if the rent be not paid the feoffment to be void and no place is set for the payment of it in this case the feoffee is not To pay rent bound to tender his rent any where for the saving of the condition but upon the land and a tender there is sufficient And if a man make a feoffment in fee without any reservation of rent precedent in the deed on condition that the feoffee and his heirs shall render a yearly rent of twenty shillings a year to the feoffor and his heirs and if they fail that the feoffor shall reenter in this case also it seems the payment or tender must be upon the land But if the condition be that he shall â—ender twenty shillings a year to a stranger and his heirs this is no rent nor in the nature of a rent and therefore in this case the feoffee must tender it to the person of the stranger where he can find him at the day or else hee doth break the condition and tender upon the ground is not sufficient But in these cases if the nature of the thing to be done be such as will not admit of such a cariage from place to place to seek out the person of the feoffor c. there albeit the thing to be done be corporall or transient and not a locall thing yet that is to doe it shall not be bound to seek out the person of the other as for example If an estate be made on condition that the grantee shall To deliver wood or corn deliver twenty quarters of wheat or twenty load of wood to the grantor at such a time and no place is set for the doing thereof in this case the grantee is not bound to cary the same about to seek the feoffor or grantor as he is bound to cary money but before the day the grantee is to know of the grantor where he will appoint to receive it and there it must be tendred And the like law is for the most part in conditions of obligations It is best therefore in all these cases and herein he that is to be Obligation A Caveat the agent is to take care to have certainty of time and place set down in the condition for the doing of the thing that is to bee done and the more certain it is the better it is for him If a lease be made on condition that the lessee shall pay to the Per Just Bridgeman lessor all such sums of money as the lessor shall lay out in such a 4. In respect of other matters To pay mony businesse in this case the lessor must first tender to the lessee a note of the charges before the lessee is bound to pay and untill this be done the condition cannot bee broken And after a note is given also he shall have some reasonable time to provide the money And if he tender him a note of more then in truth he doth lay out the lessee if he know it may pay so much as is laid out and he may refuse to pay any more If lands be granted upon condition that A shall make an estate To make an estate Co. 5. 22. of lands at the charges of B in this case A must doe the first act viz. notifie to B what assurance he will make before B is bound to tender the charges If a feoffment be made on condition that the feoffee shall give so To deliver houshold stuffe or pay money Pasche 17. Jac. B. R. much houshold stuffe to the feoffor or so much mony for it as it shal be rated at by two indifferent persons to this end to be chosen it seems in this case the election of the two men must be by the feoffee but if the words be by two persons to be indifferently chosen then the election shall be by both parties for in the first case the word Indifferent doth goe to the praising not to the persons If a feoffement be made of a ground on condition that the feoffee To clense ditches 27 H. 8. 1. Plow Colthirsts case 21. shall â—ake the ditchâ—s in this case if the feoffee doe it once it is a sufficient performance of the condition And yet if a man grant a house for life on condition that the lessee shall dwell and be resident in the house during the said terme in this case it is not sufficient To dwell in the house that he dwell in it once during the terme but must doe so all the terme or else the condition is broken If an annuity be granted of tenne markes per Annum to a man on Perk. Sect. 804. condition or till he be promoted to a benefice by the grantor and it is not said of what value the benefice shall be in this case it shall be taken for a benefice of as great value and of as good an
2. Quotuplex And this is either expresse or in deed i. when the covenant is Termes of the law tit Covenant Co. 4. 80. 5. 17. F. N. B. 145. 146. Dier 338. 257. expressed in the deed As when A by deed doth covenant with B to serve him for a year and B doth covenant with A to pay him tenne pound for this service Or it is implied or in law i. when the deed doth not expresse it but the law doth make and supply it As when one doth make a lease for years by the words demise or grant without any expresse covenant for quiet enjoying in this case the law doth intend and make such a covenant on the part of the lessor which is that the lessee shall quietly hold and enjoy the thing demised against all persons at least having title under the lessor and at least during the lessors life and as some thinke during the whole terme And hereupon an action of covenant may be brought against him in the reversion so that if the heire that is in by descent put out the termor of his father the termor may have this action against him A covenant is also either reall i. that whereby a man doth bind himself to passe a reall thing as lands or tenements as a covenant to levy a fine of land in which case the land it self is to be recovered or when it doth run in the realty so with the land that he that hath the one hath or is subject to the other and so a warranty is called a reall covenant Or it is personall i. when it doth runne in the personalty and not with the land but some person in particular shall have benefit by it or be charged with it as when a man doth covenant to doe any personall thing as build or repair a house serve him or the like And these also are some of them said to be inherent i. such as are conversant about the land as that the thing demised shall be quietly enjoyed shall be kept in reparations shall not be aliened or if it be to be sold that the lessor shall have the first refusall to pay rent not to cut downe timber trees or doe wast to fence the copices when they be new cut to make further assurance or the like And some of them are said to be collaterall i. that are conversant about some collateral thing that doth nothing at all or not so immediatly concern the thing granted as to pay a summe of money in grosse to build a house in another mans ground to make a feoffment or lease of other land to give other security to perform the covenants or to pay the rent or that the lessor shall distrain for the rent in some other land then that which is demised or the like these are collaterall covenants There is also a covenant to stand seised of land to uses which is now become a kind of conveyance of land for which read Vses at large The most frequent use of a covenant is to binde a man to doe 3. The use and operation of it Co. 1. 154. Litt. Bro. Sect. 309. 17 H. 8. 16. Plow 308. F. N. B. 145. something in futuro and therefore it is for the most part executory and if the covenantor doe not perform it the covenantee may have thereupon for his relief an action or writ of covenant against the covenantor so often as there is any breach of the covenant And this writ of covenant is therefore defined to bee a A writ or action of covenant Quid. writ lying where a man is bound by a covenant in a deed and hath broken it And in this case commonly the party damnified shall recover damages only for the breach and if hee have a Judgement in an action brought for one breach and after the covenantor doth breake the covenant again in this case hee may bring a new action and so for every breach But a covenant doth somtimes Use also make a transmutation of a property and possession of things as in case of a covenant to stand seised of land to uses for which see Vse And in case where one doth covenant that another shall Lease have a peece of land for five years this is a good lease for five years for which see Lease And in case where one doth covenant with another that if he pay him ten pound such a day he shall have all his cattle in Dale or his lease for years hee hath of the Manor of Contract Dale in this case it seems if he pay the mony at the time hee shall have the property of the goods and of the lease for years It is said therefore that in some cases upon the writ of covenant the party shall recover the land it self out of which he hath been ejected A covenant may be in the affirmative or in the negative And it Plow 330. 27 H. 8. 16. 4. What shall bee said a good covenant in deed upon which an Action of covenant may be had And what not 1. In respect of the manner of making it may be executed i. that a thing is done already or executory i. that a thing shall be done hereafter and these are all good But if it be of a thing present as if I covenant that my horse is yours this is void a F. N. B. 145 G. Co. 3. 63. Ewers case 8 Jac. And these covenants being made by a deed poll are as good and effectuall as when they are made by a deed indented so as the party have the deed to shew for otherwise a common person cannot have an action of covenant for it doth not lie upon a verball agreement neither can it be grounded without a writing except it be by a speciall custome as in London b Litt. Bro. Sect. 450. Co. 2. Lord Cromwels case Dier 57. 150. 21 H. 7. 37. 40 E. 3. 5. And there needs not in this case formall and orderly words as Covenant Promise and the like to make a covenant on which to ground an action of covenant for a covenant may be had by any other words upon any part of an agreement in writing in what words soever it be set down for any thing to be or not to be done the party to or with whom the promise or agreement is made may have this action upon the breach of the agreement And therefore if these words be inserted in a deed amongst other covenants That the lessee shall repair provided always that the lessor shall allow timber Or that the lessor shall skowre ditches provided always that the lessor doe cary away the earth these are good covenants on both sides c Adjudge pasch 14 Jac. B. R. Sir Thomas Bret versus Cumberlands case And if a lease be made of houses by Patent to I S for twenty one years and therein is inserted this clause And that the said I S and his assignes shall repaire the houses when
Sect. 719. be given to one and the heirs males of his body and for want of such issue to the heires females of his body and the donee doth make a feoffment with warrantie and hath issue a sonne and a daughter and dieth this warrantie is lineall to the sonne and if the sonne die without issue male it is a lineall warrantie from the father to the daughter But if the brother in his life time release to the discontinuee c. with warrantie c. and after dieth without issue this is a collaterall warranty to the daughter Litt. Sect. 714. If lands bee given to the husband and wife and the heires of their two bodies engendred and they have issue and the husband discontinue and die and after the wife doth release with warrantie and die this is a lineall warrantie And if lands be given to a Co. super Litt. 375. man and a woman unmaried and the heirs of their two bodies and they intermary and are disseised and the husband doth release with warrantie and dieth and after the wife dieth this is a lineall warrantie to the issue for all the land And if tenant in taile Litt. Sect. 718. have issue three sons and discontinue and the middle brother doth release with warrantie and die without issue and after the father dieth and after the elder brother dieth without issue and after the father dieth and after the elder brother dieth without issue so that the warrantie doth descend to the younger brother this is a â—neall warrantie to him And if a father give land to his eldest son and the heirs males of his body c. the remainder to the second sonne c. if the eldest son alien in fee with warrantie c. and hath issue female and dieth without issue male this is a lineall warrantie to the second sonne And in all these cases of a lineall warrantie if Litt. Sect. 711 712. Doct. St. 152 153. Co. 8. 52. the right of the estate to be barred bee the right of an estate in fee simple it is a barre without any assets for the rule is That as to him that demandeth fee simple by any of his Auncestors he shall bee barred and bound by a lineall warrantie that doth descend upon him unlesse hee bee restrained by some Statute But it doth not binde the right of an estate in fee taile without assets for in that case the rule is That as to him that demandeth fee taile by writ of Formedon in the Descendor he shal not bee barred by a lineall warrantie unlesse he hath assets by descent in fee simple of other land from the same Auncestor that made the warrantie and then it is a barre for so much onely as doth descend to him no more And yet if the issue in taile doe Co. super Litt. 393. alien the assets descended and die in this case the issue of that issue is not barred by this warrantie and assets But if the issue to whom the warrantie doth descend bring his writ of Formedon and is barred by judgement by reason of the warrantie and assets in this case albeit he alien the assets afterwards yet the estate taile is barred for ever If tenant for life do alien in fee with warrantie or be disseised Co. 1. 67. 21 H. 7. 10. Litt. Sect. 725. 9. What shall bee said a collaterall warranty And how such a warranty shall bar release to the disseisor with warrantie and die and the warrantie descend on him in reversion or remainder this is a collaterall warrantie So if the lessee for life be disseised and a collaterall Auncestor of him in reversion release with warrantie and die and the warrantie descend on him in reversion this is a collaterall warrantie for that is collaterall which is collaterall to the title of the Litt. Sect. 707. Doct. St. 152. land And if a man seised of lands in fee have issue two sonnes and the father dieth and the younger sonne doth enter and doth alien the land with warrantie and die without issue this is now a collaterall warrantie that is descended on the elder brother And if a sonne bee disseised of his own land and bring an 21 H. 7. 10. Assise and after the father doth release to the disseâ—sor with warranty and dieth this warrantie that doth descend to the sonne is a collaterall warrantie And if a father disseise his son of the land Litt. Sect. 704. he hath of his own purchase without any intent to alien afterwards and to barre his sonne and after he doth make a feoffment wich warrantie and die before the entrie of his sonne so that the warrantie doth descend this is a collaterall warrantie If there bee Litt. Sect. 707. father and two sonnes and the father is disseised and the younger sonne doth release wiâ—h warrantie to the disseisor and die without issue and then the father dieth in this case the warrantie now descended is a collaterall warrantie If a lease be made Co. super Litt. 388. for life to the father the remainder to his next heir and the father is disseised and doth release with warrantie and dieth this is a collaterall warrantie to the heire And if the husband discontinue the right of his wife and an Auncestor collaterall to the wife to whom she is heir doth release with warranty and die and after the husband dieth this is a collaterall warranty and a bar to her And in every case where a man doth demand an estate taile by a Co. 10. 96. Litt. Sect. 709. Plow 234. Kelw. 78. writ of Formedon if any Auncestor of the issue in tail which hath or hath not possession maketh a warranty and the issue that is demandant cannot by any possibility that may be done convey to him a title by force of the gift from and by him that made the warranty this is a collaterall warranty as if tenant in taile discontinue the taile and die having issue and the uncle of the issue doth release with warranty to the discontinuee and die without issue so that the warranty doth descend on the issue in taile this is a collaterall warranty So if such a discontinuee make a feoffment in fee or be disseised and the uncle release with warranty to the disseisor or feoffee and die without issue and the warranty doth descend on the issue this is a collaterall warranty If a tenant in taile have Litt. Sect. 708. three sons and discontinue the tail in fee and the middle brother doth release to the discontinuee with warranty and after the tenant in taile dieth this is a collaterall warranty to the elder brother If one have issue three sonnes and giveth land to the eldest Litt. Sect. 716. and the heirs of his body and for want of such issue to the middle and the heirs of his body the remainder to the third and the heires of his body and the eldest doth discontinue the
Co. super Lit. 391. attained of treason or felony hereby the warranty is gone and albeit he doe afterwards obtaine his Pardon yet the warranty is not revived If a feoffment with warranty be made to two or more and they Co. 6. 12. being Jointenants doe after by deed make Partition by this the warranty is determined So if two Jointenants be and one of them disseise the other and he that is disseised doth recover in an assise and hath Judgement to hold in severally hereby the warranty is determined * Adjudge Hil. 22 Jac. B. R. Eustace Sholes case So if A and B be Jointenants of white acre for life and A by fine doth grant to B totum quicquid habet in tenemeutis hereby the warranty is gone But if a Partition be made by Judgement upon a writ by force of the Statute of 13 H. 8. this doth not defeat the warranty fallen to them but it shall be divided between them and they shall all of them take advantage of it If one enfeoffe three with warranty to them and their heires Co. super Lit. 385. and one of them release to one of the other two hereby the warranty is gone for that part But if one of them release to the other two in this case the warranty is not gone but doth continue and they may vouch upon it If one enfeoffe two men and their heires and one of them doth Co. super Lit. 385. make a feoffment in fee hereby the warranty is not determined but the other may take advantage of it notwithstanding If the party that hath the warranty or the estate to which the Co. super Lit. 393. 392. Lit. Sect. 748. Release warranty is annexed release to him that is bound to warrant all warranties or all covenants reall or all demands by either of these releases the warranty is gone So also if by a defeasance made Deseasance between the parties it be agreed the warranty shall be void by this defeasance the warranty may be avoided also Or if it be so agreed that the warrantee or his heires c. shall not vouch or have a Warrantia cartae by this the warranty is avoided in part If tenant in taile doth enfeoffe his Uncle which doth enfeoffe another Co. super Lit. 391. in â—ee with warranty if in this case the feoffee release the warranty to his Uncle hereby the warranty is extinct But if a gift in taile be made with warranty in this case a release made by the tenant in taile of this warranty will not extinguish it If the parties between whom the warranty is intermary hereby Co. super Lit. 390. the warranty is suspended during the coverture in some cases If tenant in taile doth make a feoffment in fee with warranty Co. super Lit. 330. and disseiseth the discontinuee and dieth seised this doth suspend the warranty If two make a feoffment in fee and warrant the land to the Co. super Lit. 393. feoffee and his heires and the feoffee doth release the warranty to one of the feoffors this doth not determine the warranty of the other as to the moity So if one doth infeoffe two with warranty and the one of them doth release the warranty this doth not extinguish the warranty for the other moity but it doth continue still A warranty also may lose his force by taking benefit or making use thereof for after a man hath once taken advantage thereof in some cases he can make no further use of it of which read Co. super Lit. 393. And now having done with Deeds in generall and some of the parts thereof in speciall we are in order to come to some speciall kinds of deeds wherein we will first begin with a deed of Feoffment CHAP. IX Of a Feoffment FEoffamentum i. Donatio feodi strictly and properly is the gift 1. Feoffment Quid. New termes of the law Co. super Lit. 9. Lit. Sect. 57. or grant of any honors castles manors messuages lands houses or other corporall immovable things of like nature which be hereditable to another in fee simple i. to him and his heirs for ever by the delivery of seisin and possession of the things given And from hence comes the word Infeoffe for by this word and the Infeoffe words Give and Grant as the most apt words for that purpose is this kind of conveyance most commonly made Hence also it is that he that makes this feoffment is called the feoffor and he to whom it is made the feoffee Also it is sometimes but improperly Feoffor Feoffee called a feoffment when an estate of freehold only doth passe This kind of conveyance albeit it may be made in most cases by 2. Quotuplex See West Sym. 1. part Sect. 235. Co. super Lit. 6. word without any writing â—et it is most commonly done by writing and this writing is then called a Deed or Charter of feoffment but hence is the division of a feoffment by word or a feoffment by writing The ancient formes and examples of these deeds are very briefe and and yet they had these parts contained in them 1. The Premisses 2. The Habendum 3. The Tenendum 4. The Reddendum 5. The Clause of warranty 6 The In cujus rei testimonium 7. The Date 8. The clause of Hiis testibus Haec fuit candida illius aetatis â—ides simplicitas quae paâ—câ—lis lineis omnia fidei firmament a posueruut * Co. super Lit. 49. 9. Co. 1. 111 112. Plow 554. 9 H. 7. 24. 39 H. 6. 43. Co super Lit. 237. Perk. Sâ—ct 210. 24 E. 3. 70. Co. 1. 121. Co. 6. 70. Bro. scire facias 88. Plow 423 424. And this manner of conveyance as it is the most ancient kind 3. The nature and operation of it of conveyance so is it the best and most excellent of all others and in some respects doth excell the conveyance by â—ine or recovery for it is of that nature and efficacy by reason also of the livery of Seisin evermore inseparably incident to it that it cleereth all disseisins abatements intrusions and other wrongfull and defeasible titles and reduceth the estate cleerly to the feoffee when the entry of the feoffor is lawfull which neither fine recovery nor bargaine and sale by deed indented and inrolled will doe when the feoffor is out of possession And it passeth the present estate of the feoffor and not only so but barreth and excludeth him of all present and future right and possibility of right to the thing which is so conveyed insomuch that if one have divers estates all of them passe by his feoffment and if he have any interest rent common or the like into or out of the land it is extinguished and gone by the feoffment And further it barreth the feoffor of all collaterall benefits touching the land as condition power of revocation writs of error attaint and the like
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
That the debt recovered against the defendant shall be levied of my goods and chattels c. And these also are much of the nature of the former kinde of Recognisances And all Prerogative Obligations made to the King are of the nature and have the force of a Recognisance Statutes and Recognisances are sometimes single without any Defeasance and sometimes they are double i. e. With a Defeasance or Condition upon the performance whereof the same are to be avoided The Debtor or he that doth enter into the Statute or Recognisance Conusor Co. â—â—e is called the Recognisor or Conusor and the Debree or hee to whom it is made is called the Recognisee or Conusee To make a good Statute or Obligation of Record the 3. What shall be said a good Statute or Recognisance and what not First in respect of the persons before whom it is acknowledged forme prescribed must bee pursued 1. In respect of the persons Dyer 35. Litt. Broo. Sect. 484 511 F. N. B. 267 a. before whom And therefore the Statute Merchant or Staple or the Recognisance founded upon the Statute of 23 H. 8. may not bee acknowledged before any others besides the persons appointed by the Statutes Neither may any other Recognisance bee acknowledged before any but such as either have power ex Officio and by their Offices to take them or have speciall Commission so to doe And therefore a Recognisance Dyer 220 taken by a Constable is void If a Recognisance bee made to the Lord Keeper and two others and it bee acknowledged before himselfe this is void as to him 2. In respect Secondly in respect of the manner of making it of the manner of making and acknowledging of it And therefore if the substantiall forme appointed by the Statutes be not observed it will be void If therefore a Statute Merchant be not Hollingworth versus Ascughe Pasche 35 El. Co. B. Adiudge sealed with the Seale of the Dâ—btor and there bee not a Seale of two peeces annexed to it this is no good Statute neither can it take effect as a Statute howbeit in this case if it be delivered by the party it may take effect as an Obligation But if Obligation the variance from the Statutes bee only in some circumstance this will not hurt a Statute or a Recognisance And therefore it is held That albeit there bee no time set for the payment of the money in the Statute yet the Statute is good for then it is due presently And albeit the Statute be written Perk. 3. Iustices Co. B. Trin. 22 Iac. with anothers hand and not with the hand of the Clerk of the Statutes or the like yet is the Statute good enough And if a Statute Staple bee not sealed with the Seale of the party that doth acknowledge it yet it seemes it is good enough for the Statute doth not require it but a Recognisance within the Statute of 23 H. 8. cannot bee good except the Seale of the party bee to it for so are the words of the Statute If a Recognisance or a Statute bee to pay money at severall Coo. 8. 153. dayes it is good enough and if the Conusor faile one day Execution may bee sued of the whole Statute Every Statute Staple or Merchant not brought to the Clerk of the Recognisances within foure Moneths next after Stat. 27 Eliz. cap. 4. the acknowledging to enter a true Copy thereof shall bee void against all persons their Heires Successors Executors Administrators and Assignes onely which for good consideration shall after the acknowledging of the same Statute purchase the Land or any part lyable thereunto or any Rent Lease or profit out of it The proceedings upon a Statute or Recognisance to have Fitz. Accompt 97. Execution in toto Broo. Statute in toto Stat. Actâ—â— Bartel de Mercatoribuâ—â—â—7 Ed. 3. c. 9. F. N. Br. 130 131 132 Dyer 1â—0 15 H. 7. 15. Coo. 4. 69. 7 H. 7. 12. Plow 61 62 82. Coo. super Lit. 290. Stat. 2 H. 8. c. 6. 5 H. 4. c. 12. 2 R. 3. 7. 14 Ed. 3. â— Lit. Broo. Sect. 194. 123. 226. Dyer 299. Coo. 5. 87. 4 82 59 66 Stat. 1 â—il 6. c. 10. â—iâ—ch 116. the fruit and effect thereof is not like to the proceedings in other 4. All the proceedings upon a Statute or Recognisance and the manner and order of Execution thereupon cases of Suits upon Obligations and the like to reduce them to judgement but as they are in their own nature much like to the nature of a judgement so is the proceeding and execution thereupon much like to the proceeding and execution upon a Iudgement And therefore the Conusee may if hee please bring an Action of debt upon a Statute and wave all other proceeding or otherwise if he like not this course he or if he be dead his Executor or Administrator and if his Executor be dead the Executor of his Executor may assoone as the same is forfeit have present Execution of it after this manner Hee must bring his Statute to the Mayor and Clerk or other Officer before whom it was acknowledged and there if they finde the Record of it and the day to be past for the payment of the money they are to apprehend and imprison the body of the Conusor if he be a lay-person and can be found within their jurisdiction and if he cannot be found there they are to certifie the Record into the Chancery which also if they refuse to doe they may be compelled unto by a Certiorare Certiorare And if that Certificate be faulty or execution be not done upon it by reason of the death of the Conusee or otherwise the Conusee or his Executor or Administrator may have another Certificate And thereupon in case of the Statute Merchant he shall have a Writ of Capias out of the Chancery directed to the Sheriffe of the County where the Conusor lives to apprehend and imprison him if he be not a Clergy man and this is to be returned in the Common-Pleas or Kings Bench. And when the Conusor is taken he shall have time for a quarter of a year to make his agreement with the Conusee and to sell his lands or goods to satisfie the Conusee And for that purpose he may sell his lands or goods albeit he be in prison and his faile is good and lawfull And if in that time he doe not satisfie the Conusee or if upon the Capias the Sheriffe returne Capias a non est inventus then by another Writ or by divers Writs if the lands or goods lie in divers Counties called an Extendi Facias And in the case of a Statute Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his lands and goods returnable in Chancery And this Extendi Facias Quid. Writ is a Commission directed to the Sheriff
19. Iac. B. R. after enter into a Statute to I S and then enter into another Statute to I D and after hee doth grant his estate to I S by this the Execution of the Statute made to I S is suspended and therefore during the suspention it seemes I D albeit he be after in time may sue and have he Rent in execution If the Conusor after he hath entred into a Statute or Recognisance 8. Where the Conusor or his heir or an alience or purchaser shall have contribution upon a Statute or Recognisance or not doth convey away his land to divers persons and then the Conusee Plow 72. Coo. 3. 12 6 13. sue Execution of the Statute upon the lands of one or some of them and not of all in this case he or they whose lands is or are taken in Execution may by an Audita Querela or Scire Facias have contribution from the rest wherein these differences must bee observed That one Purchasor shall have Contribution from another And therefore if the Conusor sell some lands to I S and other lands to I D and the Conusee sue Execution only of the lands of I S I S shall have contribution against I D. And the Feoffee of the Purchasor the Feoffee of the Heir of the Conusor the Feoffee of the Feoffee and another Feoffee shall have contribution of the Heir of the Conusor But the Conusor himselfe shall not have contribution from a Purchasor and therefore if hee sell part of his lands and keep part in his hands and the Conusee sue Execution only of the lands in the hands of the Conusor or his Hâ—ires in this case neither he nor his Heirs shall have any contribution from the Purchasors and one Heire shall have contribution from another And therefore if one be seised of two Acres the one in Burâ—ow English the other of other Land and he enter into a Statute and die and he hath but two daughâ—â—s and the Execution is sued upon the land of one them she shall have contribution from the other So where some land doth discend to the Hâ—ire of the part of the Father and some to the Heire of the part of the Mother If one be seised of lands in Fee in the County of A and B and enter into a Statute or Recognisance and the Conusor die and then the Conusee die also and his Executor doth â—uâ— Execution of the lands in B only and hath Execution and after the Heir doth sell these lands in this case the Vendee shall have no contribution So also it seems the Law is if the Hâ—iâ—e sell the land to divers and one of the Purchasors appear to the Seire Facias and the Iudgement is given against him and he afterwards sell the land his Vendee shall have no contribution And in all these cases where it is said the one Purchasor shall have contribut on it is not intended that the rest shall give or allow him any thing by way of contribution but that the party whose lands are extended may by Audita Querela or Seire Facias as the case requireth defeat the Execution and thereby shall be restored to all the meane profits and force the Conusee to sue his Execution upon all the land that the land of every one of the Terre-tenants may be equally extended And so wee fall from an Obligation by matter of Record to an Obligation by matter of Fait which is no Record CAP. XXI Of an Obligation AN Obligation is a Deed in writing whereby one man doth bind 1. Obligation Quid. Obligor Obligee Finches ley 49. himselfe to another to pay a summe of money or doe some other thing And hee that makes this Deed is called the Obligor and he to whom it is made is called the Obligee And it is sometimes Simple or Single which is when it is to pay 2. Quotuplex Coo. super Litt. 172. a summe of money or doe some other thing and when it is without any Defesance or Condition in or annexed to it which also is sometimes with a penalty called a penall Bill and sometimes without a penalty And this is that which is most properly called an Obligation and sometimes also it is called a single Bill or single Bond. And sometimes it is double or Conditionall which is when it is attended upon and accompanied with a Condition And then it is said to be a Bond containing a penalty with condition to pay money or doe or suffer some act or thing c. And this Condition is some times called a Defeasance and then especially when it is as sometimes it is in another Deed or Instrument for most commonly it is inserted into the same Deed wherein the Obligation being the other part of it is contained And then also it is either subscribed under the Obligation or included within the body of it or indorsed upon the back of it And quacunque vià if the condition be performed the penalty is saved if not the penalty is forfeit a a Broo. Obligat 67. â—0 An Obligation may be made upon parchment or paper and in loose 3. What shall be said a good Obligation in his originall creation or not parchment or paper b Trin. 49. Eliz. B. R. or in a peece of paper or parchment sowed in a book and either way it is good But if it be made on a Tally peece of wood or any other thing but paper or parchment albeit it be sealed and delivered yet it is voyd c Coo. super Lit. 229. Fitz Obligat 9. And it may be made in the first or in the third person notwithstanding the Statute of 38. Ed. 3. c. 4. which First for the manner and form of it and what words are sufficient to make an Obligation doth intend only Obligations made beyond the Sea And therefore an Obligation so made as Memorandum quod A de B debet C de D 10l In ou us c. is good Albeit the best manner and form of an Obligation is that which is Dyer 21. 22. 23. Coo. 9. 53. 37 H. 6. 9. 22 Ed. 4. 22. â—elw 34. a â— Ed. 4. 39. â—3 H. 7. 6. most usuall as Noveritis me A de B teneri firmiter obligari C de D in 20l. legalis c. Solvend eidem C autsuo cert Atturnat executoribus aut administratoribus suis Ad quam quidem solutionem bene fideliter faciendum obligo me haeredes executores adminstratores meoâ— firmiter perprasentes c. yet any words in a writing sealed and deliverd whereby a man doth prove and declare himselfe to have another mans money or to be indebted to him will make a good Obligation And therefore if a man by Deed say but this Memorandum that I A of B doe owe to C of D 20l. to be paid at Easter next Or memorandum that I A of B have had of C of D 20l. of which there is 10l
Execution Condemnation Captas utlagatum Excommunication Suretie of the Peace or some other speciall case being sent for by a Iustice for Felony or the like may not be bailed and others that are arrested on a Capias for Debt or an Indictment or otherwise by Writ Bill or Warrant that are mainpemable must be bailed For the better understanding of which Statute these things must be observed That such Obligations as differ and vary from the some of this Statute in words and circumstances only are good notwithstanding this Statute a a Villars case M. 9. Iac. B. R. And therefore if a Prisoner make an Obligation with a condition to appear and answer in a plea of debt and say no more nor do set down the cause of the debt this is a good Obligation And if the Sheriffe take an Obligation with one surtie only or with two Coo. 10. 101 sureties that are insufficient or with two sureties of another County this is a good Obligation So if the debt for which the party is arrested be 300l and the Sheriffe take an Obligation of 100l for his appearance this is a good Obligation for in these cases it is left to his discretion and it doth concern him only So if the Villars case condition of the Obligation be for appearance Mense pasche omitting proximè futurum yet is is a good Obligation So if the Dyer 364. party be arrested by an Attachment out of the Starre-Chamber upon a contempt and the condition of the Obligation is that if the Obligee shall appeare and then and there shall answer a contempt by him committed against the King and his councell this is a good Obligation And if the party that doth make the Obligation be not in the Sheriffes custody albeit the Obligation be made in any other manner essentially differing from the forme prescribed in the Statute if it be not against the common Law it is a good Obligation And therefore if when a Capias utlagatum be delivered to the Sheriffe against a man the Sheriffe take Bond of him for his fees and his travaile this Bond if it be not within this Statute Antleys case Hill 7. Iac. Co. B. yet it is against the common Law and therefore voyd because it is by colour of Extortion But where the Obligation whether it be single or double made by a prisoner doth essentially differ by addition alteration or diminution from the form prescribed in the Statute there the Condition and Obligation both are voyd And therefore if such a Prisoner make an Obligation to any other besides Coo. 10 103 the Sheriffe albeit he to whom it be made be called Sheriffe or if he make an Obligation to the Sheriffe himself and not by the name of his office or if he make an Obligation to him by the name of his office and doth not rightly name him * Nowels case Trin. 21. Iac. Cuâ—â— as if he make it to I S vicecomiti in Comitatu praedicto whereas it should be de Comitatupraedicto all these Obligations are voyd by this Statute And if the Sheriffe take an Obligation of a prisoner for his appearance in case where he is not bailable by the Statute and so let him goe free or iâ— he take an obligation of a prisoner that is bailable for his apâ—earance and doth insert other things into the condition as to pay money for meat drink or fees or the like or if he deliver a man in execution and take bond of him to save him harmelesse or to be a true prisoner all these and such like obligations as these are voyd by this Statute If a man be a prisoner in Ludgate upon a Capias utlagatum and the Gaoler take an obligation of him with two Dyer 118. 119. sureties with condition to save him harmelesse and to discharge his fees and to yeild his body at all times upon Summons c. this is a voyd obligation aswell against the sureties as against the principall If the under Marshall of the Kings Bench take an obligation of one in execution and a stranger with condition to save him harmlesse of allescapes and so suffer the prisoner to goe at large this is a Dyer 324. voyd obligation If the Sacriffe of Bedford having a prisoner by force of an execution let him goe at large and take an obligation of Plow 61. 62. him with condition that he shall keep the Sheriffe without damage against the King and the Plantiffe and be at all times at the commandement of the Sheriffe as a true Prisoner and appear before the Iustices of the King at Westminster c. this is a voyd obligation If a man be a prisoner to the Sheriffe for suspition of Felony and â—it Oblig 1. after a writ comes to him to have all his prisoners at a certain day before the Iustices of Goale delivery of the same County and thereupon the Prisoner doth make a single obligation to the Sheriffe to appear before the Iustices the day of the writ this is a voyd obligation because it is single and not with condition And if the Sheriffe baâ—le not one bailable by a single obligation it seemes this is a voyd obligation A single obligation is alwayes taken most in advantage of the ob 6 How a single Obligation shall be taken ligee and against the obligor but it is otherwise of the condition of an obligation for this is alwayes taken most in advantage of the obligor and against the obligee 10. H. 7. 1. 16. If two three or more bind themselvs in an obligation thus Obligamus Ioint and severall nos and say no more the obligation is and shall be taken to be Dyer 19. 310 Coo. 5. 119. 9 53. old N. B. 62. Broo. Iointemancy 4. 16. Dec. 69. joint only and not severall but if it be thus Obligamus nos utrumque nostrum or obligamus nos unumquemque nostrum or obligamus nos quemlibet nostrum or obligamus nos alterum nostrum in all these cases the obligation is both joint and severall so as in these cases the obligee may sue all the obligors together or all of them apart at his pleasure but it seemes he may not sue some of them and spare the rest but he must sue them altogether or all apart by severall Precipes and in this case he may have severall judgements and severall executions against the obligors and take all their bodies in execution but he shall have satisfaction but once or from one of them only for after he hath been satisfied by one the rest shall be discharged But in the first case where the obligation is joynt and not several the obligee must sue all the obligors together for he cannot sue one alone with effect without the rest unlesse it be in some speciall cases as where one of the obligors alone doth seale the Deed or where all of them do seale but one of them is an
Infant a woman covert a monk or the like or where one of them is dead for in these cases one or some of them may be charged without the rest But otherwise the Plantiffe cannot proceed in his suit against one or some of them without the rest except the defendant give him advantage for howsoever the Suit be well begun for when one or some of them alone is or are sued * Hill 39. Eli. B. R. adiudged it shall not be intended that the rest are living untill it be shewed by the other party yet the defendant is not bound to answer unlesse the rest be used also and therefore in this case he or they that is or are sued alone are thus to take advantage of it Viz. to shew the matter to the Court and to plead in abatement of the writ for if hee appear and shew it not but plead non est factum or the like to the obligation the Iury must find against him and he will be charged with the whole debt And so also if one appear and the other make default and is outlawed it seemes he that doth appear must answer all Executors and Administrators shall be bound by the obligation of Dyer 14. 271 Executors the obligor albeit they bee not named but the heir of the obligor shall not be bound by the obligation unlesse he be named in the obligation Heire viz. obligo me haredes c. If an obligation be made to one and his heires or to one and his successors the Executors and Administrators not the heire or successor See before shall take advantage of it If one binde himself in an obligation of 200l to A and B. Dyer 350. solvend 100l to A and 100 to B. and A die it seemes the executors of A shall not have 100l but that B shall have the whole 200l sed quaere If one binde himself by obligation to I S to pay him an 100l when K doth come to his house and at Michaelmas then next following For the time of paiment Broo. Obliâ— 5â— 100l more Michaelmas then next following shall be taken for next following the making of the obligation and not next following the comming of K to his house If one binde himself to pay money upon a single obligation and Dyer 128. pec 3. Iustices Trin. 22. Iac. Co. B. doth not say when in this case it must be paid presently If one bind himself by obligation to pay mony at Michaelmâ—s and doth not say which Michaelmas this shall be taken for Michaelmas next after the date of the obligation And so also it shall be taken in Curiain the Marches of Waleâ— Trin. 8. Car. the condition of an obligation If one bind himself to pay 20l. in the yeare of our Lord which shall be 1599. in and upon the thirteenth of October next ensuing 7 How an Obligation with a Condition or the Condition of an Obligation shall bee taken And how it must and ought to be performed Aâ—â—ee M. 9. 1a B. R. the date of the obligation this shall be taken to be due the 13 Hill 37. Eli. B. R. Shaâ— pluâ— versâ—â— Hauckington of October 1599 and not next after the obligation See more infra The condition of an obligation when it is doubtfull is alwaies taken most favourably for the obligor in whose advantage it is made and most against the obligee yet so as an equall and reasonable construction be made according to the minds of the parties albeit the Dyer 14. 52. words sound to a contrary understanding If something be by a condition to be done and it is set down indefinitly and not set down who shall do it if the obligee hath more skill First in respect of the persons that are to doe the thing Perk. Sect. 785. to do the thing then the obligor it shall be done by him otherwise it shall be done by the obligor as if a Tailor be bound to me in an obligation with condition that if I bring him three yards of cloth which shall be measured and shaped and if he make me a Cloak of it c. and it is not said by whom it shall be shaped this must bee done by the Tailor If the condition of an obligation be to pay money or do any Secondly in respect of the time when the thing is to be done Coo. super Litt. 208. 2. 79. 80. 9. Ed. 4. 22. 9. H. 7. 16. other transitory act to the obligee himself and no time is set for the doing thereof but a place only this regularly must be done in convenient time and that without request So also in case where the thing to be done is in its nature locall but yet such a thing as may be done in the absence of the obligee and without his conâ—urrence as to acknowledge satisfaction on a Iudgement make a lease for yeares or the like it must be done in convenient time and that without request So also in case where the thing to be done is locall and the concurrence of both parties necessary thereunto yet when it is to be done to a stranger and not to the obligee as if the condition be that the obligor shall make a Feoffement to I S it must be done in convenient time without request But where the thing to be done is locall and the concurrence of both parties necessary thereunto and the act is to be done by the obligor himself or by a stranger to the obligee himself as where the condition is that the obligor or a stranger shall infeoffe the obligee in this case the obligor or the stranger shall have time to do it during his life unlesse the obligee do hasten it by request and if he request it sooner then it must be done in convenient time after request made And yet if the thing to be done be to be done wholy by the obligor or a stranger and doth nothing concern the obligee as where the condition is that the obligor shall goe to Rome or that I S shall preach at Pauls crosse or the like in the first case it may be done at any time during the life of the obligor and in the last case it may bee done at any time during the life of I S and request in this case shall not hasten it If an obligation be with condition to grant a rent or an annuity Coo. 2. 80. super Lit. â—08 to the obligee during his life to be paid at Easter and no time is set for the doing of it this rent must be granted before Easter next after the obligation or else the obligation will be forfeit And if the condition be to grant an Advowson and no time is set for the doing thereof it must be done before the Church become voyd or otherwise the obligation shall be forfeit If the condition be to do a thing upon a day in the yeare and there
it it shall be deemed in earnest but if it bee by way of discourse only or of somewhat â—e would do hereafter or the like it shall be taken for nothing The third thing required in a good Testament is that the minde of the Testator in the making of it bee free and not moved by Thirdly in respect of the occasion or motive of it Swinb 283. 284. 285. 286. feare fraud or flattery for when a Testator is moved to make his Testament by feare or circuâ—vented by fraud or overcome by some immoderate flattery the samâ— is void or at least voidable by exception And therefore if a man by occasion of some present fear or violence or threatning of future evils do at the same time or afterwards by the same motive make a Testament this Testament is void not only as to him that put him so in feare but as to all others albeit the testator confirm it with an arch But if the cause of feare be some vaine matter or being weighty is removed and the testator doth afterwards when the â—eaâ—e is past confirm the Testament in this case perhaps the Testament may beâ— good And if a man by occasion of some fraud or deceit bee moved to make a Testament if the deceit be such as may move a prudent man or woman and if it be evill also the Testament is void or voidable at the least but if the deceit be light and small or if it be to a good end as where a man is about to give all his estate to some lewd person from his wife and children and they perswade the Testator that the lewd fellow is dead or the like and thereby procure him to give his estate to them this is a good Testament And one may by honest intercessions and modest perswasions procure another to make himselfe or a stranger Executor to him or the like and this will not hurt the Testament Also a man may use fair and flattering speeches to move the Testator to make his Testament and to give his estate unto himself or some friend of his exâ—â—pt it be in case where the â—latterer doth first beate or â—hreaten him or put him in fear or to his â—lattery joineth fraud and deceit or the Testator is a person of weak judgement or under the danger or government of the â—latterer as when the Physician shall perswade his Patient under his hands to make his Testament and give his estate to himself or the wife attending on her husband in his sicknesse shall neglect him and continually provoke him to give her all or where the perswader is importunate and wil have no denial or when there is another Testament made before for in all these cases the Testament wil be in danger to be avoided And if I be much priviâ— to another mans minde and he tell me often in his health how hee doth intend to settle his estate and he being sick I doe of mine own head draw a Will according to his minde before declared to me and bring it to him and ask him whether this shall be his Will or no and he doth consider of it and then deliver it back to me and say yea this is a good Testament But if otherwise some friends of a sick man of their own heads shall make a Will and bring it to a man in extremity of sicknesse and read it to him and ask him whether this shall be his Will and he say yea yea Or if a man be in great extremity and his friends presse him much and so wrest words from him especially if it be in advantage of them or some friends of theirs in these cases the Testaments are very suspiâ—ious But as touching these two last things Quâ—re how they shall avail in the Wills of land which are not regulated so much by the Civill Law The fourth thing required in the making of a good Testament is Swinb 112. Broo. Test 20. Fourthly in respect of the manner and form of the disposition that that form and order that the Law prescribeth be observed in the the disposition And therefore 1. that there be an Executor named in all Testaments of goods and chattels and that that Executor named be capable of the Executorship for this is said to be the head and foundation of the Testament for if there be never so many First naming of an Execuâ—or Legacies given and no Executor made this disposition is but a a Codicill and cannot properly bee called a Testament for in this case the party dead is said to die intestate and the Administration of his goods must be granted to the Widdow or next of kinne whereas on the other side if an Executor be appointed albeit there be no Legacy given yet this disposition is and is properly said to be a Testament 2. If the Testament be of lands or Tenements it must be Secondly if it be of lands it must be in writing in writing and it must be committed to writing at the time of the Stat. 32. 34 〈◊〉 8. Perk. Sect. 476 47â— Dyer 72. Plow 345. Coo. 4. 60. Dyer 53. making thereof And it is not sufficient that it bee put in writing after the death of the Testator being first made by word of mouth only for then it is but Nuncupative still But if the Testament bee first made by word of mouth and be afterwards written and then brought to the Testator and he approve it for his Testament Or if the Testator when he doth declare his minde doth appoint that the same shall be written and thereupon the same is written accordingly in the life time of the Testator these are good Testaments of land and as good as if they be written at the first If therefore one be very sick and another come to him and ask him whether his wife shall have his land and he say yea and a Clerk being present doth put this in writing without any precedent commandement or subsequent allowance of the sick man this is no good Testament of the land So if one declare his whole minde before Witnesses and send for a Notary to write it and die before he come and he write it after his death this is no good Testament for his lands but a good Nuncupative Will for his goods and chattels except he declare his minde to be that it shall not be his Will unlesse it bee put in writing for then perhaps it may not be a good Will for his goods and chattels So if â—he that doth write the Will cannot hear Adâ—udged Trin. 10. 〈◊〉 the party speak and another that stands by the sick man doth tell him what he doth say in this case if there be none others prâ—sent to prove that he reported the very words of the sick man this will be no good Testament of the Land But if a Notary take direction from the sick man for his Will and after goe away and write it and then doth