thereof another reason is given where a man was bound that hee would not sue upon such a Bond and he dyed and his Executor sued this was held to be no forfeiture of the Bond. So where one was bound to pay ten pound within a moneth after request made to him and hee died before request it sufficed not to make it to the Executor as Manwood said It was likewise held that the warrant of Atturney put in for the Plaintiffe in debt sufficeth not for his Executor to bring a Scirâ— Fac. upon the judgement And if Executors sue execution upon a Statute in the name of a Conusee as if hee were alive this is voyd and they may sue out new extent and this they may doe without any Scire facias as well as the Conusee might if he had beene alive But by Hussey Justice if the Conusor in a Statute staple be returned dead by the Sheriffe upon the extent a Scire fac must be sued out before extent proceed and upon a judgement had if the recoverer dye before execution his Executor cannot as himselfe might sue out execution without a Sci. fac as is there said Yet if after a Capias ad sat awarded the Plaintiffe dye before it be executed the Sheriffe may proceed to the taking of the party and is not subject to any action of false imprisonment nay if he suffer him to escape he is chargeable as temp Elizabeth it was resolved upon the motion of Anderson but withall it was held that reliefe might be by Audita querela Like resolution was in the Kings Bench After some doubt by Wray and the other Judges where the Defendant dyed after a Fieri fac awarded and before it was executed that the Sheriffe might proceed upon the Goods in the hands of the Executors But if the Defendant in an action of debt upon a bond plead a tender at the time and place of payment and tenders the money in Court where it rests and then he dyes now shall not the Plaintiffe have this money because the property thereof is changed and become the Executors as was held in the Common pleas but he is put to a new suite against the Executor Yet where judgement is once given in a Writ of Partition for a termer or in a Writ of Account if the Plaintiffe dye before the second judgement needfull in both cases the Executor is not put to a new suite but may proceed by Sci. Fac. upon the former judgement as the Lord Anderson held upon the motion of Fenner Serjeant Though before we found the Executor not in points penall all one with the Testator yet in points beneficiall the Testator includes him in some cases as where an Abbot granted to his Lessee to take Estovers in another ground it was held that his Executor though not named should enjoy this during the terme as well as himselfe should have done And whereas the Stat. 23. of H. the 8. gives costs to a Defendant against a Plaintiffe suing for a wrong or breach of promise or the like done to the Plaintiffe against whom it passeth by verdict or nonsuit it hath beene resolved that an Executor suing upon such wrong oâ— breach of contract to his Testator made should not pay costs because he is another person then the Testator and so is it usuall in experience But if in such suite the Atturney of the Executor mis-behave himselfe towards him and for this the Executor sueth him here if it passe against him in manneÌ„r as aforesaid he shall pay costs because this was a suite for a wrong done to himselfe If A. recover a debt as Executor of I. S. and makes B. his Executor and dye before execution sued B. is not put to new suite but may have execution upon that Judgement But if A. or B. dyed Intestate now could none as Administrator to either of them nor as Administrator of I. S. have execution of this Judgment for the former hath no interest in any thing partaining to I. S. and the latter commeth to title above the judgement viz. as immediate administrator to I. S. who is now dead intestate and derives no title from the Executor who recovered If a Conusee have a Certificate into theÌ„ Chancery upon a Statute and then dyes before extent taken out his Executor is put to a new Certificate and for obtaining of it must make Affidavit that no extent hath yet been taken out If an Alien joyne with his Wife who is Executor in a suite for debt and it commeth to Issue he shall not have tryall per medietatem alienig or Linguae as should be if he otherwise were party to a triall as was held in the case of Doctor Iulio Yet if a noble man sue as Executor to another not noble he shall for his nonsuite be amerced five pound as if he sued in his owne right as was conceived 21. E. 4. 77. By the same rule and reason doubtlesse a Noble man sued as Executor shall not be arrested nor shall any Capias be awarded against him for not appearing And if any triall shall be of any issue there shall be two Knights of the Jury as in other cases where a peere is party Likewise where the Wife is to have her convenient apparell whereof the Executor must not bereave her If she be a noble woman it shal be answerable to her degree If one Executor or onely sell goods of the Testator he alone may mainetaine an Action of debt for the money So if goods be taken out of the possession of one Executor hee alone may mainetaine an action and that without naming himselfe Executor Some touch hath beene before of Summons and severance whereabout be this added If one Executor will not or cannot joyne in suite with the other so as he is summoned and severed now by his death after the suite is not abated 16. Ed. 2. Fitzh 111. yet if he live till judgement he may sue execution say other Bookes 13. Ed. 3. Fiâ—zh Exec. 9. 11. R. 2. Priviledge 2. yet Que. of that for he cannot acknowledge satisfaction as hath beene since resolved Mich. 14. 15. Eliz. Dy. 319. And the reason thereof being because he is no party to the judgement by the same reason can he not sue exeÌ„cution upon it for how can he have execution for whom there is no judgement given now the recovery is onely in the name of the other Executor yea by the said last Booke it seemes that after judgement had he cannot release the debt because it is now altered in nature and turned in rem judicatam though at any time before judgement he might have released it as both that last booke saith and the two precedent temp Ed. 3. Rich. 2. yea in an action of account after judgement had that the Defendant
debts and legacies For where there is so the executor is not in any such hazard as aforesaid This descry of danger may breed caution and Qui timent cavent vitant As to the second wee shall have in consideration two sorts of persons videliâ—et 1. His executors there being many times divers executors and the waste or devastation done but by one Next his owne heires executors and administrators videlicet whether he dying this act shall fixe upon them like charge and burthen for satisfaction as upon himselfe should have lyen in case he had lived Touching his companions though altogether make but one Executor yet the misdoing of one shall not charge the rest nor make their goods liable to recompence as both appeares by the Booke of entries and was also held in the time of Henry the seventh Anno 12. of his raigne Yea of the same opinion were the judges twice in the late Queenes time viz. first in a case betweene Walter and Sutton in the common place and shortly after in the Kings Bench in a case between Hankeford and Metford though these two cases bee not reported in Print And surely this stands with rules of reason or justice that each should beare his owne burthen If it were otherwise many would decline abandon executorships as very dangerous to the most honest and faithfull in case they were subject to wracking by the miscariage of their Colleagues As for the Executors or Administrators of the wasting Executor dying before hee have born the burthen of his mis-doing I have found contrary opinions even in the late Queenes time For first in the Exchequor it was conceaved to bee as a trespas dying with the person as comming within the rule Actio personalis moritur cum persona But in the said case of Walter and Sutton the court of common plees was of contrary opinion viz. that this was not escaped by the death of this misdoer but the law would pursue his Executors or administrators and lay upon their backes the burthen of recompence or satisfaction for that the testator or intestate doing this wrong had made himselfe to bee debtor in the first testators stead and therefore they who represent his person must with his goods make amends and supply And this later opinion was something in time after the former Also betweene these two times was there an opinion in the said Court of common plees agreâ—ing in part with this latter For there a judgement being had against an Executor and the Shriefe upon the Fieri facias returning that there were no goods of the Testator in the Executors hands and then this Executor dying A Scire fac upon a suggestion of devastation by the said Executor deceased was awarded against his Executor and that upon good debate and shew of a President left and reported by M. Iâ—â—our in King Henry the eight his time And it was then said to have beene cleare that if a devastation had beene returned in the life time of the said Wastfull Executor his Executor then should have beene charged All the doubt was for that heere that was not done in his life time yet at last affirmatively as above is shewed the resolution was Touching the third point viz. to whom the advantage of wasting shall accrue or who by reason thereof shall charge this wasting Executor Put wee the Case that the Testator stood indebted to A. by Statute and to B. C. and D. by specialty not of record as Bond Bill c. and the Executor having no more in asseâ—s then only that hundred pound and this all being due to D. hee payeth him the whole hundred pound not having any thing left to satisfy any of the rest of the Creditors hereby wrong is done to none but A. who was a Creditor by Statute and therefore hee onely shall make this Executor to pay the like summe out of his owne goods since as to him only this is a devastation for that it was his election to pay of thother Creditors which hee would no sute being commensed by any of them consequently no wrong was done to B. nor C. And if no such debt had beene by Statute but all had beene Creditors by specialty and A. onely had commensed sute and that knowen to the Executor now if after hee payed all to D. hee stands only as to A. liable in his owne goods and not to B. nor C. But if the Executor had onely payd a legacy or debt by contract leaving nothing for satisfaction of the debts by specialty then had hee stood equally liable to each of the other Creditors Capiat qui capere potest viz. hee who first could recover or by the voluntary act of the Executor could obtaine payment must bee preferred if the summe would reach no further For it shall by this mis-payment or misconversion stand with the Executor as if hee had not payed it nor departed from it at all upon the matter and therefore I doubt not but it is free for him to give the advantage of this his error to which Creditor by specialty hee will so as hee shall stand free from all the rest no surâ—â—â—usage remayning nor any Creditor of record being For if there bee any debt upon record the Executor sued by a Creditor upon Bond may notwithstanding this his wasting plead in Barre of this sute that there is such a record of a debt not satisfied and that hee hath no more then that debt amounts unto and so admit so much still in his hands as hee hath misadministred though in kinde it bee not in his hands but mispent or unduly payed as aforesaid And what is before shewed of the Statutes precedency before Bonds in taking the advantage against an Executor for devasting or wasting the same is to bee understood of precedency of judgements before Statutes and debts to the King before judgements c. As touching the â—ourth point viz. how far the Executor thus wasting shall incurre dammage or make his own goods liable Doubtles no further then the value of the Testators goods wasted or mis-administred Therefore if one have advantage thereof to the full summe no other after shall for hee is no further a trespasser or wrong doer nor is the Testators estate any further or dâ—epelier damnified And as damages for trespas are to bee proportioned to the value of the wrong done and losse sustayned So also in this case the Executor by his misdoing doth not draw upon himselfe his Testators whole debts but so much onely as the goods amounted to which hee did mis-administer and which should have gone to the payment of the Testators debt if hee had not so misguided himselfe in the office of executorship which default hee must repaire or make good And this proportion seemes to me prooved by the Case in King Edward the third where the value or quantity is found specially of the goods administred wrongfully though there
having a lease for twenty yeeres did demise the same to I. S. for the whole terme if hee so long should live if hee were alive in time of the former verdit but now is dead the terme continuing this is now assets which before was not whilst it was but a possibility of a terme Other instances might bee given but these may suffice If the Executor pleaded that the Testator stood bound in such a Statute or that there was such a judgment against him of debt to the King beyond the satisfaction whereof the goods would not reach This is in effect a fully administred though speciall and not generall and the Law is alike as I take it in all these cases as to the not making of the Executors goods lyable But in all these causes though the debt shall not bee adjudged upon the Executors owne goods yet the damages shall in default of the Executors goods to satisfie them And in these cases it is not materiall whether the judgement passed upon trial or demurrer Nay if the defendant Executor plead no plea but confesse the action generally or bee condemned by Non sum informatus the judgement is the same viz. to record the debt onely out of the Testators goods and the damages of the Executors goods in default of the Testators what if the Executor defendant confesse that hee have assets to the value of part of the debt not of the whole there for so much as is confessed the plaintife may pray and have judgement presently without dammages and may maintaine for the residue of the debt that the defendant also hath assets for the rest and so goe to triall as appeares both by the printed Booke of entries and another manuscript which I have But what if this triall passe against the plaintife shall hee then have an additionall judgement for dammages in respect of the former I thinke hee shall have costs which commonly runne with or in the name of dammages but without a writ to enquire of dammages none being found by Verdicts the Court doth not usually adiudge dammages yet in the Booke of entries I finde 6 s. 8 d. dammages assessed by the Court upon a confession in a writ of Rationab parte bonorum against Executors and this hath much affinity with the action of debt Yea in the very action of debt where the Iurors for miscariage after their departure from the Barre were fined I find that the plaintife renouncing the assesment of dammages by them made and praying the Court to assesse the same it was done accordingly but this was a speciall case Whereas wee before shewed that an Executor denying his executorship shall if it bee found against him pay the debt of his owne goods for his false plea This thereabout occurreth to bee added viz. that that is onely where the immediate executorship of the defendant is denied For if B. bee made Executor by A. and B. dying makes C. his Executor now if C. bee sued for the debt of A. as Executor of B. Executor of A and hee denyeth that B. was Executor of A. which by consequence is a deniall of his being now Executor of A. yet if this fall out in triall against him hee shall not in his owne goods stand liable to this debt because it is possible that hee might not know to whom his Testator was Executor So if A. made B. C. and D. his executors and E. is sued as executor of D. the surviving executor of A. if E. deny that D. his Testator survived B. and C. by consequence whereof hee denieth the truth viz. that the executorship of A. is devolved to him yet shall not this found against him charge his owne goods for hee might bee ignorant of this point in fact viz. whether B. C. or D. lived longest And heere hee denied not his owne immediate executorship but a mediate or more remote executorship and so I thinke is the Law where C. being sued as executor of B. executor of A. hee pleades that A. by a latter Testament made himselfe executor which is found against him so as heere hee falsely pleaded and pretended himselfe to bee the immediate executor of A. and so denied the mediate executorship viz. of B. to A. and of him to B. yet Quere of this for why should not as well his false making himselfe an executor immediate to the indebted Testator charge his owne goods as well as his false denying of that executorship since both plees tend to the overthrow of the plaintifes action and each equally rested in the defendants knowledge But this difference is betweene them apparant viz. that the deniall of executorship if true is an utter and perpetuall Barre to the plaintife as against him so pleading but the affirming of an immediate executorship where hee was sued as executor mediate doth not so it true but directs the plaintife to a better writ or action viz. against him as immediate executor to the indebted Testator Where we have before touched upon the comming of Assets futurely to executors I think it not amisse to consider a little the forme and frame usuall in pleas of fully administred which thus runne viz. Quod die impetr plene administravit omnia bona catalla quae fuerunt praed S. temp mortis suae nihil hab de bonis c. quae â—uer praed S. temp mortis c. Thus tying his deniall upon the things which were the testators at the time of his death What if then the executor have at the time of this plea pleaded goods with were not the testatorâ— at his death but since accrued as before is shewed or perhaps a lease for yeares sold by the testator upon condition to be void if five hundred pounds not paid at such a day which hapning after the testators death and default made the terme returneth Or if the executor by a writ of error reverse a judgement given against his testator for two hundred pounds and so is restored thereunto May the plaintife now reply generally that he hath assets which were the testators at the time of his death How can the Jury so finde when the truth is not so Surely this case is not common nor can I shew a president of a speciall plea therein But in reason me thinks it should be specially and not generally pleaded and set forth in the replication And in case where one sued as executor denieth that he was ever executor or administred as executor I finde sometimes the replication generall that he did administer without shewing wherein or how and sometimes speciall shewing what thing was administred and where Here note that the executor defendant denying as he must two things viz. 1. That he never was executor 2. That he never administred as executor the plaintife in his replication is tyed to maintaine but the one of them as the truth of the case is that is if in truth the defendant were
of the testators goods if so much in value of them were in the defendants hands and if not then the costs only of the goods of the executor And this surely is the righter and more just way for there is no reason that upon on a promise more then upon a bond the law should cast the whole debt upon the back and state of the executor But perhaps the two judgements may be reconciled thus the later was given upon a verdict non assumpsit being the issue and there the Iury assessed damages in certain viz. two hundred fifty three pounds with the costs So as here the judgement was compleate and full viz. to recover the said summe but in the other case the judgement was had upon a demurrer so as the damages not being knowne it was generally that the plaintife should recover his damages against the defendant Sed quia nescitur quae damna c. because it appeareth not to the Court what the damages were therefore a writ was awarded to inquire of damages upon the return whereof executed the judgement was fully and compleatly to be given of a summe in certain which second judgement it appeares not by the book in what manner it was entred and therefore might perhaps bee then agreeable with the other And that the said first judgement before damages inquired of is not a plenary full judgement but an award of judgement hath beene divers times resolved and that therefore any defect and insufficiency in the declaration may be shewed time enough after the first and before the second judgement Yea if the plaintife dye before the second judgement though after the first the action falleth to the ground So if the defendant dye otherwise of death after full judgement But this notwithstanding and howsoever it there were done upon the second judgment me thinks it were righter and fitter that the first judgement should expresse that the damages should be had and levied out of the testators goods for whom and in whose right the executor is sued Another case there is wherein the judgment must be as it seemes against the executors own goods viz. in an action of covenant for a breach of covenāt since the testators death for so was it held both by all the Judges of Common Pleas except the L. Dyar and by the pregnotaries in the late Queenes time where the case was of an house upon the lease negligently burned in the executors time for which damages only were to be recovered And sometimes where the executor himselfe is so to beare the burthen I finde the judgement entred that the summe recovered shall be levied of the lands and goods of the executor Chap. XVII Of women covert Executors THere being two kinde of persons who have some disability upon them viz. Femme coverts or married women and infants touching whom we find in many places question and disceptation in our bookes We will consider of them by themselves or apart from others yet not joyning them together neither but each by himselfe separately First therefore of Femme coverts touching whom we will consider these three things First whether they may make Wills and executors with or without their husbands assent and how where and in what cases Secondly whether they may be made executors without their husbands assent or how their husbands may hinder it Thirdly what acts in execution of the executorship they may doe without their husbands or their husbands without them A woman married or femme covert wee know is Sub potestate viri cui in vita contradicere non potest as saith the writ given by the Law to the wife for recovery of her land after her husbands death being aliened by him Therefore it is that Judges when a woman is to acknowledge a fine of any land doe examine her apart from her husband to know whether she bee willing or come to doe it by the compulsion of her husband It is therefore hard for her to have freedome of will and consequently freedome to make a will Besides all her moveables or goods personall which shee had at the time of her marriage otherwise than as executrix or administratrix are by the Law totally devested out of her and setled in the husband as fully ipso facto upon the very marriage as any other that were his owne before Of these therefore she can make no disposition no more than of other her husbands goods But in case shee doe by will bequeath them although the will and gift be void yet if the husband as the case was in the time of Edw. the second do after his wives death consent to this her will gift by delivering of the goods bequeathed after her death or assenting that the legatee take them by vertue of such will and gift this amounteth to a new gift by the husband If a woman have a lease an estate by extent a wardship the next avoydance of a Church or other chattell reall these are not devested out of her into her husband by marriage but in case she over-live him they continue to her as before no alienation or alteration having been made by the husband who had power to dispose of them by gift in his life-time though not by his will yet such a woman in her husbands life-time could not of or for these things without her husbands assent make an executor or will but she dying before him they would by the operation of law accrue to him And here then observe a case though not frequent yet full of mischief when it happens Suppose that a woman indebted a thousand pounds and having leases and moveable goods to the value of three thousand or foure thousand pounds marrieth with I. S. and then dyeth before the debt bee recovered against her in this case the husband shall have and goe away with all this value of his wife and is not in law lyable to pay one penny of her debts because hee is neither her executor nor administrator What the Chancery could doe or rather what the Lord Chancellor or Lord Keeper would doe in this case I will not take upō me to say or determine Another sort or kind of goods or rather interests a woman may have viz. debts or things in action which as the former are not devested out of her by marriage into her husband nor yet can shee thereof make an executor without her husbands assent although they be one degree farther from the husband than the said chatels realls for that though th◠husband doe overlive the wife he shall not be intitled to them as to the former But if his wife make him executor as she may or if after her death hee take administration of her goods then as he is thereby intitled to them so is he lyable also to pay her debts out of the same when he shall have received them Lastly Dato that a woman covert
A. posessed of a Lease for sixtie yeares of one hundred pound Land mortgageth it for five hundred pound or be it that the mortgage or pledge be of a Jewell or peece of Plate for halfe the value and that before the day limitted for payment and redemption A. having made B. his Executor dieth and B. at the time and place maketh payment as was conditioned Now the question is whether this Lease Plate or Jewell being worth much more than the summe for which it was mortgaged shall be in him wholly in his owne right and to his own use or partly if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies Here it must be cleerely admitted that B. was inabled to this redemption onely and meerely by the Condition annexed to the mortgage or pledging It must also be admitted that this Condition and the power or interest to take benefit thereof to him came and was derived onely as Executor of A. This being premised it must needs follow as to me it seemes that the Condition working and having his operation in the redemption to destroy the Grant mortgage or pledging it must needs make these againe the Testators goods in statu quod prius and so to be in B. as Executor since in that right onely he was intituled to take benefit of the Condition For what is it which hindred before this from being the Testators goods nothing certainely but onely the force and strength of the mortgage or pledge Now by the redemption that is become voyd hath it losts its force therfore the property of these things must needs now be as if no such mortgage or pledge had beene or as if it had at the first beene voyde and of no force Thus must the Condition worke for him who made it viz. A. the Testator and those of the contrary opinion in the time of King Hen. 7. doe yet say That by this redemption the Testator is so much in debted to the Executor as he disbursed for the redemption which could stand with no reason unlesse by it the property and interest should be reduced to the Testators behoofe That thus it is is also proved as to me it seemes by the Case of mortgage of Inheritance upon which the heire making payment according to the condition is not now in as a new purchasor but as heire so as he shall have his age and be in Ward even for this Land Yea it shall be Assets in his hands for satisfaction of his Fathers or other Ancestors debts which in some respect is a harder Case than that of the Executor for he hath meanes to satisfie himselfe of the money disbursed either out of the thing redeemed or other goods of his Testator but the heire hath no such meanes Yet it will be asked how the Executor can be free from mischiefe for if this thing redeemed be intire as the Cup or the Lease the whole will be taken in execution for the Testators debt To admit this yet here is one cleare way of remedy viz. the Executor may before such Execution sell the thing and so pay himselfe and retaine the surplusage to the Testators use and the like of this is frequent in use viz. for Executors to pay of the Testators debt with their owne money and to make themselves satisfaction out of the Testators goods Besides it not impossible that this redeemed thing should be thus in interest parted that answerably and proportionably to the summe disbursed for redemption with reference to the value of the thing redeemed a moyetie or third part or three parts therof should be to the Executor in his owne right as his owne proper goods and the rest in him as Executor As posito that A. and B. were Tenants in Common of such an entire Chattell A. maketh B. his Executor and dieth Now hath B. one moyety as Executor and another as his owne proper and upon a Judgement against him as Executor that moyety onely which hee hath as Executor must be taken in execution and here may be remembred how in execution of a Judgement or levying of an Amerciament out of an intire Chattell of more value than the summe to be levyed the whole is to be sold and the surplusage above the debt or Amerciament is to be delivered backe to the owner For in all this debate we must presume the thing redeemed by the Executor to be of better value than the summe payd else wee may easily admit the whole to the Executor Againe the Lease for yeares is not so intire a thing I meane the Land let but that thereof partition may be made yea inforced by Action betweene joynt tenants and Tenants in Common But here will be objected the Case of redemption by the daughter and heire who though she have a brother borne after so as now she is no longer heire yet she shall as the Booke saith retaine the Land redeemed from the heire as a Perquisite or Purchase As for this which I will not oppose the Law so frameth to the favour of the daughter because of great mischiefe to her if being stripped of the rest of the Inheritance by the birth of a brother she should also lose that which her money had redeemed without having any remedy to have her money againe or any recompence for it but in the other Case there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed Now on the other side if the Case shall be understood that the redemption was by payment after the day then will I easily admit that the property or interest is in the Executor to his owne use or that the Condition now having no power to reduce it backe or to operate any thing It is rather a re-emption than a redemption since it was at the Will of the Mortgagee to dispose it at his pleasure and any stranger as well as the Executor might thus have redeemed viz. repurchased it therefore onely Equity and not Law in that Case can make any part of the value Assets in his hands And so also I thinke if wee should admit in the other Case of payment at the day that the property of the chattell is to the Executor as his owne and not his Testators goods no part of surplusage of value can in Law be Assets howsoever in Equitie Lastly if the Executor redeeme by payment at the day with the Testators owne money or goods none will doubt but that the thing redeemed is in him as Executor and the money by him payd for redemption is well Administred the goods redeemed being of better value But this way it makes no difference whether the whole value of the goods redeemed shall be held Assets and the money payd for redemption stand drowned therein or that that summe be still adjudged in the hands of the Executor as Assets and onely the surplusage of the thing redeemed over and above the summe payd for redemption
the statute marchant was provided consisteth usually more in goods then lands besides the plea of Harrison administrator of the goods of Sidney in barre of Greenes action of debt upon an obligation viz. that the intestate stood bound in a statute staple to I. S. and Greenes reply thereunto that there were Indentures of defeasance no covenant whereof was broken and the resolution of the Judges that the said matter in the replication was good to avoid the defendants plea. All this I say and the resolution of the Judges of the Common Pleas in that case and in the case betweene Pemberton and Barram as also in the Kings Bench by Popham and the rest of the Judges that executors must satisfie judgements before statutes and statutes before obligations had beene idle and savouring of grosse ignorance if no execution at all could be had against the executors of him bound in a statute and then should Greene have demurred upon the plea of Harrison and needed not to have pleaded that other matter but none of the Judges or Serjeants ever conceited any such matter that which there was replyed viz. that the statute was not forfeited is here to bee remembred as good matter both against statutes and recognizances and that whether the recognizance have a defeasance or a condition not broken so that the recognizance is not forfeited In none of these cases is the executor hindred froÌ„ payment of debts by specialty nor can he be justified or excused if by colourt hereof he refuse so to do and indeed else might creditors be exceedingly defrauded by recognizances for the peace and of good behaviour c. and so by statutes for performing covenants touching the enjoying of lands if these should keepe off the payment of debts and yet themselves perhaps never bee forfeited nor the summes become payable Of Debts by specialty NOw come wee to debts due by specialty viz. bond or bill of which nature the greatest number of debts are let us then see what course the executor must or may hold for satisfaction of these admitting that the testator stood not indebted by any record or that no forfeiture is of any such debt or that there be goods in the executors hands above the amount of such debts by record This I say dato then according to the rule proximus quisque sibi the executor may first satisfie himselfe of such debts as the testator by specialty owed him for such debts are not released by the creditors taking upon him to be executor to the debtor though on the other side if the creditor make his debtor executor this is a release of the debt Although it be given out or commonly spoken in the generall that an executor may first pay himselfe yet is it to be understood with this caution or condition viz. that the debt to him be of equall height or dignity with the debts to others according to the rule inaequali jure melior est conditio possidentis for if his testator were indebted to other men by any statute judgement or recognizance and to him whom he maketh executor only by bond or other specialty then may he not first pay himselfe that is by paying of himselfe leave them unpaid whose debts are of a higher nature but if there bee sufficient for satisfaction both to them and himselfe then is it not materiall which be first paid Now touching the debts to other men the executor hath power to give preferment in paiment to whom he will so that if the testator left but an hundred pounds being indebted to A an hundred pounds and to B an hundred pounds by severall obligations the executor hath power to pay B. his whole debt and to leave A altogether unpaid any part of his debt so as he have not commensed any suit before paiment to B. But yet herein this difference is to be taken and observed by executors that if the time of paiment upon the bond of B were not come at the time of the testators death then may not the executors before the money to B become payable pay him and leave A unpaid whose money was presently due Yet if A forbeare to demand or sue for his debt till the debt of B become also payable then is it at the will of the executor to pay whether of them he will so as the other may lose his whole debt if the goods will not suffice to pay both What if A have only by word demanded his debt and not by suit before the debt to B become payable whether doth that hinder that the executor may not now when the money to B is also payable pay him and leave A unpaid And hereunto S. Germ. answereth negatively making this verball demand to be idle and of no value yea he addeth that if A have commenced suit before the debt to B become payable yet if the executor can delay the suit till the debt of B become payable so that A can get no judgement before that time and before B hath commenced suit upon his band then may the executor confesse his action and so pay his debt leaving A unpaid But of this I make some doubt for that I finde in 9 of King Ed. the 4. some admittance that if A having a Tallie patent or other warrant from the King for receipt of money of or from a customer or receiver where others had like warrants before him but A maketh the first demand now must the officer first pay him or else himselfe shall become debtor to him if he first pay others whose demands were after made though they had warrants before A. Likewise there is as to me it seemes some admittance in the same book that the very demand made by a creditor of his debt from an executor who hath then assets in his hands doth intitle the creditor to recover damages against the Executor out of his owne goods which if it so bee then doth even that verbâ—ll demand lay some tye or obligation upon the executor for payment But hereabout I lay downe nothing peremptorily We partly may discerne by the premises how the executor is to guide himselfe in case where there be divers debts by specialty all due and payable at the testators death before any sute commensed for any of them for in that case cleerely the first verball demand gives not any precedence all being due and so standing in equall degree And this is implyed in many Bookes making the commencement of the sute onely that which intitles to priority of payment or at least restraines the election of the executor Yet admit that one creditor first doth beginne suit if others also after sue before hee bee payd or have judgement now cannot the executor pay him first who first commensed sute but hee who first hath judgement must first be satisfyed And the executor may herein yeeld help to one before the other viz. by essoignes emplances or dilatory pleas
the Land it will then bee haâ—d that the Executor shall for this winter proffit pay the rent out of his owne purse especiallie if the whole yeeres rent bee payable at that one day as in some cases it is or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes it is so also of medow grounds usually drowned in the winter So if the lease bee then to end not having a summer halfe yeere to succeede and make amends for the winter or if the winter halfe yeere bee the latter halfe the lease beginning at Lady day so that there is but a summer for each winter following and not any for the winter passed Of like consideration with these is the case of a lease of woods for a rent which being fellable but once in eight or nyne yeeres now if the lessee having made the last sale and felling before his death the Law should cast the rent upon the Executors owne estate for the time future it should lay losse upon him which is against reason and contrary to the nature and disposition of the Law even in this particular As appeares by this that shee enables an Executor to pay himselfe before any debt of equall nature so as shee more tenders an Executors indempnity then any other Creditors therefore I thinke that with and upon the differences above shewed even rent growen due after the testators death may in some cases bee the testators debt payable equally with debts by bond But here I conceive that if the executor were in such case of destitution of assets as might justifie his waiving of a lease over-rented hee then may waive these termes residue because for the future the profits will come short of answering the rent though at the first and so in the totall the profits did exceed the rent And if for want of waiving where he might this rent fall upon him the paiment thereof would be no excuse against another creditor nor as to him be a good administration for Ignorantia juris non excusat This is pertinent to our present consideration which debt may with safety be paid leaving another unpaid and the hazard of executors by ignorance of the Law hath been a principall motive to my writing these Discourses in English Hitherto we have only considered as I think of rents as they be recoverable by action of debt Now let us see if there may not be somewhat different considerations touching distraining for rent and so comming to recover it by avowrie Put wee then the case that an executor hath fully administred in payment of debts by bond and after the lessor or revertioner commeth and distraineth for arrerages of rent due in the testators life can the executor in bar of the avowrie plead fully administred as hee might have done if an action of debt had been brought for these arrerages doubtlesse I think no nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease except the land come to the King upon whose possession no distresse can be taken I think therefore that the executor who paid out of his own purse to the value of this lease for to I intend the case and else could he not have fully administred as in the case was put he should I say have abated in the price and valuation of the lease as well the arrerages of rent as the rent futurely payable both being equally leviable upon the land and if he so have done he is no loser by payment of this arrerage but if trusting to the power of an executor and to the plea of fully administred hee did not so but disbursed in respect of the lease to the full value without such abatement he must beare the losse of his owne ignorance He might also another way have helped himselfe viz. by payment of that arrerage leaving other debts by specialty unpaid And what if suits were presently commensed upon the testators death before hee could make payment of the rent behind whether might the executor then plead this debt for rent as hee might a debt by judgement or statute and surely me thinkes it probable that he might because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie If the revertioner would also commence suit before judgement had for the creditor by specialty then might the executor helpe himselfe by confessing his action first but this perhaps the revertioner would not conceive safe for him since that way the others might get judgement before him and so he might lose both his suit and his debt wheras holding himselfe to the course of distres the lease continuing he hath land at the stake for his debt What if he distraine and avow may not now 〈◊〉 executor pay him or at least confesse his â—â—tion or avowry so as he first having judgement may first be satisfied Surely after suite commenced I see not how the creditors by bond can so be prevented at least without judgement had for the rent yea though such a judgement be had yet because the judgment in that case is not that hee shall recover the summe due for rent but only that he shal have a returne to the pound of the cattell distrained for the rent it is questionable whether the paiment thereupon of the rent shall prevent the judgements after had in the suits upon bonds But I thinke it shall because although it bee not an expresse recovery of the rent yet is it such a judgement compulsary for the same as makes the payment inevitable and of necessitie And where before we have made the question only between the said rent-debt and the debt by obligation let us now put the case between the rent-debt and the debt by statute or judgement If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell and after there comes a writ of execution upon a judgement or statute of the testators whether shall these beasts in the pound for rent be delivered in executioÌ„ or not admitting that without them there be not goods sufficient for satisfaction of the judgement or statute And surely I thinke they cannot be delivered in execution First for that they are in the custody of the law as in String-fellowes case though there the Kings preroga-time overtopped that point yea so I thinke though they be replevied for that they are to be returned to the pound if judgement passe for the avowant to which purpose securitie is given so as they are but in tâ—e case of a prisoner bailed who still is in some sort in custodie Secondly for that this rent incident to and descendible with the reversion breeds a debt of a reall nature and so of more dignity and worth than debts personall Thirdly for that the land let as in a sort debtor stands chargeable with this distres
by a wrongfull person and in Suttons case it was expresly held that each Executor should answer for so much as he wasted Now for the fift and last point viz. how and in what manner reliefe shall bee had upon this point of wasting for him to whom it pertaines first this is to bee observed that in case where the verdit passeth directly against the plaintife no devastation can come in question for that no judgement being for the plaintife no writ of execution can issue and therefore if upon the issue of fully administred it shall appeare that there hath beene a devastation which causeth assets to faile then must the Iury finde that the defendant hath assets and not finde a devastation as was resolved in the Kings Bench in the late Queenes time betweene Hankeford and Metford for there the jury finding a devastation viz. a surrender of a lease for yeeres left by the Testator it was held voyd and nugatory and was not regarded by the Court which said that must come in by the Sherifes returne viz. upon the Fieri fac Thus assets being found in the Executors hands judgement is given for the plaintife to recover his debt and to have it levied of these assets nor is this finding of them by a jury against truth though they bee wasted and so not to bee had in kind for the Executor hath them in right since hee hath not rightfully parted from them according to the rule Propossessore habetur qui dolo or injuria desiit possidere As in the case first put this wasting cannot come in question for want of a judgement for the plaintife so also where the judgement it selfe extendeth to the Executors owne goods by reason of some false plea whereof wee shall after consider for since that the consequence and effect of a vastation is but to make the Executors owne proper goods liable to the debt of the Creditor this is altogether needlesse where the judgement it selfe hath layed hold on his goods But now in case where the judgement extends onely to the Testators goods in the Executors hands let us finde the way to releive the Creditor in case the Testators goods bee wasted by misadministring or otherwise for hereabout the right way hath often beene missed and againe easily may bee In the latter end of the late Queenes time this course was taken viz. the Sherife returning generally that the Executor had no goods a surmise was entred that the Executor had converted to his owne use the Testators goods whereupon a writ was awarded to the Sheriffe to enquire thereof by jury or enquest which he did and returned that it was found that the executor had wasted the goods and thereupon a Scire facias was awarded against the executor to shew cause why execution should not be of his owne goods and upon two nihils returned execution was so awarded but a writ of error was hereupon brought And although it were said for defence of that course that it was usuall in the Cōmon Pleas and more favourable than the other course where the Sheriffe only returneth the wasting or is sole judge thereof whereas here it was found by an inquest of Jurors and thereupon a Scire facias awarded yet did the Court resolve the contrary and reverse this execution as erroneous For it was said that upon the Sheriffes returne of nulla bona viz. that there were no goods of the testator to be found the plaintiffe should have a speciall writ of Fieri facias willing the Sheriffe to levie the summe recovered either of the goods of the testator or if it could appeare that the executor had wasted the testators then to levie it of his own goods and this way as was said the executor hath good remedy by action against the Sheriffe if without just cause hee levie it of his goods but the other way viz. when inquest is thereupon taken the remedy failes since neither sheriffe doing according to the inquest can be punished nor the jurors finding falsely are subject to any attaint it being no verdict upon issue joyned but an inquest of office which excludeth also all challenge of jurors And whereas that booke mentions the Sheriffes subjection to action onely in case of his mis-feasance or doing wrong I conceive that hee is likewise suable for omission or nonfeasance in this case viz. for not levying the debt upon the executors owne goods where proofe is made of his wasting And where the booke mentions this Fieri facias to bee in this manner upon the Sheriffes returne in a Scire facias doubtlesse the booke therein is misprinted and should be a Fieri facias for in a Sciri facias the Sheriffe can returne nothing but that he hath warned the party or that he hath nothing where by he may be warned This then is the course there prescribed that first a generall Fieri facias go out and that thereupon the Sheriffe returne generally that the defendant hath no goods of the testators and that thereupon the said speciall writ is to issue yet in the beginning of the late Queens time the verdict passing for the plaintiffe upon the issue of fully administred the Sheriffe was not permitted to make such a generall return of no goods to be found of the testators but was inforced by the Court upon good advisement either to leavy the debt or to returne a Devastavit and so was done at last by the Sheriffes of London much against their minds and therupon went out a writ to leavy the debt of the executors owne goods first into London and after into Devonshire upon a Testatum that the executor had goods there And it was there said that if no goods could bee there found then the plaintiffe might have a Capias to take the executors body in execution or an Elegit for the moiety of his lands But certainly I cannot find except with a difference how this course of inforcing the Sheriffe to doe one of these two can be just as neither could Justice Fulthorp in the time of King Henry the sixth approve it For a Jury of one County may finde assets in another County as was resolved in the time of King Henry the eight which yet was understood of goods moveable and not of lands This then thus being if a Jury of Kent find assets which be in London or Essex how can the Sheriffe of Kent where the action was laid leavy the debt recovered by or out of these goods or since he cannot why should he be compelled to make a false returne of a wasting when the goods remain unspent and unwasted in another County Why rather should hee not bee suffered to returne according to truth that there is nothing within his Countie or Bayliwicke whereof the debt may be levied since even his oath tieth him to make a true returne nor is this contrary to the verdict finding assets generally and this so returned upon
made executor but never did administer now it must be replyed that he was made executor at such a place without speaking any thing of his administring On the other side if he did administer but were not made executor then only the administring is to be replyed but if it shall be found that the defendant had administration to him commited and so administred by vertue thereof then is the verdict to passe for the defendant for this is no administring as executor and upon a generall deniall thereof this may be given in evidence as the Lo. Dyar reports to have beene resolved But if the plaintife do in his replication maintaine both the points shall this make his plea double Me thinks it should yet I finde it so replyed and no exception taken for the doublenesse Tr. 17. H. 8. Rot. 28. A sole woman being executor maketh a deed of gift of the testators goods in trust but continueth possession of them and marrieth J. S. who also hath possession of the goods and in an action of debt by a creditor fully administred is pleaded now upon evidence the verdict shall passe for the plaintife for this alienation being fraudulent was void as to all creditors and so as to the plaintife the goods continued the testators and so assets in the defendâ—nts hands as was held in the Kings Bench. If fully administred be pleaded where the defendant hath assets for part but not sufficient for all and so it is found yet shall not judgement be given for the whole but for part presently with a further award that when more shall come to the executors hand the plaintife shall then have further judgement for the rest so as that false plea doth him no prejudice but makes him in as good state the charges of triall excepted as if he had confessed himselfe to have part And I think the plaintife upon that confession of part may pray the like judgement without maintaining that the defendant hath sufficient for the rest for if that be not true why should he be put to the charge of a triall by Jury yea Sir Edw Cooke at the Barre Tr. 36. Eliz. said that where fully administred is pleaded the plaintife is not tied to maintaine the contrary but may presently pray and have judgement to recover it when assets shall futurely come to the defendants hands which was denied by some but truly me thinks the law should be as he said as well as in the former case where for the part which the defendant had not assets to pay it so was done upon verdict so finding But there as I conceive it was not a present judgement but an award that he should have judgement futurely so as after wheÌ„ assets come to the defendants hands the plaintife must have a Seire faeias against the defendant to shew cause not why he should not have execution but why he should not have judgement as I take it yea where it is found for the defendant that he hath fully administred yet was is held by all the Justices 33 Hen. 6. 23 24. and by â—risoâ— 34 Hen. 6. 24. that when assets after come to his hands the plaintife shall have a Scire sacias to have satisfaction out of them but there Markham Yelverton and Forteseu were of contrary opinion and so was the whole Court 4 Hen. 6. fo 4 And it stands with great reason that where upon a verdict fully found against the plaintife judgment is given quod nihil capiat per breve there he cannot have any writ to execute the judgement for him but is put to a new action of debt yet where it is found that the defendant hath assets for part of the debt but not sufficient for the whole there it is very congruous that the plaintife have presently judgement for part and after when more commeth then by Scire facias against the defendant obtaine judgement and execution for the rest for here both verdict and judgement were for the plaintife against the defendant whose plea that he had no goods was false and so found by the jury And this difference was strongly avowed by Serjeant Hanham Mich. 33. 34. Eliz. and after approved by Fenner Iust 36. Eliz. none contradicting it yet a book was cited that the plaintife recovering so much as was found in the executors hands should be amersed for the residue which Popham Chiefe Iustice denied to be law Chap. XVI Where judgement shall be against the Executors owne goods though no plea of the defendant nor vastation do so occasion and of the severall manners of judgement in severall cases HOw by wasting called by us commonly a Devastavit an executor may draw down the execution upon his owne goods hath formerly beene handled and discoursed of as also what kinde of pleas doe make the executors owne goods liable to the debt and what not Now let us see where without mis-administring or mis-pleading yet the nature of the action shall lay the whole debt or thing recovered upon the executors owne goods And this we shall finde in some few cases 1. Where an executor is sued for rent behinde after his testators death upon a lease for yeares made to the testator and by him left to his executor Here it shall be adjudged and levied upon his owne goods for that so much of the profits as the rent amounted to shall be accounted as his owne goods and not his testators therefore is he to be sued as well in the debet as the detinâ—t where in other cases he is not but in the detinet only being sued as executor So if any thing delivered to or detained by his testator come to his hands and he still detaines the same after the demand and be thereupon sued in an action of detinue for this is his owne act nor in this case need he to be named as executor for he shall not answer damages for his testators detaining So if he assume to pay a debt of his testators having assets and be sued upon this Assumpt the which debt is to be recovered in damages and that upon or out of the executors owne goods yet is this action and the assumption which is the ground thereof founded in the executorship and his having assets for if either he had not beene executor or if he had not assets at the time of the promise it had beene nudum pactum and would not have bound him nor given good cause of suit Nay to go further in the case of assumption by the testator and suit against the executor thereupon we finde the judgement in M. Plowdens Commentary given against the executor generally as if he had not beene an executor not fixing it upon the testators goods yet there the very debt it selfe is included in the damages But contrarily was it after in the seventh yeare of the late King viz. judgement given that as well the damages as the costs should be levied
that it is done to the use or profit of the infant Executor then no sale of lease or goods or assent to legacy by such administrator will bind or prejudice the infant Executor But otherwise perhaps if the administration during the minority bee committed generally And if the Testator himselfe making an infant Executor doe also appoint another to bee his Executor during his nonage expressing it to bee onely for the benefit and behoofe of the infant executor I doubt whether this temporary executor stand any whit restrayned froÌ„ what pertaines to the power of an absolute executor for there may be perhaps difference between him to whom the owner of the goods commits the government of them though but for a time and in speciall manner and an administrator so specially made by the ordinary another being presently by the will of the owner or Testator to have the administration in whom for a time legall defect is found But now let us passe over this age of 17. and consider of the infant betweene that time of his being admitted to take upon him the executorship and his accomplishment of his full age of 21. First then suppose that hee doth release a debt due to his Testator whether shall this bee good to bind him and to discharge the debtor aswell as if the executor had bin of full age hee now having proved the will and being by the Law spirituall approved an able executor And this point comming in question in Russells Case in the late Queenes time consideration was had both of divers good reasons for enabling of this release as that an executor represents the person of his Testator and in his right and power doth these acts and not in his owne and therefore his infancy which is a state or condition of his owne naturall person shall no more disable him then it doth the King a Mayor or other head of a Corporation Also divers Bookes were found to runne that way as well in the case of an infant as of a Femme Covert But upon great deliberation in the Kings Bench and upon conference had with the Lord Anderson Manwood and other justices it was resolved and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him first for that if it should it would be a wasting or devasting of the goods of his Testator and so would charge his owne goods Secondly It would bee a wrong which an infant could not doe by his release Thirdly It was no pursuit nor performance of the office or duty of an executor but the contrary And upon this judgement a writ of error was brought in the Exchequer Chamber where it was agreed by all that the release was not effectuall nor binding so as this point now had the resolution of all the Judges of England But it was agreed that if payment or satisfaction had beene made then the infant executor might have made a good acquittance and discharge indeed payment it self if proved brings discharge enough except in the case of a single Bill Note that the principall case adjudged was not of a release of any debt or duty by specialty but of trespasse in conversion of goods found or taken in the Testators life time But Poâ—ito that this infant had assented to a legacy whether will this binde him or not for in the said Case of Russell it is said that all things which an infant doth according to the office and duty of an Executor will stand firme now it is part of his office to pay and execute Legacies Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other in case there remaine not goods sufficient for payment of the debts and consequently here aswell as in the other case the infants owne goods would become lyable to his Testator debts I doubt and incline that it is not nor can stand effectuall for except in the other wee admit a want or possibility of want of assets or goods the release could neither hurt the infant himselfe nor doe wrong to any other and that admitted this case is of like prejudice yet if this asset should bee voyd so also would bee his payment of Legacies and how then were hee an able Executor at the age of 17. yes to sue and to bee sued for debts and Legacies and if upon suit it cannot bee shewed that debts will take up all or disable the payment then happily hee may bee forced to pay Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse or conditionally viz. if there bee besides goods sufficient c. or that else the nonaged Executor may have an action of accompt for the money by him payed to the Legatee and also avoyd his assent where that only needfull But doubtlesse neither the assent of such Executor before his age of 17. nor any payment of a debt to him could bee good although such acts to or by another Executor before the proving of the will would stand firme and good for this infant wants not onely proving but also ability to prove his Testators will yea the will stands suspended and the Testator as it were intestate whilst the administration stands in force so as during that time nothing can bee done by any as executor and therefore there is great difference betweene the cases What if payment of a Legacy bee made to an infant can hee make a sufficient acquittance This I confesse is besides the point in hand yet because it concerns infants and Executors though not infant Executors it is not amisse here to cast some thoughts and words upon the point for that it many times perplexeth both Executors and Legatees First therefore in case the Executor bee of the yeares of discretion viz. 14. I hold it cleare that any payment to him made will stand good for that the Law at that age holds him able to governe and manage his owne Lands held in socage and consequently to receave the rents thereof wherefore whether hee who makes such payment have any acquittance or not if hee have proofe of the payment hee is well enough acquitted from any second payment and if without payment hee get an acquittance it will not suffice the infancy of him who makes the acquittance considered Besides if the acquittance bee as most usually they are but signed onely with the name of the maker and not sealed it is onely an evidence or proofe of payment and no pledable acquittance because no deed so as it nothing differs from proofe by witnesses save that it is not mortall as they But now if the infant bee under the yeeres of discretion what shall wee say to a payment to him specially if hee bee but three or foure yeares old or thereabout heere I thinke caution is to bee used by the executor generally and the surest way is if hee feare to
Bâ—â—deridge Wâ—ndsor Noke Anders case 41. Ass p. 15. 40. E. 3. Fitzh Ex. 74. Co. lib. 9. f. 87. ◠〈…〉 Cap. 10. Fitzh Ex. 77. I conceive no difference betweene this and the other cases supâ—a 2. H 4 13. He may by 〈◊〉 Co lib. 11. f. 88. 3. H. 6. 35. Coâ— for arreâ—ages of an account before auditors 11. H 4. 64. 91. 92. 9. H. 6 11. 13. Ed. 1 Câ— lib. 9. f. 87. a. 21. Hen. 8. cap. 5. 1â— Ed. 3. cap. 4. Do. Sâ—u. li. â— cap. 10. M. 33. 34. Eliz the Lady Walsinghâ—ms case in com ba. Tr. 39. Eliz. Lib. 1. 21. E. 4 21 22. So must it bee pleaded M. 33. 34. Eliz. And must plead the record in certain as was held in the case of the Lady Walsingham M. 33. 34. Eliz. but it sufficeth to say by a record of the Exchequer as was held Tr. 39. Eliz. in b. reg Co. lib. 5. f. 28. So Wray and Gaudy inter Bond Bales 28. Eliz. vel circiter Yea though a writ of Error by the executor to reverse the judgement yet suffering a statute to bee executed must pâ—y of his own Read Bear-blocks câ—se P. 43. Eliz. Ba. â—e So held in Reades case supâ—a vide 12. H. 7. Kâ—lw 24 25. to like purpose Co. lib. 4. f. 59. So Peâ—iam in com ba. inter Charnock and Worsley 34. Elâ—z vel circiter Co. lib. 5. f. 28. Co. li. 8. f. 132. So held in 15. 16. Eliz. So in the Scire fac by bond against Bales it was held 9. El. 4. 14. 15. Quae. of arrerages of account before auditors without suit for the executors are charged by judgement of the Auditors by 〈◊〉 W. â— judg of record 10. H. 6. 24. 25. Brdeâ—â— 183. Quae. of judgement in a writ of Annuity for arrerages after Before Sâ—i fac not after voluntarily but if levied by writ of Extend sa good Bâ—â— N â— â—â— Stat. Mar. 43 Co. l. 5. f 28. b. H. 40. Eliz. â—ot 119. P. 32. Eliz. â—ot 235. in cont ba. See Co. lib. 5. 91. execution against an Exec upon a statute Semaines case Co. lib. 5. f. 28. So if satisfied though not discharged 28. H. 8. Dy. 32. Doct. St. ca. 10. p. 78. Do. St. p. 78. Quae. If then hee may not pleade this judgement post ult contin against A. as he may pleade it against other suits after coÌ„menced Co. li. intr 148. 269. 149. a. 4â— E. 3. Fitzh Ex. 68. 6. 7. El. dy 232. vide 21. H. 7. Kelw. 74. 5. Hen. 7. 27. So Walmsley inst P. 39. Eliz. in Error al. Sâ—riants Inne Co. lib. Intr. 269. such a recovery by confession is pleaded against another and admitted good fo 148. 149. Do. S. p. 78. b. So also was it â—ayd Tr. 29. Eliz. See â—3 R. 2. Bro. Pledges 31. Attainder of the party distraind shall not take away the distres Vide Dyeâ— Vid. Bro. Pledg 31. So Bracton Not resolving Co. lib. 9. fo 88 b. Doct. Stu. lib. 2. cap. 10. 11. Co. l. 9. fo 90. b. Pinchons case fo 94. Banes case 13. E. 3. Fitz. 91 Yeâ—â—on the other side if an execut by payment of an 110 pounds get in a fâ—rfeited bond of 200 pounds it shal be an administrat but of 110. pounds 27. H 8. 6. p. Fitz. iâ—st Lib. Intra sol 327. Kâ—lw rep â—ol 23. So. 11. H. 6. â—8 a. 4. El. Dy. 210 a. the writ so issued against the waster only P. 4. H. 8. rot 303. Tr. 34. Eliz. Pas 36. Eliz. Mich. 31. â— 32. Eliz. Tr. 34. Eliz. Tr. 34. Eliz. Mich. 32. 33. Eliz. If upon fully administred pleaded to one vel aliter hee have the advantage of this vastation taking up the whole â—umme wasted quae how the Executor shall relieve himselfe against another 41. E. 3. 31 b. Pas 36. Eliz. in 6. reg 45. Eliz. Pettifers case Co. lib. 5. fo 32 So 9. H. 6. f. 9. See Paston 1â— H. 6. 16. 36. upon surmise that A hath wasted A. Fieri facias may issue against his goods onely If so c. So lib. Intra f. 11. Co. lib. 5. 32. 2. El. Dy. 185. Woodw and Chichesters case 11. H. 6. f. 38. 28 H. 8. Dy. 3. Yea Co. lib. 6. f. 47. 46. Assets in Ireland or else-where beyond the sea may bee found by the Jury where the action is laid For the pl. may if he will suggest the being of assets in a forren County and this is usually done See lib. Intr. 11. a. Action upon the case for a false returne of Devast contra sacram sui debitum 28. H. 8. 2. Ma. Bro. Attaint 104. and 10. Eliz. Dyer 271. Because locall and fixed otherwise held 3. Jac. in com b. Co. lib. 6. f. 46. 47. 22. E. 4. 9. and 2. Ma. Bro. Att. 104. 18. H. 7. Kelw. rep 51. a. So held P. 31. El. in scaccar So if the proces for execution goe into another County than where the verdict found as the diff was held in Scaccar 31. El. 28. H â— Dy. 30. b. Pas 4. H. 8 rot 303 4. El. Dy. 210. But 2. H. 6. 12. without any Sci. fac upon the devast returned A capias was awarded by the court see 9. H. 57. Bro. Ex. 57. lib. Intr. 323. A Fieri fac absolutely without condition So. 9. H. 649. 50. A manu-script report 36. H. 6. f. 3. Mordant 12. H. 7. Kelw. rep 24. but vavasor just and all thother serjeaÌ„ts â— contra 2. El. D. 185. Co. lib. 5. f. 32. Mich. 41. El. rot 2441. Co. lib. Intr. 269. b. A recovery of debt precedent was pleaded Pl. replied nul tiell record def would not maintaine his plea. Ideo condemp If neither hee must so returne and doe nothing 1. And 2. P. M. sod Dy. 105. b. 1. Eli. Dy. 166. 167. So also Balâ—â— 50. Ed. 8. 9. 13. 14. Eliz. Dy. 305. 306. 1. Eliz. Dy. 166 167. see lib. Intra f. 322. b. 21. H. 6. 28. 10. H. 7. 28. Yet lib. Intra 322. b. where he confessed about funerall he traversed aliter Lib. Intra 312. where by letter ad collig Hee traversed Absq hoc quod Exec. 21. H. 6. 28. Lib. Intr. 322. 8 and 9. Eliz. Dier 255 256. He sold blended corne but there hee pleaded not the speciall matter 1 And 2. P. Ma. Dyer 105. 21 H. 6. 28. 33 H. 6. 31. 1 Eliz. Dy. 166 Tr. 37. Eliz. by Fâ—nner Just If one doe any such act as puls the property out of the executor he is become an executor by wrong If the goods be aliened by fraud he who takes them after the executors death is an executor by wrong Tr. 37. Eliz. L. 5. E. 472 a. Tr. 2. Jac. in com b. Co. lib. 5. 33 34. 1 El. D. 166. b. H. 20. 7. 5. 50. Ed. 3. fo 9. Tr. 3. Eliz. 2. Point L. 5. E. 4. 72. Co. lib. 5. 30. 31. 33. b. 21