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
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
the Diocesse of Canterbury and in the Diocesse of Yorke the Will must be proved either before both Metropolâ—taâ—es if within each of their jurisdictions there be Bona Notabilia in divers Diocesses or else as I take it if there so be not in any of the places then before the particular Bishops in those severall Diocesses where the goods are Or if within the one jurisdiction Metropolitane the Testator had goods in divers Diocesses and in th' other but in one Diocesse then in the one place is the Will to be proved before the Archbishop and in the other place before the Particular Bishop as I conceive And so also of peculiar jurisdictions And in some places Archdeacons have peculiar or jurisdiction ordinary and power to take Probates of Wills and Grant Administrations But where any like error or misproving is in these respects it is cause of reversall or of nullity according to the former difference so also if there be falshood in the proofe were it CoÌ„muni forma that is without witnesses or by examination of witnesses yet may it in the Spirituall Court be undone if either dis-proofe can be made or proofe of revocation of that Will once made or of the making of a later Now yet admitting the Will true and right and also rightly proved let us yet see the force and strength of the Proofe or Will so proved It being under the Seale of the Ordinary cannot be denied saith one Booke to wit whether this shewed forth be a Will proved or not no though the proofe be but indorsed on the backe viz. that it is so proved saith the Booke but notwithstanding the Defendant so sued may deny that the Plaintiffe is Executor as not being concluded nor estopped by the Probate so to say And the reason is because the Seale of the Ordinary is but matter in Fact and not matter of Record nor are the sentences of divorce and the like in the Spirituall Court Iudgements or matters of Record as hath beene oftenheld Of the Relation of Probate and Refusall AS for this last Point both the Proving and the Refusall shall have Relation to the death of the Testator as I take it to divers purposes So as to the Proving saith the Lord Dyer expresly and confidently in Greisbrooke and Foxes Case and the resolution also of the Case proves it For there Administration being committed be fore any Will proved or notified to the Ordinary as it should seeme the Administrator sold some of the goods to I. S. and after the Executors proving the Will brought an Action of Detinue for those goods against I. S. who pleaded this Administration and sale and thereupon the Executor demurred and Judgement was given for him as having by the proving of the Will disproved the Administration ab initio but it is true that judgement was given onely by two Judges one being absent and th' other dissenting in opinion yet I thinke it was right and according to Law and that Refusall shall have the like relation else could not the Administration relate to the death of the Intestate as it doth to some purposes expressed in divers Bookes viz. to have an Action of Trespasse for goods taken before Administration committed and to have a rent growing payable in that meane time c. What Fees to be paide upon Probate or for Copyes of Wills or Inventories Per Stat. 21. Hen. 8. Cap. 5. 1. Where the goods amount not above five pound only sixe pence to the Scribe 2. Where they be above five pound but under forty pound two s. sixe d. to the B. B. twelve d. to the Scribe 3. Where above forty pound to be taken but two s. sixe d. to the B. B two s. 6. d. to the Scribe or râ— d. for each ten lines of ten inches long at the Scribes choyce THese Summes are to satisfie both for Proving Registring Sealing Writing Praysing making of Inventories giving Acquittances Fines and all other things concerning the same Where Lands is given to be sold neither the money raised nor the profits thereof shall be accounted as any of the Test ators goods or chattells saith the Statute Note that the Will is to be brought with waxe thereunto ready to be sealed and proofe to be made of the Will according to common Custome For making the Inventory the Executor is to take or call to him two Creditors or Legatees of the Testator and doe it in their presence or in their absence or refusall two honest persons being the next of his kinne or in their default two other honest persons The Inventory is to be indented and one part left with the Ordinary and the other to remaine with the Executor The Executor is to make oath for the truth of it For a Copy desired by any either of a Will or Inventory no more is to be payed than before is allowed for the Registring with the like election to the Scribe or Register as is above-said Master Swinborne saith that an Executor is to sweare and if it should be thought fit to be bound to make a true account when hee shall beÌ„ thereunto lawfully called by theÌ„ Ordinary Of this account see him pag. 274. and of accounting some Bookes of the Common Law make mention as 13. of Edward the third Fitzh Exec. 91. Where Trew faith that of a thing in action no account shall be before the Ordinary but Parn. seemes of a contrary opinion And else where it is said that where a debtor is made Executor to the Debtee he shall yet account before the Ordinary for this debt yea as of money in possession saith one which others denied An Executor by wrong shall be drawne to account before the Ordinary saith Moyle Justice But saith S. German he may not force any to account against the Order of the Common Law not shewing what that is And â—emp Edw. the 4. it is said at least by the Reporter that after the will proved the Ordinary hath no more to doe quod non credo Also of the oath of an Executor divers Bookes tell but not to such purpose as Swinb but truly to performe the Will What things shall come unto Executoâ—s and be Assets in their hands and what not THe things which shall come to Executors are of great multiplicity and would make a large and confused heape if tied together in one bundle or lumpe I will therefore divide and sort them out in parts after the best manner I can First we will divide theÌ„ into things possessary or actually in the Testator and things in action or not actually in the Testator Secondly the possessary into chattells reall and personall or as some lesse properly expresse it moveable and immoveable Of Chattells reall possessary THese may be divided into two kinds viz. living and not living the living are not many and various 1. The wardship of the body of another be it by reason of a
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 should thus be preferred before any subjects viz. for that the treasure Royall is not only for sustentation maintaining of the Kings household but also for publick services as the warres c as appeares by the statute 10. Rich. 2. cap. 1. And therefore it is as I conceive that Bracton saith of the treasures or revenues Royall Roborant coronam they doe strengthen or uphold the Crowne And for the like reason as I think did God inact touching the possessions of the Crown that if they were given to any other then the Kings owne Children they should revert and come back to the Crowne the next Jubilee which was once in fifty yeares sed de hoc satis But this priority of paiment of the Kings debt before the debt of any subject is to be understood onely of debts by or upon record due to the King and not of other debts If any ask how the King should have any debts which shall not be of record since by the statute 33. of King Hen. 8. cap. 39. it is inacted that all Obligations and specialties taken to the use of the King shall be of the same nature as a statute staple To this I answer that there may be summes of money due to the King upon wood sales or sales of Tinne or other his minerals for which no specialty is given so also of amersements in his Courts Baron or Courts of his Honours which be not Courts of record The like of fines for coppyhold states there So of the money for which straies within the Kings Mannors or liberties are sold Also as the law hath lately beene taken and ruled in the Exchequer even debts by contract due to any subject are by his outlawry or attainder forfeitable to the Crowne Yet neither these nor those due to such person outlawed or attainted by bond bill or for arrerage of rent upon lease is or can be any debt of record untill office thereupon found for although the outlawry or attainder be upon record yet doth it not appeare by any record before office found that any such debt was due to the person outlawed or attainted Thus are not these debts to the Crowne to have priority of payment before the subjects debts though the Kings debts of record are so to have so that if a subject to whom the testator was indebted by specialty sue for this debt the executor must pleade that the testator dyed indebted thus much to the King by record more then which he left not goods to satisfie if the truth of the case so be for if there be sufficient to satisfie both then the subject creditor is not to stay for his debt till the Kings debt be levied And if the subject creditor sue execution upon a statute so that the executor hath no day in Court to pleade this debt to the King then is the executor put to an audita querela wherein he must set forth that matter and so provide for his owne indempnity But what shall we say of arrerages of rent due to the King surely where it is a feefarme rent or other rent of inheritance I see not how it can come under the title of debt since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due and I find that the Lo. Dyar M. 14. Eliz. said that the King could but onely distraine for his rents and not otherwise levie them of lands or goods and that the King by his Prerogative may distraine in any other lands of his tenant our bookes tell us but no more Yet I know it hath beene otherwise done of late in the Exchequer which if it have beene the ancient and frequent use of the Exchequer it will stand as law though unknowne to the Lo. Dyar Now rent upon a lease for yeares differeth from the other since for the arrerages thereof an action of debt lyeth but how can either of these be debts of record when the not payment may be either in the Court of Exchequer or to the receiver generall or particular how then can there be any certain record of the not payment so as to make any certain debt upon record Wee know statutes have beene made to make the lands of receivers subject to sale for satisfaction to the Crown and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffes the statute of Westm 1. cap. 19. provides remedy for the King against Sheriffes not answering the debts of the Crown by them received so as the Kings Farmer or debtor may have paid his rent or other debt and the Crowne have not yet received it Of Fines and amercements in the Kings Courts of Record there is no doubt but they are debts of record Come we now to the debts of subjects and first those of record touching which I shall not be able to hold so good a method and so well to handle things by parts as I would for that the parts so stand in competition one with another for precedencie as that they must of necessity thereabout conflict and interplead one with the other and contest one against the other yet for the Readers better ease and ability to finde out that which may concerne him in his particular case I will in the best sort I can single out these things into severall parts and place them in severall roomes or stations First considering how it shall stand between one judgement and another had either against the executor or testator Secondly how betweene judgements and statutes or recognizances Thirdly how betweene recognizances and statutes Fourthly how betweene one recognizance and another Fifthly how betweene one statute and another adding to each some observations incident Now next to the debts of the Crown are judgements or debts recovered against the testator to have priority or precedencie in payment as being of an higher nature or more dignity than any other for that statutes and recognizances though they make debts upon record yet are they begotten but by voluntary consent of parties whereas in every judgement there hath beene a course and work of Justice against the will of the defendant as is presumed and this in a court of justice and the records of such judgements are entred in publike rolls not kept or carried in pockets or boxes as statutes and untill inrolment recognizances are Therefore executors must take heed that judgements against their testators before debts any other way if they have not sufficient for both be first satisfied lest they draw the burthen of this debt upon their owne backs Now their way to help themselves being sued or pursued for other debts is the same before delivered touching debts upon record to the Crowne viz. by plea where they may plead as in Sâ—ire facias upon a recognizance or suit upon band and by Aâ—dita querela where they cannot plead as when execution is sued
upon a statute And if they had no warning in the Scire facias but upon nihil returned the judgement passed there also the executor may bee releeved by audita querela because there was no default in him that hee did not plead or set forth the judgement upon the suit in the Scire facias Nor will it bee any plea for the creditor by statute to say that his statute was acknowledged before the judgement and so is more ancient for a latter or more puisne judgement is to bee preferred before a statute in time precedent But if this judgement be satisfied and it only kept on foot to wrong other creditors or if there be any defeasance of the judgement yet in force then the judgement wil not availe to keep off other creditors from their debts And thus much touching debts by judgement viz. how they stand in priority before other debts by statute or recognizance Now to see how they stand among themselves let this be observed viz. that between one judgement and another had against the testator precedencie or priority of time is not materiall but he which first sueth execution must be preferred and before any execution sued it is at the election of the executor to pay whom he will first yea if each bring a Scire facias upon his judgement the executor may yet confesse the action of which he will first notwithstanding the Scire facias was brought by the one before the other In this Scire facias the defendant may plead generally that he hath fully administred before the Scire facias brought without shewing that he did administer in payment of debts of as high nature yet that must be proved upon the evidence else the triall will fall out against the executor Thus have I delivered the most materiall things in my apprehension touching debts by judgement yet thereabout I will adde for the better information of the Reader not studied in the Law these few things First that what hath been said is only to be understood of judgements against the testator and not of any against the executor himselfe for of those being but debts by specialty at the time of the testators death we shall speak after Secondly what is said of the testator in case of an executor immediate is likewise to be understood of the testators testator in case of the executor of an executor for where A. makes B. executor and B. makes C. executor there the goods which came from or were left by A. be not in the hands of C. lyable to judgements had against B. Nor on the otherside are the goods of B. in the hands of C. subject to the judgements had against A. And the like is to be understood of statutes recognizances and bonds as elâ—ewhere is somewhat touched Thirdly Recoveries or judgements by meere confession without defence are yet of the same nature and to have the same respect as other recoveries upon triall or otherwise for although they may seeme to be but of the nature of recognizances which be debita recognita yet doe they differ from them in that here a debt is demanded by a declaration which is intended true that therefore the defendant cannot deny it but in case of a recognizance it is not so for there usually no action is entred nor debt demanded Fourthly the foreshewed respect to debts by judgement is not to be inclosed within Westminster Hall-and be restrained to the foure Courts there but may and must extend it selfe to judgements in other Courts of Record viz. in Cities and Townes Corporate having power by Charter or prescriptioÌ„ to hold plea of debt above forty shillings as in London Oxford c. For although there execution cannot bee had of any other goods than such as be within the jurisdiction of that Court yet if the Record be removed into the Chancery by Certiorari and thence by Mittimus into one of the Benches so execution may be had upon any goods in any County of England Fifthly in case where the testator was bound in a recognizance and a Sci. fac brought against him and thereupon judgement given Although this judgement be not quod recuperet as in case of actions of debt but quod habent exetiâ—nem yet since execution is the life fruit and effect of all judgements this may now well stand for a debt by judgement as I take it Of Recognizances and Statutes NExt unto debts by judgement are those by statute or recognizance to bee regarded by the executor And because I find no difference of priority or precedencie betweene these two I therefore ranke them together yet one reason of preferment given to judgments before statutes in Harisons case viz. that the one remains a record upon the roll in the Kings court whereas the other being carried in the pocket of the counisee is more private This I say should give priority also to recognizances before statutes as also another reason for that statutes are not properly records but obligations recorded yet do I not find that this makes a difference for priority of payment And indeed the statute is the more expedite remedie since thereupon execution may be taken out without any Scire facias or other suit which cannot be in the case of a recognisance for there if a yeare be past after the acknowledgement no execution can be sued out against the partie himselfe acknowledging it without a Scire facias first sued out against him And if he be dead then though the yeare be not past yet must a Scire facias be sued and thereupon the executor defendant may plead some plea to hold off the execution for a time But this notwithstanding the executor may satisfie the recognizance before the statute at least if he doe it before execution sued thereupon for they standing in equall degree it is at his election to give precedencie and preferment to whether he will Neither is it materiall which of them were first or more ancient nor between one statute another doth the time or antiquity give any advantage as touching the goods though as touching the lands of the conusor it doth but as for his goods in the hands of his executor whosoever first getteth hold of them by his execution shall have the preferment And before suing of execution the executor may give precedence or preferment to whom he will But now some may object that there is no course nor writ of execution for any such counisee against the executor and if so then statutes merchant and of the staple are in vaine spoken of and it is true that Master Brook after Chiefe Justice of the Common Pleas in his new Cases professeth that he knew not any remedy for the creditor out of the goods of the conusor after his death But if this should be so the Law were very defective since the substance of many especially of marchants for and among whom
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
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
a Testatum the processe may be directed into the right County But in the said case it was replied to the plea of fully administred that there were assets in Essex the action being laid in Middlesex and yet as it seemes by the booke the triall was to bee by a Jury of Middlesex which saith the booke may find the assets in Essex but there the plea was demurred upon and held a good plea which proves that although the transitorinesse of the assets make them subject to the notice of a forren Jury yet is it not like an act transitory and not locall for that must be pleaded to be done in the place where the action is laid though in truth not so But had issue been joyned upon the point me thinkes it should be tried in Essex where the assets be laid the rather for that perhaps they may be reall chattels viz. lands leased to the testator or other lands of him appointed to bee sold for payment of debts which as heretofore hath been held a Jury of another County cannot find Besides although such a forren jury may find other moveable assets yet is at their election they are not thereto compellable as else-where is holden Here then may be the difference viz. that if the assets be found to be in the County where the triall is there the Sheriffe of that County cannot returne Nulla bona without adding that the executor hath wasted but if there be no verdict at all touching assets judgement passing against the executor upon a demurrer confession Nihil dicit or the like there may the Sheriffe make such a returne of Nulla bona testatoris without returning any devastation and so also where the verdict either findeth assets generally not finding in what place they bee or expresly findeth them to bee in another County as a little before wee found may bee done by a jury of London of assets in Essex In King Henry the eight his time as a little after the said case of Chichester is by the Lord Dier reported the Sherife returning upon the Fieri facias that the Executors had no goods of the Testators did ad in the same returne that one of the two Executors had wasted and thereupon a Scire facias was awarded against him and upon Scire feci returned and default made execution was adjudged and awarded against his goods onely and this course of Scire facias both the Lord Dier as elsewhere I finde it reported and Prisot temp Hen. 6. approved But I am perplexed with doubt what plea the Executor comming in upon the Scire facias could plead for except his deniall of wasting might bee pleaded contrary to the Sheriffes returne and put in issue so as to cause a new triall after a former perhaps preceding judgement which I thinke would not bee admitted then his comming in is to little purpose for ought I can conceive Heere againe it must bee observed that in the case of Chichester the judgement was had upon tryall of fully administred but in thother case temp Hen. 8. it was upon confession which is all one as I take it with condemnation upon Demurrer or non sum informatus or triall upon non est factum the Bond or a release to the Testator or the like Now betweene all these that of Chichester there is a broad difference for there the defendant being convinced by verdit to have assets which if they continue not in his hands in kinde must bee answered out of his owne goods as wasted therefore the Fieri facias to leavy the debt of the Testators goods if any found or in default thereof out of his owne goods is very agreeable and pursuant but in none of thother casess is there any such triall or conviction of the defendants having assets so as it rests aeque dubium whether they have assets or not and therefore it may seeme somewhat hard and harsh to send out such a writ in that case and so should I have thought if I had onely seene the report of Pettifers case But looking into the record and finding the condemnation there to bee by Nihil dicit in effect I cannot uphold any distinction of course in respect of the said difference of cases Nor indeede doth that course there directed presume that the Executor either hath assets or hath wasted them but commands that if assets c. then the leavying shall bee one way if wasting then another way so if neither Nihil fiend CAP. XIIII Of an Executor of his owne wrong TO begin with some definition or description of this man Hee is such as takes uppon him the office of an Executor by intrusion not being so constituted by the Testator or deceased nor for want of such constitution substituted by the ordinary to administer Touching whom we will consider in these parts and with this method viz. 1. What acts or intermedlings of such an one not being executor nor administrator by right shall make him to become an executor by wrong vide 5. more perstat 43. E. cap. 8. 2. In what manner and by what name such shall bee sued specially when another then is executor or administrator or himselfe after such act becomes administrator 3. What acts done by him shall stand firme as if he had been an executor by right How farre hee becomes liable to creditors and how and to whom 5. See a late stat 43. El. cap 8. hereabout As to the first it was in the time of Queene Mary doubted and not resolved whether the onely seising and taking into ones hands the goods of the deceased did make one executor of his owne wrong without any further act And in the bâ—ginning of the last Queenes time the Lord Diar said that the post slion and occupation of or medling with the goods is that which gives notice to Creditors whom they are to sue as executor But doubtles Creditors must looke further before suit for else can they not know whether hee so intermedling bee executor or administrator nor consequently how to found their suit rightly and safely for good successe since a suit against an executor as administrator or against an administrator as executor will prove ruinous and fall to the ground Yea where an administrator sued as executor did not plead that administration was committed unto him but generally denied that hee was executor or administred as executor the Lord Diar held that it must bee found for him yet left it doubtfull but the cleere and safe way had beene to have pleaded the administration c. And in the former case the Lord Dyer said that one intermedling only about the funerall and laying out money therefore an overseer or conductor or hee who hath Letters of the ordinary ad colligend viz. to get and keepe the goods in safety and one who intermedleth by vertue of a will truly made but controlled by a latter
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
is executrix to some other person and in that right hath goods moveable these are not devested out of her because she hath them not meerely to her owne use but as representing the person of another But whether then may she without her husbands licence or assent in respect of her being an executor and for continuation of this executorship make executors and consequently a will or not Hereabout hath been much diversity of opinion Some books generally speake that the wife may make an executor but speak nothing of the husbands assent whether necessary or not Else-where we find it mentioned that if the husband after the wives death countermand some bookes false printed say command the proving of his wives will then it loseth all force or becommeth void and of no value but in this case is no mention in what state this wife stood viz. whether she were executor or not no nor so much as whether she had any thing in action or chatell reall or not so as nothing in particularity can be grounded upon that case But there are expresse opinions that the husbands assent is absolutely necessary even in this case so as without it the wives making an executor shall be meerly void and consequently he to whom she was executor shall now by her death bee dead intestate And of this opinion was Babington chiefe Justice in the beginning of Henry the sixt his time Yet contrary hereunto was the opinion of Fineux chiefe Justice in the time of King Henry the seventh viz. that where the wife is an executor shee may also make a will and an executor without any consent or assent of her husband And to this opinion doth Master Perkins after consideration of the bookes on both sides incline But some will say that since all this in the late Queenes time this hath been contrarily resolved viz. in the case between Andrew Ognell plaintiffe and Vnderhill and Apleby defendants in the end of which Case it is in expresse termes said to have beene then resolved that a femme Covert or married woman could not make an Executor without the consent of her Husband To this I answer that this Case is to bee construed with relation Ad materiam subjectam viz. to the matter and point in question and under consideration which was that state of a woman whereof wee have before spoken viz. one having things in action debts or duties to her belonging aâ— therein particular it was arrearages of rent due to the woman before marriage As for the point of a woman executor to another person it was never in that Case under disceptation no nor once mentioned in the debate or arguments thereupon Now considering the very forme and phrase of judgements at the common Law which are thus viz. Ideo consideratum est per Curiam c. not Adjudicatum est that is it is considered by the Court not in expresse termes that it is adjudged This I say well observed as to mee it seemes very remarkable gives us to know that no more is adjudged then is considered of the judgement being contayned and clasped up in the word Consideratum est VVherefore since in Ognells Case the point of a woman coverts ability in Case where shee is an Executor To make a will and Executor hath not beene considered of the eyes tongues nor thoughts of the Judges being not once set upon it It cannot bee that that point is there resolved or adjudged Besides even in a few words expressing as to mee it seemes the reason of that resolution it appeares not to have beene the intent of the Judges that the same should reach or extend to this Case of a woman covert executor for it is added as the reason of the judgement in my conceiving that the administration of the wives goods doth of right belong to the husband which amounts to this in my understanding viz. that where the wives making of a will and consequently of an Executor may bee prejudiciall to her husband and prevent him of some benefit or advantage or tend to his losse and disadvantage there it shall not bee avaylable or effectuall without his assent and therefore not in the Case of her who having debts or duties to her due would by making another to bee her Executor exclude or preclude her husband from that benefit which to him should pertaine as administrator of her goods Now as for the goods debts or credit to her as executor to some other pertayning no benefit could redound to the husband by having such administration of his wives goods for those should goe and bee to the next of kinne of the wives Testator taking administration De bonis non administratis of him if â—hee have no Executor therefore her making an Executor as touching these brings no hurt nor prejudice to her husband and so is out of the reason of Ognells Case Since then it is so and since the Law favoureth wills and it was by implication part of his will who made her Executor that shee should have power to continue his Executorship by making another to succeed therein after her decease for performance of his will why should the Law give to the Husband who can receave no prejudice thereby power to give impediment thereunto for Frustra est inutilis potentia even reason it selfe frames and awards against him in this Case a Quare impedit or rather a Non impediet as to mee it seemes Wherefore to conclude I take it that the opinion of Fineux is good Law in that point of a fâ—me covert Executor though not in the other point where shee onely hath debts or things in action to her selfe due for therein the said resolution in Ognells Case grounded upon good reason gives mee satisfaction to differ from Fineux who making no difference betweene the cases held the Husbands assent needles in both Posito then that the wife of I. S. having debts due to her selfe and being also Executrix to I. D. makes without her husbands assent I. N. her executor and dyeth what shall wee now say shall wee say that as touching the goods and credits or things in action to her as executrix of I. D. pertaining this will stands good and I. N. as her Executor may prove it contrary to her husâ—ands will and that as to the credits to her selfe in her owne right pertayning the will is voyd voyd thereof her husband may take administration Shall she dye both testate and intestate with a will and without a will shall shee have both an executor and administrator why not to severall purposes aswell as where an executor is made onely for one particular thing or one place the Testator may elsewhere dye intestate and so where the executorship is divided as before is shewed and one to whom part is committed will prove the will but the other to whom other part of the executorship is committed will not take it upon him here