Linguistic DNA - Concept Modelling Demonstrator

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	debt_n	executor_n	testator_n	1,390	5	12.7600	5	false

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B13659	The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.; Parallele or conference of the civill law, the canon law, and the common law of this realme of England. Part 2	Fulbeck, William, 1560-1603?	1602 (1602)	STC 11415a; ESTC S102691	206,828	373

in this consorteth with the ciuill law for it is a good plea for the executor to say that hee had fully administred before he had notice of the writte of the plaintife g 7. H. 4. â—0 Plowd com 277. for though hee doe pay debtes vpon contractes the writte depending against him vppon a bonde whereas hee had no notice of the suite he shall not bee in such case charged h 2. H. 4. 21. And 3. H. 6. in an action of debt vpon an obligation of twentie pound brought against executors they pleaded riens enter maines that they had nothing in their hands and it was founde by verdict that they had tenne pound in their handes wherefore the plaintife had iudgement to recouer so much as was found of the goods of the deade and the dammages of the goodes of the executors for their false plea i 3. H. 6. 4. But in Dauises Case in the Commentaries it was otherwise ruled that nothing should bee put in execution vpon such a plea but onely the goodes of the dead k Dauis C. com 440. But in a Fieri facias vpon a recouerie against executors the Sheriffe returned a deuastauerunt wherefore the Court did graunt a writte to haue execution of the goods of the dead and if there were no such goods then of the goods of the executors l 11. H. 4. 70. And 4. E. 3. in an action of dette brought against the executors it was found that they had fully administred and the opinion was that the Iurors should set downe in certaine how much they had administred because they shall not bee charged but onely according to that which is found by inquest m 40. E. 3. Statha tit executors But it was said 34. H. 6. that when the executors doe plead fully administred but onely for so much their plea is found the plaintife shall haue iudgement to recouer all his dette but he shall not haue execution but onely of the goods in their hands n 34. H. 6. stath tit Execut. But it is good to bee considered what may properly bee saide assets in the handes of the 9 What may properly be said to be assets in the hands of the executors executors if the executors doe merchaundize with the goodes of the testator the increasall of them shall bee assets in their hands and shall charge them and they cannot plead that they haue fully administred when they haue such assets o 11. H. 6. 35. per Bal. And if executors doe sell the goodes of the testator and doe buy them againe they remayne in their handes as assets because they were the same goods which were the testators p 18. H. 6. 4. But then it seemeth that the money which they had for the sale of the goodes was wasted by them and not conuerted to the vse of the testator for otherwise there is no reason but that they should haue a propertie in them to their owne vse for if the executors pay the debtes of the testator of their owne goodes they may retaine the goodes of the testator to the value in their handes to their owne vse q 6. H. 8. 2. Dy. But it was held by M. Fitzherbert 27. H. 6. that where a man is indebted 40. pound to one and 30. li. to another dieth and hath but 40. li. and his executors or administrators agree with the creditor of 40. li. for 10. li. and haue an acquittance of the 40. li. yet the thirtie pounds which remaineth in their hands shall bee assets r 27. H. 8. 6. per Fitzh And so a gage being ransomed shall bee assets in their handes but according to M. Frowikes opinion it shall not bee assets if it were ransomed with their owne money Å¿ 20. H. 7. 2. But as M. Brooke noteth wel abridging the case abouesaid of 20. H. 7. the money which commeth in lieu of a pledge being gaged to their testator shall bee assets in their handes So it hath beene adiudged that if a man make a feoffement vpon condition that the feoffee shall sell the lande and distribute the money to the vse of the testator whereupon he selleth the land and the feoffor maketh him his executor the money taken for the land sold shall be adiudged assets in his hands t 2. H. 4. 21. Executors 51. 3. H. 6. 3. So if the executors pleade fully administred and it is found for them and after certaine goodes of the testator come to their handes wherefore he which brought the first action of dette bringeth the same against them againe this action is well maintenable u 7. E. 4. 8. per Littlet Danby Nomomath You haue satisfied mee for this point Anglonomoph Now I pray you Codicgnost strayne your endeuour a little to resolue me vpon point of execution to be sued vpon these dettes I haue reade that in ancient time it was a law amongst the Romans that if a man greatly indebted were not able to discharge the dette his bodie was mangled and cut in 1 The rigorous law of the Romanes in their execution for dette peeces and the greatest portion of it giuen to his greatest creditor a lesser to him to whom he did owe lesse and so pro rata x Paul Manut lib. de legi Roma which lawe beside the monstrousnesse of it in such a common weale was verie inhumane for the creditors might if they would in their furie by this law cast the members and partes of the bodies of their debtors to dogges and other brutish beastes so that that the Romanes had not so much care of their Senators gentlemen and citizens as the friendes of Diogenes had of him For when the Cynicke laye vpon his death-bed his friends which were then about him asked him in curteous manner where he wold be buried he thinking perhaps that a man was nothing but a mind answeared them that he would bee buried in the dunghill and they replyed that that would be verie inconuenient for the dogges would then rake him vp and deuoure him Then said he lay some staues by mee to beate away the dogges but they told him that hee could haue no sence in his bodie after his death then quoth he what neede I feare the dogges This was but the glaunce of Diogenes who made more accompt of his scoffe then his state But others more ciuill doe thinke it a great losse shame and indignitie that a mans bodie should not be buried wherefore Lucan sharpely inueyeth 2 The execution of the Romanes greatly to bee reproued because it did depriue men of buriall against Caesar Tu cui dant paenas inhumato funere gentes a Luca. lib. 7. And it is the iudgement of all antiquitie that without verie heynous fault the partes of a mans bodie should not bee debarred from sepulture Romulus though hee had caused to be slaine his brother Rhemus and after his death did continue his fury

with the Ciuill Law in the three sorts of bonds two I haue shewed that our Law agreeth with yours and as to the last it agreeth in the substance of the thing though not in the sound of the name For an action of Dette may by our Law be brought vpon a recouerie or iudgement conteining the dette For if a man recouer dammages in a writ of Wast he may sue a writ of Dette vpon this recouerie if he will l Fitzh Nat. be 122. C. 20. H. 7. 3. And so for dammages recouered in a Redissesin a writ of Aiel Cosinage and a writ of Entre sur disseisin m 43. E. 3. 2. But in that you said that 15. The common Law dissenteth from the Ciuill in not making the redeliuerie of a bond an acquitance the redeliuerie of a writing Obligatorie vnto the obligee is in steede of an acquitance this is not so in our Law For though it be notably well obiected by Fineux 1. H. 7. that there be as manie waies for him to whom a deede is made to dissolue the deede as for him who maketh a deede to make it a deede as where as it is ensealed he may break the seale and whereas it is deliuered as the bond of the partie he may redeliuer it in steede of an acquitance m 1. H. 7. Dones C. per Fin. Yet it is better aunswered by Mast. Keble that a redeliuerie may be either of a deede executorie or a deede executed The redeliuerie of a deede executorie hath some operation in Law n ibi per Keble as if a man deliuer a writing obligatorie as a scroule to I. S. to deliuer as his deede to I. N. vpon a certaine condition perfourmed if I. S. deliuer the scroule back to the bailor before the deliuerie of it to I. N. and before the condition perfourmed the bailor shall not anie way be charged by vertue of this bond But if it had been deliuered at the first as his deede to I. N. vpon a condition perfourmed o Perkins tit Faits Now the redeliuerie of it nequÃ¨ ligat nequÃ¨ soluit worketh nothing because a deede can haue but one deliuerie and if the first deliuerie be good the second is voide if the first be not good the second may be good p 1. H. 6. 4. And so it is of a release executed for if a man be disseised and after release to the disseisor and after the disseisor redeliuereth the deede of release to the disseisee and saith that he will not haue aduantage of it yet this is to no purpose for by the release executed no right may bee demaunded by him to whom the deede is redeliuered but a right may be defended by him who is in possession to whom the first deliuerie was q 1. H. 7. Dones c. per Vauisor Keble But if the disseisee reenter vpon the disseisor and the disseisor bringeth an Assise and hath not the deed of release readie to intitle himselfe to the land the other may still hold possession of the land but then the redeliuerie of the deede of release doth him no good directlie but onelie per accidens because the want of it doth hurt to the disseisor Nomomath Now I pray you resolue vpon 2. Diuision this whether shall the Executor or Administrator be charged in all respects with the dettes and Legacies of the testator or how farre forth they shall be charged For I accompt a Legacie to be a kind of dette Codicgn The making of an Executor which 1. By the Ciuil Law the Executor succeedeth in vniuersum ius desuncti of vs is tearmed haeredis institutio is to appoint one to be an vniuersall successor in the right of all his goodes after his death by his Testament or last will r C. de haere l. 1. which is not of force till the death of the testator but vntill that time it is kept clausum signatum and as Isiodore saith rather according to the truth of the thing then according to the true deriuation of the word as manie times he doth it is therefore called Testamentum quia non valet nisi post testatoris monumentum vntil the testator be laied in his graue Å¿ Isiodor li. 5. And such Testaments must be insinuated to 2. Insinuation of a wil necessarie by the ciuill Law the Officiall or Commissarie of the Bishop of the Dioces within foure monethes after the death of the testator which insinuation is appointed by Law Ad euitandum falsitatem et sciendum veritatem Testamenti t L. iubemus C. de test l. si C. de fideicom But de iure Praetorio though a Testament be not made yet some person may be appointed by the Praetor to administer the goodes u Iusti de bo poss Â§. 1. et ff eo tit And as well the administrator 3. By the Ciuill Law the executour or administrator ought to make an Inuentorie of the goodes of the partie deceased as the executor ought to make an Inuentorie or sufficient Catalogue of all the goodes of the partie in whose right they succeede which shall come to their handes And it is a good and safe waie for them so to doe for if they doe so they shall not be charged further with anie debtes then the goodes of the testator or him that died intestate will extend And such an Inuentorie by our Law cannot be disprooued vnlesse the number of the witnesses that disprooue the Inuentorie be twice as manie in number as they which doe prooue it which are commonly called Prizors uu cum Io. de si instru And the Inuentorie ought to be begun by the Executor within 30. daies after the death of the testator or at least within 30. daies after that he hath notice that he is made Executor and it ought to be finished or consummated within thirtie daies after or at least within a yeare after if the thinges be farre distant and dispersed in remote places and then he shall be charged no further then the goodes will stretch otherwise he shall be charged in solidum for the whole dette d Gazal in verb. Inuentar Canonolog These thinges which you haue proposed are not reiected of vs but are of validitie in our Law Nomomath I pray you Anglonomoph rip vp the particulars of Codicgnostes his late discourse as distinctlie as you can for these things vttered by him are of great importance and vse at this day wherefore I would haue you studiouslie and with care to discusse these things Anglonomoph In the substance of these matters 4. The power of the Executor dependeth wholie vpon the will of the Testator by the common Law which he hath mencioned I doe not see at the first glimse any discordance in our Law but in the circumstance there will be some dissonancie and variance First to speake of the power of an Executor by our Law it dependeth wholie

vpon the will and designement of the Testator For if a man make three his executors and all refuse the administration but one yet the others shall be executors by vertue of the will and may administer when they please and an action ought to be brought in all their names otherwise the writ shall abate And if a man haue goodes in diuerse Prouinces he may make his executors of his goodes in one of the prouinces and die intestate as to the other goodes And if the Ordinarie doe commit the administration of the goodes which are in the other prouince vnto him now is he both executor and administrator e 35. H. 6. 36. And 4. H. 6. in an action of Dette brought by the Executors vpon an Obligation the defendant demaunded oier of the Testament and he had it and the plaintife shewed forth a Testament nuncupatiue being thus in effect Memorandum quÃ²d A. constituit B. et C. executores suos and this was vnder the seale of the Ordinarie and the opinion of the Court was that this was sufficient matter to maintaine the action f 4. H. 6. 1 and if there be not speciall caution to the contrarie By our Law likewise the executor doth vniuersally succeede in the right of the goodes of the dead and he may enter into the landes of the testator to take the goodes g P. 9. H. 6. Stath tit Execut ou Entr. But if a man deuise goodes to one and die the deuisee cannot take the goodes without the deliuerie of the executor h 37. H. 6. 30. 11. H. 4. Execut 58. per Thirn And the executors do so fullie and viuelie represent the person of their Testator that if an action of Dette be brought against two executors and the one of them pleadeth misnosmer and the other pleadeth that he is administrator and not executor the opinion of the Court was that they should not haue both pleas because they did represent their testator who could haue but one onely plea i 37. H. 6. 30. 7. H. 4. 13. But it seemeth by the booke of 8. Ed. 4. that they shall haue seuerall pleas and the most peremptorie shall be tried k 8. E. 4. 24. Execut. 31. And an executor or administrator may haue a writ of Error vpon a iudgement giuen against their Testator concerning dette or dammages l Fitzh Nat. bre 21. M. And that a testament and a deuise 5. According to the coÌ„mon Law a Deuise is of no force vntil the death of the deuisor are of no force till the death of the deuisor may appeare by diuers good authorities in our Law m Littlet lib. 2. c. 10 sect 8. 27. Ass pla 60. And whereas Codicgn hath said that by their Law there must be an insinuation of the will to the Bishops Officiall 6. The common Law agreeth with the Ciuill in the insinuation of willes doubtles it is so in our Law for there must be such an insinuation and probate of the will before the executors may bring anie action of Dette n 7. H. 4. 18. 10. Eliz. Com. Brets c. et en Greyst case And the Ordinarie may sequester the goodes of the dead vntill the executors haue prooued the Testament And the Metropolitane may do the same if the goodes be in diuerse dioceses o 9. E. 4. 33. But our Law differeth from the Ciuill Law in this that the administration of the goodes of him that dieth intestate is not committed by the Praetor but by the Ordinarie For if a man be indebted and die intestate or if the Executors of one that hath made a Will refuse to be executors whereby the goodes do come to the handes of the Ordinarie the creditors may haue a writ of Dette against the Ordinarie by the statute of Westminster 2. cap. 19 p Fitzh Nat. bre 120. D. and in this case he must be sued by the name of Ordinarie q 9. E. 4. 34. But after administration committed the Ordinarie shall not be sued r 8. Elizab. 247. Dy. And if Sede vacante the Deane and Chapiter be gardian of the spiritualties if a man doe then die intestate and the Deane onelie administreth the goodes it is sufficient for the Creditors to vse an action against the Deane onely Otherwise it is if the Deane and Chapiter as Ordinarie should vse an action Å¿ 17. E. 2. BrÌ„e 822. And so if the Ordinarie make his executors and 7. That an action of Dette will lie against the Ordinarie die the Creditors may haue an action of Dette against the executors of the ordinary t Fitzh N. B. 120. D. Vieux Nat. br 61. though 11. E. 3. in the title of Executors be directly to the contrarie u 11. E. 3. Executors 77 But a man shall not haue an action of Dette to charge the Ordinarie as Ordinarie vnlesse he doe administer in his owne dioces uu 12. R. 2. AdministrÌ„ 21. But the Ordinarie can not haue an action of Dette against such which were indebted to the partie intestate because that action is giuen to the Administratour and the Ordinarie may commit the administration of the goodes when it pleaseth him But before the statute of king Edw. the 3. ann 31. ca. 11. the administrators could not haue an action of Dette therefore it seemeth before that time the Ordinarie might haue vsed an action of dette otherwise remedie should haue failed a Fitzh N. B. ibid. but the Ordinarie may might at all times haue had an action of trespasse for the goods of the dead taken out of his owne possession b 18. H. 6. 23. 7. H. 4. 18. 11. H. 7. 12. but not for goods taken out of the possession of the partie intestate c 17. E. 2. Briefe 822. But if the Ordinarie without formall letters of administration granted do giue one licence and authoritie to sell the goods of the partie deceased intestate quae peritura essent and he doeth it accordingly he which doth so administer shal be punished as an executor of his owne wrong d 9. Elizab. 256. Dy. neyther can hee commit administration by word of mouth otherwise it is if it bee entred into his register though letters of administration bee not formally drawne e 21. H. 6. 23. And it may come in issue whether he that granteth administration were Ordinarie in the place where the administration was committed as if the village doe extende into two dioceses f 35. H. 6. 46. And it may come in issue whether administration were committed by the Ordinarie And whereas Codicgnost hath also affirmed that if the executor or administrator doe make an Inuentorie 8 The Canon law agreeth with the ciuill in administring the goods coÌ„prised in the Inuentorie according to the testament and dispose the goods comprised in the same according to the testament of the partie and appointment of lawe they shall not bee further charged our lawe

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