shall account the release of him severed is a good discharge to the Defendant as was resolved 48. Ed. 3. 14 15. but this is not a plenary judgement for nothing is recovered thereby but another judgement is to be had after the account which may be against the Plaintiffe so as this release came before any debt or duty adjudged What if the Defendant be had in execution at the suite of the Executor who prosecutes it and escapeth whether may the severed Executor discharge the Sheriffe or Jaylor by a Release I thinke he may not By that above it is plaine that if any one of the Executors Plaintiffes dye the Writ is abated onely where he so dying was before severed opinions have beene different as above appeares So also is it if one of the Defendants Execntors dye Yea if the Plaintiffe Creditor sue A. B. C. as Execuâ—ors where onely A and B. are Executors there by the death of C. the Writ abates or falles to the ground yet A. and B. as I thinke might have pleaded in abatement that they onely were executors traversing that C. was not Executor but the Booke doth not so resolve See 46. E 3 f. 9. 10. As A. and B. above might admit that Writ against them and C. So if the Writ or suiâ—e had beene against A. onely and he so admit it not pleading in abatement the recovery against him alone is good 9. E. 4. 12. One that is Out-lawed or attainted in his owne person may yet sue as Executor because this suite is in anothers right viz. the Testators But he that is excommunicate cannot proceed in suite as Executor because none can converse with him without being excommunicate as a Booke sayes Yet doth not this excommunication pleaded abate or overthrow the suite but make that the Defendant may stay from answering his suite untill the Plaintiffe be absolved and discharged from his excommunication CHAP. X. Of the Possession of Executors or their actuall Having 1. What shall be said so to come to their hands as to charge them 2. What shall be such a getting or going from them as to excuse them WE have before considered what things shall come to Executors and being come shall be Assets in their hands Now for that it is said in Reedes Case that an Executor shall not be charged with or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship Let us now examine what shall be said and accounted such a full and compleate comming to the hands of Executors as shall make them within the reach and charge of Creditors and Legatees viz. For the payment of debts and Legacies As touching debts due to the Testator it hath before beene shewed that untill Judgement and execution had they bee not Assets in the Executors hands Now then as touching other goods or chattels possessory which are of two kindes viz. reall and personall Let us put the Case thus The Testator at the time of his death hath a flocke of sheepe in Comberland Corne in the Barnes in Cornewall Bullockes in Wales fat Oxen in Buckâ—shâ—re Money Household-stuffe and Plate in London a Lease for yeares in Norfolke and his Executor dwelt at Coventry viz. farre from all these places what kinde of possession shall the Law judge this Executor to have in every of these instantly upon the Testators death and before he come where any of the things be either to see or seize upon themâ— In all the particulars above mentioned the Law is all one except the Case of the Lease for yeares which if it be of Land as is most usuall then because it is a setled and immoveable thing the Law doth not reach to it the foote of the Executor to put him in actuall possession for Possessio est quasi pediâ— positio untill himselfe or some for him do actually enter therupon Nor indeed need the Law helpe oâ— supply the want of actuall possession in this Case as in the case of moveables since Land cannot be carried away as goods may and therefore is not subject to purloyning or imbesilment as moveables are But if the Lease for yeares were of Tithes the Executor though in never so remote a place from them shall be instantly upon the seâ—ting out thereoâ— in actuall possession of them so as he may mainetaine an action of Trespasse against any stranger which shall take the Tythes set ouâ— though he nor any for him did ever befoâ—e pâ—ssesse any of the said Tythes or came neere unto them But if the case were of a Lease for yeares of a Rectâ—ry consisting not onely of Tythes but also of Gleabe Lands into which entry may be made as also Livery of season in it then it may perhaps be some question whether such an actuall possession in Tythes shall be given by the Law to an Executor neglecting to enter or not entrying into the Gleabe Land And so I leave the consideration of Chattells Reall Touching things Personall in which the Executor hath such an actuall possession presently upon the Testators death as that he may mainetaine an action of Trespasse against any stranger taking them away or spoyling them though he nor any for him ever came neere them whether yet this shall be such a possession in the Executors and such a comming of these Goods to their hands as to charge them with payment of debts and Legacies yea to make their owne Goods lyable instead of these is a point worthy of consideration And doubtlesse this throughly sifted will prove a case mischievous whether way soever the Law be taken for first it must be admitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator whether the Executor hath resorted he shall be said so in possession as to stand lyable unto the Creditors so farre as they extend in value though after others purloyne or imbesill them Now then if distance of place shall make difference where shall be the bound and limit of that distance and if the Executor may come at a strangers taking or possessing of the Goods it is mischievous to Creditors On the other side if it shall be said upon the Executors to answer for all the Goods whereof the Testator dyed possessed it will be mischievous for them and deterre them from taking Executorship upon them fince much purloyning may be even of money Iewells and Goods by Servants and others about the Testator or where these things be I thinke therefore that if without any fraud collusion or voluntary conniving on the part of the Executors they be prevented by others of laying hold on the Testators Goods so as that they may dispose of them especially if it cannot be knowne by whom they are so purloyned and imbesilled or if they be persons fled or insolvent that then
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
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
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
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
opinion hath beene that these which he hath as Executor should not passe yea the Lord Dyer so held in the late Queenes time with this difference viz. Where the Grantor is named Executor in the Grantee there the Goods which he hath as Executor should passe but otherwise if he be not named Executor in the Grantee and that this opinion is probable will further appeare by that which followeth Secondly the Executor cannot by Will give or bequeath the Goods he hath as Executor and if he dye intestate and Administration of all his Goods is committed to I. D. yet hath he nothing to doe with the Goods which the Intestate had as Executor to his Testator Thus all his Goods reacheth not to his Goods as Executor Thirdly whereas a mans Goods stand liable to the payment of his debts both in his life time and after The goods which a man hath as Executor are not to be taken in execution for his owne debts either upon a Recognizance Statute or Judgement had against him And if such a one dye indebted leaving to his Executor much Goods which he had as Executor these are not Assets in his hands lyable to the payment of his debts but onely for the payment of the first Testators debts or Legacies Therefore a Quo min. brought by an Executor shewing that he was not able to pay the Kings debt because the Defendant detained from him an 100. pound which he owed him as Executor to I. S. was overthrowne for that it could not be intended saith the Booke that the Kings debt could be satisfyed with that which the Plaintiffe should recover and receive as Executor Whereas a Woman being possessed of any Chattells personall viz. moveable Goods all be devested out of her into her Husband by her marriage so as if he dye and she overlive they be not hers againe but her Husbands Executors or Administrators and if she dye all be the Husbands without being Executor to his Wife It is not so of the Goods which shee hath as Executor these still remaine in and to her if her Husband dye and if she her selfe dye for that she hath them as it were in another right viz. as she represents the person of her Testator her Husband shall not have them if he be not his Wives Executor and so Executor to her Testator Lastly whereas the Writ of Trespasse seemes to make no difference betweene ones owne Goods and those he hath as Executor that being a possessory Action or suite grounded upon the possession yet come to an Action of debt which more tastes and participates of the right and there are they differenced for where for my owne debt when I sue the Writ saith Debet detinet viz. that the Defendant owes me and detaines from me that summe Yet when I sue as Executor the Writ saith not debet he doth owe me but detinet onely he detaines from me as admitting that he is not the Debtor to me though he should pay me and so where I am sued as Executor the Writ makes me not a Debtor but a detainer Otherwise where in my owne right I owe and am sued for a debt Accordingly where Judgement in an Action of debt is given against one as Executor it is not generally that the Plaintiffe shall recover against him but he shall recover of the Goods of the Testator and therefore upon this judgement no Capias lyeth against him to inforce him to pay by Arrest of his body because he is not properly debtor but if after it be returned that he hath wasted the Testators Goods out of which the said debt shall be satisfyed Then he having made himselfe a Debtor a Capias ad satisfaciendum shal be awarded against him and then he shall be taken in Execution So also in some cases of false plea pleaded for where the Judgement is de bonis propriis the Plaintiffe may have a Capias ad satisfaciendum and that Judgement is in diverse cases for the dammages although not in many for the principall As for the Capias before Judgement in the meane proces against an Executor that is because of his Contumacy in not appearing upon the former proces The reason of this different interest betweene an Executor and another or betweene the same mans having goods as Executor and others in his owne right as also of the different manner of ones being indebted as Executor and otherwise in his owne right is well expressed by the Lord Cooke in Pinchons case viz. First that the goods which one hath as Executor he hath not in his owne right but in auter droit that is in the right of another meaning his Testator Secondly that Executors are but the Ministers and Dispensors or Distributors of their Testators Goods Of alteration of property in the Executors hands so as some goods become his owne which he had as Executor TO this head or Chapter treating of the difference betweene the Interest in Goods as Executor and others had meerely in ones owne right and to his owne use it is not impertinent to consider how that which one hath at the first as Executor may be changed in property and become the Executors owne to his owne use as other his goods which he had not as Executor Here let us first consider of ready money left by the Testator for since pieces of money viz. shillings groates pieces and halfe pieces of gold cannot bee knowne one from the other it must needes follow that these comming to an Executor from the Testator must in some sort be altered in property so as though the Executor shall be said to have so much in money or value yet can it not be discerned which money in his house was his Testators and which his owne Consequently the Sheriffe upon the fieri facias for a Creditor who hath recovered against the Executor to pay debt owing by the Testator cannot hold CHAP. VIII Of some cases and questions betweene the Executor and the Heire THE Executor may in convenient time after the Testators death enter into the house descended to the Heire for the removing and taking away of the Goods so as the doore be open or at least the key be in the doore and this I understand of the doore of each roome for although the doore of entrance into Hall and Parlor be open the Executor cannot by that justifie the breaking open of the doore of any Chamber to take goods there but onely may take those in the roomes which be open and this is proved as to me it seemes by the case of the chest with evidences which saith the Booke the Executor may take and put out the Deedes delivering them to the Heire viz. the chest being unlocked as I understand it Now a Chamber or other roome within a house locked is an enclosure of better respect then a chest But if the goods be not removed within convenient time the
bindeth the Lessor or his Executor to make recompence Of wrongs done by Testators and whether Executâ—rs be lyable to amends ALthough Executors doe represent the persons of their Testators yet if the Testator commit any trespasse upon the Goods of another or upon his person of Lands no action lyeth for this against the Executor for Actio personalis moritur cum persona So if a Sheriffe Jaylor or keeper of Prison suffer one in execution for debt or dammages to escape though hereby the party at whose suite the Execution was be intitled to an action viz. an action upon the case against such Officer by the Common Law and by Statute an action of debt yet if he so suffering dye for that such sufferance was a wrong of the nature of a trespasse no action lyeth against his Executor for the same And upon the same reason as I presume if one carry away his Corne and Hay without setting out the Tenth although the treble value be recoverable against him in an action of debt yet if he dye before such recovery the action is gone and lyeth not against his Executor No not although the Testator were a Lessee for yeares so as his state came to his Executor Like Law in other penall Statutes as for arresting one at the suite of I. S. without his privity or assent Or for not appearing as a Witnesse being served with a sâ—b poena and having charges tendered and many like yea if a Lessee for yeares commit waste and dye no action lyeth against the Executor for this waste for all these cases are within the rule of actio personalis moritur cum persona and many other like Cases might be put but these may suffice Yet if a Parson Vicar or other spirituall or Ecclesiasticall person doe suffer a ruine or decay of the houses or buildings upon his such spirituall Benefice or promotion and dyeth his Executors are lyable by the spirituall or Ecclesiasticall Law to the successors Suite for amends to the repairing of such spoyle or decay And because some used fraudulâ—ntly to grant away their Goods so as nothing shall be left to their Executors it was enacted temp Elizabeth that such Grauntees of Goods should be lyable to the successors suite for these dilapidations as if they were Executors As for one other case of this nature viz. where an Executor wasteth the Goods of his Testator or an Administrator the Goods of his Intestate and dyeth Whether his Executor be subject to Action for this or not I adjorne the reader to that place where I shall treate of such wasting or devastation by Executors Vnto this head not unfitly may be referred what before is said of Actions against the Executors of the Debtors Heire and the Executors of the Ordinary for the Specialty binding to payment reacheth not to any of these but because their Testators should have payed these debts with the Goods or Profits of the Lands of the Debtor and did not but retained them to themselves therefore for this as a wrong are they suable as I take it So also by the same reason are the Executors of an Administrator chargeable where hee did neither pay the debts nor leave the goods to the next Administrator but otherwise disposed of them Yet an Executor is not chargeable in an action of Detâ—nue nor of account except to the King for the Testators detaining and not paying or answering things received or under his charge And the reason why after account made before Auditors and the Bayly or receiver be found in Arrerages and dye that in this Case his Executor is chargeable is because the auditors are made Judges by the Statute West 2. cap. 11. and so this Arrerage which they have judged is a debt by Record But if the case be put on the other side viz. that the Bayly or Receiver have found in surplussage upon his Account viz. that he hath laid out more in his Lords or Masters businesse then his receipts amounted unto and then his Lord or Master dyeth now shall not he have any action against the Executors for the surplussage because it is out of the purview of the said Statute THE SECOND TABLE Chap. XII Directing the Order and Method to be used by Executors in payment of the Testators debts 1 OF disbursements about the testators funerall 1 2 About proving of his Will 2 3 Payment of the testators debts upon record 3 4 And first debts to the King or Crowne 4 5 Debts by judgment or recovery in some court of record 8 6 Debts by Recognizance and Statutes 11 7 Debts by specialty by Bonds Bills c. 14 8 Debts by Rent reserved upon Leases of grounds farmed by the testator 18 9 Duties by the testators assumpsit or promise or upon simple contract made by him 29 Chap. XIII Of Devastation or Wasting 1 WHat shall be said to be a wasting or devasting and how many wayes that may be done 32 2 Who shall by this Act of devastation be charged to yeeld recompence and make satisfaction 36 3 Who shall reape the benefit or take advantage of this devastation 38 4 How farre the executor thus wasting shall incurre damage or make his owne goods lyable 40 5 By what way or meanes shall reliefe be had upon this point of wasting 41 Chap. XIV Of an Executor of his owne wrong 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 49 2 In what manner and by what name such shall be sued especially when another then is executor or administrator or himselfe after such act becomes administrator 55 3 How farre an executor of his owne wrong becomes lyable and obnoxious to suits 57 4 What acts done to him or by him who is executor of his owne wrong shall stand firme and good as done by or to the right executor 58 5 Of addition and alteration by Statute 43. Eliz. c. 8. 60 Chap. XV. Of Pleas by Executors and which be best which most prejudiciall to them 1 TO plead hee was never executor nor ever administred as Executor 62. 67 2 To plead fully administred 64 Chap. XVI OF judgement against executors owne goods though no plea of the defendant nor devastation doe so occasion and of the severall manners of judgements in severall cases 73. Chap. XVII Of married women and Infants Executors 76. 1 WHether they may make Wills with or without their husbands assent and how where and in what cases 77 2 Whether they may be made executors without their husbands assent or how far their husbands may hinder it 84 3 Touching administration viz. what acts in execution of the executorship they may doe without their husbands or their husbands without them 89 4 Touching Infants and their making or being made executors wherein the severall ages of females 92 The severall ages of males 93 Chap. XVIII Of Legacies 1 WHether any
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
by a wrongfull person and in Suttons case it was expresly held that each Executor should answer for so much as he wasted Now for the fift and last point viz. how and in what manner reliefe shall bee had upon this point of wasting for him to whom it pertaines first this is to bee observed that in case where the verdit passeth directly against the plaintife no devastation can come in question for that no judgement being for the plaintife no writ of execution can issue and therefore if upon the issue of fully administred it shall appeare that there hath beene a devastation which causeth assets to faile then must the Iury finde that the defendant hath assets and not finde a devastation as was resolved in the Kings Bench in the late Queenes time betweene Hankeford and Metford for there the jury finding a devastation viz. a surrender of a lease for yeeres left by the Testator it was held voyd and nugatory and was not regarded by the Court which said that must come in by the Sherifes returne viz. upon the Fieri fac Thus assets being found in the Executors hands judgement is given for the plaintife to recover his debt and to have it levied of these assets nor is this finding of them by a jury against truth though they bee wasted and so not to bee had in kind for the Executor hath them in right since hee hath not rightfully parted from them according to the rule Propossessore habetur qui dolo or injuria desiit possidere As in the case first put this wasting cannot come in question for want of a judgement for the plaintife so also where the judgement it selfe extendeth to the Executors owne goods by reason of some false plea whereof wee shall after consider for since that the consequence and effect of a vastation is but to make the Executors owne proper goods liable to the debt of the Creditor this is altogether needlesse where the judgement it selfe hath layed hold on his goods But now in case where the judgement extends onely to the Testators goods in the Executors hands let us finde the way to releive the Creditor in case the Testators goods bee wasted by misadministring or otherwise for hereabout the right way hath often beene missed and againe easily may bee In the latter end of the late Queenes time this course was taken viz. the Sherife returning generally that the Executor had no goods a surmise was entred that the Executor had converted to his owne use the Testators goods whereupon a writ was awarded to the Sheriffe to enquire thereof by jury or enquest which he did and returned that it was found that the executor had wasted the goods and thereupon a Scire facias was awarded against the executor to shew cause why execution should not be of his owne goods and upon two nihils returned execution was so awarded but a writ of error was hereupon brought And although it were said for defence of that course that it was usuall in the Cōmon Pleas and more favourable than the other course where the Sheriffe only returneth the wasting or is sole judge thereof whereas here it was found by an inquest of Jurors and thereupon a Scire facias awarded yet did the Court resolve the contrary and reverse this execution as erroneous For it was said that upon the Sheriffes returne of nulla bona viz. that there were no goods of the testator to be found the plaintiffe should have a speciall writ of Fieri facias willing the Sheriffe to levie the summe recovered either of the goods of the testator or if it could appeare that the executor had wasted the testators then to levie it of his own goods and this way as was said the executor hath good remedy by action against the Sheriffe if without just cause hee levie it of his goods but the other way viz. when inquest is thereupon taken the remedy failes since neither sheriffe doing according to the inquest can be punished nor the jurors finding falsely are subject to any attaint it being no verdict upon issue joyned but an inquest of office which excludeth also all challenge of jurors And whereas that booke mentions the Sheriffes subjection to action onely in case of his mis-feasance or doing wrong I conceive that hee is likewise suable for omission or nonfeasance in this case viz. for not levying the debt upon the executors owne goods where proofe is made of his wasting And where the booke mentions this Fieri facias to bee in this manner upon the Sheriffes returne in a Scire facias doubtlesse the booke therein is misprinted and should be a Fieri facias for in a Sciri facias the Sheriffe can returne nothing but that he hath warned the party or that he hath nothing where by he may be warned This then is the course there prescribed that first a generall Fieri facias go out and that thereupon the Sheriffe returne generally that the defendant hath no goods of the testators and that thereupon the said speciall writ is to issue yet in the beginning of the late Queens time the verdict passing for the plaintiffe upon the issue of fully administred the Sheriffe was not permitted to make such a generall return of no goods to be found of the testators but was inforced by the Court upon good advisement either to leavy the debt or to returne a Devastavit and so was done at last by the Sheriffes of London much against their minds and therupon went out a writ to leavy the debt of the executors owne goods first into London and after into Devonshire upon a Testatum that the executor had goods there And it was there said that if no goods could bee there found then the plaintiffe might have a Capias to take the executors body in execution or an Elegit for the moiety of his lands But certainly I cannot find except with a difference how this course of inforcing the Sheriffe to doe one of these two can be just as neither could Justice Fulthorp in the time of King Henry the sixth approve it For a Jury of one County may finde assets in another County as was resolved in the time of King Henry the eight which yet was understood of goods moveable and not of lands This then thus being if a Jury of Kent find assets which be in London or Essex how can the Sheriffe of Kent where the action was laid leavy the debt recovered by or out of these goods or since he cannot why should he be compelled to make a false returne of a wasting when the goods remain unspent and unwasted in another County Why rather should hee not bee suffered to returne according to truth that there is nothing within his Countie or Bayliwicke whereof the debt may be levied since even his oath tieth him to make a true returne nor is this contrary to the verdict finding assets generally and this so returned upon
name of executor of the last Will and Testament of the defunct and then if he will deny himselfe so to be he must pleade that he neither is executor nor hath administâ—ed as executor Then the plaintife must prove that he hath administred in some such or the like sort as aforesaid And it hath beene divers times held that where there is a right executor and yet another doth administer by wrong it is at the election of Creditors either to sue them joyntly together or one or both of them severally and by himselfe But if where administration is committed another also administers by wrong these cannot be sued together as administrators for though one may be an executor by usurpation or wrong yet none can come to be an administrator by wrong since no other but such as receiveth that power from the Ordinary can so be therefore in that case there is a necessity of suing him apart and by himselfe who so usurpeth administration by the name of an executor So if A administer the goods of B. not being executor nor administrator and after his such doing and disposing of the goods he obtaineth administration of the goods of B. but the goods left or comming to his hands since the administration committed suffice not without the other debts received or released or goods sold before to satisfie creditors Now if any sue A by the name of administrator he shall have no further reliefe then according to the value or extent of the goods left in or come into his hands since the administration committed and if those be fully administred he shall get nothing If they remaine unadministred but amount not fully to his debt he must want so much of satisfaction And if he will be releeved or satisfied out of the goods before disposed of he must sue A as executor of B and so was it ruled and resolved by Gawdy and Suit Justices in the Kings Bench in the late Queenes time viz. Tr. 30. Eliz. And if this now administrator will pleade in abatement of this action that administration was committed to him and demand judgement if suit shall be against him as executor Then the plaintife must in this replication as I take it set forth the speciall matter viz. how the defendant did administer before administration to him committed But if one to whom administration is committed do devast and this administration is by suit repealed because he was not the next of kinne and administration is committed to another now a creditor who would be relieved out of the goods wasted must sue that first as administrator and not as executor of his owne wrong said Popham Chiefe Justice for he did rightfully administer for that time As for the third viz. how farre this executor of his owne wrong becomes lyable and obnoxious to suite consider we these things first he becomes subject both to the action of the executor who hath right to the goods wrongfully intermedled withall by him though it were before proving of the will and also to the action of the creditor who hath right to the satisfaction of his debt Secondly as touching the measure how farre hee is ingaged doubtlesse hee is not by his wrongfull administring become chargeable with the whole account of the testators debts but only so farre and with so much thereof as the goods which he so wrongfully administred amount unto and this seemes to me proved by the case in the time of Edward the third where the inquest found not only the administring or intermedling by the executor wrongfully but found also by direction of the Court as it seemeth what the value was of the goods so wrongfully administred which had not beene materiall if the administring of a peny had made one as far chargeable as the administring of a pound Besides if it be so that a rightfull executor wasting goods of the testator to the value of twenty pounds shall be no further charged than that value then doubtlesse so shall it be also in this case for both be wrongfull administrations only this difference there is betweene them that in one case the administration is by a wrong person and in the other case in a wrong manner Nay the Lord Dyer doth not sticke to call him who administreth wrongfully or in undue manner expresly an executor by wrong in the case of Stokes against Porter though he were rightfully executor because he did dispose or execute wrongfully As to the fourth viz. what acts done to him or by him who is an executor of his owne wrong shal stand firme and good as done by or to the right executor Suppose first that the deceased were indebted to him twenty pounds who thus usurpeth executorship whether may he pay himselfe or not And this point was in debate in the Kings Bench betweene Coulter and one Ireland executor of Hunt where it was strongly objected that notwithstanding the rightfull executor or administrator might punish him and recover against him for the goods which hee administreth yet another creditor suing him as executor generally and so affirming him to be for there is no speciall forme of writ or declaration to distinguish an executor by wrong from a rightfull executor he stands as against him in the state of a rightfull executor and therefore may first pay himselfe before he pay others and of that mind at the first were Fenner and Gawdy Justices yet did they admit that this payment should not stand good as against the rightfull executor or administrator And Popham and Clinche held strongly that neither should it stand good against other creditors for then every man would rush upon the testators goods and be his owne carver in payment And whereas it was said at the barre that the Lord Anderson upon an evidence at Guild-Hall had ruled it otherwise Popham at another day of debate of the said case related that the L. Anderson did deny that he ever so ruled or was of that opinion and further informed that both he and Justice Walmesly Periam and Clarke Barons did agree with Popham and Clinche in opinion After which Justice Gawdy as also Fenner if I mistake not changing their opinions and concurring with the rest judgement was given accordingly In the debate of this case question was made if such an executor by wrong pay a debt to another creditor by specialtie whether this shall not stand firme and good since hee stands lyable to creditors so farre as the goods by him administred doe amount and it was agreed by the better opinion at least that this should stand firme and good so as if the payment were out of his owne goods he might retaine to himselfe in liew thereof so much of the goods of the testator for here he doth not as in the other case advantage himselfe by his owne wrong Yet that opinion allowing this payment to creditors must as I think bee
might it be yeelded at another so as it were at any time before the day But yet there it was held that if no time of assent were limitted then one expresse deniall or refusall would be peremptory so as the refusall were expressed to the party to whom the assent was to be given otherwise if it were but in speech to or among strangers This and the former case 19. Eliz. give the best light to this point that I remember Now for disablement to assent it was held in the fore-mentioned case of Low and Carter that where a terme is bequeathed to A and after the testators death the executor takes a new lease of the same land for more yeares in possession or to begin presently now by this was the terme left by the testator surrendred and drowned so as it could not passe to A by the executors assent after As to the fifth point viz. in what manner a lease for yeares or other chattell reall may be bequeathed to one for a time with remainder to another it hath been heretofore much doubted when a lease for yeares was bequeathed to one for life or for so many yeares as he should live whether the limitting of a remainder thereof after his decease were of any validity in law or not and this doubt had this ground any state for life in the judgement of law is greater than any terme for yeares therefore when a termer hath by his will given his terme or his house or land which hee so holdeth for yeares to one for life or for so many yeares as he shall live this testator and devisor hath not in the judgment of the law any estate remaining in him and therefore it was thought very hard for him to give or limit a remainder to another But after many arguings and debatings it was in the late Queenes time resolved that such a remainder was good and that if the first devisee died before the terme expired that then he to whom the remainder was limitted might enter and enjoy the residue of the terme As for the giving of part of the years to one and the residue to the other viz. If the terme being twenty yeares the Lessee bequeatheth ten thereof to his wife and the remainder to his daughter Of this no doubt ever was but that it was good for that after the first state limitted there remained a further terme viz. ten yeares more in the Devisor whereof he had power to dispose whereas in the other case after the terme limitted to one for life there remained but a possibility that this life should not take up the whole terme But now put we the case a third way viz. that the termor deviseth or bequeatheth the thing in lease to one child intaile with remainder to another and dieth and the first entreth and dyeth without issue now whether shall the next in remainder or the executor of him so dying have the terme residue and this case came in question and was adjudged about the middle of K. Iohn his reigne in the Exchequer for there Master Hamond holding by lease for yeares from the Crowne the manner of Akers in Kent devised the same by his will to Alexander Hamond his eldest son and the heires males of his body with remainder to Ralfe Hamond another son in like manner and the like remainder to Thomas Hamond and made the said Alexander executor who after his fathers decease elected to take as legatory and after Ralfe Hamond died leaving issue male and making his wife executrix Alexander not having issue male granted the whole terme by deed to B and C. for the behoofe of himselfe and his wife during their lives and after to the use of his yongest daughter whom Sir Robert Lewkenor married then Alexander dying without issue male the wife and Executrix of Ralfe Hammond entred claiming the terme and being kept out sealed a Lease whereupon an Eject firmae was brought and a Jury appearing at the Barre in the Exchequer found a speciall verdict in effect Vt supra And in argument of this Case first the maine question was whether this case were all one in Law with the former where a terme was devised to one for life which remainder over so as by the death of Alexander Hammond without issue male the terme should goe to the next in remainder as in the other Case by the death of the devisee for life dying within the terme it should doe And on the plaintifes part it was urged to bee all one so that by vertue of the Bequeasts supra Alexander had an estate to him and his Executors onely so long as there should bee heires males of his body and hee dying without such issue the terme remained to the Executors of Ralfe who had the remainder in like manner and left issue male which still lived and so that seate of Ralfe yet had continuance For it was admitted by the counsell on that side that the terme could not goe to the issue male of Ralfe according to the words and intent of the will since it was impossible to make a terme to descend without an act of Parlament This therefore they said the Law should worke which was neerest to the intent viz. that after Alexanders death it should goe first to his Executors and assignees so long as issue male of his body doth continue and for want of such issue then to Ralfe his Executors and assignees so long as his issue male should last and therefore in this case the issue male of Alex. failing the executor of Ralfe whose issue male fayleth not should injoy the terme and so judgement ought to be given for the plaintife being lessee of that Executor on the other side it was said by the defendaâ—ts counsell that this Case differeth much from the other Case where the terme or Land held by Lease is given but for life to the first with remainder to another which Case as having beene often resolved was clearely admitted to bee good law for in that case the intent of the Testator might and did take effect But in this case if the land should goe to the Executors and assignees of Ralfe Hammon it must goe against the intent of the Testator whose mind and wil was as it appeares by his word that it should goe onely to the issue male of one sonne after another and not to any Executors Now then since this intent was so contrary to the rules of Law that it could not take effect therefore it must be voyd and so all the words of heires Male standing voyd the Will is to be construed as a sole and absolute gift and bequeast to the said Alex. consequently the terme must goe to his Executors and assignees And for this point resemblance was made to a Case resolved in the Kings-Bench where a Lease was made by indent to A. Habend to A. B. and C. for their lives now because B. and C. could take
nothing it was resolved that A. should not have iâ— for their lives but for his owne onely This Case was said to come very close in reason to the Case in question for as heere the intent of the Lease was that B. and C. should bee estated for their lives and since that could not bee therefore the naming of them should bee utterly voyd and as if they had not at all beene named and their lives shall not stand as a measure for the estate of A. So in thother Case the intent of the will being that the Lease or Land leased should goe to the heires Males of the body first of Alexander and after of Raulphe since this cannot bee therefore the words and name of heires males should stand for a meere blancke and cipher and not to measure out any state to the said Alex. and Ra. and their Executors and assignes Also it was said on the defendants part that an estate for life in the judgement of Law is of so short and uncertaine continuance that if A. make a Lease to B. for his life and after makes a Lease of the same Land to C. for yeeres now shall not this latter Lease bee voyd absolutely for any part of the terme but shall stand in expectance of the death of B. and as soone as hee dyeth shall take effect immediately whereas if the Lease to B. had been for ten yeeres or any like terme then the Lease to C. should have beene voyd for so many yeeres of his terme thus it appeares that a State for life is very momentary in the judgement of Law and not reputed of any certaine continuance so much as for a day but it is otherwise of an estate tayle so as if A. having given Land to B. in tayle doth after without indenture which makes an Estoppell make a Lease to C. for xxj yeeres and then B. dyeth without issue during the terme yet shall not the Lease take effect because it was utterly voyd at the first making For an estate tayle being a state of inheritance may in the intendment and judgement of Law have continuance for ever as appeares both by the Case of Adams and Lambert where it is held within the Statute of Chaunteries which speaks of gifts to have continuance for ever Therefore a reversion upon an estate tayle is no assets nor giveth cause of receipt otherwise in all these Cases it is touching a reversion expectant upon a state for life Againe it was said by the defendants councell that an estate may bee limitted to A. and his heires during the life of B. with remainder to C. as in Chudlies Case was resolved but if Land bee given to A. and his heires so long as B. shall have heires of his body or heires males with remainder over to C. this remainder is utterly voyd So as there is in the judgement of Law a great difference betweene the largenes and continuance of an estate tayle and of an estate for life And if which is worth the observing a feâ— simple cannot afford a remainder to bee drawne out of it after such a gift to one and his heires during the continuance of an estate tayle or of the measure thereof much lesse can a terme yield such large thongs to bee cut out of it as a remainder after an estate to one so long as hee shall have heires of his body or heires Males which is all one And in this case the remainder was held voyd by Baldwin and Shelley though Engl field were of contrary opinion as the Lord Dyer sheweth Further it was said that if such a conveyance by will should stand good it would raise a perpetuity not to bee cut off by any recovery But whereas the case of Hammon hath beene related before so by way of admittance it was argued as a gift and bequest to Al. Ham. and the heires Males of his body with remainder in like manner to Ralfe The truth of the case was that the words of the will were onely to Alexander and his heires Males not speaking of his body and so to Ralfe which as was urged by the defendants counsell made the Case stronger against the plantifes for admit that the former way Alexander should have had but a state determinable upon the continuance of his issue Males yet here not so Since the reason why in Willes such a devise being made the Law should supply the words of the body is onely to make an estate tayle to the issues Male according to the Testators intent Now in this case of a terme for yeares so bequeathed no estate tayle could possibly bee though these words had beene in the will and therefore the motive to the Law fayling no such supply will bee made by the Law since it would bee to no purpose consequently here was neither state tayle nor issues or heires Males of the body on whose continuance this state of Alex. should bee determinable Therefore it was an absolute and totall bequest of the terme to Alexander for ever viz. so long as the Terme should continue for as a bequest to one for ever is asmuch as a bequest to him and his heires so a bequest to one and his heires is as much as if it had beene to him for ever And this Case after sixe arguments on each side at the Barre if I much mistake not was upon argument by the Barons adjudged for the defendant by the Lord chiefe Baron Tanfeild and M r. Baron Bromley M r. Baron Denham who onely heard as I take it one argument on each side made of purpose in respect of his comming into his place after the former arguments being of the contrary opinion and the judgement proceeded upon the point formerly touched that as this case was the state of Alexander did not end by his death and remaine to the Executors of Ralfe Other points were stirred which will bee touched upon other divisions after in this Chapter It will be observed that I doe more fully expresse reasons and points inforced on the defendants part then on the plaintifes whereof let these two reasons bee accepted First That I better could relate that then the other being the first who argued for the defendant and hearing little of that which was by others said on either side after nor hearing the Courts Nec ad hoc conductus nec pedibus fortis Secondly the labour did lie on the defendants part to prove that this Case differed from the common case of devise to one for life with remainder to another Wee are now come to the sixt point viz. that where House or Land held by lease or the proffits thereof or the lease or terme it selfe which in a Will makes no difference is bequeathed to A. for life or for some part of the terme with the remainder to B. and the Executor assenteth that A. shall enjoy his bequest whether this shall enure to B. also since without the Executors assent no legacy can take