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
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
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
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
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
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
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
from the very time of making the lease as either by a contract real of quid pro quo or rather by an operation of law or legall constitution or ancient custome of the Realme without any contract of persons Lastly for that the lessor doth not distraine the cattell therefore or in that respect for that they are or were the goods of the testator but for that hee found them levant and couchant upon the land which must afford his rent or a distrâ—sse for it if behinde so as if they had beene any under tenants or strangers Cattell they might have beene distrained Some may perhaps object this reason why these impounded cattell should be delivered in execution viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt yet by this releefe done to him shall not the lessor lose his rent for that he may at any time after distraine any goods or cattell found upon the ground at any time during the continuance of the lease But here besides the point of delay and stay for this rent which to many is the sole meanes of maintaining their households and families this further is considerable that perhaps the lease may be neere expiring perhaps so highly racked and rented even to or above the value as that the executor having his testators stock taken from it and him by execution will not stock it any more and so the land lying fresh if the lessor shall lose the benefit of his former distres he shall be perhaps without remedy for his arrerages of rent And if the case were of a distres for rent behind after the testators death I conceive though not so strongly for most of the reasons abovesaid that the law would be all one as in the other case for though in this case respect shall not be had to the executors losse upon whose goods the law casts this debt though not the other yet here the point of losse must fall either upon the lessor losing his distresse or upon the other creditor by specialiy or record losing wholly or in part his debt And in respect of this locall tye upon this land for paiment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him and it I think no act that the lessee can do by entring into bonds or statutes or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due but rather any other creditor shall be a loser in his debt Doubtlesse iâ— in barre to the avowrie for this rent due either before or since the testators death the executor will plead that the testator was indebted a thousand pounds by statute recognizance or judgement which is more then all his goods amounted unto it will be no good plea but may be demurred upon What if hee plead so much debt of record to the Crowne surely I doubt whether this plea will be allowed in any other Court then the Exchequer yet if these arrerages of rent shall be levied upon the land so as either the executor must pay it or lose the cattell distrained by a returne irreplevisable and then shall not have sufficient to satisfie the debt to the Crown I see not how he shall well escape when pursued in the Exchequer to make up this Crowne debt out of his owne purse which is hard For this we may pitch upon as a Maxime and principle that an executor where no default is in him shall not be bound to pay more for his testator then his goods amount unto Againe it is a rule that where nothing is to be had viz. justly to be had the King loseth his right and our bookes tell us that the Kings Prerogative must not do wrong Potestas ejus juris est non injuriae nam potestas injuriae non est Dei sed diaboli On the other side it may be said that if land leased come to the King by grant outlawry or otherwise the rent reserved cannot be distrained for and therefore is it not very unreasonable nor incongruent that the Kings interest for his debt should make the distres of a subject to stand by and give place This therefore among other of the premises do I leave as a quaere nor is it altogether unprofitable either for an executor or creditor to know what wayes and passages what cases and contingents be doubtfull and hazardous And if in these unbeaten paths where our bookes and relations have held me forth no light expresse or particular I have erred in mis-resolving or missing to resolve I hope I shall without difficulty obtaine pardon Now let us consider of assumptions or promises made by the testator upon good consideration the performance whereof or making recompence and satisfaction for not performing doth lye upon an executor as before is shewed These therefore are to come behinde and give place unto all the former so as an executor this way or for these sued may pleade debts by specialty rent c. amounting to the whole goods And yet these debts by contract or assumption expresse are to be satisfied before legacies be to be had First because by the common law of the land those are recoverable and so are not legacies next because as our bookes speake it concernes the soule of the testator to have aes alienum all duties and debts to other men satisfied before the debtors voluntary gifts or bequests Also these debts by assumption or simple contract are to be satisfied before the reasonable part of the wife or children to which by custome in some Counties they are intitled see 21. Ed. 4. 21. 2 Ed. 4. 13. 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessity to lay or set forth in the declaration that the defendant hath assets to pay all debts by specialty and this also but if there want the defendant must alledge that in his excuse for else it shall be presumed that he hath assets So also in an action upon the case grounded upon the executors owne assumption to pay his testators debt and yet as the L. Cooke conceives and upon good reason as to me it seemes if the executors so promising had not assets sufficient in his hands to pay this debt promised he pleading non assumpsit may give that in evidence for then the consideration faileth as also if there were no such debt due since the plaintife could not have recovered if he had sued and so his forbearance to sue was no valuable consideration Chap. XIII Of Devastation or Wasting THat which S. Paul of dispensers spirituall who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoyne viz. that they must be found faithfull The same is required of these lesse or inferiour dispensers the executors of mens Wils and
understood with this difference viz. that this payment shall stand as against other creditors but not as against the right executor or administrator for then any stranger might usurpe the office of executor and take from him that liberty and election to preferre which creditor he will in first payment yea might take from the executor power to pay himselfe before other in case there were a debt due to him which were very unreasonable Of addition and alteration by the statute 43. Eliz cap. 8. WEe having considered what the Common law is and willeth in the premises Let us now see what alteration or addition a late statute hath made In the last Parliament of the late Queene Elizabeth consideration being had of subtill getting into mens hands goods of an intestate by deed of gift or letter of atturney from one of small or no ability to whom such subtle contriver hath procured administration to bee committed and so himselfe would stand free from the sute of Creditors the administrator himselfe either not being to be found or not being of any valew to satisfie Creditors It was therefore enacted that every person receaving or having any goods or debts of any intestate or any release or discharge of any debt or duty belonging to him upon any fraud as aforesaid or without consideration of or neere the value except in satisfaction of some just and principall debt to the value of the goods or debts due from the intestate shall be charged as Executor of his own wrong so far as the value of those goods and debts amount deducting all principall iust debt to him due and all payments by him made which a lawfull Executor ought to have paid Heere have wee a touch of all the parts precedent or at least three of them 1. Wee have first a new Executor by wrong though intermedling under the title of an administrator 2. We have a limit of the charge by him incurred sutable to our former expression 3. Lastly we have to him an allowaÌ„ce of debts owing to himselfe or duly paid to others which is more then wee have conceaved allowable to another Executor by wrong CAP. XV. Of pleas by Executors and which bee best which most prejudiciall to them SInce amidst the Plees pleaded by Executors there is such difference as that some induce one kinde of judgement some another some drawingmore losse burthen upon Executors then others Let us consider of the differences so as light may bee taken to choose the safest or fittest for each case If an Executor doe utterly estrange himselfe from the executorship saying that hee was never executor nor ever administred as Executor for that must bee added then if issue bee taken upon this plea and it bee found against him the plaintiffes shall have iudgment to recover not dammages only but even the debt it selfe out of the proper goods of the Executor if none of the Testators can be found to satisfie it And this shall bee thus not onely where it is found that the defendant was made Executor by the will and proved it and so could not chuse but know it but even also where hee had never proved the will whereof hee was made Executor nor ever administred by vertue thereof yea though hee did before the Ordinary refuse to bee Executor of this will or to intermedle with the execution thereof yet if any other named Executor with him did prove the will or did not refuse to bee Executor let such other refuser take heede of pleading that plea. For truth is against the first part of his plea viz. that hee never was Executor and so the verdit which must bee veritatis dictum must needs passe against him and make his owne goods lyable as well to debt as dammages What if no other were made Executor but this onely who refused before the ordinary may hee safely pleade that he never was executor I thinke not since hee so was executor before his refusall that hee might have released all debts due to the Testator and given away all his goods therefore I thinke hee must plead specially shewing his refusall andnot generally deny his being Executour Nay admit hee never was once named made or intended to bee made executor yet having pleaded this Plea that hee never was executor nor administred as executor if it shall bee found by verdict that hee did administer or intermedle as executor the same blow or burthen falleth upon him for then the latter part of this Plea is found untrue yea the whole upon the matter for by his administring hee became an executor of his owne wrong and the deniall of this executorship by wrong or usurpation shall bee as penall to him as the deniall of a rightfull executorship The like Law where the executor pleades a release made to himselfe or a payment of the debt or other performance of the condition made by himselfe Nay I finde in this latter case the iudgement entred generally against the defendant as against another for his owne debt not being executor And the reason why the Law makes these so penall to an executor is because his Plea is not onely false but the falsehood thereof was wilfull since it must of necessity bee knowne to himselfe to bee so And lastly for that all these Pleas if they had proved true had beene perpetuall barres at least against the defendant the first indeede had not beene a barre against another being in truth executor or administrator But if the executor had pleaded a release made to his Testator finding such an one among his writings which yet was either forged or never both sealed and delivered by the plantife as his deed or if hee pleade payment made by his Testator neither of these Pleas found against him shall cause the judgement to fasten upon his owne goods so if hee denyed the Bond or Bill whereupon the Sute is grounded to bee the Testators deede For in all these cases the truth being not knowne to him hee might honestly and reasonably conceive it to bee as hee did plead But what if hee plead fully administred and this bee found against him which rested in his owne knowledge shall not this false Plea expose his owne goods in defect of his Testators to the satisfaction of this debt no it shall not for that though this were a false plea that within his owne knowledge yet was it not a perpetuall â—â—rre for if it had beene so found as was pleaded yet assets coming after to the hand of the Executor the plaintife should then have reliefe and satisfaction out of these since accrued assets If any aske how assets may after come I will give him two or three instances First it may bee by recovery of debts before withholden or of damages for goods taken away or by voluntary payment of a debt not before due for that the time of payment was not come Secondly if the Testator
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
Bâ—â—deridge Wâ—ndsor Noke Anders case 41. Ass p. 15. 40. E. 3. Fitzh Ex. 74. Co. lib. 9. f. 87. ◠〈…〉 Cap. 10. Fitzh Ex. 77. I conceive no difference betweene this and the other cases supâ—a 2. H 4 13. He may by 〈◊〉 Co lib. 11. f. 88. 3. H. 6. 35. Coâ— for arreâ—ages of an account before auditors 11. H 4. 64. 91. 92. 9. H. 6 11. 13. Ed. 1 Câ— lib. 9. f. 87. a. 21. Hen. 8. cap. 5. 1â— Ed. 3. cap. 4. Do. Sâ—u. li. â— cap. 10. M. 33. 34. Eliz the Lady Walsinghâ—ms case in com ba. Tr. 39. Eliz. Lib. 1. 21. E. 4 21 22. So must it bee pleaded M. 33. 34. Eliz. And must plead the record in certain as was held in the case of the Lady Walsingham M. 33. 34. Eliz. but it sufficeth to say by a record of the Exchequer as was held Tr. 39. Eliz. in b. reg Co. lib. 5. f. 28. So Wray and Gaudy inter Bond Bales 28. Eliz. vel circiter Yea though a writ of Error by the executor to reverse the judgement yet suffering a statute to bee executed must pâ—y of his own Read Bear-blocks câ—se P. 43. Eliz. Ba. â—e So held in Reades case supâ—a vide 12. H. 7. Kâ—lw 24 25. to like purpose Co. lib. 4. f. 59. So Peâ—iam in com ba. inter Charnock and Worsley 34. Elâ—z vel circiter Co. lib. 5. f. 28. Co. li. 8. f. 132. So held in 15. 16. Eliz. So in the Scire fac by bond against Bales it was held 9. El. 4. 14. 15. Quae. of arrerages of account before auditors without suit for the executors are charged by judgement of the Auditors by 〈◊〉 W. â— judg of record 10. H. 6. 24. 25. Brdeâ—â— 183. Quae. of judgement in a writ of Annuity for arrerages after Before Sâ—i fac not after voluntarily but if levied by writ of Extend sa good Bâ—â— N â— â—â— Stat. Mar. 43 Co. l. 5. f 28. b. H. 40. Eliz. â—ot 119. P. 32. Eliz. â—ot 235. in cont ba. See Co. lib. 5. 91. execution against an Exec upon a statute Semaines case Co. lib. 5. f. 28. So if satisfied though not discharged 28. H. 8. Dy. 32. Doct. St. ca. 10. p. 78. Do. St. p. 78. Quae. If then hee may not pleade this judgement post ult contin against A. as he may pleade it against other suits after coÌ„menced Co. li. intr 148. 269. 149. a. 4â— E. 3. Fitzh Ex. 68. 6. 7. El. dy 232. vide 21. H. 7. Kelw. 74. 5. Hen. 7. 27. So Walmsley inst P. 39. Eliz. in Error al. Sâ—riants Inne Co. lib. Intr. 269. such a recovery by confession is pleaded against another and admitted good fo 148. 149. Do. S. p. 78. b. So also was it â—ayd Tr. 29. Eliz. See â—3 R. 2. Bro. Pledges 31. Attainder of the party distraind shall not take away the distres Vide Dyeâ— Vid. Bro. Pledg 31. So Bracton Not resolving Co. lib. 9. fo 88 b. Doct. Stu. lib. 2. cap. 10. 11. Co. l. 9. fo 90. b. Pinchons case fo 94. Banes case 13. E. 3. Fitz. 91 Yeâ—â—on the other side if an execut by payment of an 110 pounds get in a fâ—rfeited bond of 200 pounds it shal be an administrat but of 110. pounds 27. H 8. 6. p. Fitz. iâ—st Lib. Intra sol 327. Kâ—lw rep â—ol 23. So. 11. H. 6. â—8 a. 4. El. Dy. 210 a. the writ so issued against the waster only P. 4. H. 8. rot 303. Tr. 34. Eliz. Pas 36. Eliz. Mich. 31. â— 32. Eliz. Tr. 34. Eliz. Tr. 34. Eliz. Mich. 32. 33. Eliz. If upon fully administred pleaded to one vel aliter hee have the advantage of this vastation taking up the whole â—umme wasted quae how the Executor shall relieve himselfe against another 41. E. 3. 31 b. Pas 36. Eliz. in 6. reg 45. Eliz. Pettifers case Co. lib. 5. fo 32 So 9. H. 6. f. 9. See Paston 1â— H. 6. 16. 36. upon surmise that A hath wasted A. Fieri facias may issue against his goods onely If so c. So lib. Intra f. 11. Co. lib. 5. 32. 2. El. Dy. 185. Woodw and Chichesters case 11. H. 6. f. 38. 28 H. 8. Dy. 3. Yea Co. lib. 6. f. 47. 46. Assets in Ireland or else-where beyond the sea may bee found by the Jury where the action is laid For the pl. may if he will suggest the being of assets in a forren County and this is usually done See lib. Intr. 11. a. Action upon the case for a false returne of Devast contra sacram sui debitum 28. H. 8. 2. Ma. Bro. Attaint 104. and 10. Eliz. Dyer 271. Because locall and fixed otherwise held 3. Jac. in com b. Co. lib. 6. f. 46. 47. 22. E. 4. 9. and 2. Ma. Bro. Att. 104. 18. H. 7. Kelw. rep 51. a. So held P. 31. El. in scaccar So if the proces for execution goe into another County than where the verdict found as the diff was held in Scaccar 31. El. 28. H â— Dy. 30. b. Pas 4. H. 8 rot 303 4. El. Dy. 210. But 2. H. 6. 12. without any Sci. fac upon the devast returned A capias was awarded by the court see 9. H. 57. Bro. Ex. 57. lib. Intr. 323. A Fieri fac absolutely without condition So. 9. H. 649. 50. A manu-script report 36. H. 6. f. 3. Mordant 12. H. 7. Kelw. rep 24. but vavasor just and all thother serjeaÌ„ts â— contra 2. El. D. 185. Co. lib. 5. f. 32. Mich. 41. El. rot 2441. Co. lib. Intr. 269. b. A recovery of debt precedent was pleaded Pl. replied nul tiell record def would not maintaine his plea. Ideo condemp If neither hee must so returne and doe nothing 1. And 2. P. M. sod Dy. 105. b. 1. Eli. Dy. 166. 167. So also Balâ—â— 50. Ed. 8. 9. 13. 14. Eliz. Dy. 305. 306. 1. Eliz. Dy. 166 167. see lib. Intra f. 322. b. 21. H. 6. 28. 10. H. 7. 28. Yet lib. Intra 322. b. where he confessed about funerall he traversed aliter Lib. Intra 312. where by letter ad collig Hee traversed Absq hoc quod Exec. 21. H. 6. 28. Lib. Intr. 322. 8 and 9. Eliz. Dier 255 256. He sold blended corne but there hee pleaded not the speciall matter 1 And 2. P. Ma. Dyer 105. 21 H. 6. 28. 33 H. 6. 31. 1 Eliz. Dy. 166 Tr. 37. Eliz. by Fâ—nner Just If one doe any such act as puls the property out of the executor he is become an executor by wrong If the goods be aliened by fraud he who takes them after the executors death is an executor by wrong Tr. 37. Eliz. L. 5. E. 472 a. Tr. 2. Jac. in com b. Co. lib. 5. 33 34. 1 El. D. 166. b. H. 20. 7. 5. 50. Ed. 3. fo 9. Tr. 3. Eliz. 2. Point L. 5. E. 4. 72. Co. lib. 5. 30. 31. 33. b. 21