Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	error_n	judgement_n	writ_n	2,999	5	10.1124	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A42922	The orphans legacy, or, A testamentary abridgement in three parts ... : wherein the most material points of law, relating to that subject, are succinctly treated, as well according to the common and temporal, as ecclesiastical and civil laws of this realm : illustrated with great variety of select cases in the law of both professions, as well delightful in the theorie, as usefull for the practice of all such as study the one, or are either active or passive in the other / John Godolphin.	Godolphin, John, 1617-1678.	1674 (1674)	Wing G946; ESTC R8268	410,843	382

in Reversion whereof no Entry can be made nor can any man therein be Executor of his own wrong and therefore the first Sale to Burgess before Administration is utterly void At the Kings Bench in Debt all the Justices of England being Assembled at Serjeants Inn it was Adjudged That an Executor of his own wrong cannot pay himself either Debt or Legacy Debt against one as Executor the Defendant pleaded that the deceased died Intestate and that certain of his Goods came to the Defendants hands and that Administration was committed to J. S. to whom he delivered the Goods It was adjudged no Plea in regard he had once made himself chargeable to the Plaintiffs Action as Executor of his own wrong he shall never discharge himself by matter ex post facto Note in an Action of Debt brought against A. as Executor in his own wrong he pleaded ne unque Executor and it was found against him and Execution was awarded against him for the whole debt viz. Sixty pound for his false Plea although in truth he had not intermedled but with one Bedstead of small value and so it was said it was adjudged 40 Eliz. in C. B. in Kitchin and Dixons Case CHAP. IX Of a Child in the Womb made Executor and of an Infant-Executor as also of an Executor and Administrator durante Minoritate 1. Whether the Child in the Womb may be made Executor 2. At what age an Infant-Executor may Administer 3. What Acts may or may not be done by an Infant-Executor 4. To whom the Right of Administration doth belong durante Minoritate 5. Divers Cases Reported in the Law pertinent to this Subject 1. THe Child in the Womb may be made Executor insomuch that when such is so appointed if the Mother bring forth Two or Three Children at that one Burthen they are all to be admitted Executors The Law is also the same as to a Legacy given in like manner which is to be equally divided amongst them 2. Though an Infant how young soever he be may be Executor or unborn as aforesaid yet the Execution of the Will shall not be committed to him until he attain the Age of Seventeen years for Administration granted durante Minoritate ceases when the Infant-Executor attains to that Age of Seventeen years And if it be a Female-Infant and married to a man of Seventeen years of Age or more it is then as if her self were of that Age and her Husband shall have the Execution of the Will and Administration thereof This limitation of Seventeen years comes in by the Canon not by the Common Law 3. Although an Administration granted durante Minoritate doth as aforesaid cease when the Infant-Executor doth attain to the Age of Seventeen years yet betwixt that Age and the Age of Twenty one years such Executor cannot Assent to Legacies howbeit upon satisfaction really made he may release a debt due to the Testator for although his Actings unconformable to the duty and office of an Executor bind him not yet such acts as are conformable to such an office done by him during his Minority that is till he be of the Age of Twenty one years for till then the Common Law holds him a Minor are binding and good in Law 4. Until the said Age of Seventen years the Administration is to be committed to some other as to the Father or to the Guardian or Tutor of the Child who during such Minority cannot sell or alienate save in cases of necessity nor Set a Lease for a longer term than the Executors Minority 5. E. R. Executor of W. R. brought his Action on the Case against T. P. supposing that divers of the Testators Goods came to the Defendants hands c. In which Action the Defendant pleaded a Release from the Plaintiff Whereunto was replyed That the Plaintiff was within Age at the time when he gave such Release and whether such Release was a bar upon a demur in B. R. was the question where it was adjudged that it was a void Release The matter was after removed and brought before the Justices in the Exchequer Chamber by a Writ of Errour where all the Justices of the Common Pleas and the Barons of the Exchequer held That the Judgement in that point was good and that it was no Errour for they said that an Infant-Executor cannot Acquit Release or Discharge a Bond without receiving the money due thereupon otherwise he might through his own folly or ignorance charge himself of his own proper Goods which is not allowable in an Infant to do by a Release or Acquittance without some other Act but if upon a single Bond or Obligation he receive the money and make an Acquittance or Release they held that was good and the Infant should be bound thereby but by other means the Obligation could not be discharged and they all held That when a single Obligation is made to an Infant and he during his Infancy receive the money and make an Acquittance he shall be bound thereby Action is brought against the Defendant as Administrator of J. S. during the Minority of D. Issue joyn'd and found for the Plaintiff It was alledg'd in Arrest of Judgment That the Declaration was not good because non constat whether D. were Seventeen years of Age at the time of the Action commenced at which time the Defendant-Administrators Authority is determined but it was adjudged That the Plaintiff is not to shew or set forth that matter 1. Because the Plaintiff is a stranger to the Defendants power 2. Because the Defendant by joyning issue hath admitted that his power continues Biss makes Katherine his Wife and John his Son aged one year his Executors K. Proves the Will alone and marries the Plaintiff and they without the Son bring Action of Debt as Executors against the Defendant who pleaded in abatement of the Writ that John was made Executor with Katherine and that he was yet alive not named c. The Plaintiff replyed That John was not above one year of Age that Katherine had Proved the Will and had Administration committed to her during his minority c. Whereupon Yelv. demurr'd and adjudg'd for the Defendant quod Billa cassetur for that in truth they are both Executors and ought to be named in the Action and albeit that Katherine by the Administration committed to her durante Minori aetate hath the full power yet the Infant ought to be named for that she hath affirmed him to be an Executor Debt as Administrator to A. L. durante minori aetate W. L. the Executor upon an Obligation and averrs that W. L. was within the Age of Twenty one years The Defendant pleaded an ill Bar and it was thereupon demurr'd but because the Court was resolved upon Conference with divers Civilians openly in Court That the power of an Administrator durante minori aetate doth cease at the

thousand five hundred pound upon a special Verdict the Case was That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together which was paid him by the Command of the Lord Treasurer who had Authority by Privy Seal to make allowance and payment of all Fees due but in truth these were not any due Fees And whether his Executor shall be charged with these Summs so received was the Question And after Argument it was adjudged that he should be charged for it was held That this payment of the money by the appointment of the Lord Treasurer was not allowable for the Privy Seal is not sufficient Authority to dispose of the Queens Treasure unless where it is due and he disposing of it otherwise it is out of his Authority 2. It was held That this money delivered by Authority of the Lord Treasurer who is quasi a Judicial Officer and it was quasi a Judicial Act by him yet it shall not bind the Queen for it was without his Authority and without warrant to make allowance thereof not being due and it is at his peril who receives it or demands allowance thereof For these and other Reasons mentioned in the Report it was adjudged for the Queen against the Defendant and although he were Executor he should answer for it as a debt from the Testator 11 Co. 90. b. Errour upon a Judgement given in an Assumpsit against an Executor upon a Promise of the Testators where the Plaintiff declared That the Testator in consideration of Marriage promised to pay the Plaintiff One hundred pound and for non-performance of this promise brought the Action and Judgement there given for the Plaintiff and this matter was assigned for Errour that the Action lay not against an Executor and all the Justices and Barons besides Clark Baron held it to be Erroneous for this cause For Anderson said The Reason why Debt lies not against an Executor upon a Contract of the Testators is because the Law doth not intend that he is privy thereto or can have notice thereof and he cannot gage his Law for such a debt as the Testator might and when debt will not lie it is not fit that this Action upon a bare Promise should bind him for it stands upon one Reason And if these Actions should be allowable it would be very mischievous wherefore the Judgement was reversed Q. Whether a Recovery in this Action against an Executor is allowable against a debt upon an Obligation if it should be an Administration for then it would be mischievous to Creditors and if it should not be an Administration it would then be mischievous to Executors that they should be charged therein and not have allowance thereof against other Creditors for it may be that at the time of the Recovery they did not know of other debts Note that this Term was given the like Judgement betwixt Griggs and Helhouse in an Action brought against an Administrator upon a Promise of the Intestates to pay money c. Debt against the Defendant as Administratrix of J. S. upon plene Administravit pleaded it was found by Verdict That the Testator at the time of his death had Goods to the value of One hundred pound and was bound to another by Obligation in One hundred pound and that the Defendant had taken in this Obligation and made another in her own Name with Sureties to the Obligor And upon the motion of Heale the Court held That this was an Administration and it is in the nature of a payment and so much of the Testators debt is thereby discharged and so it was said to be adjudged in Woods Case Nota fuit Ruled accordingly Pasch 30. in C. B. which was entered Mich. 28 29 Eliz. inter Stamp Hutchins Action upon the Case on Indebitatus Assumpsit doth well lye for every debt implyes a Promise and it is one good consideration in Facto whereon to found an Action But for a debt by simple Contract due by the Testator no Assumpsit lies against Executors and it was openly delivered by Popham Chief Justice No. 44 Eliz. to be the Resolution of all the Judges and to be a President in all Cases that might after happen It was agreed by Yelverton Williams and Crook Justices That if a man by Indenture lease Land to J. D. for years rendring Rent and J. D. dye making A. his Executor the Lessor may have Action of Debt against the Executor for the Rent reserved and the Arrears thereof after the death of the Lessee albeit the Executor never enter nor agree to the Lease for the Executor represents the Testators person and the Testator by the Indenture was stop'd and concluded to pay the Rent during the Term upon his own Contract and albeit the Rent exceeded the value of the profit of the Land yet the Executor cannot waive the Land but notwithstanding that shall be charg'd with the Rent Vid. Opin Ascue 21 H. 6. 24. 11 H. 4 Contr. Action Sur Trover and Conversion of Goods upon demurrer the Case was The Ordinary committed Administration of the Goods of an Intestate to the Defendant afterwards the next of Kin sues out a Citation in the Ecclesiastical Court against the Defendant to Repeal that Administration and he pendente Lite sells those Goods and afterwards his Administration is Repealed and Administration committed to the Plaintiff who for this Conversion pendente Lite brings this Action and it was moved for the Defendant that this Action lyes not for the Administration at the Common Law is well committed and the Statute doth not alter the Law in this point but gives a penalty against the Ordinary if he commits them not to the next of Kin and the Administrator till Administration Repealed hath an absolute Authority to dispose of the Goods as he pleaseth Tanfield è contra The Conversion pendente Lite in the Ecclesiastical Court is not lawful but is a Tort to the Plaintiff and that the Sentence there proves which is that all things attempted or done pendente Lite shall be void and the Justices ought to have regard to the Civil Law in this point as in 27 H. 6. Guard 118. 2 R. 2. Quare impedit 143. and 4 H. 7. 13. And by the Sentence it appears that the Administration is revoked as if it never had been and upon this reason it is in Dyer 339. where an Administrator recovered a debt and afterwards another procured himself to be joyned in the Administration and released the debt and afterwards it being revoked this release was not any bar to the execution And Mich. 25 26 Eliz. in the Common Bench between White and Cary this very point was in question and adjudged that the Action lay Gawdy The Action well lies for the Sentence doth not repeal mean Acts done by an Administrator which are for the Intestates benefit but forasmuch as these Goods were not converted

they both live but after her death it may be otherwise yea and if a void Administration happen to be committed and the Administrator wast the Goods and then Administration be committed to another in this case the former Administrator may be charged by the Creditors for the wast done in his time 4. But for an Executor or Administrator without fraud to sell the Goods of the deceased under value especially where more cannot conveniently be made of them is no wast Nor shall one Executor or Administrator be charged for the wast done by another for where there are many joynt-Executors if only one of them doth commit the wast he alone shall suffer for it So the Executor or Administrator committing Wast in the Gift or Sale of any of the Goods of the Defunct shall answer it alone and not he to whom the Goods are so given or sold yet the Executor or Administrator of such an Executor or Administrator shall not be question'd for it after his death Also an Executor or Administrator may lawfully sell or convert the deceaseds Goods to his own use so as he convert the money thereof to the deceaseds use in payment of Debts or the like and pay so much of his own money as the Goods so converted to his use are worth and this shall not be imputed to him as a Wast Yea he may sell any special Legacy that is bequeathed and even this shall be no Wast in him though it be a wrong to the Legatee in case there be Assets to pay Debts besides But when he hath enough to pay all the Debts and Legacies then he may dispose of the whole Estate how he please without any prejudice to himself or others And note That the wasting Executor doth not incurr dammage or make his own Goods lyable for satisfaction for the Wast further than the value of the Testators Goods so wasted or mis-administred doth amount unto An Action of Debt was brought against Two Executors one appeared and confessed the Action the other made default and Judgement was given to recover de bonis Testatoris in both their hands whereupon a Scire Facias issued The Sheriff returned Nihil but he who made default had wasted the Goods upon which a Scire Feci issued against him who had wasted the Goods and upon Return of the Scire Feci Execution was awarded of his own proper Goods only without his Co-Executor 5. If the Executor confess he hath Assets supposing the Executor to be Defendant then may the Sheriff Return a Devastavit If the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Dammages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Dammages as was formerly shewn of the Executors or Administrators own Goods And if the Sheriff upon a Scire Facias Return a Devastavit then a Fieri Facias or Elegit may be sued out to levy the Debt and Dammages of the Executors or Administrators proper Goods And if the Executor plead That he never was Executor nor Administred as Executor and it be found against him that he had Administred but one penny the Judgement shall be to recover the Debt and Dammages of the Executors own Goods And in a Case of Debt brought upon a Record the Execution shall be brought where the Record remains Judgement was given against B. in a debt of One hundred pound in C. B. After the said Judgement he entered into a Statute to J. S. and died Intestate his Wife takes Letters of Administration and removes the Record of the said Debt recovered against her Husband into B. R. by Errour depending the Sute she payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed On a Scire Facias against the Administratrix to have Execution she pleaded payment of the said Statute beyond which she had not Assets Upon this the Justices of the Kings Bench were divided viz. Popham and Gaudy against Fenner and Yelverton It was referred to the Opinion of the other Justices they joyned in Opinion with Fenner and Yelverton and judged it a good Plea and that the paying of the Statute was no Devastavit for at the time of the Execution of the Statute she could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not therefore no default in the Wife-Administratrix in paying and discharging the Statute for she could not have an Audita Querela nor any other Remedy to be freed from payment of the Statute at the time of the Execution thereof CHAP. XXVII Of the Executors power in Sale of Lands devised to be sold 1. The difference between a Devise that the Executors shall sell the Land and a Devise of the Land to the Executors to be sold 2. The profits of Land Devised to be sold are not Assets in the Executors hands for a time before such Sale 3. In what Case the Heir may or may not enter upon unsold Lands devised to be sold 4. Executors accepting may without others Refusing make a good Sale of Lands devised to be sold 5. In what Case surviving Executors cannot sell Lands devised to be sold 1. WHere Land is by Will appointed to be sold neither the money raised nor the profits shall be accounted as any of the Testators Goods or Chattels And when a man deviseth that his Executors shall sell the Land there the Land in the mean time descends to the Heir and until the Sale be made the Heir may enter and take the Profits But when the Land is Devised to his Executors to be sold there the Devise taketh away the Descent and vesteth the State of the Land in the Executors and they may Enter and take the profits and make sale according to the Devise Also when a man deviseth his Land to be sold by his Executors it is all one as if he had devised his Land to his Executors to be sold because he then likewise deviseth the Land whereby he breaketh the Descent 2. If a Testator doth appoint by his Will his Executors to make sale of certain Lands for the use and behoof of the said Testator and the Lands after the Testators decease happen to remain some time unsold the Profits thereof in the said time before such sale made shall not be Assets in the Executors hands unless the Testator did devise That the mean Profits till the Sale should be Assets in their hands for otherwise they shall not be so though the Executors in this Case have no Estate or Interest in the Land but only a bare and naked Power and Authority 3. But if the Executors having power to sell the Land of the Testator defer the Sale thereof after the offer of a reasonable price converting the Profits thereof to their own use the Heir may lawfully Enter to the Land and put out the

or Legatee but as Executrix by reason of these words viz. for the payment of his debts and for the wealth of his Soul And the Justices held That all works of Charity were within the Intent CHAP. XXVI Of a Devastavit or Wast in an Executor or Administrator 1. What a Devastavit or Wast is and in what Case the Writ of Devastaverunt doth lye 2. How many wayes a Devastavit or Wast may be committed 3. An Executor or Administrator in a Devastavit or Wast is chargeable de bonis Propriis 4. What Acts do not amount to a Wast also a Wast committed by one Co-Executor shall not charge another 5. The manner of Proceedings against Executors or Administrators in case of a Devastavit 1. A Devastavit or Wast in the Executor or Administrator is when he doth mis-administer the Goods and Chattels of the deceased or mis-manage that Trust which is reposed in him either by the Testator as to the Executor or by the Law as to the Administrator and therefore the Writ of Devastaverunt bona Testatoris lyeth against Executors for paying Legacies or Debts without Specialties to the prejudice of Creditors that have Specialties before the debts upon the said Specialties be due For in this Case the Executors are as lyable to an Action as if they had wasted the Goods of the Testator riotously or without cause Likewise the said Writ lyeth against Executors or Administrators when they deliver the Legacies given by the Testator or make Restitution for wrongs done by him or pay his debts due upon Contracts or other debts upon Specialties whose dayes of payment are not yet come c. and keep not sufficient in their hands to discharge those Debts upon Record or Specialties which they are compellable formerly by Law to satisfie or do deviate from that method or order enjoyned Executors by the Law in the payment of Debts and Legacies In such Cases they shall be constrained to pay of their own Goods those Duties which at the first by the Law they were compellable to pay according to the value of that which they delivered or paid by compulsion for such payment of Debts or delivery of Legacies as is aforesaid before Debts upon Record or Specialties whose dayes of payment are already come are accounted in the Law a wasting of the Goods of the deceased as much as if they had given them away without cause or sold them and converted them to their own use 2. From the Premises it is evident that a Devastavit or Wast may be committed several wayes more particularly thus viz. When more is expended about the Funerals of the deceased with respect had to his Estate and degree than is meet and fit when Executors pay Legacies in money or assent to Legacies given in other things before the Debts are paid not reserving sufficient to pay the Debts also when the Debts are not paid in that order and manner as the Law requires but payment is made of that first which should be paid last when there is not sufficient to pay all when the Executor gives a Release of a Debt or Duty due to the deceased before his Receit thereof when he Releases an Action whereby he might recover the deceaseds Goods or the value thereof when he sells the deceaseds Goods much under value specially if in a fraudulent way as to his near friends to his own use or to have money under hand or the like But be the appreyzment what it will and let the Testator sell for what he will he shall stand chargeable to the best and utmost value towards the Creditors but a Sheriffs sale of the Testators Goods upon an Execution at an under-value is no wast in the Executor If an Executor upon a Bond of Two hundred pound forfeited for non-payment of One hundred pound accept the Principal or Cost or Dammage and give a Release or Acquittance of the whole forfeited Bond or of all Actions or upon Record acknowledge satisfaction upon Judgement had this shall be a Devastavit or Wasting of so much as the penal summ is more than is received by him and so far his own Goods stand lyable to Creditors not satisfied And so doubtless is it if he do but give up the Bond having no Judgement upon it though he neither make a Release nor acknowledge satisfaction The Law is the same in Case of releasing of Trespasses or other causes of Action As if one take away Goods from the Testator or his Executor and he give a Release this is a Wast and makes his own Goods lyable Yet on the other side if an Executor by payment of Two hundred and forty pound or thereabouts get in a forfeited Bond of Five hundred pound it shall be an Administration but of Two hundred and forty pound or of no more than he really paid Also the Executors verbal agreement to require or sue for no more or his giving a Receit for so much as he hath received or delivering of the Bond into a Friends hands or into a Court of Equity by way of Security to the Debtor that he shall not be sued for more is no Devastation or Wast since that the rest in Law still remains as due and suable And upon the Issue of Plenè Administravit the Jury is to find whether the Executor hath Assets or not and not whether a Devastation for that must come in by the Sheriffs Return upon the Fieri Facias Again the Executors submitting to Arbitrement matters of Debt or Duty due to the Testator or touching his Goods taken away is another way of discharging dangerous to Executors for if it happen that by the Arbitrators Award the Trespassers or Debtors be discharged without full Recompence made the rest of the value will subject the Executors to the Creditors because it was their own voluntary act to submit to Arbitrators Or if an Executor allow a Writ to suffer Judgement to be had against him upon a Writ which is abatable he shall not have allowance of that but this shall be Return'd as a Devastavit Yea if money be paid by an Executor upon an usurious Contract it is a Devastavit And it was held by the Lord Hobard That if an Executor pay a Bond made upon an usurious Contract it shall be a Devastavit or Wast in the Executor 3. These and the like Acts are said to be a Devastavit or Wast in the Executor or Administrator which being discovered against him by the Sheriffs Return will charge him de bonis Propriis for so much as he hath so mis-administred insomuch that any Creditor may charge him for the Debt due to him from the Testator as for his own proper Debt and for so much Execution shall be made against him upon his own Body Lands and Goods Yea the Husband shall be charged in a Devastavit for the Wast of himself or his Wife where she is an Executrix whilst