Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	rent_n	value_n	yearly_a	1,574	5	10.4477	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A65445	The office and dutie of execvtors, or, A treatise of wils and executors, directed to testators in the choise of their executors and contrivance of their wills with direction for executors in the execution of their office, according to the law, and for creditors in the recovery of their debts : expressing the duty, right, interest, power and authority of executors, and how they may behave themselves in the office of executorship : with divers other particulars very usefull, profitable, and behovefull for all persons, be they either executors, creditors or debtors : compiled out of the body of the common-law, with mention of such statutes as are incident hereunto.	Wentworth, Thomas, 1568?-1628.; Doddridge, John, Sir, 1555-1628.	1641 (1641)	Wing W1358; ESTC R15205	180,173	328

to the one and by quick confession of the others action for he is not bound against his will to stand out in sute and expend costs where the debt is cleere nor is this covi●e but lawfull discretion which conscience will also approve some good consideration inducing Nay after sute commensed yet untill the executor have notice thereof he may pay any other creditor and then plead that he hath fully administred before notice Nor is the Sherifes returne of summons or distres sufficient cause of notice for the summons might perhaps bee upon his land but if it were to his person it is notice sufficient and then to save himselfe hee must say that he was not summoned till such a day before which hee had fully administred yet doubtlesse the executor may be arrested at the creditors sute in some sort which yet shall bee no sufficient notice of this debt As for the purpose if hee bee sued by Latitat out of the Kings bench this supposing a trespas gives no notice of a debt so also of a Subpaena out of the Exchequer but the originall returnable in the common plees expresseth the debt and so in some sort doe the proces thereupon And therefore it seemes by some bookes that if it bee laid in the same County where the executor dwels he must take notice of it at his owne perill But this I take not to bee Law nor is there any great opinion that way and although to make it more cleere the executor in King Henry the fourth his time estranging himselfe from notice of the sute before payment to others did alledge that the action was layed in a forren Country that is no great proofe that if his abode had beene in the County where the action was brought hee must have taken notice but thus it was cleerer and a little surplusage hurts not Now betweene a debt by obligation and a debt for rent or dammages upon a Covenant broken I conceave no difference nor any priority or precedency but it is as the executors discretion to pay first which he will as if all were by bond So also of rents behinde and unpaid as I conceave but touching them principally intending rents upon leases for yeeres divers considerations are to be had and some distinctions to be made as first betweene rent behind at the time of the testators death of which that before said is to bee understood and that which groweth behind after next betweene sute for the rent by action of debt and by distres and avoury As to the first difference if the rent grew due since the testators death then is it not accounted in Law the testators debt for onely so much is in Law accounted assets to the executor as the proffits of the lease amounted to over and above the rent so as for that rent so behind the executor himselfe stands debtor as hath beene resolved and therefore hee is suable in the debet and detinet whereas for rent behinde in the testators life and all other the debts of his testator hee must bee sued in the detinet onely Hence it must follow as it seemes that an executor sued for debt upon bond or bill cannot except in some speciall cases pleade a payment or recovery of rent growen due since his testators death though of rent behind at the time of his death it bee otherwise And yet heere againe another difference or distinction is to bee taken viz. where the proffits of the lease exceede the rent and where the rent is greater then the yeerely value of the proffits for even there as else where is shewed the executor if hee have assets is tyed to the holding of the lease and payment of the rent and consequently doth so much of that rent as exceedes the yeerely profit stand in equall degree the testators debt with other debts by specialty and yet againe to reconsider this point what if the debts of the testator by specialtie payable presently at his death or before the time that any rent can grow due upon this Lease shall amount to the full value of the testators goods may not then the Executor though hee doe not pay those debts before the rent day for that would make the case cleere waive the terme for if he may then happilie i● he doe not so but shall by payment of any of this rent want goods to pay any part of the debts by specialtie it may lie upon himselfe and his owne goods as happening by his owne default But on the one side it may bee said that hee could not waive it so long as hee had assets because thereby hee stood equallie liable to pay that debt being once due as the other debts by specialty On the other side it may be said that though the debts for rent and upon bond shall bee admitted to bee in nature equall yet the case being put of rent not due at the time of the testators death it was not then a debt nor duty whereas a Bond makes a present debt and duty though not presently payable the day of payment being not yet come so as this latter is discharged by a release of debts or duties and so is not the former So to leave that point unresolved let us next see whether in some case though the rent exceede not the yeerely value of the Land yet even that payable after the death of the testator may not stand in most part if not wholie upon the testators score as his debt as well as if it had beene payable before his death Posito then that the whole or halfe yeeres rent is payable at the annunciation of our Lady and that the testator dieth two or three daies or some like short time before that feast now certainlie should the Law bee unreasonable if it should lay this debt upon the executors shoulders in respect of those few winter daies proffits which he tooke But surely since the taking of the proffits induceth the Law to lay the rent upon the Executor as his owne debt therefore as where the Executor had the proffits for the whole yeere or halfe yeere except some few daies incurred in the testators life time those few daies will bee unregarded according to the rule De minimis non curat lex the whole rent shall lie upon the Executor as his owne debt So on the contrary part where the whole yeere or halfe yeers proffit except some few daies incurred after the testators death the rent becomming payable so instantlie after the testators death must in reason lie wholy upon the testators estate as to me it seemes What if to this I adde that the testators cattell wherewith the ground was stocked doe depasture and devoure the proffits all the time after the testators death till the day of payment of the rents Nay if the rent were payable at Mich. and the An●unc and the testator dieth a few daies after Mich. the rent being of or neere the value of

no remedy appeareth for the Conusee to have execution of the Goods of the Conusor but onely of his Lands If this should be thus it were a very mischievous case for many bound in Statutes have no Lands but Leases and goods of great value and if by their death their Goods and Chattells should be set free from this Statute and the Creditor without remedy the Law were very defective and it were so much the more strange in this Case because the Statutes of Acto● Burnell and Mercatoribus seeme to pitch principally upon Goods and to tend unto assurance betweene Merchants who usually are not Landed men But that the Law doth give remedy in such Case as well against the Goods as Lands of the deceased Conusor appeares by the resolution of late made in what Order and Precedence Statutes are to be satisfyed by Executors as after wee shall see Of Debts by Contract without Deed as Leases Paroll c. COntracts are of diverse kindes and we will begin with those in the realty as most worthy If therefore one be Lessee for yeares or for life without any Indenture or Deede as he may be and his Rent being behinde he dyeth now is the Executor lyable to the payment of this Rent without any Specialty for that his Testator if he had beene sued in his life time could not have waged his Law But if the Less●e for yeares in his life time sell or grant away his terme or Lease although he still lye at the stake for the Rent to grow due after untill the ●essor accept the Assignee for his Tenant Yet if the Lessee dye his Executor shall not be charged for any Rent due after the death of his Testator But what if the Lessee doe not Alien or assigne his terme but dye thereof possessed and the Executor perceiving the Land not to be worth the Rent Waiveth the same Yet the Lessor will not enter thereinto nor intermedle therewith whether may he yet charge the Executor with the Rent during the terme I answer that if he have assets that is sufficient for payment of this and other debts he cannot Waive this Lease but shall be tyed to answer this rent though much more then the Land is worth for the taking of the Lease is much of the nature of an Obligation to pay money Yet because it is yearely Executory the Executor may Waive it in case his Testators estate will not supply and beare that losse But what if there be assets to beare this yearely losse for some yeares but not during the whole terme I think in this case the Executor must pay the Rent so long as this Assets will hold out and then must Waive the possession giving notice to the Reversioner and this I thinke he may doe well enough notwithstanding his Occupation of the Land divers yeares after the Testators death because that was not voluntary but as of necessity yet this I leave as a Quaere to be well advised of with good counsell Of contracts personall VVHere the Testator might wage his Law there the Action lyeth not against the Executor as hath beene touched and therefore he is not chargeable in an action of debt upon a simple contract as by reason of this or that to his Testator yea though it were the Inheritance of Land which was sold so as the sale were without Deed or though by Deed yet if no counterpart were under the hand of him to whom the sale was made And the custome of London to the contrary viz. that an Action of debt should be maintained against Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Executor or paid by him as was towards the latter end of the late Queenes time resolved though in the beginning of her time it was a demurrer Yea though such a debt grew for the most necessary thing viz. meate and drinke which bindeth even an Infant to payment yet will it not charge the Executor of a man of full age but this is meant where the contract was onely by Word for where the Testator putteth his Seale to any Deede or Writing made upon such sale this is more then a simple Contract and taketh from the Vendee his wager of Law and so chargeth the Executor But if the Testator seale but unto a tayle or tally with scotches expressing a de●t this is no such Specialty as shall cha●ge Executors Yet in some Cases without any seale at all the Executor is chargeable But although no Action of debt lyeth against the Executor upon such a simple contract yet may the Creditor in that case maintaine an Action upon the Case grounded upon the assumption implyed though not expressed as now standeth resolved by all the Judges of all Courts at Westminster though heretofore there hath beene much difference of opinion thereabout And indeed thus the Executor is charged in matter for a simple contract though not in manner of a Debt but as for breach of promise making recompence in dammages instead of the debt And the chiefe reason for it is because the Testator could not have waged his Law in this action upon the case against himselfe though in debt he might Where the Testator retaineth servants in Husbandry or otherwise and dyeth there being wages due to these so retained the Executor is lyable to an action of debt for the same by reason that the parties were compellable by Statute thus to serve and therefore the Testator could not have waged his Law but in case of Servants not compellable as Wayters or Servingmen as wee call them no action of debt lyeth against the Executor for their wages though against the Testator himselfe it doth for the Contract is sufficient to charge him who made it See of account after Where Executors shall be charged without either Contract or Special●y VVHere a Prisoner oweth money to a Jaylor or Keeper of Prison for his dyet or victualls and dyeth his Executor shall be chargeable for this debt because it is for the Common wealth to have Prisoners kept which cannot be without affording them victualls Also where one hath a Pattent or Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Crowne and delivereth it to him he then having money of the Kings in his hands if he pay not the same but dye his Executor shall stand chargeable with the payment thereof So for Arrerages of Account before Auditors if more then one but this is debt of Record in Law So if any Lord of free Tenants doth levy ayde of them for the marriage of his eldest Daughter and he dye before she be marryed she may recover this money by an action of debt against his Executor but

tenure of the present owner or by Assignment from the King or other Lord of whom the tenure was is a Chattell reall not personall though it be an interest in the person of another but it is in respect of a tenure of Land or other hereditament and is for yeares viz. during the minority or till marriage had and so is reall Next a Villen for yeares as by Grant for a terme from him that had the Inheritance is a Chattell reall As for an Apprentice for yeares it is by Custome as I take it that hee goeth or is derived to Executors but for reason after shewed I thinke this Interest be not in the realtie but in the personaltie rather So of a debtor in Execution for debt the interest in him or perhaps more properly in his liberty is not as I conceive for reasons which after I shall expresse a reall but a personall Chattell The like Law of a Prisoner taken in the Warres As for Fishes in a Pond Conies in a Warren Deere in a Parke Pigeons in a Dove-house where the Testator had the Inheritance or but for life in the Pond Warren Parke and Dove-house they are not Chattells at all nor to goe to the Executors but to the Heire with the Inheritance If the Testator were but a Termer they are to goe to the Executor but as accessary Chattells following the state of their principall viz. the Warren Parke Dovehouse Pond c. The reall Chattells not living are either in Houses or Lands most usually and that three wayes First by Lease for yeares Secondly by Wardship of Lands held by Knights-Service Thirdly by extent upon Judgements Statutes or Recognizances Or in things issuing out of Houses or Lands as Rents Commons Estovers or such like But where an Inheritor reserves a Rent upon a Lease for yeares this shall not goe to the Executor but to the Heire with the Reversion other than Arrerages behinde at the death of the Testator Also Commons Corodies for yeares Advowsons Tithes Faires Markets Profits of Leetes and such like which the Testator had for yeares all which may accrue any of these wayes as the first are Chattell and Reall Yea one simple presentation to a Church upon the next avoydance is a Reall and not Personall Chattel before it come to be voyd and what then it is we shall after shew And the title accrued to the Crowne upon attainder of felony where the party held not of the King viz. The Annum diem Vastum that is power not onely to take the profits for a yeare but to waste and demolish Houses and to extirpate and eradicate Trees and Woodes is but a Chattell and therefore though granted to one and his Heires by the King yet shall goe to the Executor and not to the Heire Some doubtfull or lesse deere Cases touching Chattels Reall FIrst where we spake of Wardship it is not to be understood of Wardship by reason of Soccage tenure for that goeth not to the Executor but he shall be next Guardian who now after the death of the first Guardian shall be next of Kinne if the Ward continue under fourteene yeares old else he is out of Wardship Secondly if one have a ●ease for three lives to him and his Assignes this is no Chattell nor shall goe to the Executor nor to the Heire but to him who first enters and claimes it as an Occupante if no assignment be in the life of the Lessee made Contrarily of a Lease for many yeares if three or more or lesse so long live this is a Chattell and shall goe to the Executor So an extent upon a Statute yet it is delivered to the party as a Freehold viz. Vt liberum tenementum but that only makes it to be quasi liberum tenemen●●● as to the maintaining of an Assise if wrongfully put out Where one is seised in the right of his Wife of Land or other Hereditament and is attainted of treason or felony the profit thereof accrued unto the Crowne is but a Chattell and though the King grant it to one and his Heires yet it shall goe to his Executors And if one having a Lease for many yeares viz. a 100. 500. or more or lesse and doe devise and bequeath the same to A. and the Heires males of his body and for want of such issue to B. and the Heires males of his body and dyeth having issue a Sonne the terme shall not goe to his Sonne but to his Executor or Administrator for it cannot be made a matter of Inheritance so if A. had dyed without issue male the terme should not have gone or remained to B. but to the Executor or Administrator of A. as was lately adjudged in the Exchequor betweene Sir Rober● Lew●nor and Mistris Hamond So of an advowson or any other hereditament granted or devised to one and his Heires for a 100. yeares or if such a termer grant a Rent out of the Land to A. and his Heires or the Heires or Heires males of his body yet shall the same goe to the Executor and not to any Heire for it being derived out of a Chattell cannot be any Freehold or Inheritance but it selfe a meere Chattell Partus sequitur ventrem Of Chattels Personall PErsonall Chattells or Goods moveable are also in like manner to be divided into quicke or dead The quicke are Cattell of all kindes as Sheepe Horses Kine Bullockes Swine Goates Geese Duckes Poultry c. There may be also in living Creatures reasonable an Interest as in a Chattell personall as in the person of a man taken in execution for debt And this I hold to be in nature not a Reall but a Personall Chattell as before was touched for that debt is the roote of it and the body is but a pledge or gage dischargeable instantly upon payment release or other discharge of the debt Like Law of a Prisoner taken in the Warres for thereof and therein as in a Chattell hath the party a legall interest as appeares by a Writ of Trespasse in the Register for taking away a Prisoner viz. Quare quendam Scotum prisonarium suum cepit c. And note lately viz. In the time of King Henry the 8. the King himselfe upon the winning of Bullen bought divers Prisoners of his Subjects And by a Statute in the beginning of Henry the 6. his time this Interest in a Prisoner is mentioned as valuable and comming from one King unto another therefore doubtlesse shall go from Testator to Executor by death and not be infranchised or freed thereby The interest which one hath in an Apprentice I take to be rather Personall than Reall though for yeares because not springing cut of any Reall roote as Wardship and Villenage doe but out of a meere contract As for a Servant whose Master is dead doubtlesse he is legally discharged and is not Servant either to Heire or Executor but meete and honest it is that one of them continue

this is by vertue of a Statute There is a president in the Booke of Entries of an Action of debt against the Executor of an Heire by which it seemes that a man binding himselfe and his Heires and leaving Assets the Heire taking the profit becomes so a debtor that his Executor shall be charged And in the Register there is a Writ against the Executors of the Guardian of the Spiritualties of the Arch-Bishop of Yorke for the debt of B. who dyed Intestate and whose Goods came to the hands of the said Guardian viz. the Deane of Yorke In allowance whereof there is a note added of the like Writ brought in K. R. 2. his time and that then a president was alledged of such a Writ in King Ed. 2. his time against the Executors of an Ordinary and that they were inforced to answer unto it So is the opinion of Trew in the time of Edward the third But Ald. opposeth him Also the Rationabile parte bonorum by custome in some places is maintaineable for the Wife and Children against the Executor But no action of account lyeth against Executors except for the King More hereof tit wrong Of Covenants charging Executors VVE have already touched upon Covenants in part viz. where they be expressely for payment of money shewing them to be in Law bonds that is Writings Obligatory whereupon an action of debt may be brought as well as an Action of Covenant though the words of the Deed beare the sound and phrase of a Covenant Yet in some Cases no action of debt lyeth upon a Covenant to pay money as if A. Covenant that his Executor shall within a yeare or such a time after his death pay ten pound to B. now for that no action of debt was maintaineable against A. himselfe it lyeth not against his Executor but onely an action of Covenant as was held in the late Queenes time So if the Covenant be conditionall as thus that if C. doe not pay to B. ten pound then A. will pay it and so also perhaps if the Covenant be in the distinctive viz. to doe such an act or to pay ten pound now if the act be not done yet no action of debt lyeth for the money but onely an action of Covenant But now let us come to the Cases of meere Covenants and see which of them will charge an Executor and which not If a Lessee for yeares covenants to repaire the buildings or to pay the Quit-rents issuing out of the Land let there is little doubt but the Executor to whom the terme commeth must as well as his Testator performe that Covenant although he did not covenant for him and his Executors and yet of these cases doubt hath beene and touching the latter viz. of paying Quit-rents divers Justices in Queene Maries time were of opinion that it was a thing so personall that it dyed with the person and did not charge the Executors Nor is there any contrary opinion expressed in the Booke And since that time viz. towards the end of Queene Elizabeths raigne in the Action of Covenant betweene the Deane and Canons of Windsor and Hide touching reparations at the first much opinion was that onely the person Covenanting was tyed to this performance but after it was resolved that that Covenant did runne with the estate and so both Executor and Assignee bound to performance but in that case it was said by Popham Chiefe Justice that if the Covenant had beene to doe a Collatterall act neither the Executor nor the Assignee had beene tyed thereby and therefore where a Lessee for yeares covenants within such a time to build a new house upon the Land and dyes before that time expired I doubt whether the Executor be bound to performe this or not although it doe concerne the Land let so as perhaps the Rent or Fine was the lesse in respect of this charge of new structure or building which is a great reason that the Executor though not named should be tyed to the performance But if the Covenant had been to build a house elsewhere then upon the Land let or to doe any other collaterall thing not pertinent to the Land l●t it is cleere the Executors were named to performe it and yet in those cases if there were a breach or non-performance in the Te●stators life time as that the time of performance were expired before his death then it is cleere the Executors were bound to yeeld recompence by way of dammages recoverable in an action of Covenant as both Shelley and F●tzherbert agreed and so also did the Lord Popham agree in the said case of Hide as I find in my owne report of that Case though in the Lord Cooke reporting onely the point in question that be not mentioned Now let us consider of the case where there is no expresse Covenant at al so much as for the Lessor himselfe but onely a Covenant implyed or Covenant in Law as we call it As if Lessee for life make a Lease for yeares and dye within the terme so as the Lessee is evicted by him in reversion or remainder In this case it was resolved in the late Queenes time by three Justices viz. Walsh Browne and Dyer that by this Covenant in Law the Executors were not chargeable and in the same case the Lord Dyer sets downe another resolution after to the same effect but Master Serjeant Bendloes reporting this latter case to be of a Lease made by Tenant in tayle viz. before the Statute of 32. Henry 8. or not warrantable by it sets downe the opinion contrarily viz. that the action was mainetaineable against the Executor This may serve for instance the like being in any other case where the Lessor hath not a good and a firme title but perhaps subject to a Condition or other eviction so as the Lessee cannot injoy the Land according to his Lease But this must be so understood that no eviction or breach of Covenant is in the life of the Testator himselfe for if that be there is no question but the Executor stands chargeable and therefore if one make a Lease of Land by Deed wherein he hath nothing this Covenant is perhaps presently broken and though the Lessor dye before an action of Covenant brought it will be mainetaineable against his Executor though no expresse Covenant This is usefull to be knowne though in these dayes there be few Leases so made without expresse Covenant and the Executors also named And where there is a speciall Covenant in expresse words it doth qualifie the Covenant implyed so as although Words of demise and grant tye the Lessor to a generall Warranty of the title against all men yet it being after covenanted that the Lessee shall enjoy against the Lessor and his Heires or against all claiming under him or his Ancestors Now no eviction by or under any other title giveth cause of Action or

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 S●ire facias upon a recognizance or suit upon band and by A●dita querela where they cannot plead as when execution is sued

the Land it will then bee ha●d that the Executor shall for this winter proffit pay the rent out of his owne purse especiallie if the whole yeeres rent bee payable at that one day as in some cases it is or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes it is so also of medow grounds usually drowned in the winter So if the lease bee then to end not having a summer halfe yeere to succeede and make amends for the winter or if the winter halfe yeere bee the latter halfe the lease beginning at Lady day so that there is but a summer for each winter following and not any for the winter passed Of like consideration with these is the case of a lease of woods for a rent which being fellable but once in eight or nyne yeeres now if the lessee having made the last sale and felling before his death the Law should cast the rent upon the Executors owne estate for the time future it should lay losse upon him which is against reason and contrary to the nature and disposition of the Law even in this particular As appeares by this that shee enables an Executor to pay himselfe before any debt of equall nature so as shee more tenders an Executors indempnity then any other Creditors therefore I thinke that with and upon the differences above shewed even rent growen due after the testators death may in some cases bee the testators debt payable equally with debts by bond But here I conceive that if the executor were in such case of destitution of assets as might justifie his waiving of a lease over-rented hee then may waive these termes residue because for the future the profits will come short of answering the rent though at the first and so in the totall the profits did exceed the rent And if for want of waiving where he might this rent fall upon him the paiment thereof would be no excuse against another creditor nor as to him be a good administration for Ignorantia juris non excusat This is pertinent to our present consideration which debt may with safety be paid leaving another unpaid and the hazard of executors by ignorance of the Law hath been a principall motive to my writing these Discourses in English Hitherto we have only considered as I think of rents as they be recoverable by action of debt Now let us see if there may not be somewhat different considerations touching distraining for rent and so comming to recover it by avowrie Put wee then the case that an executor hath fully administred in payment of debts by bond and after the lessor or revertioner commeth and distraineth for arrerages of rent due in the testators life can the executor in bar of the avowrie plead fully administred as hee might have done if an action of debt had been brought for these arrerages doubtlesse I think no nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease except the land come to the King upon whose possession no distresse can be taken I think therefore that the executor who paid out of his own purse to the value of this lease for to I intend the case and else could he not have fully administred as in the case was put he should I say have abated in the price and valuation of the lease as well the arrerages of rent as the rent futurely payable both being equally leviable upon the land and if he so have done he is no loser by payment of this arrerage but if trusting to the power of an executor and to the plea of fully administred hee did not so but disbursed in respect of the lease to the full value without such abatement he must beare the losse of his owne ignorance He might also another way have helped himselfe viz. by payment of that arrerage leaving other debts by specialty unpaid And what if suits were presently commensed upon the testators death before hee could make payment of the rent behind whether might the executor then plead this debt for rent as hee might a debt by judgement or statute and surely me thinkes it probable that he might because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie If the revertioner would also commence suit before judgement had for the creditor by specialty then might the executor helpe himselfe by confessing his action first but this perhaps the revertioner would not conceive safe for him since that way the others might get judgement before him and so he might lose both his suit and his debt wheras holding himselfe to the course of distres the lease continuing he hath land at the stake for his debt What if he distraine and avow may not now 〈◊〉 executor pay him or at least confesse his ●●tion or avowry so as he first having judgement may first be satisfied Surely after suite commenced I see not how the creditors by bond can so be prevented at least without judgement had for the rent yea though such a judgement be had yet because the judgment in that case is not that hee shall recover the summe due for rent but only that he shal have a returne to the pound of the cattell distrained for the rent it is questionable whether the paiment thereupon of the rent shall prevent the judgements after had in the suits upon bonds But I thinke it shall because although it bee not an expresse recovery of the rent yet is it such a judgement compulsary for the same as makes the payment inevitable and of necessitie And where before we have made the question only between the said rent-debt and the debt by obligation let us now put the case between the rent-debt and the debt by statute or judgement If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell and after there comes a writ of execution upon a judgement or statute of the testators whether shall these beasts in the pound for rent be delivered in executiō or not admitting that without them there be not goods sufficient for satisfaction of the judgement or statute And surely I thinke they cannot be delivered in execution First for that they are in the custody of the law as in String-fellowes case though there the Kings preroga-time overtopped that point yea so I thinke though they be replevied for that they are to be returned to the pound if judgement passe for the avowant to which purpose securitie is given so as they are but in t●e case of a prisoner bailed who still is in some sort in custodie Secondly for that this rent incident to and descendible with the reversion breeds a debt of a reall nature and so of more dignity and worth than debts personall Thirdly for that the land let as in a sort debtor stands chargeable with this distres

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 distr●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 i● 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

effect And it hath beene resolved that this assent shall bee effectuall as well to all the remainders as to the first estate and so according to former resolutions it was admitted in Hamons Case that Alexander his assent to take as legatee sufficed if the bequest had beene good for the remainders to Ralfe and others And the reason of this doubtles is because heere the particular estate and the remainder are all but one estate in Law they make but one degree in a Writ of Entre nor shall have but one yeere and a day to enter for mortmaine And an atturnement to the grantee of a rent or reversion for life with remainder over doth enure also to the remainder which being an assent hath much affinity to that of the Executor each tending to perfect the grant of another man Now then whereas it was urged in Hammo●ds Case that the state limitted to Ral●e should take effect not as a remainder but as a new estate to commence futurely viz. when Alexander should bee dead without issue male if it should bee admitted to bee so then could not the assent of the first state to Alexander have enured to this since to A. remainder it worketh as being one estate with the first which reason must faile thother way This difference betweene a remainder and new estate future brings to my minde the case of a rent by way of new Creation granted by C. out of land to A. for life or in taile with remainder to B. in like manner where it hath probably beene held although this limitation to B. cannot bee good by way of remainder because C. had no estate in the rent remaining with him when hee made the grant to A. yet should it be good by way of new grant and creation to commence futurely But this doubtles cannot so be but with a difference for if the grant were by indenture betweene C. on th one part and A. only on the other part now B. being no party to the deed can take nothing by it except by way of remainder but if hee were party to the indenture or if the grant were by deed poll to which all men are alike parties then it happily may enure as a future grant to B. This not impertinent Now as the executors assent to one cannot enure to another though of the same thing except by way of remainder so neither can it any way where the things are not the same except in very speciall cases as if a termor bequeath a rent to A and the land it selfe to B the executors assent that A should have the rent is no assent that B should have the land yet I think the assent that B should have the land doth imply the assent that A should have the rent 1. For that the restraint imposed by the law against the passing of a chattell by a will without the executors assent being out of respect to the payment of the testators debts now if the land shall passe to B it is no more availeable to the testators debts that it passe discharged of the rent then charged 2. Since the gift and bequest was of the land charged with the rent therefore if this bequest shall take effect it shall carry the land according to the testators intent viz. with this charge upon it for what else doth the executor in this but assent that the will of the testator herein do stand and take effect and consequently B must take the terme according to the will and not in any different or contrary manner Next we are to consider of the manner of assents by executors which hath some affinity with the fourth point But here we shall consider only of assents conditionall now to this purpose we will cast our eyes upon two sorts of conditions viz. precedent and subsequent As for ●he former an executor may to a legatee absolutely given assent upon a condition precedent as thus I am content that if you can get and bring in to me such a bond wherein the testator stood bound unto I. S. that then you enter upon the terme or take the corne or cattell to you bequeathed So of other like conditions which may precede the assent as if you can get the assent of my coexecutor or if you will pay the arrerages of rent to the lessor behind at the testators death or if you will pay the wages already due to the servants attending about the cattell or corne to you bequeathed In this case if the condition be not performed there is no assent and therefore the conditioning in this manner is good But if it be upon a condition subsequent as thus I do agree that you shall have the thing bequeathed to you provided that you shall pay so much yearly to me or to such a creditor of the testator now the legatee entring into or taking the thing bequeathed shall not lose it againe by failing to performe the condition afterwards for the executor by his assent cannot make that legacy conditionall which the testator gave absolutely no more then he can make that bequest to be absolute which the testator gave conditionally except by a release made of the condition As in other things so in this the executors assent is like to the atturnement of a lessee which cannot be upon a condition subsequent where the grant is absolute or without condition though yet he may to his atturnement prefix a condition precedent In the eighth place we are touching the bequest of leases or chattels reall to consider what manner of interest one to whom a remainder of a terme after the death of another is limited hath and whether he may grant the same or dispose thereof during the life of the first And as to that it is cleare that he hath but a possibility of remainder for that possibly the whole terme may be spent in the life of the first to whom during his or her life it is bequeathed now a meere possibility is not grantable Therefore was it resolved in the late Queenes time where hee in remainder granted or sould his state or interest to another during the time of the first that this grant was utterly void because a possibility cannot be granted but whereas some opinion in that case was delivered that this possibility could not be released no more then granted it hath since bin resolved that he in the remainder by his deed of grant or release to the devisee for life may make his estate which before was determinable by his death to be now absolute so as it shall continue to his executors administrators and assignes after his death during the whole terme It may be that what was conceived in the said case of Fulsey negatively of the validity of a release by him in the remainder might be meant or perhaps expressed of a release to him in the reversion but surely me thinks though he could not surrender yet his release or defeasance to him